### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA JOAN CLARKv. ESTATE OFDAVID FLACH, SR., etal. 

### JOAN CLARKv. ESTATE OFDAVID FLACH, SR., etal. 

### Civil Case No. 07-883 (RJL)

Civil Case No. 08-779 (RJL)

# ~ MEMORANDUM OPINION (March

# ?dfo., 2009) Before the Court are motions to dismiss filed by the Estate ofDavid Flach, Sr. (the "FlachEstate"), GElCO, and the District ofColumbia in connection withplaintiffJoan Clark's lawsuits alleging negligence and breach ofcontract arising out ofa 2005 car accident. Upon review ofthe parties' briefs, the entire record, and the applicable law, the Court GRANTS the defendants' motions. 

### BACKGROUND These cases arise out ofa car accident that tookplace on May 13, 2005 in the 800 block ofSouthemAvenue SE in the District ofColumbia. (Am. Compl., No. 07cv883 [Dkt. #42],**~** 

### 9; Compl., No. 08cv779 [Dkt. #1],**~** 

### 9 (collectively "Clark Compl.").) A stolen 2003 Jaguar crashed at high speed into the vehicle in which plaintiffwas a passenger, causing plaintiffto suffer severe and permanent injuries. (Jd.**~~** 

### 11, 15.) The two unknown individuals operating the Jaguar fled the scene on foot and were not apprehended. (Id.**~** 

### 14.) Plaintiffalleges that DC Metropolitan Police Department ("MPD") officers were pursuing the Jaguar at the time ofthe accident. (Id.**~** 

### 12.)

1Plaintifffurther alleges thatthe Jaguarwas ownedby DavidFlach, Sr. ("Flach"), who had loanedthe carto defendantAnita Lacey ("Lacey") at somepointpriorto the accident.! (Jd.**~** 16.) Plaintifffiled an initial complaint on May 10, 2007 asserting negligence claims againsttwo Virginia corporations and John and Jane Doe (the "2007 action"). (CompI., No. 07cv883 [Dkt. #1].) Upon conducting discovery, plaintiffstipulated to the dismissal ofher claims againstthe corporations and moved to amend her complaint, which Magistrate Judge Robinson granted on June 11,2008.2 Followingplaintiffs motion to amend her complaint, butbefore Magistrate Judge Robinson's ruling, plaintiffalso instituted a new action in this Court (the "2008 action"), filing as her complaint a verbatim copy ofherproposed amended complaint in the 2007 action (the "Complaint"). In the Complaint, plaintiffasserts negligence claims againstthe Flach Estate and Lacey, a breach ofcontract claim against Flach's insurance provider, GEICO, and two gross negligence claims againstthe District ofColumbia.3 (Clark CompI., Counts I-VI.) The FlachEstate, GEICO, and the District have each moved to dismiss plaintiffs claims

Plaintiffconfusingly alleges both that Lacey had possession ofthe vehicle and that "[s]he also stated she had fallen asleep at aparty on [sic] and someone took the vehicle." (Clark CompI.**~** 17.) 2 The Court referred all non-dispositive motions in the 2007 action to Magistrate Judge Robinson by Minute Order on October 30, 2007. 3 Flach passed away in between the time ofthe accident and the filing ofplaintiffs amended complaint in the 2007 action. (Mot. to Amend CompI. at 2, No. 07cv883 [Dkt. #33].)
2against them for failure to state a claimunderFederal Rule ofCivil Procedure 12(b)(6).4 Lacey has not yet been served. 

### LEGAL STANDARD When evaluating a motion to dismiss for failure to state a claim, a court must

assume all factual allegations to be true and draw all reasonable inferences in the plaintiffs favor. 

### BellAtl. Corp. v. 

### Twombly, 127 S. Ct. 1955, 1965 (2007); 

### AktieselskabetAF21. 

### November 2001 v. 

### Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008). However, the Court "neednot accept inferences drawn byplaintiffIJ ifsuch inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form offactual allegations." 

### Kowal v. 

### MCI Commc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994). While a plaintiffneed only provide "a short and plain statement ofthe claim showingthatthe pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), a plaintiffmust furnish "more than labels and conclusions" and the facts alleged "mustbe enough to raise a rightto reliefabove the speculative level." 

