Plaintiff Ellen Devlin appeals from a final judgment entered in the United States District Court for the District of Connecticut (Dorsey, J.) granting the government’s motion to dismiss a negligence action brought pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq. We vacate the judgment and remand the case for further proceedings.
BACKGROUND
Plaintiffs brother, Michael Murratti, began his employment as a letter carrier for the United States Postal Service (USPS) in New Haven, Connecticut, on June 23, 1984. As a federal employee, he was covered by the Federal Employees Life Insurance program established by the Federal Employees Group Life Insurance Act (FEGLIA), 5 U.S.C. § 8701 et seq. He completed a form, known as a Standard Form 2823 “Designation of Beneficiary,” to name his mother, Margaret M. Devlin, as the beneficiary of 60% of the life insurance proceeds, and his nephew, David M. Spina-to, as the 40% beneficiary. On July 20, 1984, this form was properly filed in Mur-ratti’s Official Personnel File.
On November 8, 1986, Murratti, while acting within the scope of his duties, was involved in a car accident. This accident left him permanently disabled, and he received Federal Employee’s Compensation thereafter.
On May 2, 1990, Murratti went to the Personnel Office of the USPS in New Haven and requested assistance from Blase Redding (now Blase Pierce) or Barbara Walcott, or both. Redding and Walcott were employed as personnel assistants; their duties included helping postal service employees and employees receiving Federal Employee’s Compensation benefits complete Designation of Beneficiary forms. Murratti sought to change the beneficiaries of his life insurance policy. To do so, Muratti completed and signed a new form, which was witnessed by both personnel assistants. That form named Murratti’s mother as the 60% beneficiary and Plaintiff, Murratti’s sister, as the 40% beneficiary.
Because of Murratti’s status as a “com-pensationer,” that is, as a recipient of Federal Employee’s Compensation benefits,
see
5 U.S.C. § 8705(a),
1
his form, in order
The personnel assistants, however, never forwarded the form to the Office of Personnel Management. Instead, the form was erroneously put in Murratti’s Official Personnel File in the Personnel Office in New Haven.
Murratti’s mother died on June 9, 1996, and Murratti died several months later on October 14, 1996. Upon his death, both Plaintiff and Murratti’s nephew, Spinato, submitted claims for the life insurance proceeds to Metropolitan Life Insurance Company (MetLife), the underwriter for the Federal Employees Life Insurance program. MetLife denied Plaintiffs claim. On May 5, 1998, Plaintiff filed an administrative claim with the USPS, alleging that “[e]mployees of the United States Postal Service negligently failed to comply with the filing requirements [of SF-2823] and/or were negligently trained in the proper filing procedure.” That claim was denied on April 15,1999.
Plaintiff then brought timely suit against the United States pursuant to the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2671 et seq. Her complaint alleged, inter alia, that the USPS’s employees were negligent in assuming the “duty and obligation to properly file the Designation of Beneficiary form with OPM after taking the completed form from Michael Murrat-ti, which duty was breached by their failure to effectuate proper filing.” Complaint ¶ 17(a).
The district court (Dorsey, J.) initially denied the government’s motion for summary judgment.
See Devlin v. United States,
DISCUSSION
We review a district court’s ruling on a motion for summary judgment de novo, examining the evidence in the light most favorable to, and drawing all inferences for, the nonmoving party.
Hotel Employees & Rest Employees Union, Local 100 v. City of New York Dep’t of Parks & Recreation,
In addition to the ground on which it won below, the government advances the following alternative rationales for upholding the district court’s grant of summary judgment: 1) the claim is barred by the FTCA’s misrepresentation exception, see 28 U.S.C. § 2680(h); 2) the claim is barred by the FTCA’s interference-with-contract-rights exception, see id.; 3) Congress intended FEGLIA’s remedies to be exclusive of FTCA remedies in this type of case; 4) Plaintiffs claim is essentially one for estoppel, and estoppel does not lie against the government in this context; 5) Plaintiff does not state a claim under Connecticut tort law; and 6) even if Connecticut law permitted Plaintiffs claim, that law would be preempted by FEGLIA.
