Lunsford v. United States

• Decision Date: 30 August 1976
• Docket Number: No. CIV 75-5031.,CIV 75-5031.
• Citation: 418 F. Supp. 1045
• Parties: Agnes LUNSFORD, as special administratrix mf the Estates of Theophil Gall and Alice H. Gall, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Dakota

418 F. Supp. 1045

Agnes LUNSFORD, as special administratrix mf the Estates of Theophil Gall and Alice H. Gall, Deceased, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. CIV 75-5031.

United States District Court, D. South Dakota, W. D.

August 30, 1976.

COPYRIGHT MATERIAL OMITTED

Horace R. Jackson, of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, S. D., and Sam W. Masten, Canton, S. D., for plaintiffs.

William F. Clayton, U. S. Dist. Atty., D. S. D., Sioux Falls, S. D., Thomas J. Whalen and Lawrence Mentz, of Condon & Forsyth, New York City, and J. Charles Kruse, Dept. of justice, Washington, D. C., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

This Federal Tort Claims action arises from the disastrous flood which occurred in Rapid City, South Dakota, on June 9, 1972, resulting in 238 deaths. The plaintiffs seek to assert claims on behalf of themselves and a class of unnamed persons who suffered personal injury and property damage as a result of the flood. Presently pending before the court are the following motions:

1. Defendant's motion to dismiss the class action;

2. Plaintiffs' motion to strike certain portions of the answer;

3. Defendant's motion to dismiss for lack of subject matter jurisdiction;

4. Defendant's motion to dismiss for failure to state a claim upon which relief can be granted.

Each motion will be dealt with separately.

MAINTENANCE AS A CLASS ACTION

The government contends that the present suit cannot be maintained as a class action, since the unnamed members of the class have not presented administrative claims. The administrative claim requirement of the Federal Tort Claims Act is found at 28 U.S.C. section 2675(a), which provides:

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. (Emphasis added).

The procedure for presenting claims under section 2675(a) is set out in 28 C.F.R. Chapter I, Part 14 (1975). The government's assertion is that 28 C.F.R. sections 14.2(a), 14.3(a) and 14.3(c) have not been complied with. These regulations provide as follows:

14.2 Administrative claim; when presented.

(a) For purposes of the provisions of section 2672 of Title 28, United States Code, 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. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency. (Emphasis added).

14.3 Administrative claim; who may file.

(a) A claim for injury to or loss of property may be presented by the owner of the property, his duly authorized agent or legal representative.

(b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or legal representative.

(c) 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.

Plaintiffs maintain that their claim on behalf of the class meets the requirements of section 14.3, inasmuch as they will become the agents of the unnamed class members upon certification of the class, and each member of the class who does not "opt out" will in effect be ratifying the acts of the named plaintiffs as their agents. I am unable to accept this reasoning, as it appears to be somewhat circular. There could be no class absent the presentation of a claim by its agent, and yet the certification of the class is the act which creates the agency status. It appears to the court that plaintiffs' claim of compliance with the regulations is not well founded.

A far more serious question is presented by plaintiffs' claim that the regulations in question are in excess of statutory authority if read to preclude class actions on behalf of parties who have not submitted administrative claims. The absolute requirement of an administrative claim was the result of the 1966 amendments to the Federal Tort Claims Act. As the court noted in Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970):

Congressional intent in enacting the requirement of exhaustion of administrative remedies, as evinced by the legislative history of the 1966 amendment, was to improve and expedite disposition of monetary claims against the Government by establishing a system for prelitigation settlement, to enable consideration of claims by the agency having the best information concerning the incident, and to ease court congestion and avoid unnecessary litigation. S.Rep. 1327, 89th Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1966, p. 2515.

435 F.2d at 1222-23. The question of whether allowing class actions would hinder the realization of these goals is not easily resolved.

As regards the requirement that a claim be stated in a sum certain, it is clear that the regulation represents a reasonable attempt to expedite prelitigation settlement. As the court noted in Caton v. United States, 495 F.2d 635 (9th Cir. 1974):

Thus after the 1966 amendment "an amount certain" in the claim was not needed to identify the claim as one subject to administrative settlement by the agency, except that the prior written approval of the Attorney General or his designee was required when the claim exceeded $25,000. There still remained the need for a claim to state "a sum certain" to identify the claim which might require Attorney General approval and to identify the claim which, if settled for $25,000 or less, would be paid out of available appropriations.

Secondly, such identification was needed in connection with insurance coverage that might exist . . . for the governmental agency activity.

Finally, the requirement of the inclusion of "a sum certain" in the claim must be read with the language of 28 U.S.C. section 2675(b): "Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim." (Emphasis added). It is apparent that without the inclusion of "a sum certain" in the claim to the agency, the above provisions of 28 U.S.C. section 2675(b) would be meaningless.

495 F.2d at 637-38.

Nor does the requirement that each claimant present an individual claim strike the court as unreasonable. It would indeed be difficult for an administrative agency to adequately assess a claim if the factors surrounding the claim were not presented on an individual basis.

Plaintiffs maintain, however, that the decision in Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974), dictates a contrary result. In Executive Jet the court determined that failure to show insurers, who were real parties in interest, as joint claimants did not bar their claim, despite noncompliance with the pertinent regulations. The court emphasized three factors which were central to its decision:

1. The addition of the insurers did not "take the government by surprise;"

2. The addition of the insurers did not hamper the government's ability to prepare its defense; and 3. The addition of the insurers would not have been likely to alter the government's decision to deny the claim, since the government was asserting various defenses to liability.

I am not convinced that the first and second reasons noted above are a sufficient basis for avoiding the administrative regulations, as they bear on the ability of the government to defend the suit. The purpose of the administrative exhaustion requirement was to facilitate settlement and ease court congestion, not to insure that the government could adequately litigate tort claims against the various federal agencies. I am more troubled by the third rationale presented in Executive Jet. I suspect that the government would not have settled any of the claims stemming from the Rapid City flood, since the theory of liability is somewhat novel. Regardless, I am unwilling to allow avoidance of the regulations on such a tenuous, and somewhat speculative basis. Accordingly, the court determines that the unnamed members of the proposed class have failed to comply with valid administrative regulations. What then is the effect of such noncompliance?

As a general matter, the United States enjoys sovereign immunity, except as it consents to be sued. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). In giving such consent, the United States may attach whatever conditions and limitations it chooses. Peterson v. United States, 428 F.2d 368 (8th Cir. 1970). Although the waiver of sovereign immunity embodied in the Federal Tort Claims Act is cast in broad and sweeping terms, see United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951), the limitations and conditions of the waiver are to be strictly observed. Soriano v. United States, 352 U.S. 271, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Childers v. United States, 442 F.2d 1299 (5th Cir. 1971). The necessity of strictly observing the conditions of the United States' consent to be sued stems, at least in part, from the fact that these conditions are...