Coska v. United States

                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         

No. 96-2245

                        BARBARA COSKA,
                    Plaintiff, Appellant,

                              v.

                  UNITED STATES OF AMERICA,
                     Defendant, Appellee.

                                         
         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS
       [Hon. Douglas P. Woodlock, U.S. District Judge]
                                                                 

                                         

                            Before
                   Torruella, Chief Judge,
                                                     

                Bownes, Senior Circuit Judge,
                                                        
                  and Lynch, Circuit Judge.
                                                      
                                         

John B. Manning,  with whom Curtin, Murphy  & O'Reilly,  P.C., was
                                                                         
on brief for appellant.
Mary Elizabeth  Carmody, Assistant  United  States Attorney,  with
                                   
whom  Donald  K.  Stern,  United States  Attorney,  was  on  brief for
                               
appellee.

                                         

                         May 29, 1997
                                         


          LYNCH, Circuit Judge.   Plaintiff-appellant Barbara
                      LYNCH, Circuit Judge
                                          

Coska  brought  suit  against  the United  States  under  the

Federal  Tort Claims  Act,  28 U.S.C.     2671 et  seq.,  for
                                                                   

injuries   she  sustained  in  a  slip-and-fall  accident  on

government  property. Holding  that  Coska failed  to make  a

proper  demand for a "sum certain"  against the United States

within the prescribed two-year limitations period, the United

States  district  court  dismissed  the action  for  lack  of

subject matter jurisdiction and, in the  alternative, granted

the defendant's motion for summary judgment.  We affirm.

                              I.

          Our  review  of the  allowance  of  the motions  to

dismiss  and for summary judgment  is de novo.   See Borschow
                                                                         

Hosp.  & Med. Supplies, Inc. v. Cesar Castillo, Inc., 96 F.3d
                                                                

10, 14 (1st Cir. 1996); Murphy v. United States, 45 F.3d 520,
                                                           

522 (1st Cir. 1995).  We recount the facts in  the light most

favorable to Coska.   See Borschow Hosp. & Med.  Supplies, 96
                                                                     

F.3d at 14;  Murphy, 45 F.3d at 522.
                               

          On  March 15,  1993, Coska  slipped and  fell while

walking on an ice  and snow-covered sidewalk in front  of the

building where she worked at 386 West Broadway, South Boston,

Massachusetts.    Coska alleges  that she  suffered injuries,

including a fractured ankle, as a result of the fall.    

          At the time of the accident, the property was owned

by  the  United States  through  the  United States  Marshals

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Service.  The Marshals Service had  entered into a management

contract with Barlou Management Company which required Barlou

to  maintain the  property  and held  Barlou responsible  for

removing any snow or debris from the parking area, sidewalks,

and entrances to  the premises.  Barlou  then contracted with

another company, Kevin Sutherland Landscaping ("Sutherland"),

to handle the actual removal of any snow and debris.  

          On April 13, 1993,  Coska's counsel sent letters to

the  Marshals  Service  and  to  Barlou Management  regarding

Coska's accident at 386 West Broadway.  In relevant part, the

letter to the United States stated: 

               Please be advised that  we represent
          Ms. Barbara Coska, who  received personal
          injuries as  a result of a  slip and fall
          accident,  caused  by   the  failure   to
          adequately clear the accumulation of snow
          and  ice from  the  sidewalk  located  in
          front of 386 West  Broadway . . . .   Ms.
          Coska   sustained   a   fractured   ankle
          (fractured  in  three  places),   and  is
          currently in an ankle to hip length cast;
          she may require surgery in the future.  A
          claim for her damages resulting from this
          accident is hereby made.  

The  letter   to  Barlou  employed  the   same  language  but

explicitly attributed the  failure to clear the snow  and ice

from the sidewalk to the Barlou Management Company.1  Neither

letter set forth the amount of damages being claimed. 

