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August 25, 1994

JIM BREWER, Special Administrator of the Estate of NORMAN BREWER, Deceased, Plaintiff,

The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the motions for leave of court to amend the complaint of the Estate of Norman Brewer and the Estate of Randy White (collectively the "Estates"). *fn1" For the following reasons, the motions are granted.


 Norman Brewer ("Brewer") and Randy White ("White"), of AAA Anthony's Cleaning Service, died on February 2, 1989, while they were stripping the men's washroom tile on the twenty-first floor of the Dirksen Federal Building. Brewer and White were cleaning the washroom floors with a chemical solution which asphyxiated them. The Estates properly filed administrative claims with the General Services Administration ("GSA") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680. Both claims were principally based on negligence theories. After the GSA denied the claims, the White and Brewer Estates filed suits against the United States of America ("Government") in March 1990 and January 1991, respectively. The two cases have not been consolidated. The Government, in turn, filed a third-party complaint against the contractor that employed Brewer and White and against the manufacturer of the chemical solution used.

 Two years after the suits were filed and after the close of discovery, the Estates seek to amend their complaints with a count alleging that the Government's conduct was willful and wanton. The Government objects to the Estates' proposed amendment.


 Federal Rule of Civil Procedure 15(a) provides that after a responsive pleading is filed, a party must seek leave of court to amend its pleading. Rule 15(a) provides that courts should grant leave to file an amended pleading freely when justice so requires. Fed. R. Civ. P. 15(a). Allowing an amendment, however, is inappropriate where it is futile. Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991). It is within the sound discretion of the district court whether to grant a motion to amend. Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990).

 The Government presents two arguments to support its position that the court should deny the Estates' leave to file their amended complaints. First, the Government contends that the court lacks jurisdiction insofar as the administrative claims did not contain sufficient allegations to give rise to a willful and wanton count. Second, the Government argues that the FTCA prohibits application of the willful and wanton doctrine given the doctrine's punitive nature.

 The Government's potential liability arises pursuant to the FTCA. The FTCA waives the sovereign immunity of the United States to tort suits and allows it to be sued as a private individual would be sued in the state where the injury occurred. 28 U.S.C.A. § 2674 (Supp. 1994). The United States can be liable only to the extent that it has waived immunity. United States v. Orleans, 425 U.S. 807, 814, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976). Congress has allowed the United States to be sued where its employees cause property loss or personal injury due to the employees' negligent or wrongful acts or omissions. *fn3" 28 U.S.C.A. § 2675(a) (Supp. 1994). However, to bring a lawsuit against the United States the injured party must first present a claim to the appropriate federal agency, which must review and deny the claim. Id. Thus, an FTCA suit may only be grounded in claims that have already been presented to, and denied by, the federal agency. See Rise v. United States, 630 F.2d 1068, 1071 (5th Cir. 1980).

 Presenting a claim to a federal agency is a condition precedent to a federal court's jurisdiction over an FTCA suit. Id. The Court of Appeals for the Seventh Circuit has determined that the presentment requirement of 28 U.S.C. § 2675(a) is comprised of two elements: (1) giving sufficient notice to investigate the claim, and (2) estimating a sum certain. Charlton v. United States, 743 F.2d 557, 559 (7th Cir. 1984); see also Santiago-Ramirez v. Secretary of Dep't of Defense, 984 F.2d 16, 19 (1st Cir. 1993). As guidance, the court refers to the Court of Appeals for the Eighth Circuit which has held that the first element above is satisfied where both the claimants and the nature of the claims are identified. Farmers State Sav. Bank v. Farmers Home Admin., 866 F.2d 276, 277 (8th Cir. 1989).

 In the case sub judice, the Government asserts that the court lacks jurisdiction to adjudicate the Estates' willful and wanton counts because that theory was not sufficiently presented in the Estates' administrative claims. The court disagrees. The Estates sufficiently presented their claims to the GSA. The claims particularly estimated the damages, satisfying the second element of Charlton, 743 F.2d at 559. In addition, the Estates' claims, although sounding in negligence, gave sufficient notice to the GSA of the significant facts to warrant the addition of a willful and wanton count. The Estates' new count arises out of the same transaction and occurrence as the initial claim, and the claim accurately described the nature of the circumstances surrounding the claim. Furthermore, the Government is charged with being aware of all potential causes of action that may arise from such set of facts. In Illinois, the doctrines of comparative fault and willful and wanton misconduct became intertwined over a decade ago when comparative fault was introduced. Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886, 52 Ill. Dec. 23 (Ill. 1981) (adopting the theory of pure comparative fault) *fn4" The Government cannot be heard to say that they were not aware of the mechanics of the willful and wanton theory as applied in a comparative fault jurisdiction, given that the two theories have existed together in Illinois' body of law for over a decade. Therefore, the Government received sufficient notice to thoroughly investigate the matter and ascertain its potential liability. Accordingly, the court has jurisdiction to consider the Estates' willful and wanton counts.

 The Government's second argument for denying the Estates' motions for leave to file the amendments centers on the concept of "punitive damages" as defined by the statute. 28 U.S.C.A. § 2674 (Supp. 1994). Section 2674 specifically prohibits the imposition of punitive damages against the United States, providing that it "shall not be liable for interest prior to judgment or for punitive damages." Id. The Government's concern stems from the Illinois rule, which originated in Chicago & Miss. R.R. v. Patchin, 16 Ill. 198 (1854), that plaintiff's contributory negligence may not be considered when defendant's conduct is found to be willful and wanton. The Government realizes that if the Estates were allowed to plead and prove that the Government's conduct was willful and wanton, then the plaintiffs' contributory negligence, which otherwise would be balanced against the defendant's negligence, would be deemed irrelevant. Neither the contributory negligence of Brewer nor that of White, if found to exist, could be used to offset any award. In other words, the willful and wanton count, if established deprives the Government of the ability to offset an award with any comparative negligence of Brewer or White. The Government concludes that such a denial amounts to punitive damages. To resolve this issue, the court must analyze both the concept of punitive damages and the doctrine of willful and wanton misconduct.

 The definition of the term "punitive damages" as used in 28 U.S.C. § 2674 (1988) is a federal question. Molzof v. United States, 502 U.S. 301, 112 S. Ct. 711, 715, 116 L. Ed. 2d 731 (1992). In Molzof, the United States opposed a damage award for future medical expenses and for loss of enjoyment of life. Id. at 714. The United States argued that all awards which were not "compensation" for actual loss were "punitive damages." Id. at 715. The Molzof Court disagreed reasoning that "Section 2674 prohibits awards of 'punitive damages,' not 'damage awards that may have a punitive effect.'" Id. The Court preferred the petitioner's definition of punitive damages: the term "punitive damages" ...

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