Donnelly v. McLellan

• Decision Date: 11 May 1995
• Docket Number: Civ. No. 5:91-125.
• Citation: 889 F. Supp. 136
• Court: U.S. District Court — District of Vermont
• Parties: Susan T. DONNELLY, David Carroll and Alan Donnelly v. John M. McLELLAN and Washington County Public Health Service.

889 F. Supp. 136

Susan T. DONNELLY, David Carroll and Alan Donnelly v. John M. McLELLAN and Washington County Public Health Service.

Civ. No. 5:91-125.

United States District Court, D. Vermont.

May 11, 1995.

Edward W. Leckerling, III, Lisman & Lisman, Burlington, VT, for plaintiffs.

Ritchie E. Berger, Dinse, Erdmann & Clapp, Burlington, VT, for defendant John H. McLellan.

William D. Cohen, Abel, Kenlan, Schwiebert & Hall, Rutland, VT, for defendants Washington County Public Health Service, Patricia Downing, and Amy Gentore.

OPINION-ORDER

BILLINGS, Senior District Judge.

On December 12, 1994, Defendant Washington County Public Health Service ("WCPHS") motioned for summary judgment. WCPHS argues that it is entitled to judgment as a matter of law because Plaintiffs did not provide them with written notice of this suit as is required by New York's notice of claim statute. Plaintiffs oppose the Motion For Summary Judgment, contending that WCPHS is not the type of entity that is entitled to receive notice under the statute.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a medical malpractice action. Plaintiffs made allegations of negligence against Defendant Dr. John McLellan, an obstetrician at the Southwestern Vermont Medical Center ("SWVMC"), and against Defendant WCPHS, an agency of Washington County, New York ("the County"), which provides home nursing services in the County. Specifically, Plaintiffs alleged that McLellan negligently discharged Plaintiff Susan T. Donnelly from SWVMC on October 16, 1989, after she had given birth to a son by caesarian section six days earlier. Plaintiffs also claimed that the WCPHS nurses who provided Susan Donnelly with home care after her discharge were negligent because they allegedly failed to notify Dr. McLellan of Plaintiff's worsening condition.¹ A December 13, 1994 trial date was set.

On December 12, 1994, the day before trial, WCPHS raised the notice of claim issue for the first time. Claiming that the Plaintiffs had not provided them with the statutorily mandated notice, WCPHS motioned to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted, and for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). On December 13, 1994, after a conference in chambers where the Motion to Dismiss was discussed, the Court severed the claims against McLellan from those against Co-Defendant WCPHS.² The parties submitted additional memoranda pertaining to the Motion to Dismiss, and the Court heard arguments on the matter at a hearing on February 13, 1995. Following the hearing, the Court observed that the parties had submitted matters outside the pleadings to support their respective positions on the Motion to Dismiss. Consequently, in an Order dated February 15, 1995, the Court converted the Motion to Dismiss to a Motion For Summary Judgment under Fed.R.Civ.P. 56 and provided the parties with additional time to submit papers. Final papers on the issue have now been filed.

WCPHS grounds its Motion for Summary Judgment on the notice of claim requirement of section 50-i of the New York General Municipal Law. Under section 50-i, a notice of claim must be served upon a city, county, town, village, fire department or school district before the particular entity can be sued in tort. WCPHS argues that, as an agency of Washington County, it was entitled to a notice of claim under section 50-i, and that Plaintiffs' failure to provide one is cause for dismissal.

Plaintiffs agree that WCPHS is an agency of Washington County, but they observe that section 50-i does not specifically include agencies of municipalities. Plaintiffs contend that the New York legislature could have included agencies if it so desired, and that its failure to do so evidences an intent to exclude agencies of municipalities from the notice of claim requirements. Therefore, Plaintiffs conclude, WCPHS was not entitled to a notice of claim under the statute, and Plaintiffs' failure to provide one is immaterial.

II. DISCUSSION

Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The party opposing summary judgment may not rest on its pleading but must present "significant probative evidence" demonstrating that a genuine dispute of material fact exists, and that the moving party is not entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The Court must view these materials in the light most favorable to the non-movant, drawing all reasonable inferences in the non-movant's favor. Id. at 255, 106 S.Ct. at 2513-14.

