Rawers v. United States

Decision Date23 September 2020
Docket NumberNo. CIV 19-0034 JB\CG,CIV 19-0034 JB\CG
Citation488 F.Supp.3d 1059
Parties Karen RAWERS, Plaintiff, v. UNITED STATES of America and Clarissa Skinner-Ramp, Defendants.
CourtU.S. District Court — District of New Mexico

Jess R. Lilley, Jerome O'Connell, Lilley & O'Connell, P.A., Las Cruces, New Mexico, Attorneys for the Plaintiff.

John C. Anderson, United States Attorney, Roberto D. Ortega, Christoper F. Jeu, Sean M. Cunniff, Assistant United States Attorneys, United States Attorneys Office, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant United States’ Motion for Summary Judgment and Memorandum in Support, filed May 18, 2020 (Doc. 56)("U.S. MSJ"); and (ii) the Plaintiff's Motion for Partial Summary Judgement, filed May 18, 2020 (Doc. 57)("Rawers MSJ"). The Court held a hearing on June 15, 2020. See Clerk's Minutes at 1, filed June 15, 2020 (Doc. 69). The primary issues are: (i) whether the Court lacks subject-matter jurisdiction over the case, because Plaintiff Karen Rawers filed her lawsuit fewer than six months after submitting a new administrative claim in violation of 28 C.F.R. § 14.2(c) ; (ii) whether Rawers’ September 28 Letter constitutes an amendment per 28 C.F.R. § 14.2(c) ; and (iii) whether Defendant Clarissa Skinner-Ramp was negligent per se when she crashed into Rawers’ car. The Court concludes that: (i) it has subject-matter jurisdiction over the case, because 28 C.F.R. § 14.2(c) is a claim-processing rule rather than a jurisdictional rule; (ii) the September 28 Letter is not an amendment under 28 C.F.R. § 14.2(c) ; and (iii) Rawers has established that Skinner-Ramp acted negligently per se. The Court denies the U.S. MSJ and grants the Rawers MSJ.1

FACTUAL BACKGROUND

On April 5, 2016, Rawers’ car collided with a vehicle that a United States Postal Service ("USPS") employee was operating. See U.S. MSJ ¶ 1, at 2 (asserting this fact)(citing Complaint (Jury Trial Demanded) ¶¶ 3, 6-12, at 1, 3-4, filed January 15, 2020 (Doc. 1)("Complaint")); Rawers Response ¶ 1, at 5 (admitting this fact).

1. Breach of the Duty of Care.

At the time of the crash, Rawers was driving eastbound along Hoagland Road, in Las Cruces, New Mexico, heading to her home on Carlyle Drive, which is the next street after Chateau Drive. See Rawers MSJ ¶ 2, at 2 (asserting this fact)(citing Affidavit of Thaddeus Allen at 1 (undated), filed May 18, 2020 (Doc. 57-1)("Allen Aff.")); Deposition of Karen Rawers at 23:19-24:4 (taken February 27, 2020), filed May 18, 2020 (Doc. 57-2)("Rawers Depo."); Defendant's Response in Opposition to Plaintiff's Motion for Partial Summary Judgment at 1, filed June 9, 2020 (Doc. 63)(stating that this fact is undisputed).2

The accident occurred on Tuesday, April 5, 2016, between 4:30 p.m. and 4:50 p.m. See Rawers MSJ ¶ 1, at 1 (asserting that the collision occurred around 4:50 p.m., but dispatch was notified at 4:36 p.m.)(citing Allen Report).3 Rawers had the right of way as she drove east on Hoagland Road going through the intersection with Chateau Drive. See Rawers MSJ ¶ 4, at 2 (asserting this fact)(citing Allen Aff.; Allen Report).4 Skinner-Ramp was driving a USPS vehicle northbound on Chateau Drive towards its intersection with Hoagland Road and approached the stop sign that is on Chateau Drive, right before Chateau Drive intersects Hoagland Road. See Rawers MSJ ¶ 3, at 2 (asserting this fact)(citing Allen Aff.; Allen Report).5

Skinner-Ramp's vehicle sustained damage to its front left side, while the front of Rawers’ vehicle was damaged in the crash. See Rawers MSJ ¶ 5, at 2 (asserting that "Ms. [Skinner-Ramp] failed to yield to oncoming traffic and proceeded to drive through the intersection and pulled out into the path of Plaintiff's vehicle, causing the side of Defendant [Skinner-Ramp's] USPS delivery vehicle to collide with the front of Plaintiff's vehicle")(citing Allen Aff. ¶ 6, at 1; Allen Report at 1).6