### Twombly, 127 S. Ct. at 1965. 

### ANALYSIS I. The Flach Estate's Motion to Dismiss Plaintiffs Complaint alleges that by loaning Lacey his vehicle, Lacey became Flach's agentpursuantto the District ofColumbiaMotor Vehicle Safety Responsibility

4 Flach and GEICO have only moved to dismiss plaintiffs Complaint in the 2008 action, as it does not appear that they have been served in the 2007 action. The District, however, has filed motions to dismiss in both the 2007 and 2008 actions. Because the 2007 action and the 2008 action rely on the same complaint, the Court, on its own motion, consolidates the cases for efficiency purposes. Fed. R. Civ. P. 42(a)(2)-(3).

3

### Act ("MVSRA"), D.C. Code §§ 50-1301.01 

### etseq., and therefore the Flach Estate is liable for Lacey's failure to maintain control ofthe vehicle. (Clark CompI.,-r,-r 19-22.) The Flach Estate contends that MVSRA does not apply because plaintiffadmits that the

carwas stolen at the time ofthe accident. Forthe following reasons, I agree. Under MVSRA, when an automobile is involved in an accident in the District, the operator ofthe vehicle is deemed an agent ofthe vehicle's owner 

## if the operator was driving the vehicle with eitherthe express or implied consent ofthe owner.5 D.C. Code § 50-1301.08. MVSRA further creates a rebuttable presumption that the vehicle's operator at any given time is operating the carwith the owner's consent. 

### Id.; Athridge v. 

### Rivas, 312 F.3d 474,477 (D.C. Cir. 2002). MVSRA, however, does not create an expansive agency relationship between the owner ofa vehicle and the person to whom the owner lends the vehicle. Rather, by its plain terms, MVSRApremises vicarious liability on the person to whom consent was given being the person driving the car at the time ofthe accident. 

### See D.C. Code § 50-1301.08 (creating agency relationship when vehicle is "operated upon the public highways ofthe District ofColumbiaby any person otherthan the owner, with the consent ofthe owner, express or implied"); id. 

### § 50-1301.02(2)

MVSRA provides in pertinent part: Whenever any motor vehicle, after the passage ofthis chapter, shall be operated upon the public highways ofthe District ofColumbiaby any person other than the owner, with the consent ofthe owner, express or implied, the operatorthereof shall in case ofaccident, be deemed to be the agent ofthe ownerofsuch motor vehicle, and the proofofthe ownership ofsaid motor vehicle shall be prima facie evidence that such person operated said motor vehicle with the consent ofthe owner. D.C. Code § 50-1301.08.


### 4(defining "operator" underMVSRA as "everyperson who drives oris in actual physical control ofa motor vehicle upon a public highway"). Here, plaintiffalleges in the Complaint, and therefore admits, 

### Shear v. 

### Nat '[ RifleAss 'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979), that at the time ofthe accident the carwas stolen and was being driven by two unknown individuals, (Clark Compi. 

### ,-r 11).6 A stolen car, by definition, is one that is operatedwithout the owner's consent. Accordingly, even assumingthat Flach consented to Lacey's use ofthe Jaguar, MVSRA cannot create an agency relationship between Flach and Lacey upon which the Flach Estate can be liable for an accident causedby Lacey's failure to preventthe Jaguar's theft and collision with plaintiff. 

### See Athridge, 312 F.3d at477 ("UnderDistrict ofColumbia law, an automobile owner is entitled tojudgment as a matter oflaw ifhe or she asserts 

### without contradiction thatthe vehicle was taken and used without consent."); 

### Curtis v. 

### Cuff, 537 A.2d 1072, 1073 (D.C. 1987) ("Because appellant offered uncontested evidence to rebutthe statutory presumption ofconsent, she was entitled tojudgment as a matter oflaw."). Plaintiffs claim against the Flach Estate in both actions therefore mustbe dismissed. 7

6 In plaintiffs opposition brief, she attempts to call into question whether the car was, in fact, stolen, stating that plaintiff"ha[s] evidence that Defendant Lacey may have been the one driving the vehicle at the time ofthe accident." (Pl.'s Opp'nto Def. Flach Estate's Motion to Dismiss at 8, No. 08cv779 [Dkt. #12].) The Court, however, when evaluating a Rule 12(b)(6) motion, may not consider facts alleged only in the briefs, particularly when they conflict with those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C. Cir. 1994). 7 The Court also notes that, given plaintiffs admission that the car was stolen, plaintiffs complaint fails to allege facts sufficientto plead aprima facie negligence claim, which requires alleging a causal link between the defendant's acts and the plaintiffs injury. See District of Columbia v. Frick, 291 A.2d 83, 84 (D.C. 1972). In ordinary circumstances, an intervening act by a third party "breaks the chain ifit is not reasonably foreseeable." McKethean v. Wash. Metro. Area TransitAuth., 588 A.2d 708, 716 (D.C. 1991). But when the intervening act is 5

