Pond v. Majercik

Opinion

Pond v. Majercik CV-94-225-M 06/12/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia Pond, Individually and as Administratrix of the Estate of Scott Pond, Plaintiff,

v. Civil No. 94-225-M

Donald A. Maiercik, and Parker Aviation Enterprises, Inc., Defendants, and John McGrath, Executor of the Estate of Mary Jane McGrath, Defendant and Third Party Plaintiff,

v.

Nathan Pond, Gary Pond, William Batesole, James Parker, Jr., Lebanon Riverside Rotary, an Unincorporated Association, and the United States of America, Third Party Defendants.

O R D E R

In its order of September 29, 1995, the court granted the

United States' motion to dismiss the third-party wrongful death

and contribution claims brought by the Estate of Mary Jane

McGrath (the "McGrath Estate"). Presently before the court is

the McGrath Estate's motion for reconsideration of that order and

the government's motion to supplement that order. I. FACTUAL AND PROCEDURAL BACKGROUND

On July 6 , 1993, Parker Aviation, in conjunction with the

Lebanon Riverside Rotary Club, obtained a Certificate of Waiver

("Waiver") from the Federal Aviation Administration ("FAA")

authorizing specific deviations from otherwise applicable Federal

Aviation Regulations ("FARS") governing air traffic operations.

The Waiver permitted Parker Aviation to conduct an airshow at the

Lebanon (N.H.) Municipal Airport from July 23 through 25, 1993.

The FAA, following its customary practice, assigned an inspector

to the airshow to monitor compliance with the Waiver's terms.

On July 24, 1993, Mary Jane McGrath died while performing in

the airshow. The biplane she was piloting collided in mid-air

with Scott Pond, a parachutist. Scott Pond was killed in the

collision; as a result of the collision, the biplane crashed,

killing McGrath. Patricia Pond, the wife of Scott Pond and the

administrator of the Estate of Scott Pond (the "Pond Estate"),

sued the McGrath Estate, seeking damages for the death of Scott

Pond. The McGrath Estate, in turn, filed a third-party complaint

against, inter alia, the United States, claiming the FAA

negligently caused McGrath's death.

The McGrath Estate's amended third-party complaint, which

superseded the original third-party complaint when filed on July

2 2 1 , 1995, asserts two causes of action against the United States.

Count VI of the amended complaint asserts a cause of action for

wrongful death, seeking to hold the government directly liable to

the McGrath Estate for the death of Mary Jane McGrath. Count VII

of the amended complaint asserts a cause of action for

contribution under N.H. Rev. Stat. Ann. ("RSA") § 507:7-f & g,

seeking to hold the United States liable to the McGrath Estate to

the extent the McGrath Estate is found to be liable to the Pond

Estate and Patricia Pond, the plaintiffs in the principal action.

Both causes of action are brought against the government pursuant

to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-80.

In support of both of its causes of action, the McGrath

Estate alleges two separate types of negligence on the part of

the government. First, the McGrath Estate asserts that the FAA

was negligent in issuing the Waiver that allowed the airshow to

take place; the FAA inspector allegedly approved the application

for the Waiver without first ensuring that the application was

complete (the applicant allegedly failed to provide the names and

gualifications of all parachutists). Second, the McGrath Estate

alleges that the FAA inspector acted negligently in overseeing

3 the safe operation of the airshow after the Waiver had been

approved.

The government moved to dismiss the McGrath Estate's amended

third-party complaint, advancing two theories. First, the

government argued that the discretionary function exception to

the FTCA deprives this court of subject matter jurisdiction over

all claims alleging either negligent issuance of the Waiver or

negligent oversight of the airshow. Second, the government

argued that even if the discretionary function exception did not

bar the McGrath Estate's claims, this court still has no subject

matter jurisdiction over the wrongful death claim (Count VI)

because the McGrath Estate failed to exhaust its administrative

remedies before filing suit, as reguired by the FTCA. See 28

U.S.C. § 2 6 7 5 (a) .

In its objection to the government's motion to dismiss the

amended third-party complaint, the McGrath Estate advanced two

counter-arguments. First, it argued that both issuance of the

Waiver and oversight of the airshow involve mandatory, non-

discretionary duties on the part of the FAA inspector and, as a

result, his alleged negligence in performing those duties does

not fall within the discretionary function exception. Second,

the McGrath Estate argued that it need not exhaust its

4 administrative remedies before suing for wrongful death because

Count VI is a third-party action and, as such, falls within an

exception to the FTCA's exhaustion reguirement. 28 U.S.C. §

2675 (a) .

In its order of September 29, 1995, the court granted the

government's motion to dismiss both counts of the McGrath

Estate's amended third-party complaint. The court found that the

allegations of negligent oversight of the airshow fell within the

discretionary function exception to the FTCA and, as a result,

the court lacked subject matter jurisdiction over both counts to

the extent they were based on that theory. However, the court

found it unnecessary to address the guestion of whether the

alleged negligent issuance of the Waiver fell within the

discretionary function exception because it found that the

McGrath Estate had failed to allege that issuance of the Waiver

was the proximate cause of the injuries sustained by the Estate.

