Reed et al v. United States of America (TWP2)
Filing
160
MEMORANDUM OPINION AND ORDER: The first pending Motion to Dismiss for Lack of Subject Matter Jurisdiction, [Doc. 109], is DENIED because the misrepresentation exception to the FTCA does not insulate the United States from these cla ims. However, the second pending Motion to Dismiss for Lack of Subject Matter Jurisdiction, [Doc. 110], is GRANTED because the Individual Plaintiffs failed to satisfy the presentment requirement of 28 U.S.C. § 2675(a). As the Court has determin ed that it does not have subject matter jurisdiction over the Individual Plaintiffs' remaining claim, the following cases are SEVERED from the consolidated case and DISMISSED without prejudice: Reed v. United States, 3:18CV201 (E.D. Tenn. 2018); Anculle v. United States, 3:18CV308 (E.D. Tenn. 2018); Adkins v. United States, 3:18CV310 (E.D. Tenn. 2018); Vance v. United States, 3:19CV283 (E.D. Tenn. 2019); Barnes v. United States, 3:19CV296 (E.D. Tenn. 2019); Abbott v. United States, 3:20CV14 9 (E.D. Tenn. 2020). Further, it hereby ordered that all remaining actions continue to be consolidated and that all future filings for the consolidated case will be in American Reliable Insurance Company v. United States, No. 3:19CV469 (E.D. Tenn. 2019). Signed by District Judge J Ronnie Greer on 02/28/2022. Associated Cases: 3:18-cv-00201-JRG-CRW et al. (AMP)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
MICHAEL B. REED, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
BRITTANY N. HYRE ANCULLE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
BRITTANY ADKINS, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
JAMES CARL VANCE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
No. 3:18–CV–201
No. 3:18–CV–308
No. 3:18–CV–310
No. 3:19–CV–283
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 1 of 26 PageID #: 5855
______________________________________ )
)
JACKIE SUE BARNES, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
AMERICAN RELIABLE INSURANCE
)
COMPANY, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
STATE FARM FIRE AND CASUALTY
)
COMPANY, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
UNITED SERVICES AUTOMOBILE
)
ASSOCIATION, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
No. 3:19–CV–296
No. 3:19–CV–469
No. 3:19–CV–470
No. 3:19–CV–472
2
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 2 of 26 PageID #: 5856
Defendant.
)
______________________________________ )
)
ALLSTATE FIRE AND CASUALTY
)
INSURANCE COMPANY, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
AUTO-OWNERS INSURANCE
)
COMPANY, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
______________________________________ )
)
PAUL W. ABBOTT, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
No. 3:19–CV–474
No. 3:19–CV–478
No. 3:20–CV–149
MEMORANDUM OPINION AND ORDER
In 2016, the Chimney Tops 2 Fire (“Fire”) left the boundaries of the Great Smoky
Mountains National Park. [Doc. 1, PageID 8–9]. 1 The Fire burned surrounding areas and led to
1
Unless otherwise noted, all record citations reference Reed v. United States, 3:18–CV–201
(E.D. Tenn. 2018).
3
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 3 of 26 PageID #: 5857
loss of life and property damage. After the Fire, numerous individuals (“Individual Plaintiffs”) and
several insurance companies (“Insurance Plaintiffs” and collectively with Individual Plaintiffs,
“Plaintiffs”) filed administrative claims with the United States for compensation for damages
arising from the Fire. [See, e.g., Doc. 1-3–1-4; Ex. to Notice, Am. Reliable Ins. v. United States,
3:19–CV–469 (E.D. Tenn. Nov. 19, 2019), Doc. 19-1; Ex. to Complaint, Adkins v. United States,
3:18–CV–310 (E.D. Tenn. July 25, 2018), Doc. 1-1]. The Individual Plaintiffs’ administrative
claims differ from Insurance Plaintiffs’ claims. The Insurance Plaintiffs listed, among other claims,
“negligently failing to provide timely and accurate notice and warning to Park neighbors, local
government officials, local fire departments, local residents and visitors about the status of and
imminent danger presented by The Chimney Top 2 Fire.” [See, e.g., Ex. to Notice, Am. Reliable
Ins., 3:19–CV–469, Doc. 19-1, PageID 52]. The Individual Plaintiffs did not list a failure to warn
in their administrative claims. [See, e.g., Doc. 1-3, PageID 153].
Eventually, the Individual Plaintiffs and Insurance Plaintiffs sued the United States. [Doc.
1; Doc. 112 (order consolidating cases)]. In their allegations, Plaintiffs allege that the National
Park Service (“NPS”) failed to monitor the fire, failed to comply with command structure
requirements, failed to follow fire management requirements, and failed to warn others about the
Fire. [Doc. 1, PageID 114, 119, 123, 138].2 In total, groups of Plaintiffs filed eleven separate
lawsuits. [See Doc. 112]. Previously, the United States filed Motions to Dismiss for Lack of
Subject Matter Jurisdiction in all of them. [Docs. 23, 49]. After the resolution of those Motions to
Dismiss, one claim remains for each of the consolidated cases, the negligent failure-to-warn claim.
2
In Reed, Plaintiff Michael Reed also brought claims for wrongful death and loss of society and
consortium. [Doc. 1, PageID 146–47].
4
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 4 of 26 PageID #: 5858
Now, the United States has filed two more motions to dismiss. The first motion challenges
the Court’s jurisdiction for all Plaintiffs. [Doc. 109]. That motion argues that Plaintiffs’ failure-towarn claim falls into the misrepresentation exception to the Federal Tort Claim Act (“FTCA”).
