KODAR, LLC et al v. United States of America et al

Filing 48

MEMORANDUM AND ORDER: For the reasons stated in the attached order, the FAA's 33 motion for partial dismissal of Gitlow's 22 amended cross claim is GRANTED and Count III of that claim is DISMISSED. The FAA's 33 motion to dismi ss Global's 21 third-party complaint is GRANTED and that complaint is DISMISSED as well. Darche's 35 motion for partial summary judgment is GRANTED with respect to Gitlow's personal injury claims against Darche and that claim i s DISMISSED. Gitlow's 42 motion to amend/correct his Third-Party Complaint is GRANTED with respect to indemnification and contribution claims against Darche and otherwise DENIED. Global's 40 motion to intervene is DENIED. In light of this Court's determination regarding Darche's 35 motion for partial summary judgment, Darche's 46 motion for an extension of time to file an Statement of Undisputed Facts nunc pro tunc is DENIED as moot. So Ordered by Chief Judge Mary M. Lisi on 6/6/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
KODAR, LLC, PHOENIX AVIATION
MANAGERS, as Subrogee of KODAR, LLC
AND OLD REPUBLIC INSURANCE
COMPANY, as Subrogee of KODAR, LLC,
Plaintiffs,
v.

C.A. No. 11-119-ML

UNITED STATES OF AMERICA (FEDERAL
AVIATION ADMINISTRATION) AND
STUART GITLOW,
Defendants,
and
STUART GITLOW, M.D.,
Third-Party Plaintiff,
v.
RICHARD DARCHE,
Third-Party Defendant,
and
GLOBAL AEROSPACE, INC.,
Third-Party Plaintiff,
v.
RICHARD DARCHE, THE UNITED STATES
OF AMERICA and THE FEDERAL
AVIATION ADMINISTRATION,
Third-Party Defendants.

MEMORANDUM AND ORDER
This litigation arose out of the June 6, 2008 collision
between two private airplanes, a 1986 Beechcraft A36 Bonanza, FAA
registration

N27199

(the

“Bonanza”)

and

a

Piper

PA-30

Twin

Comanche, FAA registration N7660Y (the “Comanche”) at North Central
State Airport in Smithfield, Rhode Island (“North Central”).

1

The

Bonanza

was

owned

by

KODAR,

LLC,

a

New

Jersey

corporation

(“KODAR”), and it was insured by Old Republic Insurance Company
(“Old Republic”) through its wholly owned subsidiary and managing
agent

Phoenix

Aviation

Managers,

Inc.

(“Phoenix”),

a

Georgia

corporation. On the day of the accident, the Bonanza was operated
by Richard J. Darche (“Darche”), a principal shareholder of KODAR.
The

Comanche

(“Gitlow”);
(“Global”).

was
and

owned
it

and

was

operated

insured

by

by

Stuart

Global

Gitlow,

M.D.

Aerospace,

Inc.

According to the Complaint (Docket # 1), as the

Bonanza was in the process of departing, it was struck on the left
side by the Comanche which had just landed.

Complaint ¶ 31. The

Bonanza was totaled, resulting in a loss of $288,892.

Id. ¶ 32.

The case is before the Court on the motion (Docket # 33) by
the

United

States

of

America

and

the

Federal

Aviation

Administration (together, the “FAA”) for (1) partial dismissal of
Gitlow’s amended counterclaim (Docket # 22) for lack of subject
matter jurisdiction, and (2) for dismissal of Global’s third-party
complaint (Docket # 21).
I. Summary Background Facts
Although the various parties disagree about the exact sequence
of

events,

the

general

essentially undisputed.

facts

of

the

collision

appear

to

be

On June 6, 2008, Darche was piloting the

Bonanza for a planned flight from North Central - which does not

2

have an air traffic control tower1 - to Morristown, New Jersey.
Complaint ¶ 15.

At the same time Darche was getting ready for

take-off, Gitlow, who was piloting the Comanche from Nantucket
Airport to North Central, was getting ready for approach and
landing.

Id. ¶ 16, 21.

Darche asserts that he was given clearance

from traffic control personnel to depart from Runway 5. Id. ¶ 23.
He also states that traffic control personnel failed to advise him
that the Comanche was in the process of approaching and landing, or
to advise Gitlow that the Bonanza was getting ready for departure.
Id. ¶¶ 24,25.

According to Darche, the Bonanza was in the process

of its takeoff roll to depart Runway 5 when the aircraft was struck
on the left side by the Comanche.

Id. ¶ 31.

Global, the insurer of the Comanche, asserts that, as a result
of

Darche’s

negligence,

the

Bonanza

struck

the

Comanche

and

destroyed that aircraft completely. Global’s Third-Party Complaint
(Docket # 21) ¶ 7.

Global also alleges that air traffic control

personnel monitoring air traffic at North Central failed to obtain
and disseminate information regarding the two aircraft and that
such

negligence

resulted

in

the

collision.

Id.

¶¶

15,

16.

