Erxleben v. U.S., 80-1907

• Decision Date: 24 November 1981
• Docket Number: No. 80-1907,80-1907
• Citation: 668 F.2d 268
• Parties: Everett ERXLEBEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 268

668 F.2d 268

Everett ERXLEBEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 80-1907.

United States Court of Appeals Seventh Circuit.

Submitted on Records and Briefs Nov. 24, 1981. ^*

Decided Dec. 28, 1981.

Daniel Lampitt, Pekin, Ill., for plaintiff-appellant.

Janet L. Jannusch, Asst. U. S. Atty., Gerald D. Fines, U. S. Atty., Peoria, Ill., for defendant-appellee.

Before PELL, SPRECHER, and WOOD, Circuit Judges.

PER CURIAM.

This case presents for review the question of whether the contents of a form submitted by the plaintiff-appellant to the Department of the Navy satisfied the Federal Torts Claim Act requirement that a claimant against the United States must, before filing suit, present a claim for a "sum certain" to an appropriate federal agency. The district court found that the administrative claim was not for a "sum certain," and thus it dismissed the appellant's complaint on the ground that it lacked subject matter jurisdiction over the action. For the reasons noted below, we vacate that decision and remand the case for further proceedings.

I

On January 13, 1978, the appellant, Everett Erxleben, was involved in an automobile collision with Daniel Totten, a Navy recruiter who at the time was driving an automobile owned by the United States. After the accident, appellant's insurer, State Farm Fire and Casualty Company, filed a notice with the Department of the Navy stating that it intended to seek reimbursement from that department for medical payments it was required to make to the appellant. The department responded with a letter which explained that before any claim could be processed it was necessary that three copies of Standard Form 95 be submitted. The appropriate forms were enclosed. The letter continued, "When completing the Standard Form 95 please follow carefully the instructions printed on the reverse of the forms and be sure to state a sum certain in block 10D."

On June 8, 1978, the department received from State Farm the following items: a Standard Form 95, executed by the appellant; a second notice of reimbursement, referring to medical and vehicle damage payments, specifying the amount of medical payments paid by the company; and certain expenditure "drafts" and a "subrogation receipt." Item 10 of the Standard Form 95 (Amount of Claim) was completed as follows: A. Property Damage-"$109," B. Personal Injury-"$149.42 presently," C. Wrongful Death-"0," and D. Total-" $259.34." On June 16, 1978, the department returned that form to State Farm, and in an accompanying letter stated:

Federal claims regulations require that all claims be made for a sum certain. As the amount of your claim is qualified, "$149.42 presently", it cannot be considered as being for a sum certain.

Neither State Farm nor the appellant took any further administrative action.

On January 14, 1980, the appellant filed a civil suit against Daniel Totten in the Circuit Court of the Seventh Judicial Circuit, Tazewell County, Illinois, asking damages in excess of $10,000 for the same injuries. On February 13, 1980, the case was removed to the United States District Court for the Central District of Illinois, and on the same day, the United States moved that court for an order substituting it as the defendant in the action. The court granted that motion.

On February 27, 1980, the government moved the court to dismiss the complaint on the ground that it lacked subject matter jurisdiction over the action. A hearing was held on April 25, 1980, at which time the court allowed the motion and entered judgment in favor of the appellee. This appeal follows.

II

The government's motion to dismiss was based upon its assertion that the Standard Form 95, executed by the appellant and received by the Department of the Navy, was invalid because it did not state a "sum certain" as required by the Federal Torts Claim Act. The government argued that, because the appellant filed no other valid claim, he failed to exhaust his administrative remedies, and thus his suit was barred.

A

The Federal Torts Claim Act, 28 U.S.C. § 2671 et seq., is a congressional waiver of sovereign immunity. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Section 2675(a) does mandate that, as a prerequisite to filing a suit against the United States under the Act, a claimant must present notice of his claim to the appropriate federal agency. ¹

28 U.S.C. § 2401(b) imposes a two year limitation period within which that claim must be made. If the administrative claim is made in a timely fashion, the claimant can bring suit to recover for the same injuries only if the agency issues a final determination in writing or if the agency fails to make a final disposition within six months after the claim is filed. § 2675(a). Satisfaction of the administrative exhaustion requirement is a condition precedent to a federal court's jurisdiction over a subsequent suit. It cannot be waived. Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); Molinar v. United States, 515 F.2d 246 (5th Cir. 1975).

