text: Oracle Corporation et al v. SAP AG et al Doc. 795 Att. 16 TAB 16 Dockets.Justia.com Page 1 121 F.3d 715, 1997 WL 469636 (C.A.9 (Cal.)), 10 NDLR P 291 (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 121 F.3d 715, 1997 WL 469636 (C.A.9 (Cal.))) NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Ninth Circuit. MILAD ISKANDER, Executor of the Estate of Laila Z. Iskander, deceased, Plaintiff-Appellant, v. RODEO SANITARY DISTRICT, a California public entity; Ray Guanill, Defendants-Appellees. No. 95-16914. Aug. 18, 1997. Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding Argued and Submitted January 15, 1997 San Francisco, California FN** Before: LAY GOODWIN, and SCHROEDER , Circuit Judges. FN** The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation. trict court's summary judgment and judgment following a jury trial of Laila Iskander's claims against defendants Rodeo Sanitary District ("Rodeo") and Ray Guanill. We have jurisdiction pursuant to 28 U.S.C. � 1291, and we affirm. The motion for substitution of party is granted, and we address the merits of the appeal. The first issue appellant raises is whether the district court erred in holding that Title II of the Americans with Disabilities Act, 42 U.S.C. �� 12131-65, did not apply to a public agency employing fewer than 15 people. Assuming the answer is yes, we look to the merits of the claim that Rodeo discriminated against the plaintiff on the basis of disability. The merits of this claim are the same as the merits of the state law claim of discrimination on account of medical condition. The only assertion on appeal is that the plaintiff could have returned to work if Rodeo had made reasonable accommodations for her medical condition. However, there is no evidence to support the premise that the plaintiff ever attempted to return to work after the cancer surgery. See Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.1996). Appellant relies upon Fisher v. Superior Court of San Francisco, 223 Cal.Rptr. 203 (Cal.Ct.App.1986), but that case is distinguishable because there the plaintiff did try to go back to work. We therefore conclude that judgment on both the federal and the state claims of discrimination on the basis of disability was proper. See Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1994). The second issue is whether the district court erroneously admitted into evidence letters containing settlement negotiations in violation of Fed.R.Evid. 408. The letters were not admitted to show that defendants offered to settle the case, but to show that the plaintiff was not terminated when she claimed she was. The portions of the letters referring to settlement were not before the jury. There was no error. See Fed.R.Evid. 408. MEMORANDUM FN* FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. *1 Milad Iskander, husband of the deceased plaintiff Laila Iskander, moves for substitution as a party to this appeal and appeals portions of the dis- � 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 121 F.3d 715, 1997 WL 469636 (C.A.9 (Cal.)), 10 NDLR P 291 (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 121 F.3d 715, 1997 WL 469636 (C.A.9 (Cal.))) The third issue is whether the district court erred by instructing the jury that the plaintiff was required to prove that the underlying acts for which she claimed unlawful retaliation occurred within a oneyear statutory period. This was an erroneous statement of the law. See Cal. Gov.Code � 12960; Strother v. Southern Cal. Permanente Med. Group, 79 F.3d 859, 868 n. 11 (9th Cir.1996). The plaintiff, however, does not show how the instruction could have affected the jury's verdict, see Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992), and has not identified significant events that occurred outside the one-year period. The fourth issue is whether the district court erred by instructing the jury that conduct constituting workplace harassment had to take place at the plant location and not at the plaintiff's home. The district court's instruction was incorrect. See Capital City Foods v. Superior Court, 7 Cal.Rptr.2d 418, 422 (Cal.Ct.App.1992). Nevertheless, the letters the plaintiff received at home asking about when she would return to work do not rise to the level of harassment, which requires hostility and abuse. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). *2 Finally, the district court did not abuse its discretion by refusing to admit evidence of Griffin's alleged misconduct, because, in light of his resignation and the lack of any continuing relationship between him and other of Rodeo's employees, the continuing violation doctrine does not apply. See Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir.1996). AFFIRMED. C.A.9 (Cal.),1997. Iskander v. Rodeo Sanitary District 121 F.3d 715, 1997 WL 469636 (C.A.9 (Cal.)), 10 NDLR P 291 END OF DOCUMENT � 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Richmond Sunlight » HB1966: Uniform Statewide Building Code; issuance of building permits.
HB1966: Uniform Statewide Building Code; issuance of building permits.
§ 36-105. Enforcement of Code; appeals from decisions of local department; inspection of buildings; inspection warrants; inspection of elevators; issuance of permits.
A. Enforcement generally. Enforcement of the provisions of the Building Code for construction and rehabilitation shall be the responsibility of the local building department. There shall be established within each local building department a local board of Building Code appeals whose composition, duties and responsibilities shall be prescribed in the Building Code. Any person aggrieved by the local building department's application of the Building Code or refusal to grant a modification to the provisions of the Building Code may appeal to the local board of Building Code appeals. No appeal to the State Building Code Technical Review Board shall lie prior to a final determination by the local board of Building Code appeals. Whenever a county or a municipality does not have such a building department or board of Building Code appeals, the local governing body shall enter into an agreement with the local governing body of another county or municipality or with some other agency, or a state agency approved by the Department for such enforcement and appeals resulting therefrom.
For the purposes of this section, towns with a population of less than 3,500 may elect to administer and enforce the Building Code; however, where the town does not elect to administer and enforce the Building Code, the county in which the town is situated shall administer and enforce the Building Code for the town. In the event that such town is situated in two or more counties, those counties shall administer and enforce the Building Code for that portion of the town situated within their respective boundaries. Additionally, the local governing body of a county or municipality may enter into an agreement with the governing body of another county or municipality for the provision to such county or municipality's local building department of technical assistance with administration and enforcement of the Building Code.
B. New construction. Any building or structure may be inspected at any time before completion, and shall not be deemed in compliance until approved by the inspecting authority. Where the construction cost is less than $2,500, however, the inspection may, in the discretion of the inspecting authority, be waived. A building official may issue an annual permit for any construction regulated by the Building Code. The building official shall coordinate all reports of inspections for compliance with the Building Code, with inspections of fire and health officials delegated such authority, prior to issuance of an occupancy permit. Fees may be levied by the local governing body in order to defray the cost of such enforcement and appeals. With the exception of the levy imposed pursuant to § 36-137, any fees levied pursuant to this subsection shall be used only to support the functions of the local building department.
C. Existing buildings and structures.
1. Inspections and enforcement of the Building Code. The local governing body may also inspect and enforce the provisions of the Building Code for existing buildings and structures, whether occupied or not. Such inspection and enforcement shall be carried out by an agency or department designated by the local governing body.
2. Complaints by tenants. However, upon a finding by the local building department, following a complaint by a tenant of a residential dwelling unit that is the subject of such complaint, that there may be a violation of the unsafe structures provisions of the Building Code, the local building department shall enforce such provisions.
4. Transfer of ownership. If the local building department has initiated an enforcement action against the owner of a building or structure and such owner subsequently transfers the ownership of the building or structure to an entity in which the owner holds an ownership interest greater than 50 percent, the pending enforcement action shall continue to be enforced against the owner.
5. Elevator, escalator, or related conveyance inspections. The local governing body shall, however, inspect and enforce the Building Code for elevators, escalators, or related conveyances, except for elevators in single- and two-family homes and townhouses. Such inspection shall be carried out by an agency or department designated by the local governing body.
6. A locality may require by ordinance that any landmark, building or structure that contributes to a district delineated pursuant to § 15.2-2306 shall not be razed, demolished or moved until the razing, demolition or moving thereof is approved by the review board, or, on appeal, by the governing body after consultation with the review board unless the local maintenance code official consistent with the Uniform Statewide Building Code, Part III Maintenance, determines that it constitutes such a hazard that it shall be razed, demolished or moved.
For the purpose of this subdivision, a contributing landmark, building or structure is one that adds to or is consistent with the historic or architectural qualities, historic associations, or values for which the district was established pursuant to § 15.2-2306, because it (i) was present during the period of significance, (ii) relates to the documented significance of the district, and (iii) possesses historic integrity or is capable of yielding important information about the period.
7. Fees may be levied by the local governing body in order to defray the cost of such enforcement and appeals. For purposes of this section, "defray the cost" may include the fair and reasonable costs incurred for such enforcement during normal business hours, but shall not include overtime costs unless conducted outside of the normal working hours established by the locality. A schedule of such costs shall be adopted by the local governing body in a local ordinance. A locality shall not charge an overtime rate for inspections conducted during the normal business hours established by the locality. With the exception of the levy imposed pursuant to § 36-137, any fees levied pursuant to this subdivision shall be used only to support the functions of the local building department. Nothing herein shall be construed to prohibit a private entity from conducting such inspections, provided the private entity has been approved to perform such inspections in accordance with the written policy of the maintenance code official for the locality.