[Doc. 109-1, PageID 3854]. The second motion is only against the Individual Plaintiffs. [Doc.
110]. In it, the United States argues that the individual Plaintiffs failed to satisfy the presentment
requirements of the FTCA by failing to include facts and allegations regarding the failure-to-warn
claim in their administrative claims. [Doc. 110-1, PageID 3880].
After the United States filed the motions to dismiss, Plaintiffs filed responses to the
Motions. [Docs. 128, 129]. Then, the United States filed replies, [Docs. 141, 142], and the Court
heard oral argument, [Doc. 148]. For the reasons stated below, the Court DENIES the Motion to
Dismiss regarding the misrepresentation exception and GRANTS the Motion to Dismiss regarding
the presentment requirement.
I.
FTCA Background and Standard
The FTCA allows lawsuits against 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, 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); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 535 (1988). However,
there are “exceptions to this broad waiver of sovereign immunity,” Berkovitz, 486 U.S. at 535; see
28 U.S.C. § 2680(h), and a procedural process that plaintiffs must follow when bringing a lawsuit,
28 U.S.C. § 2675(a).
Here, the United States claims that Plaintiffs’ failure-to-warn claim falls into one of the
exceptions to the United States’ waiver of immunity, the misrepresentation exception. [Doc. 110-
5
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 5 of 26 PageID #: 5859
1, PageID 3854]. Title 28 United States Code § 2680(h) makes exceptions for the waiver of
immunity, including for “[a]ny claim arising out of . . . misrepresentation . . . . ” The United States
posits that the Plaintiffs’ remaining claim falls into this exception.
Additionally, the United States argues that the Individual Plaintiffs failed to meet all
procedural requirements of the FTCA by failing to present and give notice of their failure-to-warn
claim. The FTCA requires plaintiffs to “present” any claim to a federal agency before filing a
lawsuit against the United States. 28 U.S.C. § 2675(a). While the Individual Plaintiffs filed
administrative claims for their losses, the United States argues that the administrative claims did
not contain any information regarding the Individual Plaintiffs’ failure-to-warn claims and did not
give notice to the United States of those claims.
The United States can file a motion to dismiss for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to assert its immunity. See A.O.
Smith Corp. v. United States, 774 F.3d 359, 361–62 (6th Cir. 2014). A Rule 12(b)(1) motion comes
in two forms, a facial or a factual challenge. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
1994). The United States brought a facial challenge, which “is a challenge to the sufficiency of the
pleading itself.” Id. When a challenge is based on the sufficiency of the pleadings, a court accepts
the material allegations in the pleadings as true and construes them “in the light most favorable to
the nonmoving party.” Id. With a facial attack to subject matter jurisdiction, “the plaintiff has the
burden of proving jurisdiction in order to survive the motion.” RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v. Stratton Indus., 798 F.2d 913,
915 (6th Cir. 1986)).
6
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 6 of 26 PageID #: 5860
II.
The misrepresentation exception to the FTCA does not apply in this case because the
underlying claim is negligence, not misrepresentation.
As already mentioned, the United States is immune to suits arising from misrepresentation.
The misrepresentation exception to the FTCA applies to “claims arising out of negligent, as well
as willful, misrepresentation.” United States v. Neustadt, 366 U.S. 696, 702 (1961); see Block v.
Neal, 460 U.S. 289, 295–96 (1983). The Supreme Court accepted the “legal definition” of
misrepresentation as a “duty to use due care in obtaining and communicating information upon
which [the plaintiff] may reasonably be expected to rely in the conduct of his economic affairs
. . . . ” Block, 460 U.S. at 295–96; Neustadt, 366 U.S. at 706–07. Congress understood
“misrepresentation” to carry this definition when enacting the FTCA. Block, 460 U.S. at 295–96.
The Supreme Court gave guidance for applying this exception. It acknowledged that the
United States is immune from “liability for pecuniary injuries which are wholly attributable to
reliance on the Government’s negligent misstatements.” Id. at 297. In a footnote, the Supreme
Court adds that some negligence claims involve a misrepresentation, in the dictionary definition
sense of the word, and the misrepresentation exception doesn’t apply to them. Neustadt, 366 U.S.
at 711 n.26. For example, a claim may be “based upon a motor vehicle operator’s negligence in
giving a misleading turn signal.” Id. (quoting William Prosser, Remedies for Misrepresentation
Handbook of the Law of Torts 702–03, § 85 (1941)). These claims are really negligence claims,
not misrepresentation claims. Id. Further, in the same footnote, the Supreme Court noted that
misrepresentation “has been confined ‘very largely to the invasion of interests of a financial or
commercial character, in the course of business dealings.’” Id. (quoting Prosser, supra, at 702–03,
§ 85). Similarly, the Supreme Court even reproduced the American Law Institute’s Restatement
of Torts for the cause of action for negligent misrepresentation, which will be copied later in this
opinion. Id. at 706 n.16 (quoting Restatement of Torts § 552 (Am. Law Inst. 1938)).
7
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 7 of 26 PageID #: 5861
This language indicates that the misrepresentation exception tends to apply only in the
commercial setting involving pecuniary damages. But other statements made by the Supreme
Court make the exception less straightforward. The Supreme Court also said, “[T]he essence of an
action for misrepresentation, whether negligent or intentional, is the communication of
misinformation on which the recipient relies.” Block, 460 U.S. at 296. And the Court added that
the exception “does not bar negligence actions which focus not on the Government’s failure to use
due care in communicating information, but rather on the Government’s breach of a different
duty.” Id. at 297. This statement implies the inverse, that the misrepresentation exception bars
claims that focus on a “failure to use due care in communicating information . . . . ” See id.
