Coska v. United States

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit

                                 ____________________



        No. 96-2245



                                    BARBARA COSKA,

                                Plaintiff, Appellant,



                                          v.



                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before

                               Torruella, Chief Judge,
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                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Lynch, Circuit Judge.
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                                 ____________________



            John B. Manning,  with whom Curtin, Murphy  & O'Reilly,  P.C., was
            _______________             _________________________________

        on brief for appellant.

            Mary Elizabeth  Carmody, Assistant  United  States Attorney,  with
            _______________________

        whom  Donald  K.  Stern,  United States  Attorney,  was  on  brief for
              _________________

        appellee.


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                                     May 29, 1997

                                 ____________________



LYNCH, Circuit Judge.   Plaintiff-appellant Barbara
                      LYNCH, Circuit Judge
                             _____________



            Coska  brought  suit  against  the United  States  under  the



            Federal  Tort Claims  Act,  28 U.S.C.     2671 et  seq.,  for
                                                           __  ____



            injuries   she  sustained  in  a  slip-and-fall  accident  on



            government  property. Holding  that  Coska failed  to make  a



            proper  demand for a "sum certain"  against the United States



            within the prescribed two-year limitations period, the United



            States  district  court  dismissed  the action  for  lack  of



            subject matter jurisdiction and, in the  alternative, granted



            the defendant's motion for summary judgment.  We affirm.



                                          I.



                      Our  review  of the  allowance  of  the motions  to



            dismiss  and for summary judgment  is de novo.   See Borschow
                                                  __ ____    ___ ________



            Hosp.  & Med. Supplies, Inc. v. Cesar Castillo, Inc., 96 F.3d
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            10, 14 (1st Cir. 1996); Murphy v. United States, 45 F.3d 520,
                                    ______    _____________



            522 (1st Cir. 1995).  We recount the facts in  the light most



            favorable to Coska.   See Borschow Hosp. & Med.  Supplies, 96
                                  ___ _______________________________



            F.3d at 14;  Murphy, 45 F.3d at 522.
                         ______



                      On  March 15,  1993, Coska  slipped and  fell while



            walking on an ice  and snow-covered sidewalk in front  of the



            building where she worked at 386 West Broadway, South Boston,



            Massachusetts.    Coska alleges  that she  suffered injuries,



            including a fractured ankle, as a result of the fall.    



                      At the time of the accident, the property was owned



            by  the  United States  through  the  United States  Marshals


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Service.  The Marshals Service had  entered into a management



            contract with Barlou Management Company which required Barlou



            to  maintain the  property  and held  Barlou responsible  for



            removing any snow or debris from the parking area, sidewalks,



            and entrances to  the premises.  Barlou  then contracted with



            another company, Kevin Sutherland Landscaping ("Sutherland"),



            to handle the actual removal of any snow and debris.  



                      On April 13, 1993,  Coska's counsel sent letters to



            the  Marshals  Service  and  to  Barlou Management  regarding



            Coska's accident at 386 West Broadway.  In relevant part, the



            letter to the United States stated: 



                           Please be advised that  we represent

                      Ms. Barbara Coska, who  received personal

                      injuries as  a result of a  slip and fall

                      accident,  caused  by   the  failure   to

                      adequately clear the accumulation of snow

                      and  ice from  the  sidewalk  located  in

                      front of 386 West  Broadway . . . .   Ms.

                      Coska   sustained   a   fractured   ankle

                      (fractured  in  three  places),   and  is

                      currently in an ankle to hip length cast;

                      she may require surgery in the future.  A

                      claim for her damages resulting from this

                      accident is hereby made.  



            The  letter   to  Barlou  employed  the   same  language  but



            explicitly attributed the  failure to clear the snow  and ice



            from the sidewalk to the Barlou Management Company.1  Neither



            letter set forth the amount of damages being claimed. 



                                
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            1.  That    letter   stated   in    relevant   part:   "Coska

            . . . received personal injuries  as a result  of a slip  and

            fall accident,  caused by Barlou Management  Co.'s failure to
                            __________________________________

            adequately  clear the accumulation  of snow and  ice from the

            sidewalk . . . ." (emphasis added).



