
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
