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Carstensen v. United States

United States District Court, S.D. Indiana, Indianapolis Division

October 25, 2019

BARRY MORRIS CARSTENSEN, et al. Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          SARAH EVANS BARKER, JUDGE.

         This cause is before the Court on Defendant's Motion for Partial Summary Judgment [Dkt. 20], filed on August 9, 2019. Defendant seeks summary judgment against Plaintiff Vera Carstensen on grounds that she failed to exhaust her administrative remedies with respect to her loss of consortium claim alleged in the Complaint as required by the Federal Tort Claims Act (“FTCA”). Ms. Carstensen has not responded to Defendant's motion. For the reasons detailed below, we GRANT Defendant's Motion for Partial Summary Judgment.

         Factual Background

         This case arises from an incident that occurred on October 5, 2016, when Plaintiff Barry Carstensen, Ms. Carstensen's husband, drove a riding lawn mower off the grass and onto the roadway, attempted to cross the street, and was struck by a vehicle operated by a United States Postal Service (the “Postal Service”) carrier. Compl. at 3. Mr. Carstensen suffered a serious head injury as well as additional physical injuries as a result of the collision.

         On January 26, 2017, Phillip G. Tougate of Toufate & Spellman sent a letter to Julie Huffman, the Postal Service carrier involved in the October 5, 2016 accident, requesting her insurance company's contact information. In the letter, he indicated that he had been retained to “represent Barry Morris Carstensen regarding the above mentioned accident.” Dkt. 20-2. On February 6, 2017, a Tort Claim Coordinator for the Postal Service responded and informed Mr. Toufate that the Postal Service required a letter of representation authorizing Mr. Toufate to speak on his client's behalf. The Tort Claim Coordinator also included in the response a Standard Form 95 (“SF 95”), the form used to make a tort claim against the United States for damage, injury, or death. Dkt. 20-3.

         On April 16, 2017, Mr. Toufate sent a letter to the Postal Service, again indicating that he had “been retained to represent Barry Morris Carstensen.” Dkt. 20-4 at 1. On that same date, he submitted a SF 95 which listed the claimant as “Barry Morris Carstensen.” Id. at 3. The SF 95 instructs the claimant to “[s]tate the nature and extent of each injury or cause of death, which forms the basis of the claim. If other than claimant, state the name of the injured person or decedent.” Id. In response, Mr. Toufate listed only Mr. Carstensen's alleged injuries. Id. Mr. Toufate signed the SF 95 as the “Attorney for Barry Carstensen.” Id. On November 19, 2018, the Postal Service sent Mr. Toufate a letter denying the tort claim, indicating that the letter was being sent “Re: Your Client: Barry Morris Carstensen.” Dkt. 20-5.

         Ms. Carstensen did not file a tort claim with the Postal Service. Herbst Aff. ¶¶ 4, 6. Although mentioned in Mr. Carstensen's SF 95, she was not listed as a claimant, nor did she personally sign the form or have it signed by an authorized agent or legal representative on her behalf. In this lawsuit, Ms. Carstensen alleges a claim for lack of consortium. Compl. ¶¶ 18, 26.

         Legal Analysis

         I. Summary Judgment Standard

         Summary judgment is appropriate where there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for summary judgment if it appears that no reasonable trier of fact could find in favor of the nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip, 573 F.Supp.2d 1090, 1097 (S.D. Ind. 2008).

         Because Ms. Carstensen has failed to respond to Defendant's summary judgment motion, facts alleged in the motion are deemed admitted so long as support exists for them in the record. See S.D. Ind. Local Rule 56-1 (“A party opposing summary judgment must … file and serve a response brief and any evidence … that the party relies on to oppose the motion. The response must … identif[y] the potentially determinative facts and factual disputes that the party contends demonstrate a dispute of fact precluding summary judgment.”). This does not alter the summary judgment standard, but it does “reduce the pool” from which facts and inferences relative to the motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).

         II. Federal Tort Claims Act

         The FTCA embodies a limited waiver of the United States' sovereign immunity and is “the exclusive remedy for any tort claim resulting from the negligence of a government employee acting within the scope of employment.” Couch v. United States, 694 F.3d 852, 856 (7th Cir. 2012) (citing 28 U.S.C. § 2679(b)(1). Under the FTCA, “[t]he United States shall be liable … to tort claims in the same manner and to the same extent as a private individual under like circumstances….” 28 U.S.C. § 2674. As an express waiver of sovereign immunity, strict compliance with the provisions of the FTCA is required. Frey v. E.P.A., 270 F.3d 1129, 1135 (7th Cir. 2001). Adherence to § 2675(a) of the FTCA by the plaintiff is a jurisdictional prerequisite in any federal court action. Deloria v. Veterans Admin., 927 F.2d 1009, 1011 (7th Cir. 1991).

         Section 2675(a) of the FTCA delineates guidelines for filing a complaint under the Act, requiring that such a complaint be filed only after the federal agency involved has had the opportunity to ...


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