1. Fees may be levied by the local governing body to be paid by the applicant for the issuance of a building permit as otherwise provided under this chapter,; however, notwithstanding any provision of law, general or special, if the applicant for a building permit is a tenant or the owner of an easement on the owner's property, such applicant shall not be denied a permit under the Building Code solely upon the basis that the property owner has financial obligations to the locality that constitute a lien on such property in favor of the locality. If such applicant is the property owner, in addition to payment of the fees for issuance of a building permit, the locality may require full payment of any and all financial obligations of the property owner to the locality to satisfy such lien prior to issuance of such permit. For purposes of this subsection subdivision, "property owner" means the owner of such property as reflected in the land records of the circuit court clerk where the property is located, the owner's agent, or any entity in which the owner holds an ownership interest greater than 50 percent.
2. In the event that a local building department denies an application for the issuance of a building permit, the local building department shall provide to the applicant a written explanation detailing the reasons for which the application was denied. The applicant may submit a revised application addressing the reasons for which the application was previously denied, and if the applicant does so, the local building department shall be encouraged, but not required, to limit its review of the revised application to only those portions of the application that were previously deemed inadequate and that the applicant has revised.
HOUSE BILL NO. 1966 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the House Committee on General Laws on January 29, 2019) (Patron Prior to Substitute--Delegate Yancey) A BILL to amend and reenact § 36-105 of the Code of Virginia, relating to the Uniform Statewide Building Code; issuance of building permits.
B. New construction. Any building or structure may be inspected at any time before completion, and shall not be deemed in compliance until approved by the inspecting authority. Where the construction cost is less than $2,500, however, the inspection may, in the discretion of the inspecting authority, be waived. A building official may issue an annual permit for any construction regulated by the Building Code. The building official shall coordinate all reports of inspections for compliance with the Building Code, with inspections of fire and health officials delegated such authority, prior to issuance of an occupancy permit. Fees may be levied by the local governing body in order to defray the cost of such enforcement and appeals.
7. Fees may be levied by the local governing body in order to defray the cost of such enforcement and appeals. For purposes of this section, "defray the cost" may include the fair and reasonable costs incurred for such enforcement during normal business hours, but shall not include overtime costs unless conducted outside of the normal working hours established by the locality. A schedule of such costs shall be adopted by the local governing body in a local ordinance. A locality shall not charge an overtime rate for inspections conducted during the normal business hours established by the locality. Any fees levied pursuant to this subdivision shall be used only to support the functions of the local building department. Nothing herein shall be construed to prohibit a private entity from conducting such inspections, provided the private entity has been approved to perform such inspections in accordance with the written policy of the maintenance code official for the locality.
HOUSE BILL NO. 1966 Offered January 9, 2019 Prefiled January 7, 2019 A BILL to amend and reenact § 36-105 of the Code of Virginia, relating to the Uniform Statewide Building Code; issuance of building permits.
7. Fees may be levied by the local governing body in order to defray the cost of such enforcement and appeals. For purposes of this section, "defray the cost" may include the fair and reasonable costs incurred for such enforcement during normal business hours, but shall not include overtime costs unless conducted outside of the normal working hours established by the locality. A schedule of such costs shall be adopted by the local governing body in a local ordinance. A locality shall not charge an overtime rate for inspections conducted during the normal business hours established by the locality. Nothing herein shall be construed to prohibit a private entity from conducting such inspections, provided the private entity has been approved to perform such inspections in accordance with the written policy of the maintenance code official for the locality.
2. In the event that a local building department denies an application for the issuance of a building permit, the local building department shall provide to the applicant a written explanation detailing the reasons for which the application was denied. The applicant may submit a revised application addressing the reasons for which the application was previously denied, and if the applicant does so, the local building department shall limit its review of the revised application to only those portions of the application that were previously deemed inadequate and that the applicant has revised.
For a plain English description of this bill, comments, voting, tagging, etc., return to the main page for HB1966.


ANDREW MORAN, et al., Plaintiffs, vs. RUAN LOGISTICS, et al., Defendants.
This civil action is before the Court on Plaintiffs’ motion to amend the complaint (Doc. 11) and the Defendants’ responsive memorandum (Doc. 12), as well as Defendants’ motion for partial dismissal (Doc. 5) and the parties’ responsive memoranda (Docs. 10, 13).
For purposes of this motion to dismiss, the Court must: (1) view the complaint in the light most favorable to the Plaintiffs; and (2) take all well-pleaded factual allegations as true. Tackett v. M & G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
On October 5, 2016, Plaintiff Andrew Moran was struck by a tire that had separated from the rim of a tractor trailer. (Doc. 1 at ¶ 12). Plaintiff was severely injured and airlifted to the University of Cincinnati Medical Center. (Id. at [*2] ¶¶ 13-14). The truck whose tire struck Plaintiff is owned by Defendant Ryder Truck Rental (“Ryder”) and was leased to and operated by Defendant Ruan Logistics (“Ruan”). (Id. at ¶ 16). Defendant Anthony Alford, and employee of Ruan Logistics, was the driver of the truck. (Id. at ¶ 17).
Plaintiff Andrew Moran alleges that he has suffered severe and catastrophic injuries, incurred large medical bills, and has suffered mental and emotion trauma. (Id. at ¶ 24). Plaintiff Karen Madden, Moran’s fiancée, has allegedly suffered emotional and mental trauma, and the loss of consortium with Moran. (Id. at ¶ 25).
Count XII: Loss of Consortium against all Defendants (Id. at ¶¶ 103-04).
In response to the complaint, Defendants filed a motion for partial dismissal (Doc. 5) and an answer. (Doc. 7). In conjunction with their response to the motion to dismiss (Doc. 10), Plaintiffs filed a motion to amend the complaint (Doc. 11). Both the motion to dismiss and the motion to amend the complaint are ripe for review.
Pursuant to Fed. R. Civ. P. 15(a), “leave to amend a pleading shall be freely given when justice so requires.” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (citing Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Rule 15(a) embodies “a liberal policy of permitting amendments to ensure the determinations of claims on their merits.” Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987). In deciding a party’s motion for leave to amend, the Court of Appeals for the Sixth Circuit has instructed that district courts must consider several elements, including “[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure [*4] to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendments . . . .” Coe, 161 F.3d at 341. In the absence of any of these findings, leave should be “freely given.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).
Ultimately, determination of whether justice requires the amendment is entrusted to the sound discretion of a district court. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986).
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Pleadings offering mere “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (citing Twombly, 550 U.S. at 555). In fact, in determining a motion to dismiss, “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation[.]'” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). Further, “[f]actual allegations must be enough to raise a right [*5] to relief above the speculative level[.]” Id.
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678. A claim is plausible where a “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that the pleader is entitled to relief,'” the case shall be dismissed. Id. (citing Fed. Rule Civ. P. 8(a)(2)).
Defendants argues that Plaintiffs’ motion to amend the complaint should be denied because Plaintiffs’ proposed amendments are futile and would not survive Defendants’ pending partial motion to dismiss. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003)) (“[L]eave to amend may be denied where the amendment would be futile.”); Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) (“A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”)). Accordingly, this Court’s analysis of Plaintiffs’ motion for leave to amend is dependent upon the application of the arguments in Defendants’ motion to dismiss to Plaintiffs’ proposed amendments to the complaint.
For the reasons set forth below, Plaintiffs’ proposed amendments to the complaint are futile. Therefore, Plaintiffs’ motion to amend the complaint is denied.
Defendants move to dismiss Plaintiffs’ negligence claim against Ruan and Ryder. Defendants contend that Count I is duplicative of other claims against Ruan (Counts II, III, and IX) and [*7] Ryder (Counts II and IV). Defendants do not seek to dismiss negligence claims against Alford.
It is appropriate for a court to dismiss duplicative claims as it does not prejudice a plaintiff. See BAC Home Loans Servicing LP v. Fall Oaks Farm LLC, 2012 U.S. Dist. LEXIS 112528, 2012 WL 3283397, at *3 (S.D. Ohio Aug. 10, 2012); Smith v. Bd. of Trustees Lakeland Cmty. Coll., 746 F.Supp.2d 877, 899 (N.D. Ohio 2010) (“it is axiomatic that [plaintiff] cannot assert two separate counts alleging the exact same claims” (citing Mohr v. Chicago Sch. Reform Bd. of Trustees of the Bd. of Educ.,993 F.Supp. 1155, 1157 (N.D. Ill. 1998))); Foster v. City of Southfield, 1996 U.S. App. LEXIS 33964, 1996 WL 742291, at *6 (6th Cir. Dec. 20, 1996) (“It was not error for the District Court to conclude that submitting both claims to the jury would be duplicative and potentially confusing to the jury.”).
In Count I, Plaintiffs allege that Ruan was negligent by (1) failing its responsibilities under the FMCSR; (2) failing to properly inspect, maintain, and repair the truck, and (3) failing to properly train Alford. (Doc. 1 at ¶¶ 28-31). These allegations are plainly duplicative of Count II, Count III, and Count IV, respectively.
In Count I, Plaintiffs allege that Ruan was negligent by: (1) failing to meet its responsibilities under the FMCSR; and (2) failing to properly inspect, maintain, and repair the truck. (Doc. 1 at ¶¶ 28-31). These allegations are plainly duplicative of Count II and Count IV, respectively.
