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CUSANELLI v. KLAVER

June 23, 1982

Thomas CUSANELLI, Plaintiff,
v.
Leonard KLAVER, Perko Manufacturing Corp., Perkins Marine Lamp & Hardware Corporation, and Perko, Inc., Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

On May 27, 1978, Thomas Cusanelli was allegedly injured during an attempt to refloat a grounded vessel, the EL MAR II (El Mar), owned and operated by Leonard Klaver, when a stern towing cleat "ruptured and ripped off" the El Mar and "catapulted " into his body. Complaint P 13. At the time of the injury, Mr. Cusanelli was on active duty with the Coast Guard on board vessel CG 413-49. Mr. Cusanelli brought this action in New York State Supreme Court asserting a negligence claim against Mr. Klaver and a products liability claim against Perko Manufacturing Corp., Perkins Marine Lamp & Hardware Corp. and Perko, Inc., manufacturers and distributors of the towing cleat.

 The United States (hereinafter sometimes referred to as "the Government"), acting on behalf of Leonard Klaver, filed a petition removing this case to Federal court. The basis for the removal as asserted by the Government is that at the time of the incident that resulted in Mr. Cusanelli's injury, Mr. Klaver was a member of the Coast Guard Auxiliary (Auxiliary) and the El Mar was assigned to authorized Coast Guard duty making it a public vessel as defined in 14 U.S.C. § 827. *fn1"

 Actions arising out of the operation of public vessels may be brought only under the terms and conditions of the Public Vessels Act, 46 U.S.C. §§ 781-790 which incorporates by reference the Suits in Admiralty Act, 46 U.S.C. §§ 741-752.

 The Suits in Admiralty Act provides that an action against the United States is "exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim." 46 U.S.C. § 745. Therefore, if, as the Government contends, the El Mar was a public vessel at the time of the accident, this action must be maintained against the United States and not its agent, Leonard Klaver. *fn2" Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir. 1969); see also, Dick v. United States, 671 F.2d 724 (2d Cir. 1982).

 The plaintiff moved to remand, attacking the pivotal assumption underlying the Government's removal by claiming that at the time of the incident the El Mar was not a public vessel and Mr. Klaver was not on authorized Coast Guard duty. The Government cross-moved to dismiss the complaint against it and Leonard Klaver 1) for lack of subject matter jurisdiction, 2) as barred by the statute of limitations, *fn3" and 3) for failure to state a claim upon which relief can be granted. *fn4"

 It is undisputed that Leonard Klaver is a member of the Coast Guard Auxiliary and that on the day of the incident he had been on Auxiliary patrol. At some time between 4:30 and 5:00 PM but prior to the time his tour of duty would normally terminate he requested permission to leave his patrol due to the operating loss of one of the El Mar's engines. Permission was granted and he began to return to his home port. Approximately 11/2 to 2 hours later, while still on direct route home, the El Mar ran aground, precipitating the rescue attempt by the crew of the vessel on which Thomas Cusanelli was serving.

 Mr. Cusanelli argues that when Mr. Klaver received permission to return to his home port he ceased functioning as a member of the Auxiliary. Looking to principles underlying the doctrine of respondeat superior, he states that since Mr. Klaver was no longer acting within the scope of his employment as an auxiliarist, his negligence cannot be imputed to the United States.

 In Lundberg v. State of New York, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177 (1969), the New York State Court of Appeals stated:

 
An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.

 Id. at 470, 306 N.Y.S.2d at 950, 255 N.E.2d at 180.

 That case supports and illustrates the general rule that "an employee driving to and from work is not acting in the scope of his employment.... Although such activity is work motivated, the element of control is lacking." Id. at 471, 306 N.Y.S.2d at 950, 255 N.E.2d at 180 (citations omitted); see also, Johnson v. Daily News, Inc., 34 N.Y.2d 33, 356 N.Y.S.2d 1, 312 N.E.2d 148 (1974).

 Mr. Cusanelli would have us analogize this case to Lundberg and find that during the time Mr. Klaver was heading home from the patrol area he was in effect "driving ... from work" and within the general rule. *fn5" But as the Court in Lundberg sets out, there is an "exception to this rule ... that an employee who uses his car in furtherance of his work is acting in the scope of his employment while driving home from his last business appointment, since such a person is working, and is under his employer's control, from the time he leaves the house in the morning until he returns at night." 25 N.Y.2d at 471, 306 N.Y.S.2d at 950, 255 N.E.2d at 180. See also, Shauntz v. Schwegler Bros., 259 A.D. 446, 20 N.Y.S.2d 198 (4th Dep't 1940); Berger v. Burlin & Jones, Inc., 43 A.D.2d 528, 349 N.Y.S.2d 1 (1st Dep't 1973); Rappaport v. International Playtex Corp., 43 A.D.2d 393, 352 N.Y.S.2d 241 (3d Dep't 1974).

 We think that the circumstances of this case are such that it falls well within the exception and not within the general rule. Mr. Klaver did not use the El Mar merely to get to his Auxiliary post. The El Mar itself was the locus of his service as an auxiliarist and during the entire course of its use on the day of Mr. Cusanelli's injury it sported the insignia of the Auxiliary (as did Mr. ...


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