Kokaras v. United States

Opinion

USCA1 Opinion

November 23, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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              No. 92-1616

                         PETER A. KOKARAS AND DIANE KOKARAS,

                               Plaintiffs, Appellants,

                                          v.

                              UNITED STATES OF AMERICA,

                                      Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                     [Hon. Norman H. Stahl, U.S. District Judge]
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                                        Before

                              Torruella, Circuit Judge,
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                            Brown,* Senior Circuit Judge,
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                            Bownes, Senior Circuit Judge.
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                   David C.  Engel with whom Engel and Gearreald were on
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              brief for appellant.
                   Elaine   Marzetta   Lacy,  Assistant   United  States
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              Attorney,  with  whom  Jeffrey  R.  Howard, United  States
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              Attorney, was on brief for appellee.

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              *of the Fifth Circuit, sitting by designation.

BOWNES, Senior Circuit Judge.   This is an  appeal by
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            plaintiffs-appellants Peter  A.  Kokaras and  Diane  Kokaras,

            spouses, from  a dismissal of their  complaint, brought under

            the  Federal  Torts Claims  Act  (FTCA) for  lack  of subject

            matter jurisdiction  because of  the failure  to file  a sum-

            certain claim within the prescribed statutory period.  

                                          I
                                          I

                    On May 8, 1987, plaintiffs  sustained personal injury

            to themselves  and damage  to their  automobile  when it  was

            struck in the rear by a United States mail truck.  On June 2,

            1987, plaintiffs  filed  a Standard  Form  (SF) 95  with  the

            Postmaster at the  United States Post Office  in Hampton, New

            Hampshire.    On  line  10,  entitled  "Amount  of  Claim (in

            Dollars),"  the  figure  $2,906.61  was inserted  in  box  A,

            entitled, "Property Damage";  in box  B, entitled,  "Personal

            Injury,"  the words "to be  determined" were written.   Box C

            entitled,  "Total,"  was left  blank.1    Line 15,  entitled,

            "Signature of  Claimant," was  signed only by  Peter Kokaras.

            Plaintiffs were not represented by counsel at the time the SF

            95 was executed and filed.

                    In the  spring of 1988, plaintiffs  retained Attorney

            Alfred J. Cirome to represent them.  This was well within the

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            1Box C, entitled, "Wrongful  death" was also left blank.   It
            appears   that   plaintiffs    submitted   property    damage
            documentation   and  some  medical   documentation  with  the
            original form.

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two-year statutory period  for filing a  tort claim with  the

            Postal Service.  28 U.S.C.    2401(b).  No amended SF  95 was

            filed within  the two-year  period.  Attorney  Cirome entered

            into discussions,  both in person and on  the telephone, with

            agents  of  the  Postal  Service   in  an  effort  to  settle

            plaintiffs'  claim.   The  settlement  negotiations were  not

            fruitful.      During the

            course of the settlement discussions,  Attorney Cirome turned

            over to the Postal Service's agents medical bills incurred by

            the  plaintiffs along  with  medical diagnoses  and prognoses

            concerning  plaintiffs' injuries.   Based  on the  record, it

            appears that no sum-certain demand  was made either orally or

            in writing by Attorney Cirome.

                    New  counsel  was  obtained by  plaintiffs,2  and  on

            April 26, 1990,  suit was  brought against the  United States

            under  the Federal Torts Claims Act.  28 U.S.C.    2671-2680.

            The  Postal Service  denied  plaintiffs' claim  on August  2,

            1990, on the  ground that  it was invalid,  stating that  "it

            does not inform us to [sic] any dollar amount being claimed."

            Three  weeks   prior  to  the  Postal   Service's  denial  of

            plaintiffs' claim,  the United States  had filed a  motion to

            dismiss for lack of subject matter jurisdiction.  The  motion

            was predicated  on the  well-established rule that  a timely-

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            2Attorney David C. Engel  represented plaintiffs below and on
            appeal.

