United States District Court, S.D. Indiana, Indianapolis Division
BARRY MORRIS CARSTENSEN, et al. Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
EVANS BARKER, JUDGE.
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.
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.
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.
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.
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.
Summary Judgment Standard
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).
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).
Federal Tort Claims Act
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).
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 ...