A. Choice of Law

Jurisdiction in this case is based on diversity of citizenship. Because Vermont is the forum state, Vermont law supplies the rule of decision. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Therefore, we must consult Vermont's choice of law rules to determine which state's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 461 (5th Cir.1991).

Vermont adheres to the lex loci delicti rule for choice of law questions arising in tort actions. Calhoun v. Blakely, 152 Vt. 113, 116, 564 A.2d 590 (1989). Under this approach, the court must apply the law of the state where the tort occurred. Goldman v. Beaudry, 122 Vt. 299, 301, 170 A.2d 636 (1961). In the present case, the only treatment that WCPHS provided to Susan Donnelly occurred at her home in Washington County, New York. Because New York is the site of the alleged tort, New York law, including the notice of claim statute, must be applied to this case.

B. Section 50-i of the New York Notice of Claim Statute

New York's notice of claim procedures are established in section 50 of the General Municipal Law. The statute provides, in pertinent part:

1. No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or of any officer, agent or employee thereof ..., unless ... a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this chapter.

N.Y.Gen.Mun.L. § 50-i (emphasis added). Thus, under section 50-i, "(s)ervice of a notice of claim ... is a condition precedent to a lawsuit against a municipal corporation." Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 484 N.Y.S.2d 533, 534, 473 N.E.2d 761, 762 (1984). The failure to comply with this provision requiring notice and presentment of claims prior to the commencement of litigation ordinarily requires dismissal. Id. at 535, 473 N.E.2d at 763 (citing Republic of Argentina v. City of New York, 25 N.Y.2d 252, 303 N.Y.S.2d 644, 652, 250 N.E.2d 698, 704 (1969)).

It is clear from Davidson and from the terms of the statute that Washington County, a municipal corporation, enjoys the protection of the notice of claim provision. However, as Plaintiffs correctly point out, WCPHS is not itself a "county" or any other entity to which section 50-i by its terms applies. Rather, as WCPHS admits both in its supplemental memorandum and in the accompanying affidavit of James C. Tomasi, the County Attorney for Washington County, WCPHS is an agency of Washington County, State of New York. Thus, this case turns on whether an agency of a county (or of any of the other named entities) is entitled to receive a notice of claim under section 50-i. If an agency does have a right to receive a notice of claim under section 50-i, then WCPHS' Motion for Summary Judgment should be granted because Plaintiffs never provided them with the required notice. But if agencies of the named entities are not covered by the statute, then the notice of claim requirement is inapplicable and the Motion for Summary Judgment should be denied.

It is not clear from the terms of section 50-i itself whether WCPHS is a covered entity because the statutory language makes no specific reference to "agencies." Further, neither the parties nor the Court have been able to discover any New York caselaw that squarely resolves the issue. It therefore appears to the Court that whether section 50-i of the notice of claim law applies to agencies of entities specified in the statute is an unresolved question of New York law.

If a state's highest court has not yet decided an issue, "then federal authorities must apply what they find to be the state law after giving `proper regard' to relevant rulings of other courts of the State." Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967). See also Salve Regina College v. Russell, 499 U.S. 225, 226, 111 S.Ct. 1217, 1218, 113 L.Ed.2d 190 (1991) (quoting Meredith v. Winter Haven, 320 U.S. 228, 238, 64 S.Ct. 7, 13, 88 L.Ed. 9 (1943)) ("state law is to be determined in the same manner as a federal court resolves an evolving issue of federal law: `with the aid of such light as afforded by the materials for decision at hand, and in accordance with the applicable principles for determining state law'"). A federal court faced with this situation must attempt to ascertain the result that the state's courts would reach if they considered the same question. Patch v. Stanley Works, 448 F.2d 483, 488 (2d Cir.1971); American Record Pressing Co. v. U.S. Fidelity & Guaranty, 466 F.Supp. 1373, 1379 (S.D.N.Y.1979). See also McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3rd...