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Keller v. United States

United States District Court, D. Arizona

August 29, 2017

Mary Jo Keller, Plaintiff,
United States of America, Defendant.


          Paul G. Rosenblatt, United States District Judge.

         Pending before the Court is Defendant United States' Motion for Summary Judgment (Doc. 58), wherein the United States seeks to have this action dismissed as time-barred. Having considered the parties' memoranda in light of the relevant evidence of record, the Court finds that there is no genuine dispute as to any material fact and that the United States is entitled judgment in its favor as a matter of law pursuant to Fed.R.Civ.P. 56.[1]


         This Federal Tort Claims Act case, commenced on August 26, 2011, arises from an automobile accident in Maricopa County, Arizona on September 7, 2007 in which Amanda Keller, the daughter of plaintiff Mary Jo Keller (“Keller”), was killed when her vehicle crossed the median of Interstate 10 through an allegedly defective three-cable median barrier and collided with an oncoming vehicle.

         The Court initially dismissed this action for lack of subject matter jurisdiction on July 18, 2012, on the ground that it was time-barred because Keller did not present her administrative claims required by the FTCA to the Federal Highway Administration (“FHWA”) until December 16, 2010, which was some fifteen months after the expiration of two-year statute of limitations of 28 U.S.C. § 2401(b).[2] Section 2401(b) provides in relevant part that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues[.]” The Court concluded as a matter of law in its initial dismissal opinion that Keller's claim accrued on September 7, 2007, the date of the accident, that the limitations period expired two years later, and that the then-existing Ninth Circuit precedent, which held that the limitations period was jurisdictional, barred the Court from considering Keller's contention that the limitations period should be equitably tolled.

         During the pendency of Keller's appeal, the Ninth Circuit held that the limitation periods of § 2401(b) were not jurisdictional and were subject to equitable tolling. Kwai Fun Wong v. Beebe, 732 F.3d 1030 (9th Cir.2013) (en banc). The Supreme Court affirmed that holding. United States v. Kwai Fun Wong, 135 S.Ct. 1625 (2015). As a result, the Ninth Circuit reversed the Court's judgment of dismissal and remanded this action to allow the Court to consider Keller's equitable tolling argument.

         The post-remand Second Amended Complaint (“SAC”) (Doc. 54), which Keller brings pursuant to the FTCA solely in her capacity as Amanda Keller's surviving mother for purposes of Arizona's Wrongful Death Act, A.R.S. § 12-611 et seq., alleges two claims. Count One is a claim for Negligence, which alleges that the United States negligently failed to comply with its own policies and federal law mandating that safety barriers installed on National Highway System (“NHS”) roadways undergo crash testing and approval pursuant to the National Cooperative Highway Research Project Report 350. Count Two is a claim for Negligence Per Se, which alleges that the United States violated its own federally mandated safety rules and regulations by failing to install a crashworthy, appropriately tested, NCHRP Report 350 compliant median barrier.

         Keller further alleges in the SAC that the FTCA's limitations period was equitably tolled as of September 7, 2007, the date of the fatal accident, and therefore did not commence running, “because misrepresentations by the Defendant caused Plaintiff to let the filing period lapse.” Keller asserts in the SAC that the limitations period was tolled from Amanda Keller's death through April 28, 2009, the date on which Keller learned through the deposition of FHWA employee Richard Powers that the cable median barrier at issue was not Report 350 compliant and that the United States had negligently accepted the non-crash-tested cable median barrier design.

         Keller is represented in this action by attorney John Leader, who has litigated various state and federal lawsuits on behalf of plaintiffs alleging negligence related to the design of the three-cable median barrier at issue here.


         The United States argues that it is entitled to summary judgment on the equitable tolling issue because the undisputed facts demonstrate that Keller, through her attorney, had sufficient knowledge of its involvement with the design of the cable median barrier to have timely filed an administrative claim with the FHWA within two years of Amanda Keller's death.

         Keller argues that the United States' summary judgment motion should be denied because her administrative claims were timely filed with the FHWA for purposes of § 2401(b), or alternatively that at the very least there is a disputed issue of fact concerning the timeliness of her administrative claims. Underlying Keller's liability claim is her contention that the United States negligently accepted incorrect crash-testing information to fulfill its own crash-testing requirement for the median cable barriers. The gist of Keller's position is that the limitations period should be equitably tolled through April 29, 2009 because the United States concealed until that date the material fact that a FHWA memorandum in September 2005, which stated that the design of the median cable barrier was Report 350 compliant and therefore crash-tested, was a misrepresentation inasmuch as the report was mistakenly based on test results for roadside barriers, a different type of barrier from the non-tested median cable barriers. Keller contends in her response that prior to the United States' alleged negligence being discovered during the April 29, 2009 deposition, her attorney “believed not that the FHWA negligently confused crash test reports, but that the State of Arizona misrepresented crash test compliance to the FHWA as part of Arizona's funding request.”

         There are no disputed issues of fact here. The parties' disagreements stem the legal ...

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