Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 1 of 21 PageID 536

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1 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 1 of 21 PageID 536 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE, DIVISION RONALD COLBERT, and JERRI COLBERT, CASE NO.: 3:09-CV-998-J-20JRK Plaintiffs, vs. e UNITED STATES OF AMERICA, KANDIS MARTINE, and P.V. HOLDING CORP., d/b/a BUDGET RENT-A-CAR SYSTEM, INC., A foreign corporation, Defendants / PLAINTIFFS DISPOSITIVE MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS UNITED STATES, KANDIS MARTINE, AND PV HOLDING CORP., D/B/A BUDGET RENT-A-CAR SYSTEM, INC., AND MEMORANDUM OF LAW IN SUPPORT The Plaintiffs, rough eir undersigned attorneys and pursuant to Rule 56, FED. R. CIV. P., move is Court for Partial Summary Judgment. In support of eir Motion for Partial Summary Judgment, e Plaintiffs state: 1 1. The Plaintiffs were injured in an automobile crash on April 2, Kandis Martine, e driver of e vehicle responsible for causing e crash, is a member and employee of e Navajo Nation. 1 The Plaintiffs Complaint mistakenly cites April 2, 2008, as e date of e crash. However, all parties acknowledge e date of e crash as April 2, 2007, and have agreed to allow e Plaintiffs to amend eir Complaint by interlineation. The Plaintiffs will submit e parties stipulated motion and proposed order in e near future.

2 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 2 of 21 PageID The Plaintiffs submitted a claim to e Navajo Nation Risk Management Program, but on July 13, 2007, e Navajo Nation Department of Justice instructed e Plaintiffs to file administrative claims wi United States Department of e Interior pursuant to e Federal Tort Claims Act (hereinafter FTCA ). 3. The Plaintiffs submitted eir administrative claims to e U.S. Department of e Interior on November 24, The U.S. Department of e Interior did not accept or reject e Plaintiffs claims wiin six mons of e Plaintiffs submission of eir administrative claims. Pursuant to 28 U.S.C. 2675(a), e U.S. Department of e Interior s failure to respond wiin six mons of November 24, 2008, constituted a constructive denial, ereby enabling e Plaintiffs to file suit in federal court. 5. The Plaintiffs filed suit in e United States District Court, Middle District of Florida, on October 2, Alough e deadline for accepting or rejecting e Plaintiffs administrative claims had already passed, e U.S. Department of e Interior sent a letter denying e Plaintiffs claims on October 14, In e October 14, 2009 denial letter, e U.S. Department of e Interior denied responsibility for Martine s actions, pursuant to e FTCA, and denied she was deemed a federal employee pursuant to any contract wi e Navajo Nation. Summary judgment standard 8. When material facts are not in dispute, summary judgment is appropriate. See, e.g., Earley v. Champion Int l Corp., 907 F.2d 1077, 1080 (11 Cir. 1990) (citations omitted). Status as federal employee Page 2 of 21

3 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 3 of 21 PageID Based on e U.S. Department of e Interior s denial of Martine s status as a federal employee, e United States continued to insist at Martine was not covered by e FTCA. However, on e date of e crash, Martine was a member and employee of e Navajo Nation. 10. Moreover, on e date of e crash, Martine was performing work under a selfdetermination contract between e United States and e Navajo Nation. 11. Under federal law, Martine s status as a member and employee of e Navajo Nation, as well as her work under a self-determination contract between e United States and e Navajo Nation, qualified Martine as a federal employee. See, e.g., Public Law No , Title III, In light of e foregoing undisputed issues of fact and applicable law, is Court should conclude at Martine was a federal employee, ereby granting Martine e protection of e FTCA. Course and scope of employment 13. Martine s operation of e motor vehicle at e time of e crash was in furerance of her work under a self-determination contract between e United States and e Navajo Nation. Wiout a vehicle, Martine would have been unable to fulfill her responsibilities under at self-determination contract. 14. When an employee s conduct is e kind of conduct e employee was hired to perform, when e conduct occurs wiin an expected time frame, and when e conduct is activated by e employee s service to e employer, e conduct is wiin e course and scope of e employee s employment. See Fernandez v. Fla. Nat l College, Inc., 925 So. 2d 1096, 1100 (Fla. 3d Page 3 of 21

