Langkamp v. United States

  United States Court of Appeals
      for the Federal Circuit
                ______________________

                TREVOR LANGKAMP,
                  Plaintiff-Appellant

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2018-2052
                ______________________

    Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00764-LKG, Judge Lydia Kay Griggsby.
                 ______________________

              Decided: November 27, 2019
                ______________________

   JAMES H. LISTER, Birch, Horton, Bittner & Cherot, PC,
Washington, DC, argued for plaintiff-appellant.

    MOLLIE LENORE FINNAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by JOSEPH H. HUNT, DEBORAH ANN BYNUM,
ROBERT EDWARD KIRSCHMAN, JR.
                 ______________________

  Before LOURIE, MAYER, and TARANTO, Circuit Judges.
2                                LANGKAMP v. UNITED STATES




MAYER, Circuit Judge.
    Trevor Langkamp appeals the judgment of the United
States Court of Federal Claims granting the government’s
motion for summary judgment and rejecting his claim
seeking damages for breach of a tort settlement agreement.
See Langkamp v. United States, 

 (2017)
(“Court of Federal Claims Decision”). Because we conclude
that the court erred in holding that the United States had
no continuing liability for the future monthly and periodic
lump-sum payments specified in the agreement, we reverse
and remand.
                        BACKGROUND
    In 1980, Langkamp, who was then a toddler, suffered
severe burn injuries at a property owned and operated by
the United States Army. Langkamp’s parents, Joseph and
Christina Langkamp, subsequently brought an action
against the United States under the Federal Tort Claims
Act (“FTCA”), 

, in the U.S. District Court
for the Western District of Michigan. On November 15,
1984, the parties entered into a settlement agreement (the
“Settlement Agreement”). That agreement, in pertinent
part, provides:
    STIPULATION FOR COMPROMISE SETTLEMENT
         IT IS HEREBY STIPULATED by and between
     the plaintiffs, Joseph P. Langkamp, et al., and the
     defendants, United States of America and United
     States Department of Army, by and through their
     respective attorneys, as follows:
         1. That the parties do hereby agree to settle
     and compromise the above-entitled action upon the
     terms indicated below.
         2. That the defendants, United States of
     America and United States Department of Army,
     will pay to the plaintiffs, Joseph P. Langkamp, et
LANGKAMP v. UNITED STATES                                   3



   al., in their own right, the sum of $239,425.45 as an
   upfront payment which includes attorney fees and
   costs and a structured settlement for the benefit of
   Trevor Langkamp, which sum shall be in full set-
   tlement and satisfaction of any and all claims said
   plaintiffs now have or may hereafter acquire
   against the defendants, United States of America
   and United States Department of Army, on account
   of the incident or circumstances giving rise to this
   suit.
        3. That the aforesaid amount shall be paid as
   follows: $350.00 per month beginning by the begin-
   ning of January, 1985[,] through October 15, 1996,
   then $3,100.00 per month, 3 percent compounded
   annually for life, guaranteed for 15 years, begin-
   ning November 15, 1996, and Lump Sum Payments
   as follows:
       $15,000.00      on       December 15, 1996
        50,000.00      on       December 15, 2000
        100,000.00     on       December 15, 2008
        250,000.00     on       December 15, 2018
        1,000,000.00   on       December 15, 2028
        4. That the plaintiffs hereby agree to accept
   said sum in full settlement and satisfaction of any
   and all claims and demands, including attorney[]
   fees and any other costs of this action, which it or
   its agents or assigns may have against the defend-
   ants, United States of America and United States
   Department of Army, and its agents and employees
   on account of the incident or circumstances giving
   rise to this suit.
       5. That this agreement shall not constitute an
   admission of liability or fault on the part of the de-
   fendants, United States of America and United
   States Department of Army, or on the part of its
   agents or employees.
4                                LANGKAMP v. UNITED STATES




