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Lopez v. United States

United States District Court, D. Maryland, Southern Division

August 3, 2015



PAUL W. GRIMM, District Judge.

This Federal Tort Claims Act case arises out of a three-vehicle collision in Washington, D.C. Before filing their claims with the Government and commencing this case, Plaintiffs submitted claims under a Personal Injury Protection insurance policy. Defendant has moved to dismiss on the grounds that, under District of Columbia ("D.C.") law, Plaintiffs' election for Personal Injury Protection is in lieu of bringing a civil suit. Plaintiffs oppose the motion, arguing that they later withdrew the election and did not intentionally waive the right to bring a civil suit. Because I find that Plaintiffs' purported withdrawal was too late and that knowing waiver of a civil suit is not required under D.C. law, I must grant the motion and dismiss the personal injury claims asserted in this case.


This civil action arises out of a three-vehicle collision in Washington, D.C. on September 21, 2012, in which a vehicle driven by Donovan Blair Astwood, an employee of the U.S. Department of State, allegedly struck a vehicle driven by non-party Jordan Etkin, which, in turn, rear-ended a vehicle owned and driven by Plaintiff Rigoberto Guevara Lopez. Compl. ¶¶ 8-10. Lopez and his passenger, Plaintiff Luis Perez Villatoro, both Maryland residents, were injured in the collision. Id. ¶¶ 2-3, 14, 18.

On April 15, 2013, both Lopez and Villatoro filed claims with the Department of State as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a). Lopez SF-95, Def.'s Mem. in Supp. of Partial Mot. to Dismiss Pursuant to Rule 12(b)(1), or in the Alternative, Rule 12(b)(6) ("Def.'s Mem.") Ex. 1, ECF No. 18-2; Villatoro SF-95, Def.'s Mem. Ex. 2, ECF No. 18-3.[1] Both disclosed that they had previously submitted a claim under Lopez's Personal Injury Protection ("PIP") insurance policy regarding the same collision for which they sought to recover against the United States under the FTCA. Lopez SF-95; Villatoro SF-95. On July 3, 2014, a year and nine months after the collision and more than six months after filing their administrative claims, Plaintiffs filed their complaint in this Court alleging two counts of negligence against Defendant United States of America-one on behalf of Lopez and one on behalf of Villatoro-under the FTCA, 28 U.S.C. § 2671 et seq. Compl. On November 19, 2014, more than two years after the collision, Plaintiffs sent a letter to Lopez's insurer, State Farm Fire & Casualty Company ("State Farm"), returning the checks previously issued under Lopez's PIP coverage and purporting to withdraw Plaintiffs' PIP claims. Letter from David J. Martin to Vincent Reyes, Jr. (Nov. 19, 2014), Def.'s Mem. Ex. 3, ECF No. 18-4.

On January 20, 2015, Defendant filed its Partial Motion to Dismiss Pursuant to Rule 12(b)(1), or in the Alternative, Rule 12(b)(6), ("Def.'s Mot."), ECF No. 18, with a supporting Memorandum, Def.'s Mem., seeking do dismiss Villatoro's claim in its entirety and Lopez's claim to the extent that it seeks damages for personal injuries, arguing that those claims are barred under the District of Columbia Compulsory/No-Fault Vehicle Insurance Act (the "No-Fault Act"), D.C. Code § 31-2405, because they elected to receive PIP coverage in lieu of a civil suit.[2] Plaintiffs filed their opposition on February 5, 2015, Pls.' Opp'n, ECF No. 19, and the Government has replied, Def.'s Reply, ECF No. 21. Having reviewed the filings, I find a hearing is not required. Loc. R. 105.6.


Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This Rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing the standard from Iqbal and Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. When ruling on such a motion, the Court must "accept the well-pled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

That said, "factual allegations must be enough to raise a right to relief above a speculative level.'" Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 472-73 (D. Md. 2009) (quoting Twombly, 550 U.S. at 545). Particularly, the Court is not required to accept as true "a legal conclusion couched as a factual allegation, " Papasan v. Allain, 478 U.S. 265, 286 (1986), or "allegations that are merely conclusory, unwarranted deductions of fact or unreasonable inferences, " Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation omitted). Additionally, Plaintiff fails to state a claim where the allegations on the face of the complaint show that an affirmative defense would bar any recovery. Jones v. Bock, 549 U.S. 199, 214-15 (2007) (citing Fed.R.Civ.P. 8(c)); see Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (noting that dismissal is proper "when the face of the complaint clearly reveals the existence of a meritorious affirmative defense").

"Matters outside of the pleadings are generally not considered in ruling on a Rule 12 motion." Williams v. Branker, 462 F.Appx. 348, 352 (4th Cir. 2012). However, "when a defendant attaches a document to its motion to dismiss, a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.'" Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999) (emendations in original)). In the Fourth Circuit, documents referenced and relied upon by the Plaintiff can be considered without converting a motion to dismiss into a motion for summary judgment. See Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); HQM, Ltd. v. Hatfield, 71 F.Supp.2d 500, 502 (D. Md. 1999).


The United States moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), or in the alternative, Fed.R.Civ.P. 12(b)(6). Def.'s Mot. However, it has not cited any authority that holds that an election to receive PIP coverage deprives the court of subject matter jurisdiction. Rather, this appears to be an affirmative defense-once an election for PIP coverage is made, the right to bring a civil suit for personal injuries is waived. Cf. Fed.R.Civ.P. 8(c). Accordingly, I will treat the Government's motion as a motion to dismiss for failure to state a claim upon which relief can be granted, rather for lack of subject matter jurisdiction.

A. Choice of Law & District of Columbia's No-Fault Act

The parties have agreed that, because the collision took place in Washington, D.C., the substantive law of the District of Columbia applies. Compl. ¶ 6; Def.'s Mem. 3; see Richards v. United States, 369 U.S. 1, 11 (1963) (in FTCA actions, the law of the state where the alleged misconduct occurred governs tort liability, including the nature and measure of damages to be awarded). Although Ward v. Nationwide Mut. Auto. Ins. Co. creates the possibility that, based on traditional choice-of-law principles, Maryland law could govern the effect of an election of PIP or no-fault coverage under a Maryland insurance policy, 614 A.2d 85 (Md. 1992) (applying District of Columbia law to ...

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