4 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 4 of 21 PageID 539 DCA 2006) (citations omitted). 15. In light of e undisputed issues of fact and applicable law, is Court should conclude at Martine was acting wiin e course and scope of her employment at e time of e crash. Negligence 16. By virtue of her operation of a vehicle on a public highway, Martine owed oer motorists, including e Plaintiffs, a duty to operate her vehicle in a reasonably safe manner. 17. However, Martine breached her duty to e Plaintiffs by driving her vehicle negligently. 18. As a direct and proximate result of Martine s negligence, it is undisputed at e Plaintiffs sustained various damages, including bodily injury, past and future medical and nursing care and treatment, past lost wages, e loss of future earning capacity, and permanent injury and impairment. 19. To present a claim for negligence, e Plaintiffs must show: 1) Martine owed a duty to e Plaintiffs; 2) Martine breached at duty; and 3) a causal relationship between Martine s negligence and e Plaintiffs damages. See, e.g., Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007) (citations omitted) 20. In light of e undisputed issues of fact and law, is Court should conclude at Martine was negligent. This Court should also conclude at e Plaintiffs sustained e aforementioned damages due to Martine s negligence. MEMORANDUM OF LAW I. Background facts and material issues Page 4 of 21

5 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 5 of 21 PageID 540 On March 9, 2006, e Navajo Nation entered into a self-determination contract wi e U.S. Department of e Interior to administer a program under Indian Child Welfare Act (hereinafter ICWA ). The self-determination contract incorporated by reference e Annual Funding Agreement in effect on April 2, Notably, e Annual Funding Agreement defined employees of e Navajo Nation as employees of e federal government for purposes of FTCA coverage. An attachment to e Annual Funding Agreement described e goals of e program, under e selfdetermination contract, which included e prevention of e break-up of Navajo families, to protect e best interest of Navajo children, and to promote e stability of Navajo families. On April 2, 2007, Kandis Martine, a member and employee of e Navajo Indian, was in Jacksonville for an adoption proceeding involving a Navajo child. Martine was traveling e wrong way on a one-way street in violation of a traffic statute. While Martine was traveling e wrong way on a one way street, she and a vehicle in front of her, operated by James Murphy, bo came to sudden and unexpected stops. Due to eir sudden and unexpected stops, e Plaintiff, Ronald Colbert, who was making a legal right turn onto Main Street, veered to e left and applied his brakes, but was unable to avoid striking a portion of e rear of Mr. Murphy s vehicle. The Plaintiffs sustained significant injuries in e April 2, 2007 crash. The Plaintiff, Ronald Colbert, injured his neck and back in e crash. Furer, due to e crash, e Plaintiff, Ronald Colbert, underwent hernia surgery on April 17, The Plaintiff, Ronald Colbert, has also had two cervical surgeries from a herniated disc due to e subject crash. The first cervical surgery was performed on May 20, 2008 by Dr. Gomes, a neurosurgeon, which involved a decompression and fusion. Unfortunately, a more orough decompression was needed and at was performed by Dr. Lobel on February 4, The Plaintiff, Ronald Colbert, now has permanent hardware in his neck Page 5 of 21

6 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 6 of 21 PageID 541 because of e injuries he sustained in e subject crash. The Plaintiff, Jerri Colbert, also sustained neck and lower back injuries in e wreck, in addition to a shoulder injury. She ultimately had shoulder surgery in March 2010 performed by Dr. Sparks, due to a labral tear, caused by e subject crash. Alough e physical injuries will continue to boer e Plaintiffs for e rest of eir lives, ey also suffer from psychological disorders from e wreck. The Plaintiff, Ronald Colbert, is most affected, suffering from depression and anxiety, while e Plaintiff, Jerri Colbert, is also suffering from anxiety. Because Martine was a member and employee of e Navajo Nation, e Plaintiffs submitted claims to e Navajo Nation Risk Management Program. However, on July 13, 2007, Arita Yazzie, an advocate for e Navajo Nation Department of Justice, responded by letter and instructed e Plaintiffs to file eir tort claims wi e U.S. Department of e Interior, Bureau of Indian Affairs, Navajo Regional Office, as e claims arose out of e actions of an employee under a selfdetermination contract. Accordingly, e Plaintiffs submitted eir administrative claims to e U.S. Department of e Interior on November 24, 2008, requesting e following compensation: $5,002, for e Plaintiff, Ronald Colbert, and $1,000, for e Plaintiff, Jerri Colbert. The U.S. Department of e Interior failed to accept or reject e Plaintiffs claim by May 24, 2009; pursuant to 28 U.S.C. 2675(a), e U.S. Department of e Interior s failure to accept or reject e Plaintiffs claim constituted a constructive denial, ereby enabling e Plaintiffs to file suit in federal court. The Plaintiffs filed suit in e United States District Court, Middle District of Florida, on October 2, Alough e deadline for accepting or rejecting e Plaintiffs administrative claim had long since passed, e U.S. Department of e Interior formally denied e Plaintiffs claim Page 6 of 21