        6. That in exchange for the payment of the
    sum stated above and contemporaneous with the
    delivery of the check therefor, plaintiffs will file
    with the Clerk of the above Court a dismissal of the
    above action with prejudice and without costs, and
    will execute and deliver to the defendants, United
    States of America and United States Department
    of Army, a full and final release of any and all
    claims set forth in paragraphs 2, 3 and 4 above,
    against the United States of America and United
    States Department of Army and its agents and em-
    ployees.
J.A. 133–35.
    After execution of the agreement, the government
issued a check for $239,425.45 payable to Joseph and
Christina Langkamp, as guardians of Langkamp, and a
check for $160,574.55 payable to JMW Settlements, Inc.
(“JMW”), an annuity broker. On November 30, 1984, JMW
purchased two single-premium annuity policies from
Executive Life Insurance Company of New York (“ELNY”)
to fund the monthly and periodic lump-sum payments
delineated in paragraph three of the Settlement
Agreement. The Langkamps thereafter stipulated to the
dismissal of their FTCA action and executed a release of
their tort claims against the United States.
    For nearly thirty years, from January 1985 to July
2013, ELNY sent Langkamp the monthly and periodic
lump-sum payments specified in the Settlement
Agreement. Following ELNY’s insolvency and court-
approved restructuring, however, Langkamp’s structured
settlement payments were reduced to approximately forty
percent of the original payment amount. Langkamp,
through counsel, then contacted the government,
explaining that as a result of ELNY’s insolvency he was no
longer receiving the full payments required by the
Settlement Agreement and asserting that the United
LANGKAMP v. UNITED STATES                                 5



States bore responsibility for the shortfall in payments.
After the United States denied liability, Langkamp filed
suit in the Court of Federal Claims.
     The Court of Federal Claims rejected Langkamp’s
argument that the United States had continuing liability
for the monthly and periodic lump-sum payments set forth
in the Settlement Agreement. See Court of Federal Claims
Decision, 131 Fed. Cl. at 93–97. In the court’s view, the
government fulfilled its responsibilities under the
agreement when it disbursed the required upfront
payment and purchased annuities on Langkamp’s behalf.

 at 94–95. The court determined that the United States
had no obligation to cover the shortfall in payments which
occurred in the wake of ELNY’s insolvency because there
was “no language in the Settlement Agreement that
expressly and unequivocally require[d] that the
government guarantee the monthly and periodic lump-sum
payments delineated in that agreement.” 

.
    The court further determined that “the government
could not have entered into a contract that requires [it] to
pay more than the $400,000 disbursed at the time of
settlement to resolve [Langkamp’s] FTCA claim.” 

.
According to the court, because “the government disbursed
this authorized amount in 1984, in the form of a one-time,
lump-sum payment of $239,425.45 and by paying a
structured settlement broker $160,574.55 to purchase two
structured settlement annuities for the benefit of
[Langkamp],” it could not have been legally bound by a
contract additionally requiring it to guarantee any
shortfalls in annuity payments. 

 at 96–97.
    After Langkamp’s motion for reconsideration was
denied, he filed a timely appeal with this court. We have
jurisdiction under 

(a)(3).
6                                LANGKAMP v. UNITED STATES




                       DISCUSSION
                  I. Standard of Review
    Contract interpretation is a question of law which we
review de novo. See, e.g., Dobyns v. United States, 

 (Fed. Cir. 2019); Sevenson Envtl. Servs., Inc. v.
Shaw Envtl., Inc., 

, 1364–65 (Fed. Cir. 2007).
We likewise review de novo the grant of summary
judgment by the Court of Federal Claims. See TEG-
Paradigm Envtl., Inc. v. United States, 

(Fed. Cir. 2006). “Summary judgment is appropriate if
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.”
First Commerce Corp. v. United States, 

(Fed. Cir. 2003).
              II. The Settlement Agreement
     “Contract interpretation begins with the plain
language of the written agreement.” Hercules Inc. v.
United States, 

 (Fed. Cir. 2002). Here,
both parties assert that the language of the Settlement
Agreement unambiguously supports their respective
positions. The government contends that while the
agreement required it to purchase structured settlement
annuities on Langkamp’s behalf, it does not impose any
continuing liability to make or guarantee future payments.
In Langkamp’s view, however, the Settlement Agreement
unambiguously obligates the United States to ensure that
all future monthly and periodic lump-sum payments are
properly disbursed.
    We agree with Langkamp. Paragraph two of the
relatively succinct Settlement Agreement states that the
United States “will pay”: (1) an “upfront payment” of
$239,425.45; and (2) a “structured settlement for the
benefit of Trevor Langkamp.” J.A. 133. Paragraph three
then delineates how “the aforesaid amount shall be paid,”
providing a detailed schedule of required future monthly
LANGKAMP v. UNITED STATES                                 7



and periodic lump-sum payments. J.A. 134. Unlike
previous cases in which tort settlement agreements
explicitly referenced a third-party payor, such as an
insurance company, and the purchase of annuities, see
Shaw v. United States, 

 (Fed. Cir.
2018); Nutt v. United States, 

, 1296–97 (Fed.
Cir. 2016), the agreement here contains no reference to a
third-party payor but instead places the onus on the
government to ensure the disbursement of future
payments. See Shaw, 

 (explaining that
whether the government is obligated to cover future
periodic payments under a settlement agreement following
an insurer’s insolvency turns on the specific language of
the agreement).
     In Nutt, the parties settled an FTCA claim by entering
into an agreement stating that the United States “agree[d]
to purchase annuities” which would make specified future
payments to the plaintiffs. 

