Surnow et al v. Buddemeyer et al
Filing
205
ORDER DENYING DEFENDANT COUNTY'S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING NOTICE REQUIREMENTS AND STATUTE OF LIMITATIONS, ECF NO. 96 , AND DENYING DEFENDANT BUDDEMEYER'S SUBSTANTIVE JOINDER, ECF NO. 105 &nb sp; "For the foregoing reasons, the Countys Motion for Partial Summary Judgment Regarding Notice Requirements and Statute of Limitations, ECF No. 96, is DENIED. Buddemeyers Substantive Joinder, ECF No. 105, is DENIED. IT IS SO ORDERED." Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 5/14/2019 (jo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELAINE SURNOW, individually and as
personal representative of the ESTATE
OF JEFFREY SURNOW, deceased;
MAX SURNOW; SAM SURNOW; and
LISA SURNOW
Plaintiffs,
vs.
JODY BUDDEMEYER; COUNTY OF
HAWAII; and COUNTY OF HAWAII
POLICE DEPARTMENT,
CIV. NO. 17-00038 JMS-RT
ORDER DENYING DEFENDANT
COUNTY’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
REGARDING NOTICE
REQUIREMENTS AND STATUTE
OF LIMITATIONS, ECF NO. 96,
AND DENYING DEFENDANT
BUDDEMEYER’S SUBSTANTIVE
JOINDER, ECF NO. 105
Defendants.
ORDER DENYING DEFENDANT COUNTY’S MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING NOTICE REQUIREMENTS AND
STATUTE OF LIMITATIONS, ECF NO. 96, AND DENYING DEFENDANT
BUDDEMEYER’S SUBSTANTIVE JOINDER, ECF NO. 105
I. INTRODUCTION
The issue before the Court is whether Plaintiffs provided sufficient
written notice of their injuries to Defendants County of Hawaii and the County of
Hawaii Police Department (collectively, “the County”) pursuant to Hawaii Revised
Statutes (“HRS”) § 46-72 and Hawaii County Charter § 13-18.
Because the Court finds that the Plaintiffs provided sufficient written
notice, the County’s Motion for Partial Summary Judgment Regarding Notice
Requirements and Statute of Limitations is DENIED. Defendant Jody
Buddemeyer’s (“Buddemeyer”) Substantive Joinder is also DENIED.1
II. BACKGROUND
A.
Factual Background
On the morning of March 1, 2015, Jeffrey Surnow (“Surnow”) was
riding his bicycle on Waikoloa Road in the County of Hawaii. Complaint ¶¶ 11,
13, ECF No. 1. At approximately 6:18 a.m., Buddemeyer, a Hawaii County Police
Officer, was driving his police vehicle and struck Surnow’s bicycle from behind,
causing the Surnow to be thrown from his bicycle. Id. at ¶¶ 12, 15. Surnow was
transported to Kona Community Hospital where he died several hours later. Id. at
¶ 21.
On March 11, 2015, ten days after the incident, Plaintiffs’ counsel,
Mark S. Davis, Esq., sent a letter by certified mail to Captain Randall Medeiros of
the Hawaii County Police Department and to Molly A. Stebbins, Esq. of the
Hawaii County Office of the Corporation Counsel. March 11, 2015 Letter,
attached as Ex. B to Defs.’ Motion for Partial Summ. J., ECF No. 97-4. The letter
informed the County’s legal representative that Surnow’s family had retained
counsel as a result of the accident that killed Surnow. Id. The letter informed the
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The County and Buddemeyer are referred to collectively as “Defendants.”
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County of the specific time of the accident, the general location and circumstances
of the accident, and that Surnow was riding his bicycle when he was struck by
Officer Buddemeyer’s vehicle. Id. Finally, the letter requested that all
investigative materials into the accident be preserved for inspection by the family’s
attorneys and representatives. Id.
