Estate of Sullivan v. US

• Citation: 777 F. Supp. 695
• Decision Date: 16 September 1991
• Docket Number: Civ. No. F90-43.
• Parties: ESTATE OF Timothy E. SULLIVAN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Indiana

777 F. Supp. 695

ESTATE OF Timothy E. SULLIVAN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. F90-43.

United States District Court, N.D. Indiana, Fort Wayne Division.

September 16, 1991.

COPYRIGHT MATERIAL OMITTED

Stanley L. Rosenblatt, Norman S. Snow, Fort Wayne, Ind., for plaintiffs.

Robert N. Trgovich, Tina Nommay, Asst. U.S. Attys., Fort Wayne, Ind., Clifford D. Johnson, Assistant U.S. Atty., South Bend, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the United States' motion for summary judgment, motion to dismiss, supplemental motion to dismiss, and request for certification of questions to the Arizona Supreme Court. The parties have fully briefed the issues.

Discussion

Plaintiff's decedent, Timothy E. Sullivan, died on September 19, 1988 in Allen County, Indiana. Allegedly, Sullivan's death was caused by the negligence of doctors employed by the Veterans Administration Medical Center in Tucson, Arizona during and following a surgical procedure in February 1985, while he was a resident of Arizona.

The government is seeking summary judgment on three issues in this case. Specifically, the government argues that the estate of Timothy E. Sullivan cannot recover under the Arizona wrongful death statute, that plaintiff cannot recover for medical expenses incurred for the pre-death treatment of Timothy Sullivan under the Arizona wrongful death statute, and that Connie J. Sullivan cannot recover for pre-death loss of consortium under the Arizona wrongful death statute.

In response to the government's arguments, plaintiff first notes that the government is assuming that this court is to apply Arizona's wrongful death statute rather than Indiana's wrongful death statute. Plaintiff next asserts that the government's assumption is incorrect and argues that even though Arizona's conflict of law rules require the application of Arizona's medical malpractice law to determine whether the surgeons who attended to Timothy Sullivan are liable for malpractice, Indiana's wrongful death statute applies to determine who is entitled to recover damages for Sullivan's alleged wrongful death.

This court, in an order dated December 19, 1990, held that Arizona law, including Arizona's conflict of law rules, governs this case. Consequently, the court held that Arizona's medical malpractice law governs this case and therefore the United States cannot invoke the Indiana Medical Malpractice Act and its $500,000.00 limit on liability. At the time of the December 19, 1990 order the parties had not raised the issue of whether Arizona's conflict of law rules would require the court to apply Arizona's wrongful death statute to plaintiff's wrongful death claim. Plaintiff now contends that Arizona's conflict of law rules require the court to use the Indiana wrongful death statute. The government agrees that the Indiana wrongful death statute applies in this case but the government argues that if the court applies Indiana's wrongful death statute, the court must also apply the Indiana Medical Malpractice liability cap, limiting plaintiff's recovery to an aggregate maximum amount of $500,000.00.

Both parties agree that the Indiana wrongful death statute applies to plaintiff's wrongful death claim. In fact, Arizona's conflict of law rules indicate that the Indiana wrongful death statute is applicable here. Arizona has adopted Restatement (Second) of Conflicts, § 175, which provides:

In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

This issue-by-issue approach can result in depecage, i.e., applying the law of different states to determine different issues. In re Air Crash Near Chicago, Ill., 644 F.2d 594, 611 (7th Cir.1981). Plaintiff argues that as to the more procedural aspects of a wrongful death action — opening of an estate, the proper representative, who can recover, the types of injury/loss for which damages can be recovered — the law of the state where the injury death occurred, Indiana, controls these issues unless the government demonstrates that Arizona has a more significant relationship to these issues. The court agrees with the plaintiff's contention that the government has not made such a showing and concludes that the Indiana wrongful death statute applies to this case.

Next, the court will analyze the implications of applying the Indiana wrongful death act. First, the government's motion for summary judgment will be denied as that motion concerned the proper application of Arizona's wrongful death statute. Second, the issues the government raises in its motions to dismiss for lack of subject matter jurisdiction must be analyzed vis-a-vis the Indiana wrongful death statute.

The first issue the United States raises in its motion to dismiss is whether this court has subject matter jurisdiction over certain claims for recovery made on behalf of Connie J. Sullivan, Terry Sullivan and Stacy Sullivan due to their failure to meet the requirements of 28 U.S.C. § 2675(a). With respect to Terry Sullivan and Stacy Sullivan, the government asserts that Terry and Stacy have not exhausted their administrative remedies and, therefore, jurisdiction is lacking. Specifically, the government argues that the administrative claim filed in this case did not mention either Terry or Stacy and failed to set a sum certain for their injuries. The administrative claim in this case was filed by "Connie J. Sullivan, Individually and/or Personal Representative of Estate of Timothy E. Sullivan for wrongful death purposes" and stated the amount of claim for wrongful death as $12,000,000.00.

The Federal Tort Claims Act provides at 28 U.S.C. § 2675(a) that:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section....

Thus, a condition precedent to this court exercising subject matter jurisdiction over a suit under the FTCA is a party's exhaustion of administrative remedies which require that the party file an administrative claim with the appropriate federal agency. This administrative claim must provide a sum certain for the amount of the claim, pursuant to 28 C.F.R. § 14.2(a) which provides as follows:

For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 2675, 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; and the title or legal capacity of the person signing, and is accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.

The Seventh Circuit Court of Appeals has held that Section 2675(a)'s requirement of first presenting the claim to the appropriate federal agency includes the giving of sufficient notice to enable the agency to investigate the claim and the setting of a sum certain as set forth in 28 C.F.R. § 14.2(a). Charlton v. United States, 743 F.2d 557, 559 (7th Cir.1984); Erxleben v. United States, 668 F.2d 268, 271 (7th Cir.1981); Best Bearings Co. v. United States, 463 F.2d 1177, 1175 (7th Cir.1972).

Plaintiff apparently admits that the administrative claim filed in this case did not mention either Terry or Stacy and failed to set a sum certain for their individual injuries. Nevertheless, plaintiff argues that there has been compliance with jurisdictional requirements since Connie J. Sullivan individually and as personal representative of Timothy E. Sullivan's estate filed an administrative claim for wrongful death.

28 C.F.R. § 14.3(c) provides:

A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law.

28 C.F.R. 14.4(a)(3) authorizes the government to request additional information from the personal representative:

(a) DEATH. In support of a claim based on death, the claimant may be required to submit the following evidence or information:

* * * * * *

(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors who were dependent for support upon the decedent at the time of his death.

Indiana's Wrongful Death Act, I.C. 34-1-1-2, provides:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.... That part of the damages which is recovered for reasonable medical, hospital, funeral and burial expense shall inure to the exclusive benefit of the decedent's estate for the payment thereof. The remainder

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