coska v. united states, 1st cir. (1997)

7/26/2019 Coska v. United States, 1st Cir. (1997)

1/29

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.


2/29

____________________

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._______________ ______________________________

on brief for appellant.

Mary Elizabeth Carmody, Assistant United States Attorney_______________________

whom Donald K. Stern, United States Attorney, was on br_________________

appellee.

____________________


3/29

May 29, 1997

____________________

LYNCH, Circuit Judge. Plaintiff-appellant Barba


4/29

LYNCH, Circuit Judge _____________

Coska brought suit against the United States under t

Federal Tort Claims Act, 28 U.S.C. 2671 et seq., f __ ____

injuries she sustained in a slip-and-fall accident

government property. Holding that Coska failed to make

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

within the prescribed two-year limitations period, the Unit

States district court dismissed the action for lack

subject matter jurisdiction and, in the alternative, grant

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

I.

Our review of the allowance of the motions

dismiss and for summary judgment is de novo. See Borsc __ ____ ___ _____


5/29

Hosp. & Med. Supplies, Inc. v. Cesar Castillo, Inc., 96 F. ____________________________ ____________________

10, 14 (1st Cir. 1996); Murphy v. United States, 45 F.3d 52 ______ _____________

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

favorable to Coska. See Borschow Hosp. & Med. Supplies,___ _______________________________

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

On March 15, 1993, Coska slipped and fell whi

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

building where she worked at 386 West Broadway, South Bosto

Massachusetts. Coska alleges that she suffered injurie

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

At the time of the accident, the property was own

by the United States through the United States Marsha


6/29

-2- 2

Service. The Marshals Service had entered into a manageme

contract with Barlou Management Company which required Barl

to maintain the property and held Barlou responsible f

removing any snow or debris from the parking area, sidewal

and entrances to the premises. Barlou then contracted wi


7/29

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

the Marshals Service and to Barlou Management regardi

Coska's accident at 386 West Broadway. In relevant part, t

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 b


8/29

explicitly attributed the failure to clear the snow and i

from the sidewalk to the Barlou Management Company.1 Neit

letter set forth the amount of damages being claimed.

____________________

1. That letter stated in relevant part: "Cos

. . . received personal injuries as a result of a slip a

fall accident, caused by Barlou Management Co.'s failure__________________________________

adequately clear the accumulation of snow and ice from t

sidewalk . . . ." (emphasis added).

-3- 3


9/29

The Marshals Service responded to Coska's couns

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

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

injury allegedly caused by the incident before the agen

could administratively adjudicate her claim for moneta

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

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

that the form should be completed and returned along with a

information and documentation substantiating the clai

Coska never returned the requested form.

Thirteen months later, Barlou, but not Cos

forwarded to the United States the "demand packet" it


10/29

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

dated June 21, 1994, contained relevant information regardi

Coska's claim against Barlou, including a demand again

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

packet stated that Barlou's failure to clear the entranc

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

proximate cause of the plaintiff's accident." (emphas ________________

added). The letter contained no assertion of liabili

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

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

____________________

2. The record is unclear as to whether Barlou sent t


11/29

packet on its own initiative or whether the United Stat

requested it. Regardless, it was not sent by Coska

counsel.

-4- 4

contact the United States in response to its request f

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

Five more months passed with no word from Coska.

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


12/29

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

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

Claims [sic] was received by the agency to administrative

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

In its first communication with the governme

since Coska's initial letter sent almost two years earlie

the law firm representing Coska sent a letter to the Marsha

Service dated February 14, 1995, informing the governme

that new attorneys from the same firm would be handling t

case. Counsel also asked in this letter whether the cla

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

procedural requirements of the FTCA. For reasons n

disclosed by the record, counsel enclosed a second copy

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


13/29

United States was] missing any information [required]

fully evaluate the claim" and urged the government to conta

them if it needed any additional information.

About a month later, the Marshals Service did ju

that. A paralegal assigned to the case called Coska

-5- 5


14/29

counsel and requested a demand for a sum certain.3

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

additional medical bills beyond those set out in the dema

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

Coska's counsel, which was never returned.

The United States sent a third letter to Coska

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

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

Service apparently denied the claim by letter dated Septemb

15, 1995, having received no response to these request

Coska says she did not receive the letter.


15/29

On December 18, 1995, Coska brought suit again

the United States alleging negligence, breach of contrac

and breach of warranty of habitability.4 The United Stat

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

for summary judgment. The district court granted the moti

to dismiss, alternatively characterizing it as a grant

summary judgment.

II.

____________________

3. The call was either placed in late March before t

statute of limitations had run or in early April just aft

the period expired.

4. Similar claims were brought against Barlou. The Unit


16/29

States filed a cross-claim against Barlou, who in turn fil

a third party complaint against Sutherland (snow remo

contractor).

-6- 6

As the recitation of facts demonstrates, before t

expiration of the limitations period, the United States

made one or two specific requests for a sum certain fr

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


17/29

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

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

the government and the copy of the Barlou demand pac

included in the second of those letters constitute a noti

of claim against the United States for a sum certain un

the FTCA. We find that they do not.

