
USCA1 Opinion

	




              November 23, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________              No. 92-1616                         PETER A. KOKARAS AND DIANE KOKARAS,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Brown,* Senior Circuit Judge,                                    ____________________                            Bownes, Senior Circuit Judge.                                    ____________________                                 ____________________                   David C.  Engel with whom Engel and Gearreald were on                   _______________           ___________________              brief for appellant.                   Elaine   Marzetta   Lacy,  Assistant   United  States                   ________________________              Attorney,  with  whom  Jeffrey  R.  Howard, United  States                                     ___________________              Attorney, was on brief for appellee.                                 ____________________                                 ____________________              ____________________              *of the Fifth Circuit, sitting by designation.                    BOWNES, Senior Circuit Judge.   This is an  appeal by                            ____________________            plaintiffs-appellants Peter  A.  Kokaras and  Diane  Kokaras,            spouses, from  a dismissal of their  complaint, brought under            the  Federal  Torts Claims  Act  (FTCA) for  lack  of subject            matter jurisdiction  because of  the failure  to file  a sum-            certain claim within the prescribed statutory period.                                            I                                          I                    On May 8, 1987, plaintiffs  sustained personal injury            to themselves  and damage  to their  automobile  when it  was            struck in the rear by a United States mail truck.  On June 2,            1987, plaintiffs  filed  a Standard  Form  (SF) 95  with  the            Postmaster at the  United States Post Office  in Hampton, New            Hampshire.    On  line  10,  entitled  "Amount  of  Claim (in            Dollars),"  the  figure  $2,906.61  was inserted  in  box  A,            entitled, "Property Damage";  in box  B, entitled,  "Personal            Injury,"  the words "to be  determined" were written.   Box C            entitled,  "Total,"  was left  blank.1    Line 15,  entitled,            "Signature of  Claimant," was  signed only by  Peter Kokaras.            Plaintiffs were not represented by counsel at the time the SF            95 was executed and filed.                    In the  spring of 1988, plaintiffs  retained Attorney            Alfred J. Cirome to represent them.  This was well within the                                            ____________________            1Box C, entitled, "Wrongful  death" was also left blank.   It            appears   that   plaintiffs    submitted   property    damage            documentation   and  some  medical   documentation  with  the            original form.                                         -2-            two-year statutory period  for filing a  tort claim with  the            Postal Service.  28 U.S.C.    2401(b).  No amended SF  95 was            filed within  the two-year  period.  Attorney  Cirome entered            into discussions,  both in person and on  the telephone, with            agents  of  the  Postal  Service   in  an  effort  to  settle            plaintiffs'  claim.   The  settlement  negotiations were  not            fruitful.      During the            course of the settlement discussions,  Attorney Cirome turned            over to the Postal Service's agents medical bills incurred by            the  plaintiffs along  with  medical diagnoses  and prognoses            concerning  plaintiffs' injuries.   Based  on the  record, it            appears that no sum-certain demand  was made either orally or            in writing by Attorney Cirome.                    New  counsel  was  obtained by  plaintiffs,2  and  on            April 26, 1990,  suit was  brought against the  United States            under  the Federal Torts Claims Act.  28 U.S.C.    2671-2680.            The  Postal Service  denied  plaintiffs' claim  on August  2,            1990, on the  ground that  it was invalid,  stating that  "it            does not inform us to [sic] any dollar amount being claimed."            Three  weeks   prior  to  the  Postal   Service's  denial  of            plaintiffs' claim,  the United States  had filed a  motion to            dismiss for lack of subject matter jurisdiction.  The  motion            was predicated  on the  well-established rule that  a timely-                                            ____________________            2Attorney David C. Engel  represented plaintiffs below and on            appeal.                                         -3-            filed sum-certain claim is a prerequisite for jurisdiction of            a tort  action  against the  United  States.3   The  district            court initially denied  the motion to dismiss.   The district            judge, however, changed his mind after our decision in Corte-                                                                   ______            Real v. United States, 949 F.2d 484 (1st Cir. 1991).            ____    _____________                                          II                                          II                    We start our legal analysis with Corte-Real.  In that                                                     __________            case we  held  that the  administrative  claim stated  a  sum            certain even though the  personal injury box, section 10B  of            the SF 95, was filled out as follows:  "$100,000 plus because            still treating  and out of work."  Id. at 486.  Plaintiff had                                               ___            completed the  "Total" box,  section 10D,  by writing  in the            figure "$100,000," without  qualification.  