2020 WL 1905453

United States District Court, S.D. Indiana, Indianapolis Division.
VIRGINIA HOGAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.
No. 1:18-cv-03763-JPH-TAB
|
04/17/2020

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
*1 Virginia Hogan alleges that Stephen Ehrgott—an employee of the United States Postal Service—negligently caused a motor vehicle accident that caused her injury. The United States has moved for summary judgment. Dkt. [35]. Because there are triable issues of fact regarding whether Mr. Ehrgott breached his duty of care and about comparative fault, the United States’ Motion for Summary Judgment is DENIED.

I.

Facts and Background
Because the United States has moved for summary judgment under Rule 56(a), the Court views and recites the evidence in the light most favorable to Ms. Hogan and draws all reasonable inferences in her favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009).

On December 29, 2016, Ms. Hogan and Mr. Ehrgott were each driving northbound on Ronald Reagan Parkway, approaching its intersection with an on-ramp to Interstate-70 East. Dkt. 34-2 at 17 (Hogan Dep. at 79:16-20); dkt. 34-3 at 6–7 (Ehrgott Dep. at 11–12). Ms. Hogan was driving a Pontiac Grand Prix. Dkt. 34-2 at 11 (Hogan Dep. at 73:9-12). Mr. Ehrgott was driving a United States Postal Service (“USPS”) tractor-trailer in the scope of his employment with USPS. Dkt. 35 at 4 (citing Dkt. 9, dkt. 9-1 (Certification of Scope of Employment)); dkt. 35-3 at 4 (Ehrgott Dep. at 9).

The Parkway’s two right lanes turned right to I-70’s on-ramp. Dkt. 34-3 at 9 (Ehrgott Dep. at 14). Ms. Hogan was preparing to enter the on-ramp from the Parkway’s far-right lane. Dkt. 34-2 at 46 (Hogan Dep. at 123:17-23). Mr. Ehrgott was preparing to enter the on-ramp from the lane immediately to Ms. Hogan’s left. Dkt. 34-3 at 9–10 (Ehrgott Dep. at 14:3-10, 15:3-11).

Before turning right to enter I-70’s on-ramp, Ms. Hogan saw Mr. Ehrgott’s vehicle traveling straight. Dkt. 34-2 at 55–56 (Hogan Dep. at 154:3– 155:3). But when it was almost past the right turn to I-70’s on-ramp, his vehicle began turning right to enter the on-ramp. Id. at 55–56 (154:3–155:3). Ms. Hogan then lost sight of Mr. Ehrgott’s vehicle, id. at 56 (155: 11-16) and began turning right to enter I-70’s on-ramp, traveling at about 30 miles per hour while making the turn, id. at 27 (at 89:9-23)1 .

Mr. Ehrgott saw Ms. Hogan’s vehicle before he turned right to enter I-70’s on-ramp. Dkt. 34-3 at 13 (Ehrgott Dep. at 18:6-25). Mr. Ehrgott then lost sight of Ms. Hogan’s vehicle before he began turning right to enter the on-ramp. Id. Mr. Ehrgott was traveling at about 10 to 20 miles per hour2 while making the right turn to enter I-70’s on-ramp. Id. at 30, 32 (45:22-24, 47:14-22).

*2 The on-ramp had three lanes. Dkt. 34-3 at 9 (Ehrgott Dep. at 14:16-18). After her turn, Ms. Hogan moved into the middle lane of the on-ramp. Dkt. 34-2 at 37 (Hogan Dep. at 105:3-21). Her vehicle was “fully in the middle lane” of the on-ramp before the collision occurred. Id. (105:9-21). Ms. Hogan and Mr. Ehrgott collided when Mr. Ehrgott’s right front bumper struck Ms. Hogan’s left rear side door “maybe two seconds,” or “one to two seconds,” after Ms. Hogan had moved into the middle lane. Id. at 46 (123:17-23). Neither driver saw the collision happen. Id. at 16, 38 (80:4-5, 108:4-19); dkt 34-3 at 13 (Ehrgott Dep. at 18:6-25).

