United States District Court, E.D. North Carolina, Western Division
W. EARL BRITT, Senior District Judge.
This matter comes before the court on defendant's motion to dismiss. (DE # 24.) Plaintiffs Rachel Degenhard, in her individual capacity and as administratrix of the estate of Santino Degenhard, and Jason Degenhard (collectively "plaintiffs") filed a response, (DE # 26), to which defendant filed a reply, (DE # 28).
Plaintiffs filed this Federal Tort Claims Act ("FTCA") case following the death of their four-month-old son, Santino Degenhard ("Santino"), which resulted from the alleged negligence of employees of Pope Child Development Center, a daycare located on the United States Army base at Fort Bragg, North Carolina. (Compl., DE # 1, at 3.) On 9 March 2012, Santino suffocated when a daycare worker placed him face-down on the floor and left him unattended for approximately nineteen minutes. (Id. at 5-6.) He died from the injuries five days later at Cape Fear Valley Medical Center. (Id. at 6-7.)
On 17 December 2012, Santino's estate filed with the government an administrative claim for wrongful death. (Id. at 2; DE # 25-1.) Plaintiffs now assert, under the FTCA, claims for wrongful death and negligent infliction of emotional distress ("NIED"). (Compl., DE # 1, at 8, 10.) In the present motion, defendant ("the government") argues that, pursuant to Federal Rule of Civil Procedure 12(b)(1), this court should dismiss plaintiffs Rachel and Jason Degenhard's ("the Degenhards") individual NIED claims for lack of subject matter jurisdiction, due to their failure to exhaust administrative remedies. (DE # 25, at 3.) Plaintiffs argue that they have sufficiently exhausted their administrative remedies. (DE # 26, at 3.)
II. STANDARD OF REVIEW
In response to a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of showing that federal jurisdiction is appropriate. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (internal citation omitted). A district court should allow a Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. When ruling on a 12(b)(1) motion, the "court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Id. (internal quotation omitted).
The United States, as a sovereign, is immune "from suits for damages at common law." Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995). The FTCA, however, creates a limited waiver of the United States' sovereign immunity. Id. As a condition of the waiver, the Act requires a party to file an administrative claim with the appropriate federal agency before filing suit. 28 U.S.C. § 2675; see also Kokotis v. United States Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000) (identifying the filing of an administrative claim as a "jurisdictional prerequisite to filing suit under the FTCA"). Federal regulations deem a claim "to have been presented when a Federal agency receives from a claimant... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain...." 28 C.F.R. § 14.2. The notice must be "sufficient to cause the agency to investigate'" the incident in order to determine its exposure to liability. Rudisil v. United States, No. 5:13-CV-110-F, 2014 WL 4352114, at *1 (E.D. N.C. Sept. 2, 2014) (quoting Ahmed v. United States, 30 F.3d 514, 516 (4th Cir 1994)). However, a claimant need not give the government notice of "every possible theory of recovery." Id. at *1 (internal quotation omitted).
Rachel Degenhard, in her capacity as adminstratrix of her son's estate, timely filed a Standard Form 95 (ASF-95") with the United States Department of Defense, asserting a wrongful death claim. (DE # 25-1.) In addition to this claim, the Degenhards now assert individual NIED causes of action that were not specifically set out in the SF-95. (DE # 1, at 10.) The central question in this case is whether the estate's administrative claim for wrongful death put the government on sufficient notice to investigate potential individual NIED claims of the Degenhards. Plaintiffs answer this question in the affirmative. (DE # 26, at 3.) They contend that notice was adequate because "[t]he NIED claims arise directly out of the same negligent conduct and damages that [have] already been alleged [in the administrative claim for] wrongful death." (Id. at 5.) Plaintiffs go on to state that evidence uncovered in an investigation into the wrongful death claim "necessarily and entirely overlaps" with evidence that the government would need to evaluate their NIED claims. (Id. at 6.) They also argue that the language of North Carolina's wrongful death statute, which would allow the Degenhards to recover damages for, among other things, the loss of companionship and comfort of their son, should have put the government on notice of their individual NIED claims. (Id. at 4-5.) Plaintiffs further note that they "provided [the government] over 800 pages of... documentation supporting the alleged claim and the facts giving rise to it, including [their] theories of negligence." (Id. at 4.) Additionally, plaintiffs point to the government's letter denying the administrative claim as evidence that they have sufficiently exhausted their administrative remedies. (Id. at 6-7.) The letter states that "all claims related to the event that serves as the basis of this suit are no longer amenable to administrative resolution." (Id. at 6.)
