WO
Barney McDonald, ) No. CV-19-08303-PHX-SPL ) ) Plaintiff, ) ORDER vs. ) ) ) United States Postal Service, et al., ) ) Defendants. ) ) )
Before the Court is Defendant United States of America’s Motion for Partial Summary Judgment (Doc. 61) in which Defendant seeks partial summary judgment as to the amount Plaintiff Barney McDonald can potentially recover in this Federal Tort Claims Act litigation. The Motion has been fully briefed and is ready for review.1 (Docs. 61, 69, 74). After reviewing the parties’ briefing, the Court issues the following Order denying Defendant’s Motion. Plaintiff Barney McDonald (“Plaintiff”) is the son and personal representative of Gerald McDonald (the “Decedent”). (Doc. 35 at 1). In November 2017, the Decedent was involved in a traffic accident with Cynthia Cunha, an employee for the United States Postal Service (“USPS”). (Id. at 2–3). The Decedent was operating a motorcycle and Cunha was
1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). operating a USPS mail truck. (Id. at 3). Plaintiff alleges that Cunha failed to yield the right- of-way to the Decedent and, as a result, the Decedent sustained fatal injuries trying to avoid a collision with the mail truck. (Id.). Plaintiff brought this action on October 16, 2019, asserting a claim for negligence pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. (Doc. 1).2 Originally, Plaintiff named as defendants Cunha, the USPS, the United States of America, and certain other Unknown Parties. (Id.). On July 30, 2020, this Court dismissed Cunha, the USPS, and the Unknown Parties (Doc. 34), leaving the United States of America as the only defendant in this matter. Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s case on which that party will bear the burden of proof at trial. See id. at 322– 23. When considering a motion for summary judgment, a court must view the factual record and draw all reasonable inferences in a light most favorable to the nonmoving party. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). The FTCA, 28 U.S.C. §§ 1346, 2671–80, “provides a limited waiver of immunity for causes of action against the United States arising out of certain torts committed by federal employees acting within the scope of their employment.” Voreis v. United States, No. CV 09-300 TUC FRZ, 2014 WL 12644024, at *4 (D. Ariz. Mar. 28, 2014) (citing United States v. Orleans, 425 U.S. 807, 813 (1976)). The FTCA vests the federal district
2 Plaintiff has since filed three amended complaints. (Docs. 13, 23, 35). courts with exclusive jurisdiction over such suits. D.L. by & through Junio v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017) (citation omitted). Before filing an FTCA action in federal court, a plaintiff “must exhaust the administrative remedies for his claim” by presenting his claim to the appropriate Federal agency. Id. (citing 28 U.S.C. § 2675(a)). “A claim is deemed presented for purposes of § 2675(a) when a party files (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.” Blair v. I.R.S., 304 F.3d 861, 864 (9th Cir. 2002) (internal quotations omitted) (citation omitted). “An administrative claim is deemed exhausted once the relevant agency finally denies it in writing, or if the agency fails to make a final disposition of the claim within six months of the claim’s filing.” Junio, 858 F.3d at 1244 (citing § 2675(a)). “The FTCA’s exhaustion requirement is jurisdictional and may not be waived.” Id. (citing Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992)). Here, it is undisputed that Plaintiff properly exhausted the administrative remedies for his claim. On April 4, 2019, Plaintiff served a completed Standard Form 95 (“SF-95”), cover letter, and demand letter on Defendant USPS. (Doc. 35 at 2). The SF-95 and attached letters described the injuries alleged and included a sum-certain damages claim. (Doc. 66- 1 at 1). Specifically, Plaintiff asserted claims for property damage, personal injury (including medical costs and pain and suffering), and wrongful death. (Id.). Plaintiff included sum-certain damages amounts for each claim and for their combined total: Box 12a. Property Damage: $1,445.00; Box 12b. Personal Injury: $683,938.78 (medical) and $1,000,000.00 (pain and suffering); Box 12c. Wrongful Death: $314,616.22; Box 12d. Total: $2,000,000.00. (Id.). The administrative claim was deemed exhausted when Defendant USPS failed to make a final disposition of the claim within six months. (Doc. 35 at 2); see § 2675(a) (“The failure of an agency to make final disposition of a claim within six months after it is filed shall . . . be deemed a final denial of the claim.”). Again, Defendant does not dispute Plaintiff’s exhaustion of administrative remedies. Instead, Defendant’s Motion seeks partial summary judgment as to the maximum amount recoverable by Plaintiff for the wrongful death damages. (Doc. 61 at 6). It is true that, “[i]n an FTCA action, the claimant may not seek damages in excess of those demanded in the administrative claim.” Salzwedel v. United States, No. CV-16- 00501-TUC-RM, 2018 WL 460892, at *6 (D. Ariz. Jan. 18, 2018) (quoting 28 U.S.C. § 2675(b)). The statute provides for two