791 F. Supp. 35 | D.N.H. | 1992
ORDER
In this civil action, plaintiffs Peter and Diane Kokaras sue the United States for damages arising out of an automobile accident involving their car and a vehicle driven by a United States Postal Service Employee. The action is brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., with jurisdiction being grounded upon 28 U.S.C. § 1346(b). Currently before the Court is the United States’ motion to reduce ad damnum to amount claimed in plaintiffs’ administrative claim.
The accident underlying this litigation occurred on May 8, 1987, in Seabrook, New Hampshire. On June 2, 1987, plaintiffs filed a Standard Form (“SF”) 95 with the Hampton, New Hampshire, Post Office.
In the spring of 1988, plaintiffs retained Alfred J. Cirome, Esq., to represent them in their attempt to resolve their claim against the Postal Service. Attorney Ci-rome and Area Accident Investigator Du-mont, see note 2, swpra, “had several telephonic and personal discussions ... during the course of [Attorney Cirome’s] representation of Mr. and Mrs. Kokaras between the spring of 1988 and the winter of 1990 in an effort to try to settle the claims' of Mr. and Mrs. Kokaras[.]” See Affidavit of Alfred J. Cirome at 2-3. However, no settlement agreement was reached.
On April 26, 1990, plaintiffs abandoned the administrative process
On November 7, 1990, this Court denied the United States’ motion to dismiss. In so doing, it took note of the varying degrees of liberality with which other circuits construe the presentment requirement. Compare, e.g., Cizek v. United States, 953 F.2d 1232, 1234 (10th Cir.1992) (holding that motorist’s filing of a state court action against a Forest Service employee was not adequate to establish sum certain where she had failed to claim damages in a sum certain on her SF 95) with William v. United States, 693 F.2d 555, 558 (5th Cir.1982) (holding that claim for damages in state court action could be taken together with SF 95 to meet sum certain requirement for
On October 2, 1991, however, the First Circuit handed down its decision in Corte-Real, supra, 949 F.2d at 484. In that case, the court held that plaintiffs administrative claim against the General Services Administration (“GSA”) stated a sum certain and was properly presented to the agency despite the fact that plaintiff had written “$100,000 plus because still treating and out of work” in the personal injury space on his SF 95. Id. at 486. A careful reading of Corte-Real compels this Court to reverse its ruling that it has subject matter jurisdiction over the instant litigation.
2. Discussion
As noted above, Corte-Real involved a situation where a claimant under the FTCA used qualifying language in the personal injury space on his SF 95. More specifically, the claimant completed the amount of claim sections of his SF 95 in the following manner:
A. PROPERTY DAMAGE — “NONE”
B. PERSONAL INJURY — “$100,000 plus because still treating and out of work”
C. WRONGFUL DEATH — “NONE”
D. TOTAL — “$100,000.00”
See id. at 489 (claimant’s SF 95 attached to opinion as Appendix A). On appeal, the First Circuit was asked to determine whether the district court had been correct in dismissing claimant’s FTCA action because claimant had, in the district court’s view, failed to present the appropriate administrative agency with a timely claim for a sum certain. In vacating, the Corte-Real court struck the qualifying language as surplusage and found that the SF 95 sufficiently presented the GSA with a sum certain claim for the district court to exercise jurisdiction over claimant’s FTCA suit. Id. at 487-88.
Although the result in Corte-Real might seem to endorse a liberal approach to the presentment requirement in this jurisdiction, a careful reading of the reasoning employed reveals the inadequacy of plaintiffs’ presentment in the instant action. The Corte-Real court began its analysis by stating its full agreement with the Government “as to the importance and absolute necessity of adherence to the sum certain requirement.” Id. at 486. Noting that the purpose of the sum certain requirement is “to give notice to the Government ‘sufficient to allow it to investigate the alleged negligent episode to determine if settlement would be in the best interests of all[,]’ ” id. (citations omitted), the court nevertheless reiterated its previous observation that such requirement “was ‘not intended to put up a barrier of technicalities to defeat the claims of individuals wishing to sue the Government.’ ” Id. (citations omitted). The court then proceeded to a fact-based analysis which persuaded it that claimant’s SF 95 “stated a sum certain with sufficient clarity to satisfy the statutory objectives of Section 2675 and the applicable regulations.” Id.
Central to the court’s conclusion that the statutory and regulatory objectives inherent in the sum certain requirement were met was the fact that claimant had stated a clear and unequivocal total claim to the
In the instant case, however, the record makes apparent that plaintiffs did not present the Government with anything resembling a total claim within two years of the accident.
3. Conclusion
For the reasons herein stated, the Court finds that plaintiffs did not present the Postal Service with a total claim of damages in a sum certain. Accordingly, the Court must reverse its previous ruling and dismiss this action for lack of subject matter jurisdiction. See Rule 12(b)(1), Fed. R.Civ.P. In making this ruling, however, the Court feels obliged to make certain observations. First, the Court regrets that the SF 95 in use at the time plaintiffs filed their claim did not explicitly emphasize the importance of meeting the sum certain requirement. Second, the Court can only express its disappointment that apparently neither the Postal Service investigator with whom plaintiffs sought to resolve their claim nor the attorney plaintiffs initially retained was adequately aware of the deficiency of plaintiffs’ SF 95 and/or the requirements of the FTCA.
Obviously, defendant United States’ motion to reduce ad damnum to amount claimed in plaintiffs’ administrative claim [document no. 21] is mooted by operation of this Order.
SO ORDERED.
. A reproduction of the SF 95 submitted by plaintiffs can be found in this Court’s November 7, 1990, Order at p. 4.
. There is a dispute as to whether all the documents now before the Court actually were submitted to the Postal Service. See Declaration of Henry Dumont, Area Accident Investigator, at 2.
. For a detailed recitation of the administrative prerequisites for bringing a claim under the FTCA, see the Court’s November 7, 1990, Order at pp. 2-4.
. 28 U.S.C. § 2675(a) allows any person asserting a claim against a federal agency to construe the agency's failure to make a final disposition of the claim within six months as a final denial entitling him/her to file suit under the FTCA.
. In this action, plaintiffs are represented by David C. Engel, Esq.
. In so doing, the Postal Service implicitly asserted that plaintiffs had not properly “presented” their claim, see 28 U.S.C. § 2675(a), because the claim for money damages was not stated in a “sum certain.” See 28 C.F.R. § 14.2(a) (defining "presentation" under 28 U.S.C. § 2675).
. At the time the Court issued its Order, no particularly pertinent First Circuit authority existed on this issue.
. The Court notes that its November 7, 1990, Order did not specifically address whether plaintiffs had indeed stated a sum certain.
.Because the Court’s subject matter jurisdiction is implicated by the holding in Corte-Real, the Court is obliged to raise the issue sua sponte. See Insurance Corp. of Ireland, Ltd. v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Phillips v. General Services Admin., 924 F.2d 1577, 1579 (Fed.Cir.1991).
. In reaching its conclusion that the open-ended language in the personal injury box should be struck as surplusage, the court also referenced cases where the total amount claimed was accompanied by qualifying language. See id. (citing Martinez v. United States, 728 F.2d 694, 697 (5th Cir.1984) and Adams by Adams v. United States Dep’t of Housing and Urban Dev., 807 F.2d 318, 321 (2d Cir.1986)). In so doing, however, the First Circuit utilized language which, at minimum, causes this Court to question whether any equivocation in the total amount claimed would be viewed as permissible in this jurisdiction. See Corte-Real, 949 F.2d at 487 (stating, in its description of Martinez, that "the Fifth Circuit went so far as to hold that a claim for damages ‘in excess of $100,000' is in reasonable compliance with the sum certain requirement” and qualifying its reliance on Martinez, Erxleben, and Adams by Adams with the statement: “We need not endorse the result in each of these cases in order to find that the present submission was adequate to meet the sum certain requirement, given, in particular, the unqualified $100,000 in the ‘TOTAL’ box.’’) (emphasis supplied).
. Plaintiffs’ complaint admits as much. See Complaint at ¶ 12 ("On June 2, 1987, pursuant to 39 CFR § 912.4 and 28 U.S.C. § 2675, Plaintiff filed an administrative claim in an undetermined sum with the Postmaster of the Hampton Branch.”).
. The Court notes that the medical information that allegedly was submitted to the Postal Service cannot, in this case, be viewed as providing the requisite notice. Practically speaking, the documentation is disorganized and confusing. Indeed, careful review of those items that appear to be bills reveals that many are for identical medical services but merely were sent to plaintiffs both before and after the provider received insurance payments. At any rate, this Court would be hard pressed to come up with an accurate total of plaintiffs’ relevant medical expenses based upon the documentation before it.
Even if it were able to generate an accurate number from the records before it, however, the Court finds that such number would deviate so substantially from the true nature of plaintiffs’ claim (z.e. the $500,000.00 sought in the complaint) that it would not have adequately apprised the Postal Service of the amount plaintiffs were seeking. Cf. Cizek, 953 F.2d at 1234 (noting that the wide disparity between the amount sought in timely request for reimbursement by claimant’s insurer and the amount eventually requested by claimant in untimely attorney’s letter provides basis for rejecting claimant's argument that the requested reimbursement should satisfy the sum certain requirement); Bradley v. United States by Veterans Admin., 951 F.2d 268, 271 (10th Cir.1991) (indicating that the wide variation between the qualified amount claimed in a timely sent attorney’s letter and the amount eventually requested in an untimely SF 95 undermined claimant’s argument that the figure in the attorney’s letter adequately apprised the Government of the amount claimant was seeking).
. The Court’s conclusion is supported by the fact that the record is devoid of even an allegation that a particular total claim, in a sum certain, had been implicitly presented to the Postal Service.
. The Court can only assume that if the Postal Service investigator had been aware of plaintiffs' failure to state a sum certain and the ramifications thereof, fundamental fairness would have dictated that he apprise plaintiffs of this problem.