Dewey Brown, as the Personal Representative of the Estate of Charlie Brown v. United States

H57 day.1 summary judgment

We reverse the Upon proceedings, the

remand. further

court, deciding summary judg- whether

ment is under Fed.R.Civ.P. determine whether Pardazi has

should “genuine of material

demonstrated issue hospital’s ac-

fact” on the claim that the opportunities with his

tions interfered

privileges under his contract. and REMANDED.

REVERSED BROWN, Repre- as the Personal

sentative of the Estate of Charlie

Brown, Plaintiff-Appellee, America,

UNITED STATES

Defendant-Appellant.

No. 86-5705. Appeals,

United States Court of

Eleventh Circuit.

Mаrch gone criminatory deprived ophthal- 1. We note that some courts have further conduct has and held that a Title VII mologist prospective patients); Beverley, claimant need not with employer-employee relationship demonstrate an at all. F.Supp. (finding at that a doctor’s 591 "relationship 1327-28 Compare Joseph’sHosp. Doe v. St. Fort patients of em- to her is not one (7th Cir.1986) Wayne, (finding Lutcher, ployment”). See also 633 F.2d at 884 a Title VII to be viable where the (finding that no cause of action was stated un- agreed hospital’s discriminatorily action der Title VII where a union at most "interfered opportunities provide interfered with her ser- relationship independent contractor be- with an patients); Sibley Hosp., vices to her Memorial district). plaintiff and a school tween” the (finding potential 488 F.2d at 1342 Title VII holding light can of our that Dr. Pardazi claim where a male nurse claimed that hospital patients); hospital state a Title VII claim interfered his to female with access interfering employmеnt opportunities his Holy Hosp., Pao v. Redeemer professional corporation, we need not (E.D.Pa.1982) (finding 494-95 question. further address this hospital’s a Title VII claim exists where a dis-

PER CURIAM: against In death suit this found the district court lia- United damages in the amount bility and awarded $49,328.50. appeal, On argues the district court lacked States jurisdiction because properly exhaust admin- failed required by 28 U.S.C. remedies as istrative (1982). Alternatively, ‍‌​‌​​​‌​​​​‌‌‌​‌​‌​‌‌​​​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​‍2675(a) United § it is entitled to a setoff argues that States by the claim- to the amount received equal in- of a state court suit ant volving defendants but the same different We find merit to the wrongful death. argument and States’ alternative United accordingly reverse.