Likewise, Gitlow, in his third-party complaint against Darche and
in his amended cross-claim against the FAA, asserts that Darche

1

North Central does not have its own air traffic control
facility. Instead, the Providence approach control facility of the
FAA provides air traffic control services to IFR flights to and
from North Central. Id. at 17.
3

operated the Bonanza negligently and/or that the negligence of air
traffic personnel resulted in the release of the Bonanza into the
path of the landing Comanche.

Id. ¶¶ 12,13.

II. Procedural History
On June 2, 2010, the FAA received an administrative claim from
Kodar and Phoenix for the damage to the Bonanza.
Dismiss (Docket # 33) at 2.
Phoenix

(together,

against

the

FAA

the

and

FAA’s Motion to

On March 22, 2011, Darche, Kodar, and

“Plaintiffs”)

Gitlow.

With

filed
respect

negligence
to

the

claims

FAA,

the

Plaintiffs alleged that air traffic personnel responsible for
providing air traffic control services in and out of North Central
failed to inform or relay information regarding the Bonanza’s
departure and the Comanche’s arrival.

Id. ¶ 36.

According to the

Plaintiffs, as a result of the alleged negligence, the Bonanza was
cleared for takeoff and released into the path of the landing
Comanche.

Id. ¶ 37.

With respect to Gitlow, the Plaintiffs

asserted that Gitlow cancelled his IFR [instrument flight rules]
flight plan shortly before engaging in a final GPS Alpha approach.
Complaint ¶¶ 42 - 47.

According to the Plaintiffs, Gitlow failed

to broadcast or announce the details of his final approach and
landing procedure on the Common Traffic Advisory Frequency, and he
failed to monitor for announcements regarding the Bonanza’s planned
takeoff.

Id. ¶ 48.

The FAA filed an answer to the Complaint on May 20, 2011

4

(Docket #8), asserting a number of affirmative defenses, including
lack of subject matter jurisdiction under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2680 (a) and (h).

Id. at 10.

On September 16, 2011, Gitlow filed an answer to the Complaint
and a cross claim against the FAA. (Docket # 14).

Gitlow brought

claims of Indemnity (Count I) and for Contribution (Count II),
asserting that, if it were determined that the Plaintiffs were
damaged as result of Gitlow’s negligence, he was entitled to
indemnification because of the FAA’s primary negligence. Id. at 6.
On October 6, 2011, Global - which was not a party to the
litigation - filed a third-party complaint against Darche for
negligence and against the FAA for negligence, indemnification, and
contribution. (Docket # 21). Global asserted that Darche operated
the Bonanza aircraft negligently and that Global suffered a loss of
$73,638 as a result - the amount it had to pay to Gitlow under an
insurance policy, minus salvage proceeds.
6-9.

Global Complaint at ¶¶

Further, Global alleged that, through the negligence of

certain air traffic personnel responsible for monitoring and/or
directing flights at North Central, the Bonanza was released into
the path of the landing Comanche aircraft.

Id. at ¶¶ 15,16.

Also on October 6, 2011, Gitlow filed a third-party complaint
against Darche. (Docket # 22).

Gitlow stated that, as a result of

Darche’s negligence, Global had been required to pay to Gitlow the
sum of $90,750, but that the fair market value of the Comanche

5

significantly exceeded such an amount. Gitlow Complaint p. 3, ¶ 9.
For the first time, Gitlow also asserted that he had suffered
bodily injury, lost time from work, and that he had incurred
medical expenses.

Id. ¶ 12.

Within the complaint, Gitlow also

amended his cross claim against the FAA for indemnification (Count
I)

and contribution (Count II) by adding claims for monetary

losses and bodily injury (Count III).

Id. at 4-9.

In response, on October 20, 2011, the FAA filed an answer
(Docket # 23) to Gitlow’s amended cross claim, generally denying
Gitlow’s allegations and asserting various affirmative defenses.
Inter alia, the FAA asserted that Gitlow had “failed to comply with
the provisions of 28 U.S.C. §§ 2675 (a), 2401(b)2.

This time, the

2

Section 2675 (a) provides:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of property or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, unless the claimant shall have
first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing and
sent by certified or registered mail. The failure of an agency to
make final disposition of a claim within six months after it is
filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this section.
The provisions of this subsection shall not apply to such claims as
may be asserted under the Federal Rules of Civil Procedure by third
party complaint, cross-claim, or counterclaim.
Section 2401(b) provides:
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
6

FAA also brought a counterclaim against Gitlow for indemnity and
contribution.

On the same day, the FAA responded to Global’s

third-party complaint against it, (Docket # 24), in which it again
asserted counterclaims against Gitlow.

Gitlow filed responses to

both counterclaims on November 1, 2011 (Docket ## 25, 26).
On February 20, 2012, Darche responded to Global’s third-party
complaint against him and the FAA, asserting various affirmative
defenses, including that Global’s claims were barred by the statute
of limitations. (Docket # 30).

On the same date, Darche also

responded to Gitlow’s third-party complaint against him (Docket #
22), asserting some of the same affirmative defenses. (Docket #31).
On April 3, 2012, the FAA filed a motion for partial dismissal
of

Gitlow’s

amended

counterclaim

for

lack

of

subject

matter

jurisdiction and for dismissal of Global’s third-party complaint.
(Docket # 33).

