Opinion
Civil No. JFM 00-2296.
February 21, 2001.
MEMORANDUM
Now pending before the court is the Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment. The facts relevant to the dispute, as stated in the record and assumed true for purposes of this motion, follow.
On August 24, 1998, at approximately 7:25 a.m., Gloria Deberry Mack ("Mack"), a Master Sergeant in the United States Air Force, was driving north along Telegraph Road in Hanover, Maryland in her Volkswagen Jetta. She was reporting for duty at the Air Mobility Command terminal of Baltimore Washington International Airport. At the same time, Ellen Machiko Maxton ("Maxton"), a Special Agent of the Department of Defense ("DOD"), was driving a government-owned vehicle south along Telegraph Road. She was the last driver in a caravan of four cars driven by government employees heading for a field office in Hanover. At the intersection of Telegraph Road and Dorsey Road, each of the cars in the caravan turned left onto (eastward) Dorsey Road. Maxton turned as Mack entered the intersection from the south on a green light. Maxton failed to yield the right-of-way and struck Mack's vehicle. The impact caused Mack to collide with the front windshield. Although paramedics arrived and transported Mack to the Shock Trauma unit in Baltimore, she died on August 31, 1998 from her injuries.
On September 3, 1999, Mack's husband, Richard Mack, filed an administrative claim form ("SF-95") with the government for injuries arising out of the accident. The proper government agency received the claim on November 1, 1999. The government had not denied the claim as of July 27, 2000, when this action was filed. Richard Mack brings survival and wrongful death claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., on behalf of Mack's estate, himself, and his two minor children, Monique and Richard III. The government has moved to dismiss the claims for lack of subject matter jurisdiction.
Mack and the government have submitted records outside the complaint. When a motion challenges the court's subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the court may consider exhibits outside the pleadings. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995).
I.
The government first contends that the Feres doctrine bars the present claims.The federal government may be sued only to the extent that it waives its sovereign immunity. If the government has not waived sovereign immunity for a claim, then a court does not have jurisdiction to decide it. The FTCA expressly states that the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The FTCA contains a number of exceptions, express and implied. In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that the federal government "is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146. The Feres doctrine "cannot be reduced to a few bright-line rules." United States v. Shearer, 473 U.S. 52 (1985). It requires an evaluation of a case's facts in light of the rationales supporting the doctrine. Stewart v. United States, 90 F.3d 102, 104-06 (4th Cir. 1996); Appelhans v. United States, 877 F.2d 309, 311 (4th Cir. 1989).
The government contends that Stewart controls this case. In Stewart, a staff sergeant in the United State Army was involved in an accident with another sergeant while driving on the Fort Bragg military base. 90 F.3d at 104. The plaintiff was driving to his on-base residence after a mandatory physical training exercise; he was going to his quarters to shower and change clothes before going to his next assignment. Id. The court held that Feres applied because the plaintiff was on active duty and the accident occurred on a military base. Id. Moreover, the plaintiff "was engaged in activity directly related to the performance of military obligations" at the time of injury because "he was leaving on duty station to return to his residence in preparation for his next assignment." Id. at 105. In my view, Stewart does not govern this case. First, the accident in the present case did not occur on a military base; it occurred on a public highway. Second, Mack's accident occurred in circumstances unconnected to her service in the Air Force: the accident involved someone in another branch of the service performing an assignment unrelated to Mack's activities.
One could note also that Mack was not in transit between assignments; she was reporting to duty in the morning. But because Mack was on active duty status at the time of the accident, see Dec. of Randy Finney ¶ 4, the fact that she was driving to duty, as opposed to driving during duty, does not matter. See, e.g., Shaw v. United States, 854 F.2d 360 (10th Cir. 1988) (barring a suit where a member of the United States Army was traveling from his off-post residence to Fort Still to report to duty in the morning); Shoen v. United States, 885 F. Supp. 827 (E.D.N.C. 1995) (barring a suit where a Lance Corporal in the United States Marine Corps was reporting to Camp LeJune from his off-base residence); cf. Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (applying Feres to a suit where an officer was involved in an accident on his way home after duty). These cases do not resolve the present case, however, because they all involved accidents occurring on military bases in circumstances connecting the victim's military status with the accident. In Shaw, for example, the Army sergeant collided on his base with a two-and-a-half ton cargo truck operated by an Army private. 854 F.2d at 363. In Shoen, the Lance Corporal's motorcycle collided on his base with a vehicle driven by two other Lance Corporals in the Marine Corps. 885 F. Supp. at 827-28. In Mason, the Naval petty officer was in an accident on base with a vehicle driven by a Naval seaman. 568 F.2d at 1135-36. For the reasons discussed below, I think the present case differs importantly.