When applying these principles, the Supreme Court shed little light on the scope of the
misrepresentation exception on the questions most present in this case, which are (1) when is a
claim negligence or negligent misrepresentation and (2) does the misrepresentation exception
apply outside of the commercial setting?
In one Supreme Court case, Neustadt v. United States, the Court held that the
misrepresentation exception applied to both intentional and negligent misrepresentation. 366 U.S.
at 710. The Supreme Court applied the exception when a Fair Housing Agency (“FHA”) employee
incorrectly appraised a home. Id. at 698. The employee appraised a home for a value of $22,750.
Id. Two individuals, relying on the FHA appraisal, purchased the home for $24,000. Id. at 698–
700. A month after moving in, cracks formed in the ceiling and walls of the home. Id. at 700. The
home builder and four FHA inspectors investigated and discovered that the home sat on soil that
caused the house to shift and crack. Id. After learning this, the homebuyers sued the United States
“seeking recovery of the difference between the fair market value of the property and the purchase
price of $24,000.” Id. at 700. The plaintiffs claimed “that the FHA's inspection and appraisal of
8
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 8 of 26 PageID #: 5862
the property for mortgage insurance purposes had been conducted negligently; [they] were
justified in relying upon the results of that inspection and appraisal; and that they would not have
purchased the property for $24,000 but for the carelessness and negligence of [FHA].” Id. at 700–
01 (second alteration in original) (quote omitted). The misrepresentation exception to the FTCA
barred the plaintiffs’ claims. Id. at 710.
The claims in Neustadt are different than Plaintiffs’ claim. While Neustadt and this case
both involve some sort of communication, Plaintiffs in this case did not rely on the Government’s
representation when making a purchase or participating in commerce. Further, the Neustadt
plaintiffs sought lost market value, a type of pecuniary damages, instead of losses attributed to
property damage. While the Supreme Court did not rule that the misrepresentation exception only
applied to pecuniary injuries or injuries arising in commerce, it didn’t need to. The case before it
was commercial in nature and the requested damages were for pecuniary injuries.
The second leading case from the Supreme Court also involves a home. Block, 460 U.S. at
290. In Block, the plaintiff received a loan through the Farmers Home Administration (FmHA) to
construct a prefabricated home. Id. The plaintiff entered a contract for the home, and the contract
“granted FmHA the right to inspect and test all materials and workmanship and reject any that
were defective.” Id. at 291. The FmHA inspected the home three times during construction, and
the FmHA issued a report stating that the construction was approved by the FmHA. Id. at 292.
After moving in, the plaintiff’s heat pump malfunctioned, and the FmHA reinspected the home,
finding 13 additional defects. Id. The homebuilder refused to fix the defects, and the plaintiff sued
the United States. Id.
The district court dismissed the case, but the Sixth Circuit Court of Appeals reversed. Id.
at 293–94. The Sixth Circuit said that even without contractual obligations, the plaintiff had “stated
9
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 9 of 26 PageID #: 5863
a claim for negligence under the principle that one who undertakes to act, even though gratuitously,
is required to act carefully and with the exercise of due care and will be liable for injuries
proximately caused by failure to use such care.” Block, 460 U.S. at 293 (quote omitted). The Sixth
Circuit ruled that the misrepresentation exception did not apply because the case involved
negligence, which did not fall into the misrepresentation exception. Id.
On grant of certiorari, the Supreme Court affirmed the Sixth Circuit. Id. The Supreme Court
ruled that even though plaintiff’s case included misstatements, they were “not essential to
plaintiff's negligence claim.” Id. at 297. Instead, the claim addressed a failure to supervise under
the Good Samaritan doctrine because the FmHA “voluntarily undertook to supervise construction
of her house . . . . ” Id. The Supreme Court went on to say that, absent the negligent
misrepresentation exception to the FTCA, the plaintiff “could also have brought a claim for
negligent misrepresentation to recover for any injury caused by her misplaced reliance on advice
provided by FmHA officials and on the FmHA inspection reports.” Id. at 298.
Again, the Supreme Court did not have to rule on the issues before this Court. The Supreme
Court didn’t need to determine if the misrepresentation exception blocks claims based on
misstatements themselves, like a driver giving the wrong hand signal. With or without statements,
plaintiff’s claim survived the exception. However, the Court acknowledged that claims for
negligence and negligent misrepresentation may have some overlap and that the misrepresentation
exception to the FTCA would not necessarily block a negligence claim even if it would block a
negligence misrepresentation claim with similar facts.
Looking to the above language from the United States Supreme Court, this Court cannot
articulate a short rule that summarizes when the misrepresentation exception applies. While the
“essence” of the misrepresentation claim is miscommunication, the exception doesn’t cover all
10
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 10 of 26 PageID #:
5864
miscommunication, especially if the miscommunications aren’t “essential” to the claim. Further,
the Supreme Court has never expressly ruled that the misrepresentation exception applies only in
the commercial setting and only to pecuniary damages. The most concrete guidance instructs
courts to give a serious look at the complaint to determine if a plaintiff truly brought a claim for
negligence or negligent misrepresentation. Case law from other courts reinforces that guidance.
The Sixth Circuit has largely echoed the Supreme Court on the misrepresentation exception
without further elaboration. See generally Fitch v. United States, 513 F.2d 1013 (6th Cir. 1975).
In the most prominent Sixth Circuit case, Fitch v. United States, a plaintiff sued the United States
because the Armed Forces erroneously drafted him into the Army. Id. at 1015. A member of the
plaintiff’s local draft board incorrectly transcribed the plaintiff’s draft number on a document,
leading to the incorrect enlistment. Id. Eventually, the United States learned of the error, and it
discharged him from active duty. Id. The plaintiff sued the United States for “compensatory and
punitive damages.” See id. The district court awarded him damages for lost wages and punitive
damages. Id.
