Re: Loss of Consortium Claim

I. Introduction

We start with the basic law. The Federal Tort Claims Act bars a tort claim against
the United States unless the claim is presented to the appropriate federal agency within
two years after such claim accrues. 28 U.S.C. § 2675(a) Another section of the
Act deprives the Court of jurisdiction over any cause of action unless the claim has been
properly presented to the appropriate federal agency and that agency either has denied the
claim or failed to act on it within a six-month period. 28 U.S.C. § 2401(b). Congress’
intent with respect to the presentment requirement was primarily to put the appropriate
agency on notice of the legal claims pending against it and to facilitate settlement where
appropriate. See, e.g., GAF Corp. v. United States, 818 F.2d 901, 918-19 (D.C. Cir.
1987).

Many courts have held that requirement is met where the administrative claim
filed by the injured spouse includes information about the non-injured spouse. Emery v.
United States, 920 F. Supp. 788, 791 (W.D. Mich. 1996) (spouse not listed as claimant,
but it was clear from the face of the form that spouse was alleging loss of
consortium). See also Loper v. United States, 904 F. Supp. 863, 865 (1995) (spouse listed
as claimant on administrative claim). At least one court in the Western District of
Michigan, applying Michigan law, has specifically held that the requirement for filing an
administrative claim extends to a spouse claiming loss of services and
consortium. Stephan v. United States, 490 F. Supp. 323, 324 (W.D.Mich. 1980). See
also Fuller v. Hillyard, 2001 U.S. Dist. LEXIS 123, 2001 WL 6725 (E.D. La.)
(concluding that the fact that the claimant brings a derivative claim for loss of
consortium does not excuse her from this jurisdictional requirement. Thus, the Court
found that lacked subject matter jurisdiction over the loss of consortium claim of Cathy
Kirklin).See also Rispoli v. United States, 576 F. Supp. 1398, 1403 (E.D.N.Y. 1993)
(spouse not listed in SF95, only in separate affidavit and no response to government's
request for sum certain); Fol v. United States, 548 F. Supp. 1257, 1258 (S.D.N.Y.
1982) (spouse not listed as claimant in SF95); Wisner v. United States, 154 F.R.D. 39, 40
(N.D.N.Y. 1994) (same); Heaton v. United States, 383 F. Supp. 589, 591 (S.D.N.Y.
1974) (spouse did not sign SF95 as claimant); Dondero v. United States, 775 F. Supp.
144, 146 (D. De. 1991) (loss of consortium mentioned in claim, but spouse not listed as
claimant). In addition, in Rucker v. United States Department of Labor, 798 F.2d 891
(6th Cir. 1986), the Sixth Circuit upheld a dismissal of the claims of a plaintiff's wife and
children brought under the FTCA, stating that they had not filed an administrative claim,
and that identification of the claimant's spouse on the form filed with the administrative
agency was not sufficient to fulfill the jurisdictional requirements of 28 U.S.C. §
2675(a). Id. at 893. See also Stephan v. United States, 490 F. Supp 323, 324 (E.D. Mich
1980) (“The requirement of filing an administrative claims extends to a claim asserted by
a plaintiff's spouse for loss of services and consortium. . . .”); Willie v. United
States, 1993 U.S. Dist. LEXIS 7204 (N.D.N.Y. 1993) (noting that, notwithstanding the
fact that the Government had adequate notice of Cecil Willie's claim for his direct
personal injuries, the same cannot be said of Victoria Willie's claim for loss of

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consortium. It is settled that where a claimant fails to specifically state an amount of
damages for a loss of consortium claim, an indispensable prerequisite under the
regulations is lacking and the court is therefore deprived of subject matter jurisdiction to
entertain that claim. The Willie Court also found that:

In the case at bar, plaintiffs' Original Claim contained only one monetary
figure, presumably for personal injuries sustained by Cecil Willie, the
claimant involved in the accident. No separate sum certain was listed for
Victoria's derivative claim. As such, it cannot be said the Government was
placed on sufficient notice of the amount of her claim and the
jurisdictional requirements are therefore not satisfied. Victoria
Willie's loss of consortium claim is therefore dismissed. Id. at *26.