                    
                                

1.  That    letter   stated   in    relevant   part:   "Coska
. . . received personal injuries  as a result  of a slip  and
fall accident,  caused by Barlou Management  Co.'s failure to
                                                              
adequately  clear the accumulation  of snow and  ice from the
sidewalk . . . ." (emphasis added).

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                                          3


          The Marshals Service  responded to Coska's  counsel

by  letter dated June 7,  1993, advising her  that a claimant

must submit  a claim for damages  in a "sum certain"  for any

injury  allegedly caused  by the  incident before  the agency

could  administratively  adjudicate  her  claim  for monetary

damages.  The letter  enclosed a Standard Form 95  (Claim for

Injury, Damage,  or Death)  (hereinafter "SF-95")  and stated

that the form should be completed and returned along with all

information  and  documentation  substantiating   the  claim.

Coska never returned the requested form.  

          Thirteen  months  later,  Barlou,  but  not  Coska,

forwarded to  the United  States the  "demand packet"  it had

earlier received from Coska's counsel.2  The 118-page packet,

dated June 21, 1994, contained relevant information regarding

Coska's  claim  against Barlou,  including  a  demand against

Barlou in the amount of $225,000.  The letter included in the

packet stated  that Barlou's  failure to clear  the entrances

and sidewalks adjacent to 386 West Broadway was "the sole and
                                                                         

proximate  cause  of  the plaintiff's  accident."   (emphasis
                            

added).    The letter  contained  no  assertion of  liability

against,  or  even  mention  of, the  United  States  or  the

Marshals  Service.  At this point, Coska's counsel had yet to

                    
                                

2.  The  record  is unclear  as  to whether  Barlou  sent the
packet on  its own initiative  or whether  the United  States
requested it.    Regardless,  it  was  not  sent  by  Coska's
counsel.

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                                          4


contact  the  United States  in response  to its  request for

documentation of the claim and/or the SF-95.

      Five  more months passed with  no word from  Coska.  On

December 12, 1994, the Marshals Service sent a second  letter

to Coska's counsel.   This letter "acknowledge[d] receipt" of

the claim,  stated that "[i]n  this regard, the  Federal Tort

Claims [sic]  was received by the  agency to administratively

adjudicate the claim," and then cited to the FTCA.  

          In  its  first  communication with  the  government

since Coska's  initial letter sent almost  two years earlier,

the law firm representing Coska sent a letter to the Marshals

Service  dated February  14, 1995,  informing  the government

that new attorneys from  the same firm would be  handling the

case.   Counsel also asked  in this letter  whether the claim

satisfied the notice requirements of 28 U.S.C.   2401 and the

procedural  requirements  of  the  FTCA.    For  reasons  not

disclosed  by the record,  counsel enclosed a  second copy of

the  demand packet  sent to  Barlou "in  the event  that [the

United  States  was]  missing any  information  [required] to

fully evaluate the claim" and urged the government to contact

them if it needed any additional information. 

          About a month later,  the Marshals Service did just

that.    A paralegal  assigned  to  the case  called  Coska's

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counsel  and requested  a  demand for  a  sum certain.3    In

response, Coska's counsel claimed  that they were waiting for

additional medical bills  beyond those set out  in the demand

packet to Barlou.   The paralegal then sent another  SF-95 to

Coska's counsel, which was never returned.

          The United  States sent  a third letter  to Coska's

counsel  on  June 20,  1995, requesting  a  demand for  a sum

certain and including yet another  SF-95 form.  The  Marshals

Service apparently denied the claim by letter dated September

15,  1995, having  received  no response  to these  requests.

Coska says she did not receive the letter.

          On December  18, 1995,  Coska brought suit  against

the United  States alleging  negligence, breach  of contract,

and breach of  warranty of habitability.4   The United States

filed a motion to  dismiss and, in the alternative,  a motion

for summary judgment.   The district court granted the motion

to  dismiss, alternatively  characterizing it  as a  grant of

summary judgment.    

                             II.