The Sixth Circuit reversed the district court and ruled that the misrepresentation exception
barred his claim. While the plaintiff alleged that the United States acted negligently, the court
“look[ed] beyond the literal meaning of the language to ascertain the real cause of complaint.” Id.
(quoting Hall v. United States, 274 F.2d 69, 71 (10th Cir. 1959)). And when looking beyond the
literal language of the complaint, the Sixth Circuit determined that the plaintiff brought a claim for
negligent misrepresentation, not negligence. Id. The plaintiff’s claim arose out of and “occurred
when Government agents misrepresented [plaintiff’s] obligation to enter the Army, telling him
that he was required to serve when, in fact, he was free from that duty.” Id. at 1016.
11
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 11 of 26 PageID #:
5865
While at first look, this case appears to support the proposition that the misrepresentation
exception applies outside of the commercial setting, that conclusion is murky. The Fitch court
specifically mentioned that the district court awarded lost wages, a type of pecuniary damages. See
Carr v. Lake Cumberland Reg’l Hosp., LLC, No. CV 15–138–DLB–HAI, 2017 WL 1078636, at
*4 (E.D. Ky. Mar. 21, 2017). The plaintiff did not request any other damages caused by his draft
selection—no personal injuries or anything else. Additionally, he did not allege that the United
States owed him a specific duty. The Sixth Circuit only briefly discussed a general obligation of
the United States, “the duty of fair, equitable, and just treatment.” Fitch, 513 F.2d at 1015.
These principles reinforce the United States Supreme Court rulings and add little to them.
The Sixth Circuit’s ruling shows that the misrepresentation exception applies to negligent
misrepresentation claims and courts look to the complaint to determine the true cause of action.
Further, the misrepresentation exception applies to situations where the plaintiff has not articulated
a duty and is seeking lost wages and punitive damages.
Moving to the positions of the Parties, Plaintiffs argue that they pleaded a negligence claim,
not misrepresentation. [Doc. 129, PageID 5650]. They contend that the Complaint shows a claim
for negligence and focuses on the NPS’s failure to warn as required under the Fire Management
Plan. (“FMP”). [Id.; Doc. 1, PageID 138]. According to the Complaint, the FMP required the NPS
to warn others about the Fire, and the NPS failed to do so. [Doc. 1, PageID 138]. Additionally,
Plaintiffs argue that their claims arose from a failure to perform an “operational task.” [Doc. 129,
PageID 5650, 5664]. They further argue that their claims arise out of a failure to warn at all, not
an inadequate warning, and that the misrepresentation exception should be limited to commercial
contexts. [Id. at PageID 5650].
12
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 12 of 26 PageID #:
5866
The phrase “operational task,” as used by Plaintiffs, deserves some detailed attention.
Courts have refused to apply the misrepresentation exception when the government made
misstatements relating to government operations, like, communicating accurate weather data to
airplanes. See, e.g., Jimenez-Nieves v. United States, 682 F.2d 1, 5 (1st Cir. 1982); Ingham v. E.
Air Lines, Inc., 373 F.2d 227 (2d Cir. 1967); Sullivan v. United States, 299 F. Supp. 621, 625 (N.D.
Ala. 1968), aff’d, 411 F.2d 794 (5th Cir. 1969). In a Second Circuit case, Igham v. E. Air Lines,
the court recognized that failing to inform and providing incorrect information are both
misrepresentations. 373 F.2d at 239. But reading the misrepresentation exception too broadly
“would exempt from tort liability any operational malfunction by the government that involved
communications in any form.” Id. It went on to say, “[w]here the gravamen of the complaint is the
negligent performance of operational tasks, rather than misrepresentation, the government may not
rely upon § 2680(h) to absolve itself of liability.” Id.
Along with their operational task argument, Plaintiffs cite several cases for the position
that the misrepresentation exception only applies in the commercial setting, which is, as this Court
has pointed out, an open question. In re Flint Water Cases, 482 F. Supp. 3d 601, 638 (E.D. Mich.
2020) (“The Supreme Court has not clarified whether the scope of the exception is limited to
financial or commercial misrepresentations, and circuit courts have reached discordant answers.”
(quote omitted)). Plaintiffs ask this Court to limit the misrepresentation exception to commercial
misrepresentations. [Doc. 129, PageID 5657].
The United States disagrees with Plaintiffs’ arguments. The United States takes the position
that Plaintiffs’ claims arise out of the dissemination of inaccurate information or the failure to
disseminate information. [Doc. 109–1, PageID 3859]. The United States says that the exception
applies whether the claims are based on communication or failure to communicate because the
13
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 13 of 26 PageID #:
5867
claim is based on the relay of information and arises out of a misrepresentation. [Doc. 109–1,
PageID 3859–60]. The United States goes on to say that when looking past the terms in the
Complaint, the real allegations here are claims for the tort of misrepresentation, not the tort of
negligence. [Id. at PageID 3859].
