           In the United States Court of Federal Claims
                                           No. 15-764C
                                       Filed March 20, 2017

                                               )
 TREVOR LANGKAMP,                              )
                                               )
                Plaintiff,                     )
                                               )
                                                       Motion for Summary Judgment; RCFC
 v.                                            )
                                                       56; Breach of Contract; Annuity.
                                               )
 THE UNITED STATES,                            )
                                               )
                Defendant.                     )
                                               )

        Patrick James Attridge, Counsel of Record, King & Attridge, Rockville, MD, for
plaintiff.

       Mollie L. Finnan, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.
Kirschman, Jr., Director, Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, for defendant.

                             MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, Trevor Langkamp, brought this breach of contract matter alleging that the
government breached a stipulation for compromise settlement that his parents entered into with
the United States to resolve a personal injury lawsuit brought on his behalf (the “Settlement
Agreement”). Plaintiff and the government have filed cross-motions for summary judgment on
the issue of liability, pursuant to Rule 56 of the Rules of the United States Court of Federal
Claims (“RCFC”). Pl. Mot.; Def. Mot. For the reasons set forth below, the Court DENIES
plaintiff’s motion for partial summary judgment on liability and GRANTS the government’s
cross-motion for summary judgment on liability.




                                                   1
II.    FACTUAL AND PROCEDURAL BACKGROUND1

       A. Factual Background

       In this breach of contract matter, plaintiff, Trevor Langkamp, alleges that the government
has breached the Settlement Agreement that his parents entered into with the United States in
1984 to resolve a personal injury lawsuit brought on Mr. Langkamp’s behalf. Specifically,
plaintiff alleges that the Settlement Agreement obligates the government to make and guarantee
certain structured payments provided for in the agreement. See Compl. at ¶¶ 14-23. Plaintiff
further alleges that the government breached the Settlement Agreement by failing to pay or
guarantee the full amount of the monthly and periodic lump-sum payments required under the
Settlement Agreement after the original annuity company went into bankruptcy. Id.; see also
Def. Mot. at 1.

       As relief, plaintiff seeks to recover $68,270.78 in unpaid monthly annuity payments for
the period August 2013 and June 2015. Compl. at ¶ 15. Plaintiff also seeks to recover a “lump
sum equal to the present value of the monthly annuity payments that he is entitled to receive,” for
the period July 2015 through the end of his life expectancy, plus a lump sum amount equal to the
present value of certain lump-sum payments due to plaintiff on December 15, 2018 and
December 15, 2028. Id. at ¶ 23.

                  i. The Settlement Agreement

       The material facts of this case are not in dispute. On April 18, 1980, plaintiff suffered
certain injuries while on United States Department of the Army property. Compl. at ¶ 3; Def.
Mot. at 2. In 1982, plaintiff’s parents filed a Federal Tort Claims Act (“FTCA”) claim against
the United States on plaintiff’s behalf to recover damages in connection with these injuries. Def.
App. at A1-A6; Compl. at ¶ 4.

       On November 15, 1984, plaintiff’s parents executed the Settlement Agreement to fully
resolve the claims brought in the FTCA litigation. Def. App. at A8-A10; Compl. at ¶ 5; see also
Def. Mot. at 3. The Settlement Agreement provides, among other things, that the “United States


1
  The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s complaint
(“Compl.”); plaintiff’s motion for partial summary judgment (“Pl. Mot.”); the government’s cross-motion
for summary judgment on liability (“Def. Mot.”) and exhibits attached thereto (“Def. App. at A1-A182”).


                                                   2
of America and United States Department of Army, will pay to the plaintiffs . . . the sum of
$239,425.45 as an upfront payment which includes attorney fees and costs and a structured
settlement for the benefit of Trevor Langkamp, which sum shall be in full settlement and
satisfaction of any and all claims . . . on account of the incident or circumstances giving rise” to
the Langkamps’ lawsuit. Def. App. at A8, ¶ 2; Compl. at ¶ 5. The Settlement Agreement also
provides:

       That the aforesaid amount shall be paid as follows: $350.00 per month beginning
       by the beginning of January, 1985 through October 15, 1996, then $3,100.00 per
       month, 3 percent compounded annually for life, guaranteed for 15 years, beginning
       November 15, 1996, and Lump Sum Payments as follows:

                           $       15,000.00 on December 15, 1996
                                   50,000.00 on December 15, 2000
                                  100,000.00 on December 15, 2008
                                  250,000.00 on December 15, 2018
                                1,000,000.00 on December 15, 2028

Def. App. at A9, ¶ 3; see Compl. at ¶¶ 6-7.