Gitlow and Global responded in opposition to that

motion on April 20, 2012 (Docket # 36), and the FAA filed a reply
thereto on April 30, 2012 (Docket #38).
In the interim, on April 16, 2012, Darche filed a motion to
strike Global’s third-party complaint against him (Docket #34),
followed by a motion for partial summary judgment on statute of
limitations grounds (Docket # 35) as to Gitlow’s third-party

agency to which it was presented.

7

complaint against Darche.3

On May 3, 2012, Global filed a response

in opposition to Darche’s motion to strike (Docket # 39). Gitlow
also filed a response opposing Darche’s motion for partial summary
judgment on May 4, 2012. (Docket # 41).

On May 11, 2012, Darche

filed a reply thereto (Docket # 43).
III.

Standard of Review
The dismissal of a complaint is governed by Rule 12 of the

Federal Rules of Civil Procedure.

A motion to dismiss for lack of

subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) is
reviewed under the same standard as a motion to dismiss for failure
to state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6).

Sanchez ex rel. D.R. - S. v. United States,

671 F.3d 86, 107 (1st Cir. 2012)(standard on a motion to dismiss
for lack of subject matter jurisdiction “is the same as is applied
on a Rule 12(b)(6) motion”);

Puerto Rico Tel. Co. v. Telecomm.

Regulatory Bd. of Puerto Rico, 189 F.3d 1, 14 n.10 (1st Cir. 1999)
(“The standard of review . . . is the same for failure to state a
claim and for lack of jurisdiction.”).
In determining a motion to dismiss, the Court accepts as true

3

Shortly after Darche filed his motion for partial summary
judgment (Docket # 35) on April 16, 2012, the clerk’s office
informed him that he had failed to provide a Statement of
Undisputed Facts (“SUF”), as required by Local Rule LR Cv 56 (a).
On May 22, 2012, after the motion had been fully briefed and
referred to the Court for determination, Darche filed a consent
motion (Docket # 46) pursuant to which he sought to submit his SUF
nunc pro tunc.
8

“the well-pleaded factual allegations of the complaint” and draws
“all reasonable inferences therefrom in the plaintiff’s favor.”
Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 6 (1st Cir.
2002);

McCloskey

v.

Mueller,

446

F.3d

262,

266

(1st

Cir.

2006)(holding that, under either standard, the plaintiffs’ wellpleaded facts are accepted as true and all reasonable inferences
are indulged in their favor).
Dismissal

is

appropriate

“[i]f

the

well-pleaded

facts,

evaluated in that generous manner, do not support a finding of
federal subject-matter jurisdiction.” Fothergill v. United States,
566 F.3d 248, 251 (1st Cir. 2009).

In cases involving the FTCA,

however, the inquiry is “tilted toward the government’s claim of
immunity: ‘[T]he FTCA must be “construed strictly in favor of the
federal government, and must not be enlarged beyond such boundaries
as its language plainly requires.”’” Carroll v. United States, 661
F.3d 87, 94 (1st Cir. 2011)(quoting Bolduc v. United States, 402
F.3d 50, 56 (1st Cir. 2009)(internal citation omitted)).
IV.

The Parties’ Positions

(A) The FAA’s Motion
The FAA seeks dismissal of Count III of Gitlow’s amended
cross-claim (alleging property damages and personal injuries) and
Global’s third-party complaint (seeking indemnification and/or
contribution for the amount of its insurance payment to Gitlow) for
lack of subject matter jurisdiction. (Docket # 33). The FAA argues

9

that neither Gitlow now Global submitted an administrative claim to
the FAA as required by the FTCA and that, therefore, those claims
are now barred by the FTCA’s statute of limitations.4

Moreover,

the FAA asserts that Global is not a proper third-party plaintiff.
According

to

the

FAA,

although

it

received

a

timely

administrative complaint from Kodar and Phoenix in connection with
the collision, it received no administrative claim from either
Gitlow or Global.

Because an action for personal injuries under

the FTCA cannot be maintained without exhausting administrative
procedures required by Section 2675(a) of the FTCA, Gitlow’s cross
claim for personal injuries against the FAA is barred. Moreover,
any claim now presented by Gitlow against the FAA for damages
sought in Count III of his cross-claim is time-barred.

While

Section 2675(a) does not apply to third party complaints, crossclaims, or counterclaims, that provision does not waive the FTCA’s
two-year statute of limitations.

The FAA also submits that the

exception does not apply to Gitlow’s independent, affirmative claim
for personal injuries and property damages. In addition,

Gitlow’s

claim is not a proper cross-claim under Fed. R. Civ. P. 13(g)
because the original action only concerns damage to the Bonanza and
thus involves a different subject than Gitlow’s cross-claim.

4

The FAA notes that it is not challenging Gitlow’s contribution
and indemnity claims at this time because, with respect to those
claims, the FTCA statute of limitations begins to run from the date
of payment on judgment, not the date of injury.
10

The FAA rejects Gitlow’s characterization of his personal
injury claim as a compulsory counterclaim because the FAA is not a
plaintiff in this litigation, nor did it bring Gitlow into this
action. If Gitlow’s claim were to be construed as a compulsory
counterclaim, it would nevertheless be barred by the statute of
limitations because it was filed too late.

