Cupp et al v. United States Of America
Filing
71
ORDER denying the United States' 51 Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 11/24/2014. (ca)
3ht the Eniteb Otatto got-0tritt Court
for the boutbern flitritt of georgia
Waptr000 Atbioion
TIMOTHY CUPP; and KATHY CUPP,
Plaintiffs,
VS.
UNITED STATES OF AMERICA,
Defendant.
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CV 5 12-005
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ORDER
Presently before the Court is the United States of
America's Motion for Summary Judgment. See Dkt. No. 51. Upon
due consideration, Defendant's motion is DENIED.
BACKGROUND
Plaintiff Timothy Cupp seeks to recover under the Federal
Tort Claims Act ("FTCA") for injuries that he received after he
was allegedly struck by a forklift driven by a National
Guardsman in Freeport, Texas. Dkt. No. 16, 19 3-4. Plaintiff
Kathy Cupp, Timothy Cupp's wife, seeks recovery for loss of
consortium. Dkt. No. 16, ¶ 11. The National Guard members
present at the scene of the accident were working on a Federal
Emergency Management Agency ("FEMA") project responding to
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Hurricane Ike. Dkt. No. 16, ¶ 4. Timothy Cupp testified that
the forklift driver operated the forklift recklessly. Dkt. No.
17-1, ¶ 4. He also expressed hearing from other National Guard
employees that the person operating the forklift was not a
certified forklift truck driver and that the "forklift truck
driver had been doing 'circles' while operating of the forklift
truck, as if the forklift truck were a toy or all terrain
vehicle." Dkt. No. 17-1, ¶ 7. According to Timothy Cupp, he
received back injuries requiring multiple surgeries and ongoing
medical treatment, and he is no longer able to work. Dkt. Nos.
16, 191 7-8; 52, ¶91 48-67.
On September 17, 2010, Plaintiffs mailed Standard Form 95
("SF-95") claims regarding their injuries to FEMA and the
National Guard Bureau. Dkt. No. 14, Ex. 1. Plaintiffs maintain
that the forms were faxed and received on September 17 and that
a courier service served the papers on September 20, 2010. Dkt.
No. 17-2. Copies of the form in the record contain evidence of
receipt on September 20, 2010. Dkt. Nos. 52-21; 57-3. The
United States, though somewhat equivocally, agrees that an
"unaddressed" form—a form with no agency name listed in box 1—
was received by FEMA on September 20, 2010. See Dkt. Nos. 14,
p. 3, n. 5; 51-1, pp. 13-14. In March 2011, the Army Claims
Office wrote to Plaintiffs' counsel expressing that the claim
was not timely, Kathy Cupp needed to file and sign her own
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claim, and Plaintiffs' counsel needed to show proof of his
representation of both Timothy and Kathy Cupp. See Dkt. No. 5230. Plaintiffs' counsel maintains that he responded to this
letter, but the Army states that it never received anything in
response to its letter. Dkt. No. 17 - 2; Dkt No. 21-1. The Army
Claims Office denied Plaintiffs' claim on July 19, 2011, citing
the alleged technical deficiencies with Plaintiffs' claim. Dkt.
No. 52-31.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The court must view
the evidence and draw all inferences in the light most favorable
to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970) . The party seeking summary judgment must first
identify grounds that show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986). To discharge this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
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Federal courts have limited jurisdiction. Ishler v.
Internal Revenue, 237 F. App'x 394, 395 (11th Cir. 2007) (citing
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.
2005)). The plaintiff bears the burden of establishing the
court's subject matter jurisdiction. Id. (citation omitted).
In the consideration of a Federal Rule of Civil Procedure
12(b) (1) factual challenge to subject matter jurisdiction that
is not intertwined with the merits of the claim, "no presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of the
jurisdictional claims." Lawrence v. Dunbar, 919 F.2d 1525,
1529-30 (11th Cir. 1990) (citing Williamson v. Tucker, 645 F.2d
404, 412-13 (5th Cir. 1981)).