       The Settlement Agreement further provides that “plaintiffs hereby agree to accept said
sum in full settlement and satisfaction of any and all claims and demands . . . which it or its
agents or assigns may have against . . . the United States of America and the United States
Department of Army . . . .” Def. App. at A9, ¶ 4.

       A Memorandum For File dated October 30, 1984, signed by the then-Acting Assistant
Attorney General of the Civil Division of the Department of Justice provides that “[s]ettlement
of this case for $400,000 in a structured settlement to be paid by the United States is hereby
approved.” Def. App. at A7. In November 1984, the United States General Accounting Office
(“GAO”) issued an advice of payment of settlement to accompany check certifying that
$400,000 is due to plaintiff from the United States, payable from the appropriations indicated to
J.M.W. Settlements, Inc. (“JMW”), on behalf of plaintiff. Id. at A14. The advice of payment of
settlement to accompany check further provides that the GAO will issue two checks: a check in
the amount of $160,574.55 to JMW for Trevor Langkamp and a check in the amount of
$239,425.45 to Joseph P. Langkamp and Christina Langkamp, the natural guardians of Trevor
Langkamp. Id.



                                                  3
       Subsequently, in December 1984, the government paid $239,425.45 to the Langkamps to
fulfill the lump-sum payment requirement set forth in the Settlement Agreement. Id. at A35.
The government paid the remaining amount of $160,574.55 to JMW, a structured settlement
broker, for the purchase of structured settlement annuities on December 5, 1984. Id. at A35-
A37.

              ii. The ELNY Annuities And Bankruptcy

       On November 30, 1984, JMW purchased two single premium structured settlement
annuity policies from Executive Life Insurance Company of New York (“ELNY”) to fund the
monthly and the lump-sum payments delineated in paragraph three of the Settlement Agreement.
Compl. at ¶ 8; Def. Mot. at 4; Def. App. at A9, A17-A34. On December 7, 1984, the
Langkamps executed a release in full and final satisfaction of their claims. Def. App. at A38-
A39. Thereafter, the Langkamps and the government executed a stipulation of dismissal of the
Langkamps’ FTCA claim on December 10, 1984. Id. at A40-A43. The United States District
Court for the Western District of Michigan dismissed the action on December 17, 1984. Id. at
A44.

       During the period January 1985 to July 2013, plaintiff received the monthly and periodic
lump-sum payments required under the Stipulation Agreement pursuant to the annuities
purchased on his behalf. Id. at A21, A30; Compl. at ¶ 9; Def. Mot. at 4. On April 16, 2012, the
Supreme Court of New York declared ELNY insolvent, and the court approved a restructuring
agreement for ELNY (the “Restructuring Agreement”). Def. App. at A45-A51; Compl. at ¶ 10;
Answer at ¶ 10. Under the Restructuring Agreement, ELNY’s assets were transferred to the
Guaranty Association Benefit Company (“GABC”), and the GABC assumed responsibility for
making the monthly and periodic lump-sum payments due to plaintiff. Compl. at ¶ 10.

       In letters dated November 12, 2013, and December 9, 2013, the GABC notified plaintiff
that his monthly annuity payments would be reduced by 42.39%, from $4,974.59 to $2,108.73
per month. Id. at ¶¶ 11-12; Def. App. at A181-A182. In addition, the GABC notified plaintiff
that the periodic lump-sum payments to be paid in December of 2018 and December 2028 would
be reduced from $250,000.00 and $1,000,000.00 to $105,975.00 and $423,900.00, respectively.
Compl. at ¶ 11.



                                                4
       The GABC began paying reduced annuity payments to plaintiff in August 2013. Pl. Mot.
at 5. As a result, during the period August 2013 to October 2013, plaintiff received $2,108.73 in
monthly annuity payments from the GABC, instead of the $4,974.59 per month payment that he
would have received from ELNY. Compl. at ¶ 12. During the period November 2013 to
October 2014, plaintiff received $2,177.99 in monthly annuity payments from the GABC,
instead of the $5,123.83 per month payment that he would have received from ELNY. Id. In
addition, during the period November 2014 to June 2015, plaintiff received $2,237.15 in monthly
annuity payments from GABC, instead of the $5,277.54 per month payment that he would have
received from ELNY. Id.

       B. Relevant Procedural Background

       Plaintiff filed the complaint in this matter on July 22, 2015. See generally Compl. On
November 20, 2015, the government answered the complaint. See generally Answer.