A case from another circuit is more factually analogous. In Pierce v. United States, 813 F.2d 349 (11th Cir. 1987), the Eleventh Circuit did not apply Feres to a case where an active duty staff sergeant in the United States Army collided with a navy recruiter on a public highway. The accident occurred after Pierce had completed personal errands and was heading back to base. Id. at 350. The court reasoned that Pierce's activity was not incident to service because Pierce was "on pass," the accident occurred off base, and "the activities were not proximately related to military service." Id. at 354.
Pierce's "on pass" status was no different from Mack's. He was on active duty but had been released for certain hours of the day. Id. at 350.
I find Pierce's reasoning persuasive and note its consistency with other cases treating off-base accidents. Courts have applied the Feres bar to off-base accidents when there is a proximate connection between the plaintiff's military service and the accident. In Stansberry v. Middendorf, 567 F.2d 617, 617-18 (4th Cir. 1978), for example, the Fourth Circuit barred a suit for injuries sustained when a Navy ambulance transporting a Navy serviceman was in an accident occurring off base. The serviceman's presence in the Navy ambulance depended on his status as a serviceman. In Dall v. United States, 42 F. Supp.2d 1275 (M.D.Fla. 1998), the court barred a suit for injuries sustained by an active member of the United States Navy who crashed while taking flying lessons from the Jax Navy Flying Club. The court noted that "the activity in which [the plaintiff] was engaging was one sponsored by the U.S. Navy, which Thomas Dall had the opportunity to engage in by virtue of his active military status." 42 F. Supp.2d at 1283. Suits are allowed for off-base accidents, on the other hand, when "the military personnel involved were not taking advantage of any military program or status, but simply engaging in activities on the same grounds as civilians." Jones v. United States, 112 F.3d 299, 302 (7th Cir. 1997) (citations omitted).
In the present case, Mack's Air Force status was merely a "but for" cause of the injuries she sustained on Telegraph Road: Mack would not have been on the highway if she had not been reporting to duty. But Mack was effectively using Telegraph Road as a civilian. She was driving in a private automobile on a public highway and did not need military status to use the highway any more than did the commuter ahead of or behind her. Indeed, her driving was not dictated by military orders. She could have taken the bus or received a ride from a friend, or had her husband drop her off. Nor was the manner in which she drove related to her service in the Air Force. Moreover, her collision with Maxton was not related to her service. Maxton was not operating from the same military base as Mack, nor aiding her or participating with her in some common military purpose. They were members of distinct branches of service driving in opposite directions. In sum, I do not believe that Mack's injuries arose out of activity incident to her service.
I heed the Supreme Court's statement in United States v. Johnson, 481 U.S. 681, 686 (1987), that the Feres doctrine does not turn on the "military status of the alleged tortfeasor." But Johnson held merely that the status of FAA employees as civilians did not preclude the application of Feres when a Coast Guard helicopter pilot crashed while operating a helicopter during a Coast Guard rescue mission. Id. at 691. In the present case, and conversely, Maxton's military status does not change the character of Mack's driving as a civilian activity.
Allowing this suit does not undermine the three rationales supporting Feres. First, the Feres doctrine protects the "distinctively federal" relationship between the government and its soldiers. That relationship would be interfered with if the government's liability to soldiers varied from state to state. Johnson, 481 U.S. at 689; Stewart, 90 F.3d at 105; Appelhans, 877 F.2d at 311; Kendrick v. United States, 877 F.2d 1201, 1204 (4th Cir. 1989). No such concern is presented in this case. If Maxton had collided with a civilian's vehicle, the government would be liable for damages in accordance with Maryland law. Members of the military, like civilians, have to exercise reasonable care in abiding traffic regulations. The fact that Maxton coincidently hit another member of the military does not damage the "federal" relationship between the military and its service personnel. Cf. Pierce, 813 F.2d at 354 ("The government cannot avoid responsibility for tortious conduct merely by relying on the fact that at the time of the accident, [the plaintiff] was a member of the armed forces.").
Second, the Feres doctrine rests on the comprehensive system of statutory benefits that provides support for servicemen and their families. Johnson, 481 U.S. at 689-90; Stewart, 90 F.3d at 106; Applehans, 877 F.2d at 311; Kendrick, 877 F.2d at 1204-05. The independent force of this rationale remains unclear. The Court in Johnson noted that it provides an "independent reason" for applying Feres to bar suits. 481 U.S. at 689. Of course, as Justice Scalia noted in dissent, this argument proves too much: the government's "no fault" compensation system would also support barring suits arising from accidents that were not "incident to service." 481 U.S. at 698 (Scalia, J., dissenting). Yet such suits are not barred. Feres, 340 U.S. at 146. Ultimately then, the force of this rationale seems to depend on a conclusion reached independently of it — that is, whether activity is or is not service related. In this case, Mack's activity was not related to her service.