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The Marshals Service  responded to Coska's  counsel



            by  letter dated June 7,  1993, advising her  that a claimant



            must submit  a claim for damages  in a "sum certain"  for any



            injury  allegedly caused  by the  incident before  the agency



            could  administratively  adjudicate  her  claim  for monetary



            damages.  The letter  enclosed a Standard Form 95  (Claim for



            Injury, Damage,  or Death)  (hereinafter "SF-95")  and stated



            that the form should be completed and returned along with all



            information  and  documentation  substantiating   the  claim.



            Coska never returned the requested form.  



                      Thirteen  months  later,  Barlou,  but  not  Coska,



            forwarded to  the United  States the  "demand packet"  it had



            earlier received from Coska's counsel.2  The 118-page packet,



            dated June 21, 1994, contained relevant information regarding



            Coska's  claim  against Barlou,  including  a  demand against



            Barlou in the amount of $225,000.  The letter included in the



            packet stated  that Barlou's  failure to clear  the entrances



            and sidewalks adjacent to 386 West Broadway was "the sole and
                                                                 ________



            proximate  cause  of  the plaintiff's  accident."   (emphasis
            ________________



            added).    The letter  contained  no  assertion of  liability



            against,  or  even  mention  of, the  United  States  or  the



            Marshals  Service.  At this point, Coska's counsel had yet to


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            2.  The  record  is unclear  as  to whether  Barlou  sent the

            packet on  its own initiative  or whether  the United  States

            requested it.    Regardless,  it  was  not  sent  by  Coska's

            counsel.



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contact  the  United States  in response  to its  request for



            documentation of the claim and/or the SF-95.



                  Five  more months passed with  no word from  Coska.  On



            December 12, 1994, the Marshals Service sent a second  letter



            to Coska's counsel.   This letter "acknowledge[d] receipt" of



            the claim,  stated that "[i]n  this regard, the  Federal Tort



            Claims [sic]  was received by the  agency to administratively



            adjudicate the claim," and then cited to the FTCA.  



                      In  its  first  communication with  the  government



            since Coska's  initial letter sent almost  two years earlier,



            the law firm representing Coska sent a letter to the Marshals



            Service  dated February  14, 1995,  informing  the government



            that new attorneys from  the same firm would be  handling the



            case.   Counsel also asked  in this letter  whether the claim



            satisfied the notice requirements of 28 U.S.C.   2401 and the



            procedural  requirements  of  the  FTCA.    For  reasons  not



            disclosed  by the record,  counsel enclosed a  second copy of



            the  demand packet  sent to  Barlou "in  the event  that [the



            United  States  was]  missing any  information  [required] to



            fully evaluate the claim" and urged the government to contact



            them if it needed any additional information. 



                      About a month later,  the Marshals Service did just



            that.    A paralegal  assigned  to  the case  called  Coska's


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counsel  and requested  a  demand for  a  sum certain.3    In



            response, Coska's counsel claimed  that they were waiting for



            additional medical bills  beyond those set out  in the demand



            packet to Barlou.   The paralegal then sent another  SF-95 to



            Coska's counsel, which was never returned.



                      The United  States sent  a third letter  to Coska's



            counsel  on  June 20,  1995, requesting  a  demand for  a sum



            certain and including yet another  SF-95 form.  The  Marshals



            Service apparently denied the claim by letter dated September



            15,  1995, having  received  no response  to these  requests.



            Coska says she did not receive the letter.



                      On December  18, 1995,  Coska brought suit  against



            the United  States alleging  negligence, breach  of contract,



            and breach of  warranty of habitability.4   The United States



            filed a motion to  dismiss and, in the alternative,  a motion



            for summary judgment.   The district court granted the motion



            to  dismiss, alternatively  characterizing it  as a  grant of



            summary judgment.    


II.


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            3.  The call  was  either placed  in  late March  before  the

            statute of limitations had  run or in early April  just after

            the period expired. 



            4.  Similar claims  were brought against Barlou.   The United

            States filed a cross-claim against Barlou, who in  turn filed

            a  third party  complaint  against Sutherland  (snow  removal

            contractor). 



