United States Court of Federal Claims.

Matthew Walter STEPHAN, Plaintiff,

v.

The UNITED STATES, Defendant.

 

No. 12-481

(Filed: June 30, 2014)

 

OPINION AND ORDER

EDWARD J. DAMICH, Senior Judge

*1 This action was brought on July 30, 2012, by Plaintiff, Matthew Walter Stephan (“Stephan”), pro se, requesting a Living Quarters Allowance (“LQA”) and back pay for his time spent as a Navy civilian employee in Yokosuka, Japan. The case is now before the Court on cross-motions for summary judgment. After considering the parties’ arguments and the evidence presented therewith, the Court has concluded that Stephan’s motion should be DENIED and the Government’s motion should be GRANTED.

 

I. Background

a. Statutory and Regulatory Background

The Overseas Differentials and Allowances Act of 1960 (“ODAA”) establishes, inter alia, the statutory authority for Federal agencies to provide LQAs to employees serving overseas. See 5 U.S.C. § 5921 et seq. The ODAA states in relevant part:

 

(a) When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following allowances may be granted when applicable:

 

…

 

(2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water …

 

5. U.S.C. § 5923(a)(2). Such allowances “shall be paid under regulations prescribed by the President.” § 5922(c). The ODAA also authorizes the President to promulgate regulations governing “(1) payments of the allowance and differentials and the respective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the categories of employees to which the rates apply; and (3) other related matters.” Id. The President, in turn, has delegated his authority to the Secretary of State. Exec. Order 10903, 26 Fed.Reg. 217 (Jan. 9, 1961).

 

Pursuant to the President’s delegation, the Secretary of State promulgated the Department of State Standardized Regulations (“DSSR”). Mirroring the language of the statute, the DSSR provides that the “[q]uarters allowances … may be granted to employees recruited outside the United States” if those employees meet certain conditions. DSSR § 031.12. As applied to Stephan, in order to qualify for LQA, the DSSR requires that “prior to employment [with the United States], the employee was recruited in the United States … by the United States Government, including its Armed Forces[ or] a United States firm, organization, or interest … and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States[.]” Id. at § 031.12(b) (emphasis added). The italicized language is the key to this case.

 

b. Facts

Stephan was recruited by Computer Sciences Corporation (“CSC”), a United States firm, while he was living and working in the United States. CSC offered Stephan employment in Japan at the Yokosuka Naval Base. On July 23, 2008, Stephan accepted the offer by signing an offer of employment. Stephan traveled to Japan to begin his employment on August 3, 2008. Stephan remained under the employ of CSC through March 28, 2010. During his entire tenure with CSC, Stephan was employed in Yokosuka, Japan.

 

*2 Stephan’s employment with CSC ended when the Navy decided to cut his position from its contract with CSC and instead decided to hire a civil servant to perform his duties. The Navy posted a first job announcement, for which Stephan applied. He received a tentative job offer (“TJO”) on January 13, 2010. He accepted the job offer the following day, and submitted information pertaining to his eligibility for LQA. Stephan was informed on February 16, 2010, that he was found eligible for LQA.

 

Although it is unclear from the record precisely what occurred, the Navy discovered an “issue” with the original vacancy announcement. Therefore, on February 10, 2010—six days prior to informing Stephan of his eligibility for LQA on the first job posting—the Navy posted another announcement, to which Stephan also applied. Also on February 16, 2010, the Navy extended Stephan a second TJO, which he accepted.

 

The Navy’s internal communications indicated that Stephan was not found eligible for LQA on this second TJO. So, on March 17, 2010, the office of Naval Computer & Telecommunications Station Far East (“NCTS–FE”), Stephan’s employing office, submitted an LQA waiver request to the Navy’s human resources office requesting that 35 people be given LQAs.FN1 This “blanket” waiver request was denied, but Stephan was informed that an individual LQA waiver package would be submitted for him.

 

FN1. Only 28 names appear on the list, despite reference to 35 people.

