Driggers v. United States, Civ. A. No. 69-740.

• Decision Date: 13 March 1970
• Docket Number: Civ. A. No. 69-740.
• Court: U.S. District Court — District of South Carolina
• Parties: Rena B. DRIGGERS, Plaintiff, v. UNITED STATES of America, Defendant. Edward DRIGGERS, Plaintiff, v. UNITED STATES of America, Defendant.

309 F. Supp. 1377

Rena B. DRIGGERS, Plaintiff, v. UNITED STATES of America, Defendant.

Edward DRIGGERS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 69-740.

United States District Court, D. South Carolina, Orangeburg Division.

March 13, 1970.

L. M. Fanning, W. T. Klapman, Orangeburg, S.C., for plaintiffs.

Joseph O. Rogers, Jr., U. S. Atty., Columbia, S. C., for defendant.

ORDER

SIMONS, District Judge.

The plaintiffs brought these actions originally against Warren G. Crook in the Court of Common Pleas for Orangeburg County, South Carolina, seeking damages for personal injuries and property damage resulting from a collision on U. S. Highway 301 near Orangeburg on April 23, 1969. Service was effected upon the defendant motorist by serving the State's Chief Highway Commissioner under the substitute service statute applicable to non-resident motorists involved in traffic accidents in South Carolina.

Both cases were removed to this court upon motion of the United States Attorney and the United States was substituted as defendant in each case upon certification pursuant to 28 U.S.C. § 2679(d) that Warren G. Crook was acting within the scope of his employment by the United States at the time of the incident alleged in the complaints. Following the removal and substitution of defendant in each case, the United States filed identical motions to dismiss pursuant to Rule 12(b), F.R.Civ.P., alleging that the court lacks jurisdiction because the plaintiffs have not filed claims with the Federal Aviation Administration, the employer of Warren G. Crook, as required by 28 U.S.C. § 2675(a).

Title 28 U.S.C. § 2675(a), as amended in 1966 by Pub.L. 89-506, § 2, 80 Stat. 306, now provides that an administrative claim is a prerequisite to filing or maintaining a civil action under the Federal Tort Claims Act. Although no difficulty is experienced in construing the plain language of the statute, the legislative history of the 1966 amendments is enlightening as to the reasons for the amendments. Senate Report No. 1327 (Judiciary Committee), 89th Congress, 2nd Session, U.S.Code Cong. and Admin.News, p. 2515 (1966), contains an explanation of the purpose of the amendments. It is clear, therefore, that an administrative claim is now required before a suit against the United States may be maintained under the Federal Tort Claims Act. Beavers v. United States, 291 F.Supp. 856 (S.D.Tex.1968).

The plaintiffs contend that they should be relieved of the necessity to file administrative claims in the circumstances of these actions. The basis of this contention is certain correspondence consisting of two letters from one of the plaintiffs' attorneys to Mr. Crook, and a Government claim for property damage to its vehicle sent to Mr. Driggers, one of the plaintiffs. The first letter was dated May 1, 1969, which was eight days after the traffic accident described in the complaints. It requested Mr. Crook to have his liability insurance carrier contact the sender as the attorney for Mr. and Mrs. Driggers. The second letter was dated June 9, 1969, and a copy was sent to the counsel for the FAA facility where Mr. Crook was employed in New Jersey. The June 9th letter solicited word from the addressee or his legal representative if he desired to discuss settlement of the matter. Neither letter was answered, according to the sender. The actions against Mr. Crook in the State Court were instituted during August, approximately four months after the accident, and some two months after the second letter to him. In the meantime, Mr. Driggers, one of the plaintiffs, had received in late June a notice of claim from the General Services Administration for damages to the vehicle Mr. Crook was driving at the time of the accident. Plaintiffs urge that the letters constituted notice of their claims, and that the General Services Administration claim for damages to the Government vehicle constituted, in effect, a denial of the Government's liability for the claims of plaintiffs.

While the argument of the plaintiffs is not without some appeal, it fails to convince the court that the defendant's motions should not be granted. Initially, it must be noted that the letters from the attorney for the plaintiffs to Mr. Crook did not comply with the requirement of the regulations prescribed by the Attorney General, pursuant to 28 U.S.C. § 2672, that a written notice of an incident must be "accompanied by a claim for money damages in a sum certain * * *." 14 CFR 14.2. Additionally, both 28 U.S.C. § 2675(a) and 14 CFR 14.9 specify that a denial of an administrative claim must be in writing sent by certified or registered mail. It follows that a separate claim filed by General Services Administration for damages to the Government vehicle cannot be the denial in writing by "the appropriate Federal agency" that is contemplated by the statute. Moreover, the court observes that the plaintiffs' suits were brought within four months of the accident date. Therefore, the suits were premature in the absence of a written denial from the FAA, even if the plaintiffs' attorney might have intended his letters to Mr. Crook to be a claim within the meaning of the Act. A failure of the Federal agency to act on a proper claim may be considered as a denial only if a claim has been filed for six months under the express language of section 2675(a).

The plaintiffs also contend that the...