USCA1 Opinion
November 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1616
PETER A. KOKARAS AND DIANE KOKARAS,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Brown,* Senior Circuit Judge,
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Bownes, Senior Circuit Judge.
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David C. Engel with whom Engel and Gearreald were on
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brief for appellant.
Elaine Marzetta Lacy, Assistant United States
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Attorney, with whom Jeffrey R. Howard, United States
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Attorney, was on brief for appellee.
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*of the Fifth Circuit, sitting by designation.
BOWNES, Senior Circuit Judge. This is an appeal by
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plaintiffs-appellants Peter A. Kokaras and Diane Kokaras,
spouses, from a dismissal of their complaint, brought under
the Federal Torts Claims Act (FTCA) for lack of subject
matter jurisdiction because of the failure to file a sum-
certain claim within the prescribed statutory period.
I
I
On May 8, 1987, plaintiffs sustained personal injury
to themselves and damage to their automobile when it was
struck in the rear by a United States mail truck. On June 2,
1987, plaintiffs filed a Standard Form (SF) 95 with the
Postmaster at the United States Post Office in Hampton, New
Hampshire. On line 10, entitled "Amount of Claim (in
Dollars)," the figure $2,906.61 was inserted in box A,
entitled, "Property Damage"; in box B, entitled, "Personal
Injury," the words "to be determined" were written. Box C
entitled, "Total," was left blank.1 Line 15, entitled,
"Signature of Claimant," was signed only by Peter Kokaras.
Plaintiffs were not represented by counsel at the time the SF
95 was executed and filed.
In the spring of 1988, plaintiffs retained Attorney
Alfred J. Cirome to represent them. This was well within the
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1Box C, entitled, "Wrongful death" was also left blank. It
appears that plaintiffs submitted property damage
documentation and some medical documentation with the
original form.
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two-year statutory period for filing a tort claim with the
Postal Service. 28 U.S.C. 2401(b). No amended SF 95 was
filed within the two-year period. Attorney Cirome entered
into discussions, both in person and on the telephone, with
agents of the Postal Service in an effort to settle
plaintiffs' claim. The settlement negotiations were not
fruitful. During the
course of the settlement discussions, Attorney Cirome turned
over to the Postal Service's agents medical bills incurred by
the plaintiffs along with medical diagnoses and prognoses
concerning plaintiffs' injuries. Based on the record, it
appears that no sum-certain demand was made either orally or
in writing by Attorney Cirome.
New counsel was obtained by plaintiffs,2 and on
April 26, 1990, suit was brought against the United States
under the Federal Torts Claims Act. 28 U.S.C. 2671-2680.
The Postal Service denied plaintiffs' claim on August 2,
1990, on the ground that it was invalid, stating that "it
does not inform us to [sic] any dollar amount being claimed."
Three weeks prior to the Postal Service's denial of
plaintiffs' claim, the United States had filed a motion to
dismiss for lack of subject matter jurisdiction. The motion
was predicated on the well-established rule that a timely-
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2Attorney David C. Engel represented plaintiffs below and on
appeal.
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filed sum-certain claim is a prerequisite for jurisdiction of
a tort action against the United States.3 The district
court initially denied the motion to dismiss. The district
judge, however, changed his mind after our decision in Corte-
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Real v. United States, 949 F.2d 484 (1st Cir. 1991).
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II
II
We start our legal analysis with Corte-Real. In that
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case we held that the administrative claim stated a sum
certain even though the personal injury box, section 10B of
the SF 95, was filled out as follows: "$100,000 plus because
still treating and out of work." Id. at 486. Plaintiff had
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completed the "Total" box, section 10D, by writing in the
figure "$100,000," without qualification. Id. at 485. We
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held that "[w]here as here a claim clearly states a specific
sum and meets the sum certain requirement in all respects but
for concern over the possible detraction of improper
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3The Federal Code of Regulations provides in pertinent part:
14.2 Administrative claim; when
14.2 Administrative claim; when
presented.
presented.
(a) For purposes of the provisions of
28 U.S.C. 2401(b), 2672, and 2675, 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
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sum certain for injury to or loss of
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property, personal injury, or death alleged
to have occurred by reason of the incident; .
. . .
28 C.F.R. 14.2 (1991) (emphasis added).
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surplusage of this insubstantial variety, we see no reason
not to strike the surplusage rather than the claim itself."
Id. at 587. The following language reflects our reasoning:
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We agree fully with the Government as
to the importance and absolute necessity of
adherence to the sum certain requirement. We
disagree, however, that plaintiff's SF95, as
submitted, was so deficient as to fall
outside the parameters of that requirement.
The SF95 did, in fact, specify a sum
certain $100,000 in both boxes, and this
figure was unqualified in the box stating the
total amount of the claim. To be sure, when
the $100,000 appeared in Section 10(B) it was
unfortunately accompanied by language
suggesting the possibility of a higher claim.
The Government was entitled and indeed
required, if it was to proceed with the
claim, to disregard this. We think it should
have done so. To throw out the claim
entirely, as other than one for a sum
certain, was, on these facts, bureaucratic
overkill.
Id. at 486.
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With respect to the personal injury claim, however,
the case before us is not one of "bureaucratic overkill."