       On March 11, 2016, plaintiff filed a motion for partial summary judgment on liability.
See generally Pl. Mot. On May 27, 2016, the government filed a cross-motion for summary
judgment on liability and a response and opposition to plaintiff’s motion for partial summary
judgment on liability. See generally Def. Mot. On July 8, 2016, plaintiff filed a response and
opposition to the government’s cross-motion for summary judgment on liability and a reply in
support of plaintiff’s motion for partial summary judgment on liability. See generally Pl. Reply.
On September 2, 2016, the government filed a reply in support of its cross-motion for summary
judgment on liability. See generally Def. Reply.

       On November 15, 2016, the parties filed supplemental briefs regarding the impact of the
United States Court of Appeals for the Federal Circuit’s decision in Nutt v. United States, 837
F.3d 1292 (Fed. Cir. 2016), on this matter. See generally Pl. Supp. Brief; Def. Supp. Brief. On
December 6, 2016, the parties filed responsive supplemental briefs. See generally Pl. Supp.
Resp.; Def. Supp. Resp. On December 20, 2016, the parties filed supplemental reply briefs. See
generally Pl. Supp. Reply; Def. Supp. Reply.

       These matters having been fully briefed, the Court addresses the pending motions.




                                                5
III.    STANDARDS OF REVIEW

        A. Jurisdiction And Contract Claims Against The United States

        The Tucker Act grants this Court jurisdiction to consider claims based “upon any express
or implied contract with the United States.” 28 U.S.C. § 1491(a)(1). The Court does not,
however, possess jurisdiction to consider claims against the United States “based on contracts
implied in law.” United States v. Mitchell, 463 U.S. 206, 218 (1983) (citing Merritt v. United
States, 267 U.S. 338, 341 (1925)); Aboo v. United States, 86 Fed. Cl. 618, 626 aff’d, 347 F.
App’x 581 (Fed. Cir. 2009) (citation omitted). And so, to bring a valid contract claim against the
United States in this Court, the underlying contract must be either express or implied-in-fact.
Aboo, 86 Fed. Cl. at 626. Such a contract claim must also be for “actual, presently due money
damages . . . .” King v. United States, 395 U.S. 1, 3 (1969); see also Speed v. United States, 97
Fed. Cl. 58, 66 (2011) (citations omitted).

        In addition, plaintiff bears the burden of proving the existence of a contract with the
United States, and plaintiffs must show that there is “something more than a cloud of evidence
that could be consistent with a contract to prove a contract and enforceable contract rights.” D &
N Bank v. United States, 331 F.3d 1374, 1377 (Fed. Cir. 2003). To establish the existence of
either an express or implied-in-fact contract with the United States, a plaintiff must show: (1)
mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4)
actual authority to bind the government in contract on the part of the government official whose
conduct is relied upon. Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012). A
government official’s authority to bind the United States must be express or implied. Roy v.
United States, 38 Fed. Cl. 184, 187-89, dismissed, 124 F.3d 224 (Fed. Cir. 1997). And so, “the
[g]overnment, unlike private parties, cannot be bound by the apparent authority of its agents.”
Id. at 187.

        In this regard, a government official possesses express actual authority to bind the United
States in contract “only when the Constitution, a statute, or a regulation grants it to that agent in
unambiguous terms.” Jumah v. United States, 90 Fed. Cl. 603, 612 (2009) aff'd, 385 F. App’x
987 (Fed. Cir. 2010) (internal citations omitted); see also City of El Centro v. United States, 922
F.2d 816, 820 (Fed. Cir. 1990). On the other hand, a government official possesses implied
actual authority to bind the United States in contract “when the employee cannot perform his

                                                  6
assigned tasks without such authority and when the relevant agency’s regulations do not grant
the authority to other agency employees.” SGS-92-X003 v. United States, 74 Fed. Cl. 637, 652
(2006) (citations omitted); see also Aboo, 86 Fed. Cl. at 627 (implied actual authority “is
restricted to situations where ‘such authority is considered to be an integral part of the duties
assigned to a [g]overnment employee’” (quoting H. Landau & Co. v. United States, 886 F.2d
322, 324 (Fed. Cir. 1989))). In addition, when a government agent does not possess express or
implied actual authority to bind the United States in contract, the government can still be bound
by contract if the contract was ratified by an official with the necessary authority. Janowsky v.
United States, 133 F.3d 888, 891–92 (Fed. Cir. 1998).2