7 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 7 of 21 PageID 542 on October 14, In e October 14, 2009 denial letter, e U.S. Department of e Interior denied Martine s status as a federal employee. Based on e U.S. Department of e Interior s denial of Martine s status as a federal employee, e United States continues to insist at Martine was not covered by e FTCA. II. Applicable legal standard The material facts pertaining to Martine s status as a federal employee, to e course and scope of Martine s employment, and to several negligence and damages issues, are not in dispute. Summary judgment is appropriate when ere is no genuine issue of material fact. The trial court must consider all e evidence in e light most favorable to e non-moving party, and resolve all reasonable doubts in favor of e non-moving party. A trial court, however, is not required to resolve all doubts in such a manner. Earley v. Champion Int l Corp., 907 F.2d 1077, 1080 (11 Cir. 1990) (internal and external citations omitted). Additionally, ere is no express or implied requirement in Rule 56 at e moving party support its motion wi affidavits or oer similar materials negating e opponent s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). III. Liability of United States for conduct of employee The first question before is Court e resolution of which will determine wheer e Plaintiffs FTCA claims succeed or fail is wheer e United States is liable for e tortious conduct of Kandis Martine, a member and employee of e Navajo Nation. To resolve is critical question, is Court must first determine wheer Martine qualified as a federal employee. See Adams v.tunmore, 2006 WL , at *2 (E.D. Wa. 2006) (citing United States v. New Orleans, 425 U.S. 807, 814 (1976)). If Martine was a federal employee, is Court must en determine wheer Martine was acting wiin e course and scope of her employment wi e Navajo Nation. Page 7 of 21

8 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 8 of 21 PageID 543 Id. A. Martine s status as a federal employee 1. Applicable law On March 9, 2006, e Navajo Nation entered into a self-determination contract wi e U.S. Department of e Interior to administer e Navajo Children and Family Services Program (ICWA). 2 See Section 108(c) Model Contract wi e Navajo Nation. The self-determination contract incorporated by reference e Annual Funding Agreement in effect on April 2, Id. Notably, e Annual Funding Agreement declared: For purposes of Federal Tort Claims Act coverage, e Navajo Nation and its employees are deemed to be employees of e Federal government while performing work under e contract. This status is not changed by e source of e funds used by e Navajo Nation to pay e employees salary and benefits unless e employee receives additional compensation for performing covered services from anyone oer an e Navajo Nation. See 3 Annual Funding Agreement (pg. 13, section O); see also 25 C.F.R ( Does FTCA cover employees of e contractor who are paid by e contractor from funds oer an ose provided rough e self-determination contract? Yes, as long as e services out of which e claim arose were performed in carrying out e self-determination contract ). A document entitled Scope of Work for e Navajo Nation: Navajo Children and Family Services Program (ICWA) described e goals of e program under e self-determination contract as e prevention of e break-up of Navajo families, to protect e best interest of Navajo children, and to promote e stability of 2 Attached to Martine s deposition as Exhibit 6. 3 Attached to Martine s deposition as Exhibit 5. Page 8 of 21

9 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 9 of 21 PageID 544 Navajo families. See Scope of Work, pg To determine wheer Martine, a member and employee of e Navajo Indian, is a federal employee, is Court must look first to Public Law No , Title III, 314, which provides: Wi respect to claims resulting from e performance of functions... under a contract, grant agreement, or cooperative agreement auorized by e Indian Self-Determination and Education Assistance Act... an Indian tribe, tribal organization, or Indian contractor is deemed hereafter to be a part of e Bureau of Indian Affairs in e Department of e Interior... while carrying out any such contract or agreement and its employees are deemed employees of e Bureau... while acting wiin e scope of eir employment in carrying out e contract or agreement... [A]ny civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by is provision shall be deemed to be an action against e United States and will be defended by e Attorney General and be afforded e full protection and coverage of e Federal Tort Claims Act.... The Eleven Circuit has embraced e statutory intent to substitute e United States as a defendant in litigation involving Native American tribes when employees of a tribe commit a tortious act, acknowledging, When an Indian tribe or tribal organization operates pursuant to a selfdetermination contract and its employees operate wiin e scope of eir employment in carrying out such a contract or agreement, e organization is considered a party of e Federal government and its employees are considered Federal employees for e purposes of e FTCA. Seneca v. United Sou& Eastern Tribes, 318 Fed. Appx. 741, 744 (11 Cir. 2008) (citing 25 U.S.C. 450f). Several oer circuits, including circuits more familiar wi e social, economic, legal, and political relationships between e United States and various Native American tribes, have also recognized e intent of Congress. See, e.g., Hinsley v. Standing Rock Child Protective Services, 516 F.3d 668, 4 Attached to Martine s deposition as Exhibit 4. Page 9 of 21