Ms. Hogan suffered bodily injuries, medical damages, and lost wages as a result of the collision. Dkt. 28 at 2. She filed this lawsuit against the United States under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, alleging liability for Mr. Ehrgott’s negligent acts or omissions since they were performed while he was acting within the course and scope of his employment with USPS. Id.

II.

Applicable Law
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant must inform the Court “of the basis for its motion” and specify evidence showing “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this burden, the nonmovant must “go beyond the pleadings” and identify “specific facts showing that there is a genuine issue for trial.” Id. at 324.

In ruling on a motion for summary judgment, the Court views the evidence “in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante, 555 F.3d at 584 (citation omitted). Indiana substantive law governs this case. See Webber v. Butner, 923 F.3d 479, 480–81 (7th Cir. 2019).

III.

Analysis
Ms. Hogan brought this negligence action against the United States under the FTCA, 28 U.S.C. §§ 1346, 2671 et seq. The FTCA is a limited waiver of the United States’ sovereign immunity, permitting suits against the United States for personal injury or death caused by a government employee’s negligence under circumstances in which a private person would be liable under the law of the state in which the negligent act or omission occurred. See 28 U.S.C. § 2674. There is no right to a jury trial on a claim brought under the FTCA. 28 U.S.C. § 2402; CFR § 750.32; Carlson v. Green, 446 U.S. 14, 22 (1980) (“A plaintiff cannot opt for a jury in an FTCA action.”).

To prevail on a negligence claim under Indiana law, Ms. Hogan must show: (1) Mr. Ehrgott owed her a duty of care, (2) Mr. Ehrgott breached his duty of care by allowing his conduct to fall below the applicable standard of care, and (3) Mr. Ehrgott’s breach of duty proximately caused Ms. Hogan compensable injuries. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386–87 (Ind. 2016). The Court must apply Indiana law by doing its “best to predict how the Indiana Supreme Court would decide” the issues. Webber, 923 F.3d at 482.

The United States disputes only the second requirement—breach of the duty of care. Dkt. 35 at 1. The United States contends that undisputed material facts show that Mr. Ehrgott was not traveling too fast3 and did not enter a lane that was already occupied by Ms. Hogan. Id. at 7.

*3 The assessment of “duty and breach of duty always begins with consideration of the venerable legal concept of the ‘reasonable person’….As stated in the Restatement (Second) of Torts § 283 (1965), ‘[u]nless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable [person] under like circumstances.’ Negligence occurs when conduct falls below this standard.” Key v. Hamilton, 963 N.E.2d 573, 579 (Ind. Ct. App. 2012). Motorists have a duty to use the reasonable care that an ordinary person would exercise in like or similar circumstances to avoid a collision. Chaney v. Tingley, 366 N.E.2d 707, 710 (Ind. Ct. App. 1977).

Whether a duty of care has been breached is a question of law only when the facts are undisputed, and only one inference can be drawn from those undisputed facts. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003) (citing Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371–72 (Ind. 1992)). Here, there are genuine issues of material fact as to whether Mr. Ehrgott entered a lane already occupied by Ms. Hogan. The United States argues that the undisputed evidence shows that Mr. Ehrgott did not enter a lane already occupied by Ms. Hogan. Dkt. 35 at 7. It cites Ms. Hogan’s testimony that she had been in the middle for one or two seconds before she felt the impact. Dkt. 35 at 7–8. The United States argues that “Ms. Hogan’s version of the accident is essentially that the parties simultaneously entered the middle lane of the I-70 on-ramp.” Dkt. 35 at 8.