See also, Dondero v. U.S., 775 F. Supp. 144, 149-150 (D.Del. 1991); Rispoli v.
U.S., 576 F. Supp. 1398, 1403 (E.D.N.Y. 1983), aff'd, 779 F.2d 35 (2d Cir. 1985) Heaton
v. U.S., 383 F. Supp. 589, 591 (S.D.N.Y. 1974) (all refusing to recognize a claim for
derivate loss of consortium claim where the claimant failed to bring to the attention to the
Government its claim in the Standard Form 95).

Indeed, most courts have not have been receptive to the idea that a loss of
consortium claim. The US District Court for the District of Colorado refused to recognize
a distinct cause of action for the plaintiff’s wife in an FTCA on the theory that the
husband’s filing of an administrative claim was insufficient to notify the Government of
his wife’s loss of consortium claim. Benjamin v United States of America, 85 F. Supp. 2d
1034,1037-1038 (Dist. Colo. 2000); see also, Lee v United States, 980 F.2d 1337, 1341
(10th Cir. 1992); Mank v United States, 830 F.2d 831 (8th Cir. 1987). This holding is in
accord with rulings of many other districts. See, e.g., Hallett v. U.S. Dep't of Navy, 850 F.
Supp. 874 (D.Nev. 1994);Davis v. United States, 834 F. Supp. 517 (D.Mass.
1993); Richardson v. United States, 831 F. Supp. 657 (N.D.Ind. 1993); Rode v. United
States, 812 F. Supp. 45 (M.D.Pa. 1992); Dondero v. United States, 775 F. Supp. 144
(D.Del. 1991); Allen v. United States, 625 F. Supp. 841 (D.D.C. 1986); Susanin v. United
States, 570 F. Supp. 25 (W.D.Pa. 1983); Scalia v. United States, 475 F. Supp. 1040
(S.D.N.Y. 1979)(all holding that spouse’s failure to file an administrative claim regarding
loss of consortium was fatal to the ability to bring the claim in district court).

Another recent case is from the Middle District of Florida, Boccio v. United
States, 2009 U.S. Dist. LEXIS 52197. There, the Plaintiffs asserted that:

[W]hile the loss of consortium claim was not specifically stated, nor was
Joel Boccio listed as a claimant, on the SF-95 Forms filed with the USPS,
the forms provided sufficient notice to allow the USPS to investigate the
claim, because 1) they stated that Ms. Boccio was married, 2) the
Amended SF-95 Form stated the amount of the claim as $ 5 million,
which is the aggregate sum of Plaintiffs' two federal-court claims, and 3)
the loss of consortium is a derivative claim of Ms. Boccio's claim, which
was properly noticed by the SF-95 Forms. Id. at *6-7.

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The District Court rejected Plaintiffs arguments, concluding

Persons attempting to bring claims against the United States in federal

court pursuant to the FTCA must first actually and expressly appear as
claimants in the administrative claims filed with the relevant agencies in
order to vest federal courts with the jurisdiction to hear their claims. Mr.
Boccio failed to appear as a claimant in the administrative claim filed with
the USPS. This Court, therefore, has no subject-matter jurisdiction over
his claim and must dismiss it accordingly. Id. at *8-9.

