             Case: 16-11309   Date Filed: 01/10/2017   Page: 1 of 11


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-11309
                           Non-Argument Calendar
                         ________________________

                      D.C. Docket No. 5:13-cv-00895-CLS



ACADIA INSURANCE CO.,
as subrogee of Yedla Management Co., Inc., & Hospitality Enterprises of
Huntsville, Inc.,
d.b.a. Country Inn & Suites,

                                                              Plaintiff-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                               (January 10, 2017)

Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       In this case involving the Federal Tort Claims Act, 28 U.S.C. § 1346(b)

(“FTCA”), Acadia Insurance Company (“Acadia”) appeals the district court’s

grant of judgment in favor of the United States following a bench trial. In its

complaint, Acadia sought to hold the United States vicariously liable, under the

theory of respondeat superior, for the conduct of Special Agent Michael Siegling,

of the Federal Bureau of Investigation (“FBI”). Acadia claimed that Special Agent

Siegling had started a fire at the Country Inn and Suites in Huntsville, Alabama,

when he negligently discarded smoking materials on the balcony outside his hotel

room. 1 The agent had been staying at the hotel while attending a six-week training

course paid for by the FBI.

       In its order granting judgment in favor of the United States, the district court

said it was “inclined to conclude” that Acadia established by a preponderance of

the evidence that Special Agent Siegling negligently caused the fire. However, the

court said it was not necessary to reach that question because, even if Siegling’s

negligent disposal of smoking materials caused the fire, the United States would

not be vicariously liable for his conduct under Alabama law because Siegling was

not acting within the scope of his employment while smoking after hours on his

hotel room balcony. On appeal, Acadia argues that the district court misapplied


       1
          Acadia had issued an insurance policy to the owners of the Country Inn and Suites, and,
after the fire, paid the owners’ insurance claim. Acadia sued as the owners’ subrogee under the
policy.
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Alabama law to hold that Special Agent Siegling was not acting within the scope

of his employment while smoking on the balcony. After careful review, we affirm.

      After a bench trial, we review the district court’s conclusions of law de novo

and its factual findings for clear error. Tartell v. S. Fla. Sinus & Allergy Ctr., Inc.,

790 F.3d 1253, 1257 (11th Cir. 2015). A district court’s determination that an

employee’s actions were outside the scope of his employment is a mixed question

of law and fact subject to de novo review. See Nadler v. Mann, 951 F.2d 301, 305

(11th Cir. 1992).

      Under the FTCA, the United States is subject to liability in a tort action in

the same manner and to the same extent that a private individual would be under

the law of the place where the tort occurred. Daniels v. United States, 704 F.2d

587, 591 (11th Cir. 1983); 28 U.S.C. § 1346(b)(1). Thus, to determine liability

under the FTCA, courts must look to the law of the state where the act or omission

occurred. Daniels, 704 F.2d at 591. In this case, we look to Alabama law.

      In Alabama, to recover against a defendant upon the theory of respondeat

superior, “it is necessary for the plaintiff to establish the status of master and

servant and that the act done was within the scope of the servant’s employment.”

Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d 638, 640 (Ala. 1970).

      The rule which has been approved for determining whether certain
      conduct of an employee is within the line and scope of his
      employment is substantially that if an employee is engaged to perform
      a certain service, whatever he does to that end, or in furtherance of the
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      employment, is deemed by law to be an act done within the scope of
      the employment.

Id. at 642 (quotation omitted).

      To fall under the rule, the employee’s conduct “must not be impelled by

motives that are wholly personal, or to gratify his own feelings or resentment, but

should be in promotion of the business of his employment.”             Id. at 642-43.

“[W]hether an alleged wrong is committed by the employee during his regular

working hours is not dispositive of the question whether the employee was acting

within the scope of his employment. Instead, the dispositive question is whether

the employee was engaged in an act that he was hired to perform or in conduct that

conferred a benefit on his employer.” Hulbert v. State Farm Mut. Auto. Ins. Co.,

723 So. 2d 22, 24 (Ala. 1998) (citations omitted).

      On this record, we cannot say that the district erred in concluding that

Special Agent Siegling was not acting within the line and scope of his employment

at the time of the fire. Evidence adduced at trial showed that at the relevant time,

Siegling was smoking on his hotel room balcony, while he was off duty in the

evening. At that time, his conduct was not being supervised by the FBI, nor was

he engaging in activities that furthered its business. Rather, his smoking was

impelled by purely personal motives. Indeed, the FBI did not pay for Special

Agent Siegling’s cigarettes, but instead prohibited him from purchasing cigarettes

with his government credit card.        Nor was he even required to stay at that

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particular hotel. In short, the record shows that at the time of the fire, Special

Agent Siegling was not engaged in any action benefiting the FBI.

