McDavid v. U.S.

292 F.Supp.2d 871

Naomi MCDAVID, on her own behalf and as the personal representative of Oney McDavid, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV.A. 3:01-0760.

United States District Court, S.D. West Virginia. Huntington Division.

November 21, 2003.

Stuart Calwell, Esquire, David H. Carriger, The Calwell Practice, Charleston, WV, for Plaintiff.

Stephen M. Horn, Assistant U.S. Attorney, Charleston, WV, Ray L. Hampton, II, Esquire, Special Assistant U.S. Attorney, Huntington, WV, for Defendant.

ORDER

CHAMBERS, District Judge.

Currently pending before the Court are two interrelated motions by the Government. In its first motion, the Government requests the Court dismiss Plaintiff Naomi McDavid's Amended Complaint for failure to state a claim upon which relief can be granted and/or for summary judgment. In its second motion, the Government asks the Court to dismiss Mrs. McDavid's wrongful death and loss of consortium claims for lack of subject matter jurisdiction. Upon review, and for the following reasons, the Court DENIES both motions.

The facts relevant to the Government's motion appear to be mostly undisputed. On July 11, 2000, Oney McDavid, Mrs. McDavid's husband, died of lung cancer. On July 14, 2000, Mrs. McDavid filed an administrative claim with the Veterans Administration under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 — 2680, for decedent's injuries and wrongful death.¹ On November 29, 2001, this Court entered an Order dismissing Mrs. McDavid's wrongful death claim without prejudice because she had not properly completed the administrative claim form for wrongful death.² In that Order, the Court also certified the following question to the West Virginia Supreme Court:

Whether a decedent's beneficiaries may recover damages for a decedent's pain and suffering, incurred between the time of injury and the time of death, where the injuries result in death but the decedent did not institute an action for personal injury prior to his or her death?

McDavid v. United States, 213 W.Va. 592, 584 S.E.2d 226, 227 (2003). On July 3, 2003, the West Virginia Supreme Court answered the certified question in the affirmative. Id. In the meantime, on December 20, 2001, Mrs. McDavid refiled her administrative claim form for wrongful death.³ On the claim form, Mrs. McDavid seeks wrongful death damages in the amount of $2,500,000.

Now, over three years since the original administrative claim form was filed and nearly two years after the wrongful death claim was filed, the Government moves to dismiss the action, or be granted summary judgment, on the grounds that Mrs. McDavid was not the duly appointed personal representative of her husband as required by law. See 28 C.F.R. § 14.2.⁴ Instead, the decedent's children, William Terry McDavid and Barbara J. Kozee, were named as co-executors of their father's estate.⁵ From the documents attached to the Government's motion, it appears that the decedent's children were confirmed as co-executors on July 31, 2000, after Mrs. McDavid filed the original administrative claim, and the final settlement of the estate was completed on December 18, 2000, before Mrs. McDavid filed the wrongful death administrative claim. See United States' Motion to Dismiss Wrongful Death Claim and Loss of Consortium Claim for Lack of Subject Matter Jurisdiction, Exhibits 1 & 2.

In her Response, Mrs. McDavid admits that she was not the appointed personal representative of her husband at the time she filed the administrative claims. Nevertheless, she argues her claims should not be dismissed because she was declared the administratrix of her husband's estate on October 20, 2003, for the purpose of pursuing this lawsuit, and such appointment should be deemed retroactive to the date of the original claims. In support of her argument Mrs. McDavid cites Wozniak v. United States, 701 F.Supp. 259 (D.Mass. 1988).

In Wozniak, the court was confronted with a similar issue as exists here. Specifically, a widow filed a claim with the Veterans Administration claiming that her husband was treated negligently at one of its medical facilities and such treatment resulted in his death. 701 F.Supp. at 260. However, at the time she filed the claim, the claimant was not appointed as the administratrix of her husband's estate. Id. Therefore, the Veterans Administration denied her claim because of her failure to provide documentation of her authority as administratrix. Id. After a second denial upon reconsideration, the claimant filed suit in the district court under the FTCA. Id.