Nowhere on form SF 95 is a sum certain for the personal
injuries stated. Moreover, we agree with the district court
that any documentation of personal injury submitted was
"disorganized and confusing." Some of the bills submitted
are duplicates, others are incomplete, and others reflect the
balance due after insurance payments. This presentation did
not lend itself to determination of a sum certain or even an
approximate total of damages claimed.
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Although negotiations ensued between plaintiffs'
attorney and agents of the Postal Service, there is no
evidence in the record that a sum certain was ever stated
orally or in writing by plaintiffs' attorney. Moreover, the
affidavits of Attorney Cirome and Postal Agent Dumont are in
conflict. Cirome states that Dumont represented to him on
more than one occasion, including on May 5, 1989, at which
time Cirome attests he submitted medical reports and bills,
that the plaintiffs' claims had been satisfactorily
presented. Postal Service Agent Dumont states, by contrast,
that he never advised the plaintiffs or their representative
that the claims were satisfactorily presented. More
importantly, Agent Dumont attests:
Plaintiffs' August 7, 1990 submission to the
court includes numerous documents which the
plaintiffs never submitted to the Postal
Service with their administrative claim.
These new documents were provided to the
Postal Service for the first time on
August 29, 1990.
Because the accident happened on May 8, 1987, any bills
submitted to the Postal Service in 1990 would be well beyond
the two-year limit for filing administrative claims.
This court has consistently held that a timely-
presented claim stating a sum certain is necessary for a
court to have jurisdiction to entertain a suit against the
United States under the FTCA. Corte-Real v. United States,
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949 F.2d at 485-86; Gonzalez-Bernal v. United States, 907
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F.2d 246, 248 (1st Cir. 1990); Lopez v. United States, 758
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F.2d 806, 809 (1st Cir. 1985). The rule is the same in other
circuits. Cizek v. United States, 953 F.2d 1232, 1234 (10th
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Cir. 1992); Adkins v. United States, 896 F.2d 1324, 1325
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(11th Cir. 1990); Montoya v. United States, 841 F.2d 102, 105
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(5th Cir. 1988); GAF Corp. v. United States, 818 F.2d 901,
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919 (D.C. Cir. 1987); Erxleben v. United States, 668 F.2d
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268, 272 (7th Cir. 1981); Caton v. United States, 495 F.2d
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635, 638 (9th Cir. 1974); Bialowas v. United States, 443 F.2d
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1047, 1049 (3rd Cir. 1971).
The Fifth Circuit has taken a broad view as to what
constitutes the statement of a sum certain. In Molinar v.
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United States, 515 F.2d 246, 249 (5th Cir. 1975), it held
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that the total bills submitted fulfilled the sum-certain
requirement. And in Williams v. United States, 693 F.2d 555,
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558 (5th Cir. 1982), it held that the itemized claim for
damages as set forth in the state court complaint would be
taken together with the administrative claim form to meet the
notice requirements of the FTCA. But even if we followed the
lead of the Fifth Circuit in regard to the personal injuries
claim, not enough medical information was timely submitted to
come anywhere near meeting the sum-certain jurisdictional
requirement. The personal injuries claims submitted by
plaintiffs can be characterized as the Tenth Circuit did in
Cizek v. United States, in which the plaintiff/appellant
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did not present a claim containing a
statement of a sum certain of the damages
sought, which would have allowed the
government to make even a reasonable estimate
of the value of [his] claim, until after the
limitations period had run.
953 F.2d at 1234. We hold that the district court did not
have jurisdiction to entertain the plaintiffs' personal
injury claims.
It does not necessarily follow, however, that the
extinguishment of the personal injury claims also erases the
property damage claim. We believe that the plaintiffs'
property damage claim is severable and that plaintiffs
satisfactorily presented a sum certain with respect to their
property damage claim. At the time they originally filed
their SF 95, plaintiffs set forth the specific sum of
$2,906.61 in the box entitled, "Property Damage."
Accompanying the SF 95 was a corroborating repair estimate.
Although the repair estimate was somewhat lower than the sum
certain stated, it included the name and address of the
company which made the estimate. This information was
sufficient for purposes of investigation. Unlike the
personal injury claim, the government had the information it
needed to assess plaintiffs' property claim from the date
plaintiffs filed their SF 95 form. Moreover, we note that
prior to the district court's issuance of its opinion, the
government had moved "to reduce the ad damnum claimed in this
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action from $500,000 to the amount set forth in the
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administrative claim of $2,906.61." This was a tacit
admission by the government that the property damage claim
met the sum-certain jurisdictional requirement.
We believe that the district court went too far in
discarding the property damage claim along with the personal
injury claim. Our decision in Corte-Real supports saving a
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claim that is flawed, where the government's investigatory
needs are satisfied. Indeed, dismissing plaintiffs' certain
and unwavering claim for property damages would be indulging
the same type of "bureaucratic overkill" that we criticized
in Corte-Real. Because the sum-certain requirement was met
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for the property damage claim, we hold that plaintiffs are
entitled to proceed on that claim. The limit on recovery, if
there is one, is the amount stated, $2,906.61.
Affirmed in part, reversed in part. Remanded for
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further proceedings consistent with this opinion.
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No costs to either party.
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