 

On March 25, 2010, the Navy extended a final offer of employment to Stephan, wherein it informed him that he was found ineligible for LQA. Despite his questions about his ineligibility, Stephan accepted the offer and began employment with the Navy on March 29, 2010. Stephan remained in Yokosuka, Japan, and he remains employed there as of the writing of this Opinion.

 

c. Procedural History

As stated above, Stephan filed his Complaint in this matter on July 30, 2012. On October 12, 2012, the Government filed its Answer. However, during the preliminary scheduling conference, the Government informed the Court that it intended to file a motion to dismiss, challenging this Court’s jurisdiction. The Government filed its motion to dismiss on March 1, 2013.

 

Stephan filed his response to the motion on March 31, 2013. As part of his responsive brief, Stephan filed a motion for summary judgment against the Government. The Court stayed the parties’ briefing on, and its own consideration of, Stephan’s motion for summary judgment pending resolution of the jurisdictional dispute. On July 17, 2013, the Court denied the Government’s motion to dismiss and ordered the parties to submit a status report providing the Court with their proposal for future proceedings.

 

The Government sought relatively limited discovery before filing its cross-motion for summary judgment and response to Stephan’s motion. The Court provided the parties time to take discovery, with a discovery deadline of February 4, 2014. Otherwise, the Court adopted the schedule proposed by the Government. After discovery closed, briefing on summary judgment re-opened. That briefing was completed on March 19, 2014, and is now before the Court for consideration.

 

II. Legal Standard

The Rules of the Court of Federal Claims (“RCFC”) provide that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is “genuine” only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A fact is only “material” if it might “affect the outcome of the suit under the governing law.” Id.

 

III. Discussion

*3 In short, Stephan is a Government employee who was recruited by the Government while living outside the United States. As described above, see supra Part I(a), the regulation relevant to LQA entitlement in such a situation provides that such an employee is entitled to LQA if he meets three conditions:

 

(1) the employee was first recruited while living in the United States;

 

(2)by the United States or a United States firm; and

 

(3) he had been in substantially continuous employment by the previous employer “under conditions which provided for his/her return transportation to the United States.”

 

DSSR § 031.12(b). There is no dispute that Stephan was first recruited by CSC while living in the United States, nor is it disputed that CSC is a United States firm. The only dispute in this case is whether Stephan’s employment with CSC was “under conditions which provided for his[ ] return transportation to the United States.”

 

As the Court reads Stephan’s briefs, there are essentially two pieces of evidence upon which Stephan relies to satisfy this condition. The first is a letter written by CSC after his employment with the firm had ended. The second is the United States–Japan Status of Forces Agreement (“SOFA”), which was executed under Article VI of the Treaty of Mutual Cooperation and Security: Facilities and Areas and the Status of United States Armed Forces in Japan, U.S.–Japan, Jan. 19, 1960, 11 U.S.T. 1652, 1960 WL 57244.FN2 The Court addresses these two subjects separately.

 

FN2. This treaty is part of the Government’s Appendix. See Def.App. At 113–145.

 

a. The September 13, 2010 Letter

A letter dated September 13, 2010, and signed by Keith Paulson, a CSC official, seems at first glance to support Stephan’s case. The entirety of the substance of the letter reads:

 

In regards [sic] to former CSC employees, CSC would like to confirm that for the personnel that were hired originally in the [S]tates or those that possessed a valid transportation agreement at the time of hire that CSC would provide for return airline ticket. This ticket would be to tax home of record in the USA for personnel as required by applicable SOFA regulations. This applies to employee only and would not cover spouse or any other dependants [sic].

 

If you have any questions, please contact me.

 

Pltf.App. at 138.

