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Kokaras v. United States, 92-1616 (1992)

Court: Court of Appeals for the First Circuit Number: 92-1616 Visitors: 26
Filed: Nov. 23, 1992
Latest Update: Mar. 02, 2020
Summary: November 23, 1992 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _____________________ No. 92-1616 PETER A. KOKARAS AND DIANE KOKARAS, Plaintiffs, Appellants, v. UNITED STATES OF AMERICA, Appellee. Corte-Real v. United States, __________ _____________ 949 F.2d at 485-86;
USCA1 Opinion












November 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 92-1616

PETER A. KOKARAS AND DIANE KOKARAS,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Appellee.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Norman H. Stahl, U.S. District Judge]
___________________

____________________

Before

Torruella, Circuit Judge,
_____________
Brown,* Senior Circuit Judge,
____________________
Bownes, Senior Circuit Judge.
____________________


____________________

David C. Engel with whom Engel and Gearreald were on
_______________ ___________________
brief for appellant.
Elaine Marzetta Lacy, Assistant United States
________________________
Attorney, with whom Jeffrey R. Howard, United States
___________________
Attorney, was on brief for appellee.


____________________


____________________

____________________

*of the Fifth Circuit, sitting by designation.
















BOWNES, Senior Circuit Judge. This is an appeal by
____________________

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



____________________

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-



____________________

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-
______

Real v. United States, 949 F.2d 484 (1st Cir. 1991).
____ _____________

II
II

We start our legal analysis with Corte-Real. In that
__________

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
___

completed the "Total" box, section 10D, by writing in the

figure "$100,000," without qualification. Id. at 485. We
___

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


____________________

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
_____________________________________________
sum certain for injury to or loss of
____________
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:
___

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.
___

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,
__________ _____________

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
_____ _____________

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
_____ _____________

Cir. 1992); Adkins v. United States, 896 F.2d 1324, 1325
______ ______________

(11th Cir. 1990); Montoya v. United States, 841 F.2d 102, 105
_______ _____________

(5th Cir. 1988); GAF Corp. v. United States, 818 F.2d 901,
_________ _____________

919 (D.C. Cir. 1987); Erxleben v. United States, 668 F.2d
________ _____________

268, 272 (7th Cir. 1981); Caton v. United States, 495 F.2d
_____ ______________

635, 638 (9th Cir. 1974); Bialowas v. United States, 443 F.2d
________ _____________

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.
_______

United States, 515 F.2d 246, 249 (5th Cir. 1975), it held
_____________

that the total bills submitted fulfilled the sum-certain

requirement. And in Williams v. United States, 693 F.2d 555,
________ _____________

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
__ ______

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
__________

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
__________

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
_____________________________________________________

further proceedings consistent with this opinion.
_________________________________________________

No costs to either party.
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Source:  CourtListener

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