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Surnow v. Buddemeyer

United States District Court, D. Hawaii

May 14, 2019

ELAINE SURNOW, individually and as personal representative of the ESTATE OF JEFFREY SURNOW, deceased; MAX SURNOW; SAM SURNOW; and LISA SURNOW Plaintiffs,
v.
JODY BUDDEMEYER; COUNTY OF HAWAII; and COUNTY OF HAWAII POLICE DEPARTMENT, 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

          J. Michael Seabright Chief United States District Judge

         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 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 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.

         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. ...


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