Hiatt v. U.S., 89-5826
| Decision Date | 04 September 1990 |
| Docket Number | No. 89-5826,89-5826 |
| Citation | 910 F.2d 737 |
| Parties | Shirley B. HIATT as Personal Representative of the Estate of Dale C. Hiatt, deceased, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellant, Cross-Appellee, George P. Tsiotis, Third-Party Defendant-Appellee. George P. TSIOTIS, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Barbara B. O'Malley, U.S. Dept. of Justice, Torts Branch Civil Div., Washington, D.C., for defendant-third-party plaintiff-appellant, cross-appellee.
Edward R. Curtis, Ft. Lauderdale, Fla., for Tsiotis, Anderson.
Susan L. Dolin, Conrad, Scherer & James, Ft. Lauderdale, Fla., for Hiatt.
Appeals from the United States District Court for the Southern District of Florida.
Before FAY and JOHNSON, Circuit Judges, and GIBSON *, Senior Circuit Judge.
This is a wrongful death case against the United States brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2671 et seq. (1988), in which the United States was found by the district court to be 25% at fault for the death of the plaintiff's husband in an airplane crash. The plaintiff appeals from the district court's award of damages. The United States, as third-party plaintiff, appeals the district court's refusal to award it contribution from a third-party defendant.
We affirm the damage awards with an adjustment, reverse the district court's refusal to award damages to the decedent's minor son; and, we reverse the holding that the United States is not entitled to contribution from the third-party defendant and remand that issue for further consideration.
On February 3, 1981, Dale C. Hiatt, then 56 years old, was a passenger in a Cessna 421 aircraft over Fort Lauderdale, Florida. The plane collided in midair with a Cessna 172 aircraft; all occupants of both planes were killed. Dale's widow, Shirley Hiatt, filed an administrative claim with the Federal Aviation Administration ("FAA"), alleging that her husband's death was caused by the negligence of FAA air traffic controllers. After that claim was denied, she brought this wrongful death suit against the United States under the FTCA. The United States filed a third-party complaint seeking indemnity or contribution from Wendy Anderson (the personal representative of the estate of William Wille, the pilot of the Cessna 421) and George P. Tsiotis, the owner of the Cessna 421. 1
After a bench trial, the district court determined that the pilot, William Wille, was 75% at fault for the collision, and the FAA air traffic controllers were 25% at fault. The district court awarded Shirley Hiatt $100,000 for her noneconomic losses, such as loss of protection and companionship, and $361,325 for loss of support. The court also awarded to Mrs. Hiatt, as representative of her husband's estate, a total of $419,456 for diminution in the stock value of Hiatt Trucking Company, the company which Dale started in 1955 and of which he was president and majority stockholder when he died. The district court refused to award anything to the decedent's minor son, John, finding that it had no jurisdiction to do so because John failed to file an administrative claim as required by the FTCA. The district court also refused Hiatt's request that it award recovery for the estate's premature payment of estate taxes.
Regarding the United States' third-party complaint, the district court granted the United States contribution from Wendy Anderson (representative of the deceased pilot) in the amount of 75% of the award rendered in favor of Hiatt against the United States, that amount representing the extent to which the court had found the pilot was at fault. The district court, however, reduced that amount by $100,000; it stated that that amount represented the sum that had already been paid to Shirley Hiatt by Anderson and Tsiotis pursuant to a release in the consolidated action. 2
The district court did not award the United States any damages against third-party defendant Tsiotis, the owner of the plane. The court held that while the United States argued that Tsiotis was vicariously liable for the pilot's negligence under Florida's dangerous instrumentality doctrine, the United States failed to brief the applicability of that doctrine or present any evidence relevant thereto. 3
Shirley Hiatt now appeals, arguing that each of the damage awards is inadequate and that an award should have been made to her minor son, John. She further argues on appeal that the district court erred in failing to award damages to the estate for its premature payment of estate taxes. The United States, as third-party plaintiff, also appeals, arguing that the district court erred in finding that Tsiotis owed it nothing in contribution and in deducting the $100,000 settlement from the contribution award in favor of the United States instead of from the wrongful death award in favor of Mrs. Hiatt.