I. 1983, Charlie Brown filed March in the federal dis- malpractice medical suit The from his treat- trict court. suit arose facilities, Jackson Me- ment at two medical Adminis- Hospital morial Veterans (VA) Hospital in Miami. The com- tration plaint named five defendants: United States,1 employed by physicians two Jack- Memorial, and two entities that owned son The com- operated Memorial.2 Jackson plaint alleged that Brown had received Memorial between treatment at Jackson February and then 1981 and October February 1982 Hospital between at VA Kellner, Atty., Michael Min- B. U.S. Leon at both April and that doctors Leiwant, Hertz, kin, Linda O. Collins David diagnose negligently failed to facilities had Fla., Miami, Attys., for U.S. Asst. U.S. tongue cancer from which and throat Fla., Feldman, Miami, Mark J. suffering. Brown was then Brown. respect With to the claims jurisdiction Brown asserted United (FTCA), Federal Tort Claims Act under the (1982). 2671-2680 28 U.S.C. §§ eight VANCE, had filed a claim with VA Before Brown TJOFLAT *, had therefore exhaust- Judges, Senior months earlier and Circuit and ALLGOOD required remedies as Judge. District ed his administrative * University alleged Allgood, complaint Dis- Honorable Clarence W. Senior U.S. Judge District of Ala- trict bama, for the Northern Trust of Dade Miami and the Public Health designation. sitting by owned, operated, County, and con- Florida original complaint the VA as de- The named Hospital. trolled Jackson Memorial 5, 1983, parties stipulated May fendant. On United States for the to the substitution of the рroper VA as the defendant. (1982).3 complaint With re- amend the so as to set forth an 28 U.S.C. the Jackson action for Fla.Stat. spect to claims defendants, fed- Brown asserted Memorial pen- jurisdiction under eral motions, opposed both jurisdiction.4 dent contending that Dewey Brown had failed to satisfy jurisdictional prerequisite set the district In March 2675(a) (1982).6 forth in 28 U.S.C. Sec- complaint those counts dismissed 2675(a) provides prerequisite tion that as a pertained the four Jackson Memori that maintaining a suit the United it court held that did al defendants. The FTCA, plaintiff States under the a must pendent party jurisdiction have over not present appropri- notice of his claim the negligence claims the acts of those because agency, ate federal in this case the VA. Memorial defend attributed to the Jackson Only the claim after has been denied or six separate from were and distinct those ants passed may plaintiff months have the sue United States.5 Brown attributed the in federal court on the claim. Id. Con- malpractice a suit in a then filed medical ceding that the decedent had this court, satisfied naming state as defendants Florida respect original to the parties from the federal the four dismissed suit, ar- States suit. gued wrongful that the a death action was died before either the Charlie Brown required separate new action and as such malpractice the court suit or federal state filing. Although the dece- malpractice suit reached trial. On court attorney dent’s in had fact made a new 1,1984, February attorney Brown’s Charlie filing setting wrongful forth a death wrongful the death claim with VA. filed requisite yet the six had not months later, attorney the moved the One week passed. court substitute federal district Brown, appointed personal wrongful The district court that the who had been held estate, rely representative of Charlie Brown’s death claimant could on the originally original per- in the made in connection party as suit com- by Brown. At the same sonal suit. The court menced Charlie observed time, “[wjhile attorney any damages the court the re- the moved measure of part: by statutory provides pertinent con Section in limited both constitutional and 3. requires III straints. Article the federal upon not be An action shall instituted pendent party claims arise from a common money damages against the operative Equip. Erec nucleus of fact. Owen & property or loss of or 365, 371-72, Kroger, S.Ct. Co. v. 437 U.S. or death caused the or 2396, 2401-02, (1978). 57 L.Ed.2d 274 Further any employee act or omission of more, "[bjefore [pen it can be сoncluded that acting scope within the the Government while exists, jurisdiction party] dent court federal employment, the of his office or unless claim- satisfy Congress must itself the stat ... in presented ant shall have first the claim the conferring jurisdiction expressly has not or utes by agency Federal and his claim negated Aldinger implication its existence." finally agency shall have been denied 2422, 49 Howard, 1, 18, v. U.S. S.Ct. writing registered or in and sent certified has that the L.Ed.2d 276 This court held agency mail. The to make final failure implied negatiоn express FTCA "no contains disposition six months of a claim within after pendent power federal courts' to hear shall, option it is filed at the of the claimant party claims when that statute invoked thereafter, any time be deemed a final denial Pointer, jurisdiction.” Lykins confer purposes of the claim for of this section. Thus, 1984). Cir. a district court power pendent party jurisdic has the assert complaint allege any other did basis principal law tion over a state claim where jurisdiction. subject mаtter for federal FTCA,provided