But the designated evidence reveals conflicting testimony on this critical issue and there are different inferences that may be drawn from the testimony. Ms. Hogan testified her vehicle was “fully in the middle lane” of the on-ramp for two seconds before the collision occurred, dkt. 34-2 at 37; 41 (Hogan Dep. at 105:9-21; 109:11-16). Mr. Ehrgott, in contrast, testified that he remained in the far-left lane, and the collision occurred in the far-left lane when Ms. Hogan came into the lane he occupied, dkt. 34-3 at 10; 21 (Ehrgott Dep. at 15:12-16; 26:8-11). He also testified that before the collision occurred, he did not look over to see where Ms. Hogan’s vehicle was located. Id. at 13 (Ehrgott Dep. at 18).

Drawing all inferences in Ms. Hogan’s favor as the Court must on summary judgment, the evidence is sufficient to show that Mr. Ehrgott entered a lane already fully occupied by Ms. Hogan without first looking to see whether her vehicle was in that lane. Based on these facts and the inferences to be drawn from them, the Court could conclude that Mr. Ehrgott did not keep proper lookout or use reasonable care. See Lucus v. Richardson, 338 N.E.2d 659, 662 (Ind. Ct. App. 1975). Or the Court could conclude that the two vehicles merged at the same time and the collision was virtually impossible to avoid. See McDonald v. Lattire, 844 N.E.2d 206, 214 (Ind. Ct. App. 2006). Either way though, the Court will have to make credibility determinations to fully evaluate the witness testimony, something it cannot do on summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249–251 (1986); Williams v. City of Chicago, 733 F.3d 749, 752 (7th Cir. 2013); Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011).

The United States also argues that Ms. Hogan’s claims are barred by the Indiana Comparative Fault Act, Ind. Code § 34-51-2-1 et seq. Dkt. 35 at 9–13. Under this Act, a plaintiff is barred from recovery if her fault is greater than the defendant’s. Ind. Code § 34-51-2-6(a). A court may apportion fault only “when there is no dispute in the evidence and the fact finder is able to come to only one logical conclusion.” McKinney v. Public Service Company, 597 N.E.2d 1001, 1008 (Ind. Ct. App. 1992) (quoting Robbins v. McCarthy, 581 N.E.2d 929, 934–35 (Ind. Ct. App. 1991)).

*4 As discussed above, a critical disputed material fact is whether Mr. Erhgott entered a lane already fully occupied by Ms. Hogan. See Celotex Corp., 477 U.S. at 323; Anderson, 477 U.S. at 255; McKinney, 597 N.E.2d at 1008. Because a reasonable fact finder could infer that Mr. Ehrgott merged into a lane that Ms. Hogan already fully occupied, it could also conclude that Ms. Hogan’s fault is less than that of Mr. Ehrgott. See McKinney, 597 N.E.2d at 1008.

Summary judgment therefore must be denied on this basis as well.

IV.

Conclusion
Because there are triable issues of fact regarding whether Mr. Ehrgott breached his duty of care and about comparative fault, the United States’ Motion for Summary Judgment is DENIED. Dkt. [35]. SO ORDERED.

Date: 4/17/2020
Editor’s Note: Tabular or graphical material not displayable at this time.

Distribution:

Harvey Lee Lancaster, Jr.

HENSLEY LEGAL GROUP, PC
hlancaster@hensleylegal.com

James H. Milstone

KOPKA, PINKUS DOLIN PC
jhmilstone@kopkalaw.com

Justin R. Olson
UNITED STATES ATTORNEY’S OFFICE (Indianapolis) justin.olson2@usdoj.gov

Shelese M. Woods
UNITED STATES ATTORNEY’S OFFICE (Indianapolis) shelese.woods@usdoj.gov
All Citations
Slip Copy, 2020 WL 1905453

Footnotes

1
The posted speed limit in the area was 45 miles per hour, according to the Indiana Officer’s Standard Crash Report. Dkt. 34-1. Ms. Hogan objects to the admissibility of the crash report and seeks to strike the report from the record. Dkt. 37 at 8. Because genuine issues of material fact identified in this Order would not be resolved by the Crash Report, the Court does not address the parties’ arguments about its admissibility.

