Schwarder v. U.S., No. 91-55273

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWILLIAM A. NORRIS; ALARCON
Citation974 F.2d 1118
PartiesAaron SCHWARDER; Donna Eubanks; Kathleen Schwarder, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Decision Date04 September 1992
Docket NumberNo. 91-55273

Page 1118

974 F.2d 1118
61 USLW 2156
Aaron SCHWARDER; Donna Eubanks; Kathleen Schwarder,
Plaintiffs-Appellees,
v.
UNITED STATES of America, Defendant-Appellant.
No. 91-55273.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 7, 1992.
Decided Sept. 4, 1992.

Page 1119

Michael T. Truscott, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Samuel Shore, Law Offices of Samuel Shore, Los Angeles, Cal., Jerry S. Berger,

Page 1120

Law Offices of Jerry Solomon Berger, Beverly Hills, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

The United States appeals a judgment for $330,000 in compensatory damages to Aaron Schwarder, Donna Eubanks, and Kathleen Schwarder, (referred to collectively as "the Schwarder children") for the wrongful death of their father, Harry N. Schwarder. The Government contends that the Schwarder children's action was barred by the Federal Tort Claims Act, 28 U.S.C. § 2672, because Harry Schwarder and his wife previously entered into an administrative settlement with the Government in which they received $285,000 and agreed to relinquish any future claims arising out of his injury. The Government also contends that the Schwarder children's award violates California Civil Code § 3333.2, which limits non-economic damage awards in professional negligence actions to $250,000. We affirm.

I

On August 10, 1984, Harry Schwarder sought medical attention at the Loma Linda Veterans Administration Hospital and Clinic (Loma Linda) for a lump on his right knee. As a result of biopsy surgery, physicians at Loma Linda determined that the lump was a malignant tumor which might recur or metastasize. This diagnosis was confirmed by the staff of the Armed Forces Institute of Pathology who recommended wide excision of the area surrounding the tumor. Mr. Schwarder was discharged from Loma Linda on August 21, 1984. Despite the serious nature of his prognosis, he was not informed of the results of his biopsy until more than one year later.

On September 27, 1985, Mr. Schwarder again sought medical attention at Loma Linda because the tumor in his leg had grown back. At that time, he was first advised that he had a cancerous lesion in his leg. Doctors also discovered that the cancer had metastasized to his inguinal lymph nodes and one of his lungs. Mr. Schwarder underwent amputation surgery, chemotherapy, and radiation therapy in an attempt to halt the progress of the cancer. These efforts at treatment were unsuccessful, and he died of cancer on March 28, 1987.

Before his death, Mr. Schwarder, along with his wife, Marlis Schwarder, filed claims for damages against the United States for injuries they had sustained as a result of the failure of the physicians at Loma Linda to diagnose and treat his cancer promptly. After a period of negotiation, they settled these claims for $285,000. As part of this settlement, they executed a Voucher For Payment Under Federal Tort Claims Act. This voucher contained an "Acceptance by Claimant(s)" provision which stated:

I, (We), the claimant(s), do hereby accept the withinstated award, compromise, or settlement as final and conclusive on me (us) and agree that said acceptance constitutes a complete release by me (us) of any claim against the United States and against the employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter.

(Emphasis added). With the exception of the underlined phrase, the language in the settlement agreement tracks section 2672 of the FTCA, which provides, in relevant part, that:

The acceptance by the claimant of any such award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States and against the employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter.

Page 1121

28 U.S.C. § 2672. 1

On November 29, 1988, after Mr. Schwarder's death, his son, Aaron Schwarder, filed a wrongful death action against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq. On October 13, 1989, Mr. Schwarder's two daughters, Donna Eubanks and Kathleen Schwarder, also filed a wrongful death action against the United States pursuant to the FTCA. Both complaints alleged that the negligent medical care administered to Mr. Schwarder by the physicians at Loma Linda was the proximate cause of his death. On March 19, 1990, the district court ordered these actions consolidated for all purposes.

The Government moved for summary judgment, arguing that under a proper interpretation of 28 U.S.C. § 2672, the settlement agreement entered into by Harry and Marlis Schwarder barred any subsequent actions for damages brought by their children. The district court denied the Government's motion. On November 27, 1990, the district court entered a final judgment in favor of the Schwarder children. The district court ruled that the money paid to Harry and Marlis Schwarder as a result of their settlement agreement with the United States could not be considered in the court's determination of damages due to the Schwarder children under California wrongful death law. Accordingly, the district court awarded Aaron Schwarder $80,000 for loss of support and $150,000 for non-economic damages including the loss of his father's comfort, affection, society, protection and advice. Kathleen Eubanks and Donna Schwarder each received an award of $50,000 for non-economic damages.

We review de novo the district court's ruling that 28 U.S.C. § 2672 does not bar the Schwarder children's wrongful death action. Earles v. United States, 935 F.2d 1028, 1030 (9th Cir.1991). We also review de novo the district court's interpretation of California law. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

II

This case began as a wrongful death suit against the United States. Absent a waiver of sovereign immunity, a wrongful death suit against the United States would be barred under the sovereign immunity doctrine. The FTCA does not waive sovereign immunity against all wrongful death claims arising from the negligence of United States government officials. Rather, the FTCA waives sovereign immunity only under circumstances

Page 1122

where a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 2674. Thus, the FTCA directs us to look to the law of the state in which the government official committed the tort to determine the scope of sovereign immunity. If the law of that state makes private parties liable for wrongful deaths, then the United States is liable for the same.