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As the recitation of facts demonstrates, before the



            expiration of  the limitations period, the  United States had



            made  one or  two specific  requests for  a sum  certain from



            Coska and  had sent her at least  one SF-95 form to complete.



            More  requests (with  accompanying  SF-95  forms)  were  made



            later.  The issue on appeal is whether Coska's two letters to



            the  government  and the  copy  of the  Barlou  demand packet



            included in the second of  those letters constitute a  notice



            of  claim against the United  States for a  sum certain under



            the FTCA.  We find that they do not.



                      Under  the FTCA,  a tort  claim against  the United



            States is  barred unless  it is  "properly presented"  to the



            agency within  two years  of its  accrual.  See  28 U.S.C.   
                                                        ___



            2401(b); Corte-Real v. United States,  949 F.2d 484, 485 (1st
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            Cir. 1991).   An  administrative claim is  properly presented



            when  it  includes, among  other  things, a  claim  for money



            damages in a sum  certain.  See 28 C.F.R.    14.2(a);5 Corte-
                                        ___                        ______



            Real, 949 F.2d at 485.  A timely filed sum certain claim is a
            ____


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            5.  28 C.F.R.   14.2(a) provides in pertinent part:

                           For purposes of the provisions of 28

                      U.S.C. 2401(b), 2672,  and 2675, a  claim

                      shall  be deemed  to have  been presented

                      when a  Federal  agency receives  from  a

                      claimant  . . . an executed Standard Form

                      95  or other  written notification  of an

                      incident,  accompanied  by  a  claim  for

                      money damages in a sum certain for injury

                      to or loss  of property, personal injury,

                      or  death  alleged  to  have  occurred by

                      reason of the incident . . . .



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jurisdictional  prerequisite  for a  tort action  against the



            federal government.   Kokaras v. United States, 980  F.2d 20,
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            22 (1st Cir. 1992) (citing cases). 



                      The purpose  of the  sum  certain requirement  goes



            beyond mere administrative convenience;  it is to apprise the



            government  of  its possible  liability  and  to provide  the



            government with notice "sufficient to allow it to investigate



            the  alleged  negligent episode  to  determine  if settlement



            would be in the best interests of all."  Corte-Real, 949 F.2d
                                                     __________



            at 486 (quoting  Lopez v.  United States, 758  F.2d 806,  809
                             _____     _____________



            (1st  Cir. 1985)).    Coska's letter,  which incorporated  by



            reference the  Barlou demand  packet, failed to  achieve this



            objective.   That packet  contained no information  about the



            liability of the United States nor did it state the amount of



            damages it would seek from the United States.  Indeed, by its



            own terms, the packet asserted a claim that Barlou was solely
                                                        ______



            liable.   As the  district court observed,  the demand packet



            against Barlou "is not  an appropriate substitute."  In  none



            of  the cases  Coska cites,  where this  court has  allowed a



            claim  to proceed despite  a dispute over  the fulfillment of



            the  sum certain  requirement, had  the plaintiff  completely



            failed  to  assert explicitly  a  damage  amount against  the



            United  States.  See, e.g.,  Kokaras, 980 F.2d  at 23; Corte-
                             ___  ____   _______                   ______



            Real,  949  F.2d  at  486-87;  Lopez,  758  F.2d 808-11;  cf.
            ____                           _____                      ___



            Santiago-Ramirez v.  Secretary of  the Dep't of  Defense, 984
            ________________     ___________________________________


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F.2d at 17-20 (1st Cir. 1993).6  Thus, Coska's arguments fall



            short.7 



                      This need for  a specific sum certain  was not kept



            secret from Coska  in hopes of  defeating her claim.   To the



            contrary,  the  United  States  made  a  number  of  specific



            requests for the  sum certain.   All of  those requests  were



            ignored.