In sum, the FAA asserts

that Gitlow failed to file a timely claim against the FAA and that
he cannot, now, bring an affirmative claim against the FAA simply
because another party has sued Gitlow in connection with the
collision.
Likewise, the FAA argues that Global’s complaint against it is
barred by the FTCA’s statute of limitations because Global failed
to submit a timely administrative claim.

The FAA also suggests

that Global is not a proper third-party plaintiff in the case
because only the FAA and Gitlow were named as defendants in the
Complaint. Pursuant to Rule 14 of the Federal Rules of Civil
Procedure,
complaint

only

a

against

“defending
a

party”

“non-party;”

may

bring

however,

a

Global

“defending party” and the FAA is not a “non-party.”

third-party
is

not

a

Moreover,

because Global’s claim regarding its insurance payment to Gitlow is
barred by the statute of limitations, the Court lacks jurisdiction
over that claim. Global’s attempt to bring a third party claim
pursuant to Federal Rule 20(a)(1) is likewise inappropriate because
the rule only permits a party to intervene as a plaintiff or

11

defendant, not as a third-party plaintiff.
(B) Objections by Gitlow and Global
At the outset, Gitlow concedes that he never submitted an
administrative claim to the FAA pursuant to Section 2675(a).

He

contends, however, that his cross-claim for personal injury and
property

damage

requirement.

is

excluded

from

the

administrative

filing

Mem. Opp. 4.

Further, Gitlow asserts that the filing of the original
Complaint

by

the

Plaintiffs

tolled

the

FTCA’s

statute

of

limitations with respect to compulsory counterclaims and cross
claims that arise out of the same transaction or occurrence that is
the subject matter of the Complaint.
Gitlow suggests that the

Mem. Opp. 2.

Specifically,

FTCA’s two year statute of limitation

applies only to the filing of administrative claims and does not
address when a cross claim exempted under Section 2675(a) must be
served or filed in district court.

According to Gitlow, Section

2401(b) “provides for only two things: (1) it sets the deadline
within which administrative claims must be filed in cases where
there is a requirement to do so; and (2) it sets a deadline for
commencing litigation in court within six months of final denial of
an administrative claim.”
Gitlow

further

Id. at 5.

argues

that

the

FTCA

has

no

statute

of

limitations for cross claims and that “compulsory counterclaims are
generally covered by the limitations date that is applicable to the

12

original filing date of the original complaint in the action.” Id.
5.

In other words, Gitlow contends that the FTCA’s two-year

statute of limitations is not applicable to his personal injury
claim

because

the

statute

has

been

tolled

by

the

original

Complaint.
On its part, Global argues that it paid $90,750 to Gitlow and
that, as subrogee to Gitlow, “it is entitled to prosecute its
contribution and indemnity claims in exactly the same way that Dr.
Gitlow would have been entitled to prosecute those claims if Global
had not paid Dr. Gitlow.”

Id. at 3.

Global also suggests that the

FAA, by not raising in its answer to Global’s third-party complaint
Global’s failure to file a motion to intervene, the FAA “has
clearly waived any objection that it may have had to Global’s
failure to file a motion to intervene.”

Id. at 10.

Global

contends that, under Rule 24(a)(2) of the Federal Rules of Civil
Procedure, it is “entitled to intervene as a matter of right in
this action.” Id. at 11.

Finally, Global states that it intends to

file an objection to Darche’s motion to strike Global’s third-party
complaint.

5

Noting that it intends to file a separate motion for

leave to intervene pursuant to Fed. R. Civ. P. 24(a)(2) and to file
a third-party complaint against Darche and a cross-claim against

5

As previously noted, on May 3, 2012, Global filed an
opposition to Darche’s motion to strike and a motion for leave to
intervene in this action (Docket ## 39, 40).
13

the FAA, Global states that “[t]he Court will then have before it
a formal Rule 24(a)(2) motion and a pleading that will properly
denominate

Global’s

crossclaims.”

claims

against

the

United

States

as

Id. at 12.

V. Discussion
(A)

Jurisdictional Requirements under the FTCA

It is well established that the United States is immune from
suit unless it has consented to be sued and that “the terms of its
consent to be sued in any court define that court’s jurisdiction to
entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586,
61 S.Ct. 767, 85 L.Ed. 1058 (1941); Parks v. United States, 784
F.2d 20, 28 (1st Cir. 1986).

Under the FTCA, individuals may sue

the United States “for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of
his office or employment.”

28 U.S.C. § 1346(b)(1).

As such, the

FTCA constitutes a “limited congressional waiver of the sovereign
immunity of the United States for torts committed by federal
employees acting within the scope of their employment [similar to
private parties in similar circumstances].” Santoni v. Potter, 369
F.3d 594, 601 (1st Cir. 2004).

However, this waiver is limited by

an “administrative framework that claimants must follow before they
can sue under the FTCA.”