In the present case, if the appellant's claim form as submitted was not sufficient as a presentation of his claim under section 2675(a), the government's position was correct, and the district court's dismissal is proper. If, however, the claim was adequately presented, the department's failure to make a final disposition can be treated as a denial, and the exhaustion bar is removed. ²

B

The government's reading of the "sum certain" requirement into section 2675(a) is predicated on the federal regulation implementing that statutory procedure. 28 C.F.R. § 14.2(a) provides in pertinent part:

(A) claim shall be deemed to have been presented when a federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.

We have recognized the applicability of that regulation, Best Bearings Co. v. United States, 463 F.2d at 1179, and other courts have specifically found that section 2675(a) incorporates the "sum certain" provision of the regulation. Molinar v. United States, 515 F.2d at 248-49; Caton v. United States, 495 F.2d 635 (9th Cir. 1974). ³

The filing of a "sum certain" facilitates the administrative disposition of a claim. It also allows the agency to determine whether a proposed settlement will require the approval of the Attorney General under 28 U.S.C. § 2672. ⁴ Finally, subject to the exceptions of section 2675(b), it places a limit on the amount a claimant can recover in any future action involving the same injury. ⁵ Molinar v. United States, 515 F.2d at 249. See Adams v. United States, 615 F.2d at 289. ⁶

The government's presentation of the requirements of section 2675 in terms of a "sum certain" is appropriate. The inquiry becomes whether the appellant stated such a sum.

C

It is well settled that a Standard Form 95 filed with the "amount of claim" omitted is invalid. ⁷ Likewise, a separate claim notice submitted without a specific dollar amount is ineffective. ⁸ However, that precedent does not control the present case. The purposes for requiring a "sum certain" noted above are necessarily defeated when there is a total failure to place a value on the claim. In this case, though, the appellant did state specific dollar amounts for property damage, personal injury, and total damage. This dispute arose because he included the term "presently" after his dollar figure under the personal injury heading. We must ask whether that addition rendered his claimed sum uncertain.

In its response to that question, the government relies most heavily on Allen v. United States, 517 F.2d 1328 (6th Cir. 1975), Robinson v. United States, 342 F.Supp. 381 (E.D.Pa.1972), and Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971). Yet none of those cases are dispositive. In Allen, the claimant filed a Standard Form 95 with a dollar amount stated for property damage, but with the "personal injury" and "total" spaces left blank. Subsequently, he initiated a suit for personal injuries which the district court dismissed. That result falls within the general rule. The claimant completely failed to place a value on his personal injury claim. In Robinson, the claimant entered a specific property damage claim on his Standard Form 95, but listed his personal injury claim as "unknown" and his total claim as "2,135.45 plus personal injury." Again, the district court dismissed. Considering the purposes of the "sum certain" requirement, it is obvious why the court reached that result. There was no way for the agency involved to fix a total value for the claim. Thus, it could not respond, and because of the reservation of the personal injury claim, it could not be guaranteed that the claimant would be bound to a specific dollar limit in the future. Finally, in Bialowas, the claimant's entries under the "amount of claim" headings were even more cryptic. In the property damage block he wrote "Estimate-$184.35, $243.50." In the personal injury block he wrote "neck, chest and right arm." And in the block reserved for the total amount he wrote "Price of X-rays $35.00." Again, understandably, the district court dismissed the subsequent suit.

The present case is factually much closer to Fallon v. United States, 405 F.Supp. 1320 (D.Mont.1976). In that case the claimant, using a Standard Form 95, filed a personal injury claim valued at "approximately $15,000.00." The district court treated that as a valid claim and denied the government's motion to dismiss the later civil suit. The court reasoned that:

(w)here a claim filed with a federal agency contains definite figures rendered uncertain by the use of qualifying words, there seems to be no valid reason why the...