2
In its Motion, the United States claims Mr. Ehrgott was traveling approximately 10 to 15 miles per hour, but Mr. Ehrgott also testified he was in sixth gear at the time of the collision, which would put him at approximately 15 to 20 miles per hour. Dkt. 34-3 at 32 (Ehrgott Dep. 47:14-22).

3
As addressed below, there is a genuine issue of material fact about Mr. Ehrgott entering a lane already occupied by Ms. Hogan, precluding summary judgment, and so the Court does not address the parties’ arguments about Mr. Ehrgott’s speed.

2020 WL 1938892

United States District Court, S.D. Illinois.
ARTISAN AND TRUCKERS CASUALTY CO., Plaintiff,
v.
NERON LOGISTICS LLC, et al., EXPEDITE US 48 INC., AUGUSTA LOGISTICS, INC., JOHN JACKSON, FRANZ ENNS, SARA ENNS, MANITOBA PUBLIC INSURANCE, and NEW YORK MARINE AND GENERAL INSURANCE COMPANY, Defendants.
Case No. 18-CV-2220-SMY
|
04/22/2020

STACI M. YANDLE, United States District Judge

MEMORANDUM AND ORDER
*1 YANDLE, District Judge:

Pending before the Court are the Defendants Franz Enns and Sara Enns’ Motion to Dismiss (Doc. 90) and Motion to File Reply Brief out of time (Doc. 113). For the following reasons, the Motion to Dismiss is DENIED and the Motion to File Reply Brief is GRANTED in part and DENIED in part.

Background
Plaintiff Artisan and Truckers Casualty Co. (“ATCC”) filed this diversity action seeking a declaratory judgment that it does not owe a defense or indemnification to Neron Logistics LLC (“Neron”), Expedite US 48 Inc. (“Expedite”), Augusta Logistics, Inc. (“Augusta”), and John Jackson in relation to a lawsuit filed in state court by Franz and Sara Enns (collectively “Enns”) and joined by Manitoba Public Insurance (“Manitoba”).

According to the Amended Complaint for Declaratory Judgment (Doc. 82), the Enns were involved in a motor vehicle accident on I-270 in Madison County, Illinois on April 9, 2014. They filed a lawsuit in the Third Judicial Circuit, Madison County, Illinois, in which they claim the accident was caused by Jackson, who was driving a tractor/trailer at the time and was employed by Neron, Expedite, and/or Augusta.1 2 The tractor driven by Jackson was owned by Augusta and licensed/operated by Expedite and the trailer hitched to the tractor was owned by Expressway Logistics Inc. (which is not a party to this lawsuit). Expedite was insured by New York Marine and General Insurance Company (“New York Marine”) under an automobile liability policy (“New York Marine Policy”) and Neron was insured by ATCC under policy #02497773-0 in effect December 3, 2013 to December 4, 2014 (“ATCC policy”).

ATCC alleges that Neron, Expedite, Augusta, and Jackson breached the ATCC policy by failing to provide prompt notice of the accident and by failing to notify it of the lawsuit filed by the Enns and Manitoba (Counts I and II). ATCC also alleges that the tractor/trailer driven by Jackson is not a covered “auto” under the ATCC policy (Count III), that the ATCC policy, if it applies at all, only provides excess insurance (Count IV), and that the ATCC policy limits liability to accidental bodily or property damage and not the intentional torts set forth in the state court action (Count V), or the claims of breach of contract (Count VI), or the claims for punitive or exemplary damages (Count VII). Finally, ATCC alleges that the damages in the state law action are covered by the New York Marine Policy, and therefore, New York Marine owes Jackson, Augusta, Expedite, and Neron a defense and indemnification (Counts VIII and IX).

Discussion
*2 The Enns raise three arguments in their Motion to Dismiss: that this Court should abstain from exercising subject matter jurisdiction and instead use discretion to dismiss this action under the Declaratory Judgment Act, 28 U.S.C. § 2201; that this Court lacks subject matter jurisdiction; and that ATCC should be prevented from forum shopping.