The government contends that the SF-95 "in no way provided  adequate notice of Plaintiffs' individual [NIED] claims...." (DE # 28, at 2.) It notes that the SF-95 articulates only a claim under North Carolina's wrongful death statute. (Id. at 3.) The government also points out that the estate describes its damages by referring specifically to the compensable expenses under the wrongful death statute. (Id.) Furthermore, it argues that because satisfying the elements of an NIED claim requires "different and additional evidence" than that needed to make out a wrongful death claim, an NIED claim cannot be inferred from a wrongful death claim. (Id. at 4.) Thus, the government maintains, the SF-95 contained no facts that support an NIED claim. (Id. at 3.)
The court concludes that it cannot maintain jurisdiction over plaintiffs' NIED claims. As previously recognized, the completed SF-95 asserted only a claim for wrongful death. (DE # 25-1, at 1.) In section 2 of the form, Rachel Degenhard, in her capacity as administratrix of the estate, is the only listed claimant. (Id.) Absent are any individual claimants. Section 8 of the form described the basis of the administrative claim as only "[n]egligence of federal employees resulting in wrongful death." (Id.) In an attached supplement to section 8, the damages that the estate identified precisely track the damages compensable under the North Carolina wrongful death statute. (Id. at 7.) In section 10 of the SF-95, the estate described the nature and the extent of the injury as follows: "Wrongful death of the minor,  which encompasses all that is implied by [the North Carolina wrongful death statute]...." (Id.) Further, in section 12c, the estate listed damages in the amount of ten million dollars under the caption titled "Wrongful Death, " but claimed no amount of damages under the "Personal Injury" caption. (Id.) The SF-95 is entirely focused on the estate's wrongful death claim.
As the government argues, NIED and wrongful death claims are distinct in North Carolina, as each claim requires proof of different elements and allows for different damages. (Id. at 3.) Thus, an investigation of a wrongful death claim would not necessarily give rise to evidence that would put the government on notice of an NIED claim. For example, North Carolina's wrongful death statute permits recovery of expenses for medical care incident to the injury resulting in death; compensation for pain and suffering of the decedent; reasonable funeral expenses; and the present monetary value of the decedent to the persons entitled to receive the damages recovered, including compensation for loss of society, companionship, and comfort. N.C. Gen. Stat. § 28A-18-2(b). While the statute would allow parents of a deceased child to recover the present value of the loss of companionship and comfort that the child provided them, the parents' own emotional damages are not compensable. See id. Unlike a wrongful death claim, an NIED claim requires proof of severe emotional distress, meaning "any emotional or mental disorder... or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by a medical professional trained to do so." Johnson v. Ruark Obstetrics & Gynecology Assocs, P.A., 395 S.E.2d 85, 97 ( N.C. 1990). Because the Degenhards' individual emotional distress is not compensable under the wrongful death statute, the government's investigation of the wrongful death claim would not have necessitated an inquiry into disabling emotional conditions or diagnoses of the Degenhards - a critical element of an NIED claim.
The court further concludes that the government's denial letter, which stated that "all claims related to the event that serves as the basis of this suit are no longer amenable to administrative resolution, " is insufficient to support a finding that plaintiffs exhausted their administrative remedies with respect to their NIED claims. "Being a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States." Williams v. United States, 50 F.3d 299, 306 (4th Cir. 1995). The letter does not make clear whether the government denied all potential individual claims, or merely ...