On the same date, March 11, 2015, the County filed an Automobile
Loss Notice with its insurance carrier, First Fire and Casualty Insurance of Hawaii,
Inc., informing it of the fatal accident. Automobile Loss Notice (March 11, 2015),
Ex. 3 to Pls.’ CSF, ECF No. 156-5.
Plaintiffs’ counsel continued to communicate with County officials
about the accident following Plaintiffs’ March 11, 2015 Letter. Declaration of
Mark S. Davis (“Davis Decl.”) at ¶¶ 7, 11-24, ECF No. 156-2; Declaration of
Thomas M. Otake (“Otake Decl.”) at ¶¶ 7-9, ECF No. 156-1. The communications
included requests from County officials for information and evidence from the
Plaintiffs, assistance in the criminal investigation against Buddemeyer, and
requests for Plaintiffs to testify at the criminal proceedings against Buddemeyer.
Davis Decl. at ¶¶ 27-29, ECF No. 156-2; Otake Decl. at ¶¶ 4-6, ECF No. 156-1.
Plaintiffs’ counsel sent another letter, dated July 7, 2015, to the
Hawaii County Police Department requesting police reports and other investigative
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information from the County. Letter from Mark S. Davis to Chief Harry Kubojiri,
(July 7, 2015), Ex. 5 to Pls.’ CSF, ECF No. 156-7.
Buddemeyer was criminally prosecuted for causing Surnow’s death.
On October 12, 2018, Buddemeyer was convicted, following a jury trial, of
Negligent Homicide in the Third Degree in violation of HRS § 707-704. Judgment
(November 30, 2018), Ex. 9 to Pls.’ CSF, ECF No. 156-11.
B.
Procedural Background
On January 26, 2017, Plaintiffs filed their Complaint, including claims
for negligence and wrongful death, against Buddemeyer and the County. ECF No.
1.
On February 6, 2019, the County filed its Motion for Partial Summary
Judgment Regarding Notice Requirements and Statute of Limitations. ECF No.
96. On February 13, 2019, Buddemeyer filed his Substantive Joinder to the
County’s Motion for Partial Summary Judgment. ECF No. 105. On April 15,
2019, Plaintiffs filed their Opposition. ECF No. 155. On April 22, 2019,
Defendants filed their Replies. ECF Nos. 174, 178.
A hearing was held on May 6, 2019.
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III. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
The moving party “bears the initial burden of informing the court of
the basis for its motion and of identifying those portions of the pleadings and
discovery responses that demonstrate the absence of a genuine issue of material
fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323). “When the moving party has carried its burden under
Rule 56[(a)], its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts [and] come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation
marks omitted).
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“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a
motion for summary judgment, the court must draw all reasonable inferences in the
light most favorable to the nonmoving party. Friedman v. Live Nation Merch.,
Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).
IV. DISCUSSION
Defendants seek summary judgment on the basis that Plaintiffs did not
strictly comply with the written notice requirements set forth in HRS § 46-72 and
Hawaii County Charter § 13-18. Because the court finds that Plaintiffs sufficiently
complied with those written notice requirements, Defendants’ Motions are
DENIED.
A.
Hawaii Revised Statutes Section 46-72 and Hawaii County Charter
Section 13-18
The Hawaii Revised Statutes and the Hawaii County Charter require
written notice to be provided to the County before an individual may recover for
any personal injuries. The written notice must be provided within two years after
the injuries accrued.
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Hawaii Revised Statutes § 46-72 provides:
Before the county shall be liable for damages to any
person for injuries to person or property received upon any of
the streets, avenues, alleys, sidewalks, or other public places of
the county, or on account of any negligence of any official or
employee of the county, the person injured, or the owner or
person entitled to the possession, occupation, or use of the
property injured, or someone on the person’s behalf, within two
years after the injuries accrued shall give the individual
identified in the respective county’s charter, or if none is
specified, the chairperson of the council of the county or the
clerk of the county in which the injuries occurred, notice in
writing of the injuries and the specific damages resulting,
stating fully when, where, and how the injuries or damage
occurred, the extent of the injuries or damages, and the amount
claimed.
