USCA1 Opinion
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
-2-
2
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).
-3-
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.
-4-
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
-5-
5
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 . . . .
-7-
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
________
-11-
11