      On appeal, Acadia argues that while the FBI may not have benefited directly

from Special Agent Siegling’s smoking, a smoke break is a minor detour from an

employee’s job duties, which does not take his conduct outside the scope of his

employment under Alabama law. Acadia cites Natco Corp. v. Mallory, 80 So. 2d

274 (Ala. 1955), in which the Alabama Supreme Court held that an employee

injured when he went into the pit under his employer’s conveyor belt to retrieve his

fallen package of cigarettes was acting within the scope of his employment, as that

term was defined in Alabama’s workmen’s compensation statute.

      But Natco is distinguishable from the instant case in many ways. For one,

the standard for liability in the workmen’s compensation context is not the same as

that in the respondeat superior context under Alabama law. See Ex parte Stewart,

518 So. 2d 118, 120 & n.2 (Ala. 1987) (“[W]e have . . . expressly rejected any one-

to-one correspondence between compensation cases and the common law in the

application of the law of master and servant, recognizing that compensation cases

require a broader conception of the employer-employee relationship.”). Moreover,

Natco involved an employee who was at his worksite, during his on-duty hours,

and who was injured by his employer’s machinery. 80 So. 2d at 274-75. The

employee was not smoking, but was instead retrieving cigarettes he had dropped


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while he was working. Id. Here, in contrast, Special Agent Siegling was in a hotel

room, after a training class had ended for the day, and he allegedly started a fire

with cigarettes he had purchased for himself.

      There is language in Natco indicating that a smoke break is a minor detour

under Alabama law that does not take an employee’s conduct outside the scope of

his employment. See id. at 275-76. But the facts adduced at trial did not show that

Special Agent Siegling was taking a smoke break on his hotel room balcony on the

night of the fire. Rather, Siegling testified that, during the six-week course, he

typically left the hotel early in the morning, around 4:45 a.m., and returned around

4:00 or 5:00 p.m. Siegling considered himself off-duty when at the hotel. While

he studied from time to time in his hotel room for exams held in the course, he did

not testify that he was studying on the night the fire occurred, or that he was taking

a break from studying when he went out onto his balcony to smoke that night.

      These facts also distinguish this case from Hulbert. There, the Alabama

Supreme Court found a genuine issue of material fact concerning an employer’s

vicarious liability for a car accident caused by her nanny, who was driving to the

employer’s vacation home to help care for the employer’s children. 723 So. 2d at

24. In Hulbert, the nanny’s driving to the employer’s vacation home benefitted the

employer, and one of the employer’s children was in the car with the nanny at the

time of the accident, which could have suggested the nanny was on duty. See id.


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See also Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 16-17 (Minn. 1979)

(upholding jury verdict finding employer vicariously liable for negligent conduct

of employee whose cigarette smoking caused fire in hotel room, where employee

was “24-hour-a-day man,” used the hotel room as his “office away from home,”

and was reviewing expense reports when he started the fire).

      Acadia further argues that Special Agent Siegling’s smoking on his hotel

room balcony was within the scope of his employment because the FBI reasonably

could have expected that he would be smoking in his hotel room. In its appellate

brief, Acadia asserts that the FBI “paid for [Siegling] to have a smoking room.”

But this is not supported by the trial evidence. While Agent Siegling testified that

an ashtray was in his room, there was no evidence about whether the FBI

specifically requested a smoking room for Siegling, or even whether the Country

Inn and Suites distinguished between smoking and non-smoking rooms. On the

other hand, Agent Siegling testified that, while the FBI paid for his lodging and

meals and permitted him to use a government credit card for his expenses, it did

not pay for his cigarettes and specifically prohibited him from purchasing

cigarettes with the government credit card. Thus, if anything, the FBI discouraged

Agent Siegling from smoking while he was on official government business.

      Acadia also points to cases in which courts have held employers liable for

car accidents caused by employees traveling on official business, who were driving


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to or from restaurants to purchase meals paid for by the employer. Flohr v.