We decline to address the government’s argument based on the FTCA’s interfer-enee-with-eontract-rights exception, because we have not had the benefit of the district court’s initial consideration of that issue. 2 We also will not address whether Plaintiff states a claim under Connecticut law, but note that the district court, upon reconsideration of the issue, should examine whether Connecticut has resolved whether a plaintiff may rely upon a “Good Samaritan” theory of liability where a) the plaintiff is a third-party with no special relationship to the defendant, b) the claim is one of negligent, rather than intentional, conduct, and c) there may be an absence of “physical harm.” Based on our preliminary review of the state’s case law, this important question may well remain an open one. 3 Accordingly, the district court might deem it advisable to take advantage of Connecticut’s certification procedure, see CoNN. Gen. Stat. § 51-199b, for guidance.
We do, of course, reach the issue addressed by the district court in its latest opinion — whether the FTCA’s “injury or loss of property” clause bars Plaintiffs
I. The FTCA’s “Injury or Loss of Property” Requirement
Enacted in 1946, the FTCA waives the federal government’s sovereign immunity against certain tort claims arising out of the conduct of its employees. Section 1346(b)(1) provides:
[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
See Federal Deposit Ins. Corp. v. Meyer,
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
28 U.S.C. § 2674. Finally, Section 2680 lists various exceptions to the FTCA’s waiver of immunity, such as an exception for claims arising out of certain intentional torts. 28 U.S.C. § 2680.
The district court held that it did not have jurisdiction to hear the Plaintiffs claim because the claim did not satisfy section 1346(b)(l)’s “injury or loss of property” requirement.
Devlin,
The phrase “injury or loss of property” is not defined by the FTCA,
see
28 U.S.C. § 2671 (defining other terms), and has not been interpreted by the Supreme Court
4
or by any previous decision of this court. The meaning of the phrase is obviously a matter of federal statutory interpretation,
see Molzof v. United States,
This court’s decision in
Birnbaum v. United States,
Although upon the consolidated trial it appeared that no plaintiff was touched physically or harmed financially, and that the sole damage claim was mental suffering, New York recognizes as “personal injury” mental suffering that results from a known category of tort.
Id. (citing New York cases).
It would, of course, be anomalous if “personal injury” was defined by state law but the neighboring phrase “injury or loss of property” were not. And, although
Bimbaum
did not pause to consider them, there appear to be good reasons for taking this state-incorporation approach. An important factor in deciding whether to give
[T]he government relies on the generally accepted principle that Congress normally intends that its laws shall operate uniformly throughout the nation so that the federal program will remain unimpaired. But Congress in permitting local taxation of the real property, made it impossible to apply the law with uniform tax consequences in each state and locality. For the several states, and even the localities within them, have diverse methods of assessment, collection, and refunding. Tax rates vary widely. To all of these variable tax consequences Congress has expressly subjected the “real property” of the Defense Plant Corporation. In view of this express provision the normal assumption that Congress intends its law to have the same consequences throughout the nation cannot be made.
Id.
at 209,
Similarly, the FTCA’s basic thrust was decidedly not to create a federal common law of torts, but rather — as expressed in the final clause of section 1346(b)(1) and in section 2674 — to tie the government’s liability — albeit subject to a host of qualifications — to the disparate and always evolving tort law of the several states.
See Birnbaum,
The Supreme Court has itself endorsed the state-law incorporation approach with regard to a closely related clause in
Williams v. United States,
Other Supreme Court cases, however, suggest that the phrase “injury or loss of property” might instead be assigned a uniform federal meaning.
7
In
Laird v. Nelms,
The necessary consequence of the Court’s holding in Dalehite is that the statutory language “negligent or wrongful act or omission of any employee of the Government,” is a uniform federal limitation on the types of acts committed by its employees for which the United States has consented to be sued. Regardless of state law characterization, the Federal Tort Claims Act itself precludes the imposition of liability if there has been no negligence or other form of misfeasance of nonfeasance, on the part of the Government.
