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PARDY v. UNITED STATES

December 1, 1983

SUE PARDY, ETC., PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Foreman, Chief Judge:

MEMORANDUM AND ORDER

Before the Court is defendant's Motion to Dismiss or, in the Alternative, Summary Judgment filed July 19, 1983. The government argues this action is barred by the two year federal statute of limitations pursuant to 28 U.S.C. § 2401(b).

The facts that are relevant to this motion are undisputed. In November of 1978, James Pardy was admitted to the Scott Air Force Base Medical Center for treatment of a urinary tract infection. On November 6, 1978, the attending radiologist gave Mr. Pardy an injection of Conray-60, a contrast medium. A few minutes after completion of the injection, Mr. Pardy suffered a severe reaction to the contrast medium and went into anaphylactic shock while suffering both respiratory and cardiac arrest. Mr. Pardy remained in a comatose state until November 21, 1978, at which time he became aware of his surroundings and of the events of November 6, 1978. On December 6, 1978, Mr. Pardy was discharged.

On November 10, 1980, the Pentagon received a letter from Leroy M. Steiner, Attorney at Law, purporting to be an administrative claim. An SF 95 Administrative Claim Form was submitted on March 10, 1981.

The government's argument for dismissal of this action is twofold. First, the government contends that the letter sent to the Pentagon by Attorney Steiner does not constitute an administrative claim. Second, even if a proper administrative claim was filed on November 10, 1980, the two year statute of limitations ran on Mr. Pardy's claim on November 6, 1980.

I

The government argues that the correspondence by Attorney Steiner is defective because it fails to include evidence of authority to present the claim as required by 28 C.F.R. § 14.3(e). Section 14.3(e) provides:

  A claim presented by an agent or legal
  representative shall be presented in the name of
  the claimant, be signed by the agent or legal
  representative, show the title or legal capacity
  of the person signing, and be accompanied by
  evidence of his authority to present a claim on
  behalf of the claimant, as agent, executor,
  administrator, parent, guardian or other
  representative.

Attorney Steiner's failure to file a Standard Form 95 form on November 10, 1980, is not relevant because the regulations explicitly permit the use of the Form or other written evidence of his authority to file a claim for Mr. Pardy. See 28 C.F.R. § 14.2.

The Court finds that plaintiff properly filed an administrative claim on November 10, 1980. First, the requirements of 28 C.F.R. § 14.3(e) are not jurisdictional since the regulation was promulgated pursuant to the settlement section of the Federal Tort Claims Act, 28 U.S.C. § 2672, and not the jurisdictional section, 28 U.S.C. § 2675(a). Graves v. United States Coast Guard, 692 F.2d 71, 74-75 (9th Cir. 1982). Moreover, even if § 14.3(e) was jurisdictional, plaintiff satisfied the requirements in this case. On November 10, 1980, Attorney Steiner filed a letter and a Notice of Claim. The letter identifies Mr. Steiner as an Attorney at Law who represents James Pardy in his Federal Tort Claim. In that representative capacity, Attorney Steiner signed the letter. The Court finds that this letter adequately sets out Attorney Steiner's authority to file a claim for Mr. Pardy.

II

In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Court addressed when a claim accrues under 28 U.S.C. § 2401(b). The Court of Appeals in Kubrick had decided that a claim does not accrue until the injured party is 1) aware of his injury, 2) its cause, and 3) that the doctor who caused the injury was negligent. The Supreme Court removed the third prong from the analysis holding that Congress did not intend that accrual of a claim "must await awareness by the plaintiff that his injury was negligently inflicted." Id. at 123, 100 S.Ct. at 360. Therefore, plaintiff's claim for relief accrued when he was aware of his injury and its cause.

Since Mr. Pardy was in a coma until November 21, 1978, he could not appreciate his injury or its cause until at least that date. Therefore, under Kubrick the two year statute of limitations began to run on November 21, 1978. The government seeks to avoid this result by arguing, (1) that the discovery rule is inapplicable to ...


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