. The
agreement further provided that the insurance company
selected by the government “for the purchase of the
annuities w[ould] be one which [was] generally regarded as
very sound in the insurance industry.” 

. We
concluded that the “fairest reading” of this contract
language was that “the Government did not agree to pay
future sums, but agreed only to purchase annuities.” 

(citation and internal quotation marks omitted). In
support, we noted that the agreement stated that the
government would furnish the plaintiffs with “a certificate
of insurance or other evidence of the purchase by the United
States of annuities in an amount sufficient to satisfy those
obligations under the settlement agreement which are to
be satisfied by the purchase of the annuities.” 

(citation and internal quotation marks omitted). This
provision, we explained, made clear “that the
Government’s obligations with respect to the future sums
that were to be made by the annuities were satisfied ‘by the
purchase of the annuities.’” 

 (citation omitted).
8                                 LANGKAMP v. UNITED STATES




    We confronted similar contract language in Shaw.
There the settlement agreement stated that the plaintiffs
agreed to release their FTCA claims against the United
States in exchange for initial cash disbursements and a
promise by the government to pay nearly $3 million “[t]o
Merrill Lynch Settlement Services, Inc., for the purchase
of annuities” which would make specified future periodic
payments. Shaw, 

. We concluded that this
language “unambiguously cabined the government’s
obligations to the initial lump-sum payments and the
purchase of the annuit[ies] and did not obligate it to
guarantee the future payments by the annuities.” 

.
    Because the government’s duty under the settlement
agreements in Nutt, 

, and Shaw, 

, was to “purchase” annuities on the plaintiffs’
behalf, we determined that they imposed no further
obligation to guarantee future payments if the insurance
companies that provided those annuities defaulted. Here,
by contrast, the Settlement Agreement contains no
reference to the purchase of an annuity from a third party,
but instead explicitly requires the United States to “pay . . .
a structured settlement.” J.A. 133. Simply put, whereas
the agreements in Nutt and Shaw conditioned the release
of tort claims on the government’s promise to purchase
annuities from a third party, the agreement here
conditions the release from liability on the promise to
disburse specified structured settlement payments.
                III. Structured Settlements
    The Court of Federal Claims determined that the
government had no continuing responsibility to ensure
future payments to Langkamp because the Settlement
Agreement uses the term “structured settlement,” J.A. 133,
and that term “is generally recognized to mean a legal
settlement paid out as an annuity rather than as a lump
sum,” Court of Federal Claims Decision, 

.
LANGKAMP v. UNITED STATES                                   9



In other words, according to the court, because the
Settlement Agreement calls for the payment of a
“structured settlement” and a structured settlement is
frequently paid out as an annuity, the agreement implicitly
cabins the government’s responsibility to the purchase of
annuities. 

 at 94–95.
    We do not find this reasoning persuasive. The term
“structured settlement” generally refers to a tort
settlement which requires a defendant to make a sequence
of payments over time. See, e.g., W. United Life Assurance
Co. v. Hayden, 

 (3d Cir. 1995) (“[I]n a
structured settlement the claimant receives periodic
payments rather than a lump sum, and all of these
payments are considered damages received on account of
personal injuries or sickness and are thus excludable from
income.”); Godwin v. Schramm, 

 (3d Cir.
1984) (“Generally, a structured settlement entails a cash
payment made on settlement, sufficient to cover at least
special damages such as medical bills incurred and past
lost wages, and guaranteed periodic payments in the
future.”); 321 Henderson Receivables Origination LLC v.
Sioteco, 