Defendants move to dismiss Count II of the complaint brought under the FMCSR. (Doc. 5 at 4-7). Plaintiffs have conceded that there is no private cause of action for violation of the FMCSR and have agreed to eliminate this claim. (Doc. 10 at 5-6). Accordingly, dismissal of Count II with prejudice is warranted.
Defendants move to dismiss Count V of the complaint against Ruan for negligent entrustment. Plaintiffs propose to amend the complaint to clarify that the negligent entrustment claim is brought under O.R.C. § 4511.203. In the alternative, Plaintiffs request that Count V be dismissed without prejudice. (Doc. 10 at 27). Defendants do not object to dismissal without prejudice for this claim. (Doc. 13 at 5).
Under Ohio Law, a negligent entrustment claim has five elements: (1) the existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s actual or constructive knowledge of such incompetence, (4) the employee’s act or omission causing the plaintiff’s injuries, and (5) the employer’s negligence in hiring, supervising, or entrusting the employee as the proximate [*9] cause of the plaintiff’s injuries. Bush v. Am. Honda Motor Co., 227 F. Supp. 2d 780, 801 (S.D. Ohio 2002); Ford v. Brooks, 10th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 22.
In order to a survive a motion to dismiss on a negligent entrustment claim, a plaintiff must “plead[s] facts which indicate that the individual hired had a past history of criminal, tortious, or otherwise dangerous conduct about which the [employer] knew or could have discovered through reasonable investigation.” Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584, 590 (Ohio 1991); see Jones v. Praxair, Inc., No. 3:15-cv-277, 2016 U.S. Dist. LEXIS 83993, 2016 WL 3582128, at *2-4 (S.D. Ohio June 28, 2016). Here, Plaintiffs’ complaint contains no such alleged facts.
In a similar case before this Court, the plaintiffs’ negligent entrustment claim was dismissed where the plaintiffs’ complaint contained “no factual allegations to support a finding that, when [the employer] entrusted [the employee] with the tractor semi-tanker, it knew or should have known that he was an incompetent driver . . . the Complaint does not allege that [the driver] had a history of accidents or moving violations, or had a history of drug or alcohol abuse . . . Plaintiffs’ conclusory allegation that [the employer] knew or should have know of [the employee’s] incompetence is insufficient to state a claim of negligent entrustment.” Jones, 2016 U.S. Dist. LEXIS 83993, 2016 WL 3582128, at *6-7.
In this case, Plaintiffs have similarly [*10] failed to allege facts that Ruan should have been aware that Alford was incompetent. Plaintiffs seem to argue that they are entitled to discovery that may reflect that Ruan did not comply with federal regulations requiring background checks of drivers. Discovery may ultimately show that Ruan was not in compliance with federal regulations, but currently the complaint contains no factual allegations supporting a negligent entrustment claim.
Plaintiffs’ proposed amendment to clarify that the negligent entrustment claim is brought under O.R.C. § 4511.203 does not change the fact that they have failed to adequately plead negligent entrustment. Indeed, O.R.C. § 4511.203 is a traffic statute that does not provide a private right of action. Accordingly, Plaintiffs’ proposed amendment is futile.
Therefore, dismissal of Count V without prejudice is warranted.
Defendants move to dismiss Count VI of the complaint against Ryder for negligent entrustment. Plaintiffs propose to amend the complaint to clarify that the negligent entrustment claim is brought under O.R.C. § 4511.203. In the alternative, Plaintiffs request that Count VI be dismissed without prejudice. (Doc. 10 at 27). Defendants contend dismissal [*11] with prejudice is warranted for this claim. (Doc. 13 at 5).
Defendants argue dismissal of Count VI is warranted for several reasons: (1) the same reasons justifying dismissal of Count V against Ruan apply to Ryder; (2) the Graves Amendment bars liability; (3) there is no viable cause of action under Ohio law because a Ryder owes no duty with respect to Ruan’s decisions with respect to employee hiring. Defendants’ arguments have merit.
First, dismissal of Count VI is warranted for the same reasons discussed supra for Count V. Second, the Court finds that the Graves Amendment bars liability for Ryder. Courts have found that the Graves Amendment savings clause (49 U.S.C. § 30106(a)(2)) only applies “to claims predicated on criminal wrongdoing and negligent maintenance claims – not claims of negligent entrustment.” See, e.g., Dubose v. Transp. Enter. Leasing, LLC, 2009 U.S. Dist. LEXIS 5693, 2009 WL 210724, at * 5 (M.D. Fla. Jan. 27, 2009). Therefore, Plaintiffs’ negligent entrustment claim against Ryder is barred under the Graves Amendment.
As discussed in dismissing Count V, Plaintiffs’ proposed amendment to clarify that the negligent entrustment claim is brought under O.R.C. § 4511.203 is futile. Section 4511.203(F) expressly exempts vehicle rental companies from liability: “This section does not apply to motor vehicle rental dealers or motor vehicle leasing dealers, as defined in section 4549.65 of the Revised Code.” O.R.C. 4511.203(F). Therefore, the [*12] Court finds that there is no viable cause of action against Ryder for negligent entrustment.
For the reasons above, dismissal of Count VI with prejudice is warranted.
Defendants move to dismiss Count VIII of the complaint against Ryder for agency liability. Plaintiffs oppose dismissal of Count VIII, but in the alternative request that Count VIII be dismissed without prejudice. (Doc. 10 at 28). Defendants argue that dismissal with prejudice is warranted on Count VIII.
Defendants argue that Count VIII should be dismissed for two reasons: (1) Plaintiffs do not allege an agency/employment relationship between Ryder and Alford and (2) the Graves Amendment (49 U.S.C. 30106(a)) prohibits vicarious liability for companies in the business of renting motor vehicles. (Doc. 5 at 8). Defendants’ arguments have merit.
Under Ohio law, agency liability requires (1) a principal-agent relationship between the company and the putative employee and (2) the putative employee acting tortuously within the course and scope of employment with the company. Thomas Reserves Network, 2011-Ohio-5857, ¶ 37 (Ohio App. Nov. 14, 2011). Here, Plaintiffs’ complaint contains no allegations that Alford was an employee of Ryder, therefore no agency liability exists.
Second, Defendants [*13] argue that the Graves Amendment (49 U.S.C. § 30106(a)) bars vicarious liability claims against companies who are in the business of leasing motor vehicles. (Doc. 5 at 9-10. In their opposition, Plaintiffs correctly note that the Graves Amendment does not relieve a business of its own negligence or criminal wrongdoing. (Doc. 10 at 22). However, in this case the Graves Amendment bars liability because Count VIII does not allege any negligence or criminal wrongdoing on the part of Ryder. Moreover, courts regularly apply the Graves Amendment to bar vicarious liability claims against business renting and leasing vehicles. See, e.g., Moye v. Avis Budget Group, 2015 U.S. Dist. LEXIS 11204, 2015 WL 410515, *2 (D. Md. Jan 27, 2015) (“To the extent that this is an attempt to plead a negligence claim [against defendant] under a theory of vicarious liability for the driver’s conduct, such a claim is barred by the Graves Amendment”).
For both these reasons, dismissal of Count VIII with prejudice is warranted.
Defendants move to dismiss Count IX for negligent hiring against Ruan. Plaintiffs oppose dismissal of Count IX, but in the alternative request that Count IX be dismissed without prejudice. (Doc. 10 at 28). Defendants do not object to dismissal without prejudice for this claim. (Doc. 13 at 5).
Defendants argue that Plaintiffs insufficiently plead [*14] the negligent hiring and retention claim. Under Ohio law, a plaintiff must plead the same five elements for negligent hiring as negligent entrustment (discussed in Count V supra). “The mere incantation of the elements of a negligent hiring claim, i.e., the abstract statement that the [employer] knew or should have known about the employee’s criminal or tortious propensities, without more is not enough.” Baker v. Swift Transportation Co. of Arizona, LLC, No. 2:17-CV-909, 2018 U.S. Dist. LEXIS 75961, 2018 WL 2088006, at *4 (S.D. Ohio May 4, 2018) (citing Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584, 590 (Ohio 1991)). A plaintiff is required to plead factual allegations to support claims of negligent hiring in order to avoid dismissal. See Jones, 2016 U.S. Dist. LEXIS 83993, 2016 WL 3582128, *4. A plaintiff cannot “rely on the alleged incident itself to establish that the employee’s conduct was foreseeable to the employer.” Baker, 2018 U.S. Dist. LEXIS 75961, 2018 WL 2088006, at *4.
Here, Plaintiffs’ complaint contains no specific allegations that Alford was incompetent as is required to plead negligent hiring. Plaintiffs do not allege that Alford was unqualified, had prior accidents or moving violations, or had a history of incidents such as the alleged accident in this case. Accordingly, Plaintiffs’ complaint contains no specific allegations that Ruan was aware of dangerous propensities that would make them negligent in hiring and retaining [*15] Alford.
Therefore, dismissal of Count IX without prejudice is warranted.
Defendants move to dismiss Count X against Ryder. Plaintiffs agree to the dismissal of Count X, as long as Count VI against Ryder survives. However, as discussed supra, dismissal of Count VI is warranted.