Dynamic Image Tech., Inc. v. United

States, 221 F.3d 34, 39 (1st Cir. 2000); S. Rep. No. 89-1327, at

14

2516 (1966)(The purpose of the exhaustion requirement is to allow
the government to “investigate, evaluate and consider settlement of
a claim,” in order to “ease court congestion and avoid unnecessary
litigation, while making it possible for the Government to expedite
the fair settlement of tort claims asserted against the United
States”).
Pursuant to the notice-of-claim provision, 28 U.S.C. §
2675(a), “[a]n action shall not be instituted upon a claim against
the United States . . . unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied.” Id.; see 28 C.F.R. § 14.2. In
other words, a plaintiff “may not file a tort claim in district
court until (i) the agency finally denies the administrative claim,
or

(ii)

six

months

pass

without

a

final

administrative claim - whichever comes first.”

denial

of

the

Barrett ex rel.

Estate of Barrett v. United States, 462 F.3d 28, 36 (1st Cir.
2006)(Section 2675(a) “prescribes what a claimant must do before
bringing an FTCA claim in federal court”).
The FTCA also prescribes that ‘[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.’” Patterson v. United States, 451 F.3d 268, 270
(1st Cir. 2006)(quoting 28 U.S.C. § 2401(b)).

This requirement,

which ensures “that the government is promptly presented with a

15

claim

while

the

evidence

is

still

fresh,

is

to

be

strictly

construed in the government’s favor.” Id. ; Barrett ex rel. Estate
of Barrett v. United States, 462 F.3d at 36 (“Section 2401(b)
limits the time a claimant has to file its administrative tort
claim and complaint, respectively.”).
Together, the two provisions preclude any plaintiff from
bringing a tort claim against the United States without first
exhausting his or her administrative remedies in a timely manner.
The FTCA’s exhaustion requirement “has been viewed as a ‘nonwaivable jurisdictional requirement’ limiting the suit to claims
fairly made to the agency.”

Acosta v. U.S. Marshals Service, 445

F.3d 509, 513 (1st Cir. 2006)(citation omitted). Failure to comply
with the two jurisdictional requirements results in the plaintiff’s
claim being “forever barred.” 28 U.S.C. §2401(b).
The

sole

exception

to

the

requirement

of

administrative

exhaustion applies “to such claims as may be asserted under the
Federal Rules of Civil Procedure by third party complaint, crossclaim, or counterclaim.” 28 U.S.C. § 2675(a).
been narrowly construed.
exception

only

applies

This exception has

“With respect to counterclaims, the
to

compulsory

counterclaims

filed

in

response to affirmative suits by the government which sound in
tort. Similarly, the exception only applies to third-party actions
under Fed. R. Civ. P. 14 seeking indemnity or contribution from the
government; it does not apply to independent actions seeking

16

indemnity or contribution, nor to third-party claims which are not
‘true’ Rule 14 impleader actions.” 3 Lester S. Jayson and Robert C.
Longstreth, Handling Federal Tort Claims § 17.01 p. 17-10.

See

also Thompson v. Wheeler, 898 F.2d 406 (3d Cir. 1990)(third partyaction pursuant to Federal Rule 14 is not subject to administrative
exhaustion).
(B)

Count III of Gitlow’s Cross Claim against the FAA

Gitlow readily admits that he did not file an administrative
claim against the FAA in connection with the plane collision.
Gitlow Mem. Obj. at 2.

At the time Gitlow amended his cross claim

against the FAA and, for the first time, asserted claims of
property damage and personal injury, the two year statute of
limitations under Section 2401(b) of the FTCA had long passed. The
collision occurred on June 6, 2008 and those claims were not filed
until October 6, 2011 - more than three years later.

Even at the

commencement of this litigation by the Plaintiffs on March 22,
2011, Gitlow was already time-barred from seeking administrative
relief for his alleged personal injuries and property damages.
Gitlow now argues that his cross claim against the FAA falls
within the exception of Section 2675, to which the Section 2401(b)
time limitation does not apply.

Gitlow Mem. Obj. at 5.

Citing no

supporting case law for this position, Gitlow also suggests that
his cross claim is akin to a compulsory counterclaim.

Id. at 5-6.

In other words, Gitlow now seeks to assert in this litigation his

17

own personal tort claim against the FAA which he could not have
instituted without first filing an administrative claim under
Section 2675(a) in compliance with the timeliness requirement of
Section 2401(b).
Although the procedural posture in Rosario v. American ExportIsbrandtsen Lines, 531 F.2d 1227 (3d Cir. 1976), on which the FAA
relies, in part, is somewhat different from the instant case, the
Third Circuit’s reasoning is still applicable.

In Rosario, the

original plaintiff, an injured merchant seaman, brought a claim
against his employer under the Jones Act.

The employer joined the

United States as a third-party defendant, seeking indemnity or
contribution.

Subsequently,

the

plaintiff

against the United States under the FTCA.

filed

a

complaint

The district court

denied the government’s motion to dismiss the plaintiff’s complaint
for failure to file an administrative claim. The Third Circuit
reversed, holding that the complaint did not come within the
exception

of

Section

2675(a).

Rosario

v.

American

Export-

Isbrandtsen Lines, 531 F.2d at 1233 (stating that the “complaint
against the United States was not a third-party complaint but
rather was a direct, in effect original, complaint by the plaintiff
against the third-party defendant”).

The Court concluded that,

because the appellee/plaintiff “failed to meet the jurisdictional
prerequisites to suit under the [FTCA] by filing an administrative
claim as required by section 2675(a), his cause of action against

18

the

government

jurisdiction.”

should
Id.

have

been

dismissed

for

lack

of

In coming to this conclusion, the Third

Circuit considered both the policies underlying the jurisdictional
requirement and the reason for the statutory exception:
Section 2675(a) was enacted in 1966 to improve and
expedite the disposition of tort claims against the
government by establishing a system of prelitigation
administrative consideration and settlement of claims,
thereby reducing court congestion and eliminating
unnecessary
litigation.
Pennsylvania
v.
National
Association of Flood Insurers, 520 F.2d 11, 23 n.27 (3d
Cir. 1975); Meeker v. United States, 435 F.2d 1219, 1222
(8th Cir. 1970); 2 U.S.C.ode Cong. & Admin.News 2515-20
(1966). To permit appellee to maintain this action
against the United States would undermine the important
policy in favor of prelitigation administrative review
and possible settlements expressed in section 2675(a).
Appellee would be able to do indirectly that which he
could clearly not do directly. Id. at 1233-1234.
Similarly, in West v. United States, 592 F.2d 487 (8th Cir.
1979), the Eighth Circuit addressed the question of whether the
original plaintiffs in a diversity action, in which the United
States was made a third-party defendant, could assert a direct claim
against the United States under the FTCA without first filing a
timely administrative claim.

In West, an infant was injured by a

leaking hot water bottle which had been placed in his hospital crib
on orders of his attending physician. This event occurred in
December 1973. In April, 1974, the infant’s parents sued the
manufacturer and the seller of the hot water bottle.

During

discovery, the parties learned that the physician was an employee
of the United States Public Health Services (“USPHS”). In September
19

1975, nearly two years after the injury, the manufacturer filed a
third-party

complaint

against

the

hospital,

the

hospital

administrator, and the physician. In December, 1975, the government
was substituted for the physician as a third-party defendant. In
February and April 1976, the parents sought leave to amend
complaint to assert claims against

their

third-party defendants the

government, the hospital, and the hospital administrator.

In May,

1976, the government opposed the plaintiffs’ motion, arguing lack
of jurisdiction for failure to file a timely administrative claim.
The district court permitted the plaintiffs to amend their
complaint and to include direct negligence claims against the thirdparty defendants. A motion by the government to dismiss was denied,
as was its subsequent motion for summary judgment. The government
then received permission to file an interlocutory appeal and the
Eighth Circuit reversed and remanded the case with directions to
dismiss for lack of jurisdiction. Id. at 493.
On appeal, the plaintiffs/appellees argued that their amended
complaint had been asserted pursuant to Federal Rule 14(a) and
that, therefore, it fell within the third-party practice exception
of 28 U.S.C. § 2675(a). The government, in turn, suggested that the
amended complaint did not fall within that exception because it was
a direct and original complaint. Id. 490.
The

Eighth

Circuit

noted,

inter

alia,

that

the

plaintiffs/appellees had been aware of the injury since it occurred;

20

that the physician had been known to them since the infant’s birth;
and that the plaintiffs had filed an administrative claim with the
Department of Health, Education and Welfare in May 1976 (two years
and five months after the injury), which was denied in July 1976.
Id.

at

490.

procedurally

The

Court,

similar

agreeing

positioned

with

the

reasoning

Rosario,

held

in

that

the
the

plaintiffs/appellees’ amended complaint was not a proper third-party
complaint and that it, therefore, did not fall within the Section
2675(a) exception.

Because the plaintiffs failed to file a timely

administrative claim, their direct complaint against the government
pursuant to the FTCA lacked an independent jurisdictional basis and
had to be dismissed.

Id. at 491 - 492.

The Court concluded that

the plaintiffs “may not indirectly establish jurisdiction when they
have failed to do so directly under the [FTCA].”

Id. at 492.

With respect to the instant case, the Court is persuaded by the
rationale in Rosario and West that, although the procedural posture
is somewhat different here, Gitlow’s cross-claim against the FAA is
in the nature of a direct complaint pursuant to the FTCA.

As such,

it does not fall under the Section 2675(a) exception for cross
claims and it requires the filing of a timely administrative claim
for this Court to have jurisdiction over the complaint.

The

requirement to exhaust administrative procedures before filing a
claim

in

government

this
and

Court
to

is

intended

afford

the

to

give

government

21

fair
the

notice

to

opportunity

the
to

investigate the claim and to consider the possibility of dealing
with it administratively, e.g. by settlement. Gitlow was well aware
that he could have filed an administrative claim against the FAA
after the 2008 collision, but he chose not to do so.

Instead,

Gitlow’s claims of personal injuries and property damage were not
asserted against the FAA until after Gitlow had become a defendant
in this litigation and Gitlow’s insurer asserted claims against
Darche and the FAA.