 

This letter is interesting for several reasons. The first reason is its reliance upon the SOFA, which will be discussed below. See infra. Second, it is contradictory on its face to several previous statements from CSC. Kevin McAllister, a CSC manager, stated by letter dated February 18, 2010, that Stephan was entitled to a LQA, Cost of Living Allowance (“COLA”) and travel to the worksite. Def.App. 201. The letter was silent on return transportation. An email, drafted by a Navy employee on March 17, 2010, also states that CSC had not agreed to provide Stephan with return transportation: “We met with NCTS Command and the Contractor [CSC] yesterday. During the meeting [CSC] verified that it was never their intent to pay for return transportation.” Def.App. 221. Another email, from Keith Paulson (the man who drafted the September 13, 2010 letter) dated March 25, 2010, stated that “the bottom line is that the contract does not provide for a transportation agreement … A return trip and shipment of household goods are not part of these entitlements.” Def.App. 227.

 

*4 Stephan argues that the March 25 Paulson email is irrelevant because it states “a return trip and shipment of household goods” (emphasis added) are not provided for. He seems to believe that the statement means that both benefits were not provided, but that return transportation was. This point is contradicted by the previous sentence quoted, which addresses transportation only (“the contract does not provide for a transportation agreement”) and the previous statements from CSC. Thus, the Court cannot accept Stephan’s interpretation.

 

In sum, the Court finds that the September 13, 2010 letter fails to support Stephan’s entitlement to return transportation. The first and most obvious reason is that it is directly contradictory to three prior statements from CSC. The second reason, slightly less apparent from the face of the documents, is that all three statements against return transportation are dated during Stephan’s employment while the September 13 letter was written six months after he left CSC’s employ. Given the contemporaneous nature of the first three letters, the Court finds that CSC did not intend during the term of his employment to provide Stephan with return transportation. Any statement made after the termination of his employment is irrelevant to the entitlements Stephan held during his employment.

 

b. The SOFA

The next basis Stephan asserts for an entitlement to return transportation is the SOFA itself. As the Court understands his position, the SOFA is raised both in support of the September 13 letter and also as an independent basis for recovery. The relevant language in the SOFA states:

 

If the status of any person brought into Japan under paragraph 1 of this Article is altered so that he would no longer be entitled to such admission, the United States authorities shall notify the Japanese authorities and shall, if such person be required by the Japanese authorities to leave Japan, assure that transportation from Japan will be provided within a reasonable time at no cost to the Government of Japan.

 

Def.App. 117. Stephan believes that this provision requires that he be provided return transportation to the United States, but the Government disagrees.

 

The Court does not believe this provision meets the return transportation requirements contained in the DSSR. First, it does not appear to be mandatory—transportation appears to be contingent upon Japan requiring the person to be deported. Nobody has provided the Court with the relevant Japanese law, but this contingency seems to belie Stephan’s argument that his return transport was a condition of his employment ; rather, it appears to be conditioned upon the actions of the Japanese government after a status change. The provision is also silent on the topic of to where transportation must be provided. The DSSR requires “return transportation,” not just transportation.

 

Finally, the SOFA does not say who must pay for the transportation. Instead, it only requires the Government to assure that the person in question leaves Japan. In this Court’s view, it is entirely feasible that the Government would require its employee, an employee of its contractor, or anyone else who falls under the provision to pay for the trip himself. The provision, then, appears to leave room for Stephan to be made to pay for his return transportation himself.

 

In conclusion, to this Court’s reading, the SOFA does not place any requirements upon the Government or CSC to provide Stephan a return trip to his home after his employment ends. Thus, the SOFA does not help Stephan meet his burden of demonstrating that his employment with CSC was “under conditions which provided for his/her return transportation to the United States.”

 

IV. Conclusion

*5 As discussed above, Stephan has failed to prove that he was employed under conditions which provided for his return trip to the United States after his employment with CSC ended. He has, therefore, failed to establish all the elements necessary to demonstrate an entitlement to LQA. His motion for summary judgment is therefore DENIED and the Government’s cross-motion is GRANTED. The Clerk is directed to mark the case closed and enter judgment accordingly.

