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DANOWSKI v. UNITED STATES

May 3, 1996

RYAN DANOWSKI, a minor by his guardian ad litem, STANLEY DANOWSKI and STANLEY DANOWSKI in his own right, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Ryan Danowski ("Ryan"), a minor, and his father, Stanley Danowski, filed this action seeking to recover for personal injuries suffered by Ryan as the result of a collision between his bicycle and a United States Postal Service ("Postal Service") vehicle. This Court has jurisdiction under 28 U.S.C. § 1346 (b) and the Federal Tort Claims Act ("FTCA"). *fn1"

 Defendant, The United States of America, has filed a motion to dismiss for failure to state a claim, or, alternatively, for partial summary judgment, raising the following issues: (1) Should the claim of Stanley Danowski for the reimbursement of medical expenses be dismissed for his alleged failure to comply with the notice requirements of the FTCA?, and, (2) Does the Employee Retirement Income Security Act *fn2" ("ERISA") preempt the New Jersey Collateral Source Rule *fn3" which would otherwise preclude plaintiffs from recovering the medical expenses which have already been paid by Stanley Danowski's employer-provided health care reimbursement plan? Because this Court answers the first of these questions in the negative, and the second in the affirmative, the Government's motion will be denied in its entirety.

 I. Facts and Procedural History

 On September 17, 1992, Ryan Danowski was seriously injured when the bicycle he was riding collided with a Postal Service vehicle. The disputed facts surrounding the accident itself are not material to this motion.

 It is undisputed, however, that at the time of the accident, Ryan had health care coverage under the Pfizer Medical Plan (the "Plan"), which Stanley Danowski obtained through his employer. The Plan is a self-funded employee welfare benefit plan governed by ERISA. Medical benefits under the Plan are administered by Metropolitan Life Insurance Co. See Affidavit of Robert M. Silverman, Esq. ("Silverman Aff."), exhibit E.

 The Plan documents submitted by Stanley Danowski in opposition to this motion, contain an exclusion for "services or supplies for which payment or reimbursement is received by or for the account of the individual as a result of a legal action or settlement." Affidavit of Stanley Danowski ("Danowski Aff."), exhibit B at 49. Pursuant to this exclusion, the Plan has made claims for reimbursement of certain sums paid on Ryan's behalf, should there be a recovery in, or settlement of, the instant action. See id. (letter from J. Hickey, dated June 22, 1993; letter from William M. Petrie, dated Nov. 4, 1992); Silverman Aff., exhibit E. Nevertheless, neither the Plan, nor the Plan's administrator, Metropolitan Life Insurance Company, has sought to intervene in this action, and neither is a party to these proceedings.

 On June 25, 1993, a notice of claim was submitted to the Postal Service based on the September 17, 1992 accident. *fn4" Danowski Aff., exhibit A. The claim form was received by the Postal Service on June 30, 1993. See Declaration of Dorothy Donnelly, attachment. Box 2 of the Standard Form 95 ("SF-95"), which seeks to elicit the name and address of the claimant, reads, "Ryan Danowski, a minor by his guardian" and, on a new line, "Stanley Danowski." Danowski Aff., exhibit A. Box 8 of the SF-95 states that the "claimant was struck by a postal vehicle while on his bicycle." The remainder of the SF-95 describes the nature of Ryan's injuries (Box 10), and sets forth a claim for $ 250.00 in property damage, for the value of the bicycle (Box 12g), and a claim for $ 2,000,000.00 for personal injury (Box 12b). Id. Finally, Ryan's accident insurance coverage is described (Box 15), and Box 18 of the SF-95 declares that the "insurer has placed us on notice of a subrogation claim for all medical expenses paid." Id. The SF-95 is signed by Stanley A. Danowski.

 Along with the completed SF-95, counsel for plaintiffs enclosed a copy of the police report of the September 17, 1992 accident, and an itemization of medical expenses which had been incurred in treating Ryan. This itemization of Ryan's medical "Specials" set forth 18 different amounts paid to physicians, physical therapists, hospitals and pharmacies, totalling $ 56,255.78 as of June 25, 1993. Danowski Aff., exhibit A.

