                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 JOAN CLARK v. ESTATE OF DAVID
 FLACH, SR., et al.                                  Civil Case No. 07-883 (RJL)


 JOAN CLARK v. ESTATE OF DAVID
 FLACH, SR., et al.                                  Civil Case No. 08-779 (RJL)


                                                     ~
                                  MEMORANDUM OPINION
                                     (March    ?dfo.,
                                            2009)

       Before the Court are motions to dismiss filed by the Estate of David Flach, Sr. (the

"Flach Estate"), GEl CO, and the District of Columbia in connection with plaintiff Joan

Clark's lawsuits alleging negligence and breach of contract arising out of a 2005 car

accident. Upon review of the parties' briefs, the entire record, and the applicable law, the

Court GRANTS the defendants' motions.

                                         BACKGROUND

       These cases arise out of a car accident that took place on May 13, 2005 in the 800

block of Southem Avenue SE in the District of Columbia. (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 plaintiff was a

passenger, causing plaintiff to 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.) Plaintiff alleges that DC Metropolitan Police Department

("MPD") officers were pursuing the Jaguar at the time of the accident. (Id.           ~   12.)



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Plaintiff further alleges that the Jaguar was owned by David Flach, Sr. ("Flach"), who

had loaned the car to defendant Anita Lacey ("Lacey") at some point prior to the

accident.! (Jd. ~ 16.)

        Plaintiff filed an initial complaint on May 10, 2007 asserting negligence claims

against two Virginia corporations and John and Jane Doe (the "2007 action"). (CompI.,

No. 07cv883 [Dkt. #1].) Upon conducting discovery, plaintiff stipulated to the dismissal

of her claims against the corporations and moved to amend her complaint, which
                                                            2
Magistrate Judge Robinson granted on June 11,2008. Following plaintiffs motion to

amend her complaint, but before Magistrate Judge Robinson's ruling, plaintiff also

instituted a new action in this Court (the "2008 action"), filing as her complaint a

verbatim copy of her proposed amended complaint in the 2007 action (the "Complaint").

In the Complaint, plaintiff asserts negligence claims against the Flach Estate and Lacey, a

breach of contract claim against Flach's insurance provider, GEICO, and two gross

negligence claims against the District of Columbia. 3 (Clark CompI., Counts I-VI.) The

Flach Estate, GEICO, and the District have each moved to dismiss plaintiffs claims




        Plaintiff confusingly alleges both that Lacey had possession of the vehicle and that "[ s]he
also stated she had fallen asleep at a party 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 of the accident and the filing ofplaintiffs
amended complaint in the 2007 action. (Mot. to Amend CompI. at 2, No. 07cv883 [Dkt. #33].)


                                                 2
against them for failure to state a claim under Federal Rule of Civil 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. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007);

Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.

2008). However, the Court "need not accept inferences drawn by plaintiffIJ if such

inferences are unsupported by the facts set out in the complaint. Nor must the court

accept legal conclusions cast in the form of factual allegations." Kowal v. MCI

Commc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994). While a plaintiff need only

provide "a short and plain statement of the claim showing that the pleader is entitled to

relief," Fed. R. Civ. P. 8(a)(2), a plaintiff must furnish "more than labels and

conclusions" and the facts alleged "must be enough to raise a right to relief above 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 agent pursuant to the District of Columbia Motor 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 et seq., and therefore the Flach Estate is

liable for Lacey's failure to maintain control of the vehicle. (Clark CompI.,-r,-r 19-22.)

The Flach Estate contends that MVSRA does not apply because plaintiff admits that the

car was stolen at the time of the accident. For the following reasons, I agree.

       Under MVSRA, when an automobile is involved in an accident in the District, the

operator of the vehicle is deemed an agent of the vehicle's owner    if the operator was
driving the vehicle with either the express or implied consent of the 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 car with 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 of a vehicle and the person to whom the owner

lends the vehicle. Rather, by its plain terms, MVSRA premises vicarious liability on the

person to whom consent was given being the person driving the car at the time of the

accident. See D.C. Code § 50-1301.08 (creating agency relationship when vehicle is

"operated upon the public highways of the District of Columbia by any person other than

the owner, with the consent of the owner, express or implied"); id. § 50-1301.02(2)



       MVSRA provides in pertinent part:
      Whenever any motor vehicle, after the passage of this chapter, shall be operated
      upon the public highways of the District of Columbia by any person other than the
      owner, with the consent of the owner, express or implied, the operator thereof
      shall in case of accident, be deemed to be the agent of the owner of such motor
      vehicle, and the proof of the ownership of said motor vehicle shall be prima facie
      evidence that such person operated said motor vehicle with the consent of the
      owner.
D.C. Code § 50-1301.08.