exceptions: (i) “where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency” or (ii) “upon allegation and proof of intervening facts, relating to the amount of the claim.” § 2675(b). Neither exception is at issue here, as Plaintiff is not seeking an amount in excess of those demanded in the administrative claim. Rather, Defendant argues that Plaintiff’s maximum recovery “is relative to each claim asserted in the SF-95, not to the cumulative total of all claims asserted.” (Doc. 61 at 5). Defendant contends that, under § 2675(b), Plaintiff’s recovery on his wrongful death claim is limited to $314,616.22 even though the cumulative total of his claims is $2,000,000. (Id. at 6). Defendant cites primarily to Caidin v. United States, 564 F.2d 284 (9th Cir. 1977) to support its argument. In that case, the plaintiff brought a negligence claim against the United States on his own behalf and on behalf of a class of similarly situated shareholders. Caidin, 564 F.2d at 286. The claim sought $100 million in damages for the class as a whole. Id. On appeal, the Ninth Circuit affirmed the district court’s dismissal of the case because the plaintiff failed to provide any evidence that he had authorization to file on behalf of the other shareholders—which violated regulations requiring such proof of authorization. Id. at 286–87. The Ninth Circuit held that: Since the major reason for the administrative claim requirement is to facilitate settlement of cases, we feel it necessary to require that the existence of such authority be asserted contemporaneously with the filing of the claim by one who files on behalf of a claimant. In the absence of an assertion of such authority the ability of the United States to negotiate a settlement is impeded. Id. at 286. Of particular importance to the present case, the Ninth Circuit further held that dismissal of the plaintiff’s own claim was also appropriate because the plaintiff failed to specify a sum certain in his administrative claim. Id. at 287. The $100,000,000 figure stated in the administrative filing was the amount requested for the class as a whole; thus, it gave “no indication of the specific damages” claimed by the plaintiff as an individual. Id. Therefore, the $100,000,000 sum certain was “of no use in guiding settlement talks with [the plaintiff] individually” and the plaintiff’s case had to be treated “as if no administrative claim had ever been filed.” Id. In arguing for Caidin’s application to the present case, Defendant first points out that Plaintiff made two separate and distinct claims on the SF-95: a survival statute claim and a wrongful death claim. 3 It is true that these claims are considered separate and distinct claims under Arizona law. See Gandy v. United States, 437 F.Supp.2d 1085, 1086 (D. Ariz. 2006) (citing Barragan v. Super. Ct. of Pima Cnty., 470 P.2d 722, 724 (Ariz. Ct. App. 1970) (“A wrongful death claim and a survival claim are separate claims arising from the same incident.”). A survival statute claim “provides for recovery of damages sustained by the decedent from the time of injury until her death” and “passes from the decedent to the personal representative, and becomes an asset of the estate.” Id. at 1087. A wrongful death claim, on the other hand, “is neither continuation of the decedent’s claim, nor continuation of the survival claim.” Id. Instead, it “compensates statutory beneficiaries for their injuries, as opposed to a survival claim which compensates the decedent’s estate.” Id. “[W]rongful death damages are statutorily limited to injuries ‘resulting from the death,’ . . . which may
3 The parties dispute how these two claims are divided. According to Defendant, the survival statute claim—on behalf of the Estate—encompasses the claims for property damage ($1,445), for medical expenses ($683,938.78), and for the Decedent’s pain and suffering ($1,000,000). Plaintiff responds that he is unsure how Defendant arrived at this “obscure” split and contends that the pain and suffering claim is made on his behalf, i.e., as part of the wrongful death claim on Plaintiff’s own behalf. Because this Court finds that only the total sum certain amount—$2,000,00—is relevant in determining the maximum amount recoverable by Plaintiff under § 2675(b), it is unnecessary to address this dispute between the parties. include the decedent’s prospective earning capacity; the loss of companionship, comfort, and guidance caused by the death; and the survivor’s emotional suffering, but not the decedent’s own pain and suffering.” Walsh v. Advanced Cardiac Specialists Chartered, 229 Ariz. 193, 196 (2012) (citations omitted). Defendant belabors that these are two separate and distinct claims in order to establish that there are two distinct claimants here: the Decedent’s Estate and Plaintiff. The survival statute claim is brought by Plaintiff, in his capacity as personal representative, on behalf of the Decedent’s Estate. The wrongful death claim is also brought by Plaintiff, in his capacity as the surviving son and personal representative, on behalf of the Decedent’s statutory beneficiaries which, in this case, is Plaintiff himself. Having clearly identified