When arguing that Plaintiffs’ claims are for negligent misrepresentation, the United States
points to a flood case with extensive property damage. [Id. at PageID 3858]. In National
Manufacturing Company v. United States, 210 F.2d 263, 275 (8th Cir. 1954), the plaintiffs “alleged
that the government employees carelessly and negligently disseminated misinformation respecting
the course and action of the flood waters; that as a direct result of negligent assurances the plaintiffs
were misinformed; and that the [government] employees negligently and carelessly assured the
plaintiffs that the river would not overflow.” Id. (alternation in original) (quote omitted). The court
ruled that the misrepresentation exception of the FTCA barred the claims. Id. However, that court
did not rely on the legal definition of “misrepresentation”; instead, it turned to the dictionary
definition. Id. It defined “misrepresentation” as “to give a false, improper or imperfect
representation” Id. The court decided the case before the above-mentioned Supreme Court cases,
and those Supreme Court cases cast serious doubt on the reliability of National Manufacturing
Company and the United States’ argument because the case does not look to the common law tort
of misrepresentation and the legal definition of misrepresentation.
In its argument, the United States also points to two cases from the Eastern District of
Tennessee. In one of the cases, Dyer v. United States, a plaintiff worked at a nuclear facility in
Oak Ridge, Tennessee. 96 F. Supp. 2d 725, 737 (E.D. Tenn. 2000). During her tenure, she allegedly
was exposed to toxic substances. Id. She claimed that no one told her which substances she was
working with and “the Government mandated a policy of non-disclosure and misrepresentation
14
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 14 of 26 PageID #:
5868
that has continued to prevent discovery of the composition of the substances she
encountered . . . . ” Id.
On a motion to dismiss for lack of subject matter jurisdiction, the Dyer court ruled that it
did not have jurisdiction. Id. at 727. It ruled, in part, that the misrepresentation exception to the
FTCA applied. Id. at 738. The court reasoned that the plaintiff’s “claims ar[ose] out of the
Government’s alleged withholding or misrepresentation of information concerning working
conditions at Oak Ridge . . . . ” Id. These alleged misrepresentations included “claims the
Government intentionally misrepresented the fundamental nature of the toxins [she] encountered
while working at Oak Ridge . . . . ” Id. at 737. Further, the court ruled in the decision that plaintiff
had not established a specific duty that the United States had breached, meaning that the plaintiff
was relying on the misstatements for her claim. Id. at 733, 734, 736–38.
In the second case from the Eastern District of Tennessee cited by the United States, the
court specifically held that “the misrepresentation-exception is just as applicable to actions
involving personal injury, wrongful death, or property damages, as it is to those involving only
financial or commercial loss.” Lloyd v. Cessna Aircraft Co., 429 F. Supp. 181, 187 (E.D. Tenn.
1977). The court applied the exception when a third-party plaintiff sought damages from the
United States for the negligent inspection, testing, and issuance of an airworthiness certificate for
a plane that crashed. Id. at 182–83. The third-party plaintiff argued that the United States, through
the Federal Aviation Administration and its employees, should have known that the plane was not
airworthy. Id. The court mentioned that the Supreme Court interpreted “misrepresentation” to
mean the legal definition of the word, id. at 182, and then ultimately ruled that the alleged conduct
and failure to inspect and report “could amount to nothing more than a misrepresentation as to the
true condition of the aircraft involved.” Id. at 187. The court also said that “where the negligence
15
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 15 of 26 PageID #:
5869
of federal employees, whether by inspection, testing, diagnosis, or otherwise, has resulted in the
conveyance of erroneous information, . . . any action against the national sovereign based on the
Federal Tort Claims Act, . . . is barred by the misrepresentation exception.” Id. at 185.
Neither of these cases are directly applicable to the case at hand. The Dyer court ruled that
the United States did not owe a duty to the plaintiff. Without a duty, plaintiff’s claims could not
be for negligence, leaving only negligent misrepresentation. Here, Plaintiffs allege that the United
States owed them a duty. Lloyd is even easier to distinguish because of the Supreme Court’s
decision in Block. The Lloyd court applied the misrepresentation exception broadly, to include
some conduct that could support a claim for negligence according to Block. While the Lloyd court
is not necessarily wrong on the merits of that case, it does not analyze whether the United States
had a duty independent of its miscommunication like the Supreme Court in Block.
With all that said, in this case, the misrepresentation exception to the FTCA does not apply
for two reasons. First, Plaintiffs have pleaded negligence, not negligent misrepresentation. Second,
the misrepresentation exception to the FTCA is largely limited to commercial settings. While the
FTCA may apply in some non-commercial settings, this case should not be a deviation from the
normal application of the misrepresentation exception.
Beginning with the first reason, when looking at the Complaint, Plaintiffs alleged
negligence, not negligent misrepresentation. While Plaintiffs’ allegations involve lack of
communication or miscommunication, they all allege that the NPS and United States, under the
FMP, owed them a duty to notify “Park neighbors, Park visitors and local residents . . . of all
planned and unplanned fire management activities that have the potential to impact them.” [Doc.
1, PageID 138]. Plaintiffs are not arguing that they relied on information from Defendant or that
16
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 16 of 26 PageID #:
5870
Defendant expected Plaintiff to rely on that information. Instead, Plaintiffs allege, simply, that
Defendant had a duty to notify others of fire management activities.
This allegation differs from the common law definition of misrepresentation accepted by
the Supreme Court. As noted by the Supreme Court in a footnote, a misrepresentation claim
alleges that:
One who in the course of his business or profession supplies information for the
guidance of others in their business transactions is subject to liability for harm
caused to them by their reliance upon the information if
(a) he fails to exercise that care and competence in obtaining and
communicating the information which its recipient is justified in
expecting, and
(b) the harm is suffered
(i) by the person or one of the class of persons for
whose guidance the information was supplied, and
(ii) because of his justifiable reliance upon it in a
transaction in which it was intended to influence his
conduct or in a transaction substantially identical
therewith.
