Whether it’s something special about the relationship between Ferraris and the federal government, who knows, but of all the cars, regardless of age or marque, it seems that Ferraris fare worse than any other.
When word of the finding of the stolen 1995 Ferrari F50, one of 349 made, in Lexington, Kentucky reached the owner’s insurance carrier, it was cause to celebrate. This was a $750,000 vehicle, and not an inexpensive payout to the Pennsylvania dealer from whom it was stolen. And now it was back in safe hands, the hands of law enforcement and the federal government. Safe, safe hands.
On August 12, 2008, the FBI stumbled upon the stolen car in Lexington, Kentucky during an investigation into a separate crime. The agency held the vehicle with permission from Motors while the thief was investigated. On May 27, 2009, FBI Special Agent Frederick C. Kingston got behind the wheel of the Ferrari with by Assistant US Attorney J. Hamilton Thompson in the passenger seat.
“Just a few seconds after we left the parking lot, we went around a curve, and the rear of the car began sliding,” Thompson wrote in an email to a superior. “The agent tried to regain control, but the car fishtailed and slid sideways up onto the curb. The vehicle came to rest against a row of bushes and a small tree. Both myself and the agent exited of our own power.”
The Ferrari was totaled, but Kingston and Thompson were okay, and really, isn’t that the most important thing? What were they doing in the Ferrari? Well, the feds don’t really have an answer for that. They had no business being in the Ferrari. There was no legitimate purpose for them to be there. Some wags might call it joy-riding. Boys will be boys, you know. Use that when the next 16 year old takes a BMW for a spin. Somebody else’s BMW.
The insurer, Motors Insurance, was decidedly less thrilled about the recovery of the F50 after it was totaled, and sued the government. Eastern District of Michigan Judge Avern Cohen tossed the case.
“It is certainly unfortunate what befell MIC’s vehicle,” Judge Cohn ruled. “However, the vehicle was damaged while being detained by law enforcement officers within the meaning of Section 2680(c). As such, the government cannot be liable under the FTCA for what occurred. Accordingly, the government’s motion is granted. This case is dismissed.”
Say what? But, but, but, they killed the Ferrari! That’s not “unfortunate.” That’s murder.
The car was totaled, and the DOJ refused to accept any responsibility, asserting sovereign immunity. The department stonewalled all requests from Motors seeking information regarding the incident. The Federal Tort Claims Act does allow for an individual to recover damages caused by the negligence of federal employees while acting within the scope of their employment. This law, however, includes a “detention-of-goods” exception, 28 US Code Section 2680(c), that absolves the government from claims “arising in respect of… the detention of any goods” by a law enforcement officer.
US District Court Judge Avern Cohn found that the exception covered the case at hand because the Ferrari was being detained by law enforcement.
That’s right kids, the FTCA excepts property detained by law enforcement. After all, you can’t expect property in the hands of law enforcement to come back safe and sound. That would be far too much to expect of our guardians. Especially our guardians who want to cruise in a really cool, really rare, $750,000 Ferrari F50, and who happen to be vested with the enormous authority of exercising sound discretion, both with physical property and human life. Besides, stercus accidit.
Notably, the plaintiff insurance company made a monumental mistake in the process, by giving their permission to the feds to hold onto the Ferrari as they investigated the theft. What were they thinking? They could just as easily have taken photos, performed whatever forensics were needed and had the Ferrari back by supper. But no, the feds asked to hold it and Motors Insurance, assuming that they would show just a wee bit of care, said okey dokey.
As the great philosopher, Otter, noted:
And next time the government asserts its need to retain custody of something, anything, that a client might want back, intact and alive, you would do well to remember this decision. Especially if it’s a Ferrari. They just don’t seem to do well in the hands of the United State government.
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Judge got it wrong. The claim isn’t “arising in respect of… the detention” of the vehicle. Forgiving any negligence not occurring in the course and scope of effecting the detention is a pretty clunky way to read that.
They were acting as much within the scope of their employment as the valets who took Cameron’s dad’s Ferrari out for a joyride.
The decision noted that if the argument is that they were joy-riding, it was ultra vires and the government wasn’t liable anyway. Of course, their access to the keys is under color of law, and then this would also seem a taking without just compensation, and then there’s always the government employee’s pension to be considered.
OK, so if they were joy riding and it’s ultra vires, does that mean that the individual driving the car was personally liable and therefore should be sued for that particular tort? Or, would that decision employ the circular reasoning that the alleged tortfeasor *was* acting within the scope of his duties and is therefore immune from liability?
Proving “joy-riding” by a preponderance of the evidence is probably too steep a hill to climb with a cop in the defendant’s chair, but one never knows.
Gummint agents acting like children (boys will be boys) is our bad. We allowed it to go on without exception. But in this case who really cares except the insurance company. Their bad.
And literally, they are bad. Just getting a little payback for all their stupid policies and I for one have no sympathy.
Naive, Chaz. Today it’s an insurer, but the same law applies tomorrow to you, but by then, it’s too late.
A halfway-competent insurance company would have found some way to pass the loss on to the client.
Or at least not let the feds hold the car. That was just plain stupid.
That’s what I thought, because if the agent and assistant were injured or worse the insurance company would have been liable. And you know the company knew that the government wasn’t about to pay any premiums much less assume liability. They let it go anyway. Who knows, maybe some dope got fired.