Degenhard et al v. UNITED STATES OF AMERICA

Filing 31

ORDER granting 24 Motion to Dismiss. Plaintiffs Rachel and Jason Degenhard's claims of NIED are DISMISSED WITHOUT PREJUDICE. Signed by Senior Judge W. Earl Britt on 2/13/2015. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-685-BR

RACHEL DEGENHARD, et al.,
Plaintiffs,
v.
ORDER
UNITED STATES OF AMERICA,
Defendant.

This matter comes before the court on defendant=s motion to dismiss. (DE # 24.)
Plaintiffs Rachel Degenhard, in her individual capacity and as administratrix of the estate of
Santino Degenhard, and Jason Degenhard (collectively Aplaintiffs@) filed a response, (DE # 26), to
which defendant filed a reply, (DE # 28).
I. BACKGROUND
Plaintiffs filed this Federal Tort Claims Act (AFTCA@) case following the death of their
four-month-old son, Santino Degenhard (ASantino@), which resulted from the alleged negligence of
employees of Pope Child Development Center, a daycare located on the United States Army base
at Fort Bragg, North Carolina. (Compl., DE # 1, at 3.) On 9 March 2012, Santino suffocated
when a daycare worker placed him face-down on the floor and left him unattended for
approximately nineteen minutes. (Id. at 5-6.) He died from the injuries five days later at Cape
Fear Valley Medical Center. (Id. at 6-7.)
On 17 December 2012, Santino=s estate filed with the government an administrative claim
for wrongful death. (Id. at 2; DE # 25-1.) Plaintiffs now assert, under the FTCA, claims for
wrongful death and negligent infliction of emotional distress (ANIED@). (Compl., DE # 1, at 8,

10.) In the present motion, defendant (Athe government@) argues that, pursuant to Federal Rule of
Civil Procedure 12(b)(1), this court should dismiss plaintiffs Rachel and Jason Degenhard=s (Athe
Degenhards@) individual NIED claims for lack of subject matter jurisdiction, due to their failure to
exhaust administrative remedies. (DE # 25, at 3.) Plaintiffs argue that they have sufficiently
exhausted their administrative remedies. (DE # 26, at 3.)
II. STANDARD OF REVIEW
In response to a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden
of showing that federal jurisdiction is appropriate. Evans v. B.F. Perkins Co., 166 F.3d 642, 647
(4th Cir.1999) (internal citation omitted). A district court should allow a Rule 12(b)(1) motion to
dismiss Aonly if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.@ Id. When ruling on a 12(b)(1) motion, the Acourt is to regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.@ Id. (internal quotation omitted).
III. DISCUSSION
The United States, as a sovereign, is immune Afrom suits for damages at common law.@
Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995). The FTCA, however, creates a limited
waiver of the United States= sovereign immunity. Id. As a condition of the waiver, the Act
requires a party to file an administrative claim with the appropriate federal agency before filing
suit. 28 U.S.C. ' 2675; see also Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir.
2000) (identifying the filing of an administrative claim as a Ajurisdictional prerequisite to filing suit
under the FTCA@). Federal regulations deem a claim Ato have been presented when a Federal
agency receives from a claimant . . . an executed Standard Form 95 or other written notification of

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an incident, accompanied by a claim for money damages in a sum certain . . . .@ 28 C.F.R. ' 14.2.
The notice must be A>sufficient to cause the agency to investigate=@ the incident in order to
determine its exposure to liability. Rudisil v. United States, No. 5:13-CV-110-F, 2014 WL
4352114, at *1 (E.D.N.C. Sept. 2, 2014) (quoting Ahmed v. United States, 30 F.3d 514, 516 (4th
Cir 1994)). However, a claimant need not give the government notice of Aevery possible theory
of recovery.@ Id. at *1 (internal quotation omitted).
Rachel Degenhard, in her capacity as adminstratrix of her son=s estate, timely filed a
Standard Form 95 (ASF-95") with the United States Department of Defense, asserting a wrongful
death claim. (DE # 25-1.) In addition to this claim, the Degenhards now assert individual NIED
causes of action that were not specifically set out in the SF-95. (DE # 1, at 10.) The central
question in this case is whether the estate=s administrative claim for wrongful death put the
government on sufficient notice to investigate potential individual NIED claims of the
Degenhards. Plaintiffs answer this question in the affirmative. (DE # 26, at 3.) They contend
that notice was adequate because A[t]he NIED claims arise directly out of the same negligent
conduct and damages that [have] already been alleged [in the administrative claim for] wrongful
death.@ (Id. at 5.) Plaintiffs go on to state that evidence uncovered in an investigation into the
wrongful death claim Anecessarily and entirely overlaps@ with evidence that the government would
need to evaluate their NIED claims. (Id. at 6.) They also argue that the language of North
Carolina=s wrongful death statute, which would allow the Degenhards to recover damages for,
among other things, the loss of companionship and comfort of their son, should have put the
government on notice of their individual NIED claims. (Id. at 4-5.) Plaintiffs further note that
they Aprovided [the government] over 800 pages of . . . documentation supporting the alleged