                                              4
(defining "operator" under MVSRA as "every person who drives or is in actual physical

control of a motor vehicle upon a public highway"). Here, plaintiff alleges in the

Complaint, and therefore admits, Shear v. Nat '[ Rifle Ass 'n ofAm., 606 F.2d 1251, 1253

(D.C. Cir. 1979), that at the time of the accident the car was stolen and was being driven

by two unknown individuals, (Clark Compi. ,-r 11).6 A stolen car, by definition, is one

that is operated without the owner's consent. Accordingly, even assuming that Flach

consented to Lacey's use of the Jaguar, MVSRA cannot create an agency relationship

between Flach and Lacey upon which the Flach Estate can be liable for an accident

caused by Lacey's failure to prevent the Jaguar's theft and collision with plaintiff. See

Athridge, 312 F.3d at 477 ("Under District of Columbia law, an automobile owner is

entitled to judgment as a matter of law if he or she asserts without contradiction that the

vehicle was taken and used without consent."); Curtis v. Cuff, 537 A.2d 1072, 1073 (D.C.

1987) ("Because appellant offered uncontested evidence to rebut the statutory

presumption of consent, she was entitled to judgment as a matter of law."). Plaintiffs

claim against the Flach Estate in both actions therefore must be dismissed. 7



6
         In plaintiff s 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 of the accident." (Pl.'s Opp'n to 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 sufficient to plead a prima 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 if it is not reasonably foreseeable." McKethean v. Wash.
Metro. Area Transit Auth., 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, plaintiff brings a breach of contract claim against GEICO on the

basis that GEICO, through an automobile insurance contract, "provided liability coverage

for any claims that may have been brought against [Flach] resulting from the use of his

vehicle." (Clark CompI. ~ 30.) Plaintiff alleges that GEICO breached its duty pursuant

to that contract to defend and provide coverage for "any claims that [plaintiff] may make

as a result of her injuries," and is thus liable for damages owed plaintiff. (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 a judgment against Flach that would authorize a direct action



criminal, a "more heightened showing of foreseeability" 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 plaintiff bears the burden of
establishing that the criminal act was so foreseeable that a duty arises to guard against 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.) Plaintiff does not make any allegations as to whether Lacey should
have, or could have, foreseen that her actions would have resulted in the criminal act of the car
being stolen. Nor does plaintiff make any allegations that Lacey violated any public safety
ordinances that would support a claim of negligence per se. See Bailey v. J & B Trucking Servs.,
Inc., 590 F. Supp. 2d 4,8, 10-11 (D.D.C. 2008) (the act ofleaving keys in an unlocked and
unattended vehicle on public property can constitute negligence per se under D.C. law); Ross v.
Hartman, 139 F.2d 14, 14-16 (D.C. Cir. 1943) (truck owner liable for negligence per se where
agent of owner left truck "unattended in a public alley, with the ignition unlocked and the key in
the switch," in violation of traffic ordinance). Accordingly, even if the Flach Estate could be
held vicariously liable under MVSRA for Lacey's alleged negligence in allowing the car to be
stolen, plaintiff has failed to allege facts sufficient to plead aprimafacie claim. And finally,
despite also characterizing her negligence claim in her opposition brief as one of negligent
entrustment given Lacey's supposed "past history of untrustworthiness," (PI.'s Opp'n to Def.
Flach Estate's Motion to Dismiss at 6-7), plaintiff fails 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 of harm to others. See A thridge v. Rivas, 141
F.3d 357, 363 (D.C. Cir. 1998).


                                                6
against GEICO. Plaintiffs claim against GEICO in both actions therefore must also be

dismissed for failure to state a claim. 8 See Young Women's Christian Ass 'n o/Nat.

Capital Area, Inc. v. All State Ins., 158 F.R.D. 6, 8 (D.D.C. 1994) ("[A] plaintiff seeking

to secure the benefits of an insurance policy has the burden of pleading that he has a right

to recover under the terms of the policy."); A.S. Johnson Co. v. Atlantic Masonry Co.,

693 A.2d 1117, 1119 n.1 (D.C. 1997) ("[L liability policies are only required to afford a

direct action by an injured party against an insurer after a judgment has been obtained

against the 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 at high 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 of plaintiffs failure to comply with the D.C. Code's notice

requirement. D.C. Code § 12-309. For the following reasons, I agree.