 

As a final note, even though it has found against hi m, the Court would like to commend Mr. Stephan on his work during this case. Even though he was acting pro se, the Court found his briefing coherent, well-written, and generally well-thought out. Despite not receiving the remedy he sought, M r. Stephan should be commended for the way in which he prosecuted his case

Court of Appeals of Michigan.

William CODY, Plaintiff–Appellee,

v.

PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant–Appellant.

 

Docket No. 309328.

July 1, 2014.

 

Wayne Circuit Court; LC No. 11–003178–NF.

 

Before: M.J. KELLY, P.J., and CAVANAGH and FORT HOOD, JJ.

 

PER CURIAM.

*1 Defendant appeals by leave granted the trial court order denying defendant’s motion for summary disposition. We affirm.

 

In July and August 2010, plaintiff worked as an independent contractor delivering freight for Ajas Trucking, Inc., which was insured under a commercial automobile insurance policy issued by defendant. Plaintiff alleges that he injured his back on two separate occasions while in the process of attaching his truck to a trailer, once on July 21, 2010, while in Porter County, Indiana, and again on August 3, 2010, while in Cook County, Indiana. Both injuries occurred while plaintiff was cranking the landing gear on the trailer. Plaintiff filed an action alleging that he was entitled to personal protection insurance (PIP) benefits from defendant under its commercial insurance policy with Ajas. Defendant moved for summary disposition, arguing that plaintiff was not entitled to PIP benefits because the incidents did not occur in Michigan, plaintiff was not a named insured or a spouse or relative of a named insured under defendant’s policy, and plaintiff was not an occupant of a vehicle involved in the accident. The trial court denied defendant’s motion.

 

Defendant first argues that plaintiff is not entitled to PIP benefits under either the no-fault act, MCL 500.3111, or the commercial insurance policy issued to Ajas Trucking because plaintiff was not an occupant of the insured vehicle. We agree that plaintiff is not entitled to PIP benefits pursuant to MCL 500.3111, but disagree that the trial court erred in denying defendant’s motion for summary disposition regarding benefits under the commercial insurance policy.

 

A trial court’s ruling on a motion for summary disposition presents a question of law subject to de novo review. Titan Ins Co v. Hyten, 491 Mich. 547, 553; 817 NW2d 562 (2012). Initially, the moving party must support its claim for summary disposition by affidavits, depositions, admissions, or other documentary evidence. McCoig Materials, LLC v. Galui Constr, Inc, 295 Mich.App 684, 693; 818 NW2d 410 (2012). Once satisfied, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial. Id. “The nonmoving party may not rely on mere allegations or denials in the pleadings.” Id. The documentation offered in support of and in opposition to the dispositive motion must be substantively admissible as evidence. Maiden v. Rozwood, 461 Mich. 109, 120–121; 597 NW2d 817 (1999). Mere conclusory allegations that are devoid of detail are insufficient to create a genuine issue of material fact. Quinto v.. Cross & Peters Co, 451 Mich. 358, 372; 547 NW2d 314 (1996).

 

The purpose of the no-fault act is “to provide accident victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system.” Williams v. AAA Michigan, 250 Mich.App 249, 257; 646 NW2d 476 (2002). “Given the remedial nature of the no-fault act, courts must liberally construe its provisions in favor of the persons who are its intended beneficiaries.” Frierson v. West American Ins Co, 261 Mich.App 732, 734; 683 NW2d 695 (2004) (further citation omitted). Personal protection insurance benefits are also known as “first party” or “PIP” benefits.   McKelvie v. Auto Club Ins Ass’n, 459 Mich. 42, 44 n 1; 586 NW2d 395 (1998).

