Bowling et al v. USA
Filing
78
MEMORANDUM OPINION & ORDER: 1) 67 Motion to Dismiss shall be GRANTED. 2) Pla's loss of consortium claim be DISMISSED WITH PREJUDICE. 3) Pla in her individual capacity be DISMISSED AS A PARTY. Signed by Judge Joseph M. Hood on 10/26/2012. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TAMARA BOWLING, individually
and as Administratrix of the
Estate of Don Bowling,
deceased
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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Civil Case No.
5:11-cv-140-JMH
MEMORANDUM OPINION & ORDER
This action is before the Court on Defendant’s partial
motion
to
dismiss.
(D.E.
67).
Under
this
Court’s
abbreviated scheduling order, Plaintiff has responded (D.E.
73), and Defendant has replied (D.E. 75).
motion is ripe for decision.
Therefore, this
For the reasons which follow,
Defendant’s partial motion to dismiss is granted.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The
decedent,
Don
Bowling,
went
to
the
Veterans
Affairs Medical Center (“VAMC”) in Lexington, Kentucky, on
May
21,
2008,
for
a
routine
Hackney Deposition, at 13).
medical
visit.
(D.E.
30,
During his appointment, Mr.
Bowling expressed a specific suicidal plan to his primary
care
physician,
questions.
Dr.
(D.E.
Connie
30,
Hackney,
Hackney
in
response
Deposition,
at
to
her
14-15).
Despite Mr. Bowling’s statements, he was not admitted to
the VAMC for treatment on May 21, 2008, on a voluntary or
involuntary basis.
(D.E. 30, Hackney Deposition, at 20).
On June 29, 2008, Mr. Bowling committed suicide at his
place
of
work
in
Winchester,
obtained from his home.
Kentucky
using
a
firearm
(D.E. 37-6, Death Certificate).
Mr. Bowling’s wife, Plaintiff Tamara Bowling, filed an
administrative
claim
Affairs
on
(“VA”)
with
November
the
Department
25,
2008,
of
against
(D.E. 67-3, 11/25/08 Wrongful Death Claim).
Veteran’s
the
VAMC.
The only claim
Plaintiff asserted in this first administrative filing was
a wrongful death claim against the VAMC on behalf of her
deceased husband’s estate.
Death Claim).
2009,
via
(D.E. 67-3, 11/25/08 Wrongful
This claim was denied by the VA on May 21,
certified
mail.
(D.E.
67-4,
5/21/09
Denial
Letter).
Thereafter on November 3, 2009, Plaintiff sent the VA
a letter requesting reconsideration of the May 21, 2009,
denial of her original claim.
(D.E. 67-5, 11/3/09 Notice
of Disagreement).
On July 30, 2010, the VA notified the
Plaintiff
was
that
it
still
reconsidering
her
wrongful
death claim and gave her the option to wait for a decision
or
file
Letter).
suit
in
district
court.
(D.E.
73-2,
7/30/10
Plaintiff decided to wait for a decision from the
VA.
2
In the meantime, Plaintiff filed an amended claim in
August
2010,
which
for
the
first
time
included
an
individual personal injury claim alleging spousal loss of
consortium.
(D.E. 73-3, 8/10/10 Letter).
Thereafter, on
October 21, 2010, the VA notified Plaintiff via certified
mail that it had completed reconsideration of her claim and
was again denying it. (D.E. 73-1, 10/21/10 Letter).
On
April 21, 2011, Plaintiff timely filed her Complaint under
the Federal Tort Claims Act in this Court in which she
asserted claims for wrongful death and loss of consortium.
(D.E. 1, Complaint).
II. STANDARD OF REVIEW
Defendant
consortium
seeks
claim
dismissal
pursuant
of
to
Plaintiff’s
Federal
loss
Rule
of
of
Civil
Procedure 12(b)(1) and 12(h)(3) for lack of subject matter
jurisdiction.