Id.
at 799,
By contrast,
Molzof v. United States
took a purer federal-uniformity approach in its interpretation of the FTCA’s bar on the recovery of “punitive damages,”
see
28 U.S.C. § 2674. In
Molzof,
there was no suggestion that that term was meant to incorporate the understanding of punitive damages held by each state. Rather, the Court treated “punitive damages” as a term of art with a widely accepted common-law meaning.
Although we are inclined to agree with the state-incorporation approach over the uniformity approach' — and indeed may well be bound by Birnbaum v. United States to adopt the former — we need not conclusively determine the issue, because we conclude that, under either approach, Plaintiffs claim is one for “injury or loss of property.” We will apply each approach in turn. In order to do so, however, we must first decide how to characterize the loss that the Plaintiff claims to have suffered.
The government argues that the fact that Plaintiff would have become a beneficiary of her brother’s life insurance policy had the Designation of Beneficiary been filed properly is “beside the point.... [S]he was not properly designated and she did not become a beneficiary. Even though she may have expected to become a beneficiary upon her brother’s death, her disappointment was not an ‘injury or loss of property, or personal injury or death.’ ” We disagree. The proper characterization of Plaintiffs loss is of her status as beneficiary, that is, of what she would have been in the period before Mur-ratti’s death had she been designated in a proper fashion. Had that happened, Mur-ratti would still have retained the right to change beneficiaries at any time by filing another Designation of Beneficiary form. It is this status, as a beneficiary that could be removed, that Plaintiff would have had but for the government’s alleged negligence. The question then becomes whether the loss of such a status or interest qualifies as an “injury or loss of property” under the FTCA.
A. The Uniform Definition Approach
When giving a term a uniform definition for purposes of a statute like the FTCA, the term can either be given its “ordinary or natural” meaning or be treated as a term of art that has a conventional meaning.
10
Compare Meyer,
510 U.S. at
The district court seemingly took neither approach. After defining property in a dictionary fashion as,
inter alia,
“the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it,” it relied on a District of Maryland decision that “[i]n order to be covered by the FTCA there must have been a
physical impact
of some type on the plaintiff or its property,”
Charles Burton Builders, Inc.,
That section 1346(b)(1) encompasses a wide sweep of intangible tort claims is also evidenced by Congress’ decision to limit that liability by setting out specific exceptions in section 2680. These exceptions exclude some but not all “non-physical” harms.
See
28 U.S.C. § 2680(h) (barring claims arising out of,
inter alia,
libel, slander, misrepresentation, deceit, and interference with contract rights). If the kind of “non-physical” harm at stake in interference-with-contract-rights actions did not qualify as “injury or loss of property” in section 1346(b)(1), there would have been little reason to exclude such actions in section 2680.
13
See Kosak,
Congress was indeed interested in limiting the scope of the government’s waiver of immunity from suits for negligence and intentional torts, but we have found no indication either in the language or legislative history of the Act that Congress meant to accomplish this through the phrase “injury or loss of property,” and every indication that Congress did so through the specific and detailed exceptions it established in section 1280.
14
It is
But finding that “injury or loss of property” encompasses harm that is not physical does not suffice to support Plaintiffs claim. We must also determine whether her interest in being a beneficiary is sufficiently substantial to qualify as property for purposes of this torts action. Admittedly, the technical meaning of “property” is more difficult to pin down than that of “punitive damages,” which was at issue in
Molzof.
This is so because “property” is a term with a famously diffuse set of meanings across a range of areas of law. And, at least since the end of the nineteenth century, the conceptualistic approach to understanding its meaning has given way to a functionalist approach that designates something as “property” according to the context and purpose of the designation.
15
Consequently, examining the use of the word “property” in the law of, say, taxation may be of little help if we are interested in the meaning of that term in a statute dealing with torts.
