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Nationwide Mutual Ins. Co. v. United States

March 13, 2007


The opinion of the court was delivered by: District Judge Susan J. Dlott


This matter is before the Court on Defendant's Motion for Summary Judgment (doc. 6) and the Memorandum of Nationwide Mutual Insurance Company in Opposition to Defendant's Motion for Summary Judgment (doc. 11). For the following reasons, the Court hereby GRANTS Defendant's Motion for Summary Judgment.


This case arises from an August 1, 2003 motor vehicle accident between a U.S. Postal Service vehicle, driven by Postal Service employee Robert Vierling, and a vehicle owned by James Emmerling and driven by Rhonda M. Emmerling in the City of Hamilton, Butler County, Ohio. Nationwide Mutual Insurance Company (hereafter "Nationwide") had a contract of insurance on James Emmerling's motor vehicle on the accident date. (Doc. 1 ¶ 1).

On August 14, 2003, the U.S. Postal Service sent Nationwide two letters concerning the accident. One included claims forms and enumerated instructions for filling out those forms with respect to both property damage and personal injury. (Doc. 6 Attach. 1 ("Sanders Decl.") Ex. E.) The other explained that the claim would be handled in accordance with the Federal Tort Claims Act ("FTCA") and included, in bold type, the language: "Partial and/or supplemental claims are not considered." (Sanders Decl. Ex. F.)

On September 9, 2003, Nationwide sent a letter to the Postal Service requesting payment of its subrogation claim in the amount of $153.70. (Sanders Decl. Ex. A). Nationwide's letter stated, in part, "[w]e consider the total amount due listed above to be payment in full, but will promptly notify you if we incur any additional costs." (Id.) On September 29, 2003, the Postal Service sent Nationwide a check in the amount of $153.70 accompanied by a letter that provided that the payment represented the full amount of the claim. (Sanders Decl. Ex. B.) The letter further explained: "The enclosed check/money order operates as a complete release of any claim against the United States Postal Service and against the employee of the Government whose act or omission gave rise to the claim by reason of the same subject matter." (Id.) Nationwide cashed the check. (Sanders Decl. ¶ 8.)

Approximately three months later, on January 7, 2004, Nationwide submitted an additional subrogation claim arising out of the same accident to the U.S. Postal Service. In this letter, Nationwide claimed a loss of $4,000.00 for medical bills of Rhonda Emmerling, driver of Nationwide's insured car. (Sanders Decl. Ex. D). The U.S. Postal Service denied Nationwide's request for additional payment, relying on the fact that its earlier $153.70 payment was "full and final settlement of the claim you submitted." (Sanders Decl. Ex. G.)


Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, the moving party has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 242, 257 (1986). The nonmoving party "must set forth specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court's task is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252.


The U.S. Postal Service argues that Nationwide's cashing of the United States' $153.70 check operated as a "complete release of any claim against the United States Postal Service" for the accident involving Nationwide's insured and the Postal Service employee because the letter accompanying the check so specified. (Doc. 6 at 3 (quoting Sanders Decl. Ex. B).) Nationwide responds that the United States remains liable for the additional claim for medical expenses because it is based on newly discovered evidence and intervening facts, namely, Rhonda Emmerling's medical bills. (Doc. 11 at 2.)

Tort actions against the United States alleging negligence by a Government employee are within the ambit of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The FTCA requires that an injured party first present the claim to the appropriate federal agency. 28 U.S.C. § 2675. If the federal agency denies the claim, then the injured party may institute a legal action. Id.

However, any action brought under the FTCA "shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim. 28 U.S.C. § 2675(b) (emphasis added).

The burden is on the claimant to show the existence of intervening facts or newly discovered evidence. Allgeier v. United States, 909 F.2d 869, 877 (6th Cir. 1990); Kielwien v. United States, 540 F.2d 676, 680 (4th Cir. 1976). "To meet this burden, a plaintiff must show that the new evidence or intervening fact was not reasonably capable of detection at the time the administrative claim was filed. The plaintiff is required to demonstrate that the new information could not have been discovered through the exercise of reasonable diligence." Norrell v. United States,No. 1:00-CV-303, 2002 WL 32060141, *3 (E.D. Tenn. Aug. 1, ...

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