                    
                                

3.  The call  was  either placed  in  late March  before  the
statute of limitations had  run or in early April  just after
the period expired. 

4.  Similar claims  were brought against Barlou.   The United
States filed a cross-claim against Barlou, who in  turn filed
a  third party  complaint  against Sutherland  (snow  removal
contractor). 

                             -6-
                                          6


          As the recitation of facts demonstrates, before the

expiration of  the limitations period, the  United States had

made  one or  two specific  requests for  a sum  certain from

Coska and  had sent her at least  one SF-95 form to complete.

More  requests (with  accompanying  SF-95  forms)  were  made

later.  The issue on appeal is whether Coska's two letters to

the  government  and the  copy  of the  Barlou  demand packet

included in the second of  those letters constitute a  notice

of  claim against the United  States for a  sum certain under

the FTCA.  We find that they do not.

          Under  the FTCA,  a tort  claim against  the United

States is  barred unless  it is  "properly presented"  to the

agency within  two years  of its  accrual.  See  28 U.S.C.   
                                                           

2401(b); Corte-Real v. United States,  949 F.2d 484, 485 (1st
                                                

Cir. 1991).   An  administrative claim is  properly presented

when  it  includes, among  other  things, a  claim  for money

damages in a sum  certain.  See 28 C.F.R.    14.2(a);5 Corte-
                                                                         

Real, 949 F.2d at 485.  A timely filed sum certain claim is a
                

                    
                                

5.  28 C.F.R.   14.2(a) provides in pertinent part:
               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  . . . 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 . . . .

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                                          7


jurisdictional  prerequisite  for a  tort action  against the

federal government.   Kokaras v. United States, 980  F.2d 20,
                                                          

22 (1st Cir. 1992) (citing cases). 

          The purpose  of the  sum  certain requirement  goes

beyond mere administrative convenience;  it is to apprise the

government  of  its possible  liability  and  to provide  the

government with notice "sufficient to allow it to investigate

the  alleged  negligent episode  to  determine  if settlement

would be in the best interests of all."  Corte-Real, 949 F.2d
                                                               

at 486 (quoting  Lopez v.  United States, 758  F.2d 806,  809
                                                    

(1st  Cir. 1985)).    Coska's letter,  which incorporated  by

reference the  Barlou demand  packet, failed to  achieve this

objective.   That packet  contained no information  about the

liability of the United States nor did it state the amount of

damages it would seek from the United States.  Indeed, by its

own terms, the packet asserted a claim that Barlou was solely
                                                              

liable.   As the  district court observed,  the demand packet

against Barlou "is not  an appropriate substitute."  In  none

of  the cases  Coska cites,  where this  court has  allowed a

claim  to proceed despite  a dispute over  the fulfillment of

the  sum certain  requirement, had  the plaintiff  completely

failed  to  assert explicitly  a  damage  amount against  the

United  States.  See, e.g.,  Kokaras, 980 F.2d  at 23; Corte-
                                                                         

Real,  949  F.2d  at  486-87;  Lopez,  758  F.2d 808-11;  cf.
                                                                         

Santiago-Ramirez v.  Secretary of  the Dep't of  Defense, 984
                                                                    

                             -8-
                                          8


F.2d at 17-20 (1st Cir. 1993).6  Thus, Coska's arguments fall

short.7 

          This need for  a specific sum certain  was not kept

secret from Coska  in hopes of  defeating her claim.   To the

contrary,  the  United  States  made  a  number  of  specific

requests for the  sum certain.   All of  those requests  were

ignored.