Subject
threshold determination,
matter
jurisdiction
is
always
a
American Telecom Co., L.L.C. v.
Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007), and
may be raised at any stage in the proceedings,” Schultz v.
Gen. R.V. Ctr., 512 F.3d 754, 756 (6th Cir. 2008).
“When a Rule 12(b)(1) motion attacks the factual basis
for
jurisdiction,
the
district
court
must
weigh
the
evidence and the plaintiff has the burden of proving that
the
court
has
jurisdiction
over
3
the
subject
matter.”
Bowers v. Wynne, 615 F.3d 455, 457 (6th Cir. 2010) (quoting
Golden v. Gorno Bros. Inc., 410 F.3d 879, 881 (6th Cir.
2005)).
in
In this case, because Defendant attached exhibits
support
of
its
motion
to
dismiss,
the
motion
is
appropriately construed as an attack on the factual basis
for jurisdiction, and this Court therefore must weigh the
evidence.
evidence,
Id.
this
jurisdiction
does
If,
Court
not
after
weighting
determines
exist
as
to
that
the
conflicting
subject
Plaintiff’s
consortium claim, the claim must be dismissed.
matter
loss
of
Fed. R.
Civ. P. 12(h)(3).
III. ARGUMENT
Under the FTCA,
A tort claim against the United States shall be
forever barred unless it is presented in writing to
the appropriate Federal agency within two years after
such claim accrues or unless action is begun within
six months after the date of mailing, by certified or
registered mail, of notice of final denial of the
claim by the agency to which it was presented.
28 U.S.C. § 2401(b).
The statute of limitations provision
in § 2401(b) has been narrowly construed, and a Plaintiff
must both file her administrative claim within two years
after accrual of the claim and file her action in district
court within six months of the agency’s final action for
jurisdiction to be proper. Ellison v. United States, 531
F.3d 359, 361 (6th Cir. 2008).
4
Despite the “or” language
in § 2401(b), if a plaintiff fails to comply with either of
the two deadlines in the statute, her claim is barred.
Id.
In this case, the parties agree that Plaintiff’s FTCA
claim was timely filed in this Court within six months
after the VA denied Plaintiff’s administrative claim.
The
parties also agree that Plaintiff’s claim accrued on June
28,
2010,
the
date
of
the
decedent’s
death.
However,
Defendant argues that Plaintiff’s loss of consortium claim
must be dismissed because she failed to assert the claim at
the administrative level until after the two year statute
of limitations period in § 2401(b) expired.
Contrarily,
Plaintiff argues that under 28 C.F.R. 14.2(c) (2008),
A claim presented in compliance with
this section may be amended by the
time prior to final agency action
exercise of the claimant’s option
2675(a).
§ 14.2(c).
paragraph
claimant
or prior
under 28
(a) of
at any
to the
U.S.C.
Plaintiff argues that final agency action over
her administrative claim did not occur until the VA denied
it for the second time upon reconsideration on October 21,
2010.
Thus,
she
argues
that
under
§
14.2(c),
it
was
entirely permissible for her to file a request that the VA
reconsider
asserting
her
a
original
wrongful
administrative
death
action
on
claim
behalf
(solely
of
her
husband’s estate), to then file an amended administrative
claim outside of the two year limitations period asserting
5
an entirely new claim (loss of consortium) by an entirely
new party (Plaintiff in her individual capacity), and then
tack on the added claim in the district court action after
the VA denied her claim on reconsideration.
However, a Plaintiff cannot amend a claim after the
two year statute of limitations has passed to add entirely
new claims or new parties in Withrow v. United States, Civ.
A. No. 5:05-152-JMH, 2005 WL 2403730 (E.D. Ky. Sept. 28,
2005).
In Withrow, the plaintiff filed an administrative
claim with the VA after her husband was prematurely sent
home from the VAMC on September 23, 2001.
Id. at *1.