### II. GEICO's Motion to Dismiss In a related claim, plaintiffbrings a breach ofcontract claim against GEICO on the basis that GEICO, through an automobile insurance contract, "provided liability coverage for any claims that may have beenbrought against [Flach] resulting from the use ofhis vehicle." (Clark CompI.**~** 30.) Plaintiffalleges that GEICO breached its duty pursuant to that contract to defend and provide coverage for "any claims that [plaintiff] may make

as a result ofher injuries," and is thus liable for damages owedplaintiff. 

### (Id.**~~** 31-33.) Even assuming GEICO had such a contractual duty, however, plaintiff, as discussed above, has failed to plead a valid claim for liability against Flach in connection with the accident, much less secure ajudgment against Flachthat would authorize a direct action

criminal, a "more heightened showing offoreseeability" is required. District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633,641 (D.C. 2005) (quoting Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C. 1997)). Indeed, "[i]n such a case, the plaintiffbears the burden of establishing that the criminal act was soforeseeable that a duty arises to guardagainst it." Id. (emphasis in original). Here, plaintiffs only factual allegation as to Lacey's alleged negligence is that "[s]he also stated that she had fallen asleep at a party on [sic] and someone took the vehicle." (Compi.**~** 17.) Plaintiffdoes not make any allegations as to whether Lacey should have, or could have, foreseen that her actions would have resulted in the criminal act ofthe car being stolen. Nor does plaintiffmake any allegations that Lacey violated any public safety ordinances that would support a claim ofnegligenceperse. See Bailey v. J & B Trucking Servs., Inc., 590 F. Supp. 2d 4,8, 10-11 (D.D.C. 2008) (the act ofleavingkeys in an unlocked and unattended vehicle on public property can constitute negligenceperse under D.C. law); Ross v. Hartman, 139 F.2d 14, 14-16 (D.C. Cir. 1943) (truck owner liable for negligenceperse where agent ofowner left truck "unattended in apublic alley, with the ignitionunlocked and the key in the switch," in violation oftraffic ordinance). Accordingly, even ifthe Flach Estate could be held vicariously liable under MVSRA for Lacey's alleged negligence in allowing the car to be stolen, plaintiffhas failed to allege facts sufficient to plead aprimafacie claim. And finally, despite also characterizing her negligence claim in her opposition briefas one ofnegligent entrustment given Lacey's supposed "pasthistory ofuntrustworthiness," (PI.'s Opp'nto Def. Flach Estate's Motion to Dismiss at 6-7), plaintifffails to plead any factual allegations as to whether Flach knew, or should have known, that Lacey intended or was likely to use his vehicle in such a manner as to create an unreasonable risk ofharm to others. SeeAthridge v. Rivas, 141 F.3d 357, 363 (D.C. Cir. 1998).

6against GEICO. Plaintiffs claim against GEICO in both actions therefore must also be dismissed for failure to state a claim. 8 

### See Young Women's ChristianAss 'n o/Nat. CapitalArea, Inc. v. 

### AllState Ins., 158 F.R.D. 6, 8 (D.D.C. 1994) ("[A] plaintiffseeking to secure the benefits ofan insurance policy has the burden ofpleadingthat he has a right to recover under the terms ofthe policy.");

### A.S. Johnson Co. v. 

### AtlanticMasonry Co., 693 A.2d 1117, 1119 n.1 (D.C. 1997) ("[Lliability policies are only required to afford a direct actionby an injuredparty against an insurer after ajudgmenthas been obtained againstthe assured, which is unsatisfied after execution." (quoting 

### Gorman v. 

### St. Paul Fire & 

### Marine Ins. Co., 121 A.2d 812, 815 (Md. 1956))). 

### III. The District's Motions to Dismiss Finally, plaintiffs Complaint alleges that the District, through its police officers and employees, was grossly negligent by pursuing the stolen Jaguar athigh speeds though crowded streets and by failing to properly hire, train, and control its police officers. (Clark CompI.**~~** 34-43.) The District contends that plaintiffs claims against it must be dismissed on account ofplaintiffs failure to comply with the D.C. Code's notice requirement. D.C. Code § 12-309. Forthe following reasons, I agree. D.C. Code § 12-309 requires potential tort plaintiffs to givewritten notice to the District within six months ofan injury in orderto bring suit.9 Thenotice requirement's