DISCUSSION
The United States contends that there are no genuine issues
of material fact in this case and moves for summary judgment
based on three arguments. First, the United States argues that
this Court lacks subject matter jurisdiction over Plaintiffs'
claims based on Plaintiffs' failure to exhaust their
administrative remedies. In that regard, the United States
takes issue with the way in which Kathy Cupp's ("Mrs. Cupp")
loss of consortium claim was presented administratively and
further contends that Plaintiffs failed to act within the twoAO 72A
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year statute of limitations established by the FTCA. 28 U.S.C.
§ 2675(a). Second, the United States asserts that Plaintiffs'
claims are barred by the FTCA's analogous private liability
requirement. Finally, the United States maintains that
Plaintiffs failed to meet their burden of proof as to their
claims of negligence. Dkt. No. 51-1, p. 2.
I. Jurisdiction
a. Kathy Cupp's Loss of Consortium Claim
Where there are multiple claimants in an FTCA action, each
claimant must satisfy the jurisdictional prerequisite of filing
a proper claim with an administrative agency prior to
instituting a federal suit. Turner v. United States, 514 F.3d
1194, 1200 (11th Cir. 2008). The notice requirement is minimal
and designed to inform the agency of the circumstances of the
accident, so it may investigate the claim and respond to it by
settlement or defense. Adams v. United States, 615 F.2d 284,
289 (5th Cir. 1980)
The Eleventh Circuit has found that the FTCA's
jurisdictional requirements were not met where purported
claimants' names and the nature of their claims were not listed
on the original administrative claim filed. Turner, 514 F.3d at
1202. In Turner, however, the Eleventh Circuit deemed that the
SF-95 form was deficient because it did not list the disputed
claimants, the parents of the person on the form, and it did not
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specify the individual amounts of the non-listed persons'
claims. Id. at 1201. The Turner court stated that multiple
claimants may submit one form containing all claims in certain
circumstances and cited Campbell v. United States, a Northern
District of Georgia case, as a case in which such a method would
be permitted. Id. (citing Campbell, 795 F. Supp. 1118, 1121-22
(N.D. Ga. 1990)). In Campbell, the court determined the notice
requirement was met because all of the information necessary for
investigating the claim was provided in the claim form, and the
government treated all three persons as claimants throughout the
settlement process. 795 F. Supp. at 1121 ("the government
treated him as a claimant throughout the settlement process, and
cannot now urge that the claim was defective merely because he
failed to sign the form.")
The United States objects to the fact that the SF-95 form
only contained Timothy Cupp's signature and not that of Kathy
Cupp. Unlike in Campbell, the government in this case did
inform Plaintiffs of its position that Kathy Cupp needed to
submit her own claim, Dkt. No. 52-28, and that the form was
defective because Kathy Cupp had not signed it. Dkt. No. 52-30.
The United States denied the administrative claim based on these
and other technicalities rather than on the merits, further
distinguishing this case from Campbell. Dkt. No. 52-31.
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Despite those distinctions, the Court finds that the
essential elements of the notice requirement of 28 U.S.C. § 2675
were met in this case: the agency had sufficient written notice
to allow it to investigate the claim of Kathy Cupp, which was
clearly delineated as a loss of consortium claim derivative to
Timothy Cupp's personal injury claim, and the SF-95 form placed
a value of $1 million (of $4 million total claimed) on Kathy
Cupp's claim. See Brown v. United States, 838 F.2d 1157, 1160
(11th Cir. 1988) (citations omitted); see also Burchfield v.
United States, 168 F.3d 1252, 1255 (11th Cir. 1999) ("Congress
enacted section 2675(a) not to place procedural hurdles
before potential litigants, but to facilitate early disposition
of claims.") . Several district courts have made similar
determinations where the disputed spouse was listed as a
claimant or his claims were otherwise apparent on the face of
the claim form. See Emery v. United States, 920 F. Supp. 788,
790-91 (W.D. Mich. 1996); Kokaras v. United States, 750 F. Supp.
542, 546 (D.N.H. 1990); Casey v. United States, 635 F. Supp.
