UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1350

STACIA LYNN KERNS, Individually, and as Personal 

Representative of the Estate of Dennis Gregory Kerns, Jr. 

and as mother and next friend of A.K. and D.K.,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:07-cv-01006-CCB)

Argued: March 22, 2012 Decided: April 20, 2012

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Judge Motz and Judge King joined.

ARGUED: Emily Claire Malarkey, Paul David Bekman, SALSBURY, 

CLEMENTS, BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for 

Appellant. Larry David Adams, OFFICE OF THE UNITED STATES 

ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. 

Rosenstein, United States Attorney, Michael L. Schlepp, Second 

Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

GREGORY, Circuit Judge:

The issue presented is whether the United States authorized 

Debra Scott to rent an automobile on a business trip for 

purposes of traveling from the airport to her hotel. The 

district court found that there was no material dispute of fact 

that Scott was not authorized to rent an automobile on her 

business trip and therefore Scott was not acting within the 

scope of her employment at the time of her collision with the 

deceased Dennis Kerns, Jr. The district court held that under 

Maryland law the United States could not be held vicariously 

liable for Scott’s negligence. For the reasons that follow, we 

affirm the district court’s ruling.

I.

This case arises out of a motor-vehicle accident on June 

24, 2005, in which plaintiff Stacia Lynn Kerns’s now deceased 

husband, Dennis Kerns, Jr., was hit by Scott on Maryland Route 

175 near the Fort Meade Army Base. Scott was a contract 

employee for the 99th Regional Readiness Command Family Program 

Office (“RRC”); more specifically, Scott was the secretary and 

administrative assistant for the RRC family programs director. 

Although Scott’s office was in Pennsylvania, Scott was in Anne 

Arundel County, Maryland, at the time of the accident to work at 

an RRC conference.
3

On April 27, 2005, Barbara Wilson, RRC director of family 

programs, sent an email to RRC staff and volunteers, noting that 

a conference would be held at the Annapolis, Maryland Radisson

hotel on June 24-26, 2005. She stated that a few travel 

arrangements were possible. One option was to fly into 

Baltimore-Washington International Airport. “The hotel 

recommends the Super Shuttle . . . for transport from the 

airport to the hotel,” the email said. “The cost is $29 per 

person. If there are sufficient persons flying, a van may be 

rented for all to travel to the hotel. Please advise of your 

flight schedules as soon as possible for these arrangements to 

be made.” For those who did not wish to fly, they could drive 

their own cars, for which they would be reimbursed for mileage, 

or they could rent cars. “If you would rather take a rental 

car, please fill out the registration form accordingly.” In all 

cases, the email said, an employee’s travel plans must be 

reflected on her travel orders.

A few days before the trip, Scott had a conversation with 

Wilson and Thomas Cannon, a coworker, about whether Scott would 

like to rent a car or be listed as a driver on one of their 

rental cars. Scott declined both options because she planned to 

rent a car for her own personal purposes. Nothing in the record 

suggests she ever filled out the registration form indicated in 

Wilson’s email.
4

On May 20, 2005, the RRC issued travel orders to Scott, and 

it authorized her to travel from McKees Rocks, Pennsylvania, to 

Annapolis, Maryland, to attend the conference. Her orders 

provided for government lodging and commercial air travel. 

Although the orders did not say how she should get from the 

airport to the conference center, they specifically stated that 

she was not authorized to rent a car. The orders said that 

“[i]f traveling by non-government procured commercial 

transportation, the maximum reimbursement will be limited to the 

least costly service which would have been permitted [for] 

satisfactory completion of the mission.” Cannon’s travel orders 

were modified on June 24, 2005, authorizing a rental car.

On June 24 Scott traveled in her own vehicle to the 

Pittsburgh, Pennsylvania airport and flew to BaltimoreWashington International Airport on a government-purchased 

ticket. Upon arrival, she rented a vehicle from the airport’s 

Alamo Car Rental. She rented the car in her name and paid for 

it with her personal credit card.

June 24 was set aside on the agenda as a travel day with no 

scheduled meetings. Scott traveled to downtown Baltimore to see 

the inner harbor and the aquarium. She then drove to Fort Meade 

to visit the Post Exchange, where she looked at clothing. At 

9:30 p.m., Scott turned into oncoming traffic and directly into 
5

Dennis Kerns, Jr., who was riding a motorcycle. Kerns died of 

the injuries sustained in the crash.

Scott subsequently sought reimbursement for roundtrip 

mileage for her personal vehicle used to travel to the 

Pittsburgh airport, two taxi fares, and her per diem. She was 

reimbursed. She did not request reimbursement for her rental 

car.

Stacia Kerns brought suit against the United States on 

April 19, 2007, alleging the United States should be held 

vicariously liable for the negligence of its employee, Scott. 

On February 2, 2008, the district court granted the United 

States’ motion to dismiss for lack of jurisdiction on the 

grounds that Kerns had not shown that Scott was acting within 

the scope of her employment, as required by 28 U.S.C. § 1346(b). 