brought claim is under the satisfied, i.e., pen constitutional test jurisdic- ‍‌​‌​​​‌​​​​‌‌‌​‌​‌​‌‌​​​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​‍pendent party 5. Under principal party arise dent claim and the tion, "a in some limited circumstances court operative The fact. from a common nucleus of may bring parties ‘state’ over which could apparently this concluded district court in case jurisdiction.” exercise not otherwise Williams was not satisfied. the constitutional test Bennett, pendent jurisdiction supra availability 6. See note 3. paid court Wrongful the amount state defend- in this case under covered potentially those ants settlement of vary from had been Death Act will original malpractice in the to those claimed under the identical recoverable are claims, underlying ‘claims’ identi- The district court suit. proceedings on cal, argument this rejected and administrative denied long motion, concluding been exhausted.” them have since granted the motions Accordingly, the separate caused United States was prо- complaint and the case to amend the any injury that the state court defendants to trial ceeded June caused. have Meanwhile, upon Charlie Brown’s II. suit malpractice state court also Memorial defendants had Jackson argues first appeal, On the United States wrongful death transformed into a been that the district court lacked suit, Dewey As in federal court suit. jurisdiction in this death action plaintiff. as Brown had been substituted Dewey Brown file a claim because did not suit, Furthermore, as in the federal court prior bringing to suit. The VA brought wrongful death claims were prerequisite FTCA establishes as a par- The under Fla.Stat. maintaining a suit the state suit entered into ties to States, present notice a must of and, 8, negotiations, July on settlement agency. the claim to the federal 1985, Dewey Brown’s Brown and Charlie filing requirement The is satisfied FTCA’s surviving daughter signed a release “(1) gives agency if the claimant writ- $237,- defendants, settling the case for ten of his or her sufficient notice provided agreement 500. The settlement (2) agency investigаte enable and expressly Release ... excludes “[t]his places on her a value his or claim.” any against the and all claims ... United 284, States, F.2d Adams v. United 615 289 States.” (5th Cir.1980). congressional purposes The procedure of the administrative claim are Upon conclusion of the trial congestion “to ease court and avoid unnec- court, judgment in the court entered a final essary litigation, making possible while Dewey findings In its of favor of Brown. expedite for the Government to fair law, and stat- facts conclusions settlement of tort claims asserted “[rjegardless any prior negli- ed that (quoting the United States.” Id. at 288 gence may may or not have at- been 1327, S.Rep. 6, Cong., 89th 2d Sess. No. Memorial tributable Jackson defend- [the Cong. reprinted in 1966 & U.S.Code Ad- ants], more Brown’s was [Charlie] 2515, 2516). By requiring this min.News likely Hospi- than not caused the V.A. notice, Congress sought to ensure that the negligence.” tal’s The court awarded agency apprised is of the circumstances $2,753 in Charlie Brown’s estate medical underlying agency so $5,077 expenses exрenses. and in funeral respond investigation and conduct $41,500 applied It also awarded to be to the or claimant settlement de- daughter, the benefit Charlie Brown’s 289; fense. at Rise v. United Id. see representing her lost support, States, 1068, 1071 630 parental companionship guidance, lost experienced pain suffering she The notice her as a result of father’s death. require each theo a claimant enumerate ry liability The United moved in the v. States then the dis- claim. Bush United 491, (11th Cir.1983); pursuant 59(a) States, trict cоurt to Fed.R.Civ.P. 703 494 1071; Adams, Rise, judgment amend the final to reflect a set- see F.2d at 615 630 States, 289; Speer off in the amount of the settlement be- F.2d v. 512 at United 670, (N.D.Tex.1981), F.Supp. aff'd, the state court 674 675 tween Brown and (5th Cir.1982); argued also Tidd defendants. United F.2d 100 see States, 1565, 1567 that it was entitled to the setoff 786 F.2d because United 1161 action, liability wrong a defendant a has an obli Cir.1986) (“Although a death action is based on the a claim ful give notice of gation to injures an obli act which 2675, not have decedent. she does he or Inc., Martin v. United Sec. Servs. See information 314 gation provide further matter.”) (empha (Fla.1975); Gaboury v. Fla 770 assist So.2d Inc., (Fla. Hosp., a claimant gler original). Compelling 316 So.2d 644 sis in of action and possible Dist.Ct.App.1975). causes “The death is not the advance all legal “overly upon liability is technical” operative theories fact which rests.” Nelson, section purpose A F.Supp. frustrate at 818. new admin requirement. Mellor unnecessary wrong notice is for a istrative claim (D.Utah 1978). F.Supp. ful death action because while a different “legal synonymous with suffered, A “claim” is not legal injury both actions are of action.” Nelson v. United cause in fact.9 But see on the same based (M.D.N.C.1982); Mel F.Supp. Raymond v. United lor, case, F.Supp. at 642. In this (E.D.Mich.1978) (wrongful death claim provided the Brown claim filed Charlie separate personal inju and