221, 225-26 (D. Mass. 1986)
b. Statute of Limitations
A tort claim against the United States must be presented to
the appropriate federal agency within two years of its accrual.
Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001)
(citing 28 U.S.C. § 2401(b)).
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The United States asserts that the expiration of the
statute of limitations was on September 20, 2010, as September
18, 2010 fell on a Saturday. Dkt. No. 51-1,
p. 13 (citing Fed.
R. Civ. P. 6(a) (3)); see also Hart v. United States, 817 F.2d
78 (9th Cir. 1987) (finding Fed. R. Civ. P. 6(a) applies to
limitations periods in FTCA suits). Plaintiffs contend that
their claims were faxed to and received by FEMA and the National
Guard on September 17, 2010. Plaintiffs also state that a
courier service served the papers on September 20, 2010. Dkt.
No. 57, p. 5. Evidence on the record indicates that an agency
received Plaintiffs' SF-95 form on September 20, 2010. See Dkt.
Nos. 52-21; 57-3.
The United States assumes, for the sake of argument, that
Plaintiffs' fax was received on September 20, 2010, but it
contends that "an unaddressed SF-95 received by FEMA on the
final day of the statute of limitations period . . . does not
satisfy the statutory requirement that the claim be presented in
writing to the appropriate Federal agency." Dkt. No. 51-1, p.
14. The significance the United States attaches to the fact
that the fax received by the United States was "unaddressed" is
undercut by the fact that the claim describes the connection of
both FEMA and the National Guard to the events underlying
Plaintiffs' claims and by the fact that the fax was sent to and
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received by an involved agency by the end of the limitations
period.
The United States has not argued that the SF-95 was
received by an inappropriate agency.' Moreover, federal
regulations contemplate situations in which multiple agencies
are involved in events giving rise to a claim and must decide
amongst themselves, or with assistance from the Department of
Justice, which agency will decide the claim. 28 C.F.R. §
14.2(b) (2). The United States merely contends that the
unaddressed form received was insufficient notice to allow for
the investigation and settlement of Plaintiffs' claims, and the
Court disagrees.
Thus, the record contains facts indicating that the SF-95
form was timely received, and given the present record, the
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The Eleventh Circuit recently summarized that other circuits apply the
doctrine of constructive filing in the FTCA context only "where the
inappropriate federal agency: (1) receives a claim that otherwise fully
complies with § 14.2(a)'s presentment requirements with sufficient time
before the statute of limitations is set to run, and (2) then violates § 14.2
(b) (1)'s requirement to forward the claim to the appropriate agency or return
the claim to the claimant." Motta v. United States, 717 F.3d 840, 844 (11th
Cir. 2013) . It also expressed that incorrect agencies should not be held
responsible for transferring a claim where the proper agency cannot be
identified from the claim and that finding constructive filing is not
appropriate where claimants file with the incorrect agency at the "eleventh
hour." Id. at 846 & n. 6. In this case, the United States does not appear
to assert that FEMA is the incorrect agency or that the National Guard/Army
was the only correct agency. Indeed, the United States earlier declined to
make a statute of limitations argument (without waiving its right to do so
later) when it ascertained that FEMA received the SF-95 form on September 20,
2010. The Court declines to address the issue of constructive filing in the
absence of argument and record evidence that FEMA was an incorrect agency and
given Plaintiffs' contention that the National Guard also received its claims
by September 20, 2010.
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Court is satisfied that a basis for jurisdiction exists at this
stage in the proceedings.
II. Analogous Private Liability Requirement under the FTCA
This Court has jurisdiction over FTCA claims against the
United States "under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred."