Cf. Segal v. Rochelle,
In tort law, “injury to property” and “loss of property” have neither conventional nor ordinary, dictionary-type meanings. They are, instead, defined in terms of the kinds of harms to property for which a plaintiff may seek redress. As a result, in order to determine whether there exists an “injury or loss of property,” we must examine whether Plaintiffs claim seeks to vindicate an interest that is given protection by the general common law of torts. In other words, we must determine whether Plaintiffs interest is treated as property for torts purposes. For the reasons given below, we conclude that Plaintiffs claim satisfies this requirement.
The parties focus their energies on whether the interest of a beneficiary of a life insurance policy — or the analogous interest of a potential heir to a will — is a “mere expectancy” or something more substantial. And, predictably, they take different sides on the matter. In fact, according to a leading insurance treatise, states take one of two views. A majority of jurisdictions hold that, where a right to change the beneficiary is reserved in a life insurance policy, the beneficiary has only a revocable expectancy contingent upon being the beneficiary at the time of the insured’s death. 4 Couch on INSURANCE § 58:14 (3d ed. 2003) (collecting cases); see also Restatement (Third) of Property (Wills & Don. Trans.) § 2.1 (comment d) (1999) (“Before the decedent’s death, a potential heir has no property interest but merely an ‘expectancy’ (an inchoate interest) in the decedent’s intestate estate.”). A minority of jurisdictions, by contrast, holds that a beneficiary of a life insurance contract “acquires not merely an expectancy in the anticipated benefits, but a qualified vested interest subject to be divested if a change in the beneficiary is made.” Couch § 58:15 (also using the terminology “qualified property right”).
Couch’s treatise, however, notes that there is “little, if any, practical difference” between the “mere expectancy” and “qualified property right” positions:
[T]o the extent that the concept of a qualified property right, or of a vested right subject to divestment, has been adopted to give the beneficiary standing to object to a change of beneficiary, the same result could be reached by simply interpreting “expectancy” in the property law sense, which enables an heir to challenge the validity of a disinheriting or excluding will even when the heir’s right to the property in question is merely an expectancy.
Although the power to change beneficiaries is reserved, the beneficiary’s interest is sufficiently substantial that it may be recognized in law or equity.
Id. 16
In other words, the label given to a beneficiary’s interest seems not to be de
Were this all we had to go on, we would be hard put to say which view should be deemed that taken by the FTCA. If, however, we look to the most relevant area of law, torts, the matter becomes much easier. For, in tort law, we find that the interest of a beneficiary or heir is regularly afforded substantial protection. 17 For example, the Restatement (Seoond) of ToRts delineates a cause of action for the “intentional interference with inheritance or gift” as follows:
One who by fraud, duress, or other tor-tious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.
Restatement (Seoond) of ToRts § 774B (1979); see also id. (comment b) (“gift” includes the designation of another as a beneficiary under an insurance policy). Significantly, for the issue before us, whether the beneficiary’s interest is treated as a “mere expectancy” or as something more is not a threshold consideration going to whether a tort action lies. Rather, the contingent nature of the interest goes instead to the existence of factual causation. Accordingly, the beneficiary must provide “proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator or that the gift would have been made inter vivos if there had been no such interference.” Id. (comment d).
The early, and hence leading, case of
Mitchell v. Langley,
The fact that this status has not ripened into a vested and irrevocable ownership of the beneficial interest, and that the member has a right to change it, does not authorize a third party to maliciously and fraudulently destroy the status and thus prevent the interest or expectancy of the beneficiary from ripening so that he will receive the fund. The reserved right of the member is one thing; the malicious and fraudulent interposition of a third party to destroy the status is another.
Further support for our conclusion that one’s interest as a beneficiary or heir is sufficient to support liability in tort can be found in the cases dealing with a lawyer’s liability to an intended heir for the negligent preparation of a will or other estate-planning device. The privity requirement that once blocked third-parties from bringing professional negligence claims has eroded steadily since
Glanzer v. Shepard,
In view of the widespread recognition of liability for tortious interference with an inheritance and of a lawyer’s liability to an intended heir — not only now, but at the time Congress used the phrase “injury or loss of property” in the FTCA — we conclude that the loss that Plaintiff complains of would fall within the meaning of that phrase.