We affirm the district court's damages award to Shirley Hiatt, including its holding that damages are not recoverable for the premature payment of estate taxes. However, we reverse the district court's ruling that the amount which Anderson owes the United States in contribution should reflect a setoff of $100,000. That $100,000 should be deducted from the amount owed to Mrs. Hiatt. We further reverse the district court's decision that no damages were awardable to John Hiatt, the decedent's minor son. Finally, we reverse the district court's holding that Tsiotis is not liable to the United States for contribution and remand that issue for further consideration. Accordingly, we remand this case to the district court for further proceedings consistent with this opinion.
At the beginning of trial, Hiatt stipulated that her son, John, suffered no loss of support as a result of his father's death. However, she did present evidence of noneconomic damages sustained by him. See Record, Vol. 17 at 14-27; Vol. 19 at 425-26. The court ruled that it could not award damages for John's loss because he failed to file an administrative claim with the FAA as required by 28 U.S.C. Sec. 2675(a) 4.
Hiatt argues that the district court erred in refusing to award damages for John's noneconomic loss, claiming that because John was the decedent's minor son and therefore a beneficiary of the decedent's estate, his claim was encompassed in the administrative claim submitted by her. Hiatt also emphasizes that under the Florida Wrongful Death Act a wrongful death action can be brought only by the decedent's personal representative, who in this case was herself. On the other hand, the government argues that the FTCA's exhaustion requirement is a jurisdictional rule, and, accordingly, because John failed to file an administrative claim the district court lacked jurisdiction to consider his claim.
We encountered a similar situation in Davis v. Marsh, 807 F.2d 908 (11th Cir.1987) (per curiam). There, the decedent's sister filed an administrative claim on behalf of two of the decedent's five children, seeking $100,000 for wrongful death. After that claim was denied, the decedent's sister and husband instituted an FTCA suit on behalf of the husband and all five children seeking in excess of $1,000,000 for the decedent's wrongful death. Following trial, the district court awarded $50,000 to each of the five children. On appeal, this court held that the district court properly considered the claims of all five children even though only two were named in the administrative claim, noting that the claims of the other two had been "inadvertently omitted." Id. at 912. However, the court ruled that the district court lacked jurisdiction to award damages of more than $100,000 because that was the amount sought in the administrative claim. Id. 5
In this case, we do not face the problem of a plaintiff seeking more money in the FTCA suit than she had sought in the administrative claim. Shirley Hiatt sought $10,000,000 in her claim with the FAA and she has requested that amount in the instant suit. However, here, as in Davis, we are confronted with the situation where damages are sought on behalf of one of the decedent's children whose name was omitted from the administrative claim. As Mrs. Hiatt argues, Davis clearly is authority for allowing the district court to entertain the omitted child's claim, and thus we hold that John Hiatt's claim should have been considered in this case.
The government argues that the exception recognized in Davis applies only to the omitted claims of minor children and that John Hiatt does not qualify because he was nineteen at the time of his father's death. The government claims that under Florida law the age of majority is eighteen. We recognize that under Fla.Stat. Sec. 743.07(1), eighteen is recognized as the age of majority. However, under the Florida Wrongful Death Act "minor children" are defined as "children under 25 years of age, notwithstanding the age of majority." Fla.Stat. Sec. 768.18(2) (1986). We consider this more specific statute to be applicable in this case. Thus, for purposes of this wrongful death suit John Hiatt is considered to be a minor.
We do not believe that allowing recovery for John's damages is unfair to the government. In Shirley Hiatt's administrative claim it was clear that Shirley was acting as the personal representative of Dale Hiatt's estate, and thus the government had notice that damages would be sought for all beneficiaries of the estate. Indeed, the government has not argued that it was surprised by Hiatt's pursuit at trial of damages on John's behalf. See Transco Leasing Corp. v. United States, 896 F.2d 1435, 1441-44 (5th Cir.1990) (), ...
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