Josephine Ianni, Individually and as the Next Friend of George Ianni v. United States of America and Winston Alan Bailey

Sixth Circuit

Josephine Ianni, Individually and as the Next Friend of George Ianni v. United States of America and Winston Alan Bailey

457 F.2d 804, 1972 U.S. App. LEXIS 10523

CourtCourt of Appeals for the Sixth Circuit

DecidedMarch 24, 1972

Docket71-1859

StatusPublished

Cited by14 cases

This text of 457 F.2d 804 (Josephine Ianni, Individually and as the Next Friend of George Ianni v. United States of America and Winston Alan Bailey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Josephine Ianni, Individually and as the Next Friend of George Ianni v. United States of America and Winston Alan Bailey, 457 F.2d 804, 1972 U.S. App. LEXIS 10523 (6th Cir. 1972).

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Opinion

PER CURIAM.

This action was filed in the district court under the Federal Tort Claims Act to recover for personal injuries and expenses allegedly resulting from a collision of vehicles. The district court dismissed the complaint on the ground that it was not filed within the 2-year period of limitations provided by 28 U.S.C. Sec. 2401(b). An implementing regulation provides that such a claim, required by the said statute to be filed within the 2-year period, must be in writing and must be for a sum certain.

The present claim arose from an accident involving a mail truck on August 17, 1968. The appellants’ attorney sent the government a letter in March 1969, stating that he had been retained and that he claimed an attorney’s lien. He did not demand a sum certain. It is asserted that the attorney later sent medical bills and reports within the 2-year period but the district court found, after an evidentiary hearing, that this *805 assertion was not supported by the evidence. As no claim in the form required by the statute and regulation had been presented within the 2-year period, the district court dismissed the action. The only issue before the district judge was one involving credibility with respect to the mailing of an appropriate claim within the prescribed period. The district judge’s finding on this issue is not clearly erroneous.

On appeal the appellant contends for the first time that the implementing regulation is invalid because it goes beyond the statute in requiring that a sum certain be set forth in the claim.

We are of the opinion, however, that the regulation is a valid one. 1

The judgment of dismissal by the district court is therefore affirmed.

1

. This is true because Sec. 2675(b) provides in substance that the amount sued for under the Tort Claims Act may not be in excess of the amount stated in the claim presented to the appropriate administrative agency except on the basis of newly discovered evidence or because of intervening acts. The statute clearly implies that a sum certain shall be set forth in the administrative claim.

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PER CURIAM.

This action was filed in the district court under the Federal Tort Claims Act to recover for personal injuries and expenses allegedly resulting from a collision of vehicles. The district court dismissed the complaint on the ground that it was not filed within the 2-year period of limitations provided by 28 U.S.C. Sec. 2401(b). An implementing regulation provides that such a claim, required by the said statute to be filed within the 2-year period, must be in writing and must be for a sum certain.

The present claim arose from an accident involving a mail truck on August 17, 1968. The appellants’ attorney sent the government a letter in March 1969, stating that he had been retained and that he claimed an attorney’s lien. He did not demand a sum certain. It is asserted that the attorney later sent medical bills and reports within the 2-year period but the district court found, after an evidentiary hearing, that this *805 assertion was not supported by the evidence. As no claim in the form required by the statute and regulation had been presented within the 2-year period, the district court dismissed the action. The only issue before the district judge was one involving credibility with respect to the mailing of an appropriate claim within the prescribed period. The district judge’s finding on this issue is not clearly erroneous.

On appeal the appellant contends for the first time that the implementing regulation is invalid because it goes beyond the statute in requiring that a sum certain be set forth in the claim.

We are of the opinion, however, that the regulation is a valid one. 1

The judgment of dismissal by the district court is therefore affirmed.

1

. This is true because Sec. 2675(b) provides in substance that the amount sued for under the Tort Claims Act may not be in excess of the amount stated in the claim presented to the appropriate administrative agency except on the basis of newly discovered evidence or because of intervening acts. The statute clearly implies that a sum certain shall be set forth in the administrative claim.

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457 F.2d 804, 1972 U.S. App. LEXIS 10523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/josephine-ianni-individually-and-as-the-next-friend-of-george-ianni-v-ca6-1972.

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