10 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 10 of 21 PageID (8 Cir. 2008) ( Tort claims against tribes, tribal organizations, or eir employees, at arise out of e tribe or tribal organizations carrying out a self-determination contract, are considered claims against e United States and are covered to e full extent of e FTCA ) (citations omitted); Walker v. Chugachmiut, 46 Fed. Appx. 421, 423 (9 Cir. 2002) ( Any civil action against a tribal organization, or one of its employees acting wiin e scope of employment, for tort claims resulting from e carrying out of an Indian Self-Determination and Educational Assistance Act contract shall be deemed to be an action against e United States under e FTCA ) (citations omitted). Importantly, a large majority of circuit courts of e United States has examined e legislative intent behind e statutes enacted for e benefit of Native Americans, including e statute at issue. Each of ose circuit courts has concluded, [S]tatutes are to be construed liberally in favor of e Indians, wi ambiguous provisions interpreted to eir benefit. See Sanderlin v. Seminole Tribe of Fla., 243 F.2d 1282, 1285 (11 Cir. 2001) (citations omitted); see also, e.g., Grand Traverse Band of Ottawa & Chippewa Indians v. Mich. Dep t of Natural Resources, 141 F.3d 635, 639 (6 Cir. 1998) (internal and external citations omitted); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461 (10 Cir. 1997) (internal and external citations omitted); Tonkawa Tribe of Okla. v. Richards, 75 F.3d 1039, 1043 (5 Cir. 1996) (citations omitted); Oneida Tribe of Indians of Wisc. v. State of Wisc., 951 F.2d 757, 763 (7 Cir. 1991) (citations omitted); Inter-tribal Council of Nev. v. Hodel, 856 F.2d 1344, 1350 (9 Cir. 1988) (internal and external citations omitted). The Supreme Court of e United States has even recognized e eminently sound and vital canon at all ambiguities in statutes passed for e benefit of Indians are to be construed in e Indians favor. Sou Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 526 (1986) (internal citations omitted). The district court in Allender v. Scott, 379 F.Supp. 2d 1206, 1218 (D.N.M. 2005), explained Page 10 of 21

11 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 11 of 21 PageID 546 e Congressional intent behind e foregoing rationale, observing, Congress has expressly required courts to interpret ISDEAA [self-determination] and associated contracts liberally to benefit Indian contractors. (citation omitted). Referencing pertinent legislative history, e court went on to concede at such a broad interpretation potentially exposes e United States to substantial liability for e conduct of contractors over whom it has little control. However, when Congress was considering wheer to extend FTCA coverage to ISDEAA contractors, e BIA, Indian Heal Service, and e Department of Justice all argued against it precisely for is reason. While e Court appreciates e cogency of is argument, it is apparent at Congress has settled e policy question in favor of providing insurance coverage. Id. at 1218, fn.15 (internal citations omitted). Based on e preceding well-established precedent, courts should construe statutes intended to benefit Native Americans in favor of Native Americans. Factual application and analysis There is no question at Martine is a member and employee of e Navajo Nation. (Depo. of. Kandis Martine, pg. 11:3-8, 17-20). Furer, none of e Defendants disputes at Martine was in Jacksonville, Florida to monitor an adoption proceeding involving a Navajo child. (Depo. of Lucy Laughter-Begay, pg. 15:16-16:7) (Depo. of Kandis Martine, pg. 11:21-24; 13:16-21; 14:16-15:3; 5 43:22-44:2; 50:8-12; 66:2-23). Martine s presence was requested by Lucy Laughter-Begay because e proposed adoption of a Navajo child would be affected by various federal statutes and oer 6 7 documents, including e Indian Child Welfare Act, while a document entitled Scope of Work 5 On e date of e crash, Mrs. Laughter-Begay was an employee of e Navajo Nation, and was in Jacksonville, Florida pursuant to a self-determination contract. (Depo. of Lucy Laughter-Begay, pg. 11:1-12:4) U.S.C reads, in pertinent part,: Recognizing e special relationship between e United States and e Indian tribes and eir Page 11 of 21