Thus, the basic reasoning of these courts is that loss of consortium claims must be
expressly raised in an administrative claim to satisfy the jurisdictional requirements of the
FTCA. Thus, failing to list oneself as a claimant alongside her husband when he filed his
administrative claim, or failing to file her own administrative claim, a district court is
presumed to lack subject matter jurisdiction. There have been also cases where a spouse
who is specifically identified on the Standard Form 95, without articulating the injury as
a loss of consortium, has sufficiently exhausted her administrative claims.
An administrative claim containing the names, dates of birth and signatures of both a
principal claimant and his spouse, alleging that serious injury has been sustained by the
principal claimant, is sufficient to place the United States on notice that
a derivative claim is being brought by the named spouse regardless of whether a separate
set of facts regarding the derivative claim and/or a separate sum certain are alleged for
such spouse. See, e.g., Hanlon v.United States, 134 F.R.D. 42, 43 (E.D.N.Y.
1991); Casey v. United States, 635 F. Supp. 221, 225-226 (D. Mass.
1986); Hardiman v.United States, 752 F. Supp. 52, 53-54 (D.N.H.
1989); Loper v. United States, 904 F. Supp. 863, 865-866 (N.D. Ind. 1995); but see
e.g.Willie v. United States, 1993 U.S. Dist. LEXIS 7204, 1993 WL 184149, at *6
(N.D.N.Y. 1993). See also Loper v United States of America, 904 F. Supp. 863 (citing to
several cases).

As mentioned, a prerequisite to any action brought under the FTCA for money
damages for “injury or loss of property or personal injury or death” caused by the
negligence of a federal employee, is the filing of a Notice of Claim with the appropriate
federal agency. 28 U.S.C. § 2675(a). In the Cregar case, however, there is no indication
or mention of Marion on the Standard Form 95, other than that she may be potentially
called as witness, so we cannot pursue this line of “notice” argument. No mention was
made on the form of the injuries sustained by Mrs. Cregar -- to wit, loss of services and
consortium -- and the only claimant that appears on the line entitled regarding the
claimant’s address and name is that of Donald Cregar.

However, for the reasons articulated in the following memorandum, those cases
are easily distinguishable. Indeed, the interplay of the Michigan common law right of loss
of consortium and the Federal Tort Claims Act statutory requirement for exhaustion of
remedies, although seemingly complex, is actually straightforward.

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 A. Michigan Law

Don Cregar’s wife claim for loss of consortium is derivative of the underlying
Complaint filed in this action. Because the alleged negligent acts occurred in Michigan,
that state’s substantive law controls. Witkop v. United States, 391 Fed. Appx. 501, 503
(6th Cir. 2010). Michigan has long recognized a cause of action for loss of consortium in
favor of spouses, Montgomery v Stephan, 359 Mich 33, 38; 101 NW2d 227 (1960).As
Justice Griffin explained, a claim for loss of consortium is usually considered to be
derivative, but only in the sense that it does not arise at all unless the other, impaired
spouse has sustained some legally cognizable harm or injury. Thus, a claim for loss of
consortium is derivative and recovery in an action for loss of consortium is
contingent upon the injured person’s recovery of damages. Oldani v Liberman, 144
Mich App 642, 645 (1985) (emphasis added); see also Rusinek v Schultz, Snyder &
Steele Lumber Co, 411 Mich 502; 508 (stating that since loss of consortium claims are
derived from the injured spouse’s action, a claim of loss of consortium does not create a
new case nor does it contribute significantly to the problems the act was intended to
alleviate.

Richardson v United States of America, out of the United States District Court for
the District of Indiana, helps illustrate the importance of distinguishing between
independent and derivative state substantive conceptualizations of the loss of consortium
claims. 831 F. Supp. 657 (N.D. Ind. 1993). There, the Government argued that that state
law governing consortium claims supports the requirement for a
separate administrative claim:

A point of discussion in many of the “loss of consortium” cases is that,

under the applicable state law, loss of services and consortium is an
independent action, both separate and distinct from the personal injury
claim. Therefore, a claimant must file her claim with the appropriate
federal agency for consent, as with any other independent claim. If the
jurisdictional analysis turns on this point, dismissal remains appropriate
here. Under Indiana law, a spouse's loss of consortium claim, although
derivative of the personal injury claim, is separate and independent from
the primary action and can be maintained even if the primary suit is
unsuccessful. Dearing v. Perry, 499 N.E.2d 268, 272 (Ind. App. 1986).
The independent nature of consortium claim [sic] in Indiana only
underscores the need for Eva Richardson to have filed an
administrative claim under 28 U.S.C. § 2675(a).