Defendants argue that Ohio law does not recognize a cause of action for “negligent leasing.” (Doc. 5 at 8). Plaintiffs do not point to any authority indicating that “negligent leasing” is a viable cause of action under Ohio law. Moreover, in their opposition brief, Plaintiffs acknowledge that negligent leasing is “nothing more than negligent entrustment.” (Doc. 10 at 6). As the Court has already discussed, Plaintiffs’ negligent entrustment claim against Ryder fails. Therefore, for the reasons expounded in the dismissal of Count VI, dismissal of Count X with prejudice is warranted.
Defendants move to dismiss Count XI for respondeat superior because it is duplicative of Count VII for agency liability against Ruan. Plaintiffs propose that the amended complaint will eliminate Count XI and clarify that Count VII is brought under both [*16] the theories of agency and respondeat superior liability. However, this amendment is futile as it does not alter Plaintiffs’ complaint in any meaningful way as agency liability and respondeat superior liability are identical. Because Count XI is duplicative of the Count VII agency claim, dismissal of Count XI with prejudice is warranted.
Defendants move to dismiss Count XII, Plaintiff Karen Madden’s loss of consortium claim. Plaintiff Karen Madden, fiancée of Plaintiff Andrew Moran, claims she has been damaged by having to take care of Moran, endure his emotional and physical trauma, and observe the deterioration of her fiancée. This may be true; however, Madden’s claim is without merit. Under Ohio law, a fiancée does not have a claim for loss of consortium. See Namenyi v. Tomasello, 2014-Ohio-4509, ¶ 22, 2014 WL 5089113 (Ohio App. 2014) (finding that loss of consortium “is a right which grows out of marriage, is incident to marriage, and cannot exist without marriage.”); Harsh v. City of Franklin, 2009 U.S. Dist. LEXIS 25209, 2009 WL 806652, *2 (S.D. Ohio Mar. 26, 2009) (finding that a fiancée may not assert a loss of consortium claim).
Therefore, dismissal of Count XII with prejudice is warranted.
Defendants move to dismiss Plaintiffs’ requests for punitive damages and attorney’s [*17] fees.
Ohio Revised Code § 2315.21 governs punitive damages in tort actions. Punitive damages are only recoverable where the “actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.” O.R.C. 2315.21(C). To allege malice justifying punitive damages, a plaintiff must plead that the defendant demonstrated (1) hatred, ill will, or a spirit of revenge or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174, at syllabus (1987).
Dismissal of requests for punitive damages is appropriate “if the complaint fails to allege sufficient facts to support the request.” Baker, 2018 U.S. Dist. LEXIS 75961, 2018 WL 2088006, at *5-6. This Court has recently dismissed requests for punitive damages against a motor carrier where the plaintiff failed to offer “factual allegations indicating what actions [the motor carrier] took that purportedly demonstrated its conscious disregard or reckless indifference.” Id. The same holds true here. Plaintiffs have alleged no facts reflecting conscious disregard or reckless indifference demonstrating Defendants [*18] acted with malice.
In the opposition to the motion to dismiss, Plaintiffs mention that they may be entitled to punitive damages for spoliation of evidence if there is no satisfactory explanation for the absence of the tractor-trailer’s rim at issue. (Doc. 10 at 7). This may come to be true, but currently the complaint contains no factual allegations regarding spoliation of evidence that support punitive damages. Plaintiffs also contend that their negligent hiring claim supports an award for punitive damages. (Id.). However, as discussed in the analysis of Count IX supra, Plaintiffs have failed to adequately plead a negligent hiring claim.
Defendants argue that Plaintiffs’ request for attorney’s fees should be dismissed because Plaintiffs have not alleged any statutory authorization for attorney’s fees. (Doc. 5 at 18). Absent statutory authorization or an established exception, parties bear their own attorney’s fees. See Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997). Plaintiffs’ opposition to the motion to dismiss attorney’s fees does not argue that there is any statutory authorization or established exception that justifies attorney’s fees in this case.
Therefore, due to insufficient pleading, Plaintiffs’ requests for punitive damages and attorney’s [*19] fees are dismissed without prejudice.
1) Plaintiff’s motion for leave to amend the complaint (Doc. 11) is DENIED as futile.
b. Count I against Ruan and Ryder, Count II, Count VI, Count VIII, Count X, Count XI, and Count XII are DISMISSED with prejudice.
3) Plaintiffs’ motion to set initial status conference (Doc. 15) and Defendants’ motion for leave to file sur-reply instanter (Doc. 18) are DENIED as moot.
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(III) The court finds that ninety-one days or more have elapsed since it acquired jurisdiction over the respondent either as the result of process pursuant to rule 4 of the Colorado rules of civil procedure or as the result of the act of the respondent in joining as co-petitioner in the petition or in entering an appearance in any other manner.
(b) In connection with every decree of dissolution of marriage or decree of legal separation and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property; but the entry of a decree with respect to parental responsibilities, support, maintenance, or disposition of property may be deferred by the court until after the entry of the decree of dissolution of marriage or the decree of legal separation upon a finding that a deferral is in the best interests of the parties.
(II) Provides for support of the child by the husband unless paternity is specifically disclaimed in the order.
(d) Paternity is not adjudicated for a child not mentioned in the final order.
(2) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects.
History. L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-6. L. 73: p. 552, § 2. L. 77: (1)(a)(I) and (1)(a)(II) amended and (1)(a)(III) added, p. 823, § 1, effective June 1. L. 98: (1)(b) amended, p. 1395, § 34, effective February 1, 1999. L. 2003: (1)(c) and (1)(d) added, p. 1264, § 50, effective July 1. L. 2012: IP(1)(a) and (1)(b) amended, (HB12-1233), ch. 52, p. 187, § 1, effective July 1; (1)(a)(I) and (1)(a)(III) amended, (SB 12-175), ch. 208, p. 830, § 24, effective July 1.
(1) Section 3 of chapter 52, Session Laws of Colorado 2012, provides that the act amending the introductory portion to subsection (1)(a) and subsection (1)(b) applies to petitions for legal separation filed on or after July 1, 2012.
(2) Section 173 of chapter 208, Session Laws of Colorado 2012, provides that the act amending subsections (1)(a)(I) and (1)(a)(III) applies to specified time intervals.
Law reviews. For article on residence of plaintiff in divorce action, see 25 Dicta 110 (1948). For article, “Ten Years of Domestic Relations in Colorado — 1940-1950″, see 27 Dicta 399 (1950). For comment on People v. District Court, appearing below, see 31 Dicta 118 (1954). For article, “One Year Review of Civil Procedure and Appeals”, see 37 Dicta 21 (1960). For article, “One Year Review of Domestic Relations”, see 37 Dicta 55 (1960). For article, “One Year Review of Domestic Relations”, see 40 Den. L. Ctr. J. 115 (1963). For article, “Child Support Obligations After Death of the Supporting Parent”, see 16 Colo. Law. 790 (1987).
Annotator’s note. Since § 14-10-106 is similar to repealed §§ 46-1-2 and 46-1-3, C.R.S. 1963, §§ 46-1-2 and 46-1-3, CRS 53, CSA, C. 56, §§ 6 and 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
An action for divorce is of a purely personal nature. Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936); Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).
The power of the court in such an action to issue decrees relative to alimony, to exonerate the wife’s estate from the husband’s claims, and to make orders relative to the care and custody of the children is merely incidental to the primary object of changing the status or relation of the parties to each other. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).
Such actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment, and cannot be revived in the name of or against the representatives of the deceased party. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).
Masters should not be appointed as a routine matter in divorce cases where the issues are not complex and the facts are not complicated. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).
The trial court may, for good cause shown, allow an extension of time within which to file an answer in a divorce action, even though the original time within which to file has expired. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).
Not abuse to refuse continuance when party could not appear. It is not an abuse of discretion for the court to refuse to grant a continuance at a hearing as to the question of dissolution of the marriage, where the wife could not appear at the hearing. In re Lester, 647 P.2d 688 (Colo. App. 1982).
Deferring property division. A specific finding that it is in the best interest of the parties to defer the property division is required to prevent unwarranted delays in dividing property in dissolution of marriage cases. That purpose is complied with when the parties are given time limits within which to submit their proposals for the property division. In re Rose, 40 Colo. App. 176, 574 P.2d 112 (1977).
II. DOMICILE OR RESIDENCY REQUIRED.
Domicile is keystone for jurisdiction to determine the marital status, and domicile of one of the parties to the divorce action is required. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Jurisdiction cannot be conferred by consent; lack of residence cannot be waived. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957); McMillion v. McMillion, 31 Colo. 33, 497 P.2d 331 (1972).
Actual bona fide residence is essential and must be established with some degree of certainty. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).
Unless the residence required by this section is in some manner shown, the court is without jurisdiction. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).
When bona fide residence in a county is not established, the court is under a mandatory duty to refuse to hear or grant any motions whatever in an action, and its dismissal must follow. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).
