it is dispositive of the "control" element of the test. Id. at 362.
In regard to the "furtherance" element of the test, as the Fourth Circuit stated in examining New York's respondeat superior doctrine as it applies to military personnel, "the test is not ... one that requires the particular activity at the time of the accident, i.e., the driving, to be the normal duty of the servant but is, rather, whether the master's business is then being substantially furthered." Cooner v. United States, 276 F.2d 220, 230 (4th Cir. 1960). This determination requires an examination of all the surrounding circumstances. Id. at 229-30. New York recognizes that an employee acting for dual purposes may still create employer liability. Blesy, 443 F.2d 358 at 361. More specifically, New York applies the "but for" test: "if the employee would not have undertaken the journey had the business purpose been canceled, the employee was acting within the scope of employment;" [however] ... "if the employee would have taken the trip in any event, then the employee was not acting within the scope of employment." Id. at 363.
In applying these standards to the case at hand, the court finds that Matola was acting within the scope of his employment at the time of the accident. Plaintiffs assert that, based on Matola's sworn statement given on the day of the accident that he "was going to work" when the accident occurred, he was not acting within the scope of his employment. Plaintiffs further argue that the fact that Matola drove his own car and that no particular time frame was set for Matola to arrive at his work station further show that he was not acting within the scope of his employment at the time of the accident.
It is true that generally an employee driving to or from work is not acting within the scope of his employment because the element of control over the employee is missing. Lundberg, 306 N.Y.S.2d at 950. Furthermore, an employee who is involved in an accident while conducting a personal errand during the course of the business day is not considered to be acting within the scope of employment. Swartzlander v. Forms-Rite Business Forms & Printing Serv., Inc., 174 A.D.2d 971, 572 N.Y.S.2d 537, 538 (4th Dep't 1991).
However, it is clear from Matola's later affidavit, which clarifies the sworn statement given on the day of the accident, that on September 9, 1991 he went on duty at 7:00 am and performed the physical training portion of his duties until 8:00 am at which time he was allowed a "personal hygiene break" to clean up and change clothes before the remainder of his duties that day. He attests that he was on "active duty" during this entire time from 7:00 am onward. He remained on base during all times. This was confirmed by the Acting Claims Judge Advocate of the Army who investigated the incident. (Conan Aff., Attachment A). Thus, the court finds that Matola was acting "in the line of duty" when the accident occurred, and so his employer had the right to control him at that time. Additionally, the fact that Matola was operating his own car at the time of the accident does not preclude employer liability. Blesy, 443 F.2d 358 at 361.
In regard to the "furtherance" element, despite the lack of clarity as to the particular time Matola was required to report to his work duty, the all the surrounding facts show that his travel was in furtherance of his employer's business. Even assuming arguendo that this travel involved a dual purpose, it is clear that it would not have been undertaken had the business purpose been canceled. Matola had finished one duty assigned by the employer, had taken an approved "personal hygiene break" on base, and was travelling to the point of his next assignment when the accident occurred. The court finds nothing in these facts which would warrant a finding that the trip would have occurred if he had not been required to go to his next duty station, and finds that his travel could only be in furtherance of the duties owed to his employer. This finding is in harmony with other cases in which the courts have found military personnel to have been acting within the scope of their employment while travelling far more extensively enroute to their next duty assignment. See, e.g., Blesy, 443 F.2d at 363; Cooner, 276 F.2d at 234. The court believes that the fact that Matola was on duty at the time of the accident distinguishes it from Bailey v. United States, 451 F.2d 963 (5th Cir. 1971) and United States v. Browning, 359 F.2d 937 (10th Cir. 1966) relied upon by plaintiffs.
B. Substitution of Defendant
Finding that Matola was acting within the scope of his employment when the accident took place, this action can only be viewed as one under the Federal Tort Claims Act. The FTCA provides the exclusive remedy to persons injured by a federal government employee acting within the scope of his employment at the time of the injury. United States v. Smith, 499 U.S. 160, 111 S. Ct. 1180, 1183, 113 L. Ed. 2d 134 (1991); 28 U.S.C. § 2679(b)(1). Under the FTCA, the federal government must be substituted for the individual government employee named as the defendant upon certification by the Attorney General that the employee was acting within the scope of his employment at the time of the incident giving rise to the suit. 28 U.S.C. § 2679(d)(1). The necessary certification has been made in this case, and the court, in light of the foregoing discussion agrees with it.
Thus, the United States is properly substituted for defendant Matola in the main action. 28 U.S.C. § 2679(d)(1). However, the following makes such action unnecessary.
C. FECA's Application to Plaintiff Roni Pitt
Because plaintiff Roni Pitt is a federal government employee who was injured in the course of her employment, her exclusive remedy is against the federal government under the Federal Employees Compensation Act. 5 U.S.C. § 8116(c). Plaintiffs acknowledge Ms. Pitt's exclusive remedy against her employer under FECA, but argue that they are still entitled to bring a state action against Matola in his individual capacity. This is incorrect.
It is clear that FECA provides the exclusive remedy for a federal employee injured in the scope of her employment even when the actor who allegedly caused the accident is also a federal government employee. See Noga v. United States, 411 F.2d 943, 944-45 (9th Cir. 1969) (holding that the fact that a government employee was injured in a car accident where the driver of the car was also a federal employee did not change the fact that FECA provided her only remedy). In a case very similar to this one, the Ninth Circuit held that "the federal legislative objective in enacting the Federal Drivers Act while leaving the exclusivity provision of FECA intact was apparently to protect federal drivers from personal liability by rendering the Government liable in tort, in the case of non-federal employee plaintiffs, and by rendering the Government liable only under the FECA in the case of federal employee plaintiffs." VanHouten v. Ralls, 411 F.2d 940, 942-43 (9th Cir. 1969). Thus, since Ms. Pitt has already been compensated for her injuries under FECA, she cannot seek further damages in this action for the same injuries in either federal or state court. Vantrease v. United States, 400 F.2d 853, 856 (6th Cir. 1968). Thus, Ms. Pitt's claim is dismissed.
D. FECA's Application to Plaintiff Edward Pitt
As to Edward Pitt's claim for loss of consortium § 8116(c) of FECA states, in pertinent part, that:
the liability of the United States ... under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States ... to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States ... because of the injury or death in a direct judicial proceeding, in a civil action ... or under a Federal tort liability statute ... (emphasis added).