For at least the second time in three years, Naval Station Norfolk security barrier activated in error
By SCOTT DAUGHERTY | The Virginian-Pilot | Published: June 26, 2019
NORFOLK, Va. (Tribune News Service) — Cmdr. Gerry Fernandez Jr. was on his way to the gym last April when he made a wrong turn after entering Naval Station Norfolk. A U-turn later and he was back on his way.
Then a security barrier shot up under his SUV — knocking his vehicle a couple feet into the air.
Sentries had mistaken his vehicle for another, according to a police report.
"I didn't know what happened," Fernandez said in an interview, recalling the violent April 11 crash that broke his sternum in three places and totaled his light green 2008 Volvo XC90 SUV.
"It went up, and then it came down."
For at least the second time in three years, a security barrier near Gate 5 was activated as an otherwise cleared person tried to enter the base.
The first time, in November 2016, involved the skipper of the Comfort as he and a passenger headed to work. The second involved an active duty sailor with 27 years in the Navy.
A base spokeswoman said last week the Hardened Anti-Access Control System barrier was activated "in accordance to Naval Station policy."
In an accident report obtained by The Virginian-Pilot, however, a Navy official said the sentries "mistakenly" identified Fernandez's SUV as being another vehicle they had sent around the corner for further screening. The sentries thought the other SUV, a silver Jeep Cherokee, was making a run for it, Petty Officer 2nd Class Clayton Turner wrote.
Kelly Wirfel, the spokeswoman, did not respond to additional questions about the incident. She also declined to say how often vehicles collide with the HACS barriers at the base, citing unspecified security concerns.
"HACS deployments at Gate 5 are no more frequent than other gates," she said, noting that the base processes more than 45,000 vehicles per day and that Gate 5 is one of its largest.
For Fernandez, Wirfel's comments rang hollow.
He questioned how many other similar crashes were happening at Naval Station Norfolk or other bases, and if they were being similarly swept under the rug.
"Nobody should have to go through this, but it obviously happens," said Fernandez, who is currently on medical leave from his position at the Naval Information Warfare Development Center. "It happened at this exact gate."
In statements, U.S. senators Tim Kaine and Mark Warner said they were concerned about what was happening with the security barrier and that they were monitoring the situation.
"Naval Station Norfolk needs to make sure that folks are safe and secure when accessing the base," Warner said, explaining his office has been in touch with the Navy "to ensure that the necessary steps are being taken to address the issue.”
In an interview, Fernandez also expressed frustration with how the Navy responded in the wake of the wreck, and his apparent lack of legal resources.
Medically, he said, the Navy was great. They are treating his broken bones and other injuries as well as he could hope.
"That is on autopilot," said Fernandez, who plans to retire next year.
But he doesn't like how the Navy handled his totaled vehicle. He said his insurance company paid him about $11,500 for his Volvo, which he claimed to have purchased with his wife 11 years ago in Germany for more than $70,000.
Fernandez said he believed the vehicle was worth more than he received from his insurance, USAA. He said he tried to get the Navy to pay more, but he was stonewalled. The Navy, he said, wants to give him only $100 — enough to cover his insurance deductible and an inclined pillow he purchased so he can sleep.
USAA can try to get reimbursed, he said.
Fernandez wants to sue, but he's not sure he can.
The problem, lawyers said, is the Feres doctrine, a 69-year-old legal precedent that has only gotten stronger with time. According to the U.S. Supreme Court, the United States is not liable for injuries sustained by members of the armed forces while on active duty.
"It's a flat bar," said Ed Booth, a personal injury attorney with 15 years experience.
"Believe me, lawyers have thought long and hard about how to get around that doctrine," added Michael Kernbach, a personal injury attorney with about 35 years experience. "They can't."
Earlier this year, the Supreme Court decided not to hear a challenge to the Feres doctrine, which also bars members of the military from suing the government for medical malpractice.
"It's hard. I've had to turn some very sad cases down because of this," Booth said.
David Murrin, the Comfort’s civilian skipper, filed his lawsuit in March 2018. It named the U.S. government and Serco, the contractor that handles gate security at the base, as defendants.
The lawsuit sought $2 million in damages. Earlier this year, however, Murrin agreed to drop the case without providing a reason to the court. He promised to never refile.
Murrin's passenger, Andrew Chen, agreed this month to drop a related lawsuit. He can refile it against the contractor, but not the government.