Mackovjak, 84 F.3d 386, 390-92 (11th Cir. 1996) (applying California law to hold

United States vicariously liable for car accident an Army engineer on temporary-

duty assignment caused while driving to a restaurant in a rental car paid for by the

government); Singleton v. Burchfield, 362 F. Supp. 2d 1291, 1293-95 (M.D. Ala.

2005) (applying Alabama law to hold United States vicariously liable for car

accident an Air Force officer attending five-week training course caused while

driving back to his hotel in a government car after eating dinner at a restaurant).

Acadia says that since an employee’s smoking confers just as much benefit on the

employer as the employee’s eating, the government should be held liable for

Special Agent Siegling’s negligent smoking activities.

      We’re unpersuaded. First of all, the cases Acadia cites involve employees

who were driving vehicles that were either owned or rented by the employer, and

Alabama law applies a presumption that an employee driving his employer’s

vehicle is acting within the scope of his employment. Pryor v. Brown & Root

USA, Inc., 674 So. 2d 45, 48 (Ala. 1995). There is no such presumption for

employees staying at hotels paid for by their employers. Secondly, whereas the

government paid for the transportation and meals of the employees in Flohr and

Singleton, the FBI did not pay for Special Agent Siegling’s cigarettes, but instead

prohibited him from purchasing cigarettes with his government credit card. As for


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Acadia’s reliance on Pryor for the proposition that an employer can be held

vicariously liable even for conduct it prohibited, it is inapposite here. Pryor says

that such liability may be imposed if the employee was acting within the line and

scope of his employment. Id. at 47-48. But, as we’ve already explained, there is

nothing to suggest that Special Agent Siegling was acting within the line and scope

of his employment when he was smoking on his hotel room balcony at the time of

the fire.

       Acadia argues in passing that Special Agent Siegling’s smoking may have

been necessary for his optimal performance during the six-week training course,

given the adverse symptoms addicted smokers typically experience when they go

through nicotine withdrawal. However, Acadia presented no evidence to this

effect at trial. Rather, Special Agent Siegling testified only that he smoked every

day or every fourth day.

       We also reject Acadia’s claim that the district court erred by referencing

cases from jurisdictions outside Alabama to decide if Siegling was acting within

the scope of his employment while smoking after-hours on the hotel balcony.

Acadia acknowledges that no Alabama case resolves whether an employer is

vicariously liable for an employee’s negligent cigarette smoking activities in his

hotel room while the employee is traveling on official business. The district court

did not err in looking to analogous cases from other jurisdictions to guide its


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analysis as to whether Alabama courts would impose liability under the same

circumstances. The court expressly concluded that “the Alabama Supreme Court

would follow the reasoning of cases from those jurisdictions.” (emphasis added).

      Finally, Acadia argues that not holding the FBI liable for Agent Siegling’s

negligent cigarette-smoking activities does not comport with the policy reasons

behind vicarious liability in Alabama. We disagree. In Hollis v. City of Brighton,

the Alabama Supreme Court explained:

      Respondeat superior liability seems fully justified because (1) it tends
      to provide a spur toward accident prevention; (2) it tends to provide
      greater assurance of compensation for accident victims; and (3) at the
      same time it tends to provide reasonable assurance that, like other
      costs, accident losses will be broadly and equitably distributed among
      the beneficiaries of the enterprises that entail them.

885 So. 2d 135, 145 (Ala. 2004) (quotations omitted, alteration adopted).

      We are not convinced that holding the FBI vicariously liable for a fire

Special Agent Siegling allegedly caused while smoking on his hotel room balcony

after hours, when he was not engaged in any activity that would benefit the FBI,

would “spur toward accident prevention.” Again, it is relevant here that the FBI

already discourages cigarette-smoking by agents traveling on official FBI business

by prohibiting them from purchasing cigarettes with a government credit card.

Nor are we convinced that holding the FBI vicariously liable would equitably

distribute losses among the beneficiaries of Special Agent Siegling’s cigarette

smoking, since there was no evidence the FBI benefitted from Siegling’s smoking.

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Instead, we agree with district court that holding the FBI vicariously liable on these

facts risks holding employers liable for any acts done by employees while traveling

on official business, which is contrary to Alabama law. See Solmica, 232 So. 2d

at 640.

      AFFIRMED.




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