19
It would, that is, if the phrase is
B. The State-Incorporation Approach
We believe that the same result is reached if “injury or loss of property” is defined federally (i.e. for purposes of the FTCA), in reference to the law of Connecticut, the relevant state in this case, rather than in reference to the general common law.
When a federal statute looks to state law to give meaning to one of its provisions, it does not do so indiscriminately. Thus, in our case, given the many uses of the term “property” across the range of statutory and common-law fields, it would not do to throw a dart at the Connecticut case reports and use whatever definition of property is thereby encountered. Rather, we must do what the Supreme Court did in
De Sylva v. Ballentine,
The parties’ submissions, in the instant case, do not comport with the above principle. Thus, the government offers ample Connecticut case law to support the proposition that, under Conn. Gen. Stat. § 46b-81, which deals with equitable distribution upon the dissolution of a marriage, a person’s interest as a potential heir is not subject to distribution because it is a mere expectancy.
See, e.g., Krause v. Krause,
The parties thus confront us with cases standing for seemingly conflicting propositions. In some contexts, an interest analogous to the one before us is termed a “mere expectancy,” while, in others, the interest is described as “more than a mere expectancy” and is the sort that commentators call a “qualified property right,” see Couch § 58:15. This situation, however, only underscores the fact that the appropriate place to find the meaning of “injury or loss of property” lies in Connecticut tort law and not either in the law of marital dissolution or in that of insurance. 20 That is, the approach we took in the last section, when we were seeking a uniform federal meaning for the phrase, is also the one we must follow with regard to the law of the relevant state.
The question thus becomes whether a person’s interest as a named beneficiary or potential hem is a property interest that is protected
by the tort law of Connecticut.
21
We
conclude
that
it
is because Connecticut follows the majority of jurisdictions both in recognizing the tort of interference with an inheritance,
see Benedict v. Smith,
It follows that, under either the uniform federal approach or the state-incorporation one, Plaintiffs claim satisfies the requirement of “injury or loss of property.”
II. The FTCA’s Misrepresentation Exception
The government argues that Plaintiffs claim is barred by the FTCA’s misrepresentation exception, which excludes “[a]ny claim arising out of ... misrepresentation.” 28 U.S.C. 2680(h);
see also Neustadt,
The government’s reasoning was rejected persuasively by the Fifth Circuit in
Metropolitan Life Ins. Co. v. Atkins,
III. FEGLIA Preemption and Estoppel
The government makes several arguments related to FEGLIA. We will address them collectively. First, the government contends that, in enacting FEGLIA,
Although these arguments vary in gloss, they fail for essentially the same reasons. Plaintiffs tort claim does not seek to function as an alternative enforcement mechanism to obtain benefits under a FEGLIA policy; nor does the claim seek to “give legal effect”' — in any meaningful sense of that phrase — to Murratti’s intent to substitute Plaintiff for his nephew as a beneficiary.
26
And, finally, Plaintiffs claim does not seek to estop the government from refusing to pay her FEGLIA benefits as though she were a proper beneficiary.
27
Quite simply, Plaintiff is not asking to be paid benefits under a FEGLIA policy; she concedes that she is not a proper beneficiary of such benefits. Indeed, that is precisely her point; her allegation is that the postal employees’ negligence prevented
For these reasons, and given the government’s failure to cite any authority that remotely supports its position, we reject the government’s arguments based on es-toppel and FEGLIA preemption.
CONCLUSION
We hold that the district court erred in determining that Plaintiffs claim is not one for “injury or loss of property” under the FTCA. Accordingly, we VACATE its grant of summary judgment and Remand for further proceedings. In those proceedings, the district court will determine whether FTCA’s interference-with-contract-rights exception applies; will decide — either on its own or after certifying to the Connecticut Supreme Court— whether Plaintiffs suit states a claim under Connecticut law; but will reject the government’s arguments based on the FTCA’s misrepresentation exception, FEGLIA preemption, and estoppel.
