United States District Court, Northern District of Illinois, E.D
November 9, 1972
VIRGINIA HLAVAC, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Marovitz, District Judge.
Motion To Dismiss
This suit arises out of an automobile accident which occurred
on May 14, 1970 between plaintiff Hlavac and Emmett O'Neil who
was at the time driving a U.S. Post Office truck. The action was
originally filed in the Circuit Court of Cook County (No. 72 Mont. 40282)
against O'Neil and the United States and was subsequently
removed to this Court where defendant O'Neil was dismissed from
The Government seeks to have this suit dismissed on the grounds
that plaintiff failed to conform with the requirements of
28 U.S.C. § 2675(a) in filing an administrative claim which is a
prerequisite to a suit in this Court. Title 28 U.S.C. § 2675(a)
"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 Government argues that no such administrative claim was
filed, that consequently suit in this Court is jurisdictionally
impermissible, and that as a result plaintiff is forever barred
from bringing this action since the 28 U.S.C. § 2401(b) two year
statute of limitations for administrative claims has run.
Plaintiff contends that she did file an administrative claim on
July 6, 1970 and that the United States Postal Service failed to
act upon it and that she is therefore statutorily permitted to
file this suit.
There is no doubt that plaintiff did "submit" a Form 95 "Claim
For Damage Or Injury" and the Government concedes as much. But
the question remains whether the submission of the form
constituted a "filing" of a claim as required by 28 U.S.C. § 2675(a).
The Government by affidavit of Clemens V. Carlson,
Superintendent of Mails at the La Grange, Illinois Post Office
indicates that upon receipt of bills for medical treatment and
vehicle damages from Mrs. Hlavac he forwarded two copies of the
Standard Form 95 Claim For Damage Or Injury. The form was
returned by Mrs. Hlavac incomplete in that a sum certain was not
set out for personal injury in Item 8, a total amount was not
stated in Item 8 and the claim was not dated. Superintendent
Carlson further states that he returned the form with a note
attached which read:
Mrs. Hlavac —
Two claim forms, SF 95 sent, but only 1 received,
need duplicate. Also Item # 8 must show total
amount and show date of claim.
In conclusion Carlson states that he never received a completed
form from Mrs. Hlavac.
We must therefore determine whether a proper claim based on the
above facts was ever filed.
It is clear that as a sovereign the United States is immune
from suit and that its consent to be sued in certain instances
can be conditioned upon conformity to various procedural
requirements. United States v. Sherwood, 312 U.S. 584, 61 S.Ct.
767, 85 L.Ed. 1058 (1941).
The 28 U.S.C. § 2675(a) prerequisite of the filing of an
administrative claim and the denial of such claim before a suit
such as this becomes jurisdictionally ripe for this Court is a
valid condition that cannot be waived. Bialowas v. United States,
443 F.2d 1047 (3rd Cir. 1971.); Driggers v. United States,
309 F. Supp. 1377 (D.C. 1970). Likewise the requirements for a valid
claim — that the claim must be in writing and that a sum certain
must be set out — as indicated in 14 C.F.R. § 14.2 are not
unreasonable conditions. Bialowas, supra; Driggers, supra; Jordan
v. United States, 333 F. Supp. 987 (D.C. 1971).
Bialowas, Driggers, and Jordan all involved various degrees of
incompleted forms and in each case the Court granted the
Government's motion to dismiss on the grounds that the
incompleted forms, including the failure to state a sum certain,
were not valid administrative claims in regard to satisfying
28 U.S.C. § 2675(a) requirements.
The facts in Bialowas are indeed quite similar to the
circumstances in our case. In Bialowas plaintiff sustained
property damages and personal injuries when a mail truck collided
with his car.
The plaintiff neither signed or dated his Form 95 and did not
specify the amount of his claim although he did attach repair
estimates and some medical bills. Plaintiff was informed that his
form was incomplete and was provided with a new form which he did
not complete. The Court granted the Government's motion to
dismiss for failure to file a proper administrative complaint. In
Driggers and Jordan the failure to include a sum certain was also
deemed to be fatal to the claim.
In applying these cases to our instance we are compelled to
grant the Government's motion to dismiss.
Mrs. Hlavac did not specify the amount of her claim for
personal injuries and did not date the claim. Upon being informed
of these deficiencies she failed to correct them. Thus the claim
as filed in July of 1970 cannot be considered a proper claim and
consequently the 28 U.S.C. § 2675(a) requirement that an
administrative claim be filed before jurisdiction lies in this
Court has not been complied with. Plaintiff having failed to file
such claim within the two years required by 28 U.S.C. § 2401(b)
is barred by the statute of limitations from doing so at this
The fact that plaintiff may indeed have suffered injuries and
cannot now seek any remedy is a circumstance that this Court is
sympathetic to but cannot consider as a factor in retaining
jurisdiction over this suit. (See Bialowas, supra, 443 F.2d at
1050). It must also be noted that plaintiff had a lawyer
from the outset and cannot claim that she was a simple layman who
did not understand what was required of her.
The Government's motion to dismiss is granted.
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