In
her first two administrative claims on July 22, 2003, and
August 12, 2003, she listed herself as the only claimant
and did not mention a loss of consortium claim.
Id. at *2.
Subsequently, on October 4, 2004, after the expiration of
the
two
year
statute
of
limitations,
the
plaintiff’s
counsel submitted an amended claim adding her children as
claimants
and
adding
consortium claims.
spousal
and
parental
loss
of
Id. at *2.
In reliance on Manko v. United States, 830 F.2d 831
(8th Cir. 1987) and Lee v. United States, 980 F.2d 1337
(10th
Cir.
1992),
this
Court
found
that
an
amended
administrative claim adding entirely new parties and new
claims could not relate back to the original, timely filed
6
administrative claim.
Id. at *6.
Therefore, since the
plaintiff’s second amended claim adding new parties and new
claims was filed outside of the FTCA’s two year statute of
limitations, both the plaintiff’s and her children’s loss
of
consortium
claims
were
dismissed.
Id.
at
*8.
The
present case is very similar.
Plaintiff argues that Withrow is distinguishable from
the
present
situation
spousal
consortium
whereas
the
claim
is
claim
Withrow
not,
because
and
is
adult
2)
“1)
Plaintiff’s
recognized
children’s
Plaintiff
by
loss
loss
Kentucky
of
requested
of
law,
consortium
and
received
reconsideration of the denial of her claim, which extended
her
deadline
whereas
the
to
assert
Withrow
her
loss
claimants
Plaintiff’s Response, at 7).
of
consortium
did
not.”
claim,
(D.E.
73,
Plaintiff’s first distinction
is clearly misplaced, as the plaintiff in Withrow added a
spousal loss of consortium claim in her individual capacity
in
addition
claims.
October
to
her
Withrow,
4,
adult
2005
2004,
WL
amended
children’s
2403730,
claim
loss
at
clearly
*7
of
consortium
(“.
sought
.
.
loss
the
of
consortium damages for . . . Mrs. Withrow and the Withrow
children. . .”).
This Court dismissed all of the loss of
consortium claims as untimely, not just those asserted by
the adult children.
Id. at *8 (“The timely August 12, 2003
7
claim
form
did
not
mention
any
claims
for
loss
of
consortium for either Mrs. Withrow or the Withrow Children.
Therefore, the plaintiff is foreclosed from arguing that
the loss of consortium claims were properly presented to
the agency. . .”).
Further,
in
Plaintiff’s
second
distinction,
she
attempts to create two issues where there is really just
one.
While Withrow was indeed decided on relation back
grounds, the basic guiding principle behind the decision
was that a plaintiff cannot amend her administrative claim
after the two year statute of limitations has passed to add
new claims and new parties and then expect the added claims
to be timely when she files suit in the district court.
Regardless of whether the issue is framed as a relation
back issue or as an issue of the intersection between §
2401(b) and § 14.2(c), the fact remains that if Plaintiff
is permitted to ignore § 2401(b) by amending her claim to
add
new
claims
and
new
parties
before
the
VA’s
“final
action”, then “the FTCA’s statute of limitations would not
have any meaning.” Id. at *6. Indeed, if Plaintiff were to
get her wish, then as explained in Withrow,
Plaintiff[s] could avoid the limitations period by
merely amending the original claim to add additional
claims, anytime after the limitations period has
expired.
Or, persons not parties to the original
claim, like [a plaintiff’s] children and [the
8
plaintiff] individually, could simply be added to the
amended claim after the expiration of the limitations
period,
and,
in
effect,
completely
avoid
the
statute’s requirements.
Id.
To the extent that there is any doubt about whether
the Withrow analysis addresses the issue at hand, Lee v.
United States, 980 F.2d 1337, which this Court followed in
the Withrow decision, is again persuasive authority.
In
Lee, the plaintiffs filed an administrative claim with the
VA
on
behalf
malpractice.
of
their
daughter
Id. at 1338.
alleging
medical
After the two year statute of
limitations expired, plaintiffs amended the administrative
claim to add themselves as claimants.