The Richardson Court concluded the following, citing to a very formalist

Supreme Court reading:

[Because] the United States Supreme Court, in no uncertain terms, has

affirmed the Seventh Circuit's literal approach to 28 U.S.C. § 2675(a), and
this court has no discretion to find mere technicalities or formalism. The

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 United States' motion to dismiss the loss of consortium claim
is GRANTED.1

Thus, the only way to adequately save a consortium claim is to make the
argument that the loss of consortium claim of Cregar’s wife is derivative of the
underlying medical malpractice, which would go a long way in distinguishing the line of
cases that bar a loss of consortium claim made without adequate exhaustion of
administrative remedies.

B. Federal case-law on FTCA/state substantive law in context of consortium

claim

The importance of assessing whether a loss of consortium claim is derivative or

independent is absolutely critical and cannot be overstated.

Most recently, in Mamea v United States of America, 2010 US Dist LEXIS 87189
(2010), the US District Court for the District of Hawaii stated that actions for loss of
consortium in the context of FTCA litigation is governed by applicable state substantive
law. See id. at *21. Citing to Hawaii state law, the Court found that the loss of consortium
claim was a permissible claim of relief since such a claim is inherently derivate of the
plaintiff’s claim for medical malpractice. See also Dockery v United States of America,
663 F.Supp. 2d 111, 125 (N.D.N.Y 2009) (applying New York state substantive law on
loss of consortium and holding that it is a derivative action, and as such its viability in a
FTCA case depends on the viability of the primary cause of action).

In Borgren, v United States, 723 F. Supp. 581 (Dist. Kansas, 1989), the
Government moved to amend a final judgment by eliminating the $ 200,000 award for
loss of consortium that Plaintiff had been awarded. Id. Indeed, the Government argued
that plaintiff did not request damages for loss of consortium in her administrative claim,
and that her husband did not sign the administrative claim or submit his own claim for
loss of consortium.

1
In McNeil v United States of America, 124 L. Ed. 2d 21, 113 S. Ct. 1980, 1983 (1993),
the Court reached a harsh result, as the claimant’s case was then time-barred. Justice
Stevens, writing for the Court, reasoned that this was the only possible reading:
The most natural reading of the [FTCA] statute [§2675(a)] indicates
that Congress intended to require complete exhaustion of Executive
remedies before invocation of the judicial process. Every premature filing
of an action under the FTCA imposes some burden on the judicial system
and on the Department of Justice which must assume the defense of such
actions. Although the burden may be slight in an individual case, the
statute governs the processing of a vast multitude of claims. The interest in
orderly administration of this body of litigation is best served by
adherence to the straight-forward statutory command.

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 In rejecting the reasoning advanced by the Government, the Borgren Court noted
the following:

Defendant cites three cases which deny loss of consortium damages where
the claimant's spouse had failed to sign the claim or make a claim of their
own with the administrative agency. These cases, however, are from
jurisdictions where loss of consortium is recognized as a separate and
individual claim of the spouse. Kansas law, however, is different from
these three jurisdictions. Under Kansas law, a loss of consortium vests
only with the person seeking recovery for the personal injury, and the
injured person must bring the loss of consortium claim on behalf of his or
her spouse. See K.S.A. § 23-205; see also Hoffman v. Dautel, 189 Kan.
165, 169, 368 P.2d 57, 60 (1962).

The court finds that the administrative claim filed by plaintiff in this case
adequately provided sufficient information to enable the administrative
agency to conduct a full investigation of the incident which resulted in
plaintiff's injuries. That being the case, defendant had adequate notice as
required under 28 U.S.C. § 2675. Id. at 582.

The Borgren case’s reasoning sounds persuasive. However, in a federal district

case out of the Western District of Michigan, the Court rejected the reasoning of Borgren
in the context of Michigan state substantive law.

