The opinion of the court was delivered by: THOMAS M. MCAVOY
MEMORANDUM, DECISION & ORDER
On the morning of September 9, 1991, a two-car traffic accident occurred at an intersection within the confines of the Fort Drum Army Base. Three people were involved, each of whom was employed at the time by a branch of the United States Armed Services.
In Car # 1 were two civilian employees of the U.S. Air Force, Cheryl Bulriss and Roni Pitt, both secretaries at Plattsburgh Air Force Base. They were travelling together to attend a mandatory training seminar being conducted at Fort Drum. Ms. Bulriss was driving her own car pursuant to orders and authorization by the Air Force. Ms. Pitt, the only person injured in the accident, was her passenger. Car # 2 was driven by then-U.S. Army Chief Warrant Officer Ken Matola. Having completed the physical training portion of his day's duties shortly before, Matola was driving his own car to his on-base duty station at the time of the accident.
Approximately two years after the accident, the Pitts commenced a suit against Matola in New York State Supreme Court seeking compensation for Ms. Pitt's injuries and loss of consortium for her husband under New York State law. In 1994, Matola commenced a suit against Bulriss, who drove Car # 1, for contribution and/or indemnification in the Pitts' state court action against him.
Bulriss' attorney realized that she had been acting within the course of her duties at the time of the car accident and requested that the U.S. Attorney's Office enter the suit on her behalf. The U.S. Attorney agreed and on September 26, 1994 the case was removed to federal court. By stipulation filed on December 9, 1994, the United States was substituted as the third-party defendant pursuant to 28 U.S.C. § 2679(d)(2). Matola's attorney then realized that his client was entitled to the same treatment, and he requested that the U.S. Attorney enter the case on his behalf, which it has agreed to do pursuant to 28 U.S.C. § 2679(d).
The United States now moves to be substituted as defendant in lieu of Matola and seeks dismissal of the suit because this action has evolved into a federal action against the government seeking damages payable by the United States for personal injuries suffered while in the course of federal employment. The government claims that FECA is the Pitts' only remedy, and so this suit is now barred. Assuming arguendo that FECA does not apply, the government claims that this suit is barred by plaintiffs' failure to file the prerequisite administrative claim for preserving a negligence cause of action against the federal government under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.
The Pitts acknowledge that FECA is the exclusive remedy against the United States available to Ms. Pitt for injuries arising out of the course of her employment. However, they disagree that Matola was acting within the scope of his employment at the time of the accident and note that the suit was originally commenced against Matola in his individual capacity. Plaintiffs claim that Matola was on his way to work when the accident happened, thus placing the accident outside the course of his federal employment. They also note that Matola was driving his own car at the time. Thus, they claim that neither FECA nor FTCA applies.
The Federal Drivers Act, added onto the Federal Tort Claims Act, bestows on the federal government exclusive responsibility for damages claims against its employees arising from the operation of vehicles within the scope of their employment. Cronin v. Hertz Corp., 818 F.2d 1064, 1065 (2d Cir. 1987); 28 U.S.C. § 2679(b) The Act does not define "scope of employment," but instead looks to the law of the state in which the accident occurred. Id. at 1065. Thus, the court must look to New York law to determine whether Matola was acting within the scope of his employment when the accident occurred.
New York law looks at several factors to determine whether an individual was acting within scope of his employment at the time of a particular incident. The parties here agree that Lundberg v. State, 25 N.Y.2d 467, 255 N.E.2d 177, 306 N.Y.S.2d 947 (1969) sets forth the applicable standard for determining scope of employment in New York. Lundberg holds that an employee acts within the scope of his employment: (1) "when he is doing something in furtherance of the duties he owes to his employer;" and (2) ...