Id. at 1339—40.
All
parties involved agreed that when the plaintiffs amended
their claim, there had not been a final agency disposition
of the original claim, and the plaintiffs, thus, argued
that § 14.2(c) gave them the authority to amend their claim
to add themselves as parties despite being outside of the
limitations period.
The
Tenth
Id. at 1340.
Circuit
disagreed
and
held
that
allowing
plaintiffs to amend their administrative claim to add new
parties
entirely
after
the
defeat
statute
the
of
obvious
limitations
purpose
(citing Kubrick, 444 U.S. at 117—18).
9
of
§
expired
would
2401(b).
Id.
The Tenth Circuit’s
reasoning
is
sound.
See
Kubrick,
333
U.S.
at
117—18
(“Section 2401(b) . . . is the balance struck by Congress
in the context of tort claims against the Government, and
we are not free to construe it so as to defeat its obvious
purpose which is to encourage the prompt presentation of
claims.”).
Finally,
Plaintiff
cites
Wooding
v.
United
States,
Civ. A. No. 05-1681, 2007 WL 2071674 (W.D. Penn. July 13,
2007) in support of her argument, but Plaintiff’s attempt
to
liken
her
situation
to
Wooding
is
unavailing.
In
Wooding, the plaintiff filed an administrative claim with
the VA alleging a breach of the medical standard of care
and “medical negligence” against a veteran’s hospital.
at *1.
Id.
After the two year statute of limitations expired,
the plaintiff amended his administrative claim to add a
negligent misrepresentation claim, alleging the additional
fact
that
the
misrepresented
physician
his
who
experience
performed
and
the
credentials.
surgery
Id.
Although the judge held that the misrepresentation claim
was properly before the court regardless of the expiration
of the two year statute of limitations, she specifically
distinguished the facts from Withrow and Lee because the
claimants
there
attempted
to
10
“inject
new
legal
theories
asserted
by
new
claimants,”
which
was
not
the
case
in
Wooding. Id. at *3.
The
Withrow
Wooding
and
Plaintiff
court’s
Lee
is
by
of
that
case
instructive.
For
example,
an
entirely
new
claim
entirely
new
presented
consortium)
distinction
an
party
from
whereas
(loss
(Plaintiff
of
in
her
individual capacity), the plaintiff in Wooding was neither
a
new
claim
claimant,
nor
was
considered
new
because
negligence
and
thus
his
within
administrative claim.
negligent
it
the
was
misrepresentation
still
bounds
of
a
theory
his
of
original
Cf. Parsons v. United States, Civ.
A. No. 5:03-89-JMH, 2004 U.S. Dist. LEXIS 30584, at *5
(E.D. Ky. Nov. 4, 2004) (noting that under Kentucky law,
“[e]ven
though
consortium
a
claim
wrongful
may
death
arise
from
action
the
and
same
a
loss
injury,
of
they
belong to separate legal entities and consequently should
not be treated as a single claim.”) (quoting Guiliani v.
Guiler, 951 S.W.2d 318, 322 (Ky. 1997)).
In
however,
sum,
it
relation
does
not
back
save
applies
to
Plaintiff’s
this
context;
claim
here.
Therefore, because Plaintiff’s amended administrative claim
for loss of consortium was untimely filed, this Court lacks
jurisdiction over the claim and it must be dismissed in its
entirety. Plaintiff’s wrongful death claim, brought in her
11
capacity
as
the
Administratrix
of
Mr.
Bowling’s
estate,
remains.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED:
(1) that Defendant’s Motion to Dismiss (D.E. No. 67)
shall be GRANTED.
(2)
that
Plaintiff’s
loss
of
consortium
claim
be
DISMISSED WITH PREJUDICE.
(3) that the Plaintiff in her individual capacity be
DISMISSED AS A PARTY.
This, the 26th day of October, 2012.
12
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