Van Fossen v. United States

• Decision Date: 08 June 1977
• Docket Number: No. C-76-1483-CBR.,C-76-1483-CBR.
• Citation: 430 F. Supp. 1017
• Court: U.S. District Court — Northern District of California
• Parties: James I. VAN FOSSEN and Jane M. Van Fossen, Individually and as natural parents of Jen A. Van Fossen, Deceased, and on behalf of John F. Van Fossen, Plaintiffs, v. UNITED STATES of America, Defendant.

430 F. Supp. 1017

James I. VAN FOSSEN and Jane M. Van Fossen, Individually and as natural parents of Jen A. Van Fossen, Deceased, and on behalf of John F. Van Fossen, Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-76-1483-CBR.

United States District Court, N. D. California.

April 4, 1977.

As Amended June 8, 1977.

John F. Sullivan, Sullivan, Johnson & Graham, San Francisco, Cal., George E. Farrell, Healey & Farrell, Washington, D. C., for plaintiffs.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Mark A. Dombroff, Trial

Atty., U. S. Dept. of Justice, Washington, D. C., for defendant.

MEMORANDUM OF OPINION

RENFREW, District Judge.

This suit is an action for wrongful death brought under the Federal Tort Claims Act ("Tort Claims Act").¹ It is alleged by plaintiffs that decedent, their daughter Jen A. Van Fossen, was a cabin attendant aboard Trans World Airlines Flight 514 which crashed in the vicinity of Berryville, Virginia, on December 1, 1974. It is further alleged that the crash was caused by the negligence of employees of the Federal Aviation Administration ("FAA"), who were acting within the scope of their employment for defendant United States. Damages in the sum of $500,000 were sought. Plaintiffs, James I. Van Fossen and Jane M. Van Fossen, as parents of the deceased, initiate this action for themselves individually and on behalf of John F. Van Fossen, brother of the deceased, subsequent to FAA's denial of their administrative claim on June 8, 1976. See Plaintiff's Exhibit B.

Since the 1966 amendment to 28 U.S.C. § 2675(a)² of the Tort Claims Act, any person having a damage claim against the United States must first present that claim to the appropriate Federal agency and await a final denial before instituting a court proceeding. The administrative claim must be presented within two years "after such claim accrues", and the court proceeding must be commenced within six months after a notice of final denial or be forever barred by the statute of limitations contained in 28 U.S.C. § 2401(b).³ Proper presentation of the claim to the appropriate agency is a mandatory prerequisite to any later court action under the Tort Claims Act. Numerous courts have held that compliance with § 2675(a) is a jurisdictional requirement which may not be waived. E. g., Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, 515 (6 Cir. 1974); Bialowas v. United States, 443 F.2d 1047, 1049 (3 Cir. 1971). Without a claim having been properly filed under § 2675, a court must refuse to entertain the action. Caton v. United States, 495 F.2d 635, 638 (9 Cir. 1974).

Plaintiffs have filed a motion for declaratory judgment on the ground that they have presented a valid administrative claim thereby satisfying § 2675(a) and creating jurisdiction in the federal courts. Defendant has filed a counter motion to dismiss on the ground that plaintiffs are not proper parties plaintiff in this action.

The Attorney General has issued regulations which define the exact procedure to be followed in filing administrative claims under the Tort Claims Act.⁴ It is disputed here whether plaintiffs have complied with Regulation 14.3(c) which states:

"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."

The government concluded that the plaintiffs were not "legally entitled to assert" a wrongful death claim in the courts of Virginia and had therefore not presented a valid administrative claim. This conclusion was based on two assumptions. First, the law of Virginia was applicable in this case since liability under the Tort Claims Act is determined pursuant to the law of the state where the tortious conduct occurred. Second, because, under the law of Virginia, plaintiffs were not entitled to bring a court action for wrongful death without the appointment of a Virginia personal representative, they also were not entitled to present an administrative claim without that same representative. These views are stated succinctly in the FAA's letter of June 8, 1976, denying plaintiffs' claim:

"Since the alleged acts or omissions committed by government employees which you allege caused the accident in question occurred in the State of Virginia, the law of that state applies. Pursuant to Code of Virginia, 1950, Section 8-633 et seq., an action for wrongful death may only be brought by and in the name of a personal representative of the deceased. Therefore, since document submitted purports to be a claim on behalf of James Van Fossen as an individual, there can be no liability on the part of the United States." (Emphasis added.)