Under statutes pertaining to jurisdiction in divorce proceedings, the word “residence” is synonymous with the legal meaning of the word “domicile”, and a person’s domicile, once established, continues until he acquires legal residence or domicile elsewhere. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Residence requires domicile. Residence for the purposes of divorce jurisdiction has always required and continues to require domicile. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
Where husband’s residency was established by an earlier proceeding as being in Colorado, that determination is res judicata and creates a presumption that he is still a resident, absent a showing that a new residency has been established. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).
Where jurisdictional facts are admitted in pleadings, decree is not void for failing to recite them. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).
Failure to allege 90-day residence immediately prior to proceeding is not fatal. Section 14-10-107 does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner’s failure to make her allegation in the words of this section was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).
Purpose of residency requirements was to prevent nonresidents from establishing temporary residence to obtain divorce. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
An alien who made this state his home, in good faith, and had no residence elsewhere, was a citizen within the meaning of the former statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where no witness testified to plaintiff’s residence, in answer to any direct question, but in effect it appeared that he had resided here for many years prior to the institution of his action, it was held a compliance with the statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).
Where plaintiff alleged and proved more than a year’s residence in Colorado before the commencement of the action, but defendant at the time of filing his cross complaint had resided in Colorado less than one year, the allegations of plaintiff’s complaint vested the court with jurisdiction of plaintiff and the subject matter. Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949).
Where prior to the trial plaintiff had registered to vote in Colorado, his automobile was registered in Colorado, he had a Colorado driver’s license, and for several months prior to trial he has been engaged in part-time civilian employment in Colorado Springs in a field in which he intended to continue on his retirement, and plaintiff had for four years been present in Colorado in military service, the foregoing facts formed a sound basis for the finding of the trial judge that the court had jurisdiction based on residence. Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).
Mere presence in state as member of armed forces insufficient to confer jurisdiction but after 90 days domicile may be established. A serviceman may establish a Colorado domicile to support jurisdiction for a Colorado court to grant a decree of dissolution of marriage after he has been stationed in Colorado for 90 days. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
The district courts are invested by the statute with jurisdiction in this class of actions. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891).
Only a final decree of divorce in a foreign state constitutes a bar to a divorce action in Colorado. In re Quay, 647 P.2d 693 (Colo. App. 1982).
Formerly, where a complaint alleged that the parties were residents of the state of Colorado, and that defendant had been guilty of acts of mental cruelty committed within the state of Colorado, and prayed for divorce alleging sufficient facts to give the court jurisdiction. Raygor v. Raygor, 29 Colo. App. 453, 485 P.2d 930 (1971).
Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).
A trial court which in fact lacks jurisdiction over the subject matter cannot acquire jurisdiction even though the parties expressly or impliedly consent thereto. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).
The jurisdiction of the district court of Adams county, arising from the filing and disposition of the divorce action would not preclude the district court of the city and county of Denver from proceeding pursuant to the reciprocal support act when the mother and children had moved to Nevada. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).
A district court is without jurisdiction to hear a divorce action involving two members of a reservation Indian tribe. Whyte v. District Court, 140 Colo. 334, 346 P.2d 1012 (1959), cert. denied, 363 U.S. 829, 80 S. Ct. 1600, 4 L. Ed.2d 1524 (1960).
Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962); Kelley v. Kelley, 161 Colo. 486, 423 P.2d 315 (1967).
Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband’s military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court’s continuing authority to divide property as such court had on the date of the final decree. In Re Booker, 833 P.2d 734 (Colo. 1992).
Federal act specifying whether the court has jurisdiction over a military member’s pension preempts state rules of procedure governing jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Jurisdiction retained until all matters resolved. A district court which properly acquires jurisdiction of the parties and subject matter in a dissolution action retains that jurisdiction until all matters arising out of the litigation are resolved. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).
Jurisdiction does not extend to resolution of all financial issues. Jurisdiction to grant a divorce does not automatically include the right to resolve all financial issues between the parties to the marriage. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).
The dissolution court has jurisdiction to grant relief but only in equity and not at law. Tort claims concerning property that was the subject of the dissolution court may not be joined into an otherwise equitable dissolution proceeding. In re Mockelmann, 121 P.3d 335 (Colo. App. 2005).
Where it appears from a record and from the conduct of counsel that the parties agreed that a court would defer determination of permanent alimony, property settlement, and related matters until after the entry of a final decree. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).
Although, resumption of marital relations by the parties to a divorce action affords good grounds for a dismissal thereof, it does not serve to divest the court of jurisdiction. Stockham v. Stockham, 145 Colo. 376, 358 P.2d 1026 (1961).
Husband’s motion to abate and reduce child support amounted to consent to the court’s personal jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).
Purported father found to have transacted business in state. Purported father’s sending of letter agreeing to pay support that father knew would be relied upon by Colorado authorities for purpose of determining eligibility for public assistance constituted transacting business in this state conferring personal jurisdiction over him pursuant to § 13-1-124. In re Parental Responsibilities of H.Z.G., 77 P.3d 848 (Colo. App. 2003).
Decree of dissolution entered after a spouse’s death is void for lack of jurisdiction, and the dissolution action is abated. In Re Connell, 870 P.2d 632 (Colo. App. 1994).
This section mandates that bifurcation of dissolution proceedings may occur only if the district court finds that “such a deferral is necessary in the best interest of the parties” and should only be considered in exceptional cases. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).
A decree of dissolution when entered by the district court is final to dissolve the marriage even when the district court refuses to certify the decree as a final judgment appealable under C.R.C.P. 54 (b). Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).


Car accidents are now an all too common part of modern living. If you or a loved one has been involved and injured in a Chicago automobile crash, it is important to understand the laws that allow you to receive compensation and seek justice. This will help guide your understanding of what recovery is possible and how to best to achieve it. Here is an overview of the legal context surrounding your car accident lawsuit.
Weather conditions immediately before, during and after the incident.
Traffic conditions immediately before, during and after the incident.
Road conditions immediately before, during and after the incident.
The identity, insurance information, and car information all drivers involved in the accident.
Witnesses and any statements made by drivers or anyone else.
Property damage and personal injuries sustained.
Medical reports that document treatments, notes, medications, etc. related to the incident.
If you are injured or your property is damaged due to a car accident, you must understand that your time to file a lawsuit is not infinite. This is important because there is a lot of work to be done to launch a case. You must retain an attorney, conduct investigations, review legal doctrines, and construct a case wisely.
Illinois law commands that actions for personal injuries must commence with two years. It states the following: “Actions for damages for an injury to the person…shall be commenced within 2 years ... after the cause of action accrued…” 735 ILCS 5/13-202. Now, in some circumstances, the date when the cause of action accrued might be delayed until the plaintiff has reason to know of his or her injuries.
However, with car accidents, where the triggering event is conspicuous and obvious, delaying is not likely and a filing typically must commence two years from the date of the accident. Illinois law is more lenient for actions related to property damage because it allows five years to bring legal action. It states that “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” 735 ILCS 5/13-205.
Thus, your claim for property damage arising out of a car accident has three more years of life than a similarly situated personal injury claim. Finally, for actions involving government entities or their employees, you only have one year as the law states: “(a) No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” 745 ILCS 10/8-101. In either event, the Illinois Statute of Limitations should give you great incentive to start your case soon. Find a competent auto accident attorney who can competently represent you.
Who is Responsible: Pick the Right Defendant(s)!
Was the driver an agent? If the driver was an agent of the owner of the car, then you can sue the owner. To find an agency, you have to establish 1)that the owner controlled the agent 2) that the agent assented to the control by the principal and 3)that the agency relationship benefited the principal. The first scenario where this is commonly found is in employment, but even there you have to establish more. You must show that the driver was acting in the course of their employment and was not just frolicking. Frolic in this sense is understood to be when an employee leaves the scope of work and not merely detours within it. See Pyne v. Witmer, 129 Ill.2d 351, 359 (1989). The other common agency situation is found with friendship or family. For example, if your friends or family are using your car for your purposes then you can be liable if they get into an accident. Conversely, if they are using your car for their own purposes, then you cannot be liable. See Stellmach v. Olson, 242 Ill.App.3d 61, 64 (2nd Dist. 1993).
Did the owner negligently entrust the car to the driver? The Supreme Court of Illinois has ruled that if an owner gives a car and knows or should know that it will unreasonable risk harm to others, then the owner will be liable. In Norskog v. Pfiel, it said that “To prove negligent entrustment, plaintiff must show that the (owner) gave (the driver) express or implied permission to use a dangerous instrument which they knew, or should have known, would likely be used in a manner involving an unreasonable risk of harm to others.” See 197 Ill.2d 60 (2001); see also Restatement (Second) of Torts § 308 (1965); see also Zedella v. Gibson, 165 Ill.2d 181, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995). However, it went on to limit this liability by ruling that the owner must have actual knowledge of this risk emanating from the driver and the actual ability to control the vehicle. Common examples of negligent entrustment include when the driver did not have a license, was drunk, or was under the legal age to drive.
These rules -- and the facts -- should determine who you decide to sue to maximize your financial recovery.
You can serve people personally or at their abode.
You can serve corporations on their registered agents.