This Court, on appeal, held the question was sufficiently 

intertwined with the merits that the plaintiff should be 

permitted to conduct discovery. See Kerns v. United States, 585 

F.3d 187 (4th Cir. 2009). Both parties moved for summary 

judgment at the close of discovery. On March 28, 2011, the 

district court handed down its memorandum opinion, awarding 

summary judgment to the United States.
6

II.

The district court ruled that there was not a triable 

dispute of fact and that the government had not authorized Scott 

to use a rental car during the conference. The court went on to 

find that even if the government authorized the rental of a car,

Scott was not engaged in job-related duties at the time of the 

accident. We affirm the district court on the former grounds 

without reaching the latter.

We review de novo the district court’s grant of summary 

judgment. Roe v. Doe, 28 F.3d 404, 406 (4th Cir. 1994). 

Summary judgment is appropriate when there is no genuine dispute 

of material fact and the moving party is entitled to judgment as 

a matter of law. FED. R. CIV. P. 56(a). In reviewing the 

disputed facts, this Court must draw all inferences in favor of 

the non-moving party. Scott v. Harris, 550 U.S. 372, 378 

(2007).

The United States is liable under the Federal Tort Claims 

Act (“FTCA”) to the extent a private person would be liable 

under state law when a plaintiff has been injured because of the 

tort of an employee acting within the scope of her employment. 

28 U.S.C. § 1346(b)(1). Under Maryland law, an employer may be 

held vicariously liable for the tortious act of its employee 

when the employee was acting in the scope of the employment 

relationship at the time of the tort. Oaks v. Connors, 660 A.2d 
7

423, 426 (Md. 1995). An employee’s tortious acts will be 

considered within the scope of her employment if “they were in 

furtherance of the employer’s business and were ‘authorized’ by 

the employer.” Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 

1991). This general rule, however, is refined in the context of 

negligent operation of the employee’s automobile; in such cases,

a master will not be held responsible for negligent 

operation of a servant’s automobile, even though 

engaged at the time in furthering the master’s 

business unless the master expressly or impliedly 

consents to the use of the automobile, and . . . had 

the right to control the servant in its operation, or 

else the use of the automobile was of such vital 

importance in furthering the master’s business that 

his control over it might reasonably [be] inferred.

Oaks, 660 A.2d at 426 (quoting Dhanraj v. Potomac Elec. Power 

Co., 506 A.2d 224, 226 (1986)) (alterations in original). The 

right-to-control concept is critical to the respondeat superior

analysis with respect to motor vehicles. “The doctrine may only 

be successfully invoked when an employer has either ‘expressly 

or impliedly, authorized the [servant] to use his personal 

vehicle in the execution of his duties, and the employee is in 

fact engaged in such endeavors at the time of the accident.’” 

Id. at 427 (quoting Dhanraj, 506 A.2d at 226). In other words, 

the test has two prongs: (1) employer authorization of the 

transportation method or employer control over the employee’s 

operation of that transportation (or that transportation is a

“vital necessity” to the employer’s business) (2) while the 
8

employee is engaged in employment duties. We deal with the 

first prong, not reaching the second.

A.

Kerns argues that there is at least a triable issue of fact 

as to whether the government expressly or impliedly consented to 

the use of a rental car on the trip. We disagree.

As Barbara Wilson noted in her April 25, 2005 email 

regarding transportation, travel plans must be reflected on each 

employee’s travel orders. Scott’s travel orders specifically 

precluded the use of a rental car. The email discussing the 

travel orders notes that “[i]f there are sufficient persons 

flying, a van may be rented for all to travel to the hotel.” 

This phrase does not indicate that anyone could rent a van to 

travel from the airport to the hotel; only enough vans 

sufficient to carry those flying would be rented.

Nevertheless, there is some evidence in the record that 

reimbursement was sometimes given to employees for travel not 

initially authorized on their travel orders. Scott testified 

that after-the-fact approval of rental cars was a “regular 

occurrence” and she had “no doubt” that she would have been paid 

if she had submitted a rental car reimbursement. But Scott did 

not in fact seek a rental car reimbursement, suggesting that she 

knew it was not authorized either explicitly or implicitly.
9

Before the trip, Wilson told Scott she could travel with 

Wilson or Cannon in their authorized rental cars from the 

airport to the hotel. Wilson also offered to authorize Scott to

rent a car, presumably so Scott could transport other RRC 

employees from the airport to the hotel. Scott declined the

offers. The facts show that Scott rented her own car so that 

she could explore and sightsee before the conference. She did 

not seek authorization for the car before the trip despite the 

fact that she made a reservation for the car before the trip 

began. It is telling that the RRC altered Cannon’s travel 

orders prior to the trip to include the use of a rental car but

it did not modify Scott’s.

The facts here are arguably weaker for the plaintiff than 

those in the relevant Maryland state court cases in which the 

plaintiffs could not establish respondeat superior liability. 

