United States District Court, C.D. Illinois, Springfield Division
DAVID PETERMAN, AS ADMINISTRATOR OF THE ESTATE OF DEANNA PETERMAN, Deceased, and DAVID PETERMAN, Plaintiff,
THE UNITED STATES OF AMERICA, Defendant.
SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Defendant United States of America's Motion to Dismiss Counts IV, V, VI, VIII, and X of Plaintiff's Complaint (d/e 9) and Motion to Strike Prayer for Attorney's Fees (d/e 10). The Motion to Dismiss is DENIED. Plaintiff exhausted his administrative remedies with regard to his claims alleging willful and wanton conduct and intentional infliction of emotional distress. The Motion to Strike Prayer for Attorney's Fees is also DENIED. Plaintiff could have a basis for attorney's fees under 28 U.S.C. § 2412(b) should he prevail and should the Defendant act in bad faith.
In September 2013, Plaintiff David Peterman, as Administrator of the Estate of Deanna Peterman and David Peterman, individually, filed a Complaint against the United States of America. The Complaint alleges that on November 15, 2011, William Gregg, an agent and employee of the Federal Deposit Insurance Corporation ("FDIC") acting in the course and scope of his employment, was operating a motor vehicle traveling westbound on Route 125 in Beardstown. Mr. Gregg's vehicle crossed into Plaintiff's lane of traffic and struck the front of Plaintiff's vehicle, which had been traveling eastbound on Route 125. Plaintiff's wife, Deanna Peterman, was a passenger in Plaintiff's vehicle, and she suffered serious injuries that resulted in her death. Plaintiff suffered extensive physical injuries and property damage.
On August 12, 2012, Plaintiff's attorney submitted a Standard Form 95 ("Administrative Claim") to the FDIC. On September 4, 2012, Plaintiff's attorney submitted an Amended Standard Form 95 to the FDIC ("Amended Administrative Claim"). Although not attached to the Complaint, the Court considers the Administrative Claim, Amended Standard Form 95, and attachments thereto submitted by Defendant because the Court can take judicial notice of matters in the public record and can consider matters attached to and referred to in the complaint that are central to the plaintiff's claim. See Palay v. United States , 349 F.3d 418, 425 n. 5 (7th Cir. 2003) (finding that the district court could examine the claim form when resolving a motion to dismiss under Rule 12(b)(6) because the court can take judicial notice of matters in the public record); Hecker v. Deere & Co. , 556 F.3d 575, 582 (7th Cir. 2009) (holding that a court can consider matters attached to and referred to in the complaint that are central to the plaintiff's claim).
The Administrative Claim and Amended Administrative Claim contained the following "Basis of Claim:"
This is a claim for personal injury, survival, family expense, negligent infliction of emotional distress, and wrongful death brought by David Peterman, individually and as Administrator of the Estate of Deanna Peterman. On November 15, 2011, Mr. Peterman was traveling Eastbound on Route 125 approximately 613 feet east of Clayton Road in Beardstown, Illinois. At the same time, William Greg[g], an employee of the Federal Deposit Insurance Corporation, was traveling Westbound on Route 125 approximately 613 feet east of Clayton road when he crossed over the center lane and struck the front of Mr. Peterman's vehicle. As a result of the negligence of Mr. Gregg, David Peterman was severely and permanently injured and Deanna Peterman suffered grievous injuries which resulted in her death. This action is brought for damages at law for personal injury, survival, family expense, negligent infliction of emotional distress, and wrongful death suffered by David Peterman, Individually, and as Administrator of the Estate of Deanna Peterman, deceased, including all next of kin. See attached.
See d/e 23-1, p. 3 (Bates stamped "USA 00003"); d/e 23-3, p. 52 (Bates stamped "USA 00358").
Plaintiff attached the following to the original Administrative Claim: proof of representation, proof of property damage, Deanna Peterman's death certificate, accident reports, medical bills, photographs, and prior litigation materials, which included an April 2012 complaint filed against William Gregg in state court. See d/e 23-1(Bates stamped "USA 00001") (letter identifying the attachments).
In the section of the claim form asking about the nature and extent of the injury, Plaintiff asserted he suffered from injuries to his chest, penis, leg, head, and back, in addition to post-traumatic-stress syndrome and depression. Deanna Peterman suffered multiple traumatic injuries and pain, suffering, and agony that preceded her death. Plaintiff sought damages totaling $4, 474.882.50, which consisted of $10, 359.84 for property damage, $3, 464, 522.66, for personal injury damages, and $1 million for wrongful death. See d/e 23-3, p. 52 (Bates stamped "USA 00358").
On September 6, 2013, Plaintiff filed the Complaint in this Court pursuant to the provisions of the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 1346(b); 28 U.S.C. §§ 2671-2680 (addressing tort claim procedures). The Complaint contains six claims brought by Plaintiff as administrator of the estate of Deanna Peterman: Wrongful Death-Negligence (Count I); Survival-Negligence (Count II); Family Expense-Negligence (Count III); Wrongful Death-Willful and Wanton Conduct (Count IV); Survival-Willful and Wanton Conduct (Count V); and Family Expenses-Willful and Wanton Conduct (Count VI). Plaintiff brings four claims on his own behalf: Comparative Negligence (Count VII); Willful and Wanton Conduct (Count VIII); Negligent Infliction of Emotional Distress (Count IX); and Intentional Infliction of Emotional Distress (Count X). Plaintiff seeks money damages in the amount of $4, 474.882.50. In addition, Plaintiff seeks "recovery of all costs and any recoverable attorneys' fees incurred by Plaintiff in this civil action[.]" Compl., Prayer for Relief, p. 24.
II. JURISDICTION AND VENUE
This Court has subject matter jurisdiction because Plaintiff's claims are based on federal law. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"). Venue is proper because the events giving rise to the claim occurred in Cass County. See 28 U.S.C. § 1402(b) (a civil action against the United States under 28 U.S.C. § 1346(b) may only be brought in the judicial district where the plaintiff resides or where the act or omission ...