Lafferty v. US, Civ. A. No. 94-13.

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
Citation880 F. Supp. 1121
Docket NumberCiv. A. No. 94-13.
PartiesGene LAFFERTY, Plaintiff, Windsor Insurance Company, Intervening Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date04 April 1995


Jim G. Vanover, Vanover & Hall, Pikeville, KY, for plaintiff.

James R. O'Dell, Lexington, KY, for intervening plaintiff.

Thomas Lee Gentry, Asst. U.S. Atty., Lexington, KY, for U.S.


PATTERSON, United States Magistrate Judge.


This matter is before the Court upon the motion of Defendant, the United States of America, for summary judgment dismissal pursuant to Fed.R.Civ.P. 56 of the claims asserted against Defendant by the Intervening Plaintiff, Windsor Insurance Company ("Windsor"), on the grounds that there are no genuine issues of material fact and, under applicable law, this Court does not have subject matter jurisdiction under the Federal Tort Claims Act over Windsor's subrogation claim for basic reparation benefits paid to its insured, Plaintiff, Gene Lafferty, pursuant to the Kentucky Motor Vehicle Reparations Act, ("MVRA") KRS 304.39-010, et seq. Record No. 27. The parties previously consented to the exercise by the undersigned of full judicial authority in this action pursuant to 28 U.S.C. § 636(c)(1) Record Nos. 16, 19, and 20. Intervening Plaintiff responded to the motion for summary judgment Record No. 32, and the United States replied. Record No. 34. Said motion, being fully briefed, is now ripe for consideration.


Plaintiff, Gene Lafferty, commenced this action in the Floyd Circuit Court under the Federal Tort Claims Act, ("FTCA") 28 U.S.C. §§ 1346(b) and 2671, et seq., and/or the National Guard Claims Act,1 against Sergeant Ricky Lee Caldwell, of the Kentucky Army National Guard, for personal injuries arising from a vehicular accident which occurred in Floyd County, Kentucky. Record No. 1, Attachment, Complaint. The accident occurred on or about July 5, 1991, when Caldwell, a National Guard Recruiter, was driving a HUMVEE,2 a light tactical vehicle owned by the United States of America, in which Lafferty, another National Guard officer, and two recruits, were passengers. Lafferty Deposition, Record No. 30, p. 18, 29-37. When the vehicle hit a trench in an unpaved road3 located in Jenny Wiley Kentucky State Park, Lafferty, who was not wearing a seat belt, was thrown from his center-rear passenger seat into the roll bar of the HUMVEE and suffered bodily injuries. Id., p. 34-36; Caldwell Deposition, Record No. 29, p. 20.

Windsor, Lafferty's basic reparation obligor, filed an intervening complaint in the Floyd Circuit Court action for its statutory right of recovery in subrogation in the amount of $8,781.31 for no-fault or basic reparation benefits4 paid to Plaintiff Lafferty as a result of Caldwell's alleged negligence. Record No. 1, Attachment, Intervening Complaint. In its motion for leave to file its tendered intervening complaint, Windsor also sought to add Lumbermen's Mutual Casualty Company as an intervening defendant. However, the intervening complaint did not name Lumbermen's Mutual, and instead, in the prayer portion thereof, Windsor sought recovery only from Defendant, Ricky Caldwell Id.. In a December 10, 1993 order of the Floyd Circuit Court, Windsor's motion for leave to intervene was granted and the tendered intervening complaint was filed, however, the order was silent about the issuance of summons for Lumbermen's Mutual. Id., Attachment, Order.