United States v. Neustadt, 366 U.S. at 711 n.16 (quoting Restatement of Torts § 552 (Am. Law
Inst. 1938)). This cause of action differs from Plaintiffs’ allegations in their Complaints. While
Plaintiffs allege that they would have acted if the NPS provided notification, it is not cast in the
light that Plaintiffs should have been told based on the expectation of reliance. Instead, they rely
on an actual duty, not an expectation that the NPS would “exercise care and competence in
obtaining and communicating the information which its recipient is justified in expecting . . . . ”
Neustadt, 366 U.S. at 711 n.16. Further, there is nothing in the Complaint that suggests that the
United States made communication or didn’t communicate to “influence [Plaintiffs’]
conduct . . . . ” Id. Plaintiffs’ allegations suggest that they would have acted if they had known of
some risks, but there is nothing to suggest that the United States, either negligently or intentionally,
17
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 17 of 26 PageID #:
5871
told them anything to influence their conduct. [See Doc. 1, PageID 144]. Plaintiffs’ have alleged
negligence.
If the Court were to rule in Defendant’s favor on this issue, it would be required to find
that Defendant did not have a duty to perform the tasks that Plaintiff alleges. Defendant has not
asked the Court to rule in that way. Instead, they just ask the Court to construe the allegations as
negligent misrepresentation. It cannot do so. If Plaintiffs fail to establish a duty and a breach, a
decision will be made on the merits of the case, not by construing the claims to fit into the
misrepresentation exception.
In addition to that reason, the misrepresentation exception to the FTCA should be usually
confined to the commercial setting and to pecuniary damages. While no authority binds this Court
on the issue, the persuasive authority supports this limitation. Even though the Lloyd case from
this district held the opposite, the Sixth Circuit’s Fitch case specifically applied the
misrepresentation exception to lost wages and punitive damages. Further, the Supreme Court has
acknowledged that the tort of misrepresentation usually occurs in the commercial setting.
Additionally, one of the most recent cases from within the Sixth Circuit addressing the issue, In re
Flint Water Cases, held that the misrepresentation exception applies in the commercial setting.
While this Court will not go so far to say that the misrepresentation exception only applies in the
commercial setting or to pecuniary damages, the exception should largely be confined to the
commercial setting.
This case is not an exception to the general limitation of the misrepresentation exception.
Here, Plaintiffs have alleged that the United States had an independent duty to warn and that their
injuries arose out of a failure to communicate. This case is missing many facts that would make it
like a commercial transaction, such as, discussions between the parties, an expectation of reliance,
18
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 18 of 26 PageID #:
5872
or an attempt to persuade the injured parties. Therefore, this case is not a case of negligent
misrepresentation, let alone one of the abnormal misrepresentation cases that might occur outside
of the commercial setting and with damages other than pecuniary damages.
As Plaintiffs have pleaded a negligence cause of action and the misrepresentation exception
is largely confined to the commercial setting, the United States Motion to Dismiss for Lack of
Subject Matter Jurisdiction as to all Plaintiffs, [Doc. 109], is DENIED.
III.
Individual Plaintiffs failed to present their negligent failure-to-warn claim in
accordance with the FTCA.
The FTCA prevents any action from being instituted against the United States unless the
plaintiff first filed a claim with the United States. 28 U.S.C. § 2675(a). Any plaintiff must “first
present[] the claim to the appropriate Federal agency . . . . ” Id. The Sixth Circuit states that “the
requirements of § 2675 are met ‘if the claimant (1) gives the agency written notice of his or her
claim sufficient to enable the agency to investigate and (2) places a value on his or her claims.’”
Knapp v. United States, 844 F.2d 376, 379 (6th Cir. 1988) (quoting Sellers v. United States, 870
F.2d 1098, 1101 (6th Cir. 1989)). The amount of notice required is described as “minimal.” Id.
The notice requirement, along with the sum certain requirement, are collectively referred to as the
presentment requirement.
Generally, plaintiffs provide notice by filing an SF–95 form. See Glarner v. U.S., Dep’t of
Veterans Admin., 30 F.3d 697, 700 (6th Cir. 1994); see also 28 C.F.R. § 14.2(a). 3 An SF–95 form
is not required, and a plaintiff can give notice to the United States by providing less notice than
Glarner appears to suggest that a claimant who completes the SF–95 will satisfy the requirements
of 28 U.S.C. § 2675. See Glarner, 30 F.3d at 700 (“If the claimant completes the SF[–]95, he will
satisfy these requirements . . . . ”). The issue here is whether Plaintiffs submitted a completed SF–
95 form.
3
19
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 19 of 26 PageID #:
5873
what is required on the form. Id. In this case, the Individual Plaintiffs filed SF–95 forms. [See, e.g.,
Doc. 111-1, PageID 3901]. As to the “Basis of Claim,” the Individual Plaintiffs wrote on the forms:
The U.S. government through its employees, failed to follow mandatory regulations
to monitor and extinguish a fire in the Great Smoky Mountains National Park,
thereby allowing it to spread beyond the park boundaries onto claimants’ private
property, destroying their property.