Plaintiffs cite to Borgren v United States, 723 F. Supp. 581 (D. Kan. 1989)
in support of their argument. In that case the court held that an
administrative claim filed by the injury plaintiff was sufficient to enable
the administrative agency to conduct a full investigation of the incident
which resulted in the injuries. Id. at 582. The court noted that unlike in
jurisdictions where loss of consortium is recognized as a separate and
individual claim of the spouse, under applicable Kansas law, "a loss of
consortium vests only with the person seeking recovery for the personal
injury, and the injured person must bring the loss of consortium claim on
behalf of his or her spouse. Id. The Michigan Supreme Court has stated
that although a loss of consortium claim is usually considered to be
derivative of a spouse's main injury claim, a loss of consortium claim is a
separate and independent cause of action. Therefore, Borgren does not
apply to the instant situation. Gallagher v. United States, 1997 U.S. Dist.
LEXIS 6680 (1997).

However, the Gallagher Court is simply wrong on the law. The Michigan
Supreme Court has actually stated the contrary: a claim for loss of consortium is
derivative and recovery in an action for loss of consortium is contingent upon the injured
person’s recovery of damages. Oldani v Liberman, 144 Mich App 642, 645 (1985), citing

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to Rusinek, supra (since loss of consortium claim is derived from the injured’s spouse’s
action, a claim of loss of consortium does not create a new case…”

The Michigan Court of Appeals, in a 2004 unpublished decision, also indicated

that because “James DiFalco’s [the husband] claims were derivative of plaintiffs claims,
their claims are properly considered to be a single cause of action.” Difalco v Dock, et al,
2004 Mich App LEXIS 3487 (2004). Indeed, it is well settled that a “derivative claim of
loss of consortium stands or falls with the primary claims in the complaint.” Long v
Chelsea Hosp, 219 Mich App 578, 589 (1996). See also Berryman v. K mart Corp., 193
Mich. App. 88, 483 N.W.2d 642, 646 (1992) (“A claim of loss of consortium is
derivative and recovery is contingent upon the injured spouse's recovery of damages for
the injury.”). A claim of loss of consortium is derivative and recovery is contingent upon
the injured spouse's recovery of damages for the injury. Moss v Pacquing, 183 Mich App
574, 583; 455 NW2d 339 (1990) Oldani, supra at 645. A party claiming damages arising
from loss of consortium must prove those damages by a preponderance of the
evidence. Washington v Jones, 386 Mich 466, 472; 192 NW2d 234 (1971). This is the
same thing in Ohio. Messmore v. Monarch Much. Tool Co., 11 Ohio App. 3d 67, 463
N.E. 2d 108 (1983) (“A cause of action based upon a loss of consortium is a
derivative action. That means that the derivative action is dependent on the existence of a
primary cause of action and can be maintained only so long as the primary action
continues.”)

Now, this is where the law gets muddled. Another case, however, apparently
states that a claim for loss of consortium is actually separate and independent from the
claim of the physically injured spouse. Eide v. Kelsey-Hayes, Co., 431 Mich. 26, 29, 427
N.W.2d 488 (1988). This case has been cited by the United States District Court for the
Western District of Michigan as holding that,

“simply because the government had notice of her husband's claims for
personal injury does not mean or require that Amelia Emery was entitled
to pursue her claim for loss of consortium in federal court. In order to
remain a party to this action, she must prove that she has also exhausted
her administrative remedies under § 2675(a) with respect to her loss of
consortium claim.” Emery v. United States, 920 F. Supp. 788, 790 (W.D.
Mich. 1996).

The Emery Court went on to conclude the following in finding that a loss of
consortium claim was viable, despite not having filed a separate administrative claim.

This Court holds that the notice requirement set forth in 28 U.S.C.§
2765(a) does not require a spouse to file a separate administrative claim
form from her spouse's when filing a loss of consortium claim.