two claimants, Defendant argues that, under Caidin, the total figure for their combined claims—here, $2,000,000—“is insufficient to set the boundaries for negotiation (and judgment) as to any one specific claim.” (Doc. 61 at 6). In other words, the $2,000,000 figure is akin to the $100,000,000 figure in Caidin—that is, it failed to put Defendant in a position to adequately negotiate a settlement with Plaintiff on the wrongful death claim because it represented a damages figure for more than just one claimant. The Court finds that Defendant overstates the Ninth Circuit’s holding in Caidin. Caidin’s holding centered around the fact that the plaintiff was not an authorized agent or legal representative of the other purported class members. Caidin, 564 F.2d at 286–87. As a result, his administrative claim was reduced to one brought strictly on his own behalf. Id. And because the $100,000,000 figure stated in the claim gave no indication of the specific damages claimed by the plaintiff as an individual, the claim failed to specify a sum certain and dismissal was appropriate. Id. In other words, the primary issue was plaintiff’s lack of authorization; any issues with the damages figure provided on the administrative claim were merely consequential to the authorization problem. But Defendant argues that Caidin stands for the proposition that “a total figure for multiple claims is insufficient to set the boundaries for negotiation (and judgment) as to any one specific claim.” (Doc. 61 at 5). Under Defendant’s interpretation, the $100,000,000 figure would never satisfy the sum certain requirement—even if the plaintiff proved he was authorized to file the claim on the others’ behalf—unless it was further broken down into sum certain claims for each class member. This Court cannot read Caidin so broadly. The Ninth Circuit simply did not reach the question of whether the plaintiff’s $100,000,000 damages claim would have satisfied the sum certain damages requirement had plaintiff been authorized to file claims on behalf of the other class members. Caidin’s focus on the plaintiff’s lack of authorization to file on the others’ behalf factually distinguishes Caidin from the present case. Here, it is undisputed that Plaintiff was the surviving son of the Decedent and personal representative of the Decedent’s Estate. Therefore, he was fully authorized to bring the survival statute claim on behalf of the Estate and the wrongful death claim on his own behalf. In Caidin—after the plaintiff’s lack of authorization removed the other class members from the picture—the Government was left without any idea of what portion of the $100,000,000 figure represented the plaintiff’s sum certain damages claim. The plaintiff “essentially omitted any statement of his own damages” when he specified a dollar amount on behalf of a class of claimants, rather than an amount for himself. Blair, 304 F.3d at 867 (discussing Caidin). Here, Plaintiff’s administrative claim posed no such uncertainties for Defendant. It put Defendant on notice that there were two distinct claimants—the Estate and Plaintiff himself—and that their combined sum certain damages amount was $2,000,000. See Tubbs v. United States, No. CV 09-06311 MMM (FFMx), 2010 WL 11512184, at *6 (C.D. Cal. July 30, 2010) (distinguishing from Caidin) (“This case does not involve a denial of a plaintiff’s attempt to represent a class; the type of uncertainty regarding damages that follows a conversion of a class action to an individual action is simply not present here.”). Setting Caidin aside, the question ultimately before this Court is whether Plaintiff is bound not only by the aggregate amount of his claim ($2,000,000), but also by its various subdivisions. The Ninth Circuit has not directly addressed this question. See Resnansky v. United States, No. 13-cv-05133-DMR, 2015 WL 1968606, at *3 (N.D. Cal. May 1, 2015) (“The Ninth Circuit has yet to issue significant guidance regarding Section 2675(b).”). Defendant has not provided citations to any other cases addressing the issue and this Court’s review of caselaw did not uncover any cases standing for Defendant’s position. The Court did, however, find an instance in which another court rejected an argument very similar to Defendant’s. In Funston v. United States, the plaintiff’s administrative claim sought $450,000 which was broken down into claims for lost earnings, medical expenses, lost future earning capacity, and pain and suffering. 513 F.Supp. 1000, 1005–07 (M.D. Pa. 1981). The United States District Court for the Middle District of Pennsylvania rejected the Government’s argument that § 2675(b) bound the plaintiff to sue in court for the same amounts for each subdivision of his claim. Id. at 1007. The Court found the Government’s contention to be “contrary to the clear language of the statute” which states only that a plaintiff cannot request “any sum in excess of the amount of the claim presented to the federal agency,” but says nothing about the component parts of the claim. Id. This Court finds similarly—that Plaintiff’s maximum recovery is bound only by the cumulative total of the claims asserted on his administrative claim ($2,000,000), and not by the claim’s various subdivisions. This finding is consistent with the purpose4 of § 2675(b), “which ‘is to put the government on notice of its maximum potential exposure to liability’ . . . so that it ‘will be in a position to make intelligent settlement decisions.’” Salzwedel, 2018 WL 460892, at *7 (citing Zurba v. United States, 318 F.3d 736, 743 (7th Cir. 2003) and Allgeier v. United States, 909 F.2d 869, 878 (6th Cir. 1990)). Plaintiff’s SF- 95 described the injuries at issue when it listed claims for property damage, medical expenses, pain and suffering, and wrongful death, and it provided a sum certain damages