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filed sum-certain claim is a prerequisite for jurisdiction of

            a tort  action  against the  United  States.3   The  district

            court initially denied  the motion to dismiss.   The district

            judge, however, changed his mind after our decision in Corte-
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            Real v. United States, 949 F.2d 484 (1st Cir. 1991).
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                                          II
                                          II

                    We start our legal analysis with Corte-Real.  In that
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            case we  held  that the  administrative  claim stated  a  sum

            certain even though the  personal injury box, section 10B  of

            the SF 95, was filled out as follows:  "$100,000 plus because

            still treating  and out of work."  Id. at 486.  Plaintiff had
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            completed the  "Total" box,  section 10D,  by writing  in the

            figure "$100,000," without  qualification.  Id.  at 485.   We
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            held  that "[w]here as here a claim clearly states a specific

            sum and meets the sum certain requirement in all respects but

            for   concern  over  the   possible  detraction  of  improper

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            3The Federal Code of Regulations provides in pertinent part:

                            14.2   Administrative   claim;   when
                            14.2   Administrative   claim;   when
                    presented.
                    presented.
                           (a)  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, his
                    duly     authorized     agent    or     legal
                    representative, an executed Standard  Form 95
                    or other written notification of an incident,
                    accompanied by a claim for money damages in a
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                    sum  certain  for  injury   to  or  loss   of
                    ____________
                    property, personal injury,  or death  alleged
                    to have occurred by reason of the incident; .
                    . . .
                    28 C.F.R.   14.2 (1991) (emphasis added).

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surplusage of  this insubstantial  variety, we see  no reason

            not to strike  the surplusage rather than the  claim itself."

            Id. at 587.  The following language reflects our reasoning:
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                           We  agree fully with the Government as
                    to the  importance and absolute  necessity of
                    adherence to the sum certain requirement.  We
                    disagree, however, that plaintiff's  SF95, as
                    submitted,  was  so   deficient  as  to  fall
                    outside the parameters  of that  requirement.
                    The  SF95   did,  in  fact,  specify   a  sum
                    certain $100,000   in  both  boxes, and  this
                    figure was unqualified in the box stating the
                    total amount of the claim.  To be sure,  when
                    the $100,000 appeared in Section 10(B) it was
                    unfortunately    accompanied   by    language
                    suggesting the possibility of a higher claim.
                    The  Government  was   entitled  and   indeed
                    required, if  it  was  to  proceed  with  the
                    claim, to disregard this.  We think it should
                    have  done  so.    To  throw  out  the  claim
                    entirely,  as  other  than  one  for   a  sum
                    certain,  was,  on these  facts, bureaucratic
                    overkill.

            Id. at 486.
            ___

                    With respect to the  personal injury claim,  however,

            the case  before us  is not  one of  "bureaucratic overkill."

            Nowhere  on form  SF  95 is  a sum  certain for  the personal

            injuries stated.  Moreover, we  agree with the district court

            that  any  documentation  of  personal  injury submitted  was

            "disorganized and  confusing."   Some of the  bills submitted

            are duplicates, others are incomplete, and others reflect the

            balance due after insurance  payments.  This presentation did

            not lend itself to determination of a sum certain or even  an

            approximate total of damages claimed.

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Although  negotiations   ensued  between  plaintiffs'

            attorney  and  agents of  the  Postal  Service,  there is  no

            evidence in the  record that  a sum certain  was ever  stated

            orally or in writing by plaintiffs' attorney.  Moreover,  the

            affidavits of Attorney Cirome and  Postal Agent Dumont are in

            conflict.   Cirome states that  Dumont represented to  him on

            more than one  occasion, including on  May 5, 1989, at  which

            time Cirome  attests he submitted medical  reports and bills,

            that   the  plaintiffs'   claims   had  been   satisfactorily

            presented.  Postal Service  Agent Dumont states, by contrast,

            that he never advised  the plaintiffs or their representative

            that  the  claims  were   satisfactorily  presented.     More

            importantly, Agent Dumont attests:

                    Plaintiffs' August 7, 1990 submission  to the
                    court includes numerous  documents which  the
                    plaintiffs  never  submitted  to  the  Postal
                    Service  with   their  administrative  claim.
                    These  new documents  were  provided  to  the
                    Postal   Service  for   the  first   time  on
                    August 29, 1990.

            Because  the accident  happened  on May  8,  1987, any  bills

            submitted  to the Postal Service in 1990 would be well beyond

            the two-year limit for filing administrative claims.  