        B. RCFC 56

        Pursuant to RCFC 56, a party is entitled to summary judgment when there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States,
753 F.3d 1279, 1286 (Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A
fact is “material” if it could “affect the outcome of the suit under the governing law . . . .” Id. In
addition, the moving party bears the burden of demonstrating the absence of any genuine issues
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). And so, “‘the inferences to
be drawn from the underlying facts . . . must be viewed in the light most favorable to the party
opposing the motion.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

        In making a summary judgment determination, the Court does not weigh the evidence
presented, but instead must “determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249; see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004); Agosto v. INS,


2
  Ratification may take place at the individual or institutional level. SGS-92-X003 v. United States, 74
Fed. Cl. 637, 653-54 (2006). Individual ratification occurs when a supervisor: (1) possesses the actual
authority to contract; (2) fully knew the material facts surrounding the unauthorized action of his or her
subordinate; and (3) knowingly confirmed, adopted, or acquiesced to the unauthorized action of the
subordinate. Id. at 654 (quoting Leonardo v. United States, 63 Fed. Cl. 552, 560 (2005)). In contrast,
institutional ratification occurs when the government “seeks and receives the benefits from an otherwise
unauthorized contract.” Id.; see also Janowsky v. United States, 133 F.3d 888, 891-92 (Fed. Cir. 1998).


                                                     7
436 U.S. 748, 756 (1978) (“[A trial] court generally cannot grant summary judgment based on its
assessment of the credibility of the evidence presented . . . .”). The Court may grant summary
judgment when “the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party . . . .” Matsushita Elec. Indus. Co., 475 U.S. at 587. The above standard
applies when the Court considers cross-motions for summary judgment. Principal Life Ins. Co.
& Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014); see also Estate of Hevia v. Portrio
Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both parties move for summary judgment,
“‘the court must evaluate each party’s motion on its own merits, taking care in each instance to
draw all reasonable inferences against the party whose motion is under consideration.’” Abbey v.
United States, 99 Fed. Cl. 430, 436 (2011) (quoting Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1391 (Fed. Cir. 1987)).

       C. Contract Interpretation

       The United States Court of Appeals for the Federal Circuit has held that “[c]ontract
interpretation is a question of law.” Barron Bancshares, Inc., v. United States, 366 F.3d 1360,
1368 (Fed. Cir. 2004); Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed. Cir.
1985); Greenhill v. United States, 92 Fed. Cl. 385, 393 (2010) (“The interpretation of a
settlement agreement is a question of law.”); see also Harris v. Dep’t of Veterans Affairs, 142
F.3d 1463, 1467 (Fed. Cir. 1998) (“A settlement agreement is a contract, and we apply basic
contract principles unless precluded by law.”). When interpreting a contract, the Court first
looks to whether the language of an agreement is ambiguous or unambiguous. See Grumman
Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir. 1996); see also NVT Techs., Inc. v. United
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). It is also well established that the Court’s
interpretation of a contract begins with its “plain language.” McAbee Constr., Inc. v. United
States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). And so, the plain and unambiguous provisions of a
contract “must be given their plain and ordinary meaning . . . and the court may not resort to
extrinsic evidence to interpret them.” Id. (citations omitted); see also Jowett, Inc. v. United
States, 234 F.3d 1365, 1368 (Fed. Cir. 2000) (holding that the Court gives “the words of the
agreement their ordinary meaning unless the parties mutually intended and agreed to an
alternative meaning.”); Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992)
(“Wherever possible, words of a contract should be given their ordinary and common meaning.”)
(citations omitted).
                                                  8
       The Court also interprets the “provisions of a contract so as to make them consistent” and
so as not “to render them ineffective or superfluous.” Abraham v. Rockwell Int’l. Corp., 326
F.3d 1242, 1251, 1254 (Fed. Cir. 2003) (citations omitted); Fortec Constructors, 760 F.2d at
1292 (“This court must be guided by the well accepted and basic principle that an interpretation
that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves
portions of the contract meaningless.”). But, in instances in which “there is a clear conflict
between” contract clauses, the Court must “determine which of the conflicting terms controls.”
Abraham, 326 F.3d at 1253-54 (citations omitted). To do so, the Court must apply the “general
rules of interpretation,” which require that, “‘[w]here specific and general terms in a contract are
in conflict, those which relate to a particular matter control over the more general language.’”
Id. at 1254 (citations omitted) (emphasis existing).