4 28 U.S.C. § 2672 provides for at least two other purposes of the sum certain requirement, neither of which are directly impeded by this Court’s holding. First, the sum certain amount dictates whether the claim may be settled by the Federal agency without involving the Attorney General. See § 2672 (providing that “any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his designee”). Second, the sum certain amount dictates whether any payment on the claim will come from the agency’s budget. See id. (providing that “[a]ny award, compromise, or settlement in an amount of $2,500 or less . . . shall be paid by the head of the Federal agency concerned out of appropriations available to that agency”). total when it asserted the total value of the claims as $2,000,000. This put Defendant on notice of the types of claims at issue and, more importantly, of its maximum potential exposure to liability. Defendant’s ability to make intelligent settlement decisions was not undermined by the uncertainty surrounding how the $2,000,000 figure would be divided between the two claimants—the Estate and Plaintiff—and among the claim’s various subdivisions. The First Circuit’s holding in Lopez v. United States, 758 F.2d 806 (1st Cir. 1985), shows that while the sum certain damages figure asserted in the administrative filing sets a hard ceiling on what the plaintiff can recover on all his or her claims, there is somewhat more flexibility in determining the exact claims that are ultimately brought in federal court to reach that sum certain amount. In Lopez, the plaintiff filed an administrative claim for $850,000 for personal injuries. Lopez, 758 F.2d at 808. When the claim was brought to federal court, the plaintiff’s complaint repeated the demand for $850,000, but also sought an additional $1.6 million for mental damages. Id. The district court correctly granted the Government’s motion to reduce the amount demanded in the complaint on the grounds that the plaintiff was limited to the amount asserted in his administrative claim. Id. At trial, however, the district court excluded evidence of mental damages altogether, finding that the plaintiff’s “sum certain for the physical injuries claimed on his administrative form was $850,000, and so the sum certain for his other personal injury claims, [i.e., his claim for mental damages,] necessarily was zero.” Id. On appeal, the First Circuit overturned the district court’s exclusion of mental damages evidence, finding that § 2675(b) limited only the amount recoverable and not the substantive claims alleged. Id. at 810. The First Circuit held that the plaintiff’s administrative claim for personal injuries gave the Government sufficient notice of his mental damages claim because his personal injuries included a brain concussion and post traumatic headaches. Id. The fact that the plaintiff did not explicitly include a mental damages claim on his administrative form did not preclude him from amending his complaint to include a request for mental damages, so long as the total damages sought for the personal injury and mental damages claims combined to be 1 $850,000 or less. /d. at 809-11. While Plaintiff in this case is not attempting to change or add to his claims, Lopez is instructive in that it shows that how a plaintiff's claims add together to reach the sum 4) certain amount is less important; what matters is that the plaintiff sufficiently put the Federal agency on notice of the types of injuries and claims at issue, and that the plaintiff provided a sum certain amount that indicates to the Federal agency its maximum potential exposure to liability. This Court finds that Plaintiff did so in this case and rejects Defendant’s argument that Plaintiff's recovery should be limited anymore than § 2675(b) demands. Plaintiff may seek damages in excess of $314,616.22 on the wrongful death claim, so long as Plaintiff does not seek total damages for all the claims in excess of $2,000,000. In sum, Defendant has failed to show that partial summary judgment in its favor is appropriate on the amount Plaintiff can potentially recover on his wrongful death claim. Section 2675(b) limits Plaintiff's recovery to the total amount claimed in his administrative claim: $2,000,000. It does not further limit Plaintiff's recovery with respect to each individual component claim. Accordingly, IT IS ORDERED that Defendant’s Motion for Partial Summary Judgment (Doc. 61) is denied. 71 Dated this 27th day of January, 2022.
United States District didge