In the instant case, plaintiffs contend that James Emery's claim form
“clearly and unambiguously included the claim by Amelia Emery forloss
of consortium,” thereby putting the government on notice of Amelia
Emery's claim. This Court agrees. Although Amelia Emery was not listed

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 as a claimant on James Emery's claim form, it is clear from the face of the
form that she was alleging a claim for loss of consortium against the
government. In response to form Question No. 10, the Emerys wrote
“Wife, Amelia Emery, has suffered a loss of consortium, love and
affection.” In short, the Emerys’ response to form Question No. 10
provided “sufficient notice to enable the agency to investigate the
claim . . . .” Charlton v. United States, 743 F.2d 557, 559-60 (7th Cir.
1984). As a result, the statute's “purpose--to promote fair settlement--was
not hindered by [James Emery's inclusion of Amelia Emery's] claim on the
same administrative claims form.” Hardiman v. United States, 752 F.
Supp. 52, 54 (D.N.H. 1989). Thus, the form filed by the Emerys was
sufficient to provide defendants with adequate notice of Amelia Emery's
claim under the Sixth Circuit's test for § 2675(a). Emery, supra, at 791.

As a result, Mrs. Cregar’s claim is derivative of the underlying medical

malpractice claimed to have been occasioned by the federal government’s negligence.
However, Mr. Cregar’s eventual recovery, if any, is more likely than not going to be
limited to that amount administratively claimed and presented (i.e. 2 million dollars).
See Kokaras v. United States, 980 F.2d 20, 22-23 (1st Cir. 1992); Sciolino v. United
States, No. 98-CV-0450E(M), 2001 U.S. Dist. LEXIS 2811, 2001 WL 266024, at *4
(W.D.N.Y. 2001) (“because section 2675(b) of the FTCA states that '[a]n action under
this section shall not be instituted for any sum in excess of the amount of the claim
presented to the Federal agency…' and plaintiff only claimed a total of $ 5,000,000 in her
SF-95 administrative claim, she, individually and on behalf of [her husband], is limited to
a maximum aggregate recovery of $ 5,000,000”; Jackson v. United States, 488 F. Supp.
2d 191 (N.D.N.Y. 2007) (Defendant’s Motion to dismiss is granted in part as to Plaintiff
Gloria Jackson's claim for $ 100,000.00, because in reviewing Plaintiff's SF95 claim
form, the total claim presented to the VA was fifteen million dollars ($ 15,000,000.00).
According to the Complaint, the $ 15,000,000.00 claim is Bernard Jackson's claim for
damages in this case. Gloria Jackson seeks an additional $ 100,000.00. But, that claim
was not presented in the administrative process, and thus that claim has not been
exhausted. Furthermore, in this matter the SF95 stated a claim Total of $ 15,000,000.00.
Therefore, as other Courts have held, so this Court holds that Plaintiffs’ eventual
recovery, if any, is limited to that amount administratively claimed and presented.) See
also, Sciolino v. United States, 2001 U.S. Dist. LEXIS 2811 (W.D.N.Y. 2001)
(concluding that because section 2675(b) of the FTCA states that “an action under this
section shall not be instituted for any sum in excess of the amount of the claim presented
to the Federal agency “and plaintiff only claimed a total of $ 5,000,000 in her SF-
95 administrative claim, she, individually and on behalf of Anthony, is limited to a
maximum aggregate recovery of $ 5,000,000.”

Summary of Findings

The case law indicates that a substantial number of spouses (and the occasional
husband) have had their loss of consortium claims dismissed because of the exhaustion of
administrative claim process outlined in the Federal Tort Claims Act. Courts have been

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quite formalistic and rigid in refusing to permit a loss of consortium claim where the
Government was not on notice in the initial Standard Form 95 submission or associated
pleadings/letters/communications/correspondence with the Government agency in
question.

The only possible way around dismissal is the argument that the loss of
consortium claim in Michigan is derivative in nature, and is NOT an independent cause
of action. As such, we can argue that the Government was always on notice since that
claim was inherently derivative of the underlying claim of medical malpractice alleged to
have been perpetrated against Mr. Cregar. This argument has been successfully made.
See supra discussion. But not sure how Judge Borman would come down on this, given
the harsh and strict case law out there that I found.