[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-11309

Non-Argument Calendar

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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 oneto-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 temporaryduty 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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