NATIONWIDE INSURANCE COMPANY v. UNITED STATES OF AMERICA et al

Filing 6

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 1/17/12. 1/18/12 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NATIONWIDE INSURANCE COMPANY :
a/s/o CHRISTY MAURO
:
:
v.
:
:
UNITED STATES OF AMERICA and
:
MICHAEL McCOLLUM
:

CIVIL ACTION

NO. 11-4201

MEMORANDUM
Padova, J.

January 17, 2012

Nationwide Insurance Company (“Nationwide”) brings this action against the United States
and a federal employee pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (the
“FTCA”), to recover $4,580.87 it paid to its insured, Christy Mauro, following an automobile
collision between the automobile driven by Ms. Mauro and a United States Postal Service (“Postal
Service”) vehicle driven by Michael McCollum. Defendants have moved to dismiss this case under
Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for summary judgment under Federal Rule
of Civil Procedure 56, on the grounds that Mr. McCollum is absolutely immune from suit pursuant
to the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679(b)(1), and
because Nationwide’s claim is time-barred pursuant to § 2401 of the FTCA. Plaintiff agrees that Mr.
McColllum should be dismissed as a defendant in this lawsuit (Pl. Opp’n at 1), and he is accordingly
dismissed. For the following reasons, we also grant the motion for summary judgment on the ground
that Nationwide’s claim is time-barred.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This action arises from a July 21, 2010 automobile accident between a Toyota Camry driven

by Ms. Mauro and a Postal Service vehicle driven by Mr. McCollum. (Defs. Mem. at 1, Pl. Opp’n

at 1.) Nationwide contends that Mr. McCollum caused the accident through negligent driving and
seeks $4,580.87 in subrogation damages. (Defs. Mem. at 1, Pl. Opp’n at 1.) Nationwide asserted
an administrative claim against the Postal Service on August 25, 2010. (Bjurstrom Decl. ¶ 3; Gov’t
Ex. 2-A.) The Postal Service denied Nationwide’s claim and sent Nationwide a letter by certified
mail, return receipt requested, notifying it of the denial on October 26, 2010. (Bjurstrom Decl. ¶ 6;
Gov’t Ex. 2-C.)

The October 26, 2010 letter included the following language regarding

Nationwide’s right to file a lawsuit seeking damages arising from the July 21, 2010 accident:
In accordance with 28 U.S.C. § 2401(b) and 39 C.F.R. 912.9(a), if
dissatisfied with the Postal Service’s final denial of an administrative
claim, a claimant may file suit in a United States District Court no
later than six (6) months after the date the Postal Service mails the
notice of that final action. Accordingly, any suit filed in regards to
this denial must be filed no later than six (6) months from the date of
the mailing of this letter, which is the date shown above [October 26,
2010].
(Gov’t Ex. 2-C at 1.) Nationwide filed the instant lawsuit on June 23, 2011, nearly eight months
after the Postal Service mailed its letter denying Nationwide’s claim.
II.

LEGAL STANDARD
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.” Fed. R. Civ .P. 56(a).
An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute
is “material” if it might affect the outcome of the case under governing law. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it

2

believes demonstrate the absence of a genuine issue of material fact .” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular issue
at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district court”
that “there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. After the
moving party has met its initial burden, the adverse party’s response “must support the assertion [that
a fact is genuinely disputed] by: (A) citing to particular parts of materials in the record . . .; or (B)
showing that the materials [that the moving party has cited] do not establish the absence . . . of a
genuine dispute . . . .” Fed. R. Civ. P. 56(c)(1). Summary judgment is appropriate if the nonmoving
party fails to respond with a factual showing “sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322.
III.

DISCUSSION
The Government argues that the instant suit is time-barred because it was not filed within six

months after the Postal Service sent Nationwide notice of final denial of its claim by certified mail.
The Government relies on § 2401 of the FTCA, which provides as follows:
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). Nationwide argues that its claim is not time-barred because it was filed within
two years after its claim accrued.
Section 2401 contains two limitations periods: (1) a claimant must present his or her

3

administrative claim to the appropriate federal agency within two year period of limitations; and (2)
the claimant must file suit in federal court within six months after that claim is denied by the agency.
Id. While the statute links these limitations periods in the disjunctive, the plain language of the
statute does not control when there is “a clearly expressed legislative history to the contrary.” AMP
Inc. v. U.S., 820 F.2d 612, 615 (3d Cir. 1987). Here, the legislative history and the pertinent case
law are clear that a claimant must comply with both limitations. See Seiss v. United States, 792
F.Supp.2d 729, 731-32 (D.N.J. 2011).
The FTCA was amended in 1966 to add the limitations provisions provided by § 2401 and
the legislative history of that amendment makes it clear that Congress “intended both that a claimant
file with the appropriate agency within two years after a claim accrues and that the claimant file a
complaint in the District Court within six months after the agency denies the claim.” Id., 792
F.Supp.2d at 731. The House Report with respect to the amendment states the following:
The amendments have the effect of simplifying the language of
section 2401 to require that a claimant must file a claim in writing to
the appropriate Federal agency within 2 years after the claim accrues,
and to further require the filing of a court action within 6 months of
notice by certified or registered mail of a final decision of the claim
by the agency to which it was presented.
Id. (quoting H.R. Rep. No. 89–1532, at 5 (1966)). The Senate Report similarly states that an action
filed pursuant to the FTCA “would have to be filed with the agency concerned within 2 years after
it accrues and any tort action must be brought within 6 months after final denial of the administrative
claim.” Id. at 732 (quoting S. Rep. No. 89–1327, at 1 (1966); 1966 U.S.C.C.A.N. 2515, 2522.
Moreover, “the caselaw is clear that Section 2401(b) requires a plaintiff to satisfy both limitations
provisions.” David v. United States, Civ. A. No. 08-5296, 2009 WL 1108852, at *2 (E.D. Pa. Apr.

4

24, 2009) (listing cases). See Seiss, 792 F. Supp. 2d at 732 (noting that the “Second, Fifth, Sixth,
and District of Columbia Circuit Courts of Appeals have all explicitly held that § 2401(b)’s
limitations periods must be read in the conjunctive” and that “[a]ll of the other Circuits, including
the Third Circuit by way of an unreported decision, have assumed without discussion that both
deadlines must be met” (listing cases)); see also Gordon v. Pugh, 235 F. App’x 51, 53 (3d Cir. 2007)
(stating that a claim brought pursuant to the FTCA was untimely solely because it was brought more
than six months after agency denial of the claimant’s administrative claim).
Nationwide relies solely on its argument that it was only required to comply with the twoyear limitations period for presenting its claim to the Postal Service. The law is clear, however, that
Nationwide was also required to file its federal lawsuit no later than six months after the Postal
Services’s final notice of denial was mailed to Nationwide by certified mail. The record shows that
the Postal Service mailed its final notice of denial on October 26, 2010. Nationwide did not file the
instant lawsuit until June 23, 2011, more than six months later. We conclude that the instant action
is time-barred pursuant to 28 U.S.C. § 2401(b) and that the Government is entitled to the entry of
judgment in its favor as a matter of law.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An

appropriate order follows.

BY THE COURT:
/s/ John R. Padova
John R. Padova, J.

5