12 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 12 of 21 PageID 547 contained several tasks which Martine was performing while in Jacksonville, Florida. However, Martine was not serving as appointed counsel in e adoption proceeding, nor did Martine practice 8 law while in Jacksonville. Alough Martine is an attorney licensed to practice law in e states of New Mexico and Washington, and in e Navajo Nation, ere is no statute, case, regulation, or oer members and e Federal responsibility to Indian people, e Congress finds 2) at Congress, rough statutes, treaties, and e general course of dealing wi Indian tribes, has assumed e responsibility for e protection and preservation of Indian tribes and eir resources; 3) at ere is no resource at is more vital to e continued existence and integrity of Indian tribes an eir children and at e United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; 4) at an alarmingly high percentage of Indian families are broken up by e removal, often unwarranted, of eir children from em bu non-tribal public and private agencies and at an alarmingly high percentage of such children are placed in non-indian foster and adoptive homes and institutions; and 5) at e States, exercising eir recognized jurisdiction over Indian child custody proceedings rough administrative and judicial bodies, have often failed to recognized e essential tribal relations of Indian people and e cultural and social standards prevailing in Indian communities and eir families. 7 In a document entitled Scope of Work for e Navajo Nation: Navajo Children & Family Services Program (ICWA), Calendar Year 2007, it states, The goal of e Navajo Children and Family Services Program, Indian Child Welfare Act Unit, is to prevent e break-up of Navajo families, to protect e best interest of Navajo children, and to promote e stability of Navajo families. The document also lists actions designed to fulfill e policies outlined in e ICWA, including e following: 1) Navajo Children and Family Services receives written/oral referrals on Navajo children whose cases are pending in state court due to termination of parental rights... or adoption; 4) Provide case management services to eligible Navajo children and families; 5) Request coordination of legal services from e Navajo Nation Department of Justice on behalf of Navajo children and families, when applicable; 9) Provide education and training on e provisions of ICWA; and 11) Monitor e efforts made by e State to comply wi e ICWA, such as placement preference and wheer active efforts are being provided. See Scope of Work (pg. 2). 8 Martine deferred to a local attorney contracted to process e adoption, and relied upon e local attorney for legal opinions and for court representation. Additionally, Martine never signed a pleading or oer document requiring e signature of a licensed attorney. (Depo. of Kandis Martine, pg. 62:23-63:11). Page 12 of 21

13 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 13 of 21 PageID 548 auoritative source standing for e proposition at a member and employee of e Navajo Nation, who also happens to be an attorney, is precluded from FTCA coverage and indemnity. Martine s involvement in e proceedings was only intended to facilitate compliance wi e policy purposes of ICWA and e Scope of Work. (Depo. of Lucy Laughter-Begay, pg. 18:13-18; 20:18-24; 34:17-36:4) (Depo. of Kandis Martine, pg. 63:13-20; 75:13-76:4). Martine was a member and employee of e Navajo Nation carrying out activities auorized under a selfdetermination contract. (Depo. of Lucy Laughter-Begay, pg. 16:15-19; 36:5-7). Specifically, during her time in Jacksonville, Florida, Martine focused on numbers 1, 4, 5, 9, and 11 of e Scope of Work. (Depo. of Kandis Martine, pg. 77:3-78:3; 79:3-80:11; 91:25-92:11). The Annual Funding Agreement governing e Navajo Children and Family Services Program (ICWA) confirms Martine s status as a federal employee: For purposes of Federal Tort Claims Act coverage, e Navajo Nation and its employees are deemed to be employees of e Federal government while performing work under e contract. See Annual Funding Agreement (pg. 13, section O). Martine testified at is provision applied to her work in Jacksonville, Florida, because she was a member and employee of e Navajo Nation and because she was performing her work under a selfdetermination contract. (Depo. of Kandis Martine, pg. 82:18-83:12). Even if Martine did most of her work roughout e rest of e year for anoer Navajo Nation entity, such a fact would not preclude a finding of federal employee status for Martine s work under e self-determination contract at e time of e crash. Concluding at e employees of anoer tribal entity qualified as employees of a tribal entity wi whom e United States contracted under e ISDEAA, one court explained, Alough e Tribe created a specific social services entity to carry out e 638 contract, at does not preclude oer tribal employees from assisting in e Page 13 of 21