Hawaii County Charter § 13-18 provides:
No action shall be maintained for the recovery of damages
for any injury to persons or property by reason of negligence or
other act of any official or employee of the county unless a
written statement stating fully when, where and how the
injuries occurred, the apparent extent thereof and the tentative
amount claimed therefor shall have been filed with the county
clerk within two years after the date the injury was sustained.
“The provisions of §13-18 of the Hawaii Charter do not differ in any
important substantive degree from the provisions of HRS § 46-72.” Oakley v.
State, 54 Haw. 210, 214, 505 P.2d 1182, 1185 (1973). The provisions are to be
read together and cannot be read in isolation. Springer v. Hunt, 2018 WL 846909,
at *8 (D. Haw. Feb. 13, 2018).
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The notice requirements function as a “statute of limitations” to limit
the time for which a person or an estate may bring claims for injuries or wrongful
death against a county. Silva v. City & Cty. of Honolulu, 115 Haw. 1, 8, 165 P.3d
247, 254 (2007). The purpose of the notice requirements is to timely inform
municipal authorities of the details of a personal injury claim in order to aid an
investigation and to “guard the municipality against fraudulent and unfounded
claims.” Oakley, 54 Haw. at 216, 505 P.2d at 1186.
B.
The Written Notice Requirements Are Liberally Construed
The County argues that the written notice provisions should be strictly
construed against the Plaintiffs. But, the Hawaii Supreme Court has directly
addressed this issue and determined that “a liberal construction” of the written
notice provisions found in HRS § 46-72 and Hawaii County Charter § 13-18 is
“necessary and appropriate.” Oakley, 54 Haw. at 216, 505 P.2d at 1186.
In Oakley, the plaintiff sent a letter to Hawaii County stating that he
was injured in a motor vehicle accident on the County’s highway as a result of the
County’s negligent maintenance and construction of the highway. Id. at 212, 505
P.2d at 1184. He specified the nature of his injuries, the amount of damages he
sought, and the injuries and damages sought on behalf of his wife and children due
to his incapacitation. Id.
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The trial court dismissed the action for failure to strictly comply with
the written notice requirements set forth in HRS § 46-72 and Hawaii County
Charter § 13-18. Specifically, the trial court found that the plaintiffs’ written
notice was insufficient because it did not specify the exact location of the accident
and instead only referred to the accident as having occurred “upon the County
highway.” Id. at 212, 505 P.2d at 1184.
On appeal, the Hawaii Supreme Court reversed and remanded for
trial. The Court found that compliance with the written notice requirements set
forth in HRS § 46-72 and Hawaii County Charter § 13-18 must be liberally, not
strictly and technically, construed:
We believe that in order to do justice and resolve
controversies on their merits, a liberal construction of the
statute is necessary and appropriate and, specifically in
this case, the statutory requirement of “stating fully in
such notice, when, where, and how the injuries occurred.”
We believe that the basic purpose of the statutory
requirement of filing a written notice of claim in the time
specified, “before the county shall be liable for damages
to any person” (as in HRS § 46-72) or that “no action
shall be maintained for the recovery of damages for injury
to any person” (as in § 13-18 of the Hawaii County
Charter) is to inform the municipal authorities “when,
where and how the injuries occurred, the extent thereof
and the amount claimed therefor” to guard the
municipality against fraudulent and unfounded claims and
so that an investigation, while the facts are fresh and
conditions remain substantially the same, can be made by
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the municipal officials as to the time, place and the
conditions of the premises in order to make a decision as
to whether the case may be settled or tried.
Id. at 216, 505 P.2d at 1186. The Court further explained that “the issue is not a
question of non-compliance but a question of sufficiency of compliance under all
the circumstances of the case.” Id. at 217, 505 P.2d at 1186. Further, the test to
determine deficiency is prejudice-based — the court asks “whether the municipal
officials have been misled to their prejudice, under all the circumstances of the
case, by the written notice of claim filed. If they have not been misled and
prejudiced then the written notice of claim complies sufficiently with the
requirements of the statute.” Id.