       D.C. Code § 12-309 requires potential tort plaintiffs to give written notice to the

District within six months of an injury in order to bring suit. 9 The notice 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 for jUdgment on the 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 of Columbia so that the facts may be

ascertained and, if possible, 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 "it is in derogation of the common law

principle of sovereign 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 plaintiff did not provide written notice to the District. (PI.' s

Opp'n to Def. District of Columbia's Motion to Dismiss at 3-4, No. 08cv779 [Dkt. #19].)

Plaintiff argues, not surprisingly, that the District was 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 of duty are permissible alternatives

under the notice requirement. D.C. Code § 12-309 ("A report in writing by the [MPD], in

regular course of duty, is a sufficient notice under this section."). However, whether any

given police report satisfies § 12-309 is a question of law, see Doe v. District of

Columbia, 697 A.2d 23,24 (D.C. 1997), and, for the following reasons, the reports

plaintiff relies on in this case did not!




       An action may not be maintained against the District of Columbia for
       unliquidated damages to person or property 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 of the District of Columbia of the approximate
       time, place, cause, and circumstances of the injury or damage. A report in writing
       by the [MPD], in regular course of duty, is a sufficient notice under this section.


                                                8
       In order for a police report to qualify as notice, it must "contain information as to

time, place, cause and circumstances of injury or damage with at least the same degree of

specificity required of a 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) (a police report will suffice if it "describe[ s] the injuring event with sufficient

detail to reveal, in itself, a basis for the District's potential liability"). When evaluating

the content of a police report under § 12-309, courts must interpret the requirements

liberally and resolve close cases in favor of finding 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 accident between plaintiffs vehicle and the stolen jaguar. (PI. 's Opp'n to Def.

District of Columbia's Motion to Dismiss, Exs. 2-3.) While the Traffic Accident Report

documents plaintiffs injury and states that the Jaguar was traveling at "a high 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 pertinent part: "GRAY JAGUAR WAS FOLLOWED" and

"BOTH SUBJS CRASHED THE SILVER JAGUAR AND 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'n to 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 of the 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 District property, 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

wasjollowing the Jaguar at the time of the accident. The chronology, on its face, does

10
       The narrative portion of the Traffic Accident Report states:
       On 05-13-05 at approximately 1355 hours, D-l was traveling E/B in the 800 block
       of Southern Avenue, SE at a high rate of speed, crossed over the double yellow
       lines striking D-2' s vehicle causing it to spin out of control. D-l' s vehicle also
       spun out of control before coming to a complete stop at which time D-l and the
       passenger jumped out of vehicle and fled the scene in the wooded area in the 800
       block of Southern Ave., SE.
(PI. 's Opp'n to Def. District of Columbia's Motion to 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.)


                                               10
not reveal whether the police were "pursuing" the Jaguar in a manner, or with an intent,

to induce a traffic stop, or whether the cruiser even had its emergency lights on.

Proximity to the accident does not, alone, indicate involvement by the District, and

therefore any inference of potential liability based on the chronology is too remote to

satisfy § 12-309, particularly given that the formal police report fails to reference police

involvement in any capacity. I I Cf Doe, 697 A.2d at 27-29 (in case involving negligence

claim for failure to intervene to remove child from abusive home environment, police

reports insufficient where they "d[id] not refer to any direct involvement by the District

in determining [child's] primary caretaker or residence"); Braxton v. Nat 'I Capital Hous.

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 and theft). Accordingly, because the police report and Event Chronology

fail to "reveal, in [themselves], a basis for the District's potential liability," the Court will

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 clear that the Event Chronology
qualifies as a type of police report sufficient to provide notice under § 12-309. While the District
does not argue that the chronology was not created in the regular course of duty, the
chronology's (apparent) automated nature raises questions as to whether it is, in fact, the type of
"report in writing" contemplated in § 12-309. See Doe, 697 A.2d at 28 ("Section 12-309 makes
clear that police reports are the only acceptable alternatives to a formal notice. The court is not
free to go beyond the express language of the 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'n to Def. District of
Columbia's Motion to Dismiss at 5.) The purpose of § 12-309 is "to allow the District to


                                                11
                                        CONCLUSION

       Thus for all the foregoing reasons, the Court GRANTS the Estate of David Flach,

Sf. 's, the District of Columbia's, and GEICO's motions to dismiss. An appropriate Order

will issue with this Memorandum Opinion.




                                                     RICHARD. L N
                                                     United States Istnct Judge




conduct a prompt investigation of the injured person's claim," Doe, 697 A.2d at 27 (emphasis
added), separate and apart from any investigation the District may conduct as a matter of course
into a hit-and-run automobile accident involving a stolen vehicle, as the District performed here.


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