14 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 14 of 21 PageID 549 administration of e Tribe s social services program, i.e., performing work under e 638 contract. Andrade v. United States, 2008 WL , at *7 (D. Ariz. 2008). The Andrade court went on to hold, Therefore, e Court finds at to e extent at [anoer tribal entity] and its employees assisted in carrying out e Tribe s social services program under e 638 contract, as occurred here, [e oer tribal entity] and its employees are employees of e Federal government for purposes of FTCA coverage. Andrade v. United States, 2008 WL , at *7 (D. Ariz. 2008). Based on e reasoning in Andrade, is Court should conclude at Martine was a federal employee for purposes of FTCA coverage. See also Allender, 379 F.Supp. 2d at 1216 ( [T]he federal courts have recognized [at] tribal employees performing official functions under an ISDEAA contract are generally treated as federal employees ) (citations omitted). The reasoning in Buchanan v. U.S. Dep t of Heal & Human Services, 177 F.Supp. 2d 1005 (N.D. Ca. 2001), is also instructive. In Buchanan, an employee of a Native American tribe, was transporting a young Native American who also happened to be her son to a court-ordered drug test. Buchanan, 177 F.Supp. 2d at While traveling to e drug test, e tribal employee was involved in a crash. Id. The United States Attorney General denied e tribal employee s status as a federal employee; consequently, e plaintiffs moved for summary judgment on e issue of e tribal employee s federal employment status. Id. Granting e plaintiff s motion, e district court referenced e contract between e United States and e tribe, and noted at e contract was to be liberally construed.... Id. at The court also referred to e scope of work agreement to determine wheer e tribal employee was performing a function under e contract. Id. The court finally acknowledged at e parties interpretation and performance of e contract could constitute evidence at e employee was acting pursuant to e contract. Id. (citations omitted). Page 14 of 21

15 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 15 of 21 PageID 550 In e instant case, e pertinent self-determination contract contains a directive to interpret e contract liberally. See Section 108(c) Model Contract wi e Navajo Nation (pg.1, a.2) ( Each provision of e [self-determination act] and each provision of is Contract shall be liberally construed.... ). As Martine testified, she was performing tasks enumerated in e applicable Scope of Work document. (Depo. of Kandis Martine, pg. 77:3-78:3; 79:3-80:11; 91:25-92:11). Martine also testified at she considered herself protected and indemnified under e FTCA, as she was performing work under a self-determination contract at e time of e subject crash. (Depo. of Kandis Martine, pg. 43:22-44:2; 82:18-83:12). Based on e reasoning in Buchanan, is Court should conclude at Martine was a federal employee for purposes of FTCA coverage, and is protected and indemnified rough e FTCA. 9 B. Course and scope of Martine s employment Once is Court determines at Martine was a federal employee protected by e FTCA, is Court must determine wheer Martine was acting wiin e course and scope of her employment at e time of e crash. 1. Applicable law Under e Federal Tort Claims Act, e laws of e State of Florida govern substantive issues, including e issues of wheer a person was acting wiin e course and scope of her employment. 10 See 28 U.S.C. 1346(b)(1); see also, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (citations 9 Should is Court determine at ere are genuine issues of material fact, case law auorizes is Court to hold a pre-trial adversarial evidentiary hearing to resolve ose factual issues. See, e.g., Gutierrez de Martinez v. Drug Enforcement Agency, 111 F.3d 1148, 1153 (4 Cir. 1997); Arur v. United States, 45 F.3d 292, 295 (9 Cir. 1995) (citations omitted). 10 The United States has admitted e application of Florida law to substantive issues, including e issues of e course and scope of employment and negligence. Defendant s Answer to Plaintiffs Complaint, pg. 1, 8. Page 15 of 21

16 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 16 of 21 PageID 551 omitted). Florida law considers e conduct of an employee wiin e course and scope of e employee s employment when e conduct is of e kind e employee is hired to perform, e conduct occurs substantially wiin e time and space limits auorized or required by e work to be performed, and e conduct is activated at least in part by a purpose to serve e master. See Fernandez v. Fla. Nat l College, Inc., 925 So. 2d 1096, 1100 (Fla. 3d DCA 2006) (citations omitted); see also, e.g., United Technologies Corp. v. Mazer, 556 F.3d 1260, 1271 (11 Cir. 2009) (citing Florida law). 2. Factual application and analysis It is undisputed at Mrs. Laughter-Begay rented a vehicle and permitted Martine to drive e vehicle to enable Begay and Martine to perform work pursuant to a self-determination contract. (Depo. of Lucy Laughter-Begay, pg. 12:5-9; 18:19-23). In fact, Martine testified at it would be impossible for her and Laughter-Begay to complete eir assignments under e self-determination contract wiout a vehicle. (Depo. of Kandis Martine, pg. 92:12-16). Additionally, e crash forming e basis of e Plaintiffs Complaint occurred while Martine and Laughter-Begay were en route to a scheduled meeting wi a local attorney contracted to handle e adoption proceedings. (Depo. of Lucy Laughter-Begay, pg. 21:23-22:3) (Depo. of Kandis Martine, pg. 25:3-5). Martine herself testified at she was working for e Navajo Nation at e time of e crash. (Depo. of Kandis Martine, pg. 24:6-9; 92:17-21). Accordingly, Martine s operation of e vehicle was wiin e course and scope of her employment under a self-determination contract between e United States and e Navajo Nation. See Buchanan v. U.S. Dep t of Heal & Human Services, 177 F.Supp. 2d 1005, (N.D. Ca. 2001) (providing transportation to facilitate activities under a self-determination contract constitutes activity covered by e contract). Page 16 of 21