C.
Plaintiffs’ March 11, 2015 Letter Provided Sufficient Written Notice
On March 11, 2015, ten days after Surnow’s death, Plaintiffs’ counsel,
Mark S. Davis, Esq., sent a letter by certified mail to Captain Randall Medeiros of
the Hawaii County Police Department and to Molly A. Stebbins, Esq., of the
Hawaii County Office of Corporation Counsel. March 11, 2015 Letter, attached as
Ex. B to Defs.’ Partial Motion for Summ. J., ECF No. 97-4. The letter states, as
follows:
Dear Captain Medeiros and Ms. Stebbins:
I have been retained by the family of Jeffrey
Surnow, who was killed in an auto crash on Waikoloa
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Road at approximately 6:25 a.m. on March 1, 2015. The
purpose of this letter is to request that you preserve all of
the evidence related to the accident, including the vehicle
driven by Ofcr. Jody Buddemeyer as well as the bicycle
that Mr. Surnow was riding. Please hold them without
alteration until we have had an opportunity to have our
representatives inspect both the damage to the vehicle
and to the bicycle. We ask that you also preserve all
original memos and documents which in any way record
measurements and notes that may have been taken by any
investigative officers including any police reports,
measurements, photographs, emails and documents that
may have in any way been exchanged between any
employee of the Police Department or other employees
of the City and County of Hawaiʻi. Do not erase or
destroy any emails, correspondence or documents that
are in any way related to this case. I would appreciate it
if you would immediately take all necessary efforts to
ensure that Mr. Buddemeyer does the same.
As soon as the vehicles have been preserved, we
will make arrangements for their inspection. If you have
any questions, do not hesitate to contact me or my
colleague, Matt Winter.
Id.
The County argues that the letter is insufficient to provide notice of an
actual claim, was not “filed with the county clerk,” Hawaii County Charter § 1318, and did not specify the amount of damages sought by the Plaintiffs. None of
the County’s arguments has merit.
The County suffered no prejudice (and was not misled) due to any
inadequacies in Plaintiffs’ March 11, 2015 letter. It is undisputed that the letter
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was provided by certified mail to the County’s legal representative on March 11,
2015, just ten days after the accident. Certified Mail Receipt at p. 2, March 11,
2015 Letter, attached as Ex. 2 to Pls.’ CSF, ECF No. 156-4. Although not
technically filed with the County Clerk, the letter provided notice to appropriate
County officials when it was received by the Hawaii Office of the Corporation
Counsel. There is no evidence of prejudice to the County because the written letter
was provided to the Office of the Corporation Counsel rather than filed with the
County Clerk.
And the purpose of the March 11, 2015 letter was clear. It was
provided to the County to inform it that Surnow was killed by one of its police
officers while Surnow was riding his bicycle in the early morning on Waikoloa
Road, and requested preservation of any investigative materials, information, or
evidence in possession of the County. It was sent on letterhead of the Davis Levin
Livingston law firm and signed by Attorney Davis, and gave notice to the County
of Surnow’s name, the specific date and time of the accident, the general location
of the accident, the nature of the accident, that Surnow died, the identity of the
County police officer responsible for the accident, the contact information for the
Plaintiffs’ representatives, and a list of information and evidence that Plaintiffs
sought. Thus, the letter clearly was written, and reasonably understood to be, in
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anticipation of litigation against the County. Although the March 11, 2015 letter
did not ask for a specific dollar amount in damages, it is indisputable that the letter
was related to the Plaintiffs’ potential claims for the alleged wrongful death of
Surnow. The letter provided sufficient notice to the County pursuant to HRS § 4672 and Hawaii Charter § 13-18. 2
The County has put forward no evidence that it was prejudiced in its
ability to investigate or prepare for litigation due to any technical faults in the
March 11, 2015 letter. At the hearing on May 6, 2019, the County argued that
there was potential prejudice because the County would be required to set aside
money in its budget for a settlement, and may have done so if the March 11, 2015
letter specified a dollar amount. The argument is unconvincing and not supported
by any evidence. The County did not provide any affidavit or other admissible
evidence to support its argument. The record establishes that the March 11, 2015
letter informed the County of the nature and extent of Surnow’s injuries and that
the County thoroughly investigated the incident after receipt of the notice. “[T]he
The County’s reliance on Kaulia v. County of Maui, 504 F. Supp. 2d 969, 997 (D. Haw.