. Similarly, the Supreme Court of New Hampshire noted the diversity of property-law labels used to describe the interest of a beneficiary where the insured reserves the right to change beneficiaries, and found such labels to be of limited use:
The distinction between contingent and vested but defeasible is sometimes of importance when title to real estate is involved. But when the only title is a right under a contract to receive a sum of money which is to become due upon the happening of a future event, the need to observe the niceties of real estate nomenclature disappears. Under either the Massachusetts or the New Hampshire rule the designated beneficiariestook a present legal interest in the money upon the death of the party insured. So long as the power of defeasance is not exercised, they stand in the position of one having a title which the law will recognize, and for the protection of which they are entitled to the usual legal and equitable remedies.
Barbin v. Moore,
Notes
. 5 U.S.C. § 8705(a) provides in relevant part:
The amount of group life insurance and group accidental death insurance in force on an employee at the date of his death shall be paid, on the establishment of a valid claim, to the person or persons surviving at the date of his death, in the following order of precedence:
First, to the beneficiary or beneficiaries designated by the employee in a signed and witnessed writing received before death in the employing office or, if insured because of receipt of annuity or of benefits under subchapter I of chapter 81 of this title asprovided by section 8706(b) of this title, in the Office of Personnel Management. For this purpose, a designation, change, or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect....
5 U.S.C. § 8705(a).
The back of the Designation of Beneficiary Form also provides instructions as to where the form should be filed:
Where to File Completed Form. If the Insured is an employee, file the form with the employing agency. If the Insured is a retired employee or is receiving Federal Employee’s Compensation, file the form with the Office of Personnel Management .... If an application for retirement or compensation is pending, file the form with your employing agency if still employed, or with the Office of Personnel Management if no longer employed. Receipt of the designation form will be noted on the bottom of the form and the duplicate (Part 2) will be returned to you as evidence that the original has been received and filed.
. If the district court reaches this issue on remand, it should consider
Sowell v. United States,
.
Compare, e.g., Waters v. Autuori,
. The meaning of the phrase was expressly reserved in a footnote of
Kosak v. United States,
. We note that one of this case’s important conclusions — that New York law would recognize the privacy tort of intrusion — proved to be an inaccurate prediction of that state's law and was, in fact, rejected by later cases.
See Hurwitz
v.
United States,
. That the opinion is terse does not render it any less controlling. It states in full: "This case is controlled by the California doctrine of respondeat superior. The judgment is vacated and the case is remanded for consideration in the light of that governing principle.”
. The few decisions from other circuits that have interpreted the phrase “injury or loss of property” have seemingly given it a uniform federal meaning.
See Idaho ex rel. Trombley v. U.S. Dept. of Army, Corps of Engineers,
. Compare Justice Stewart's dissenting position: "As I read the Act and the legislative history, the phrase 'negligent or wrongful act or omission' was intended to include the entire range of conduct classified as tortious under state law. The only intended exceptions to this sweeping waiver of governmental immunity were those expressly set forth and now collected in § 2680.”
. Another example of a hybrid approach, though one that leans more to the state-law side of the continuum, is
De Sylva v. Ballentine.
That case held that the meaning of "children” in the Copyright Act was to be determined by reference to state law, but then added a (federal-law) constraint on that meaning by providing that "a State would [not] be entitled to use the word 'children' in a way entirely strange to those familiar with its ordinary usage,” ánd, consequently, that state law would control only within a permissible range of meanings of that word.
. We find the opposing canons of construction urged by the parties to be of little assis
. For support,
Charles Burton
cited a series of Ninth Circuit decisions that rejected suits brought by states to recover their expenditures in extinguishing forest fires that were caused by the alleged negligence of federal employees, but did not damage state-owned land.
See, e.g., Idaho ex rel. Trombley,
. See, e.g., Black's Law Dictionary (3d ed. 1933) ("[Property] is also commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible ....”)
.
See also Block v. Neal,
. "The three objectives most often mentioned in the legislative history as rationales for the enumerated exceptions are: ensuring that 'certain government activities’ not be disrupted by the threat of damage suits; avoiding exposure of the United States to liability for excessive or fraudulent claims; and not extending the coverage of the Act to suits for which adequate remedies were already available.”
Kosak,
. "[W]hat is property may depend upon the action that is dependent upon the answer. Anything recognized as property has, indeed, existence as such in the eye of the law, but for different purposes existence is rather freely conceded or denied.... Because Lord Eldon once unfortunately declared that equity protects only property (whereas present-day courts of equity in fact freely protect political rights, sentimental interests in dead bodies and letters, rights of privacy and of reputation, and family relationships) courts have often called such interests property merely in order to make their protection seem conventional.” Francis S. Philbrick, Changing Conceptions of Property in Law, 86 U. Penn. L. Rev. 691, 694 (1938); see also Restatement (First) of the Law of Property (1936) Ch. 1, at 3-4 (introductory note) (defining property not as a “thing,” but as “the legal relations between persons with respect to a thing,” which can be subdivided according to the concepts of right, privilege, power, and immunity); Thomas C. Grey, The Disintegration of Property, in Property Nomos XXII 69, 69-73 (J. Roland Pennock & John W. Chapman, eds. 1980) (describing the modern lawyer's understanding of property as a "bundle of rights”).
. Tort law has for at least a century afforded protection to interests that may be characterized as "expectancies.” See, e.g., Leo H. Whinery, Comment, Tort Liability for Interference with Testamentary Expectancies in Decedent’s Estates, 19 U. Kan Cits: L. Rev. 78, 78-79 (1950) ("Although expectancies may now be protested through tort remedies, the growth of relief in the form of damages has been a comparatively slow process, when one looks at the evolution of the common law in the light of the last ten centuries. It was not until 1853, in the case of Lumley v. Gye, that an action in damages would lie against one who wantonly or selfishly induced a person under contract with the plaintiff to break the contract. [Now] tort liability for interference with expectancies [exists], not only in respect of contracts, but in cases of interference with one's right to seek employment, of interference with one's right to carry on a lawful business and of interference with expectancies under life insurance policies.”).
. For other, earlier commentaries on this tort, see Alvin E. Evans, Torts to Expectancies in Decedent's Estates, 93 U. Pa. L. Rev 187 (1944); Whineiy, Tort Liability for Interference with Testamentary Expectancies in Decedent’s Estate, supra.
. After this opinion was drafted, the D.C. Circuit decided
Tri-State Hospital Supply
. If we did not have tort law to look at, however, we would be inclined to decide that the insurance beneficiary cases, which treat the interest in question as a qualified property right, are more on point, since the status Plaintiff claims to have lost is that of a beneficiary of an insurance policy.
.
In
Birnbaum,
this court held that the plaintiffs' claims of mental suffering qualified as "personal injury” under New York law and therefore satisfied the FTCA's "personal injury or death” requirement.
. Cf. DiMaria v. Silvester,
. The government, citing
Williams Ford, Inc. v. Hartford Courant Co.,
. This conclusion, and presumably that of the district court, is limited to the Plaintiff’s "Good Samaritan” theory of negligence, which was pled in ¶ 17(a) of her Complaint. By contrast, the theories plead in ¶ 17(d)-(f), ¶ 37, and ¶ 38 are clearly barred by the misrepresentation exception, and appear no longer to be relied upon by Plaintiff.
. See 5 U.S.C. § 8709(d)(1) ("The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any law of any State ..., which relates to group life insurance to the extant that the law or regulation is inconsistent with the contractual provisions.”).
. Because Plaintiff does not claim that Mur-ratti's intention that she become a beneficiary entitles her to benefits under the policy, it is irrelevant that FEGLIA establishes an "inflexible rule that a beneficiary must be named strictly in accordance with the statute, irrespective of the equities in a particular case,”
Metropolitan Life Ins. Co. v. Manning,
. In
Office of Personnel Management v. Richmond,