Dutra v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE DUTRA, a minor, by and 
through his Guardian;
COMMENCEMENT BAY GUARDIANSHIP
SERVICES; MISTY M. DUTRA, No. 05-36146
individually and as natural mother
of Jose Dutra, a minor,  D.C. No.
CV-04-05025-RBL
Plaintiffs-Appellees,
OPINION
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Argued and Submitted
July 28, 2006—Seattle, Washington

Filed March 5, 2007

Before: J. Clifford Wallace, Kim McLane Wardlaw, and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Wardlaw

2421
 DUTRA v. UNITED STATES 2423

COUNSEL

John McKay, United States Attorney for the Western District
of Washington, Seattle, Washington; Darwin P. Roberts,
Assistant United States Attorney for the Western District of
Washington, Seattle, Washington, for the defendant-appellant.

James L. Holman, Law Offices of James L. Holman, Tacoma,
Washington; J. William Ashbaugh, Stafford Frey Cooper,
Seattle, Washington, for the plaintiff-appellee Jose Dutra.

John C. Galbraith, Law Office of John C. Galbraith, Tacoma,
Washington, for the plaintiff-appellee Misty M. Dutra.

OPINION

WARDLAW, Circuit Judge:

The United States appeals the district court’s judgment
awarding damages in this Federal Tort Claims Act (FTCA)
action brought by Jose Dutra, by and through his guardian,
Commencement Bay Guardianship Services, and Misty Dutra,
individually and as mother of Jose (“Appellees”), for injuries
sustained during Jose’s delivery. The United States contends
that the district court erred when it refused the government’s
request to enter a judgment that provides for the periodic pay-
ment of Jose’s future economic damages, pursuant to Wash.
Rev. Code § 4.56.260. We have jurisdiction under 28 U.S.C.
§ 1291, and we reverse and remand.

[1] The district court erred in failing to apply § 4.56.260
2424 DUTRA v. UNITED STATES
after the United States requested it to do so. Here, the FTCA
requires the district court to apply Washington law. See 28
U.S.C. § 2674; see also id. § 1346(b). Under Washington law,
in certain personal injury actions for future economic dam-
ages, “the court or arbitrator shall, at the request of a party,
enter a judgment which provides for the periodic payment . . .
of the future economic damages.” Wash. Rev. Code
§ 4.56.260(1) (emphasis added); Cornejo v. State, 788 P.2d
554, 560 (Wash. App. 1990). The United States properly
invoked § 4.56.260 by stating in its trial brief, submitted sev-
eral weeks before trial, “The United States respectfully
requests that the court award future medical damages pursuant
to Rev. C. Wash § 4.56.020 which provides for the award of
future economic damages as follows,”1 and then quoting the
full text of § 4.56.260. The record belies Appellees’ conten-
tion that the United States requested the district court to
impose a reversionary trust but did not invoke the Washington
periodic payment statute. A reversionary trust is one possible
mechanism to effectuate the periodic payment of future medi-
cal expenses; it is not an alternative remedy, nor is it inconsis-
tent with § 4.56.260.

[2] We reject Appellees’ argument that even if the United
States properly invoked § 4.56.260, the statute is incompatible
with federal law because the FTCA prohibits the United
States from making periodic payments. The FTCA authorizes
courts to craft remedies that approximate the results contem-
plated by state statutes, and nothing in the FTCA prevents dis-
trict courts from ordering the United States to provide
periodic payments in the form of a reversionary trust. See 28
U.S.C. § 2674; United States v. Olson, 126 S. Ct. 510, 513
(2005). Nor did the United States waive its right to invoke
§ 4.56.260, regardless of whether its estimation of the cost to
1
Appellees do not challenge and the record supports the government’s
claim that it intended to refer to § 4.56.260 and that its reference to
§ 4.56.020 was inadvertent, and that the district court understood the
United States to be referring to § 4.56.260.
 DUTRA v. UNITED STATES 2425
fund Jose’s life care plan satisfied § 4.56.260(2)’s criteria for
payment plan proposals. Until the district court requests pro-
posals from each party, neither party is obligated to offer a
proposal that complies with § 4.56.260(2).

[3] After the United States requested that the district court
apply § 4.56.260, the district court was required to solicit pay-
ment plan proposals from each party, see Wash. Rev. Code
§ 4.56.260(2); select and, if necessary, modify the proposal
that “best provides for the future needs of the claimant,” id.;
and “enter a judgment which provides for the periodic pay-
ment in whole or in part of the future economic damages,” id.
§ 4.56.260(1). On remand, the district court is instructed to
properly apply the statute.

REVERSED AND REMANDED.