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KORNBLUTH v. SAVANNAH

July 24, 1975

MARTIN KORNBLUTH, EUGENE RATTNER, LILLIAN KORNBLUTH and ESTELLE RATTNER, Plaintiffs,
v.
DONNIE SAVANNAH and UNITED STATES POST OFFICE, Defendants



The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

 JUDD, J.

 Defendants have moved to dismiss this action under the Federal Tort Claims Act because of plaintiffs' failure to submit physician's statements and medical bills at the administrative stage of the claim. Since the filing of the motion, the parties have agreed by stipulation that the United States would be substituted as sole defendant in place of the United States Post Office.

 The complaint alleges that there was a collision on December 30, 1971 between the vehicle of plaintiff Martin Kornbluth and a vehicle of the United States Postal Service driven by Donnie Savannah. The Marshal was unable to serve defendant Savannah, and plaintiff has consented to dismiss the action against him pursuant to 28 U.S.C. § 2679(b). The complaint claims damages of $25,000 each for plaintiff Martin Kornbluth and for plaintiff Eugene Rattner, whose vehicle was struck by plaintiff Kornbluth's car as a result of the collision.

 The complaint alleges that plaintiffs filed all necessary forms and applications and that the claims were disallowed by notice dated September 10, 1974. The claims submitted to the Post Office Department were for $100,000 each, claiming with respect to Mr. Kornbluth "[multiple] bodily injuries, lacerations, contusions, cerebral concussion" and with respect to Mr. Rattner, "[multiple] bodily injuries, contusions, etc."

 The moving papers assert that the United States Postal Service wrote the attorney for plaintiffs twice, on April 24, 1972 and April 16, 1974, stating that a personal injury claim must be supported by written reports of the attending physicians and itemized accounts of medical and hospital bills. No response having been made to either of these letters, the Postal Service denied the claims of Kornbluth and Rattner on September 10, 1974 for failure to supply reports by attending physicians and medical bills.

 In response to defendants' motion, plaintiffs submitted an answering affidavit of Martin Kornbluth, which stated that he hit his head on the steering wheel as a result of the collision and broke his eyeglasses, that he was briefly unconscious and that he visited four doctors after the event. Annexed to his affidavit are two doctors' bills for an aggregate of $175.00, and a paid bill of $1,302.84 for repairs to his car, most of which was reimbursed by an insurance company. The papers also show a communication from plaintiffs' attorney to Eugene Rattner which was returned with the notice, "Moved, Not Forwardable." The police report concerning Mr. Rattner stated "Property Damage Only."

 Plaintiff has consented to dismissal of the claim of Mr. Rattner and the claim of the two plaintiff wives, who did not submit administrative claims.

 Statutes and Regulations

 Under 28 U.S.C. § 2679(a), claims against the United States Post Office or the United States Postal Service must be brought as actions against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2674. No such claim can be the basis of an action "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing . . ." 28 U.S.C. § 2675(a).

 District courts have jurisdiction of such actions under 28 U.S.C. § 1346(b).

 The regulations of the Postal Service specifically require submission of doctors' reports and medical bills. See 39 C.F.R. § 912.7(b), which states:

 
" Personal Injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:
 
(1) A written report by his attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of ...

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