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claim and the facts giving rise to it, including [their] theories of negligence.@ 1 (Id. at 4.)
Additionally, plaintiffs point to the government=s letter denying the administrative claim as
evidence that they have sufficiently exhausted their administrative remedies. (Id. at 6-7.) The
letter states that Aall claims related to the event that serves as the basis of this suit are no longer
amenable to administrative resolution.@ (Id. at 6.)
The government contends that the SF-95 Ain no way provided [] adequate notice of
Plaintiffs= individual [NIED] claims . . . .@ (DE # 28, at 2.) It notes that the SF-95 articulates only
a claim under North Carolina=s wrongful death statute. (Id. at 3.) The government also points
out that the estate describes its damages by referring specifically to the compensable expenses
under the wrongful death statute. (Id.) Furthermore, it argues that because satisfying the
elements of an NIED claim requires Adifferent and additional evidence@ than that needed to make
out a wrongful death claim, an NIED claim cannot be inferred from a wrongful death claim. (Id.
at 4.) Thus, the government maintains, the SF-95 contained no facts that support an NIED claim.
(Id. at 3.)
The court concludes that it cannot maintain jurisdiction over plaintiffs= NIED claims. As
previously recognized, the completed SF-95 asserted only a claim for wrongful death. (DE #
25-1, at 1.) In section 2 of the form, Rachel Degenhard, in her capacity as administratrix of the
estate, is the only listed claimant. (Id.) Absent are any individual claimants. Section 8 of the
form described the basis of the administrative claim as only A[n]egligence of federal employees
resulting in wrongful death.@ (Id.) In an attached supplement to section 8, the damages that the
estate identified precisely track the damages compensable under the North Carolina wrongful
1

Neither party has provided the court with this supplemental documentation.

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death statute. (Id. at 7.) In section 10 of the SF-95, the estate described the nature and the extent
of the injury as follows: AWrongful death of the minor, [] which encompasses all that is implied by
[the North Carolina wrongful death statute] . . . .@ (Id.) Further, in section 12c, the estate listed
damages in the amount of ten million dollars under the caption titled AWrongful Death,@ but
claimed no amount of damages under the APersonal Injury@ caption. (Id.) The SF-95 is entirely
focused on the estate=s wrongful death claim.
As the government argues, NIED and wrongful death claims are distinct in North Carolina,
as each claim requires proof of different elements and allows for different damages. (Id. at 3.)
Thus, an investigation of a wrongful death claim would not necessarily give rise to evidence that
would put the government on notice of an NIED claim. For example, North Carolina=s wrongful
death statute permits recovery of expenses for medical care incident to the injury resulting in
death; compensation for pain and suffering of the decedent; reasonable funeral expenses; and the
present monetary value of the decedent to the persons entitled to receive the damages recovered,
including compensation for loss of society, companionship, and comfort. N.C. Gen. Stat. '
28A-18-2(b). While the statute would allow parents of a deceased child to recover the present
value of the loss of companionship and comfort that the child provided them, the parents= own
emotional damages are not compensable. See id. Unlike a wrongful death claim, an NIED claim
requires proof of severe emotional distress, meaning Aany emotional or mental disorder . . . or any
other type of severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by a medical professional trained to do so.@ Johnson v. Ruark
Obstetrics & Gynecology Assocs, P.A., 395 S.E.2d 85, 97 (N.C. 1990). Because the Degenhards=
individual emotional distress is not compensable under the wrongful death statute, the

