Premo v. U.S., Case No. 07-13188.

Decision Date02 October 2008
Docket NumberCase No. 07-13188.
Citation580 F.Supp.2d 562
PartiesJoelle PREMO, Plaintiff, v. UNITED STATES of America, United States Postal Service, and John Doe, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Lawrence T. Garcia, Allen Brothers, Detroit, MI, for Plaintiff.

Elizabeth J. Larin, Steven P. Cares, U.S. Attorney's Office, Detroit, MI, for Defendants.


AVERN COHN, District Judge.

I. Introduction

This is tort case. Plaintiff Joelle Premo is suing defendants, the United States, the United States Postal Service, and "John Doe under the Federal Tort Claims Act ("FTCA"),1 28 U.S.C. § 1346 et seq., for injuries she suffered when she was struck by a postal truck. The government argues that summary judgment is appropriate on all of Premo's claims because (1) her injuries do not constitute a "serious impairment of body function" under Michigan's No-Fault Insurance Law, Mich. Comp. L. § 500.3135 necessary to recover non-economic damages and (2) she cannot recover economic damages under No-Fault under the circumstances.2 The parties appeared before the Court for a hearing, at which the Court directed Premo to file a supplemental paper. The supplemental paper has been filed. The matter is now ready for decision. For the reasons that follow, the motion will be granted in part and denied in part. Premo is not entitled to recover non-economic damages but may recover economic damages in the event the government is found liable at trial.

II. Background

On August 7, 2006, Premo, then 19 years old, was riding her bicycle in Royal Oak, Michigan. While riding through a cross walk, she was struck by a postal truck and injured. Premo suffered multiple fractures to her leg, ankle and foot which required surgery. The nature of her injuries will be discussed infra.

Premo does not own an automobile and does not have automobile insurance. Premo, through counsel, attempted to file a claim for personal injury protection (PIP) benefits against the government under Michigan's No-Fault Act under the government's "self-insurance program." On September 15, 2006, a Tort Claims Examiner/Adjuster of the Postal Service Law Department, National Tort Center, wrote to Premo, stating in part:

The Federal Tort Claims Act ("FTCA"), codified at 28 U.S.C. § 2671-80, provides the exclusive means of pursuing a claim against the federal government based on negligence of one of its agencies or their employees, 28 U.S.C. § 2679(b)(1). Therefore, Michigan No-Fault does not apply to the United States.

Premo then filed a claim under the FTCA, seeking $197,569.80 for personal injury and property damage. On May 18, 2007, Premo was notified that her claim was denied on the grounds that an investigation failed to reveal any negligence on the part of the Post Office or its employees.

Premo then filed the instant action. She seeks damages for "medical services, lost wages, pain and suffering, fright and embarrassment, emotional trauma, damages to ... personal property (her bicycle) and future damages and injuries as yet unknown." Complaint at 120. In other words, she is seeking economic and noneconomic damages.

III. Summary Judgment

Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not enough; "the mere existence of a scintilla of evidence" in support of the nonmoving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the nonmoving party must present "significant probative evidence" in support of its opposition to the motion for summary judgment in order to defeat the motion. See Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir.1993); see also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Additionally, and significantly, "affidavits containing mere conclusions have no probative value" in summary judgment proceedings. Bsharah v. Eltra Corp., 394 F.2d 502, 503 (6th Cir.1968).

The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir.1994) (quoting Anderson, 477. U.S. at 251-52, 106 S.Ct. 2505). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir.1995). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law may summary judgment be granted. Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001).

IV. Analysis

It is well established that "the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). See also Affiliated Ute Citizens of the State of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). An absolute prerequisite to maintaining an action against the United States is a specific waiver of sovereign immunity. Under the FTCA, 28 U.S.C. § 1346(b), a federal district court has jurisdiction to hear claims

... for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government ... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 2674 also sets forth the limited waiver of immunity in pertinent part as follows: "The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances...." (Emphasis added).

Therefore, in order to determine whether a tort action can be brought against the United States, the law of the state in which the act occurred is determinative. See Frazier v. United States, 412 F.2d 22, 23 (6th Cir.1969). Here, it is undisputed that the law to be applied in this case is that of Michigan, since the accident and alleged negligence occurred in Michigan. The government's liability must be determined as it would be for an individual defendant under the same circumstances.

B. Whether Michigan's No-Fault Act Applies

The first issue presented is whether Michigan No-Fault Automobile Insurance Act, M.C.L. § 500.3101, et seq. applies to Premo's claim against the government. Premo says that the No-Fault Act does not apply, arguing that Sixth Circuit case law does not support its application and the government is estopped from contending it applies based on the letter Premo received stating that the No-Fault Act does not apply.

Courts in this Circuit have frequently applied Michigan's No-Fault Act to the United States in cases under the FTCA for damages arising from an automobile accident. See e.g. Jones v. United States, No. 06-10995, 2007 WL 614186 (E.D.Mich. Feb. 26, 2007) (unpublished); Neal v. United States, No. 95-70991, 1996 WL 33333461 (E.D.Mich. Mar. 25, 1996) (unpublished); Westfield Co. v. United States, 858 F.Supp. 658 (W.D.Mich.1993); Yeary v. United States, 754 F.Supp. 546 (E.D.Mich.1991); McAdoo v. United States, 607 F.Supp. 788 (E.D.Mich.1984); Zotos v. United States, 654 F.Supp. 36 (E.D.Mich.1986).

Premo says these cases were wrongly decided and ignore the Sixth Circuit's decision in United States v. Ferguson, 727 F.2d 555 (6th Cir.1984) and the Supreme Court's decision in United States v. Standard Oil, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). This argument is not well-taken. Both cases involved the government as a plaintiff, not a defendant and are otherwise inapplicable. In Standard Oil, the Supreme Court held that liability for damages incident to negligent injury of soldier by third persons was governed by federal law rather than by the law of the state where the soldier was injured because the scope, nature, legal incidents and consequences of the relation between persons in service and the government are fundamentally derived from federal sources and governed by federal authority. Thus, the decision apply federal common law instead of state tort law rested on the unique fact that the injured person was a soldier. That is not the case here.

In Ferguson, the Sixth Circuit held that Michigan's No-Fault Act did not apply to a negligence action brought by the government against a motorist. However, the court of appeals emphasized that at issue was the government's interest in preventing destruction of its property and not the "fair and efficient recovery of accident damages by a Michigan" resident. 727 F.2d at 557. Here, the issue is the extent to which a Michigan resident can recover damages. Thus, the holding in Ferguson does not apply.

Moreover, the court of appeals in Ferguson also noted that there was no federal statutes indicating Congress' consent to the application of state law to determine the extent of the government's recovery against...

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