 Almost a year later, on June 2, 1994, plaintiffs' counsel was contacted, for the first time regarding this claim, by a Ms. Julia Scott of the Postal Service Claims Division "requesting medical specials." Silverman Aff. P 4. In response to Ms. Scott's request, on June 2, 1994, plaintiffs' counsel sent Ms. Scott a letter, enclosing an up-dated itemization of Ryan's "medical specials" totalling $ 72,889.49, for amounts paid through December, 1993. Silverman Aff. P 3, exhibit D. Plaintiffs' counsel received no further communication from the Postal Service.

 On September 2, 1994, plaintiffs filed their complaint in this action, having allowed far more than the requisite six months to elapse from the time the Postal Service received their notice of claim, on June 30, 1993. *fn5"

 On February 21, 1996, the Government filed its notice of motion "to dismiss the claim of Stanley Danowski for medical expenses pursuant to Fed. R. Civ. P. 12 (b) (1) or alternatively for summary judgment under Rule 56." Defendant's Notice of Motion. *fn6" The Government argues that Stanley Danowski's claim for reimbursement of medical expenses is barred because the SF-95 does not indicate that he, or his insurer, filed a "notice of claim." Simply put, the Government's position is that the SF-95 "does not list Stanley Danowski as a claimant and the injuries listed do not include medical expenses." Letter Brief in Support of United States' Motion to Dismiss, or, alternatively, for Partial Summary Judgment ("United States' Brief") at 3-4. Moreover, according to the Government, even if the claim is not barred by the FTCA, the New Jersey Collateral Source Rule, as embodied in N.J. Stat. Ann. § 2A:15-97, operates to foreclose the recovery of any medical expenses already paid by the Plan on Ryan's behalf.

 II. Standard for Dismissal Under Rule 12 (b) (1).

 The Government has moved to dismiss Stanley Danowski's claim for reimbursement of medical expenses for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12 (b) (1). This Court must, as a threshold matter, conduct an independent analysis to determine whether subject matter jurisdiction exists. Fed. R. Civ. P. 12 (h) (3). A district court may also grant a defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12 (b) (1), "based on the legal insufficiency of a claim." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408 (3d Cir.) (quoting Bell v. Hood, 327 U.S. 678, 683, 90 L. Ed. 939, 66 S. Ct. 773 (1946)), cert. denied, 501 U.S. 1222 (1991).

 On a Rule 12 (b) (1) motion, the plaintiff bears the burden of persuading the Court that subject matter jurisdiction exists. Id. at 1409. In actions brought under the FTCA, each plaintiff must persuade the court that he or she has complied with the exhaustion requirement of the FTCA prior to filing suit. McNeil v. United States, 508 U.S. 106, 109, 124 L. Ed. 2d 21, 113 S. Ct. 1980 (1993). This requirement includes the proper presentation of a claim to the appropriate federal agency and a demand therein for a sum certain. Id. at 107 n.1 (citing statute).

 III. Standard for Summary Judgment

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Hersh v. Allen Products. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). The district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1996 WL 144405 at *5 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact the Court must draw all inferences from the underlying facts in favor of the non-moving party. See Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Pollock v. American Telephone & Telegraph Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

 For the purposes of this motion, the parties do not dispute the facts outlined above. Thus, this motion presents only questions of law and is ripe for summary judgment. Nation Wide, Inc. v. Scullin, 256 F. Supp. 929, 932 (D.N.J. 1966).

 IV. Analysis

 A. The Jurisdictional Requirements of the FTCA

 Because the FTCA constitutes a limited waiver of the sovereign immunity of the United States, its provisions must be strictly construed. Pascale v. United States, 998 F.2d 186 (3d Cir. 1993). The Government contends that only the claim filed on behalf of Ryan Danowski, and not the claim of Stanley Danowski, or that of the "Insurer [the REAL party in interest in recovering the sums expended for medical treatment]" was properly presented to the Postal Service in this case. United States Brief at 3. *fn7" Because a properly presented administrative claim is a jurisdictional prerequisite to the filing of a FTCA suit in this Court, the Government argues that any claim by Stanley Danowski for reimbursement of medical expenses must fail. *fn8" See, e.g., Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995) (timely administrative presentation of a claim is a jurisdictional prerequisite to suit under the FTCA) (citation omitted); Cadwalder v. United States, 45 F.3d 297, 299 (9th Cir. 1995) (FTCA administrative claim prerequisite is jurisdictional); Livera v. First National ...


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