I also note that the record is silent as to whether Richard Mack has received or will receive benefits from the military due to his wife's death. Compare Shearer, 473 U.S. at 58 n. 4 (noting that "the record shows that [the plaintiff's] dependents are entitled to statutory veterans' benefits").
Third, the Feres rule shields military decision making from civilian inquiry, which would otherwise negatively impact military discipline and effectiveness, and undermine the duty and loyalty required by military service. Johnson, 481 U.S. at 690-91; Stewart, 90 F.3d at 106; Applehans, 877 F.2d at 311; Kendrick, 877 F.2d at 1205. Mack's suit will not require civilian inquiry into military decision making. The accident occurred on a public highway, governed by civilian driving regulations, with which any factfinder will be familiar. Compare Stewart, 90 F.3d at 106 (barring suit which would involve "an assessment of military traffic, vehicle, and other regulations"). Although the suit may require members of the military to testify as to each other's actions, the case does not depend on it. There was a civilian eyewitness to the accident, (Def.'s Mot. to Dismiss Ex. 3 at 6), which was investigated by a civilian police officer. Id. Medical testimony will come from civilian care givers because Mack was transported after the accident to the Shock Trauma center in Baltimore, a civilian hospital. (Mot. to Dismiss Ex. 3 at 2). Although the government employees in the caravan may be required to testify as to Maxton's actions, their testimony will concern Maxton's driving, a subject that will not require civilians to evaluate "sensitive military affairs." Johnson, 481 U.S. at 690. Accordingly, I do not believe that this contingency alone warrants dismissal of this case.
II.
The government next argues that Mack's survival claim and the wrongful death claims of Mack's two minor children are barred for failure to exhaust administrative remedies. On September 3, 1999, Richard Mack filed a SF-95 with the United States government. The government contends that the survival action cannot be brought because the SF-95 failed to give notice of the claim. It also argues that the wrongful death claims on behalf of Richard Mack's children cannot be brought because they were not included on the SF-95 and the children did not file their own SF-95.
Claims for survival and wrongful death, although both arising upon a person's death, differ importantly. A survival claim redresses injuries suffered by the decedent between his or her injury and death. It is thus derivative of the decedent's injury. A wrongful death claim redresses injuries suffered by other persons because of the decedent's death. See Waddell v. Kirkpatrick, 626 A.2d 353, 359 n. 8 (Md. 1993); United States v. Streidel, 620 A.2d 905, 909 n. 5 (Md. 1993); Stewart v. United Elec. Light Power Co., 65 A. 49, 53-54 (Md. 1906).
The government correctly notes that the Maryland legislature has authorized only the personal representative of the decedent's estate to bring a survival action. Md. Code Ann., Est. Trusts § 7-401(y) (1999 Supp.). Because Richard Mack is the personal representative of his wife's estate, Compl. Ex. A, if he failed to exhaust administrative remedies, the claim may not be brought.
A plaintiff may not maintain an action against the United States for the negligence of one of its agents "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." 28 U.S.C. § 2675. The requirement of filing an administrative claim is jurisdictional and may not be waived. Henderson v. United States, 785 F.2d 121, 123 (4th Cir. 1986). A claim is "presented" if it gives the government adequate notice to properly investigate the underlying incident and places a "sum certain" on the claim's value. Ahmed v. United States, 30 F.3d 514, 516-17 (4th Cir. 1994) (citation omitted).
The Code of Federal Regulations contains a number of specific requirements for claim procedures, including requirements for filing a claim in a legal capacity different from one's personal status, 28 C.F.R. § 14.2(a), filing a claim for personal injury, 28 C.F.R. § 14.3(b), and filing a claim for death, 28 C.F.R. § 14(c). The Fourth Circuit never has directly ruled that compliance with these procedures is a jurisdictional prerequisite to filing suit under the FTCA. Because the Fourth Circuit has cited with approval cases holding that it is not, see Ahmed, 30 F.3d at 516-17 (citations omitted), I apply the general notice requirement stated in those cases. I note, however, that this may be the issue over which the Fourth Circuit divided in Drew v. United States, 231 F.3d 927 (4th Cir. 2000).