 (Cal. Ct. App. 2009) (“[I]n
a structured settlement the claimant receives periodic
payments rather than a lump sum.”); Lawrence G. Cetrulo,
2 TOXIC TORTS LITIGATION GUIDE § 16.31 (2018) (“A
‘structured settlement’ is a plan to compensate a claimant
over time for his or her loss as distinguished from the
traditional single, lump-sum payments used to settle most
cases. While the most prominent and frequently used
feature of a structured settlement is future payments for a
fixed period of time, most structured settlements also
provide for an immediate cash payment to the claimant for
past expenses, current bills, attorneys’ fees, and other
immediate needs.” (footnotes omitted)); Guy Kornblum &
Matthew Garretson, 1 NEGOTIATING AND SETTLING TORT
CASES § 18:1 (2009) (“Kornblum”) (“By definition, a
structured settlement describes compensation for a
10                              LANGKAMP v. UNITED STATES




personal injury claim in which at least part of the
settlement is paid over time, rather than with one lump
sum. In lieu of receiving all monies up front, the claimant
receives instead a promise from an entity to make future
payments according to an agreed-upon schedule.”).
Therefore, the fact that the Settlement Agreement recites
that the United States will “pay . . . a structured
settlement,” J.A. 133, means that the government is
required to make payments over time, not that an
unnamed third party will have sole responsibility for
future periodic payments.
    The stream of future periodic payments required under
a structured settlement agreement is often—but not
necessarily—funded through the purchase of an annuity.
See, e.g., Jacob A. Stein, 3 STEIN ON PERSONAL INJURY
DAMAGES TREATISE § 16:1 (3d ed. 2016) (“The payments
[under a structured settlement] are normally funded using
an annuity or obligations of the United States.”);
Kornblum, supra, at § 18:2 (explaining that although the
future payments required by a structured settlement can
be funded through the purchase of an annuity, they can
also be funded through “a trust that is set up with a bank
as administrator which purchases government bonds to
generate income to make periodic payments over the life of
the injured claimant”). But the fact that payments under
a structured settlement agreement can be funded through
the purchase of an annuity does not resolve the dispositive
issue presented here—which is whether the specific
language of an agreement imposes an obligation on a
defendant to make periodic payments independent of any
such purchase. See Kornblum, supra, at § 18:1 (“A
structured settlement is not an actual financial product;
rather, it is a specific agreement.”). Here, because the
Settlement Agreement makes the government’s duty to
disburse specified sums “unambiguously mandatory,” its
contractual responsibilities were not extinguished by the
purchase of annuities. Massie v. United States, 166 F.3d
LANGKAMP v. UNITED STATES                                   11



1184, 1190 (Fed. Cir. 1999); see also W. United Life, 

 (“[U]nder a structured settlement the obligor has a
continuing obligation to pay the periodic payments to the
recipient. The annuity is merely a convenient funding
mechanism and does not alter this obligation.”).
            IV. The Government’s Contentions
    The government resorts to linguistic contortions in its
effort to circumvent the plain language of the Settlement
Agreement. It first asserts that “[t]he agreement does not
obligate the Government to ‘pay’ the periodic installments
set forth in . . . paragraph [three]; to the contrary,
paragraph [three] provides that those installments ‘shall
be paid’ but does not assign the payment obligation to the
United States.” Br. of Defendant-Appellee at 19 (quoting
J.A. 133–34). This argument is a non-starter. Paragraph
two of the agreement unambiguously obligates the United
States to “pay . . . a structured settlement for the benefit of
Trevor Langkamp,” J.A. 133, and paragraph three
delineates the schedule under which “the aforesaid amount
shall be paid,” J.A. 134. There is no language in paragraph
three even arguably suggesting that an unnamed third
party, such as an insurance company, will be solely
responsible for making the future monthly and periodic
lump-sum payments listed in that paragraph. *
   The government further contends that the Settlement
Agreement evinces an intent to discharge all payment



    *    Nor does the fact that paragraph three states that
certain monthly payments are “guaranteed for [fifteen]
years,” J.A. 134, mean that the government has no liability
for payments due after expiration of this fifteen-year pe-
riod. As we explained in Shaw, such “guarantee” language,
as a general rule, merely indicates that certain payments
will continue even if the injured claimant dies within the
guarantee period. 900 F.3d at 1383–84.
12                                LANGKAMP v. UNITED STATES




obligations in 1984, and that paragraph six of the
agreement accordingly limits the government’s liability to
the disbursement of an initial cash payment and the
purchase of annuities on Langkamp’s behalf. In the
government’s view, “even if paragraph [three] could be read
to contemplate a continuing obligation” on its part,
“paragraph [six] would reflect the parties’ intent that such
obligation would be satisfied and superseded by the
delivery of the structured settlement annuities.” Br. of
Defendant-Appellee at 20.        We disagree.       Although
paragraph six refers to the delivery of a single “check,” J.A.
134, it does not mention structured settlement annuities or
suggest that Langkamp’s release of his tort claims against
the United States is contingent upon the delivery of such
annuities. Even more fundamentally, “[w]e must interpret
[a] contract in a manner that gives meaning to all of its
provisions and makes sense.” McAbee Constr., Inc. v.
United States, 