2. Communications Between the Postal Service and Rawers.

Rawers, through her former counsel, filed a Claim for Damage, Injury or Death, Standard Form with the USPS on December 18, 2017, seeking $953,179.75 in damages arising from the accident. See U.S. MSJ ¶ 1, at 2 (asserting this fact)(citing Declaration of Stanford M. Bjurstrom (executed May 14, 2020), filed May 18, 2020 (Doc. 56-1)("Bjurstrom Decl."); Letter from Dania Gardea to Cynthia Wood (dated December 20, 2017), filed May 18, 2020 (Doc. 56-3)("Gardea Letter"); Claim for Damage, Injury, or Death (undated), filed May 18, 2020 (Doc. 56-2)("Rawers SF-95"));7 Rawers Response ¶ 7, at 6 (citing Gardea Letter at 12). The Gardea Letter states: "On behalf of my client, Ms. Karen Rawers, and based on the above information, we hereby demand $953,179.95 in full settlement of all claims." Rawers Response ¶ 7, at 6 (asserting this fact)(citing Gardea Letter at 12); Defendants’ Reply in Support of Motion for Summary Judgment ¶ 7, at 1, filed June 13, 2020 (Doc. 65)("U.S. Reply")(stating that the fact is admitted).

On March 14, 2018, Lilley & O'Connell sent a letter to the National Tort Center8 indicating that Lilley & O'Connell represents Ms. Rawers and that the Gardea Law Firm no longer represented Ms. Rawers. See Rawers MSJ ¶ 8, at 6 (asserting this fact)(citing Letter from Jerome O'Connell to Kyle Harbaugh (dated March 14, 2018), filed June 1, 2020 (Doc. 61-8)("March 14 Letter")).9 The letter states in part: "Please be advised the Lilley & O'Connell, P.A. are now representing Karen Rawers in the personal claim for damages." Rawers MSJ ¶ 8, at 6 (asserting this fact)(citing March 14 Letter at 1). The National Tort Center neither responded to nor acknowledged receipt of Rawers’ March 14 Letter. See Rawers Response ¶ 9, at 6 (asserting this fact)(citing Declaration of Jerome O'Connell, Esq. ¶ 10, at 2, filed June 1, 2020 (Doc. 61-1)("O'Connell Decl.")).10

The National Tort Center sent a letter to Rawers’ former counsel on March 23, 2018. See Rawers Response ¶ 10, at 6 (asserting this fact).11 Lilley & O'Connell responded on April 3, 2018, by again advising the USPS that she had retained new counsel. See Rawers Response ¶ 10, at 6 (asserting this fact)(citing Letter from Kathy Vinyard to Tyler Reder (dated April 3, 2018), filed June 1, 2020 (Doc. 61-10)("April 3 Letter")).12 The April 3 Letter states in part: "Enclosed is a copy of the letter sent to Mr. Harbaugh on March 14, 2018, advising that Lilley & O'Connell, P.A. are now representing Karen Rawers in the personal claim for damages." Rawers Response ¶ 10, at 6 (asserting this fact)(citing April 3 Letter at 1).13 The National Tort Center neither responded to, nor acknowledged receipt of the April 3 Letter. See Rawers Response ¶ 11, at 7 (asserting this fact)(citing O'Connell Decl. ¶ 13, at 2).14

On June 15, 2018, Lilley & O'Connell sent a letter to the National Tort Center providing references to New Mexico Jury Instructions and providing additional medical information regarding Rawers’ damages, including Rawers’ electronic medical records. See Rawers Response ¶ 12 (asserting this fact)(citing Letter from Jerome O'Connell to Tyler Reder (dated June 15, 2018), filed June 1, 2020 (Doc. 61-11)("June 15 Letter")).15 The June 15 Letter's purpose was an attempt to resolve Rawers’ Claim. See Rawers Response ¶ 12, at 7 (asserting this fact)(citing O'Connell Decl. ¶ 14, at 2).16 The National Tort Center neither responded to, nor acknowledged receipt of the June 15 Letter. See Rawers Response ¶ 13, at 7 (asserting this fact)(citing O'Connell Decl. ¶ 15, at 2).17