28 U.S.C. § 1346(b) (1); 28 U.S.C. § 2674. As the alleged
accident in this case occurred in Texas, the law of Texas
applies. See Stevens v. Battelle Mem'l Inst., 488 F.3d 896, 899
n. 3 (11th Cir. 2007) (citing Cole v. United States, 755 F.2d
873, 879 n. 16 (11th Cir. 1985) and 28 U.S.C. § 1346(b))
The United States maintains that a private person would not
be liable for the conduct in question under Texas law because of
a Texas statute limiting liability for individuals involved in
disaster assistance. The law states:
Except in a case of reckless conduct or intentional,
wilful, or wanton misconduct, a person is immune from civil
liability for an act or omission that occurs in giving
care, assistance, or advice with respect to the management
of an incident:
(1) that is a man-made or natural disaster that endangers
or threatens to endanger individuals, property, or the
environment; and
(2) in which the care, assistance, or advice is provided
at the request of an authorized representative of a
local, state, or federal agency, including a fire
department, police department, an emergency management
agency, and a disaster response agency.
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Tex. Civ. Prac. & Rem. Code Ann. § 79.0003(a) (West 2003). The
National Guardsman driving the forklift truck that allegedly hit
Timothy Cupp was part of a unit providing relief pursuant to
Hurricane Ike, a natural disaster. Dkt. No. 16, ¶ 4. Thus,
under Texas law, the United States would be immune from
liability, as would be a private party, except where the act or
omission at issue involves "reckless conduct or intentional,
wilful, or wanton misconduct[.]" Tex. Civ. Prac. & Rem. Code
Ann. § 79.0003(a). Texas courts employ the definition of
recklessness supplied by the Restatement (Second) of Torts,
which provides that a person acts recklessly:
if he does an act . . . knowing or having reason to know of
facts which would lead a reasonable man to realize, not
only that his conduct creates an unreasonable risk of
physical harm to another, but also that such risk is
substantially greater than that which is necessary to make
his conduct negligent.
Monk v. Phillips, 983 S.W.2d 323, 325 (Tex. App. 1998) (quoting
Restatement (Second) of Torts § 500 (1965)) . Showing "reckless
conduct" requires proof of more than ordinary negligence or a
momentary judgment lapse; conduct is considered reckless if the
party undertaking it "knew the relevant facts but did not care
about the result." See Georqe v. Price, 321 S.W.3d 164, 166
(Tex. App. 2010)
Plaintiffs' Amended Complaint asserts that the National
Guardsman operating the forklift truck did so in reckless
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manner. Dkt. No. 16, ¶ 4. In his Affidavit, Timothy Cupp
alleges that there was not supposed to be active loading or
unloading in the area where he was standing, that the driver
should not have moved the vehicle forward with a load on the
pallet obstructing his view, and that National Guard
representatives told him that the person driving the forklift
was "not a certified forklift truck driver" and had been "doing
'circles' while operating [] the forklift truck, as if the
forklift truck were a toy or all terrain vehicle." Dkt. No. 171, ¶I 3, 7. Several of the individuals named in Timothy Cupp's
affidavit deny having knowledge of an accident in which a
National Guardsman struck someone with a forklift. See Dkt.
Nos. 52-4; 52-5; 52-6. The Court finds a genuine dispute of
material fact regarding whether or not a National Guardsman
operated a forklift truck recklessly, such that the United
States is not entitled to immunity from liability as a matter of
law.
Negligence
Under Texas law, the elements of negligence are: "1) a
legal duty owed by one person to another; 2) a breach of that
duty; and 3) damages proximately resulting from the breach."
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525
(Tex. 1990) (citations omitted). The foremost consideration in
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determining whether or not a duty exists is foreseeability of
the risk. Id.
The facts on the record, especially the contentions in
Timothy Cupp's affidavit, speak to each of these elements.
Moreover, Plaintiffs' allegations and record evidence
sufficiently support the contention that the person allegedly
driving the forklift was indeed a federal employee. Thus, the
record evidence, viewed in a light most favorable to Plaintiffs
on summary judgment, presents genuine issues of material fact
regarding Plaintiffs' negligence claim. 2
CONCLUSION
For the reasons stated above, the United States' Motion for
Summary Judgment, Dkt. No. 51, is DENIED.
SO ORDERED,
this 24TH day of November, 2014.
LISA GODBEY OOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
2
Premises liability is not the applicable framework in this case, where
Timothy Cupp was allegedly injured as a contemporaneous result of the
negligent activity itself rather than by a condition created by the activity.
See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
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