With respect to this Court’s subject matter jurisdiction, the Enns argue that ATCC is owned by Progressive Commercial Insurance which has an underwriter with headquarters in Michigan, the state in which Jackson resides, thus defeating diversity jurisdiction. But the place of business of an underwriter of a parent corporation has no bearing on ATCC’s citizenship for jurisdictional purposes. See Lincoln Property Co. v. Roche, 546 U.S. 81, 94 (2005) (“But Congress surely has not directed that a corporation, for diversity-of-citizenship purposes, shall be deemed to have acquired the citizenship of all or any of its affiliates.”). Rather, for diversity purposes, the citizenship of a corporation is determined by both its place of incorporation and its principal place of business – in this case, Wisconsin and Ohio (Doc. 84, p. 2). 28 U.S.C. § 1332(c)(1). Thus, diversity of citizenship exists between Jackson and ATCC.

At least implicitly acknowledging this Court’s subject matter jurisdiction, the Enns urge the Court to abstain from exercising the same. The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction…any court of the United States…may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Id. § 2201. The Act “has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995); see also Brillhart v Excess Ins. Co. of America, 316 U.S. 491 (1942). As such, a district court may dismiss or stay an action for declaratory judgment in favor of the state court action. Wilton, 515 U.S. at 288; Brillhart, 316 U.S. at 494-495.

Typically, “the Wilton/Brillhart abstention doctrine appropriately applies in a diversity case where a declaratory judgment is sought and a parallel state proceeding also exists.” Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 986 (7th Cir. 2010). A state court proceeding is parallel when “substantially the same parties are contemporaneously litigating substantially the same issues in two fora.” Id. Here, the state court case and this federal action are not parallel suits because they are not being litigated by substantially the same parties and do not concern the same issues. The underlying state court proceedings are tort actions to recover damages for injuries and loss of property sustained in the April 9, 2014 accident and neither Plaintiff ATCC nor Defendant New York Marine are parties to or involved in the state court litigation.

That said, the Court also considers “…whether going forward with the declaratory action will serve a useful purpose in clarifying the legal obligations and relationships among the parties or will merely amount to duplicative and piecemeal litigation, and whether comparable relief is available to the plaintiff seeking a declaratory judgment in another forum or at another time.” Nationawide Ins. v. Zavalis, 52 F.3d 689, 692 (7th Cir. 1995). This action involves only the interpretation of the ATCC and New York Marine policies and a determination as to whether ATCC and/or New York Marine owe the insured a defense and indemnification for the claims asserted in the underlying state case. Such a determination will be helpful in clarifying the obligations of the insurance carriers, thereby allowing the parties in the state court action to effectively evaluate their settlement and/or trial options. These factors militate against abstention.

*3 Finally, the Enns argue that ATCC is forum shopping because “everything involved in the underlying lawsuit occurred in Madison County, Illinois.” They also maintain that it is inconvenient to litigate in this Court. This argument is totally unsupported, lacks legal merit, and therefore, does not warrant the Court’s consideration.

Conclusion
For the foregoing reasons, the Defendants Enns’ Motion to Dismiss (Doc. 90) is DENIED and Motion to File Reply Brief out of time (Doc. 113) is GRANTED in part and DENIED in part.3

IT IS SO ORDERED.

DATED: April 22, 2020

STACI M. YANDLE

United States District Judge
All Citations
Slip Copy, 2020 WL 1938892

Footnotes

1
Manitoba joined the Enns’ lawsuit as a party-plaintiff seeking compensation for damage to the tractor/trailer driven by Franz Enns at the time of the accident.

2
State court records indicate that default judgment was entered against Jackson and Augusta and the Enns voluntarily dismissed their claims against Neron and Expedite (Docs. 71-1 and 107-1). The default judgment against Jackson was subsequently vacated, Augusta was granted leave to appeal the entry of default judgment, and the Enns have refiled their claims against Neron and Expedite (with which they wish to consolidate their claims against Jackson) (Id.; Doc. 113-1).

3
The Court has considered only the statements concerning the posture of the state court litigation and not the legal arguments contained in the reply brief.