       The Federal Circuit has also recognized that a contract that is reasonably susceptible to
more than one interpretation is ambiguous. Hills Materials Co., 982 F.2d at 516 (citations
omitted). Where a latent ambiguity exists in a contract, “the court will construe the ambiguous
term against the drafter of the contract when the nondrafter's interpretation is reasonable,” under
the general rule of contra proferentem. Id. (citations omitted); see also NVT Techs, Inc., 370
F.3d at 1159 (”To show an ambiguity it is not enough that the parties differ in their respective
interpretations . . . both interpretations must fall within the zone of reasonableness.”) (citations
omitted); HPI/GSA-3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004) (“Before a court
may enforce the general rule of contra proferentem against the drafter of an ambiguity, the
contractor’s interpretation of that ambiguity must be reasonable.”). But, “an exception to the
general rule that requires construing ambiguities against” the drafter exists where “the
ambiguities are so patent and glaring that it is unreasonable for a [party] not to discover and
inquire about them.” HPI/GSA-3C, LLC, 364 F.3d at 1334 (quotations omitted). “Where an
ambiguity is not sufficiently glaring to trigger the patent ambiguity exception, it is deemed latent
and the general rule of contra proferentem applies.” Id. (citations omitted).

       Specifically relevant to the present case, the Federal Circuit has also previously examined
and interpreted settlement agreements with the United States that require future, periodic annuity
payments in Nutt v. United States and Massie v. United States. In Massie, the appellants brought
a breach of contract claim against the government alleging that the government had guaranteed
the annuity payments provided for under a settlement agreement that required the government to
                                                  9
purchase an annuity that “will result in distributions on behalf of the United States,” after the
annuity company went into conservatorship and failed to make the full payments. 166 F.3d
1184, 1186-87 (Fed. Cir. 1999). The Federal Circuit observed that “[t]he language specifying
that the annuity ‘will result in distributions’ and that the disbursements ‘shall be paid’ is
unambiguously mandatory and says unequivocally that the Massies must receive the payments.”
Id. at 1190. And so, the Federal Circuit held that the government had guaranteed the annuity
payments required under the settlement agreement. Id.

       More recently, in Nutt, the Federal Circuit interpreted a settlement agreement that
required the purchase of an annuity for the purpose of making certain periodic, future payments
required under that agreement. 837 F.3d 1292, 1294 (Fed. Cir. 2016). After the Nutt appellants
began receiving reduced payments under the annuity, the appellants alleged that the government
had guaranteed, and thus, was liable for, the annuity payments. Id. The Federal Circuit noted in
the decision, however, that the settlement agreement at issue specifically provided that “the
United States shall assist [Plaintiffs], their heirs or personal representatives, in the prosecution of
said suit to the extent permitted by applicable laws and regulations,” in the event that the annuity
company defaults on the annuity payments. Id. at 1297 (brackets existing). The Federal Circuit
also held that, among other things, “[t]he plain language of the Agreement makes clear that the
Government agreed to purchase annuities and pay certain lump-sum payments to Appellants, not
to make future payments or guarantee that the future payments be made if the insurance
company defaulted.” Id. at 1298. And so, the Federal Circuit concluded that “the Government's
obligations were satisfied upon making the lump-sum payments and purchasing the annuity.” Id.

IV.    LEGAL ANALYSIS

       The parties have filed cross-motions for summary judgment with respect to liability on
the issue of whether the government is liable to plaintiff and obligated to pay the outstanding
amounts of certain monthly and periodic lump-sum payments called for under the Settlement
Agreement. See Pl. Mot.; Def. Mot. Plaintiff argues that the government guaranteed these
payments and, as a result, the government breached the Settlement Agreement by failing to pay
the outstanding amounts due. See Pl. Mot. at 8-9. The government counters that it has not
breached the Settlement Agreement because the government has not expressly guaranteed the
monthly and periodic payments required under that agreement. Def. Mot. at 7-8. And so, the


                                                  10
government maintains that it has fully satisfied its obligations with respect to these payments by
purchasing annuities for the purpose of making the payments. Id.

       For the reasons discussed below, the plain language of the Settlement Agreement
demonstrates that the government has not unequivocally agreed to guarantee the monthly and
periodic lump-sum payments required under that agreement. And so, the Court DENIES
plaintiff’s motion for summary judgment on liability and GRANTS the government’s cross-
motion for summary judgment on liability.

       A. The Settlement Agreement Provides For The Purchase Of Annuities

       As an initial matter, the plain language of the Settlement Agreement requires that the
government purchase annuities for the purpose of making the monthly and periodic lump-sum
payments called for under that agreement. The parties agree that the Settlement Agreement is
unambiguous. Def. Supp. Brief at 1; Pl. Supp. Brief at 3; Grumman Data Sys. Corp., 88 F.3d at
997 (demonstrating that the Court first looks to whether the language of an agreement is
ambiguous or unambiguous); NVT Techs., Inc., 370 F.3d at 1159 (same). And so, the Court
begins its interpretation of the Settlement Agreement with the plain language of that agreement.
McAbee Constr., Inc., 97 F.3d at 1435; see also Jowett, Inc., 234 F.3d at 1368 (holding that the
Court gives “the words of the agreement their ordinary meaning unless the parties mutually
intended and agreed to an alternative meaning”).