 

*2 MCL 500.3111 provides that PIP benefits are available for injuries suffered during an accident outside of the state if, at the time of the accident, the claimant was “an occupant of a vehicle involved in the accident whose owner or registrant was insured under a personal protection insurance policy.” MCL 500.3111. Our Supreme Court has held that a person must be “physically inside ” a vehicle to qualify as an occupant pursuant to MCL 500.3111. Rednour v. Hastings Mut Ins Co, 468 Mich. 241, 249; 661 NW2d 562 (2003)(emphasis in original), citing Rohlman v. Hawkeye–Security Ins Co, 442 Mich. 520, 531–532; 502 NW2d 310 (1993). Plaintiff’s deposition testimony established that he was not physically inside the vehicle at the time of either of the alleged injuries. Therefore, plaintiff is not entitled to PIP benefits pursuant to MCL 500.3111.

 

While plaintiff is not entitled to benefits pursuant to MCL 500.3111, an insurance policy may provide broader coverage than that mandated by the no-fault act. Rednour, 468 Mich. at 249–250. The Rednour Court considered this issue. In Rednour, the plaintiff was driving a friend’s car in Ohio when the left rear tire of the vehicle became flat. Id. at 242. The plaintiff exited the car to change the tire. Id. After the plaintiff loosened the lug nuts and walked toward the rear of the car, an oncoming vehicle struck him and threw him against the car. Id. The plaintiff admitted that he was not touching the car and was approximately six inches away from the car when he was struck. Id . The policy required that to recover PIP benefits for an accident that occurred outside of Michigan, the plaintiff must have been “occupying” the insured vehicle. Id. at 244. The policy defined “occupying” as “in, upon, getting in, on, out or off.” Id. at 245. The Rednour Court interpreted “upon” to mean “on or up and on.” Id. at 250 (emphasis in original). The Court ultimately denied the plaintiff’s claim, and found that the plaintiff was not upon the vehicle at the time of the injury. Id. at 251. Further, the Court held that physical contact alone does not establish that a person is upon a vehicle. Id. at 249–250.

 

This Court dealt with identical contract language in Westfield Ins Co v. Ken’s Serv, 295 Mich.App 610; 815 NW2d 786 (2012). In Westfield, the claimant, a tow truck driver, exited his tow truck and attached tow cables to a police vehicle that was in a ditch. Id. at 612. While the claimant was operating the control levers positioned on the driver’s side of the tow truck, another driver collided with the claimant causing serious injuries. Id. In Westfield, the endorsement defined “occupying” to mean “ ‘in, upon, getting in, on, out or off.’ “ Id. at 612–613. The Court relied on Rednour’s definition of “upon” to mean “on or up and on,” and

 

At the time of impact, [the claimant] was not in the vehicle, nor was he getting in, on, out, or off the vehicle. In fact, [the claimant] had been out of the vehicle for several minutes and was operating the towing controls of the truck. Thus, we conclude that the trial court did not err by concluding that [the claimant] was not “occupying” the vehicle when he sustained bodily injury. [Id. at 617–618.]

 

*3 In the current case, the insurance policy provides that for an out of state accident, defendant will pay PIP benefits to a “person who sustains a bodily injury while occupying an insured auto.” “Occupying” is defined as “in, on, entering or exiting.” We hold that the trial court did not err in denying defendant’s motion for summary disposition because, in viewing the record the light most favorable to plaintiff, there is a genuine issue of material fact whether plaintiff was on the trailer at the time of his injuries. Plaintiff testified that he injured his back in July 2010 while cranking the landing gear down, and in August 2010, while raising the landing gear. Plaintiff indicated that during both incidents, his hands were on the hand crank as he was operating the landing gear, and that he also pulled with his legs, back, and arms. Plaintiff stated that he would put his foot on the base of the landing gear as he used the hand crank to stabilize himself and for leverage. While plaintiff did acknowledge that he would move his foot from the base as the landing gear began to rise, he stated that at the time of both injuries, his foot was on the base of the landing gear. Therefore, there is a genuine issue of fact regarding whether plaintiff was on the vehicle at the time of the injury, and thus occupying the vehicle.FN1

 

FN1. Defendant raises several issues regarding the credibility of plaintiff’s deposition testimony. However, the court may not make findings of fact or weigh credibility in deciding a summary disposition motion.   Amerisure Ins Co v. Plumb, 282 Mich.App 417, 431; 766 NW2d 878 (2009). Defendant also contends that the deposition testimony was contradictory and guided by plaintiff’s counsel. When the evidence conflicts, summary disposition is improper. Lysogorski v. Bridgeport Charter Twp, 256 Mich.App 297, 299; 662 NW2d 108 (2003).

