912 F.2d 469
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Tammy JOHNSON, Mother and Next Friend of Christopher M.
Johnson a Minor, and Jeanette James, Trustee in
UNITED STATES of America, Department of the Army,
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 2, 1989.*
Decided Aug. 29, 1990.
Before JAMES R. BROWNING, SCHROEDER and FLETCHER, Circuit Judges.
Tammy Johnson appeals the grant of summary judgment for the United States in this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 2671-2680. The district court determined it lacked subject matter jurisdiction over the claim because Johnson had not complied with 28 U.S.C. Sec. 2401(b), the two-year time limit for filing FTCA claims. We affirm.
* Johnson alleged that a military doctor negligently punctured the bladder of her minor son during a hernia operation in December 1983. In the summer of 1984, Johnson and her husband, a sergeant in the United States Army, allegedly sought legal advice from an attorney of the Judge Advocate General Corps ("JAG"). Johnson claims the attorney told them they had no cause of action because Sergeant Johnson was in the armed services. As a result, the Johnsons did not file a claim under the FTCA.
In May 1985, the Johnsons filed for bankruptcy. Upon learning of the malpractice claim in May 1986, their bankruptcy attorney filed this action.
We review the existence of subject matter jurisdiction de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 1940 WL 60388 (June 18, 1990).
Under the FTCA, a tort claim against the United States is barred unless it is filed within two years of the time it accrues. United States v. Kubrick, 444 U.S. 111, 122 (1979); 28 U.S.C. Sec. 2401(b). An FTCA claim for medical malpractice "accrues when the claimant discovers both the injury and its probable cause." Zavala ex rel. Ruiz v. United States, 876 F.2d 780, 782 (9th Cir.1989). When the claimant is a minor, the parents' knowledge of the child's injuries is imputed to the child. Id. The fact of minority does not toll the statute. Landreth ex rel. Ore v. United States, 850 F.2d 532, 534 (9th Cir.1988). Because this action was not filed until almost two and one-half years after the parents knew of their son's injury, section 2401(b) bars the claim.
Johnson argues her claim is not barred because section 108(a) of the Bankruptcy Code, 11 U.S.C. Sec. 108(a)(1988), tolled the time in which to file the cause of action. Section 108(a) provides:
If applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of--
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) two years after the order for relief.
The district court correctly rejected this argument on the ground the claim belonged to the Johnsons' son, not to the estate of the debtor. Under Alaska law, parents sue on behalf of children only in a representative capacity, and damages are treated as the property of the child. State Farm Mut. Ins. Co. v. Wainscott, 439 F.Supp. 840, 842-44 (D.Alaska 1977); Macey v. United States, 454 F.Supp. 684, 689 (D.Alaska 1978). See also, Alaskan Village v. Smalley, 720 P.2d 945, 950 (Alaska 1986) (parent may sue for past medical expenses of child, but waives right if child sues for same expenses).
Johnson also argues the time to file the claim should be tolled because of the incorrect legal advice she received from the JAG attorney. However, when a plaintiff "fails to bring suit [under the FTCA] because [she] is incompetently or mistakenly told that [she] does not have a case," she must bear the consequences of that mistake, not the defendant. Kubrick, 444 U.S. at 124.