[See, e.g., id.]. Some of the claims go into detail about damages for the individuals, but the “Basis
of Claim” on the SF–95 forms are consistent. The Individual Plaintiffs’ SF–95s contain no
information about a failure to warn or facts related to a failure-to-warn claim. In fact, in the SF–
95 forms, as the Individual Plaintiffs note in their response to the motion, they explain how the
Government’s negligence caused their injuries by “allowing [the Fire] to spread beyond the Park
boundaries onto claimant’s private property, destroying their property . . . . ” [Doc. 128, PageID
5639]. To the Court, this language makes a claim based on NPS’s failure to extinguish the Fire
rather than a failure-to-warn claim. Perhaps anticipating the Court’s reading of the language, and
that it might “wonder how a failure to warn claim would have ‘allow[ed the fire] to spread beyond
the park boundaries,” the Individual Plaintiffs argue that it is part of their theory that NPS “should
have warned the Gatlinburg Fire Department and local officials who could have helped to fight
the fire or control its spread.” [Id. at PageID 5639 n.6 (alteration in original)]. The Court is not
convinced. Also, the Court notes the contrast between the SF–95 filed by the Individual Plaintiffs
with that filed by the Insurance Plaintiffs, which states, for example, that they brought a claim for,
“negligently failing to provide timely and accurate notice and warning to Park neighbors, local
government officials, local fire departments, local residents and visitors about the status of and
imminent danger presented by The Chimney Top 2 Fire.” [See Doc. 19-1, PageID 52, American
Reliable Ins. v. United States, 3:19–CV–469 (E.D. Tenn. Nov. 19, 2019)].
20
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 20 of 26 PageID #:
5874
Individual Plaintiffs argue that they met the presentment requirement because their failureto-warn claim is related to the information in their Basis of Claim. [Doc. 128, PageID 5638]. They
argue that they provided enough information for the United States to investigate the claim. [Id.].
Further, according to the Individual Plaintiffs, the United States has had enough notice because
this lawsuit has been pending for three years. [Id. at PageID 5642–43]. Individual Plaintiffs also
contend that their allegations that the NPS didn’t follow mandatory regulations should have put
the United States on notice regarding a failure-to-warn claim. [Doc., 128, PageID 5642–43].
Individual Plaintiffs rely heavily on Glarner v. U.S., Dep’t of Veterans Admin., 30 F.3d
697 (6th Cir. 1994). The case is a prime example of “minimal notice.” In Glarner, the plaintiff
suffered a series of unfortunate medical events while in a Veterans Administration Medical Center.
Id. at 699. Over a period of months, the plaintiff had pain in his hip, a loose and dislocated hip,
improper bone settings, multiple surgeries, half-body and full-body casts, slip-and-falls, a hairline
fracture, injuries worsened by medical care, and ultimately a metal rod in his femur. Id. After all
of that, he lost the ability to bend his knee, his condition deteriorated after being discharged, his
lifestyle changed, and he couldn’t drive a car as a result of the medical care. Id.
While he was still in the hospital, he went to the Disabled American Veterans Office inside
the hospital and said that he “wanted to file a negligence claim against the hospital.” Id. He told
an employee in the office that he thought he was totally disabled because of the medical treatment.
Id. The employee completed a form for the plaintiff, and he signed it. Id. The form was not an SF–
95, but rather a claim for disability benefits under 38 U.S.C. § 1151, and it said, “I feel that I am
entitled to compensation as a result of this negligence.” Id. at 699–700. Later, the plaintiff sued
the United States under the FTCA, and the United States argued that he never presented his claim.
Id. at 699. The district court dismissed the case. Id.
21
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 21 of 26 PageID #:
5875
On appeal, the Sixth Circuit ruled that the plaintiff satisfied the notice requirement of the
FTCA but not another requirement under the statute. Id. When discussing the notice requirement,
the circuit court said that an SF–95 was not required if a plaintiff otherwise meets the requirements
of the FTCA. Id. The court of appeals went so far to say that “[i]f the claimant completes the SF–
95, he will satisfy these requirements . . . . ” Id. But even without the SF–95, the plaintiff’s notice
met statutory requirements. Id. He “filed [a] form and mentioned his belief that there was
negligence. In addition, he was still a patient in the hospital at the time, so VA officials could
easily have investigated what they needed to know.” Id.
While the plaintiff in Glarner gave minimal notice by stating “I feel that I am entitled to
compensation as a result of this negligence,” he made this statement to a government employee
while in the hospital and suffering from “this negligence.” Id. at 699–700. Here, Individual
Plaintiffs argue similarly that they also gave minimal notice of their failure-to-warn claim, but the
Court disagrees. The SF–95 is devoid of any fact or legal allegation that put the United States on
notice that it needed to investigate, for the purposes of the Individual Plaintiffs’ FTCA claims, the
actions of the NPS and its employees as it relates to a failure-to-warn claim. The Individual
Plaintiffs gave minimal notice and filled out an SF–95 for other claims, including for claims arising
out of a failure to “monitor” 4 or “extinguish,” but not for a failure to warn.
4
Individual Plaintiffs did not make the argument that the term “monitor” inherently included
“warning” about the object being monitored. They only note that they disagree with the
Government’s “premise” that following regulations “to monitor and extinguish . . . does not
encompass a failure to warn . . . . ” [Doc. 128, PageID 5641 (internal quotation marks omitted)].
Even if they had elaborated on the point, the argument would appear groundless as the plain
meaning of the word “monitor” does not include reporting or warning about what is monitored.
Monitor,
Merriam-Webster.com
Dictionary,
https://www.merriamwebster.com/dictionary/monitor (last visited Jan. 26, 2022) (“to watch, keep track of, or check
usually for a special purpose”).
22
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 22 of 26 PageID #:
5876
The United States, on the other hand, relies on a case that, for all practical purposes, is
indistinguishable from the situation here. [Doc. 110-1, PageID 3882]. In Roma v. United States, a
plaintiff filed an SF–95 but then went to court with additional, somewhat related claims. 344 F.3d
352 (3d Cir. 2003). The plaintiff had suffered smoke-inhalation injuries while fighting a fire at a
Navy air station. Id. at 354. His lawsuit alleged that the United States and its employees caused his
injuries in two ways. Id. at 355. First, federal defendants caused the injuries by negligently starting
the fire; second, federal defendants told him to remove his breathing apparatus. Id. Previously,
when he filed his SF–95, he only mentioned the second cause of action, i.e., that he was told to
remove his breathing apparatus. Id. at 363.