17 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 17 of 21 PageID 552 C. Conclusion: Federal Tort Claims Act Martine, a member and employee of e Navajo Nation on e date of e crash, and at e time of e crash, was a federal employee under applicable law. Furer, Martine s actions, including her operation of a vehicle at e time of e crash, were wiin e course and scope of her employment under a self-determination contract between e United States and e Navajo Nation. Therefore, is Court should conclude e Martine was a federal employee acting wiin e course and scope of her duties under a self-determination contract, and grant Martine e full extent of protection offered under e FTCA. IV. Negligence A. Applicable law Under e Federal Tort Claims Act, e laws of e State of Florida govern substantive issues, including e Defendants negligence. See 28 U.S.C. 1346(b)(1); see also, e.g., F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) ( [W]e have consistently held at 1346(b) s reference to law of e place means law of e State e source of substantive liability under e FTCA ) (citations omitted). Florida law requires a party claiming negligence to prove at e defendant owed a duty, or obligation, recognized by law, requiring e [defendant] to conform to a certain standard of conduct for e protection of oers against unreasonable risks. (citations omitted). The party claiming negligence must also show at e defendant failed to conform to at duty.... [T]here must be [a] reasonably close causal connection between e [nonconforming] conduct and e resulting injury to e claimant.... [T]he claimant must demonstrate some actual harm. Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007) (internal and external citations omitted); see also Jennings v. BIC Corp., 181 F.3d 1250, 1262 (11 Cir. 1999) (citing Florida law). Page 17 of 21

18 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 18 of 21 PageID 553 B. Factual application and analysis 11 None of e parties dispute at Martine, as e operator of a motor vehicle on a public highway, owed oer motorists, including e Plaintiffs, e duty to operate her motor vehicle in a safe manner. A review of e record evidence also precludes any disputed issues of material fact regarding Martine s breach of her duty. Orion Kiefer, an accident reconstructionist retained by e United States, testified at Martine failed to drive prudently. Mr. Kiefer testified at Martine drove e wrong way on a one-way street, ereby violating Florida law. Martine conceded at she was traveling e wrong way on a one-way street. (Depo. of Kandis Martine, pg. 26:19-21). Mr. Kiefer testified at Mr. Murphy s stop was sudden and unexpected. Martine confirms e sudden and unexpected nature of her own stop and e stop of Mr. Murphy. (Depo. of Kandis Martine, pg. 27:24-28:7). Mr. Kiefer testified at Mr. Murphy s sudden and unexpected stop was e direct consequence of Martine s driving a vehicle e wrong way on a one-way street. Mr. Kiefer also testified at Martine failed to pay attention to traffic signs indicating a one-way street. Martine admits not seeing any signs indicating a one-way street. (Depo. of Kandis Martine, pg. 26:17-18). A review of e record evidence also precludes any disputed issues of material fact regarding e causal connection between Martine s negligence and e injuries sustained by e Plaintiffs. Mr. Kiefer testified if Martine would not have driven e wrong way on a one-way street, e Plaintiffs vehicle would not have collided wi e vehicle driven by Murphy. Martine also admitted her role in causing e crash, testifying at, at a minimum, she caused or contributed to causing e crash in 11 The following depositions were taken but have yet to be transcribed: 1) deposition of Orion Kiefer; 2) deposition of Robynanne Cash-Howard; and 3) deposition of Marc Hofmann, M.D. The Plaintiffs will provide is Court wi citations to e relevant portions of e depositions as soon as e transcripts become available. Until en, e Plaintiffs attest to e accuracy of e propositions for which e Plaintiffs reference e depositions. Page 18 of 21