By that time, the period for filing an

administrative claim had long expired and the opportunity to settle
Gitlow’s claim or resolve it administratively had passed.
While the original claims brought by Kodar and Phoenix against
the FAA and Gitlow deal exclusively with the total loss of the
Bonanza, Count III of Gitlow’s cross claim against the FAA seeks to
add a direct FTCA claim related to the damaged Comanche and,
apparently asserted for the first time, physical injuries to Gitlow
himself.

There is nothing to indicate that the claims filed by

Kodar and Phoenix provided notice to the FAA that Gitlow and/or
Global would seek monetary damages for Gitlow’s alleged personal
injuries or damages to the Comanche.

Those claims, had Gitlow

chosen to bring them separately in October 2011, would have been
barred by the administrative exhaustion requirement of 2675(a) and
the timeliness requirement of Section 2401 (b).

Because it would

be unfair to the government and inconsistent with the principles
underlying the administrative requirements of the FTCA to allow a

22

plaintiff to belatedly establish a jurisdictional basis when he has
failed to do so directly and as required, the Court concludes that
it is without jurisdiction to consider Count III of Gitlow’s amended
cross claim against the FAA.

Therefore, the FAA’s motion for

partial dismissal is granted.
(C) Global’s Third-Party Complaint against the FAA
Count II of Global’s third-party complaint (Docket # 21) seeks
reimbursement of the amount Global was required to pay to Gitlow
for the loss of the Comanche pursuant to an insurance policy Global
issued to Gitlow.

Counts III and IV seek indemnification and

contribution, respectively, from the FAA, should it be determined
that the original Plaintiffs were damaged as a result of Gitlow’s
negligence.
With respect to Count II of Global’s third-party complaint,
although an insurer that is subrogated to the rights of its insured
may maintain an action under the FTCA, United States v. Aetna Cas.
& Sur. Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171 (1949), the
insurer’s claims are limited to only such rights as the insured
possesses.

United States v. Munsey Trust Co., 332 U.S. 234, 242,

67 S.Ct. 1599, 91 L.Ed. 2022 (1947)(“For it is elementary that one
cannot acquire by subrogation what another whose rights he claims
did not have.”). Global’s claim suffers from the same infirmity as
that asserted by Gitlow, its insured.

Neither Gitlow nor Global

filed a timely administrative claim for the loss of the Comanche

23

and, for the reasons already discussed in some detail, those claims
lack a jurisdictional basis and are now time barred.
With respect to Global’s third-party complaint overall, the
FAA’s point is well taken that Global could not bring these claims
pursuant to Rule 14 of the Federal Rules of Civil Procedure, an
assertion which Global does not contest.

Rule 14 provides that

“[a] defending party may, as third-party plaintiff, serve a summons
and complaint on a nonparty who is or may be liable to it for all
or part of the claim against it.” Fed. R. Civ. P. 14(a)(1). Global,
however, was not a party to the original action, and the United
States has been a party from the beginning of this litigation,
making Rule 14 inapplicable.

Global’s suggestion that the FAA, in

its answer to Global’s third-party complaint, did not raise an
objection to Global’s failure to file a motion to intervene6, does
not serve to overcome this procedural hurdle.
(Docket

#

24)

to

Global’s

third-party

The FAA’s answer

complaint

also

clearly

rejected Global’s assertion as a third-party plaintiff on the basis
that Global was not a party in this litigation. Moreover, regardless
of Global’s ability to assert any claim in this litigation, the
claims by Gitlow and Global against the FAA for monetary damages
related to Gitlow’s personal injuries and/or property damage to the
Comanche are barred by lack of jurisdiction and the FTCA’s statute
6

At the time the instant motions had ripened for consideration
by this Court, Global had not yet filed a motion to intervene
pursuant to Federal 24(a)(2).
24

of limitations.
Because Global cannot assert a third-party complaint against
the FAA pursuant to Rule 14(a) and because any claim by Global is
limited to claims which Gitlow has the right to assert, the FAA’s
motion to dismiss Global’s third-party complaint is granted and that
complaint is dismissed.
VI. Additional Filings
Since the Court took the FAA’s motions under consideration, the
procedural history of this litigation has grown in complexity.

On

May 11, 2012, Darche filed a reply (Docket # 43) in response to
Gitlow’s objection (Docket # 41) to Darche’s motion for partial
summary judgment (Docket # 35). On May 21, Darche filed a limited
objection (Docket # 44) to Gitlow’s motion to amend/correct his
third-party complaint (Docket # 42). On the same day, the FAA filed
an objection (Docket # 45) to Global’s motion to intervene in this
litigation. (Docket # 40).
Meanwhile, on May 3, 2012, Global filed a motion for leave to
intervene in this action and to file a third-party complaint against
Darche and a cross claim against the FAA (Docket #40). The FAA filed
an objection (Docket # 45) to Global’s motion to intervene on May
21, 2012, and Global filed a reply (Docket # 47) to the FAA’s
objection on May 31, 2012. In its reply, Global acknowledged that
the FAA was not a proper party defendant in a FTCA action and stated
that it would omit the FAA from its proposed cross claims against

25

the United States. Global Reply (Docket # 47) at 2 n. 1.
Further, on May 4, 2012, Gitlow filed a motion (Docket # 42)
to amend his third-party complaint against Darche, in order to add
separate indemnity and contribution

counts to the third-party

complaint Gitlow had filed against Darche on October 6, 2011 (Docket
# 22). On May 21, 2012, Darche filed a response in opposition
(Docket # 44) to Gitlow’s motion.
(A) Darche’s Motion for partial summary judgment
Darche seeks dismissal of Gitlow’s Third-Party Complaint to the
extent that it seeks damages from Darche for alleged personal
injuries, on the ground that such claims are barred by the Rhode
Island

statute

of

limitations,

R.I.