Therefore, the court dismissed both of the McGrath Estate's

causes of action to the extent they alleged negligent issuance.

In addition, the court concluded that even if both of the

McGrath Estate's causes of action were not otherwise barred, the

wrongful death cause of action (Count VI) was barred for failure

to exhaust administrative remedies. The court ruled that the

5 McGrath Estate's cause of action for wrongful death was not a

"third-party action" within the meaning of either 28 U.S.C.

§ 2675(a) or Federal Rule Civil Procedure 14, because it wasnot

an attempt to pass through to a third party all or part of the

liability asserted against the McGrath Estate by the plaintiffs

in the principal action. Rather, the wrongful death action

sought to hold the government directly liable for the McGrath

Estate's injuries. Because the McGrath wrongful death claim is

not a proper third-party action, and because the McGrath Estate

failed to exhaust its administrative remedies before bringing

suit, the court determined it was without subject matter

jurisdiction over Count VI of the amended third-party complaint.

See 28 U.S.C. § 2675 (a) .

In summary, the court's September 2 9, 1995 order granted the

government's motion to dismiss both counts asserted against it

for the following reasons. The court lacked subject matter

jurisdiction over Count VI, the wrongful death claim, because the

McGrath Estate failed to exhaust its administrative remedies. To

the extent Count VII, the contribution claim, alleged negligent

oversight, the court lacked subject matter jurisdiction over it

under the discretionary function exception to the FTCA. To the

extent Count VII alleged negligent issuance of the Waiver, the

6 McGrath Estate failed to state a claim upon which relief could be

granted because the court found that it did not sufficiently

allege legal causation.

II. DISCUSSION

In its motion to reconsider, the McGrath Estate does not

take issue with the court's dismissal of Counts VI and VII of the

amended third-party complaint to the extent they are based on the

theory of negligent oversight. The court, therefore, affirms

that portion of the September 29, 1995 order. The McGrath Estate

does, however, reguest the court to reconsider its ruling that

the wrongful death claim must be dismissed for failure to exhaust

administrative remedies. In addition, the McGrath Estate

contends that the court erred when it found that the third-party

complaint did not sufficiently allege a causal link between

issuance of the Waiver and the mid-air collision, because the

amended third-party complaint did in fact assert legal causation.

A. Wrongful Death Claim and the Exhaustion Requirement

As a jurisdictional prerequisite to initiating a suit under

the FTCA, a claimant must first exhaust its administrative

remedies with the appropriate federal agency. 28 U.S.C.

7 § 2675(a); Cotto v. United States, 993 F.2d 274, 280 (1st Cir.

1993). There is, however, one statutory exception to the FTCA's

exhaustion requirement; the requirement "shall not apply to such

claims as may be asserted under the Federal Rules of Civil

Procedure by third-partv complaint, crossclaim, or counterclaim."

28 U.S.C. § 2675(a) (emphasis added). Prior to initiatinq this

suit,1 the McGrath Estate did not exhaust its administrative

remedies.

The McGrath Estate arques that both of its causes of action

aqainst the qovernment fall within the "third-party complaint"

exception to the FTCA's exhaustion requirement. Count VII of the

McGrath Estate's amended third-party complaint clearly falls

within the exception for third-party complaints because it is a

cause of action for contribution brouqht pursuant to Federal Rule

of Civil Procedure 14. Count VI of the amended third-party

complaint (wronqful death), on the other hand, is not a proper

third-party action and does not fall within the exception.

1 The McGrath Estate claims that since filinq suit aqainst the United States it has exhausted its administrative remedies. However, if a plaintiff does not exhaust its administrative remedies before initiatinq suit, but exhausts after suit is filed, the court must still dismiss that suit for lack of subject matter jurisdiction. McNeil v. United States, 508 U.S. 106 (1993) . The exception for third-party complaints does not include

actions that are not brought pursuant to Federal Rule of Civil

Procedure 14. Keene Corp. v. United States, 700 F.2d 836, 842-43

(2d Cir.), cert, denied, 464 U.S. 864 (1983). A third-party

claim may be asserted under Rule 14 only when the third party's

liability is in some way dependent on the outcome of the main

claim or when the third party is secondarily liable to the

defendant. 6 Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1446 (1990). "The crucial

characteristic of a Rule 14 claim is that defendant is attempting

to transfer to the third-party defendant the liability asserted

against him by the original plaintiff. The mere fact that the

alleged third-party claim arises from the same transaction or set

of facts as the original claim is not enough." Id.

Count VI of the amended third-party complaint simply claims

that the United States is directly liable to the McGrath Estate

for the death of Mary Jane McGrath; it does not seek to transfer

liability asserted against the McGrath Estate by Patricia Pond or

the Pond Estate, the plaintiffs in the principal action. Thus,

McGrath's wrongful death claim is not a legitimate third-party

claim and does not fall within the exception to the FTCA's

exhaustion reguirement. This conclusion is further bolstered by the policy

underlying the FTCA's exception to the exhaustion requirement.