distinct from necessary facts to conduct YA with the law). Michigan Although ry claim under underlying investigation circum full new cause of action accrued at the time of Requiring appellee to exhaust stances. liability Brown’s the United States’ again procedure the administrative presented on the same facts based un purpose.7 It is serve no useful would Brown’s administrative claim. We there agency would conduct likely that properly hold that the district court fore any investigation act or otherwise second subject jurisdiction matter in this exercised differently.8 case. also maintains that The United States III. files an administra- until the new claimant argues The United States next that court lacks tive claim the district “new, denying the district court erred its re because a inde- jurisdiction matter quest for a in the amount of the arose when Charlie setoff pendent cause of action Dewey Brown and the Wrongful Death settlement between died.” The Florida Brown court defendants. Since the district provides wrongful death action state Act that statutory damages made the award under the court may be maintained on behalf Act, Wrongful Death Florida law entitled to Florida if the decedent was beneficiaries that wrongful governs whether and to what extent bring on the an action based See by setoff. award should be reduced event. See Fla.Stat. 768.19-20 §§ Benevolent v. Florida Sanitarium Scheib Although wrongful death action a Florida Ass’n, Flor- personal injury 759 F.2d 859 clearly from a distinct qualified benefi was filed identification of additional Indeed in this case a second claim approximately may one month after claimed. See with the VA ciaries not affect the amount death, appear Marsh, (11th it does not Charlie Brown’s but Cir. Davis v. 807 F.2d any action was the record that substantial 1987). from taken. hаve to meet note that a claimant would 9.We government's ability to settle claims will requirements jurisdictional if a different plaintiffs hampered permitting to for- not be See, e.g., Rucker were suffered. wrongful go a second administrative claim in Labor, Dep’t 798 F.2d v. United States wrongful Florida a death ac- death actions. In Cir.1986) (FTCA’s (6th jurisdictional re 893-94 negligence depends proof of on the same quirement wife and children not satisfied for injury action. needed to maintain a claimant’s administrative a tort claimant wherе (1985). The death of a § See Fla.Stat. 768.19 claimants); identify Walk fails to them as claim govern- does not alter the therefore (M.D.Fla. er v. United analysis strengths and weaknesses ment’s of the 1978) (husband’s claim did not accordingly its settlement evalua- of its case and per filing requirement wife’s addition, satisfy for his damages tion. In while the amount consortium), aff’d, injury for loss of wrongful sonal claim death action de- available in a pend Cir.1979). factors, held that the on several have 597 F.2d we responsibility of the United the relative Contribution adоpted the Uniform ida has state and the court defendants Act. Fla.Stat. Among See Tortfeasors 768.31(5) seq. (1985). death. The et Section Brown’s fact 768.31 Charlie provides sought that Brown recov- injury flowing ery for the same [wjhen sue or a release ‍‌​‌​​​‌​​​​‌‌‌​‌​‌​‌‌​​​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​‍or covenant —the sepa- given in Charlie Brown’s death—in two judgment is from not to enforce a suits, persons good more one of which was settled out faith to one of two or rate wrongful law, in tort ... the same liable Under Florida court. against ... reduces the re- nonsettling must be any аmount the others the extent of by the amount of the settlement. duced stipulated by the covenant. the release or course, if improper be Of a setoff would requires that plainly statute This judgment and the state the federal court re- granted the setoff it United States be purported compensate court settlement quests. Both the United States and aspects injury flowing from separate sued for the state court defendants were example, death. For sought Both suits same death. compen award intended to damages the Florida those recover by the sustained survivors sate legislature in Fla.Stat. has authorized reflecting offset a settlement cannot be (1985). The court defend- state the estate. Dev sustained See 768.31(5) ants settled out of court. Section McMannis, (Fla.1970). So.2d lin v. unequivocally the claim requires here, not case however. Both Such is reduced the United States be complaint and the federal the state court the amount of that settlement. complaint requested damages court Appellee’s argument that section 768.- Wrongful full extent authorized under 31(5) require setoff based light Act. of the record before Death finding court’s principally on the district us, we must assume that the state to the United attributable judgment settlement and separate any States was independently every comprehended each court de- to the state be attributable recovery enumerated Fla.Stat. item argument This reflects a misun- fendants. (1985). Therefore, 768.21 the United § recovery derstanding of the nature of thе to in full States is entitled a setoff the Wrongful Death authorized the Florida amount of the state court settlement. Act, may Act. an in- Under that award (1) compensation for clude two elements:

injuries suffered the decedent’s surviv- IV. (pain death ors as a result of the setoff which the United Because the services, suffering, support and lost setoff, receipt is a States is entitled total on (2) compensation companionship); lost of the court en- our mandate district shall injuries for the decedent’s es- suffered judgment the ter for United States. tate as a result of the death (medical expenses). and funeral See Fla. REVERSED. (1985). Thus,

Stat. the Wrongful which the Death Act authorizes TJOFLAT, Judge, specially Circuit recovery is not the that the concurring: suffered, the decedent but rather majority’s disposition of agree I with that estate have suffered his and survivors writing I for the the setoff issue. Were and will suffer as a result of the however, I would not have majority, responsibility death. The of the relative I have held that reached that issue. would causing deаth is various defendants for jur- the district court lacked separate issue that bears no relation to wrongful death injury. this It no differ- isdiction entertain the therefore makes thought comply with appellee ence about suit because failed what district

H63 2675(a) primary of U.S.C. requirements purposes pro 28 of the of the One (1982).1 for administrative exhaustion cedure estab 2675(a)’s admin- with section Compliance by section is to it lished “mak[e] jurisdiction- is a requirement filing istrative government possible ‍‌​‌​​​‌​​​​‌‌‌​‌​‌​‌‌​​​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​‍expedite for the in fеderal bringing suit prerequisite al fair tort claims asserted Act. Claims Tort the Federal S.Rep. States.” No. 645, Inc., Pointer, F.2d 725 v. Lykins See reprinted 1327, 6, in Cong., 2d 89th Sess. case, no Cir.1984). present (11th 646 Cong. & 1966 U.S.Code Admin.News comply appellee failed disputes that States, one also 2516. See Johnson v. United filing his prior to (9th (“The with that Cir.1983) 1442 F.2d 704 court. district suit in the wrongful death procedures primary goal of the established Nevertheless, majority concludes satisfactory the FTCA is facilitate doing so because settlements.”). excused he was administrative Consistent filing an purpose, made administrative had with that courts have held that decedent his own 2675(a) “clearly presupposes in connection section the ex his before rea- majority of an identifiable or claim injury claim. istence personal government nego with whom the can ants the decedent’s sons v. United ap- notice of tiate a settlement.” the VA sufficient gave Lunsford States, claim, that sec- 225 wrongful death pellee’s Thus, example, that a courts have held more. 2675(a) requires no mаjority wrongful support reasoning, rely this death claimant on To filing holding individual claim- an administrative which he is not cites cases an recovery though filing not set as a claimant even theory on a named ant sue very wrongful provided death for which in his administrative involves forth See v. damages. Jackson United filing proper and it seeks was otherwise he States, (D.C.Cir.1984); Estate 730 F.2d 808 “fairly apprise[d] government States, v. United injury.” Santos leading to the facts [claimant’s] (D.P.R.1981). held Courts have also Bush Cir.1983) (citation omitted). (11th These unnamed members сlass submit, rely cases, ordinarily cannot on I have little to do with members. See Luns filing named today. This case issue the court decides (8th v. United claimant who 570 F.2d not involve individual ford Cir.1977); v. United seeking Caidin single suffered a has Cir.1977); Commonwealth recovery pursue particular F.2d 284 Ins., Flood National Ass’n neglected properly 520 F.2d he include his Rather, Cir.1975). (3rd Finally, in- courts have several filed administrative claim. personal injury plaintiff cannot claimant who never filed an admin- held that volves a third place rely and is the administrative of a the first on istrative filing though party’s the rely on of another even third seeking to the government of wholly arguably puts distinct the on notice who suffered a See Rucker v. Unit injury. majority’s plaintiff’s will- injury. I submit that the the States, Cir.1986); (6th F.2d ed permit appellee rely on anoth- 798 891 ingness to States, v. United F.2d 1431 Johnson person’s filing is at odds 704 er States, Cir.1983); Moody (9th v. United congressional sec- purposes behind aff'd, 774 (E.D.Tenn.1984), 2675(a). F.Supp. 585 286 2675(a) provides pertinent part: agency his claim Federal and 1. Section in agency finally by the been denied upon shall have not a claim An action shall be instituted by registered damages writing money and sent or in certified personal property agency or loss of or make final for injury wrongful The failure of an mail. or or death caused the disposition months after of a within six any employee or act omission of shall, option at the of the claimant it is filed scope acting within the the Government while thereafter, any be a final denial deemed time employment, his unless the claim- of ant shall office purposes section. of this of the claim presented have first the claim to the 1164 — Cir.1985), denied, personal injury claim. For value cert. 150 -, evaluating support, 24 example, L.Ed.2d in “the

U.S. 107 S.Ct. 93 loss of States, (1986); 570 relationship decedent, v. United Susanin the the survivor’s (W.D.Pa.1983); F.Supp. 25 Fol United probable in- of the decedent’s net amount (S.D.N.Y.1982); States, F.Supp. 1257 par- available for the come distribution States, F.Supp. 400 Ryan v. United survivor, replacement the value ticular and (W.D.Pa.1978); v. United Walker services to the survivor the decedent’s (M.D.Fla.1978), aff'd, 768.21(1) may be considered.” Fla.Stаt. § (11th Cir.1979); v. United Stewart (1985). Given difference between the 1978); (S.D.Ohio F.Supp. 871 involved, injuries I find it dif- compensable F.Supp. 641 Green v. not, in ficult to conclude the VA would (S.D.Calif.1974). one, such as this a cases want conduct underlying these cases is The rationale investigation so second could reas- enough: government straightforward position.3 its settlement sess expected to assess the simply cannot be excusing wrongful By death claimant value of claim an un- procedures following from established government no claimant. The has named 2675(a), majority in effect section damages way knowing the amount of government opportunity it is denies sought be or the will granted under the law to evaluate the set- damages will claimed. which those be This tlement value of the claim. result Thus, seeking in plaintiffs if to sue government posi- into one of two forces permitted rely administra- court were on government in Either it forces the tions. they not filings tive which were named settle, forgo any attempt many cases to claimants, primary purpose as a of section requires government, ‍‌​‌​​​‌​​​​‌‌‌​‌​‌​‌‌​​​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​‍or it each time it 2675(a)’s requirement fa- exhaustion —the presented awith of settlements —would be defeat- cilitation any the settlement value of evaluate ed. hypothetical wrongful number death particularly strong are These concerns ready be suits so it can a settle- here, where, wrongful as death claimant a offer the event death occur ment a rely personal injury filing seeks on a wrongful I death suit is instituted. his made the decedent before death. Congress, in enacting do believe that damages The measure of available to a jurisdictional in- exhaustion substantially death claimant is settlements, to facilitate meant to tended damages from different the measure government. impose such a burden on the be to the decedent had would available Accordingly, I would hold that proper he survived.2 A evaluation of the fully claimant must follow the ex- wrongful death settlement value of a procedures requires haustion established section government chat information 2675(a).4 appellee any Because did not follow agency would not have had reason to investigating procedures, seek I out when the settlement those would hold that decedent; otherwise, statute, By provides law that the dece- the death would not be Florida survivors recover for lost "wrongful." important point, point dent's support and the services, companionship, address, lost majority does not that the pain suffering. Additionally, the decedent’s compensated in a death suit earnings recover lost estate from deceased entirely injury compensated different date of to the date of as suit. expenses. well medical and funeral Fla.Stat. as § 768.21 courts have reached the same 4.Two district Shemansky conclusion. See v. United majority contends the decedent’s ad- (M.D.Pa. 17, 1983); May Raymond No. 77-1152 suffices because the ministrative (E.D.Mich. F.Supp. 740 v. United injuries on the death claim based same 1978). One court has reached the con gave district rise claim. Of is, sense, trary in a conclusion. See Nelson United course the death claim (M.D.N.C.1982). injured on the same act that based

H65 jurisdic- subject matter court lacked district his suit. entertain

tion to MARSHALL, al., et

Oliver

Plaintiffs-Appellants, COMPANY, INC.,

WESTERN GRAIN Inc., Group, The Riverside

Defendants-Appellees.

No. 86-7761. Appeals,

United States Court

Eleventh Circuit.

March Rehearing En Banc

Rehearing and 6,1988. April

Denied

Case Details

Case Name: Dewey Brown, as the Personal Representative of the Estate of Charlie Brown v. United States

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 1, 1988

Citation: 838 F.2d 1157

Docket Number: 86-5705

Court Abbreviation: 11th Cir.