Chomic v. U.S.

• Decision Date: 28 July 2004
• Docket Number: No. 03-11742.,03-11742.
• Citation: 377 F.3d 607
• Parties: Jennie E. CHOMIC, Personal Representative of the Estate of James J. Gorjup, Deceased, Plaintiff-Appellant, v. UNITED STATES of America; United States Department of Veterans Affairs, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 607

377 F.3d 607

Jennie E. CHOMIC, Personal Representative of the Estate of James J. Gorjup, Deceased, Plaintiff-Appellant, v. UNITED STATES of America; United States Department of Veterans Affairs, Defendants-Appellees.

No. 03-11742.

United States Court of Appeals, Sixth Circuit.

Argued April 20, 2004.

Decided and Filed July 28, 2004.

Appeal from the United States District Court for the Western District of Michigan, Robert Holmes Bell, Chief Judge.

Jules B. Olsman, Robert F. James (argued and briefed), Olsman, Mueller & James, Berkley, MI, for Plaintiff-Appellant.

Ronald M. Stella (briefed), J. Joseph Rossi (argued), James L. Santelle, U.S. Attorney's Office for the Western District of Michigan, Grand Rapids, MI, for Defendant-Appellee.

Before: RYAN, DAUGHTREY, and CLAY, Circuit Judges.

OPINION

RYAN, Circuit Judge.

Jennie E. Chomic, the Personal Representative of the Estate of James Gorjup, brought suit against the United States under the Federal Tort Claims Act (FTCA), based on the events leading up to Gorjup's death. Although Chomic named the Department of Veterans Affairs as a defendant, a federal agency cannot be sued under the FTCA. Chomic's exclusive remedy is an action against the United States. See 28 U.S.C. § 2679(a) and (b)(1).

Chomic appeals from two orders the district court entered, which disposed of all of her claims. The first granted the defendants' Motion for Reconsideration and granted, in part, the defendants' Motion to Dismiss. The second granted the defendants' Motion for Summary Judgment and dismissed the plaintiff's claim in its entirety. At issue in this appeal is whether the statute of limitations found in the FTCA bars the plaintiff's suit. We hold that it does and therefore we shall affirm the judgment of the district court.

I.

This case is significant in that it presents this court with the opportunity to address for the first time the issue of when a claim for wrongful death accrues for purposes of the FTCA where both an injury and its cause are known prior to death and where state law provides a derivative, rather than an independent, cause of action for wrongful death.

The facts are not in dispute insofar as this appeal is concerned. That is, taking the facts as alleged by the plaintiff, the government argues that the plaintiff's suit was properly dismissed because she failed to file an administrative claim within the two-year statute of limitations period applicable to claims brought under the FTCA.

On October 21, 1998, while Gorjup was a resident at the Department of Veteran Affairs Medical Center in Michigan, he fell and suffered a hip fracture. Chomic alleges that the fall was the result of the negligence and/or medical malpractice of the government's agents. The plaintiff further alleges that the injuries arising from this fall were a proximate cause of Gorjup's death on November 23, 1998.

The district court pointed out that "Mr. Gorjup had been declared legally incapacitated by reason of mental illness prior to his fall on October 21, 1998." Chomic was appointed as Gorjup's full guardian on May 8, 1997, and on May 11, 1999, Gorjup having died, Chomic was appointed as the Personal Representative of Gorjup's estate.

The district court noted that Chomic "made a formal administrative claim against the United States on behalf of [Gorjup] on November 17, 2000. The claim was filed within two years of Mr. Gorjup's death, but not within two years of the injuries he suffered on October 21, 1998." The Department of Veterans Affairs denied the claim. On February 19, 2002, Chomic filed suit against the United States under the FTCA, seeking damages under Michigan's Wrongful Death Act.

The government filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and/or (6) "on the grounds that this action [was] barred by the two-year statute of limitations in 28 U.S.C. § 2401(b)." The United States District Court for the Western District of Michigan initially denied this motion, but after the government moved for reconsideration, the court vacated its earlier "opinion and order" and granted, in part, the government's motion to dismiss. The court stated that it was granting "[t]he government's motion to dismiss ... to the extent the government seeks a ruling that the cause of action accrued on [the date of Gorjup's injury]." The court denied the government's motion to the extent it sought dismissal of the plaintiff's FTCA claim because "[t]he question of equitable tolling ... raises factual issues that have not been fully presented to this Court."

The government then filed a Motion for Summary Judgment based on 1) the plaintiff's failure to file an administrative claim within the statute of limitations period and 2) the lack of a basis for equitable tolling. The district court granted this motion on December 31, 2002, and dismissed Chomic's claim in its entirety. Chomic appealed.

II.

We review de novo a district court's grant of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Montgomery v. Huntington Bank, 346 F.3d 693, 697-98 (6th Cir.2003). Likewise, we review de novo a district court's decision to grant summary judgment based on a purely legal question. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir.2002).

III.

A.

Chomic argues that the district court erroneously concluded that the plaintiff's cause of action accrued on the date of Gorjup's injury, rather than on the date of his death. She relies on this court's holding in Kington v. United States, 396 F.2d 9 (6th Cir.1968), to argue that "under the FTCA, `the claim for wrongful death accrues upon the date of death.'" Chomic asks this court to disregard the nature of a state's cause of action for wrongful death and hold unequivocally "that the date of accrual for wrongful death actions brought under the FTCA is the date of death." We decline to do so.

The FTCA grants a limited waiver of sovereign immunity and allows tort claims against the United States "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (1994). In other words, "[t]he Act waives sovereign immunity to the extent that state-law would impose liability on a private individual in similar circumstances." Young v United States, 71 F.3d 1238, 1241 (6th Cir.1995) (internal quotation marks and citation omitted). Nevertheless, the FTCA provides, in pertinent part:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues....

28 U.S.C. § 2401(b) (emphasis added).

The Supreme Court explained that this limiting provision

is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims....

We should also have in mind that the Act waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended.... Neither, however, should we assume the authority to narrow the waiver that Congress intended.

United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (internal citations omitted). The Supreme Court noted, however, that legislative history is silent as to "when a tort claim `accrues' within the meaning of 28 U.S.C. § 2401(b)." Id. at 119 n. 6, 100 S.Ct. 352.

In actions based on negligence or medical malpractice, the Supreme Court has held that federal law controls as to when a claim accrues under the FTCA. Id. at 123, 100 S.Ct. 352. In Kubrick, the issue before the Supreme Court was "whether [a tort claim against the United States] `accrues' within the meaning of the [FTCA] when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice." Id. at 113, 100 S.Ct. 352. The plaintiff in that case filed suit under the FTCA "alleging that he had been injured by negligent treatment in [a] VA hospital." Id. at 115, 100 S.Ct. 352. The dispute in that case was whether, for purposes of the FTCA, Kubrick's claim accrued in 1969 when he "was aware of his injury and its probable cause," or in 1971, when he learned that the treatment causing his injury constituted medical malpractice. Id. at 118, 100 S.Ct. 352. The Court held that a negligence or medical malpractice claim accrues within the meaning of § 2401(b) when a plaintiff knows of both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute negligence or medical malpractice. Id. at 121-23, 100 S.Ct. 352. The Court reasoned:

A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.

Id. at 123, 100 S.Ct. 352.

It is also generally accepted that federal law controls when a wrongful death claim accrues under the FTCA. See, e.g., Johnston v. United States, 85 F.3d 217, 222 (5th Cir.1996); Miller v. United States, 932 F.2d 301, 303 (4th Cir.1991); Fisk v. United States, 657 F.2d 167, 170 (7th Cir.1981); Kington, 396 F.2d at 11. Thus, the question we must answer is when, as a matter of federal law, a claim for wrongful death accrues for purposes of § 2401(b) where both an injury and its cause are known prior to death and where state law provides a derivative, rather than an independent, cause of action for wrongful death. We have not previously addressed this question.

In Kington, the issue before ...