In this case, the applicable law is California law, which makes a private tortfeasor liable to the children of the deceased for the wrongful death of their parent. See Cal.Code Civ.Proc. § 377. Because California law provides for a wrongful death cause of action against private tortfeasors, the FTCA waives sovereign immunity against the Schwarder children's wrongful death action against the United States.

The government does not contest any of this. Rather, the government argues that the Schwarder children's otherwise valid FTCA claim of wrongful death against the United States is barred by the settlement agreement executed between the United States and Mr. & Mrs. Schwarder. The settlement agreement, which we have quoted above, tracks the language in section 2672 of the FTCA.

Without citing any legislative history or relevant case law, 2 the government reads section 2672 as standing for the proposition that an FTCA settlement agreement may bar an otherwise valid FTCA claim by someone other than the claimant who executed the settlement. Our review of forty-plus years of FTCA case law has not revealed a single case in which the United States urged this apparently novel interpretation of section 2672.

The government appears to rely primarily on the language of section 2672, which says a settlement agreement shall constitute a release of "any claim ... by reason of the same subject matter." (Emphasis added). Invoking a plain language theory of statutory construction, the government argues that the phrase "any claim" refers to any claim by reason of the same subject matter regardless of the identity of the claimant. As the government acknowledges, however, "the parameters of the bar created by the 'by reason of the same subject matter' language is governed by the act and/or omission of the employee which initially gave rise to the claim." If we were to adopt the government's theory, we would have little choice but to conclude that a settlement agreement by one claimant bars any claim arising from the same act and omission of the employee which gave rise to the initial claim. In other words, if a government vehicle were to crash into an automobile with four passengers who sustained personal injuries and one passenger settled an administrative claim with the government, such a reading of section 2672 would preclude the other passengers from filing suit. Similarly, if a mother were to see her child run over by a negligent government driver, the settlement of the child's action for wrongful injury would destroy an action for emotional distress by the mother. The government

Page 1123

readily concedes, however, that such results would be bizarre.

The government distinguishes the present case from those hypothetical cases on the ground that the claim here is derivative of the claim that was settled. The statute, however, says "any claim," not just "derivative claims." Regardless of whether we decide to read the term "derivative claim" into the statute, it is crystal clear that the government's theory finds no support in...

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43 practice notes
  • Franklin v. U.S., No. 92-6056
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 5, 1993
    ...States v. Neustadt, 366 U.S. 696, 705-06 & n. 15, 81 S.Ct. 1294, 1299-1300 & n. 15, 6 L.Ed.2d 614 (1961); Schwarder v. United States, 974 F.2d 1118, 1125 (9th Cir.1992); Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir.1991); see also Molzof v. United States, --- U.S. ----, ---- - ---......
  • Grost v. United States, EP-13-CV-158-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 4, 2014
    ...statutory and common law to determine whether a claim is procedurally barred or excluded under the FTCA." Schwarder v. United States, 974 F.2d 1118, 1127 (9th Cir. 1992) (citing Neustadt, 366 U.S. at 705-11); see Leleux v. United States, 178 F.3d 750, 755 n.2 (5th Cir. 1999) ("It is a matte......
  • Hayes v. Cnty. of San Diego, No. 09–55644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2013
    ...caused by the wrongful act or neglect of another may be asserted by any of the following persons....”); Schwarder v. United States, 974 F.2d 1118, 1123 n. 3 (9th Cir.1992) (“[T]he cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivativ......
  • Hayes v. County of San Diego, No. 09–55644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 22, 2011
    ...caused by the wrongful act or neglect of another may be asserted by any of the following persons....”); Schwarder v. United States, 974 F.2d 1118, 1123 n. 3 (9th Cir.1992) (“[T]he cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivativ......
  • Request a trial to view additional results
43 cases
  • Franklin v. U.S., No. 92-6056
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 5, 1993
    ...States v. Neustadt, 366 U.S. 696, 705-06 & n. 15, 81 S.Ct. 1294, 1299-1300 & n. 15, 6 L.Ed.2d 614 (1961); Schwarder v. United States, 974 F.2d 1118, 1125 (9th Cir.1992); Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir.1991); see also Molzof v. United States, --- U.S. ----, ---- - ---......
  • Grost v. United States, EP-13-CV-158-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • May 4, 2014
    ...statutory and common law to determine whether a claim is procedurally barred or excluded under the FTCA." Schwarder v. United States, 974 F.2d 1118, 1127 (9th Cir. 1992) (citing Neustadt, 366 U.S. at 705-11); see Leleux v. United States, 178 F.3d 750, 755 n.2 (5th Cir. 1999) ("It is a matte......
  • Hayes v. Cnty. of San Diego, No. 09–55644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 2013
    ...caused by the wrongful act or neglect of another may be asserted by any of the following persons....”); Schwarder v. United States, 974 F.2d 1118, 1123 n. 3 (9th Cir.1992) (“[T]he cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivativ......
  • Hayes v. County of San Diego, No. 09–55644.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 22, 2011
    ...caused by the wrongful act or neglect of another may be asserted by any of the following persons....”); Schwarder v. United States, 974 F.2d 1118, 1123 n. 3 (9th Cir.1992) (“[T]he cause of action granted by Section 377 to the heirs and personal representatives of a decedent is not derivativ......
  • Request a trial to view additional results

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