 (Fed. Cir. 1996); see also
NVT Techs., Inc. v. United States, 

(Fed. Cir. 2004) (“When interpreting [a] contract, the
document must be considered as a whole and interpreted
so as to harmonize and give reasonable meaning to all of
its parts.”). Considered as a whole, the Settlement
Agreement plainly ties the government’s release from
liability to its promise to disburse both an initial cash
payment and specified future structured settlement
payments. See J.A. 133 (“[T]he defendants . . . will pay to
the plaintiffs . . . the sum of $239,425.45 as an upfront
payment . . . and a structured settlement for the benefit of
Trevor Langkamp, which sum shall be in full settlement
and satisfaction of any and all claims said plaintiffs now
have or may hereafter acquire against the defendants . . .
on account of the incident or circumstances giving rise to
this suit.”); J.A. 134 (providing a schedule of future
monthly and periodic lump-sum payments and stating that
“the plaintiffs hereby agree to accept said sum in full
settlement and satisfaction of any and all claims and
LANGKAMP v. UNITED STATES                                13



demands . . . which it or its agents or assigns may have
against the defendants”).
                 V. Settlement Authority
     The government additionally contends that if the
Settlement Agreement is ambiguous it should be
interpreted in a manner that preserves its enforceability.
In its view, Langkamp’s reading of the agreement—which
imposes continuing liability for future payments—would
render it unenforceable because the Assistant U.S.
Attorney who signed the agreement on the government’s
behalf had no authority to settle Langkamp’s claim for
more than $400,000, J.A. 136–40, 162. This argument falls
flat. As a preliminary matter, we discern no ambiguity
regarding the government’s payment obligations under the
Settlement Agreement; it means what it says when it
requires the United States to “pay . . . a structured
settlement” to Langkamp. J.A. 133.
      Even if we were to assume arguendo, moreover, that
there is some ambiguity in the contract language, there is
no indication that in 1984 the present value of the
government’s      obligations   under     the   Settlement
Agreement—including the initial cash payment and the
stream of scheduled future payments—exceeded the
settlement authority delegated to the Assistant U.S.
Attorney. In this regard, the “‘total present value’ of a
payment stream plausibly refers to its cost, not to the
amount a beneficiary receives.” Ezell v. Lexington Ins. Co.,

 (1st Cir. 2019); see also Old Republic Ins.
Co. v. Ashley, 

 (Ky. Ct. App. 1986)
(explaining that although certain annuities had “an
estimated yield of $2,853,000,” they had a “present value of
. . . $732,000”).   Here, after disbursing the required
“upfront payment” of $239,425.45, J.A. 133, the
government spent $160,574.55 to purchase two single-
premium annuity policies from ELNY, policies which
promised to make all the monthly and periodic lump-sum
14                               LANGKAMP v. UNITED STATES




payments delineated in paragraph three of the Settlement
Agreement. ** J.A. 139, 144–62. The fact that in 1984 it
cost the government approximately $160,000 to obtain a
promise from an insurance company to fund the future
payments specified in the Settlement Agreement is a
strong indicator that the present value, at the time of the
agreement, of the government’s own promise to make such
payments did not exceed that amount. See, e.g., Wyatt v.
United States, 

 (6th Cir. 1986) (explaining
that “absent the submission of any contrary evidence the
present value of [a] structured settlement” is “the cost of
that settlement, namely, what it took in money to produce
the agreed settlement payments over the entire period
involved”); Old Republic, 

 (stating that
“[t]he prevailing law is that a structured settlement should
be valued at its present cash value”); Merendino v. FMC
Corp., 

 (N.J. Super. Ct. Law Div. 1981)
(concluding that “the cost of the annuities reflect[ed] the
actual present value in the marketplace”). We have
considered the government’s remaining arguments but do
not find them persuasive.
                       CONCLUSION
    Accordingly, the judgment of the United States Court
of Federal Claims is reversed and the case is remanded for
further proceedings consistent with this opinion.
            REVERSED AND REMANDED
                          COSTS
     Langkamp shall have his costs.




     ** As we explained in Nutt, “periodic damage awards
under the FTCA may be permissible in lieu of lump-sum
payments . . . by agreement of the parties.” 

.