                    
                                

6.  Coska's reliance on the Ninth Circuit's decision in House
                                                                         
v. Mine Safety Appliances Co., 573 F.2d 609, 615-16 (9th Cir.
                                         
1978)  is also misplaced.  That case supports the notion that
incorporation by reference can, on certain facts, satisfy the
jurisdictional  requirement  of presenting  an administrative
claim.    The  Ninth  Circuit  found  that  the  sum  certain
requirement   had  not   been   met   because   neither   the
incorporating nor the incorporated  documents set forth a sum
certain  claim  of  damages   explicitly  applicable  to  the
claimant(s).   See House,  573 F.2d  at 615-16,  overruled on
                                                                         
other  grounds  by  Warren  v.  United States  Dep't  of  the
                                                                         
Interior, 724 F.2d 776 (9th Cir. 1984) (en  banc). Similarly,
                    
in  this case, Coska made  no "explicit[] link,"  id. at 616,
                                                                 
between  any demand against the  United States and the demand
for a sum certain it asserted against Barlou.

7.  The  government argues  that  Barlou and  Sutherland were
independent  contractors, that  liability was  not joint  and
several  as Coska asserts, and so that notice to Barlou could
not  as a matter of law, provide notice to the United States.
Therefore, the  United States  says, a demand  against Barlou
could not be  a demand against the United States.   To decide
this  case,  we  need   not  address  whether  Barlou  and/or
Sutherland were  "independent contractors" and  thus were not
joint and severally liable.   That the government is  able to
make the argument, whatever its resolution, demonstrates that
it  is far from a  foregone conclusion that  a demand against
Barlou constituted  a demand against  the United States.   As
the district court observed,  a sum certain should  have been
demanded  by   Coska  from   the  United  States   with  some
specificity, irrespective of demands sent to joint or several
or other tortfeasors.  

                             -9-
                                          9


          Coska claims that  affirming the  dismissal of  her

claim would  allow "mere technicalities" to  bar an otherwise

well-made  claim.    All  of  the  information  necessary  to

investigate  the claim,  Coska argues,  was contained  in the

demand packet and  letters.  It is  the information available

rather  than  the  form in  which  it  is  presented that  is

crucial. See,  e.g., Corte-Real,  949 F.2d  at 486; see  also
                                                                         

Santiago-Ramirez,  984 F.2d at  19 n.2.   However,  there was
                            

essential information missing from the packet and the letters

-- namely, the amount of damages being sought from the United

States.    Cf.  Santiago-Ramirez,  984  F.2d  at  19  (notice
                                            

requirement  of 28  U.S.C.    2675  is  satisfied when  claim

includes sufficient information to  investigate claim and the

amount of damages sought).8   Had the plaintiff included that

amount in  any  of  the  correspondence or  even  returned  a

completed SF-95, which includes boxes for personal injury and

total damages,  the situation  may have produced  a different

outcome.  See, e.g., Corte-Real, 949 F.2d at 486-87.  This is
                                           

not a case of exalting form over substance, nor is  it a case

of "bureaucratic overkill."  Cf. id. at 486.
                                                

                    
                                

8.  We  reject  Coska's  argument  that  the  district  court
effectively  merged the  statutory notice  requirement of  28
U.S.C.    2675 and the presentment requirement of 28 C.F.R.  
14.2(a).  This is a matter of subject matter jurisdiction.  A
federal court has no jurisdiction to entertain a suit against
the  United  States  unless  a  claimant  has  presented,  in
writing,  a claim stating a sum certain.  See Corte-Real, 949
                                                                    
F.2d  at 485; Gonzalez-Bernal v. United States, 907 F.2d 246,
                                                          
248 (1st Cir. 1990).

                             -10-
                                          10


          Lastly,   Coska  argues  that  the  district  court

impermissibly  relied on  the government's  repeated requests

for  a  sum   certain  made  after  the   expiration  of  the

limitations  period  in  coming  to its  decision.    Without

addressing whether  Coska waived this argument,  we find that

even without  the consideration of  the one  to two  requests

made  after  the  limitations period  passed,  Coska's  claim

fails.  The district court's  finding hardly "rested" on  the

requests made after the  limitations period; it observed only

that  the  government  gave  Coska  adequate  notice  of  the

shortcomings  of  her  submissions  and  that  "perhaps"  the

outcome would be different had such notice not been given. 

            Affirmed.
                        Affirmed
                                

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                                          11