See Oaks v. Connors, 660 A.2d 423 (Md. 1995); Dhanraj v. Potomac 

Elec. Power Co., 506 A.2d 224 (Md. 1986); Henderson v. AT&T 

Info. Sys., Inc., 552 A.2d 935 (Md. Ct. Spec. App. 1989). Here,

the government neither promised nor gave travel reimbursements 

to Scott, whereas in Henderson the plaintiff was reimbursed for 

mileage and travel expenses by his employer. Henderson, 552 

A.2d at 939. Furthermore, Scott traveled by an expressly 

unauthorized form of travel prohibited by her travel orders. In 

contrast, the Dhanraj employer did not specifically authorize 
10

any particular mode of travel, suggesting that it implicitly 

approved of any reasonable method of transportation -- again, a 

much stronger case for the plaintiff than the instant case. See

Dhanraj, 506 A.2d at 227.

There may still be vicarious liability in the automobile 

context when “the use of the automobile was [ ] of such vital

importance in furthering [the employer’s] business that the 

control over it might reasonably be inferred.” Id. at 228. The 

closest Maryland case to the instant facts is Regal Laundry Co., 

Inc. v. A.S. Abell Co., 163 A. 845 (Md. 1933). There, a 

Baltimore Sun reporter was returning to the office from a 

meeting that he was assigned to cover when he got into an 

accident. The Court of Appeals held that the Baltimore Sun had 

implicitly authorized the use of the reporter’s own car because 

the editor knew that would be how the reporter would get to and 

from the meeting and because the reporter was reimbursed for his 

mileage. Id. at 847. Furthermore, the reporter was never 

diverted from his route. Id. at 848. Here, however, the use of 

a rental car was explicitly not authorized for Scott, and Scott 

was never reimbursed for her rental car expenses. Even 

accounting for the fact that Scott would not have rented a car 

were it not for the Maryland conference, Scott did not need to 

rent a car to arrive there. See Oaks, 660 A.2d at 427 (finding 

that the fact that employee used his car at work for the 
11

employer’s benefit did not render the drive to work “special 

circumstances” warranting respondeat superior liability); 

Barclay v. Ports Am. Baltimore, Inc., 18 A.3d 932, 938 (Md. Ct. 

Spec. App. 2011) (“[T]he requisite ‘special circumstances’ must 

admit some express or implied control over the vehicle or 

consent to its use in performing work duties.”). Regal Laundry

is therefore distinguishable.

We affirm the district court’s finding that there is no 

material dispute of fact that Scott was not authorized to rent a 

car to travel from the Baltimore airport to the hotel. Because 

we hold that a rental car was not authorized for Scott, we need 

not reach the issue of whether she was within the scope of her 

employment at the time of the accident.*

B.

Kerns has another argument: that the district court should 

have certified to the Maryland Court of Appeals the question of 

whether to import the traveling-employee doctrine into the tort 

context. The district court found that the “available state 

law” was not so “insufficient” that certification was 

appropriate. J.A. 467 n.2 (quoting Roe v. Doe, 28 F.3d 404, 407 

 * Nor need we analyze whether Maryland’s scope-of-employment 

prong of the respondeat superior test is coextensive with the 

FTCA requirement for governmental liability that the tortfeasor 

acted within the scope of her employment.
12

(4th Cir. 1994)); see also Buckingham v. United States, 124 F. 

Supp. 2d 943, 944-45 (D. Md. 2000) (declining to certify to the 

Maryland Court of Appeals a question on the applicability of the 

traveling-employee doctrine in the respondeat superior context).

Under Maryland law, the Court of Appeals may answer 

questions certified to it only “if the answer may be 

determinative of an issue in pending litigation in the 

certifying court and there is no controlling appellate decision, 

constitutional provision, or statute of this State.” MD. CODE

ANN., CTS. & JUD. PROC. § 12-603. The Court of Appeals has noted 

that the purpose of the certification procedure is “to promote 

the widest possible use of the certification process . . . [and 

to] address questions of Maryland law that are unsettled, 

uncertain, or otherwise controversial in light of cases decided 

by other courts.” Proctor v. Wash. Metro. Area Transit Auth., 

990 A.2d 1048, 1056 (Md. 2010). Here, as the district court 

correctly found, there is clear appellate court precedent.

The language of Dhanraj may be amenable to two readings. 

The Maryland Court of Appeals either decided that importation of 

the traveling-employee doctrine is inappropriate or it refused 

to determinatively resolve the question beyond its own facts. 

“We see no need to resort, in the circumstances here,” the court

said, “to cases under the Workmen’s Compensation Act and 

comparable employee compensation statutes to determine the 
13

applicability of the doctrine of respondeat superior in this 

tort action.” Dhanraj, 506 A.2d at 227-28. A subsequent court 

of special appeals case interpreted Dhanraj to mean that 

Maryland courts may not import the traveling-employee doctrine 

into the tort context. See Sheets v. Chepko, 573 A.2d 413, 418

(Md. Ct. Spec. App. 1990) (“[I]n Dhanraj, the Court of Appeals 

specifically rejected the application of principles of Worker’s 

Compensation to a determination of whether a particular activity 

was within the scope of employment for purposes of establishing 

vicarious liability of an employer.”). There is no conflicting

authority in the appellate cases of Maryland, and it was

therefore not error for the district court to refuse to certify 

the issue to the Maryland Court of Appeals.

III.

For the foregoing reasons, the judgment of the district 

court is affirmed.

AFFIRMED