United States District Court, D. Hawaii
ELAINE SURNOW, individually and as personal representative of the ESTATE OF JEFFREY SURNOW, deceased; MAX SURNOW; SAM SURNOW; and LISA SURNOW Plaintiffs,
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
Michael Seabright Chief United States District Judge
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.
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
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.
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.
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.
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
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.
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.
January 26, 2017, Plaintiffs filed their Complaint, including
claims for negligence and wrongful death, against Buddemeyer
and the County. ECF No. 1.
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.
hearing was held on May 6, 2019.
STANDARD OF REVIEW
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.