2007), Harris v. County of Hawaii, 2017 WL 5163231, at *2 (D. Haw. Nov. 7, 2017), and
Nakamoto v. County of Hawaii, 2018 WL 2750224, at *3-4 (D. Haw. June 7, 2018) are
unpersuasive. In those cases no written notice whatsoever was provided to the county prior to
the service of the complaints. The Hawaii Supreme Court has explained that an absolute failure
to file any written notice with the county does not permit a claim to proceed and is
distinguishable from cases where there is a question as to the sufficiency of the written notice.
Oakley, 54 Haw. at 217, 505 P.2d at 1186.
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fact that the various county officials had investigated and/or had knowledge of
‘when, where and how the injuries occurred’ all have relevancy.” Oakley, 54 Haw.
at 217, 505 P.2d at 1186.
In short, there was no prejudice to the County in this case. Plaintiffs
have demonstrated there was significant correspondence between County officials
and Plaintiffs following receipt of the March 11, 2015 letter. Not only was there a
thorough investigation of the accident following the March 11, 2015 letter, but
Plaintiffs assisted County officials in the investigation. County officials proceeded
to file criminal charges following the investigation of the accident. Buddemeyer
was tried and convicted in the Circuit Court of the Third Circuit, State of Hawaii,
for Negligent Homicide in the Third Degree. See Judgment (November 30, 2018),
Ex. 9 to Pls.’ CSF, ECF No. 156-11. Buddemeyer was prosecuted by Prosecuting
Attorney Mitchell D. Roth, a representative of the County. Id.
The County was also able to timely file for insurance coverage
because of the March 11, 2015 written notice. On the same date as the letter, the
County filed an Automobile Loss Notice with its insurance carrier relating to
Surnow’s death. Automobile Loss Notice (March 11, 2015), Ex. 3 to Pls.’ CSF,
ECF No. 156-5.
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Because Plaintiffs’ March 11, 2015 letter provided sufficient notice to
the County pursuant to HRS § 46-72 and Hawaii Charter § 13-18, and the County
suffered no prejudice in its ability to investigate or prepare for litigation due to any
faults in the written notice, the statutory notice prerequisite has been satisfied.
D.
The Written Notice Requirements Do Not Apply To Claims Against
Individuals
Buddemeyer filed a Substantive Joinder to the County’s Motion for
Partial Summary Judgment. But neither HRS § 46-72 nor Hawaii County Charter
§ 13-18 is applicable to him — the written notice requirements are applicable to
Counties, not employees sued in their individual capacity. Hunt, 2018 WL
846909, at *8-9; Annan-Yartey v. Muranaka, 2017 WL 1243499, at *4 n.9 (D.
Haw. Apr. 3, 2017). The Substantive Joinder is DENIED.
V. CONCLUSION
For the foregoing reasons, the County’s Motion for Partial Summary
Judgment Regarding Notice Requirements and Statute of Limitations, ECF No. 96,
is DENIED. Buddemeyer’s Substantive Joinder, ECF No. 105, is DENIED.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 14, 2019.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Surnow v. Buddemeyer, et al., Civ. No. 17-00038 JMS-RT, Order Denying Defendant County’s
Motion for Partial Summary Judgment Regarding Notice Requirements and Statute of
Limitations, ECF No. 96, and Denying Defendant Buddemeyer’s Substantive Joinder, ECF No.
105
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