In response to the lawsuit, the Government argued, as it does here, that claimant failed to meet the jurisdictional requirements of the FTCA under 28 U.S.C. § 2675 and 28 C.F.R. § 14.3(c) because she was not appointed as the administratrix during the two-year period she had to file her claim.⁶ These provisions provide that a wrongful death claim must be brought by the executor or administrator of the estate, or by another "person legally entitled to assert such a claim in accordance with applicable State law." 28 C.F.R. § 14.3(c), in part.⁷ As clearly stated in § 14.3(c), and as recognized by the court, state law controls who is entitled to assert a wrongful death claim. 701 F.Supp. at 260. In addition, the court recognized that the purpose of the FTCA "was intended to afford injured parties an opportunity for recovery "`as a matter of right,'" and not to `put up a barrier of technicalities to defeat their claims[.]'" Id. (quoting Lopez v. United States, 758 F.2d 806, 809 (1st Cir.1985)).⁸ With these tenants in mind, the court considered whether the widow's later appointment as administratrix could "relate back" to the time she filed her administrative claim.⁹

In looking at Massachusetts law, the court found the doctrine of relation back has long been recognized in that state. 701 F.Supp. at 261. "The doctrine stands for the proposition that the actions of an individual, taken before appointment as administratrix of an estate, are made valid as the acts of a duly-appointed administratrix retrospectively upon the later appointment of the individual as administratrix." Id. Accordingly, the Wozniak court found that the decedent's widow satisfied the requirement of § 14.3 because her later appointment as administratrix related back to the filing of her claim. Id. See also Pflugh v. United States, 124 F.Supp. 607 (W.D.Pa.1954) (applying relation back doctrine under Pennsylvania law to widow who filed claim before she was appointed as administratrix). The court further found that such relation back did not prejudice the Government because "[i]t had notice of the claim within the two-year period and an opportunity to settle the matter." Id. 261-62 (footnote omitted).

In the present case, Mrs. McDavid argues that the same relation back principle applies under West Virginia law. In Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), the West Virginia Supreme Court addressed the issue of whether a wrongful death suit could be instituted by either an administrator of an estate whose term as administrator had expired prior to the suit being filed, or by a decedent's widow who was the decedent's only heir but who was never named as the administratrix. 475 S.E.2d at 419-20. In beginning its analysis, the court first found that it goes without question under West Virginia law "`that a wrongful death action must be brought by the personal representative of a decedent's estate.'" Id. at 424 (quoting Trail v. Hawley, 163 W.Va. 626, 259 S.E.2d 423, 425 (1979); also citing W. Va.Code § 55-7-6 (1976) (other citation omitted)). Although the court recognized that a personal representative is a nominal party in terms of recovery (because any recovery passes to the statutory beneficiaries), such person is a real party in interest under West Virginia Code § 55-7-6 (1992). Id. The court then found that under Rule 17(a) of the West Virginia Rules of Civil Procedure, a case should not be dismissed "if the basis for the dismissal is that the action was not prosecuted by the real party in interest, until a reasonable opportunity is provided to allow the proper real party in interest to maintain this action." Id. at 424-25 (citing W. Va. R. Civ. P. 17(a)).¹⁰ In the case before it, the court determined that the former administrator did not desire to pursue the wrongful death claim and, therefore, the court remanded the action back to the lower court and directed the County Commission to grant the widow's request to be substituted as the administratrix pursuant to Rule 17(a). Id. 425-26. Thereafter, the court stated in footnote 19 that "once a person is qualified as the personal representative ..., then this action shall continue in the same fashion as if it had been commenced in the name of that personal representative on the date that civil action was initially filed[.]" Id. at 426 n. 19.

In response to Mrs. McDavid's arguments, the Government asserts that Wozniak and Richardson do not give this Court subject matter jurisdiction because they are contrary to the Fourth Circuit's holding in Ahmed v. United States, 30 F.3d 514 (4th Cir.1994). The Court finds Ahmed, however, is distinguishable from the case at hand. In Ahmed, the plaintiffs' insurer filed an administrative claim for property damage resulting from a car accident with a Navy employee. 30 F.3d at 515. The plaintiffs authorized their insurer to pursue their deductible for damages done to the vehicle, but they never authorized the insurer to pursue a personal injury claim. Id. at 515, 517. The insurer noted on the administrative claim form that there was a potential personal injury claim, but it did not specify an amount. Id. 515-16. Thereafter, the insurer settled its claim and informed the Navy that it would not be pursuing any other claim. Id. at 516.

More than two and one-half years after the car accident, the plaintiffs filed suit under the FTCA. Id. At...