On September 28, 2018, Lilley & O'Connell sent a letter to the National Tort Center beginning: "This letter is a follow-up to the December 20, 2017 tort claims notice and settlement demand submitted on behalf of Ms. Rawers in $953,179.95." Rawers Response ¶ 14, at 7 (asserting this fact)(citing Letter from Jerome O'Connell to Tyler Reder (dated September 28, 2018), filed May 18, 2020 (Doc. 56-5)("Sept. 28 Letter")). See U.S. Reply ¶ 14, at 2 (stating that it admits the Sept. 28 Letter's quotations); U.S. MSJ ¶ 1, at 2 (asserting this fact)(citing Bjurstrom Decl. ¶ 5, at 2).18 In the September 28 Letter, Rawers’ counsel wrote that she had undergone additional medical procedure that the automobile collision caused. See U.S. MSJ ¶ 3, at 2 (asserting this fact)(citing Bjurstrom Decl. ¶ 5, at 2); Letter from Jerome O'Connell to Tyler Reder at 1 (dated September 28, 2018), filed May 18, 2020 (Doc. 56-5)("Sept. 28 Letter"); Rawers Response ¶ 3, at 5 (admitting that the Sept. 28 Letter provided additional information concerning her damages). In the Sept. 28 Letter, Rawers’ counsel "revoked" the SF-95 claim amount of $953,179.75 and demanded $3,500,000.00 in compensation to resolve the claim. See U.S. MSJ ¶ 4, at 2 (asserting this fact)(citing Bjurstrom Decl. ¶ 5, at 2; Sept. 28 Letter at 2-3).19 The National Tort Center neither responded to nor acknowledged receipt of the Sept. 28 Letter.20 See Rawers Response ¶ 15, at 7 (asserting this fact)(citing O'Connell Decl. ¶ 17, at 2); Amended Declaration ¶ 12, at 2.21

On January 15, 2019, Rawers filed her Complaint, asserting a claim for damages against the United States arising from the April 5, 2016, motor vehicle accident. See U.S. MSJ ¶ 5, at 2 (asserting this fact)(citing Complaint ¶¶ 3, 46, at 1, 8).22 Before Rawers filed the lawsuit, the United States did not contact Rawers regarding her claim, and it did not respond to any of her letters. See Rawers Response ¶ 16, at 7-8 (asserting this fact)(citing June 15 Letter at 1; Sept. 28 Letter at 1; O'Connell Decl. ¶¶ 10, 13, 15, 17, at 2).23 Lilley & O'Connell is the only counsel of record for Rawers; the Gardea Law Firm, P.C., has neither appeared nor participated in this litigation, and it has not had any involvement in the claim process since March, 2018. See Rawers Response ¶ 17, at 8 (asserting this fact)(citing O'Connell Decl. ¶ 8,...

To continue reading

Request your trial
4 cases
  • Lee v. Univ. of N.M.
    • United States
    • U.S. District Court — District of New Mexico
    • November 16, 2020
    ...as the statements of a party opponent; they are non-hearsay. See Rawers v. United States, No. CIV 19-0034 JB\CG, 488 F.Supp.3d 1059, 1072–73 n.2 (D.N.M. 2020) (Browning, J.)(admitting a defendant's statements regarding the car accident at issue to a police officer as statements of a party o......
  • Rawers v. U.S. & Clarissa Skinner-Ramp
    • United States
    • U.S. District Court — District of New Mexico
    • June 25, 2021
    ...care for the stimulator itself," and stating that all experts in the case are "in alignment on that topic"); Rawers v. United States, 488 F.Supp.3d 1059, 1086–89 (D.N.M. 2020) (Browning, J.)(stating that this is an undisputed fact)(" Rawers I"); United States Closing at 4 (stating that "exp......
  • Stegemann v. United States
    • United States
    • U.S. District Court — Northern District of New York
    • March 27, 2023
    ... ... Claims 2 and 3, relate to Plaintiff's kidney disease, ... which, although diagnosed after his COVID-19 diagnosis, was ... allegedly left untreated for over four years and caused an ... exacerbation of Plaintiff's COVID-19 symptoms. See ... Rawers v. United States , 488 F.Supp.3d 1059, 1131 ... (D.N.M. 2020) (finding that the plaintiff's letter could ... not “be characterized soundly as an amendment” to ... her initial claim because the letter made “no ... additional claim or statements concerning the accident ... ...
  • McWilliams v. Dinapoli
    • United States
    • U.S. District Court — Eastern District of Oklahoma
    • August 20, 2021
    ...expert report along with an expert's sworn declaration or deposition affirming the report, the unsworn report's deficiencies are cured.” Id. As part of his response to Plaintiff's above-mentioned Motion to Strike, Defendant DiNapoli has filed a motion requesting leave to file an affidavit f......
1 books & journal articles
  • CHAPTER 12 - 12-3 Report of Examining Physician or Psychologist
    • United States
    • Full Court Press Texas Discovery Title Chapter 12 Physical and Mental Examinations—Texas Rule 204
    • Invalid date
    ...Ill. 2010) (quoting Lehan v. Ambassador Programs, Inc., 190 F.R.D. 670, 671, 672 (E.D. Wash. 2000))); see Rawers v. United States, 488 F. Supp. 3d 1059, 1085 n.29 (D.N.M. 2020) (discussing different approaches and adopting the "exception circumstances" test); Anderson v. Metro-North Commute......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT