Mossow by Mossow v. U.S., 92-1227

Citation987 F.2d 1365
Decision Date15 March 1993
Docket NumberNo. 92-1227,92-1227
PartiesJames MOSSOW, a minor by Mary Jane MOSSOW as mother and natural guardian, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert W. Rischmiller, Minneapolis, MN, argued (Roger J. Aronson, on the brief), for appellant.

Kenneth W. Saffold, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and VAN SICKLE, * Senior District Judge.

MAGILL, Circuit Judge.

James Mossow, a cerebral palsied civilian offspring of Air Force parents, appeals from the district court's order dismissing for lack of subject matter jurisdiction his claim under the Federal Tort Claims Act for damages resulting from military legal malpractice. He alleges he was given negligent legal advice about a claim for neonatal injuries at the time of his birth. We reverse the district court's holding that the claim is Feres-barred and remand for proceedings on the merits. In so holding, we follow the Fourth, rather than the Fifth and Sixth Circuits.

I. BACKGROUND

James Mossow was born on July 11, 1982, at the United States Air Force Hospital on Langley Air Force Base in Langley, Virginia. At the time of his birth, both of his parents were serving on active duty in the Air Force. James claims severe neonatal birth injuries as a result of medical negligence during delivery. He suffers from cerebral palsy, mental retardation, blindness, and seizures. Shortly after James' birth, his father sought legal advice from a staff attorney at the Base legal office concerning whether the parents had a claim against the government for these injuries. He was told he and his wife could not file a claim because they were both on active duty in the Air Force. When Mr. Mossow asked concerning James' individual right to file a claim, being a civilian, the staff attorney likewise advised James could not file a claim.

Because of this advice, James did not file a claim for damages, and his cause of action for medical negligence under the Federal Tort Claims Act 1 (FTCA) was barred by the statute of limitations in July 1984. In December 1987, James discovered the legal advice was incorrect, and he could have filed his own medical malpractice claim. In November 1988, he filed a claim for damages under the FTCA, alleging medical and legal malpractice. 2 James then brought the instant lawsuit in August 1989, claiming damages due him for the injuries he received. James is the real party in interest in this lawsuit, and his parents are not claiming any damages. The district court dismissed James' complaint for lack of subject matter jurisdiction, holding the medical malpractice claim was not timely filed and is barred under the statute of limitations, and that the legal malpractice claim is not time-barred, but is Feres-barred. James' dispute is limited to the court's holding that his legal malpractice claim is barred under Feres. The government contends the legal malpractice claim is time-barred and precluded by 28 U.S.C. § 2680.

II. DISCUSSION
A. Statute of Limitations

The material facts concerning this issue are undisputed. We review to determine whether the evidence is sufficient to support the district court's legal conclusion that the legal malpractice claim was timely filed. See Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990).

The FTCA provides a tort claim is barred unless presented within two years after the claim accrues. 28 U.S.C. § 2401(b). A claim accrues under the FTCA when the injured party discovers, or should have discovered in the exercise of reasonable diligence, the critical facts and cause of the injury. United States v. Kubrick, 444 U.S. 111, 117-25, 100 S.Ct. 352, 356-60, 62 L.Ed.2d 259 (1979).

The government appears to suggest these legal and medical malpractice claims should be combined, and the combined claim accrued in 1982, when James first knew of his physical injuries and received the legal advice. We disagree. James' claim involves two distinct injuries. He claims he was injured physically by medical malpractice, and he claims he was injured by losing his medical malpractice claim through legal malpractice. The legal malpractice claim, therefore, is a separate cause of action from the medical malpractice claim, and the claims did not necessarily accrue at the same time.

The documents upon which the district court relied to conclude that James' legal malpractice claim was timely filed reveal that James did not know he had suffered the injury of losing his cause of action until December 1987. He discovered the facts and cause of his legal malpractice injury at that time, when he was informed the legal advice he received was incorrect. Therefore, his cause of action for the legal malpractice claim accrued in December 1987, and he filed the claim for this injury in November 1988, well within the two-year statute of limitations. The evidence which was before the district court is sufficient to support the conclusion that the claim was timely filed.