You can serve out-of-state defendants by serving the Illinois Secretary of State and then use a mailing service via registered mail to the defendant’s last known address.
The defendant owed you a legal duty.
The breach directly and legally caused your injuries.
Your injuries caused your damages.
The establishment sold alcohol to the defendant.
The defendant caused the plaintiff’s injuries.
The establishment caused the defendant’s intoxicated state.
The intoxication was an important factor in the plaintiff’s injuries.
This normally involves a situation where the defendant was over-served. Note, however, that this does not require knowledge by the establishment that the defendant was already intoxicated or preclude suing several establishments for the same injuries. For more information on the Liquor Control Act see 235 ILCS 5/6-21, and for information on highway laws see 745 ILCS 10/ 605.
“The trial court may, in its discretion, with respect to punitive damages, determine whether a jury award for punitive damages is excessive, and if so, enter a remittitur and a conditional new trial. The trial court may also in its discretion, apportion the punitive damage award among the plaintiff, the plaintiff's attorney and the State of Illinois Department of Human Services.” 735 ILCS 5/2-1207.
The consequences of this are stark once you consider that after months of investigation, preparation, and trial the judge can lower the jury’s award or wipe clean the slate. Generally, a remitter should only be used when "A verdict will not be set aside unless it is so excessive as to indicate that the jury was moved by passion or prejudice, or that it exceeds the necessarily flexible limits of fair and reasonable compensation or is so large that it shocks the judicial conscience." Richter v. Northwestern Memorial Hospital, 177 Ill. App. 3d 247, 257, (1988).
“Every health care professional and health care provider that renders any service in the treatment, care, or maintenance of an injured person, except services rendered under the provisions of the Workers' Compensation Act or the Workers' Occupational Diseases Act, shall have a lien upon all claims and causes of action of the injured person for the amount of the health care professional's or health care provider's reasonable charges up to the date of payment of damages to the injured person. The total amount of all liens under this Act, however, shall not exceed 40% of the verdict, judgment, award, settlement, or compromise secured by or on behalf of the injured person on his or her claim or right of action.” 770 ILCS 23/10.
Neither one of these two categories can be more than 33% of recovery. Also, if the total of these two categories is greater than or equal to 40% then attorney’s fees cannot exceed 30%. Finally, Medicare and Medicaid have similar liens but the former has priority to the latter.
Of course, plaintiffs will often try to resolve their claims through the insurance process before initiating a trial. However, insurance proceeds may not be enough to adequately compensate you. In this case, nothing in Illinois law prohibits you from filing a lawsuit against the appropriate parties for the remainder. Also, Illinois law allows you to seek recovery from multiple parties to the extent they were responsible for your injuries and subsequent damages. Gertz v. Campbell, 55 Ill. 2d 84 (Ill. 1973).
“(i) is negligent, willful and wanton, or reckless, is a breach of an express or implied warranty, gives rise to strict liability in tort, or gives rise to liability under the provisions of any State statute, rule, or local ordinance and (ii) is a proximate cause of death, bodily injury to person, or physical damage to property for which recovery is sought.” 735 ILCS 5/2-1116(b).
“In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.” 735 ILCS 5/2-1116.
“The facts constituting any affirmative defense…and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” 735 ILCS 5/2-613(d).
Therefore, if defendants do not raise these affirmative defenses early, they are waived. Yet, if plaintiffs cannot demonstrate that their own fault in the matter is less than 50% responsible for their injuries then the case itself will be eliminated.
Death or injury: $20,000 vehicle liability insurance.
Two deaths or injuries: $40,000 vehicle liability insurance.
Vehicle and property damage: $15,000 vehicle liability insurance.
Uninsured motorist coverage: equal to insured’s injury coverage.
Typically, the insured will file an insurance claim under their own policy for medical bills, property damage, damage to their car, etc. However, if you are injured in a car accident you will typically want to move to obtain insurance proceeds from the at-fault party. If that company cannot argue that your claim is excessive or that you were really at fault then you will have a better time receiving a recovery.
However, two common arguments that insurance companies make when trying to deny third-party claims are that it was not notified of the action and that the at-fault party did not pay the required premiums. If these circumstances exist, you will have a harder time fighting the insurance company. Finally, it is entirely possible that the at-fault driver did not have any insurance. In that case, you can either make a claim with your own insurer or sue the driver for damages. Obviously, you will probably have a problem with a collection with these kinds of defendants but the court does have power to eventually get your recovery by setting up payment plans, garnishing wages, and suspending licenses.
Hopefully, this review gives you some insight into the process of a typical car accident lawsuit and illustrates the legal context in which you must bring a case. However, the particular facts and circumstances of your case will give these laws and cases deeper meaning and consequence. Do not wait. Talk to an experienced attorney today about your car accident and hear how your potential recovery is affected by these laws!
Rosenfeld Injury Lawyers LLC have helped thousands of people recover compensation for injuries sustained in Illinois car accidents. All of our cases are handled on a contingency fee basis where a fee is only charged when there is a recovery for you. Moreover, there is never a fee to discuss a case with one of our attorneys.


text:
TOWN OF NANTUCKET vs. WALTER BEINECKE, JR.
CIVIL ACTION commenced in the Land Court on June 23, 1978.
The case was heard by Sullivan, J., on a motion to dismiss.
Richard W. Renehan for the plaintiff.
John D. Dwyer for the defendant.
LIACOS, J. The plaintiff town of Nantucket filed a complaint on June 23, 1978, to obtain declaratory and injunctive relief pursuant to G. L. c. 231A, Section 1, and G. L. c. 185, Section 1 (k). The defendant, Walter Beinecke, Jr., moved to dismiss the complaint under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), on the ground, inter alia, that the complaint shows on its face that the action is barred by the statute of limitations. On January 11, 1979, a judge in the Land Court granted the motion to dismiss and ordered entry of judgment for the defendant. The plaintiff appealed, and this court granted the plaintiff's application for direct appellate review. We reverse.
The defendant's motion to dismiss raised three basic defenses in seven separate paragraphs: (1) the action is barred by the statute of limitations; (2) the action is barred by laches; and (3) the complaint fails to show that any conflict of interest "substantially influenced" the transfer of tax title in 1964.
The Land Court judge filed an opinion ruling that the plaintiff's claim was time-barred, [Note 2] and entered judgment on January 24, 1979, dismissing the plaintiff's complaint with prejudice.
Lynch v. Signal Fin. Co., 367 Mass. 503 (1975), [Note 3] in relation to an action under G. L. c. 140C, the Truth-in-Lending Act. See also Commonwealth v. Canon, 373 Mass. 494 (1977), cert. denied, 435 U.S. 933 (1978), where the court apparently assumed that the six-year limitation prescribed in G. L. c. 277, Section 63, applied to a criminal prosecution under G. L. c. 268A.
We find nothing in the legislative history of G. L. c. 268A, Section 21, which would suggest that the Legislature, by not specifically prescribing a period of time within which an action under Section 21 must be brought, intended that actions not be time-limited. If such a result had been intended, it would have been natural for the Legislature to express such an intention. Cf. Boston v. Gordon, 342 Mass. 586, 591 (1961).
sold the same to the defendant in 1967. These activities, both occurring prior to the effective date of the three-year statute, gave rise to the plaintiff's cause of action. The judge properly applied the two-year tort statute of limitations contained in G. L. c. 260, Section 2A.
To apply this principle properly in a proceeding brought by a town under G. L. c. 268A, Section 21, it is necessary to decide what person or persons in the town need know of the wrong in order to put the town on notice. Certainly each and every citizen in the town need not know, and likewise knowledge by a few unofficial persons is clearly insufficient. Even knowledge by certain town officials may be insufficient to charge the town with knowledge. For example, the town treasurer who assigned tax title to Gardner in 1964 clearly knew of the wrong complained of here, yet her involvement in the allegedly illegal transaction (even if such involvement was not culpable under the statute) precludes her knowledge from being charged to the town.
We feel that a realistic notice concept is appropriate under the Conflict of Interest Law, G. L. c. 268A, Section 21, in order to further the purposes of the legislation. The statute is aimed at restraining municipal employees from maintaining a financial interest in contracts made by a municipal agency. The purpose of the Conflict of Interest Law, at least in part, is to protect municipalities from overreaching by their employees. It would be anomalous to ignore this protective policy by charging the knowledge of the culprits as notice to the municipality being wronged by their acts, as the defendant suggests.
While we express no opinion as to when a town will be charged with knowledge in each and every case, we suggest, as a general proposition, that only when those disinterested persons who are capable of acting on behalf of the town knew or should have known of the wrong, should the town be charged with such knowledge. [Note 7] While it might be claimed, in another case, that knowledge of town counsel is sufficient to charge the town with notice, that certainly cannot be said in this case due to his active involvement in violating the statute. Obviously, in a town where the board of selectmen have been appointed as agents to bring suits on behalf of the town, their knowledge would be sufficient to charge the town. See G. L. c. 40, Section 2; Great Barrington v. Gibbons, 199 Mass. 527 (1908).