There can be no question that the government was correct in its first assumption. The whole law of Virginia, including its choice of law rules, controlled this action since Virginia was undisputedly the place where the tortious act or omission occurred. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Under Virginia choice of law rules, the law of the place of the accident governs the action, Betts v. Southern Ry., 71 F.2d 787, 789 (4 Cir. 1934); State of Maryland v. Coard, 175 Va. 571, 9 S.E.2d 454, 455-456 (1940), thus, we must look to the Virginia Death by Wrongful Act Statute and the other laws of that state for guidance.

In making its second assumption, the government pointed first to § 8-634 of the Virginia statute which states, in part:

"Every such action shall be brought by and in the name of the personal representative of such deceased person and within two years after his or her death, but if any such action is brought within such period of two years after such person's death, and for any cause abates or is dismissed without determining the merits of such action, the time such action is pending shall not be counted as any part of such period of two years, and another suit may be brought within the remaining period of such two years as if such former suit had not been instituted." Code of Virginia, § 8-634.

This provision must, in turn, be read with § 26-59 of the Code of Virginia, 1950, which explicitly restricts the appointment of personal representatives:

"No natural person not a resident of this State

"* * * shall be appointed or allowed to qualify or act as personal representative * * * of any decedent." Code of Virginia, § 26-59.

The courts of Virginia have staunchly upheld this statute as the expressed public policy of the state, McDaniel v. North Carolina Pulp Co., 198 Va. 612, 95 S.E.2d 201, 203-204 (1956), and it has been held to be binding in the federal courts. Grady v. Irvine, 254 F.2d 224, 228 (4 Cir. 1958); Holt v. Middlebrook, 214 F.2d 187 (4 Cir. 1954).

To this point in its argument, the government correctly outlined the substantive nature and applicability of the Virginia statutes. But its conclusion, that merely because plaintiffs are not entitled to bring the action they thereby are not entitled to assert a claim for wrongful death, is entirely unfounded. The government has confused the concept of a right to bring an action with that of a right to assert a claim for recovery. The conclusion misinterprets the law of Virginia, and the dismissal of the action would frustrate the administrative claims procedure in a manner not intended by Congress.

Simply put, by its argument, the government has suggested that the words "bring an action" be used interchangeably with the words "assert a claim" in Regulation 14.3(c). Yet, it offered no authority in support of this construction, nor did it put forth any rationale for why this Court should adopt that view. A claimant who lacks the capacity to bring a wrongful death action in a state court may, nonetheless, be entitled to assert a claim in those courts for a part of the proceeds recovered. Such is the case in Virginia.

While only a resident personal representative may bring an action for wrongful death, that representative has no individual right to assert the claim:

"The act requires the suit to be brought by and in the name of the personal representative, but he by no means sues in his general right as a representative. He sues wholly by virtue of the statute, and in respect of a different right. His suit proceeds on different principles. He sues, not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased, who are designated in the statute." Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S.E. 269, 271 (Va.1896); see also Wilson v. Whittaker, 207 Va. 1032, 154 S.E.2d 124, 128 (Va. 1967).

Plaintiffs are among the statutory beneficiaries named in § 8-636.1, which states in relevant part:

"The jury in any such action may award such damages as to it may seem fair and just, and may direct in what proportion they shall be distributed to the surviving spouse, children, and grandchildren of the deceased, or if there be none such, then to the parents, brothers and sisters of the deceased. As to members of the same class, the jury shall have discretion as to who shall receive the whole or any part of the recovery." Code of Virginia, § 8-636.1.

Once an amount has been recovered in the wrongful death suit, the statutory beneficiaries may sue the personal representative for an accounting of the proceeds. Patterson v. Anderson, 194 Va. 557, 74 S.E.2d 195, 203, cert. denied, 345 U.S. 965, 73 S.Ct. 952, 97 L.Ed. 1384 (1953); McDaniel v. North Carolina Pulp Co., supra, 95 S.E.2d at 206. It is specious to argue that persons who are named as statutory beneficiaries with a right to an accounting from their personal representatives are not legally entitled to assert a claim for wrongful death. The beneficiaries' lack of capacity to institute the action because they are nonresidents of Virginia cannot logically be construed as obliterating their substantive rights. This Court can imagine no better way to...