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Cupp v. United States

United States District Court, S.D. Georgia, Maycross Division

November 24, 2014



LISA GODBEY WOOD, Chief District Judge.

Presently before the Court is the United States of America's Motion for Summary Judgment. See Dkt. No. 51. Upon due consideration, Defendant's motion is DENIED.


Plaintiff Timothy Cupp seeks to recover under the Federal Tort Claims Act ("FTCA") for injuries that he received after he was allegedly struck by a forklift driven by a National Guardsman in Freeport, Texas. Dkt. No. 16, ¶¶ 3-4. Plaintiff Kathy Cupp, Timothy Cupp's wife, seeks recovery for loss of consortium. Dkt. No. 16, ¶ 11. The National Guard members present at the scene of the accident were working on a Federal Emergency Management Agency ("FEMA") project responding to Hurricane Ike. Dkt. No. 16, ¶ 4. Timothy Cupp testified that the forklift driver operated the forklift recklessly. Dkt. No. 17-1, ¶ 4. He also expressed hearing from other National Guard employees that the person operating the forklift was not a certified forklift truck driver and that the "forklift truck driver had been doing circles' while operating of the forklift truck, as if the forklift truck were a toy or all terrain vehicle." Dkt. No. 17-1, ¶ 7. According to Timothy Cupp, he received back injuries requiring multiple surgeries and ongoing medical treatment, and he is no longer able to work. Dkt. Nos. 16, ¶¶ 7-8; 52, ¶¶ 48-67.

On September 17, 2010, Plaintiffs mailed Standard Form 95 ("SF-95") claims regarding their injuries to FEMA and the National Guard Bureau. Dkt. No. 14, Ex. 1. Plaintiffs maintain that the forms were faxed and received on September 17 and that a courier service served the papers on September 20, 2010. Dkt. No. 17-2. Copies of the form in the record contain evidence of receipt on September 20, 2010. Dkt. Nos. 52-21; 57-3. The United States, though somewhat equivocally, agrees that an "unaddressed" form-a form with no agency name listed in box 1 - was received by FEMA on September 20, 2010. See Dkt. Nos. 14, p. 3, n. 5; 51-1, pp. 13-14. In March 2011, the Army Claims Office wrote to Plaintiffs' counsel expressing that the claim was not timely, Kathy Cupp needed to file and sign her own claim, and Plaintiffs' counsel needed to show proof of his representation of both Timothy and Kathy Cupp. See Dkt. No. 52-30. Plaintiffs' counsel maintains that he responded to this letter, but the Army states that it never received anything in response to its letter. Dkt. No. 17-2; Dkt No. 21-1. The Army Claims Office denied Plaintiffs' claim on July 19, 2011, citing the alleged technical deficiencies with Plaintiffs' claim. Dkt. No. 52-31.


Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The court must view the evidence and draw all inferences in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). To discharge this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. The burden then shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

Federal courts have limited jurisdiction. Ishler v. Internal Revenue, 237 F.App'x 394, 395 (11th Cir. 2007) (citing Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). The plaintiff bears the burden of establishing the court's subject matter jurisdiction. Id. (citation omitted). In the consideration of a Federal Rule of Civil Procedure 12(b)(1) factual challenge to subject matter jurisdiction that is not intertwined with the merits of the claim, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." Lawrence v. Dunbar, 919 F.2d 1525, 1529-30 (11th Cir. 1990) (citing Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).


The United States contends that there are no genuine issues of material fact in this case and moves for summary judgment based on three arguments. First, the United States argues that this Court lacks subject matter jurisdiction over Plaintiffs' claims based on Plaintiffs' failure to exhaust their administrative remedies. In that regard, the United States takes issue with the way in which Kathy Cupp's ("Mrs. Cupp") loss of consortium claim was presented administratively and further contends that Plaintiffs failed to act within the two-year statute of limitations established by the FTCA. 28 U.S.C. § 2675(a). Second, the United States asserts that Plaintiffs' claims are barred by the FTCA's analogous private liability requirement. Finally, the United States maintains that Plaintiffs failed to meet their burden of proof as to their claims of negligence. Dkt. No. 51-1, p. 2.

I. Jurisdiction

a. Kathy Cupp's Loss of Consortium Claim

Where there are multiple claimants in an FTCA action, each claimant must satisfy the jurisdictional prerequisite of filing a proper claim with an administrative agency prior to instituting a federal suit. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir. 2008). The notice requirement is minimal and designed to inform the agency of the circumstances of the accident, so it may investigate the claim and respond to it by settlement or defense. Adams v. United States, 615 F.2d 284, 289 (5th Cir. 1980).

The Eleventh Circuit has found that the FTCA's jurisdictional requirements were not met where purported claimants' names and the nature of their claims were not listed on the original administrative claim filed. Turner, 514 F.3d at 1202. In Turner, however, the Eleventh Circuit deemed that the SF-95 form was deficient because it did not list the disputed claimants, the parents of the person on the form, and it did not specify the individual amounts of the non-listed persons' claims. Id. at 1201. The Turner court stated that multiple claimants may submit one form containing all claims in certain circumstances and cited Campbell v. United States, a Northern District of Georgia case, as a case in which such a method would be permitted. Id. (citing Campbell, 795 F.Supp. 1118, 1121-22 (N.D.Ga. 1990)). In Campbell, the court determined the notice requirement was met because all of the information necessary for investigating the claim was provided in the claim form, and the government treated ...

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