8 In this instance, because GEICO filed an answer prior to filing its motion to dismiss, the Court formally construes GEICO's motion as a motion forjUdgment onthe pleadings pursuant to Rule 12(c). Fed. R. Civ. P. 12(c). However, because the same substantive standard applies for both motions, 

### Holt v. 

### Davidson, 441 F. Supp. 2d 92,94-95 (D.D.C. 2006), the Court's analysis is unaffected. 9 D.C. Code 

### § 12-309 provides:

7

### purpose is "to give reasonable notice to the District ofColumbia so thatthe facts may be ascertained and, ifpossible, deserving claims adjusted and meritless claims resisted." 

### Pitts v. 

### District of Columbia, 391 A.2d 803,807 (D.C. 1978). Compliance with the notice requirement is mandatory and, because 

### "itis in derogation ofthe common law principle ofsovereign immunity," it is "construed narrowly against claimants." 

### District a/Columbia v. 

### Dunmore, 662 A.2d 1356, 1359 (D.C. 1995); 

### see also Tucci v. 

### District

## 0/ Columbia, 956 A.2d 684, 693-96 (D.C. 2008). It

### is uncontested that plaintiffdid 

### notprovide written notice to the District. (PI.'s Opp'nto Def. District ofColumbia's Motion to Dismiss at 3-4, No. 08cv779 [Dkt. #19].) Plaintiffargues, not surprisingly, that the Districtwas nevertheless on actual notice "based on the police reports created contemporaneously with the accident." (Jd. 

### at 4.) Indeed, police reports created in the regular course ofduty are permissible alternatives underthe notice requirement. D.C. Code § 12-309 ("Areport in writing by the [MPD], in regular course ofduty, is a sufficient notice underthis section."). However, whether any given police report satisfies 

### § 12-309 is a question oflaw, 

### see Doe v. 

### District of Columbia, 697 A.2d 23,24 (D.C. 1997), and, for the following reasons, the reports plaintiffrelies on in this case did not!

An action may not be maintained against the District ofColumbia for unliquidated damages to person orproperty unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor ofthe District ofColumbia ofthe approximate time, place, cause, and circumstances ofthe injury or damage. Areport in writing by the [MPD], in regular course ofduty, is a sufficient notice under this section.
8

### In order for apolice report to qualify as notice, it must "contain information as to time, place, cause and circumstances ofinjury or damage with at leastthe same degree of specificity required ofa written notice." 

### Miller v. 

### Spencer, 330 A.2d 250, 252 (D.C. 1974). 

### It must also provide the requisite information with enough particularity that "it could be reasonably anticipated that a claim against the District might arise." 

### Pitts, 391 A.2d at 809; 

### see also Washington v. 

### District a/Columbia, 429 A.2d 1362, 1366 (D.C. 1981) (apolice report will suffice ifit "describe[s] the injuring event with sufficient detail to reveal, in itself, a basis for the District'spotential liability"). When evaluating the content ofa police report under § 12-309, courts must interpretthe requirements liberally and resolve close cases in favor offinding compliance with the statute. 

### Wharton

v. 

### District a/Columbia, 666 A.2d 1227, 1230 (D.C. 1995). Disputes under § 12-309 are "an area where no 'bright line' tests are applicable" and courts must resolve them on a case-by-case basis. 

### Pitts, 391 A.2d at 808. Here, neither the police reports, nor the Event Chronology, on which plaintiff relies provided sufficient notice to satisfy § 12-309. The two police reports, a PD-lO Traffic Accident Report and a PD-66B Evidence Report, merely describe a hit-and-run traffic accidentbetweenplaintiffsvehicle and the stolenjaguar. (PI.'s Opp'nto Def. District ofColumbia's Motion to Dismiss, Exs. 2-3.) While the Traffic Accident Report documents plaintiffs injury and states that the Jaguarwas traveling at "ahigh rate of speed" when it caused the accident, neither report indicates any involvement by the