19 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 19 of 21 PageID 554 which e Plaintiffs were injured. (Depo. of Kandis Martine, pg. 38:13-39:5). A review of e record evidence precludes any disputed issues of material fact regarding certain damages suffered by e Plaintiffs as a result of Martine s breach of duty. Ms. Cash-Howard, a vocational rehabilitation expert retained by e United States, testified at e Plaintiff, Ronald Colbert, sustained e following damages due to e April 2, 2007 crash: past medical expenses; 12 e need for future medical care (opining e future medical needs of e Plaintiff, Ronald Colbert, will cost between $17,582 and $18,454 per year for 33.6 years); lost wages in e past (opining ey were $25,830 per year for two years); e inability to fulfill his pre-accident job duties as a commercial tractor-trailer operator; permanent injury; and permanent activity and work restrictions. Ms. Cash-Howard also testified at e Plaintiff, Jerri Colbert, sustained e following damages due to e April 2, 2007 crash: past medical expenses; past lost wages (opining ey were, at a minimum, $20,000 per year for 3.25 years); e inability to fulfill her pre-accident job duties; and permanent activity and work restrictions. Dr. Hofmann, e physician retained by e United States to conduct compulsory medical examinations of e Plaintiffs, testified at e Plaintiff, Ronald Colbert, sustained e following damages due to e April 2, 2007 crash: injury to neck and back; past medical expenses; e need for future medical care; permanent injury to neck; permanent impairment to neck; permanent scarring; and permanent activity and work restrictions. Dr. Hofmann also testified e crash caused a permanent aggravation to e neck of e Plaintiff, Ronald Colbert, and e two neck surgeries of 12 Ms. Cash-Howard also testified she has no opinions to refute e reasonableness, relatedness, or necessity of e past medical expenses of e Plaintiff, Ronald Colbert, which now total at least $231,083.96; nor does Ms. Cash-Howard have any opinions to refute ose same issues related to e past medical expenses of e Plaintiff, Jerri Colbert, which now total at least $91, Page 19 of 21

20 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 20 of 21 PageID 555 e Plaintiff, Ronald Colbert, were due to e permanent aggravation. Furer, Dr. Hofmann was unable to apportion between e pre-existing neck condition and permanent aggravation to e neck of e Plaintiff, Ronald Colbert. Thus, e Plaintiff, Ronald Colbert, is entitled to recover e full 13 amount of his damages for all of his neck injuries. See 501.5, Fla. Std. Jury Inst. (Civil); Gross v. Lyons, 763 So. 2d 276, 280 (Fla. 2000) (citation omitted). Dr. Hofmann also testified at e Plaintiff, Jerri Colbert, sustained e following damages due to e April 2, 2007 crash: neck, back, and shoulder injuries; e need for shoulder surgery; a permanent injury and impairment to her shoulder; and permanent activity and work restrictions. C. Conclusion: negligence By virtue of her operation of a vehicle on a public highway, Martine owed oer motorists, including e Plaintiffs, a duty to operate her vehicle in a reasonably safe manner. However, Martine breached her duty to e Plaintiffs by driving her vehicle negligently. As a direct and proximate result of Martine s negligence, e Plaintiffs sustained various damages, including bodily injury, past and future medical and nursing care and treatment, past lost wages, e loss of future earning capacity, and permanent injury and impairment. Therefore, is Court should conclude at Martine was negligent, and at Martine s negligence was e direct and proximate cause of e aforementioned injuries sustained by e Plaintiffs. V. Overall conclusion In light of e foregoing undisputed facts and applicable law, is Court should grant e Plaintiffs Motion for Partial Summary Judgment. 13 Dr. Hofmann also testified he has no opinions to dispute e reasonableness, relatedness, or necessity of e past medical bills of e Plaintiff, Ronald Colbert, nor of e Plaintiff, Jerri Colbert. Page 20 of 21

21 Case 3:09-cv HES-JRK Document 45 Filed 10/25/10 Page 21 of 21 PageID 556 COKER, SCHICKEL, SORENSON & POSGAY, P.A. /S/ Matew N. Posgay MATTHEW N. POSGAY, ESQ. Florida Bar No.: East Bay Street Jacksonville, FL (904) (904) facsimile Attorneys for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY at a true copy of e foregoing has been furnished to R. Frank Myers, Esq., Pearson & Myers, P.A., 703 N. Monroe Street, Tallahassee, FL 32303, Ronnie Carter, Esq., U. S. Attorneys Office, 300 Nor Hogan Street, Suite #700, Jacksonville, FL 32202, and Patrick Mason, Esq., 104 E. Aztec Avenue, Gallup, NM by U.S. Mail, on 25 day of October, COKER, SCHICKEL, SORENSON & POSGAY, P.A. /S/ Matew N. Posgay MATTHEW N. POSGAY, ESQ. Florida Bar No.: East Bay Street Jacksonville, FL (904) (904) facsimile Attorneys for Plaintiffs Page 21 of 21