Id.  at 485.   We                                                        ___            held  that "[w]here as here a claim clearly states a specific            sum and meets the sum certain requirement in all respects but            for   concern  over  the   possible  detraction  of  improper                                            ____________________            3The Federal Code of Regulations provides in pertinent part:                            14.2   Administrative   claim;   when                            14.2   Administrative   claim;   when                    presented.                    presented.                           (a)  For purposes of the provisions of                    28 U.S.C.  2401(b), 2672,  and 2675, a  claim                    shall be deemed to have been presented when a                    Federal  agency receives from a claimant, his                    duly     authorized     agent    or     legal                    representative, an executed Standard  Form 95                    or other written notification of an incident,                    accompanied by a claim for money damages in a                    _____________________________________________                    sum  certain  for  injury   to  or  loss   of                    ____________                    property, personal injury,  or death  alleged                    to have occurred by reason of the incident; .                    . . .                    28 C.F.R.   14.2 (1991) (emphasis added).                                         -4-            surplusage of  this insubstantial  variety, we see  no reason            not to strike  the surplusage rather than the  claim itself."            Id. at 587.  The following language reflects our reasoning:            ___                           We  agree fully with the Government as                    to the  importance and absolute  necessity of                    adherence to the sum certain requirement.  We                    disagree, however, that plaintiff's  SF95, as                    submitted,  was  so   deficient  as  to  fall                    outside the parameters  of that  requirement.                    The  SF95   did,  in  fact,  specify   a  sum                    certain $100,000   in  both  boxes, and  this                    figure was unqualified in the box stating the                    total amount of the claim.  To be sure,  when                    the $100,000 appeared in Section 10(B) it was                    unfortunately    accompanied   by    language                    suggesting the possibility of a higher claim.                    The  Government  was   entitled  and   indeed                    required, if  it  was  to  proceed  with  the                    claim, to disregard this.  We think it should                    have  done  so.    To  throw  out  the  claim                    entirely,  as  other  than  one  for   a  sum                    certain,  was,  on these  facts, bureaucratic                    overkill.            Id. at 486.            ___                    With respect to the  personal injury claim,  however,            the case  before us  is not  one of  "bureaucratic overkill."            Nowhere  on form  SF  95 is  a sum  certain for  the personal            injuries stated.  Moreover, we  agree with the district court            that  any  documentation  of  personal  injury submitted  was            "disorganized and  confusing."   Some of the  bills submitted            are duplicates, others are incomplete, and others reflect the            balance due after insurance  payments.  This presentation did            not lend itself to determination of a sum certain or even  an            approximate total of damages claimed.                                         -5-                    Although  negotiations   ensued  between  plaintiffs'            attorney  and  agents of  the  Postal  Service,  there is  no            evidence in the  record that  a sum certain  was ever  stated            orally or in writing by plaintiffs' attorney.  Moreover,  the            affidavits of Attorney Cirome and  Postal Agent Dumont are in            conflict.   Cirome states that  Dumont represented to  him on            more than one  occasion, including on  May 5, 1989, at  which            time Cirome  attests he submitted medical  reports and bills,            that   the  plaintiffs'   claims   had  been   satisfactorily            presented.  Postal Service  Agent Dumont states, by contrast,            that he never advised  the plaintiffs or their representative            that  the  claims  were   satisfactorily  presented.     More            importantly, Agent Dumont attests:                    Plaintiffs' August 7, 1990 submission  to the                    court includes numerous  documents which  the                    plaintiffs  never  submitted  to  the  Postal                    Service  with   their  administrative  claim.                    These  new documents  were  provided  to  the                    Postal   Service  for   the  first   time  on                    August 29, 1990.            Because  the accident  happened  on May  8,  1987, any  bills            submitted  to the Postal Service in 1990 would be well beyond            the two-year limit for filing administrative claims.                      This  court  has  consistently held  that  a  timely-            presented claim  stating a  sum  certain is  necessary for  a            court to  have jurisdiction to  entertain a suit  against the            United  States under the FTCA.   Corte-Real v. United States,                                             __________    _____________            949 F.2d at  485-86;  Gonzalez-Bernal  v. United States,  907                                  _______________     _____________                                         -6-            F.2d  246, 248 (1st Cir.  1990); Lopez v.  United States, 758                                             _____     _____________            F.2d 806, 809 (1st Cir. 1985).  The rule is the same in other            circuits.   Cizek v. United States, 953 F.2d 1232, 1234 (10th                        _____    _____________            Cir. 1992);  Adkins v.  United  States, 896  F.2d 1324,  1325                         ______     ______________            (11th Cir. 1990); Montoya v. United States, 841 F.2d 102, 105                              _______    _____________            (5th  Cir. 1988); GAF Corp.  v. United States,  818 F.2d 901,                              _________     _____________            919 (D.C.  Cir. 1987);  Erxleben v.  United States, 668  F.2d                                    ________     _____________            268,  272 (7th Cir. 1981);  Caton v. United  States, 495 F.2d                                        _____    ______________            635, 638 (9th Cir. 1974); Bialowas v. United States, 443 F.2d                                      ________    _____________            1047, 1049 (3rd Cir. 1971).                     The Fifth Circuit has  taken a broad view as  to what            constitutes  the statement of a  sum certain.   In Molinar v.                                                               _______            United States, 515  F.2d 246,  249 (5th Cir.  1975), it  held            _____________            that  the total  bills  submitted  fulfilled the  sum-certain            requirement.  And in Williams v. United States, 693 F.2d 555,                                 ________    _____________            558  (5th Cir.  1982), it  held that  the itemized  claim for            damages  as set forth in  the state court  complaint would be            taken together with the administrative claim form to meet the            notice requirements of the FTCA.  But even if we followed the            lead  of the Fifth Circuit in regard to the personal injuries            claim, not enough medical information was timely submitted to            come  anywhere  near meeting  the  sum-certain jurisdictional            requirement.    The  personal  injuries  claims submitted  by            plaintiffs  can be characterized as the  Tenth Circuit did in            Cizek v. United States, in which the plaintiff/appellant            _____    _____________                                         -7-                    did   not  present   a  claim   containing  a                    statement  of a  sum certain  of  the damages                    sought,   which   would   have  allowed   the                    government to make even a reasonable estimate                    of the value of  [his] claim, until after the                    limitations period had run.            953 F.2d  at 1234.  We  hold that the district  court did not            have  jurisdiction  to  entertain  the  plaintiffs'  personal            injury claims.                    It does  not necessarily  follow,  however, that  the            extinguishment of the personal  injury claims also erases the            property  damage  claim.   We  believe  that the  plaintiffs'            property  damage  claim  is  severable  and  that  plaintiffs            satisfactorily presented a sum  certain with respect to their            property  damage claim.   At the  time they  originally filed            their  SF 95,  plaintiffs  set  forth  the  specific  sum  of            $2,906.61   in   the   box   entitled,   "Property   Damage."            Accompanying the  SF 95 was a  corroborating repair estimate.            Although the repair estimate was  somewhat lower than the sum            certain  stated,  it included  the  name and  address  of the            company  which  made  the  estimate.   This  information  was            sufficient  for  purposes  of  investigation.     Unlike  the            personal injury claim, the  government had the information it            needed  to assess  plaintiffs' property  claim from  the date            plaintiffs  filed their SF 95  form.  Moreover,  we note that            prior to the  district court's issuance  of its opinion,  the            government had moved "to reduce the ad damnum claimed in this                                                __ ______            action  from  $500,000  to  the   amount  set  forth  in  the                                         -8-            administrative  claim  of  $2,906.61."     This  was a  tacit            admission by  the government  that the property  damage claim            met the sum-certain jurisdictional requirement.                    We believe that  the district court  went too far  in            discarding the property damage  claim along with the personal            injury  claim.  Our decision in  Corte-Real supports saving a                                             __________            claim that  is flawed,  where the  government's investigatory            needs are satisfied.  Indeed,  dismissing plaintiffs' certain            and unwavering claim for  property damages would be indulging            the same  type of "bureaucratic overkill"  that we criticized            in  Corte-Real.   Because the sum-certain requirement was met                __________            for the  property damage claim,  we hold that  plaintiffs are            entitled to proceed on that claim.  The limit on recovery, if            there is one, is the amount stated, $2,906.61.                    Affirmed  in part,  reversed in  part.   Remanded for                    _____________________________________________________            further proceedings consistent with this opinion.            _________________________________________________                    No costs to either party.                    ________________________                                                      -9-