Gen.

Laws

§

9-1-14(b).

Specifically, Darche states that Gitlow’s claim was filed three
years and four months after the date of the accident that gave rise
to Gitlow’s claim. On his part, Gitlow argues that, because “Darche
is a principal of KODAR and because he is indemnified and defended
by Phoenix and Old Republic, equity requires that the Statute of
Limitations” be tolled with respect to Gitlow’s personal injury
claims now asserted against Darche. As before, Gitlow also suggests
that his Third-Party Complaint should be treated as a compulsory
counterclaim, subject to tolling.

In response, Darche states that,

although he is a principal shareholder of KODAR, a limited liability
company, he is not synonymous with KODAR as a matter of law.

He

also points out that Gitlow’s claim against him cannot be considered

26

a compulsory counterclaim and that Gitlow, had he wished to file a
personal injury claim against Darche, could have easily done so
within three years of the accident.
Because it is undisputed that Gitlow’s Third Party Complaint
was filed more than three years after the accident during which he
suffered the alleged personal injuries, his personal injury claims
against

Darche

are

barred

by

the

Rhode

Island

statute

of

limitations. Therefore, Darche’s motion is GRANTED to that extent.
(B) Gitlow’s Motion to Amend/Correct his Complaint
Gitlow states that the purpose of his motion “is simply to add
indemnity and contribution claims against Darche.” Gitlow Mem. 4
(Docket# 42-1). In his proposed amended complaint, Gitlow seeks
indemnification

and

contribution

from

Darche,

should

it

be

determined that KODAR and Phoenix were damaged as a result of
Gitlow’s negligence. Proposed Amended Third-Party Complaint ¶¶ 15,
18. In his limited objection to Gitlow’s motion, Darche notes that
his objection does not extend to Gitlow’s claims for indemnity and
contribution.
for

partial

However, as previously explained in Darche’s motion
summary

judgment,

he

seeks

dismissal

of

Gitlow’s

personal injury claim, on the ground that the claim is barred by
the Rhode Island statute of limitations. Darche’s Limited Objection
2.
Because

Darche

does

not

object

to

Gitlow’s

inclusion

of

indemnity and contribution claims, Gitlow’s motion to amend his

27

Third-Party Complaint is GRANTED with respect to only those counts.
However, for the foregoing reasons, Gitlow’s personal injury claim
against Darche is DISMISSED as time-barred.
(C) Global’s Motion to Intervene
Global seeks to intervene in this action as a cross-claimant
against the FAA and as a third-party plaintiff against Darche.
Global’s claims arise from the payment of $90,750 (minus salvage
revenue) it made to Gitlow for loss of the Comanche. Global asserts
that it is subrogated to Gitlow’s rights in this litigation.
The FAA, in its objection to Global’s motion, reiterates that
the FAA is not a proper defendant in this FTCA case because neither
Gitlow

nor

Global

complied

with

administrative claim requirement.

the

FTCA’s

jurisdictional

Moreover, Global, in seeking an

independent, affirmative recovery of

monetary damages for the

payment it made to Gitlow, cannot intervene as a third-party
plaintiff, cross-claimant, or counterclaimant under the Federal
Rules of Civil Procedure.

FAA Mem. 4 (Docket # 45-1).

In light of this Court’s determination that (1) it is without
jurisdiction to consider Gitlow’s personal injury claim against the
FAA on the ground that Gitlow failed to file a timely administrative
claim; and (2) any claim by Global is limited to claims which Gitlow
has a right to assert, Global’s motion to intervene is DENIED.
Conclusion
For the reasons stated herein, the FAA’s motion for partial

28

dismissal of Gitlow’s amended cross claim (Docket # 22) is GRANTED
and Count III of that claim is DISMISSED.

The FAA’s motion to

dismiss Global’s third-party complaint (Docket # 21) is GRANTED and
that complaint is DISMISSED as well.

Darche’s motion for partial

summary judgment (Docket # 35) is GRANTED with respect to Gitlow’s
personal injury claims against Darche and that claim is DISMISSED.
Gitlow’s motion to amend/correct his Third-Party Complaint (Docket
# 42) is GRANTED with respect to indemnification and contribution
claims against Darche and otherwise DENIED.
intervene

(Docket

#40)

is

DENIED.

In

Global’s motion to

light

of

this

Court’s

determination regarding Darche’s motion for partial summary judgment
(Docket # 35), Darche’s motion for an extension of time to file an
Statement of Undisputed Facts nunc pro tunc (Docket # 46) is DENIED
as moot.
SO ORDERED.
/s/ Mary M. Lisi______________________
Mary M. Lisi
Chief United States District Judge
June 6, 2012

29