Industrial Indem. Co. v. United States, CIV.S-78-661 RAR.

• Decision Date: 05 December 1980
• Docket Number: No. CIV.S-78-661 RAR.,CIV.S-78-661 RAR.
• Court: U.S. District Court — Eastern District of California
• Parties: INDUSTRIAL INDEMNITY COMPANY, a corporation, Plaintiff, v. UNITED STATES of America, Defendant.

504 F. Supp. 394

INDUSTRIAL INDEMNITY COMPANY, a corporation, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV.S-78-661 RAR.

United States District Court, E. D. California.

December 5, 1980.

Robert A. Christison, Andre Hassid, Sacramento, Cal., for plaintiff.

Garland E. Burrell, Jr., Asst. U. S. Atty., Sacramento, Cal., for defendant.

OPINION

RAMIREZ, District Judge.

FACTS

According to the allegations of the complaint, the plaintiff, INDUSTRIAL INDEMNITY COMPANY, is the workers' compensation carrier for Spot Commercial Maintenance, Inc., the employer of Lisa Chavez. On August 27, 1975, while working within the course and scope of her employment at Travis Air Force Base, Fairfield, California, Ms. Chavez slipped and fell on wet paint, sustaining the various injuries complained of. As a result of the workers' compensation insurance policy, plaintiff became obligated to compensate Ms. Chavez for her injuries and now seeks reimbursement for that compensation from the defendant, UNITED STATES OF AMERICA, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and §§ 2671 et seq.

On November 11, 1975, plaintiff filed an administrative claim with the defendant, employing for that purpose Standard Form 95. (See C.F.R. § 14.2a) In the space provided for the amount of the claim dealing with personal injuries, Item 10 of the form, plaintiff entered the notation "$560.00*" and by way of an asterisk referred the claims officer to the following notation at the bottom of the form:

SUBSTANTIATION WILL BE SUPPLIED UPON REQUEST. COMPENSATION BENEFITS ARE CONTINUING AND WILL CONTINUE FOR AN INDEFINITE PERIOD OF TIME.

The agency failed to respond to plaintiff's claim until April 25, 1978, when the claims officer wrote to the plaintiff and offered to settle the claim immediately for $560.00 upon substantiation of said amount. Plaintiff made no response to the offer for settlement. In addition thereto and during the two and one-half year period in which the claim was pending, plaintiff made no effort to amend the claim despite the fact that plaintiff ultimately compromised its liability to Ms. Chavez in November 1977 for $8,984.52.

On June 14, 1978, plaintiff's claim was denied in its entirety and plaintiff was advised that if dissatisfied with the denial, plaintiff could request reconsideration of the claim or file suit in the federal district court within six months of the date of mailing of said denial. (See 28 C.F.R. § 14.9) On July 25, 1978, plaintiff requested reconsideration of the decision denying plaintiff's claim and by undated communication was advised that the request for reconsideration would be denied in all respects.

Thereafter, plaintiff filed its present lawsuit in the Federal District Court, for the Eastern District of California on December 14, 1978, well within the six month period established by 28 U.S.C. § 2401(b). (See also 28 C.F.R. § 14.9(b), which provides that a timely request for reconsideration delays the accrual of the right to file an action in federal district court)

Defendant, UNITED STATES OF AMERICA, now moves the Court for summary judgment on the following grounds: (1) that the inclusion of the asterisked material rendered the amount demanded uncertain, and thus the administrative claim was at all times defective, and (2) the failure of the plaintiff to supply the substantiation requested rendered the administrative claim defective in a nunc pro tunc manner.

THE "SUM CERTAIN" REQUIREMENT

As a general rule, the United States enjoys sovereign immunity in all respects save in those instances where immunity is waived based upon compliance with various stated conditions. In absence of compliance with those stated conditions, there is no waiver and the federal court is deprived of any and all jurisdiction. See Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). One of the conditions of the government's waiver of sovereign immunity is the filing of an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, 2675(a). Without the filing of the administrative claim, there is no waiver of immunity and the Court is without jurisdiction to entertain the lawsuit. House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir. 1978), Blain v. United States, 552 F.2d 289 (9th Cir. 1977).

In addition to the requirement that a would-be litigant file an administrative claim, the claim must conform in all respects with statute, 28 U.S.C. § 2675 and regulation 28 C.F.R., Part 14, 28 U.S.C. § 2672. The filing of a deficient administrative claim is tantamount to no filing at all. House v. Mine Safety Appliances, supra, Caidin v. United States, 564 F.2d 284, 287 (9th Cir. 1977), Caton v. United States, 495 F.2d 635 (9th Cir. 1974).