       In this regard, the Settlement Agreement provides, in relevant part, that:

       [The] United States of America and United States Department of Army, will pay to
       the [Langkamps] . . . the sum of $239,425.45 as an upfront payment which includes
       attorney fees and costs and a structured settlement for the benefit of Trevor
       Langkamp, which sum shall be in full settlement and satisfaction of any and all
       claims . . . on account of the incident or circumstances giving rise” to the
       Langkamps’ lawsuit.
Def. App. at A8, ¶ 2 (emphasis supplied). The Settlement Agreement further provides that:

       [T]he aforesaid amount shall be paid as follows: $350.00 per month beginning by
       the beginning of January, 1985 through October 15, 1996, then $3,100.00 per
       month, 3 percent compounded annually for life, guaranteed for 15 years, beginning
       November 15, 1996, and Lump Sum Payments as follows:

                           $      15,000.00 on December 15, 1996
                                  50,000.00 on December 15, 2000
                                 100,000.00 on December 15, 2008
                                                11
                                 250,000.00 on December 15, 2018
                               1,000,000.00 on December 15, 2028

Def. App. at A9, ¶ 3; see Compl. at ¶¶ 6-7. The Court interprets these provisions to require that
the government purchase structured settlement annuities to make the monthly and lump-sum
payments delineated in the Settlement Agreement. In this regard, the plain language of
paragraph two of the Settlement Agreement provides that the government “will pay . . . a
structured settlement for the benefit of Trevor Langkamp.” Def. App. at A8, ¶ 2. The Court
must give these words their ordinary meaning, absent evidence that the parties mutually intended
an alternative meaning. McAbee Constr., Inc., 97 F.3d at 1435; see also Jowett, Inc., 234 F.3d at
1368. A “structured settlement” is generally recognized to mean a legal settlement paid out as an
annuity rather than as a lump sum. See, e.g., 3 Stein on Personal Injury Damages Treatise § 16:1
(3d ed.) (2016) (“The payments [under a structured settlement] are normally funded using an
annuity or obligations of the United States.”); 1 Negotiating and Settling Tort Cases § 18:1
(providing that under a structured settlement, “[t]he defendant may retain the obligation to make
the future payments, or, more commonly, it may transfer the obligation to make the future
payments by purchasing an annuity contract from a life insurance company”). The Oxford
Pocket Dictionary of Current English also defines the term “structured settlement” as “a legal
settlement paid out as an annuity rather than in a lump sum . . . .” The Oxford Pocket Dictionary
of Current English, available at www.encyclopedia.com/humanities/dictionaries-thesauruses-
pictures-and-press-releases/structured-settlement (accessed March 17, 2017).

       Because neither party argues that the parties mutually agreed to another meaning for the
term structured settlement, the Court adopts the ordinary meaning of the term structured
settlement−a legal settlement paid out as an annuity rather than as a lump sum–to interpret the
Settlement Agreement. See, e.g., Pl. Mot.; Def. Mot. And so, the Court construes paragraph two
of the Settlement Agreement to require that the government use a portion of the settlement
proceeds to purchase structured settlement annuities for the purpose of making the payments
delineated in paragraph three of that agreement.

       Plaintiff’s reading of the Settlement Agreement to not require that the government
purchase annuities for the purpose of making the monthly and periodic lump-sum payments
required under that agreement is also belied by the plain language of that agreement. See Pl.
Mot. at 8-9. Plaintiff correctly observes in his motion for partial summary judgment that the

                                                12
word annuity does not appear in the Settlement Agreement. See Pl. Mot. at 1. But, the
Settlement Agreement, nonetheless, clearly provides that “the government will pay . . . a
structured settlement.” Def. App. at A8. As discussed above, the Court interprets the
requirement that the government will pay a structured settlement to require that the government
purchase structured settlement annuities to make the structured payments required under that
agreement. See, e.g., 3 Stein on Personal Injury Damages Treatise § 16:1 (3d ed.) (2016); 1
Negotiating and Settling Tort Cases § 18:1. Given this, the Court construes the Settlement
Agreement to reflect the parties’ intent for the government to purchase structured settlement
annuities for the purpose of making the monthly and periodic lump-sum payments to plaintiff.3
Def. App. at A9.