While this was dicta in the case, it cannot have failed to have been brought to the attention of the Board of Selectmen of Nantucket. This Court takes judicial notice of the geographical size of the town, its sparse population, particularly in September, the presence of a weekly newspaper which as a usual practice fully covers pending litigation and the controversies which have engaged its residents for the past several years. On September 19, 1975 the Town cumulatively had knowledge of sufficient facts to be put on notice that its employees may have violated chapter 268A and at this time the running of the statute of limitations began."
Judicial notice was properly taken with respect to the geographical size of the town, its sparse population in September, and the existence of a weekly newspaper. See Clohecy v. Haverhill, 299 Mass. 378 (1938), and Commonwealth v. Crehan, 345 Mass. 609 (1963). Matters are judicially noticed only when they are indisputably true. Matters of common knowledge or observation within the community may be judicially noticed because they so qualify. See W.B. Leach & P.J. Liacos, Massachusetts Evidence 27, 34-38 (4th ed. 1967), and cases cited therein. The geographical size of the town, its sparse population in September, and the existence of a weekly newspaper are clearly matters which satisfy the test of common knowledge. But the judge improperly took judicial notice of the following: the usual practice of the newspaper to cover pending litigation; the probable presence of an article in the newspaper relative to the Probate Court judge's mention of Sanguinetti's conflict of interest; and the board of selectmen's awareness of such article. Judicial notice is not to be extended to personal observations of the judge or juror. Duarte, petitioner, 331 Mass. 747, 749-750 (1954).
In the case at bar, as in Duarte, petitioner, supra, the judge drew the line in the wrong place. See also Ferriter v. Borthwick, 346 Mass. 391, 393 (1963). Due to the judge's improper use of judicial notice with respect to these matters, the ultimate conclusion reached by the judge was tainted by error of law and cannot stand. Whether such a decision might be reached on the basis of proper evidence is a question not now before us. The trial judge has the power, of course, to decide whether further evidence should be allowed and its legal significance as to the applicability of G. L. c. 260, Section 2A. We reverse the judgment of the Land Court and remand the case for further proceedings consistent with the principles enunciated herein.
[Note 1] General Laws c. 268A, Section 21 (a), as appearing in St. 1962, c. 779, Section 1, provides: "In addition to any other remedies provided by law, any violation of sections two, three, eight, or sections fifteen to twenty, inclusive, which has substantially influenced the action taken by any municipal agency in any particular matter shall be grounds for avoiding, rescinding or cancelling the action on such terms as the interest of the municipality and innocent third persons require."
[Note 2] The judge also concluded that the complaint was faulty in that it failed to allege "conduct substantially influencing the assignment." See Charbonnier v. Amico, 367 Mass. 146, 151 (1975); Crall v. Leominster, 362 Mass. 95, 106-107 (1972). The judge stated, however, that dismissal on this ground would be with leave to amend. The judge relied solely on an analysis of the statute of limitations in granting the defendant's motion to dismiss. Likewise, this court's disposition of the case rests solely on the statute of limitations issue.
[Note 3] In Lynch v. Signal Fin. Co., 367 Mass. 503 (1975), we noted that the Massachusetts Truth-in-Lending Act is closely modeled on the Federal Truth-in-Lending Act. In deciding that liability under G. L. c. 140C, Section 10 (b), is an action for a penalty under a penal statute subject to G. L. c. 260, Section 5, requiring that it be commenced within one year after the offense is committed, we looked to the Federal act for guidance. The plaintiff asserts that civil actions under the Massachusetts Conflict of Interest Law are not time-limited just as actions under the Federal Conflict of Interest Law, 18 U.S.C. Section 203 (1976), are not time-limited, citing United States v. Podell, 436 F. Supp. 1039, 1042 (S.D.N.Y. 1977), aff'd, 572 F.2d 31, 35 n.7 (2d Cir. 1978). The plaintiff's argument fails, however, on closer examination. The civil action in Podell, supra, was not brought under 18 U.S.C. Section 203 (1976), which is a criminal statute, but rather it was an action based on breach of fiduciary relationship. The action was not time-limited because "[t]he United States is not subject to any statute of limitations in enforcing its rights, unless Congress specifically provides otherwise. See United States v. Summerlin, 310 U.S. 414 (1940)." Podell, supra at 35 n.7. Contrast New Bedford v. Lloyd Inv. Assocs., 363 Mass. 112, 117-118 (1973).
[Note 4] We note, also, that Sanguinetti's acts while he was town counsel constituted a breach of his fiduciary duty to his client, the town. See Hendrickson v. Sears, 365 Mass. 83, 90 (1974). As indicated in Hendrickson, at least in regard to attorneys, malpractice actions may be viewed as involving a breach of contract. In McStowe v. Bornstein, 377 Mass. 804 (1979), we recognized that a client's claim against an attorney may sound in both tort and contract. The same may be true in regard to claims based on alleged violations of the Conflict of Interest Law. Neither party here has briefed the issue of the applicability of G. L. c. 260, Section 2, the six-year contract statute of limitations, and the plaintiff disclaimed such an argument in oral argument before the court. Consequently, we do not consider this issue, nor the ramifications of applying the contract statute of limitations to violations of the Conflict of Interest Law.
[Note 5] Compare this situation to a suit to set aside a conveyance of land for fraud. The problem of whether to apply the statute of limitations for fraud or the statute of limitations for recovery of land in such a situation is analyzed in Annot., 118 A.L.R. 200 (1939): "[I]n the majority of jurisdictions wherein the question has arisen, it has been held that, within the meaning of limitation statutes as ordinarily worded, a suit brought by one not in possession of land to obtain a decree setting aside a deed thereof as having been procured by fraud is one for relief on the ground of fraud, rather than an action for the recovery of real property."
[Note 6] The complaint contains no allegation of fraudulent concealment. Cf. G. L. c. 260, Section 12.
[Note 7] As to defendant's contention that the plaintiff's complaint is defective in failing to allege facts which, if proved, would demonstrate that the complaint is not barred by the statute of limitations, we note that it need not necessarily appear on the face of the complaint that those persons who are authorized to bring suit on behalf of the town were without knowledge during the period of the statute of limitations. Compare this action brought pursuant to G. L. c. 268A, Section 21, to Friedman v. Jablonski, 371 Mass. 482 (1976), and Woodcock v. American Inv. Co., 376 Mass. 169 (1978). Moreover, the trial judge indicated clearly that this was not the basis of the decision to allow the motion to dismiss.
[Note 8] The Probate Court judge stated: "During that period of time when he was town counsel for Nantucket, Roy E. Sanguinetti, Trustee of Windswept Realty Trust, purchased a parcel of tax title vacant land from said Town, through a `straw,' one of the assessors for the Town of Nantucket, for less than $100.00 on May 10, 1967. Three weeks later, on May 31, 1967, he sold it, as said Trustee, to Walter J. Beinecke, Jr. for $16,500.00, a violation of his trust as a public official and as an attorney at law. He failed to report this short term capital gain on his 1967 Fiduciary Tax Return or any other tax return, . . . a criminal offense under the laws of the United States and the Commonwealth of Massachusetts."

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Motion for late claim relief denied. Cause of action for intentional tort of wrongful confinement untimely and thus the motion was jurisdictionally defective. To that extent that the proposed claim included a State constitutional tort, the claim lacked the appearance of merit because claimant had other remedies available to vindicate the alleged constitutional violations.
A motion for late claim relief must be filed "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ). The failure to file the motion within the prescribed time period is a jurisdictional defect that precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 ).
The proposed claim alleges that claimant was confined to the SHU at Green Haven CF and issued an inmate misbehavior report (IMR) on March 18, 2016 charging claimant with possession of an altered item and a weapon. The proposed claim alleges that a Tier 3 Superintendent's Hearing was commenced on March 25, 2016, at which the Hearing Officer (HO) denied claimant's request for a witness and found claimant guilty over claimant's objections to the lack of detail in the IMR and the denial of the witness. The claim alleges that the HO sentenced claimant to six months in SHU, six months of loss of privileges and three months of loss of good time and that claimant was released from SHU on September 1, 2016. The proposed claim states that claimant appealed the HO's determination administratively and filed a CPLR article 78 petition in Supreme Court, Dutchess County in June 2016 seeking to annul and expunge the HO's determination, which was granted by the Appellate Division, Second Department on May 9, 2018. The proposed claim asserts that it is for "wrongful/excessive confinement, ministerial negligence, violation due process . . . and equal protection of the law under the Constitution of the State of New York, and for personal injury" (Cumberland Affidavit, Proposed Claim, ¶ 2; see also id., ¶¶ 27-31).
Claims alleging wrongful confinement in the context of incarceration in a correctional facility generally sound in intentional tort (see Gittens v State of New York, 132 Misc2d 399, 407 [Ct Cl 1986]) because the factual allegations in such claims usually state the elements of a cause of action for false imprisonment (see Martinez v City of Schenectady, 97 NY2d 78, 85  [defendant intended to confine plaintiff, who was conscious of the confinement and did not consent to it, and the confinement was not otherwise privileged]). In limited factual circumstances, such a claim may also sound in negligence (see Ramirez v State of New York, 171 Misc2d 677, 682 [Ct Cl 1997]), where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (see id., at 683). The periods of limitations for institutional wrongful confinement will depend upon "whether the claim is predicated on intentional or negligent conduct" (Kairis v State of New York, 113 AD3d 942, 942 [3d Dept 2014]), and a court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]).