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            6.  Coska's reliance on the Ninth Circuit's decision in House
                                                                    _____

            v. Mine Safety Appliances Co., 573 F.2d 609, 615-16 (9th Cir.
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            1978)  is also misplaced.  That case supports the notion that

            incorporation by reference can, on certain facts, satisfy the

            jurisdictional  requirement  of presenting  an administrative

            claim.    The  Ninth  Circuit  found  that  the  sum  certain

            requirement   had  not   been   met   because   neither   the

            incorporating nor the incorporated  documents set forth a sum

            certain  claim  of  damages   explicitly  applicable  to  the

            claimant(s).   See House,  573 F.2d  at 615-16,  overruled on
                           ___ _____                         ____________

            other  grounds  by  Warren  v.  United States  Dep't  of  the
            __________________  ______      _____________________________

            Interior, 724 F.2d 776 (9th Cir. 1984) (en  banc). Similarly,
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            in  this case, Coska made  no "explicit[] link,"  id. at 616,
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            between  any demand against the  United States and the demand

            for a sum certain it asserted against Barlou.



            7.  The  government argues  that  Barlou and  Sutherland were

            independent  contractors, that  liability was  not joint  and

            several  as Coska asserts, and so that notice to Barlou could

            not  as a matter of law, provide notice to the United States.

            Therefore, the  United States  says, a demand  against Barlou

            could not be  a demand against the United States.   To decide

            this  case,  we  need   not  address  whether  Barlou  and/or

            Sutherland were  "independent contractors" and  thus were not

            joint and severally liable.   That the government is  able to

            make the argument, whatever its resolution, demonstrates that

            it  is far from a  foregone conclusion that  a demand against

            Barlou constituted  a demand against  the United States.   As

            the district court observed,  a sum certain should  have been

            demanded  by   Coska  from   the  United  States   with  some

            specificity, irrespective of demands sent to joint or several

            or other tortfeasors.  



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Coska claims that  affirming the  dismissal of  her



            claim would  allow "mere technicalities" to  bar an otherwise



            well-made  claim.    All  of  the  information  necessary  to



            investigate  the claim,  Coska argues,  was contained  in the



            demand packet and  letters.  It is  the information available



            rather  than  the  form in  which  it  is  presented that  is



            crucial. See,  e.g., Corte-Real,  949 F.2d  at 486; see  also
                     ___   ____  __________                     ___  ____



            Santiago-Ramirez,  984 F.2d at  19 n.2.   However,  there was
            ________________



            essential information missing from the packet and the letters



            -- namely, the amount of damages being sought from the United



            States.    Cf.  Santiago-Ramirez,  984  F.2d  at  19  (notice
                       ___  ________________



            requirement  of 28  U.S.C.    2675  is  satisfied when  claim



            includes sufficient information to  investigate claim and the



            amount of damages sought).8   Had the plaintiff included that



            amount in  any  of  the  correspondence or  even  returned  a



            completed SF-95, which includes boxes for personal injury and



            total damages,  the situation  may have produced  a different



            outcome.  See, e.g., Corte-Real, 949 F.2d at 486-87.  This is
                      ___  ____  __________



            not a case of exalting form over substance, nor is  it a case



            of "bureaucratic overkill."  Cf. id. at 486.
                                         ___ ___



                                
            ____________________



            8.  We  reject  Coska's  argument  that  the  district  court

            effectively  merged the  statutory notice  requirement of  28

            U.S.C.    2675 and the presentment requirement of 28 C.F.R.  

            14.2(a).  This is a matter of subject matter jurisdiction.  A

            federal court has no jurisdiction to entertain a suit against

            the  United  States  unless  a  claimant  has  presented,  in

            writing,  a claim stating a sum certain.  See Corte-Real, 949
                                                      ___ __________

            F.2d  at 485; Gonzalez-Bernal v. United States, 907 F.2d 246,
                          _______________    _____________

            248 (1st Cir. 1990).



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Lastly,   Coska  argues  that  the  district  court



            impermissibly  relied on  the government's  repeated requests



            for  a  sum   certain  made  after  the   expiration  of  the



            limitations  period  in  coming  to its  decision.    Without



            addressing whether  Coska waived this argument,  we find that



            even without  the consideration of  the one  to two  requests



            made  after  the  limitations period  passed,  Coska's  claim



            fails.  The district court's  finding hardly "rested" on  the



            requests made after the  limitations period; it observed only



            that  the  government  gave  Coska  adequate  notice  of  the



            shortcomings  of  her  submissions  and  that  "perhaps"  the



            outcome would be different had such notice not been given. 



                        Affirmed.
                        Affirmed
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