Under the FTCA, a tort claim against the Unit

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

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

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

Cir. 1991). An administrative claim is properly present

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

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


18/29

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

____________________

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


19/29

jurisdictional prerequisite for a tort action against t

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

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

The purpose of the sum certain requirement go

beyond mere administrative convenience; it is to apprise t

government of its possible liability and to provide t

government with notice "sufficient to allow it to investiga

the alleged negligent episode to determine if settleme

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


20/29

at 486 (quoting Lopez v. United States, 758 F.2d 806, 8 _____ _____________

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

reference the Barlou demand packet, failed to achieve t

objective. That packet contained no information about t

liability of the United States nor did it state the amount

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

own terms, the packet asserted a claim that Barlou was sole ______

liable. As the district court observed, the demand pac

against Barlou "is not an appropriate substitute." In no

of the cases Coska cites, where this court has allowe

claim to proceed despite a dispute over the fulfillment

the sum certain requirement, had the plaintiff complete

failed to assert explicitly a damage amount against t


21/29

United States. See, e.g., Kokaras, 980 F.2d at 23; Cort ___ ____ _______ ___

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

____ _____

Santiago-Ramirez v. Secretary of the Dep't of Defense, 9 ________________ ___________________________________

-8- 8

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


22/29

short.7

This need for a specific sum certain was not ke

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

contrary, the United States made a number of specif

requests for the sum certain. All of those requests we

ignored.

____________________

6. Coska's reliance on the Ninth Circuit's decision in Hou __

v. Mine Safety Appliances Co., 573 F.2d 609, 615-16 (9th Ci __________________________

1978) is also misplaced. That case supports the notion t

incorporation by reference can, on certain facts, satisfy t

jurisdictional requirement of presenting an administrati

claim. The Ninth Circuit found that the sum certa

requirement had not been met because neither t

incorporating nor the incorporated documents set forth a s


23/29

certain claim of damages explicitly applicable to t

claimant(s). See House, 573 F.2d at 615-16, overruled___ _____ _________

other grounds by Warren v. United States Dep't of t __________________ ______ __________________________

Interior, 724 F.2d 776 (9th Cir. 1984) (en banc). Similarl ________

in this case, Coska made no "explicit[] link," id. at 61 ___

between any demand against the United States and the dema

for a sum certain it asserted against Barlou.

7. The government argues that Barlou and Sutherland we

independent contractors, that liability was not joint a

several as Coska asserts, and so that notice to Barlou cou

not as a matter of law, provide notice to the United State

Therefore, the United States says, a demand against Barl

could not be a demand against the United States. To deci

this case, we need not address whether Barlou and/

Sutherland were "independent contractors" and thus were n

joint and severally liable. That the government is able

make the argument, whatever its resolution, demonstrates t

it is far from a foregone conclusion that a demand again

Barlou constituted a demand against the United States.

the district court observed, a sum certain should have be

demanded by Coska from the United States with so

specificity, irrespective of demands sent to joint or sever

or other tortfeasors.


24/29

-9- 9

Coska claims that affirming the dismissal of

claim would allow "mere technicalities" to bar an otherwi

well-made claim. All of the information necessary

investigate the claim, Coska argues, was contained in t

demand packet and letters. It is the information availab

rather than the form in which it is presented that


25/29

crucial. See, e.g., Corte-Real, 949 F.2d at 486; see al ___ ____ __________ ___ _

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

________________

essential information missing from the packet and the lette

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

States. Cf. Santiago-Ramirez, 984 F.2d at 19 (noti ___ ________________

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

includes sufficient information to investigate claim and t

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

amount in any of the correspondence or even returned

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

total damages, the situation may have produced a differe

outcome. See, e.g., Corte-Real, 949 F.2d at 486-87. This___ ____ __________


26/29

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

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

____________________

8. We reject Coska's argument that the district cou

effectively merged the statutory notice requirement of

U.S.C. 2675 and the presentment requirement of 28 C.F.R.

14.2(a). This is a matter of subject matter jurisdiction.

federal court has no jurisdiction to entertain a suit again

the United States unless a claimant has presented,

writing, a claim stating a sum certain. See Corte-Real, 9 ___ __________

F.2d at 485; Gonzalez-Bernal v. United States, 907 F.2d 24 _______________ _____________

248 (1st Cir. 1990).

-10- 10


27/29

Lastly, Coska argues that the district cou

impermissibly relied on the government's repeated reques

for a sum certain made after the expiration of t

limitations period in coming to its decision. Witho

addressing whether Coska waived this argument, we find t

even without the consideration of the one to two reques

made after the limitations period passed, Coska's cla

fails. The district court's finding hardly "rested" on t

requests made after the limitations period; it observed on

that the government gave Coska adequate notice of t

shortcomings of her submissions and that "perhaps" t


28/29

outcome would be different had such notice not been given.

Affirmed.

Affirmed ________


29/29

-11- 11

coska v. united states, 1st cir. (1997)

Documents