In order to effectuate a proper claim pursuant to the Federal Tort Claims Act, the claimant is required to state a sum certain. Caidin v. United States, supra, Caton v. United States, supra, Avril v. United States, 461 F.2d 1090 (9th Cir. 1972). As the court observed in Caidin v. United States, supra:

The cases establish that the sum certain requirement demands more than mere general notice to the government of the approximate amount of the claim. Avril v. United States, 461 F.2d 1090 (9th Cir. 1972); Molinar v. United States, 515 F.2d 246 (5th Cir. 1975). Since the purpose of the administrative claim is to facilitate settlement of these disputes, a specific dollar amount is necessary to allow a realistic assessment of the settlement value of a case.

564 F.2d at 287 (emphasis supplied).

Although the government concedes that the plaintiff's SF-95 did state an exact dollar amount, i. e., $560.00, the government contends that the addition of the asterisked material rendered that figure uncertain and therefore the claim defective.

The Ninth Circuit cases cited herein do not address the unique situation presented by this case. In Avril v. United States, supra, the claimants filed a SF-95 that left the amount of the claim entirely blank. In Caton v. United States, supra, the claimant described the amount of her damage as "unknown at this time". In Caidin v. United States, supra, the claimant filed an administrative claim that sought $100,000.00 for an entire class of claimants which purportedly included the plaintiff. Since plaintiff was without authority to represent the class in the filing of the claim, the court found that plaintiff's claim stated no specific figure for plaintiff's own damages and was therefore defective for failing to state a sum certain. Finally, in House v. Mine Safety Appliances, supra, the court declared that plaintiff had failed to state a sum certain for her own damages where plaintiff attempted to satisfy the claim requirements by making reference to the claim filed by others similarly situated.

In conclusion, it is clear that the Ninth Circuit cases cited by the government do not hold, as the government now contends, that the inclusion of words of qualification in addition to a specific dollar amount renders an administrative claim defective for failure to state a sum certain.

In absence of controlling Ninth Circuit precedent, the government has cited this Court to decisions of other circuits, Allen v. United States, 517 F.2d 1328 (6th Cir. 1975), Melo v. United States, 505 F.2d 1026 (8th Cir. 1974), and other district courts, of which there are many. None of the cases to which the Court has been cited, and none of the cases which the Court has examined on its own, are precisely on point. In Allen v. United States, supra, and Robinson v. United States Navy, 342 F.Supp. 381 (E.D. Pa.1972), the court held that an indefinite answer as to one element of damage defeated recovery even if there was a sum certain stated as to another element of damage. Compare, however, the decisions in Fallon v. United States, 405 F.Supp. 1320 (D.Mont. 1976) and Church v. United States, 409 F.Supp. 285 (D.Del.1976), where the claimant had inserted the word "approximately" as part of the claim and the court found that the insertion of said word did not detract from a reasoned evaluation of the claim—especially where the specific dollar figure given was in fact a close approximation of the claimant's actual damage.

For these reasons and all other reasons as stated herein, the Court concludes that the inclusion of the asterisked material does not render the administrative claim of the plaintiff void ab initio. The plaintiff did in fact specify a sum certain in the claim, and the insertion of additional language by reason of the use of the asterisk will be treated as mere surplusage. (See Fallon v. United States, supra) In the present case, the inclusion of the words of qualification in no way prevented the administrative agency from acting on the claim especially since the claimant agreed, by submitting the claim, to accept the requested amount in full satisfaction and final settlement of all claims. Having signed the SF-95, plaintiff bound itself to accept $560.00 in full satisfaction of its claim against the government. Thus the basic purpose of the administrative claim provision, enabling the federal agency to settle appropriate claims promptly and efficiently, is in no way disserved by the court's finding that the inclusion of the words of qualification were surplusage. The administrative claim does contain a specific dollar amount and the federal agency is entitled to, and should, ignore the verbiage.

THE SUBSTANTIATION REQUIREMENT

The government next argues that even if the administrative claim was valid when filed, nevertheless plaintiff's failure to provide the requested substantiation of the claim rendered the claim a nullity. In making this argument, the government relies on various case law and regulations which provide that the federal agency evaluating the claim may require the claimant to produce documentation in support of either the validity or amount of the claim. (See Kornbluth v....