"The reasons for allowing a third-party complaint without a prior

administrative claim do not exist [as to Count VI] (e.g., a

defendant/third-third party plaintiff who is forced into a

lawsuit and has no choice but to assert claims against those who

might be liable for the acts he is charged wit h ) ." Northridge

Bank v. Community Eve Care Ctr., Inc., 655 F.2d 832, 836 (7th

Cir. 1981). Because the McGrath Estate's wrongful death claim is

not a third-party action within the meaning of 28 U.S.C.

§ 2675(a) or Rule 14, the court affirms its decision that Count

VI of the amended third-party complaint must be dismissed for

lack of subject matter jurisdiction.

B. Contribution Claim and Rule 14

Because the court lacks subject matter jurisdiction over

Count VI and lacks subject matter jurisdiction over Count VII to

the extent it alleges negligent oversight on the part of the FAA,

the only remaining question is whether the court properly

dismissed Count VII to the extent it alleges negligent issuance

of the Waiver. In support of its motion to reconsider the

dismissal of its contribution action, the McGrath Estate

10 contends, correctly, that the court erroneously consulted the

original third-party complaint, and not the amended third-party

complaint then in effect, when it determined that the McGrath

Estate did not adequately allege a causal connection between

issuance of the Waiver and the mid-air collision. Because legal

causation is alleged in the amended third-party complaint, the

argument continues, the court cannot dismiss Count VII for

failure to state a claim upon which relief can be granted and

must address the question of whether the alleged negligent

issuance falls within the discretionary function exception to the

FTCA.

As noted, the McGrath Estate is correct in its assertion

that the court erred in its September 29, 1995 decision when it

examined the original third-party complaint, which had been

superseded by the amended third-party complaint, for allegations

of proximate cause. The Estate is also correct in pointing out

that the amended third-party complaint does appear to allege a

causal connection, albeit a tenuous one, between issuance of the

Waiver and the collision that killed Mary Jane McGrath and Scott

Pond. The McGrath Estate is incorrect, however, in its assertion

that the court's error requires a re-examination of the

discretionary function question and reinstatement of the

11 contribution claim against the government. Rather, the McGrath

Estate's contribution action still must be dismissed for failure

to state a claim upon which relief can be granted, but for a

different reason.

In order to bring a third-party contribution action pursuant

to RSA 507:7-f & g and Federal Rule of Civil Procedure 14, as the

McGrath Estate seeks to do here, a third-party plaintiff must

first obtain the express consent of the plaintiffs in the

principal action. Connors v. Suburban Propane Co . , 916 F. Supp.

73 (D.N.H. 1996); Pond v. Maiercik, No. C94-225-M, slip op.

(D.N.H. Feb. 7, 1996). Indeed, a party's cause of action for

contribution under RSA 507:7-f & g does not arise, or the statute

of limitations begin to run, until the plaintiff consents or one

of several other statutory conditions is satisfied. N.H. Rev.

Stat. Ann. § 507:7-f & g.

Here, Patricia Pond and the Pond Estate, the plaintiffs in

the principal action, have not consented to impleader of the

United States,2 and none of the other statutory prereguisites has

been met. Therefore, Count VII of the McGrath Estate's amended

third-party complaint, which seeks contribution from the

2 Indeed, at the pre-trial conference held on June 4, 1996, plaintiffs expressly declined to consent to joinder of the United States.

12 government under RSA 507:7-f & g, fails to state a claim upon

which relief can be granted and must be dismissed. Fed. R. Civ.

P. 12(b)(6). The court does note, however, that dismissal of

Count VII, to the extent it alleges negligent issuance of the

Waiver, is without prejudice to the McGrath Estate's right to

bring a separate action for contribution against the United

States at such time it becomes ripe for adjudication under the

terms of RSA 507:7-f & g.

III. CONCLUSION

Upon reconsideration, the court modifies its order of

September 29, 1995 to acknowledge the allegation of causation

contained in the McGrath Estate's amended third-party complaint.

In addition, the court affirms its decision to dismiss Count VI

of the amended third-party complaint for lack of subject matter

jurisdiction. Finally, the court affirms its decision to dismiss

Count VII of the amended third-party complaint for failure to

state a claim upon which relief can be granted, albeit for

reasons not addressed in the prior order.

13 SO ORDERED.

Steven J. McAuliffe United States District Judge

June 12, 1996

cc: Michael G. Gfroerer, Esq. David B. Kaplan, Esq. Jeffrey B. Osburn, Esq. Garry R. Lane, Esq. Charles W. Grau, Esq. Mark Scribner, Esq. Michael G. McQuillen, Esq. Douglas J. Miller, Esq. Ronald L. Snow, Esq. James C. Wheat, Esq. David H. Bradley, Esq.