 

The present case is factually distinguishable from Westfield. In Westfield, the plaintiff was controlling levers in the control panel at the time of the injury and the contact with the vehicle was incidental to the injury. Id. at 612. Here, plaintiff was actively interacting and manipulating a part of the vehicle, and relying on the vehicle in his actions. And, ultimately, his deposition testimony revealed that a part of his body was resting on the vehicle.

 

Defendant next argues that trial court erred in denying summary disposition because the trailer that plaintiff was allegedly occupying was not covered under the insurance policy; only the vehicle was covered. We disagree. The insurance policy stated that the insured vehicle includes trailers that are connected to the vehicle. Plaintiff’s deposition testimony indicates that the trailer was connected to the vehicle at the time of plaintiff’s injury. Moreover, defendant provided no additional evidence or detail, such as deposition testimony or an affidavit, to show that the vehicle alone was covered under the policy. See MCR 2.116(G)(6). Mere conclusory allegations that are devoid of detail are insufficient to create a genuine issue of material fact. Quinto, 451 Mich. at 372. Therefore, defendant was not entitled to summary disposition on that basis.

 

Defendant next argues that the trial court erred in denying summary disposition because the insurance policy did not provide for PIP benefits. We disagree. Here, defendant relies on the policy endorsement, which states that defendant will only pay PIP benefits if a premium is paid. Defendant asserts that the declarations page proves that no premium was paid, and, thus, PIP benefits were not available under the policy. Defendant presents no additional evidence, such as deposition testimony or an affidavit from the insurance company or from the insured employer, that a premium was not paid for the PIP endorsement or that a premium was required. See MCR 2.116(G)(6). We do not agree that the insurance endorsement and declaration alone are enough to support defendant’s assertion. Mere conclusory allegations that are devoid of detail are insufficient to create a genuine issue of material fact. Quinto, 451 Mich. at 372. Therefore, defendant was not entitled to summary disposition on that basis.

 

*4 Plaintiff asserts that defendant was estopped from arguing that the trailer was not covered by the insurance policy or that the policy did not include PIP benefits because a premium was not paid. First, plaintiff states that defendant was required to plead specifically lack of coverage in its answer or affirmative defenses. We disagree. Defendant’s arguments regarding lack of coverage relate directly to whether plaintiff can establish a prima facie case against defendant, and defendant does not waive these arguments by failing to plead the issues specifically in its answer or affirmative defenses. See Stanke v. State Farm Mut Auto Ins Co, 200 Mich.App 307, 310–320; 503 NW2d 758 (1993). Moreover, defendant denied the allegations in plaintiff’s complaint that defendant was obligated to pay benefits under the insurance policy. Plaintiff further asserts that defendant is estopped from making these arguments because it did not include these reasons in its letter to plaintiff denying coverage. We disagree. “As a general rule, once an insurance company has denied coverage to an insured and stated its defenses, the company has waived or is estopped from raising new defenses.” Lee v. Evergreen Regency Coop, 151 Mich.App 281, 285; 390 NW2d 183 (1986). However, waiver and estoppel are not generally available where it would result in the broadening of a policy’s coverage to cover a loss not included in its terms. Id. If defendant’s assertions are true, payment of PIP benefits would result in a broadening of the policy to cover a loss not covered by its terms. Therefore, defendant did not waive nor was it estopped from raising these arguments.

 

Affirmed. Plaintiff, the prevailing party, may tax costs pursuant to MCR 7.219.

 

M.J. KELLY, J. (concurring).

I concur in the result only.