The Third Circuit held that the plaintiff had not met the presentment requirements of the
FTCA as to the claim regarding the negligent starting of the fire. Id. The court decided that “facts
concerning how the fire started and any negligence by federal employees in failing to prevent it
are entirely distinct from the conduct involved in supervising the firefighting operations, including
. . . instruction to” remove his breathing apparatus. Id.
The Roma case is analogous to the case here. While the Individual Plaintiffs put the United
States on notice that they were seeking damages for claims arising out of firefighting and
monitoring, they didn’t mention any facts or allegations for the distinct claim regarding failing to
warn. If the Court were to find that the Individual Plaintiffs met the notice and presentment
requirement of the FTCA as to the failure-to-warn claim, then the requirement of 28 U.S.C.
§ 2675(a) has no real meaning. The Individual Plaintiffs did not give any notice of their failure-towarn claim. In short, Individual Plaintiffs’ failure-to-warn claim is a different claim from their
claims related to their failure-to-monitor and failure-to-extinguish claims. It is based on a different
theory of negligence, involves a different set of operative facts, is based on the acts of a different
23
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 23 of 26 PageID #:
5877
group of employees, and it relies on different policies and regulations applicable to NPSfirefighting tasks. See Smith v. United States, No. CV 7: 20–094–DCR, 2021 WL 206355, at *8
(E.D. Ky. Jan. 20, 2021), appeal dismissed, No. 21–5187, 2021 WL 2222846 (6th Cir. Apr. 2,
2021).
The Individual Plaintiffs also argue that their claims should not be dismissed because the
United States had actual notice and the presentment requirement is not jurisdictional. But in the
Sixth Circuit, for now, the notice requirement is a jurisdictional requirement. Garrett v. United
States, 640 F.2d 24, 26 (6th Cir. 1981) (ruling that the requirements of 28 U.S.C. § 2675(a) are
“jurisdictional requirements, not capable of waiver or subject to estoppel”). There is, however, a
strong argument that this requirement should no longer be applied as jurisdictional.
That argument was recently strengthened by Copen v. United States, 3 F.4th 875, 882 (6th
Cir. 2021). In that case, the Sixth Circuit ruled that “neither governing precedent nor the structure
of the statute support the conclusion that Congress has plainly attached a jurisdictional label to the
sum certain requirement.” Id. The sum certain requirement, like notice, is part of the FTCA’s
presentment requirement. The Sixth Circuit also indicated that this ruling was based on a change
in Supreme Court precedent, but the Sixth Circuit did not explicitly change its stance on the notice
requirement. Id. at 880, 882. While the Sixth Circuit may very well change its precedent in the
future, for now, the notice requirement of 28 U.S.C. § 2675(a) is jurisdictional, and “not capable
of waiver or subject to estoppel.” Garrett, 640 F.2d at 26. Garrett, until overruled, however, is
binding on district courts in the Sixth Circuit. The Court also notes, however, that even if the
requirement should no longer be considered as jurisdictional, it could still be raised as a motion to
dismiss based on a failure to state a claim “up to . . . trial on the merits.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 507 (2006). Even if that required an amendment to the Government’s answer, the
24
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 24 of 26 PageID #:
5878
Court would not consider the issue waived since it has been raised by the Government “at a
pragmatically sufficient time . . . . ” Vanhoy v. United States, 514 F.3d 447, 451 (5th Cir. 2008).
Because the Individual Plaintiffs did not satisfy the notice requirement of the FTCA and
the requirement is jurisdictional, this Court does not have subject matter jurisdiction of their
failure-to-warn claims. Therefore, the United States Motion to Dismiss, [Doc. 110], is GRANTED.
IV.
Conclusion
The United States filed two Motions to Dismiss for Lack of Subject Matter Jurisdiction.
The first pending Motion to Dismiss for Lack of Subject Matter Jurisdiction, [Doc. 109], is
DENIED because the misrepresentation exception to the FTCA does not insulate the United States
from these claims. However, the second pending Motion to Dismiss for Lack of Subject Matter
Jurisdiction, [Doc. 110], is GRANTED because the Individual Plaintiffs failed to satisfy the
presentment requirement of 28 U.S.C. § 2675(a).
As the Court has determined that it does not have subject matter jurisdiction over the
Individual Plaintiffs’ remaining claim, the following cases are SEVERED from the consolidated
case and DISMISSED without prejudice:
•
•
•
•
•
•
Reed v. United States, 3:18–CV–201 (E.D. Tenn. 2018);
Anculle v. United States, 3:18–CV–308 (E.D. Tenn. 2018);
Adkins v. United States, 3:18–CV–310 (E.D. Tenn. 2018);
Vance v. United States, 3:19–CV–283 (E.D. Tenn. 2019);
Barnes v. United States, 3:19–CV–296 (E.D. Tenn. 2019);
Abbott v. United States, 3:20–CV–149 (E.D. Tenn. 2020).
Further, it hereby ordered that all remaining actions continue to be consolidated and that
all future filings for the consolidated case will be in American Reliable Insurance Company v.
United States, No. 3:19–CV–469 (E.D. Tenn. 2019).
25
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 25 of 26 PageID #:
5879
So ordered.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
26
Case 3:18-cv-00201-JRG-CRW Document 160 Filed 02/28/22 Page 26 of 26 PageID #:
5880
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?