        B. The Government Did Not Guarantee The Future
           Periodic Payments Set Forth In The Settlement Agreement

        Having determined that the plain language of the Settlement Agreement requires the
government to purchase structured settlement annuities for the purpose of making the structured
payments set forth in that agreement, the Court next examines whether the government has
guaranteed these structured payments in the event of a default by the annuity company. In his
motion for partial summary judgment on liability, plaintiff argues that the government has agreed
to pay or guarantee these monthly and periodic lump-sum payments.4 Pl. Mot. at 9. The
government counters in its cross-motion that the Settlement Agreement does not include such a
guarantee and that the government has fulfilled its obligations under the agreement by
purchasing the structured settlement annuities. See Def. Mot. at 7; Def. Supp. Resp. at 3. For
the reasons discussed below, the plain language of the Settlement Agreement demonstrates that


3
  While the Court need not consider extrinsic evidence to interpret the unambiguous terms of the
Settlement Agreement, it is noteworthy that the Court’s reading of the Settlement Agreement is also
supported by the undisputed material facts regarding the parties’ intent in this case. See e.g., Greco v.
Dep’t of Army, 852 F.2d 558, 560 (Fed. Cir. 1988). It undisputed that the government paid a portion of
plaintiff’s settlement proceeds directly to a structured settlement broker for the purpose of purchasing
structured settlement annuities to make the monthly and periodic lump-sum payments called for under
that agreement. Def. Mot. at 3-4; Pl. Reply at 5; Def. App. at A35-A37. It is similarly without dispute
that, after the structured settlement broker purchased these structured settlement annuity policies, the
Langkamps released their legal claims against the government. Def. App. at A38-A44.
4
  Plaintiff contends that the government has been in breach of this agreement since August 2013, when he
first began to receive reduced annuity payments. Compl. at ¶¶ 12-15.


                                                    13
the government has not guaranteed the monthly and periodic lump-sum payments required under
that agreement.

        First, plaintiff points to no language in the Settlement Agreement that expressly and
unequivocally requires that the government guarantee the monthly and periodic lump-sum
payments delineated in that agreement. Id. As the United States Court of Appeals for the
Federal Circuit recently recognized in Nutt, the principle of sovereign immunity compels a
finding that the agreement at issue here does not obligate the government to guarantee future
payments if the government has not unequivocally promised to do so.5 837 F.3d at 1298. A
plain reading of the Settlement Agreement shows that the agreement does not contain such an
unequivocal promise. See Def. App. at A8-A10. Rather, the Settlement Agreement simply
provides that the future monthly and periodic lump-sum payments to be made to plaintiff “shall
be paid.” Id. at A9. This language does not provide that the government will guarantee−or even
make−these payments. Id. In fact, the use of the phrase “shall be paid” indicates that the parties
intended for a third party, rather than the government, to actually make the future payments.
And so, the Court does not read the plain language of the Settlement Agreement to require that
the government guarantee the future payments called for under that agreement.

        The Court is also unpersuaded by the other arguments that plaintiff puts forward to show
that the Settlement Agreement obligates the government to guarantee his monthly and periodic
lump-sum payments. In this regard, plaintiff argues that there is no need for the Settlement
Agreement to contain an unequivocal guarantee of these payments because, the Settlement
Agreement does not contemplate the purchase of annuities. Pl. Supp. Resp. at 3-4; Pl. Supp.
Reply at 3. But, as discussed above, paragraph two of the agreement clearly requires that the




5
  In Nutt, the Federal Circuit rejected the appellant’s argument that the language “payments by the United
States shall operate as full and complete discharge of all payments to be made” meant that the
government promised to guarantee the payments resulting from the annuities at issue in that case. 837
F.3d at 1297. The Nutt agreement also contained language that provided that if the insurance company
defaults in making the annuity payments, “[the appellants] . . . shall have standing to sue the said
insurance company for breach of contract.” Id. at 1297. In contrast, here, the Settlement Agreement
contains no provision regarding a default by the annuity company and simply provides that “plaintiffs
hereby agree to accept said sum in full settlement and satisfaction of any and all claims and demands . . .
against [the government].” Def. App. at A9, ¶ 4.


                                                    14
government pay for structured settlement annuities to make these payments. And so, plaintiff’s
argument cannot be reconciled with the plaint text of the agreement.