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government=s investigation of the wrongful death claim would not have necessitated an inquiry
into disabling emotional conditions or diagnoses of the Degenhards C a critical element of an
NIED claim.
The court further concludes that the government=s denial letter, which stated that Aall
claims related to the event that serves as the basis of this suit are no longer amenable to
administrative resolution,@ is insufficient to support a finding that plaintiffs exhausted their
administrative remedies with respect to their NIED claims. ABeing a waiver of sovereign
immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United
States.@ Williams v. United States, 50 F.3d 299, 306 (4th Cir. 1995). The letter does not make
clear whether the government denied all potential individual claims, or merely all claims of the
estate. Confronted with this ambiguity, the court is hesitant to find that the denial letter evidences
exhaustion of the Degenhards= NIED claims.
The court’s conclusion is supported by precedent as well. It appears that neither the
Fourth Circuit Court of Appeals nor any district court within this circuit has construed the notice
requirement as broadly as plaintiffs urge this court to do. For example, the court in Rudisil held
that a plaintiff=s administrative claim for surgical negligence did not provide the government with
sufficient notice of her claim against the hospital for negligently credentialing the surgeon. 2014
WL 4352114, at *2. In support of its position, the court noted that the two claims involve
different facts and that a hospital negligence claim is not, Aby its very nature,@ included in a
medical negligence claim. Id. (internal quotation omitted).
A case in which the Fourth Circuit Court of Appeals found adequate notice, Drew v. United
States, 217 F.3d 193 (4th Cir. 2000), reh=g en banc granted, opinion vacated, aff=d by equally
divided court without opinion, 231 F.3d 927 (4th Cir. 2000), is readily distinguishable from the
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case at hand. In Drew, the Court of Appeals found that a plaintiff=s administrative claim for
medical negligence was sufficient to put the government on notice of his informed consent claim.
The court reasoned that an informed consent action is, Aby its very nature, [] included within a
general allegation of [medical negligence]@ and that a diligent investigation of the medical
negligence claim would elucidate the facts which form the basis of the informed consent claim.
Id. at 199.
Similar to Rudisil, plaintiffs= two claims in the case at hand involve different facts. As
noted above, an NIED claim requires proof that the Degenhards suffered severe emotional distress,
while a wrongful death claim does not. Thus, in stark contrast to Drew, an NIED claim is not, by
its very nature, included in a wrongful death claim, and a diligent investigation of the estate=s
wrongful death claim would not have given the government notice of the Degenhards= NIED
claims. See Estate of Sullivan v. United States, 777 F.Supp. 695, 701 (N.D. Ind. 1991)
(A[Plaintiff=s] administrative claim for wrongful death cannot be construed as encompassing her
claim for [NIED].@).
Lastly, plaintiffs argue that even if the administrative claim failed to provide sufficient
notice, the newly asserted individual NIED claims should relate back to the time of the filing of the
original administrative claim, pursuant to Federal Rule of Civil Procedure 15(c). (DE # 26, at
8-9.) Under certain circumstances, Rule 15(c) allows for an amendment to a pleading to relate
back to the date of the original pleading. However, the plain language of the rule applies only to
pleadings, and not to administrative filings. See Manko v. United States, 830 F.2d 831, 840 (8th
Cir. 1987) (finding that Rule 15(c) Aapplies only to relation back of amendments to pleadings in
ordinary lawsuits,@ and not to amendments in the administrative context). Plaintiffs cite no
authority for the proposition that Rule 15(c) can be employed in the context of administrative
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claims. Additionally, plaintiffs have failed to comply with 28 C.F.R. ' 14.2(c), which requires an
amendment to an FTCA claim to be presented to the government before the claim=s final agency
determination or before the claimant commences an action. See Wilson v. United States, Civil
Action No. GLR-12-824, 2012 WL 6761368, at *2 (D. Md. Dec. 28, 2012) (noting that § 14.2(c)
governs amendments of administrative claims). Accordingly, the court finds this argument to be
without merit.
IV. CONCLUSION
Based on the foregoing, the government=s motion to dismiss, (DE # 24), is GRANTED, and
plaintiffs Rachel and Jason Degenhard=s claims of NIED are DISMISSED WITHOUT
PREJUDICE. The wrongful death claim brought by Rachel Degenhard as administratrix of the
estate of Santino Degenhard remains.
This 13 February 2015.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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