The first question is whether Richard Mack can bring the survival action. "[B]ecause wrongful death and survivorship claims are separate and distinct, the plaintiffs must . . . show that the single claim form submitted to the Government gave constructive notice of both causes of action." Frantz v. United States, 791 F. Supp. 445, 450 (D.Del. 1992). In Barrett v. United States, 845 F. Supp. 774, 783 (D.Kan. 1994), the court barred a survival action where the administrative letter asserting a claim for wrongful death did not mention it, did not suggest that a claim was being brought on behalf of the estate and did not evidence an intent to recover for the decedent's pain and suffering. See also First Commercial Bank v. United States, 727 F. Supp. 1300, 1303 (W.D.Ark. 1990) (precluding survival claim where plaintiff wrote "n/a" in space reserved for valuing personal injury).
In the current case, Richard Mack's SF-95 listed him as the claimant. Richard Mack evinced an intent to recover as personal representative of his wife's estate, however, by listing $65,775.43 in expenses in the space reserved for "personal injury," Compl. Ex. B, which could only have been incurred by his wife. Moreover, in two letters construing the claim, government agencies reflected their understanding of Mack's intent to recover on behalf of the estate. See Compl. Ex. C (stating the caption as "Estate of Gloria DeBerry Mack"); Def.'s Mot. to Dismiss Ex. 7 (stating the caption as "Claim of Richard S. Mack, Jr., as Personal Representative of the Estate of Gloria Mack"). The government cannot be heard now to argue that it did not have notice of the survival claim.
The government also contends that Richard Mack's administrative claim did not give sufficient notice of the wrongful death claims now asserted by his children. To support this proposition, the government again cites Frantz, which states that "[i]f multiple claimants exist, each claimant must individually satisfy the jurisdictional prerequisite of filing a proper claim, unless another is legally entitled to assert such a claim on their behalf." 791 F. Supp. at 447 (citation omitted); see also Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993) (applying Frantz). Courts have been hesitant to bar claims involving minor children. In Young v. United States, 372 F. Supp. 736 (S.D.Ga. 1974), the court allowed minor children to bring a wrongful death claim even though the administrative claim was filed in the name of their father. Id. at 739. The wrongful death claim "was properly presented . . . [by] one qualified person on his own behalf." Id. at 740. Moreover, under the applicable state law, the "existence of children unnamed as claimants would not have increased the demand or the maximum recovery . . . since the right to sue was a joint one." Id.
Frantz did not involve minors. The children seeking to assert wrongful death claims were adults and there had been no showing that the decedent's wife had authority to act on their behalf, both points that the court explicitly noted. Frantz, 791 F. Supp. at 455.
Likewise, in Locke v. United States, 351 F. Supp. 185 (D. Haw. 1972), the court allowed minor children to assert wrongful death claims where only the decedent's husband had filed the claim. Hawaii law permitted an action for wrongful death to be brought by, inter alia, the decedent's legal representative, spouse or children. Id. at 187-88. See also Transco Leasing Corp. v. United States, 896 F.2d 1435, 1443-44 (5th Cir. 1990) (allowing wife and daughter to assert wrongful death claim even though the administrator of the estate, a bank, had filed the administrative claim because Texas law authorized the administrator, spouse or children to bring a wrongful death suit for the benefit of all); cf. Marricone v. United States, 697 F. Supp. 874, 877-78 (E.D.Pa. 1988) (allowing allegedly illegitimate children to be added to a wrongful death claim where "addition of the two children to the instant wrongful death action neither creates any new causes of action nor increases the damages exposure of the government"); Stockes v. United States, 444 F.2d 69, 70 (4th Cir. 1971) (allowing a minor child to bring an action for pain and suffering even though her parents already had settled an action for medical expenses and emphasizing "the care with which the law clothes the rights of a child").
The facts in the present case warrant the same treatment of the claims of Mack's children. Maryland's wrongful death statute states that "[a]n action under this subtitle shall be for the benefit of the wife, husband, parent, and child of the deceased person." Md. Code Ann., Cts. Jud. Proc. § 3-904(a) (1999 Supp.); see Waddell, 626 A.2d at 359 n. 8 (noting that a claim for wrongful death accrues to the "family of the deceased person"). Damages "may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death." Md. Code Ann., Cts. Jud. Proc. § 3-904(c) (1999 Supp.). Moreover, "[o]nly one action under this subtitle lies in respect to the death of a person." Md. Code Ann., Cts. Jud. Proc. § 3-904(f) (1999 Supp.). The additional of Mack's children will not increase the total amount claimed. It will require only that they be apportioned among the beneficiaries. Accordingly, I deny the government's motion to dismiss the wrongful death claims of Richard Mack's children.
An order effectuating the rulings made in this memorandum will be entered herewith.