       Plaintiff would be, however, on somewhat firmer ground in arguing that the government
has unequivocally guaranteed the payment of certain monthly payments required under the
Settlement Agreement for a period of fifteen years. Paragraph three of the agreement provides
that the monthly payments called for in the Settlement Agreement are “guaranteed for 15 years.”
Def. App. at A9, ¶ 3; see also Nutt, 837 F.3d at 1299. But, there is no dispute that this guarantee
expired on November 15, 2011, and that these particular monthly payments have been paid in
full by ELNY. Compl. at ¶ 9; Def. Supp. Brief at 8-9; Def. Supp. Resp. at 3; see Def. App. at
A9, ¶ 3. And so, this language cannot form the basis for plaintiff’s claim to recover the
outstanding portion of the monthly and periodic lump-sum payments that he seeks in this
dispute.

       Indeed, at bottom, plaintiff points to no language in the Settlement Agreement that would
expressly and unequivocally require the government to guarantee the monthly and periodic
lump-sum annuity payments that he seeks to recover in this litigation. Absent such an
unequivocal promise, the Court will not read an obligation on the part of the government to
guarantee these payments into the Settlement Agreement.

       C. The Government Could Not Have
          Entered Into The Contract That Plaintiff Alleges

       As a final matter, it is also important to note that the undisputed material facts also show
that the government could not have entered into a contract that requires the government to pay
more than the $400,000 disbursed at the time of settlement to resolve plaintiff’s FTCA claim. To
establish the existence of either an express or implied-in-fact contract with the United States,
plaintiff must show, among other things, the actual authority to bind the government in contract
on the part of the government official whose conduct is relied upon. Kam-Almaz, 682 F.3d at
1368. The undisputed material facts here make clear that the Assistant United States Attorney
who entered into the Settlement Agreement on behalf of the government had actual authority to
settle the Langkamps’ claim for $400,000. Def. Mot. at 13; Pl. Reply at 5-6; Def. App. at A7. It
is also undisputed that the government disbursed this authorized amount in 1984, in the form of a
one-time, lump-sum payment of $239,425.45 and by paying a structured settlement broker


                                                 15
$160,574.55 to purchase two structured settlement annuities for the benefit of plaintiff. Def.
App. at A17-A37; Compl. at ¶¶ 5-8; Def. Mot. at 4.

        As the government argues in its cross-motion for summary judgment, any interpretation
of a contract with the government that would result in an obligation to which the government
cannot be legally bound would render the contract void and unenforceable. Def. Mot. at 10; see
Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384 (1947); cf. Schism v. United States, 316 F.3d
1259, 1278 (Fed. Cir. 2002) (“[A]ny private party entering into a contract with the government
assumes the risk of having accurately ascertained that he who purports to act for the government
does in fact act within the bounds of his authority.”) (citations omitted). And so, the government
could not have entered into a contract in this case that would have obligated it to pay, or to
guarantee, any amount in excess of the $400,000 authorized settlement amount to resolve the
FTCA litigation brought on plaintiff’s behalf.6

V.      CONCLUSION
        In sum, the plain language of the Settlement Agreement at issue in this dispute
demonstrates that the government contracted to purchase annuities to make the future, periodic
monthly and lump-sum payments required under that agreement. The plain language of this
agreement also demonstrates that the government did not unequivocally guarantee that it would
make these payments in the event of a default by the annuity company. And so, the undisputed
material facts in this matter show that the government is not liable to plaintiff for the remaining
annuity payments required under the agreement.

        For the foregoing reasons, the Court

        1. DENIES plaintiff’s motion for partial summary judgment on liability;

        2. GRANTS the government’s cross-motion for summary judgment on liability; and


6
  Plaintiff’s argument that the Court may not consider evidence regarding the Assistant United States
Attorney’s settlement authority because this information constitutes extrinsic evidence is also without
merit. Pl. Supp. Resp. at 4. The Court may properly consider evidence regarding whether this
government official had actual authority to enter into the Settlement Agreement, because the question of
whether the Assistant United States Attorney had such authority is a threshold matter of contract
formation. See Kam-Almaz v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012) (holding that, to
establish the existence of an express contract, a plaintiff must demonstrate the actual authority to bind the
government in contract on the part of the government official whose conduct is relied upon).


                                                     16
       It is further ORDERED that the parties shall FILE a joint status report on or before
April 20, 2017, stating their respective views on whether this matter should be dismissed in light
of the Court’s ruling on the parties’ cross-motions for summary judgment on liability.

       The Clerk’s Office shall enter judgment accordingly.

       No costs.

       IT IS SO ORDERED.


                                                  s/ Lydia Kay Griggsby
                                                  LYDIA KAY GRIGGSBY
                                                  Judge




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