                    This  court  has  consistently held  that  a  timely-

            presented claim  stating a  sum  certain is  necessary for  a

            court to  have jurisdiction to  entertain a suit  against the

            United  States under the FTCA.   Corte-Real v. United States,
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            949 F.2d at  485-86;  Gonzalez-Bernal  v. United States,  907
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F.2d  246, 248 (1st Cir.  1990); Lopez v.  United States, 758
                                             _____     _____________

            F.2d 806, 809 (1st Cir. 1985).  The rule is the same in other

            circuits.   Cizek v. United States, 953 F.2d 1232, 1234 (10th
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            Cir. 1992);  Adkins v.  United  States, 896  F.2d 1324,  1325
                         ______     ______________

            (11th Cir. 1990); Montoya v. United States, 841 F.2d 102, 105
                              _______    _____________

            (5th  Cir. 1988); GAF Corp.  v. United States,  818 F.2d 901,
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            919 (D.C.  Cir. 1987);  Erxleben v.  United States, 668  F.2d
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            268,  272 (7th Cir. 1981);  Caton v. United  States, 495 F.2d
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            635, 638 (9th Cir. 1974); Bialowas v. United States, 443 F.2d
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            1047, 1049 (3rd Cir. 1971). 

                    The Fifth Circuit has  taken a broad view as  to what

            constitutes  the statement of a  sum certain.   In Molinar v.
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            United States, 515  F.2d 246,  249 (5th Cir.  1975), it  held
            _____________

            that  the total  bills  submitted  fulfilled the  sum-certain

            requirement.  And in Williams v. United States, 693 F.2d 555,
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            558  (5th Cir.  1982), it  held that  the itemized  claim for

            damages  as set forth in  the state court  complaint would be

            taken together with the administrative claim form to meet the

            notice requirements of the FTCA.  But even if we followed the

            lead  of the Fifth Circuit in regard to the personal injuries

            claim, not enough medical information was timely submitted to

            come  anywhere  near meeting  the  sum-certain jurisdictional

            requirement.    The  personal  injuries  claims submitted  by

            plaintiffs  can be characterized as the  Tenth Circuit did in

            Cizek v. United States, in which the plaintiff/appellant
            _____    _____________

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did   not  present   a  claim   containing  a
                    statement  of a  sum certain  of  the damages
                    sought,   which   would   have  allowed   the
                    government to make even a reasonable estimate
                    of the value of  [his] claim, until after the
                    limitations period had run.

            953 F.2d  at 1234.  We  hold that the district  court did not

            have  jurisdiction  to  entertain  the  plaintiffs'  personal

            injury claims.

                    It does  not necessarily  follow,  however, that  the

            extinguishment of the personal  injury claims also erases the

            property  damage  claim.   We  believe  that the  plaintiffs'

            property  damage  claim  is  severable  and  that  plaintiffs

            satisfactorily presented a sum  certain with respect to their

            property  damage claim.   At the  time they  originally filed

            their  SF 95,  plaintiffs  set  forth  the  specific  sum  of

            $2,906.61   in   the   box   entitled,   "Property   Damage."

            Accompanying the  SF 95 was a  corroborating repair estimate.

            Although the repair estimate was  somewhat lower than the sum

            certain  stated,  it included  the  name and  address  of the

            company  which  made  the  estimate.   This  information  was

            sufficient  for  purposes  of  investigation.     Unlike  the

            personal injury claim, the  government had the information it

            needed  to assess  plaintiffs' property  claim from  the date

            plaintiffs  filed their SF 95  form.  Moreover,  we note that

            prior to the  district court's issuance  of its opinion,  the

            government had moved "to reduce the ad damnum claimed in this
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            action  from  $500,000  to  the   amount  set  forth  in  the

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administrative  claim  of  $2,906.61."     This  was a  tacit

            admission by  the government  that the property  damage claim

            met the sum-certain jurisdictional requirement.

                    We believe that  the district court  went too far  in

            discarding the property damage  claim along with the personal

            injury  claim.  Our decision in  Corte-Real supports saving a
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            claim that  is flawed,  where the  government's investigatory

            needs are satisfied.  Indeed,  dismissing plaintiffs' certain

            and unwavering claim for  property damages would be indulging

            the same  type of "bureaucratic overkill"  that we criticized

            in  Corte-Real.   Because the sum-certain requirement was met
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            for the  property damage claim,  we hold that  plaintiffs are

            entitled to proceed on that claim.  The limit on recovery, if

            there is one, is the amount stated, $2,906.61.

                    Affirmed  in part,  reversed in  part.   Remanded for
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            further proceedings consistent with this opinion.
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                    No costs to either party.
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