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, 131 Fed. Cl. 85 (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”), 28 U.S.C. § 2674, 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:
`on December 15, 1996
`
`$15,000.00
`on December 15, 2000
`
` 50,000.00
`on December 15, 2008
`
` 100,000.00
`on December 15, 2018
`
` 250,000.00
`
` 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.
`Id. 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.” Id. at 95.
`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.” Id. at 96.
`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. Id. at 96–97.
`After Langkamp’s motion for reconsideration was
`denied, he filed a timely appeal with this court. We have
`jurisdiction under 28 U.S.C. § 1295(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, 915 F.3d
`733, 738 (Fed. Cir. 2019); Sevenson Envtl. Servs., Inc. v.
`Shaw Envtl., Inc., 477 F.3d 1361, 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, 465 F.3d 1329, 1336
`(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, 335 F.3d 1373, 1379
`(Fed. Cir. 2003).
`II. The Settlement Agreement
`interpretation begins with the plain
`“Contract
`language of the written agreement.” Hercules Inc. v.
`United States, 292 F.3d 1378, 1380 (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, 900 F.3d 1379, 1381 (Fed. Cir.
`2018); Nutt v. United States, 837 F.3d 1292, 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, 900 F.3d at 1382 (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. 837 F.3d at 1296. 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.” Id. at 1297. 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.” Id.
`(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.” Id. at 1298
`(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.’” Id. (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, 900 F.3d at 1381. 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.” Id. at
`1384.
`Because the government’s duty under the settlement
`agreements in Nutt, 837 F.3d at 1294, and Shaw, 900 F.3d
`at 1381, 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, 131 Fed. Cl. at 94.
`
`

`

`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. Id. 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, 64 F.3d 833, 839 (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, 731 F.2d 153, 157 (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, 93 Cal. Rptr. 3d 321, 325 (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, 64 F.3d
`at 840 (“[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, 97 F.3d 1431, 1435 (Fed. Cir. 1996); see also
`NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159
`(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.,
`926 F.3d 48, 50 (1st Cir. 2019); see also Old Republic Ins.
`Co. v. Ashley, 722 S.W.2d 55, 57 (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, 783 F.2d 45, 47 (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, 722 S.W.2d at 58 (stating that
`“[t]he prevailing law is that a structured settlement should
`be valued at its present cash value”); Merendino v. FMC
`Corp., 438 A.2d 365, 368 (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.” 837 F.3d at
`1296.
`
`