Defendant Caldwell's notice of removal Record No. 1 was subsequently filed with this Court, as well as served on all other parties, on January 13, 1994 Record No. 1. The action was appropriately removed to this Court under 28 U.S.C. § 1442(a)(1), which provides that when a civil action is commenced in a state court against an officer of the United States, the officer may remove the action to a United States District Court. Pursuant to 28 U.S.C. § 2679(d)(1), the United States Attorney filed a certification stating that Caldwell was acting within the scope of his employment as an employee of the United States at the time of the incident. Record No. 3. Accordingly, pursuant to the Federal Employee's Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(2), which provides that a suit against the United States shall be the exclusive remedy for persons claiming damages resulting from the actions of federal employees taken within the scope of their employment, the United States was substituted as a party for the individual Defendant, Ricky Caldwell, to defend against Plaintiff's negligence claim and Intervening Plaintiff's subrogation claim. Record No. 6. The United States proceeded then to file an answer Record No. 9 to both the complaint and intervening complaint.

After some discovery was conducted in this action, including the taking of the discovery depositions of Ricky Caldwell and Plaintiff, Gene Lafferty, the United States filed the subject motion for summary judgment dismissal of Windsor's subrogation claim Record No. 27. Subsequently by way of a "Stipulation for Compromise Settlement" Record No. 44, the Court was advised that the negligence claim between Plaintiff Lafferty and Defendant United States had been compromised and settled, leaving only the issue of Windsor's right of recovery in subrogation raised by the United States' pending summary judgment motion for resolution by the Court.5

A. Exhaustion of Administrative Remedies under the FTCA.

As an initial matter, neither party pled nor otherwise addressed the threshold issue of whether this Court has subject matter jurisdiction by virtue of adequate exhaustion of Plaintiff's and/or Intervening Plaintiff's administrative remedies. 28 U.S.C. § 2401(b) and 2675 direct that a party seeking to sue the United States for the negligence of one of its employees must first present his claim to "the appropriate federal agency." 28 U.S.C. § 2401(b) governs the time limit for commencement of a FTCA suit and provides that:

a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2675(a) imposes the following exhaustion of administrative remedies requirement:

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 tort claim against the United States must be presented in writing to the appropriate administrative agency within two years of the time the claim accrued, and if the agency denies the claim, the claimant has six months from the date of denial to file his FTCA suit in a federal district court. Severtson v. U.S., 806 F.Supp. 97, 98 (E.D.La. 1992). However, if the agency does not act on the claim by making its final disposition within six months after presentation thereof, the claimant, may, at his option, commence suit anytime thereafter. Id.

In a prior Memorandum Opinion and Order herein dated January 19, 1995 Record No. 46, the undersigned concluded, from statements made in the United States' answer and pretrial memorandum, that the United States effectively conceded the issue of Plaintiff Lafferty's exhaustion of necessary administrative remedies at the time this action was removed from state court. 28 U.S.C. § 2675(a); Pascale v. United States, 998 F.2d 186 (3d Cir.1993); Rogers v. United States, 675 F.2d 123 (6th Cir.1982) (exhaustion remains a prerequisite to filing a claim under the FTCA when the original action is brought in a state court but is subsequently removed to federal court when a defendant is a federal employee who is sued for an incident which arose in the course of his employment).6

However, at the time the Court entered its Memorandum Opinion and Order ruling that Plaintiff Lafferty had properly exhausted his administrative remedies, the issue whether Intervening Plaintiff Windsor had exhausted its administrative remedies had not been established in the record. As expressly noted in Fed.R.Civ.P. 12(h)(3), and interpretive decisions, the Court's lack of subject matter jurisdiction is not subject to waiver, and thus the Court sua sponte raised the matter. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Norridge Nursing Centre, Inc. v. U.S., 1993 WL 436382 (N.D.Ill.1993). Record No. 46. Thus, in the Court's previous Memorandum Opinion and Order, Intervening Plaintiff Windsor was ordered to show cause why this action should not be dismissed for lack of subject matter jurisdiction for its failure to perfect an administrative claim under the FTCA and/or the National Guard Claims Act, and the United States was ordered to show cause why its Motion for Summary Judgment should not be overruled as moot. Norridge Nursing Centre, Inc. v. U.S., 1993 WL 436382 (N.D.Ill.1993) (unpublished decision). Record No. 46.

Intervening Plaintiff Windsor responded to the Show Cause Order Record No. 47, contending proper exhaustion of its claim had occurred, and...

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