Here, although the proposed claim asserts that it is for ministerial negligence, it does not allege any conduct by defendant's agents in the nature of failing to release claimant from confinement for which the authorization has expired, in violation of correctional rules and regulations (see Ramirez v State of New York, 171 Misc2d at 683). Rather, the proposed claim alleges that claimant served a disciplinary sanction of six months in the SHU, and that he was confined in SHU from March 18 through September 1, 2016, a period of less than six months. The proposed claim contains no allegation that defendant's agents were required to release claimant before September 1, 2016 or that he was held in SHU for more than 6 months. Thus, the proposed claim fairly sounds in the intentional tort of wrongful confinement, and not negligence. The allegation that claimant was wrongfully confined is thus subject to a one year statute of limitations (see CPLR 215 ), and accrues when the claimant is released from that confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 ). The proposed claim alleges an accrual date of September 1, 2016, which is well more than a year before the instant motion was filed on June 13, 2018. Thus the motion is untimely and must be denied with regard to a claim of wrongful confinement. However, the claim may also be construed as asserting a claim sounding in State constitutional tort for alleged violations of the state constitutional guarantees of due process and equal protection, which is subject to a three-year statute of limitations under CPLR 214 (5) (see Weimer v Lake, 268 AD2d 741, 742 , lv denied 95 NY2d 755 ; Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]; CPLR 214 ). As this motion was filed less than three years following the September 1, 2015 accrual date, it is timely with regard to a cause of action sounding in State constitutional tort,(2) and the motion will be considered as such.
In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant essentially argues that defendant had an opportunity to investigate the claim because he appealed the HO's determination administratively and sought judicial review and that defendant has access to documents and employees and will not be prejudiced if the motion is granted. Defendant does not dispute these contentions, and it appearing that defendant had notice and an opportunity to investigate and that granting the motion would not result in substantial prejudice to defendant, these three factors weigh in favor of the application.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
A cause of action sounding in State constitutional tort is maintainable only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 191-192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, the proposed claim alleges that claimant appealed the HO's determination administratively and successfully sought judicial review, and therefore claimant had an alternative remedy and did indeed vindicate the claimed constitutional rights. Thus, given the availability of other remedies, claimant's state constitutional tort cause of action is not legally actionable and the crucial factor of the appearance of merit weighs heavily against claimant's motion.
Claimant's contention that Correction Law § 24 precludes any other remedy is not persuasive, as he had an equitable remedy pursuant to CPLR article 78, and may have also sought to vindicate his rights under the parallel provision of the federal constitution in federal court. Therefore, this factor weighs against the granting of the application.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that three of the six statutory factors, including the crucial factor of appearance of merit, weigh against granting the motion for late claim relief on the proposed State constitutional tort claim. Thus, the motion to serve and file this proposed late claim will denied.
ORDERED, that claimant's motion number M-92410 is DENIED.
(3) Affirmation of J. Gardner Ryan, AAG, dated July 12, 2018.
1. Defendant's opposition papers were filed one week after the return date of the motion, with counsel for defendant averring that the Court's letter scheduling the return date "either was not received, or was not forwarded for appropriate response" (Ryan Affirmation, ¶ 3). Claimant has submitted no opposition to the Court's consideration of defendant's papers, and in the absence of any apparent prejudice to claimant and in the interests of deciding this motion on the merits, the Court considered defendant's papers on the motion.
2. Although the proposed claim asserts that it is for "personal injury" (Cumberland Affidavit, Proposed Claim, ¶ 2; see CPLR 214  [actions to recover damages for "personal injury" subject to three-year statute of limitations]), any claim for "personal injury" flows either from the intentional tort of wrongful confinement, which is barred by the statute of limitations, or constitutional tort, which is timely.
3. The cause of action sounding in constitutional tort accrued on September 1, 2016, and would have been timely had the claim been filed and served within 90 days after accrual, or on or before November 30, 2016 (see Court of Claims Act § 10 ). The instant motion was filed more than 18 months thereafter.


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FindACase | Eguizabal v. Hu and Tan, Inc.
Eguizabal v. Hu and Tan, Inc.
HU AND TAN, INC., ET AL., Defendants.
On March 3, 2017, Plaintiff Clara Garcia Eguizabal filed this action against her former employers, Hu and Tan, Inc., doing business as New Village, and 58Unity, LLC, also doing business as New Village, and their owner-operators (collectively “New Village”) alleging that New Village failed to pay her minimum wages and overtime compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. §§ 3-401 to 3-430. Am. Compl. ¶¶ 1-2, ECF No. 18. In addition, the Complaint alleges that New Village's failure to pay minimum wages and overtime compensation also violated the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl. §§ 3-501 to 3-509. Id. ¶ 2. On December 19, 2017, the parties jointly moved for court approval of the settlement agreement they have executed. Jt. Mot. & Mem., ECF No. 43. I find the net amount Eguizabal is to receive to be fair and reasonable in light of the facts of this case. Additionally, I approve the attorneys' fee award under a lodestar calculation.
Eguizabal worked in the kitchen at New Village from approximately July 29, 2015 to November 16, 2016. Am. Compl. ¶ 11. Plaintiff alleges that New Village paid her hourly wages between $4.89 and $5.57 during her tenure and typically required her to work sixty-six hours per week. Id. ¶¶ 26-35. Eguizabal also alleges that she typically worked eleven hour days and occasionally worked every day in a given week. Id. ¶¶ 31, 33. Plaintiff alleges that she was owed approximately $29, 199.70 in uncompensated overtime and minimum wages.
The Settlement Agreement: “release[s] . . . and forever discharge[s] Current and Former Defendants . . . from all and every manner of action . . . which the Plaintiff ever had, now has, or hereafter can, shall, or may have against Current and/or Former Defendants . . . . This release also includes any claim for attorney's fees.” Agreement ¶ 5(a), ECF No. 43-1. The Agreement provides for litigation costs and attorneys' fees. Jt. Mot. & Mem. 5. The parties have agreed to settle this case for $17, 400 based on the following terms: “Current Defendants” are to pay Eguizabal $7, 600.00 in wage-based and liquidated damages; “Former Defendants” are to pay Eguizabal $2, 400.00 in non-wage based damages; and “Current Defendants” are to pay Eguizabal's attorneys, DCWAGELAW, $7, 400.00 in fees and costs. Agreement ¶ 4.
Congress enacted the FLSA to protect workers from the poor wages and long hours that can result from significant inequalities in bargaining power between employers and employees. To that end, the statute's provisions are mandatory and generally are not subject to bargaining, waiver, or modification by contract or settlement. See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706 (1945). Court-approved settlement is an exception to that rule, “provided that the settlement reflects a ‘reasonable compromise of disputed issues' rather than ‘a mere waiver of statutory rights brought about by an employer's overreaching.'” Saman v. LBDP, Inc., No. DKC-12-1083, 2013 WL 2949047, at *2 (D. Md. June 13, 2013) (quoting Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350, 1354 (11th Cir. 1982)).
Although the Fourth Circuit has not addressed the factors to be considered in approving FLSA settlements, “district courts in this circuit typically employ the considerations set forth by the Eleventh Circuit in Lynn's Food Stores.” Id. at *3 (citing Hoffman v. First Student, Inc., No. WDQ-06-1882, 2010 WL 1176641, at *2 (D. Md. Mar. 23, 2010); Lopez v. NTI, LLC, 748 F.Supp.2d 471, 478 (D. Md. 2010)). The settlement must “reflect a fair and reasonable resolution of a bona fide dispute over FLSA provisions, ” which includes findings with regard to (1) whether there are FLSA issues actually in dispute, (2) the fairness and reasonableness of the settlement in light of the relevant factors from Rule 23, and (3) the reasonableness of the attorneys' fees, if included in the agreement. Id. (citing Lynn's Food Stores, 679 F.2d at 1355; Lomascolo v. Parsons Brinckerhoff, Inc., No. 08-1310, 2009 WL 3094955, at *10 (E.D. Va. Sept. 28, 2009); Lane v. Ko-Me, LLC, No. DKC-10-2261, 2011 WL 3880427, at *2-3 (D. Md. Aug. 31, 2011)). These factors are most likely to be satisfied where there is an “assurance of an adversarial context” and the employee is “represented by an attorney who can protect [her] rights under the statute.” Lynn's Food Stores, 679 F.2d at 1354.
In deciding whether a bona fide dispute exists as to a defendant's liability under the FLSA, courts examine the pleadings in the case, along with the representations and recitals in the proposed settlement agreement. See Lomascolo, 2009 WL 3094955, at *16-17. The Joint Motion and Memorandum makes clear that several issues are in bona fide dispute. Most importantly, the parties disagree about whether any violations occurred and which if any of the current and former Defendants were responsible for said violations.

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