B. The Feres Doctrine

The waiver of sovereign immunity under the FTCA is subject to an exception known as the Feres doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court reasoned Congress did not intend when enacting the FTCA to waive sovereign immunity for suits by members of the armed services against the United States. The Court held the United States is not liable under the FTCA for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159.

The Court further explained the reasoning for the Feres doctrine in Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). It stated the three factors supporting the Feres doctrine are: (1) the distinctly federal relationship between service members and the government which makes it senseless to allow state law to affect the government's liability to service members; (2) the existence of no-fault military compensation schemes for service members; and (3) the negative effect on military discipline which would result from second-guessing military orders. Id. at 672-73, 97 S.Ct. at 2058. The Court reaffirmed the importance of all three of these factors in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).

It is undisputed that under Feres, claims brought by service members for service connected injuries are barred. See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Bowers v. United States, 904 F.2d 450 (8th Cir.1990). However, claims are not barred under Feres when brought by civilians or civilian dependents of service members who have sustained a direct injury from military personnel. Piper v. United States, 887 F.2d 861 (8th Cir.1989); Burgess v. United States, 744 F.2d 771 (11th Cir.1984); Portis v. United States, 483 F.2d 670 (4th Cir.1973).

It is a fact question whether James was directly injured by negligent legal advice. Under Virginia law, 3 James owned the cause of action for any pain and suffering, permanent injury, and impairment of earning capacity resulting from the negligent medical actions directed at him. 4 See Moses v. Akers, 203 Va. 130, 122 S.E.2d 864, 865-66 (1961); Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670, 675-76 (1990). James had a potential suit under the FTCA against the government for those injuries. The staff attorney stated James could not bring a suit, 5 and James lost his cause of action because of this negligent legal advice. 6 James suffered a direct injury when he lost his potential cause of action for medical malpractice, therefore his legal malpractice claim is not barred under the Feres doctrine.

C. The Genesis Test

The government contends that even if the Feres doctrine does not directly bar James' claim, it is barred under the genesis test. We disagree.

The genesis test evolved from Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), which found a third party's claim that was derivative of a serviceman's claim is also barred under Feres. 7 This derivative claim is one which had its basis in the serviceman's claim, and would not exist but for the serviceman's claim. Circuit courts have further expanded Stencel to bar claims for derivative injuries to civilians when the injuries have their "genesis" in a service-related injury to a service member. See, e.g., Mondelli v. United States, 711 F.2d 567 (3d Cir.1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984); Lombard v. United States, 690 F.2d 215, 223 (D.C.Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L.Ed.2d 1347 (1983). In other words, the genesis test was developed to bar claims when the injury to the civilian is a result of an injury to the service member.

The Fourth Circuit recently addressed application of the genesis test in a case analogous to James'. Romero by Romero v. United States, 954 F.2d 223 (4th Cir.1992). In Romero, an infant born to a mother in the armed services was claiming damages for birth injuries. The medical procedure which would have prevented the injuries to the infant would have been taken on the mother's body. However, the goal of the necessary procedure would have been to protect only the infant, and would not have affected the mother's health. The court stated that analyzing the case under the genesis test was inappropriate because the genesis test "was intended to address purely derivative injury--civilian injury that derives from a service-related injury to a service person. In our view, the relevant inquiry in a genesis analysis is whether a service member was injured, not whether the negligent act occurred during active duty service." Id. at 226 (emphasis added). Because the physical injury to the infant occurred when...

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    ...known as the Feres doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Mossow by Mossow v. United States, 987 F.2d 1365, 1368 (8th Cir.1992). In Feres, the Supreme Court reasoned Congress did not intend when enacting the FTCA to waive sovereign immunity for su......
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