9

### District or its police officers in the events leading up to the accident. 10 

### (ld.) 

### The Event Chronology, while providing more information about the District's conduct, does not
cure this shortcoming. The chronology, which appears to be a computer-generated log documenting communications from officers in the field relating to the accident investigation, states in pertinentpart: "GRAY JAGUAR WAS FOLLOWED" and "BOTH SUBJS CRASHED THE SILVERJAGUARAND FLED THE SCENE INTO PG COUNTY THROUGH THE TIGERMART TOWARDS SOUTHERNVIEW APTS. SUBJS POSSIBLY ARMED, SUBJS WERE BEING FOLLOWED Y [sic] CR8632 ON SOUTHERN AVE AND REFUSED TO STOP." (Pl.'s Opp'nto Def. District of Columbia's Motion to Dismiss, Ex. 1, Event Chronology.) Unlike cases where the District's direct involvement in the injurious event is apparent on the face ofthe police report, such as when District employees directly cause an injury, 

### e.g., Jones v. 

### Ritter, 587 F. Supp. 2d 152, 158-59 (D.D.C. 2008) (assault and battery during arrest), or the injury

occurs on Districtproperty, 

### e.g., Pitts, 391 A.2d at 809-810 (slip-and-fall in public housing), the statements in the Event Chronology only reveal that a District police cruiser 

### wasjollowingthe Jaguar at the time ofthe accident. The chronology, on its face, does

10 The narrative portion ofthe Traffic Accident Report states: On 05-13-05 at approximately 1355 hours, D-l was traveling E/B in the 800 block ofSouthern Avenue, SE at a high rate ofspeed, crossed overthe double yellow lines striking D-2's vehicle causing it to spin out ofcontrol. D-l's vehicle also spun out ofcontrol before coming to a complete stop at whichtime D-l and the passengerjumped out ofvehicle and fled the scene in the wooded area in the 800 block ofSouthern Ave., SE. (PI.'s Opp'nto Def. District ofColumbia's Motionto Dismiss, Ex. 2 at 4.) The Evidence Report similarly only indicates that a hit-and-run accident involving a stolen vehicle occurred and documents the various items and prints recovered from the vehicle. (Jd., Ex. 3 at 1.)
10not reveal whetherthe police were "pursuing"the Jaguar in a manner, orwith an intent, to induce a traffic stop, orwhetherthe cruiser even had its emergency lights on. Proximity tothe accident does not, alone, indicate involvementby the District, and therefore any inference ofpotential liability based on the chronology is too remote to satisfy § 12-309, particularly given thatthe formal police report fails to reference police involvementin any capacity.I I 

### CfDoe, 697 A.2d at 27-29 (in case involving negligence claim for failure to intervene to remove child from abusive home environment, police reports insufficientwhere they "d[id] not referto any direct involvementby the District in determining [child's] primary caretaker orresidence"); 

### Braxton v. 

### Nat 'I CapitalHous. Auth., 396 A.2d 215, 217 (D.C. 1978) (police report failed to satisfy 

### § 12-309 where it contained no indication that District employees were involved in the events leading up to the burglary andtheft). Accordingly, because the policereport and Event Chronology fail to "reveal, in [themselves], a basis for the District's potential liability," the Courtwill dismiss plaintiffs claims against the District in both actions. 12 

### Washington, 429 A.2d at 1366.

II The Court also notes, in any event, that it is not entirely clearthat the Event Chronology qualifies as atype ofpolice report sufficient to provide notice under § 12-309. While the District does not argue that the chronology was not created in the regular course ofduty, the chronology's (apparent) automated nature raises questions as to whether it is, in fact, the type of "reportin writing" contemplated in § 12-309. See Doe, 697 A.2d at 28 ("Section 12-309 makes clearthat police reports are the only acceptable alternatives to a formal notice. The court is not free to go beyond the express language ofthe statute and authorize any additional documents to meet its requirements."). 12 Plaintiffs argument that the purpose of§ 12-309 was satisfied because the police reports indicate that the District was "afforded ample time to conduct an investigation" and that the District did, in fact, conduct an investigation misses the mark. (Pl.'s Opp'nto Def. District of Columbia's Motion to Dismiss at 5.) The purpose of§ 12-309 is "to allow the Districtto 11

### CONCLUSION Thus for all the foregoing reasons, the Court GRANTS the Estate ofDavid Flach, Sf.'s, the District ofColumbia's, and GEICO's motions to dismiss. An appropriate Order will issue with this Memorandum Opinion.

RICHARD. L N United States IstnctJudge

conduct aprompt investigation of the injuredperson's claim," Doe, 697 A.2d at 27 (emphasis added), separate and apart from any investigation the District may conduct as amatter ofcourse into a hit-and-run automobile accident involving a stolen vehicle, as the Districtperformed here.
12