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LICENZIATO v. UNITED STATES

March 31, 1995

ANNA MARIE LICENZIATO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: JOHN C. LIFLAND

 LIFLAND, District Judge

 Presently before the Court is defendant's motion to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the Court will grant defendant's motion for summary judgment.

 BACKGROUND

 Plaintiff, a New Jersey resident, alleges that on April 10, 1992, she was involved in a motor vehicle accident in New York City. Plaintiff claims that her car was struck by a U.S. Postal Service truck marked with the number 6501832. Certification of Anna Marie Licenziato, P 9. Plaintiff claims that as a result of defendant's negligence, her car was damaged and she sustained serious injuries. She further claims that she went to Englewood Hospital in Englewood, New Jersey for emergency medical treatment. Complaint, P 8, 11; Certification of Anna Marie Licenziato, P 5, 14.

 Defendant claims that on the day of the alleged accident, vehicle number 6501832 was driven by a postal employee named Wellington Gong. Defendant further claims that on April 10, 1994, Gong was driving a delivery route that made it impossible for him to be present in his truck at the time and place of the alleged accident. See Affidavit Of Drescott Whitehead; Affidavit Of Leonard DeToma; Affidavit Of James E. Witzel.

 Plaintiff seeks an award of compensatory damages, interest, and costs of suit.

 DISCUSSION

 The Court notes at the outset that defendant has consented to this lawsuit. The doctrine of Sovereign Immunity bars suit against the United States without its consent. United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980). Under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, the federal government has consented to be sued for personal injury caused by the negligence of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b). The FTCA precludes the imposition of liability in the absence of "wrongful acts or omissions." Laird v. Nelms, 406 U.S. 797, 32 L. Ed. 2d 499, 92 S. Ct. 1899 (1972).

 Applicable Law

 Plaintiff argues that New Jersey law applies because she entered into an insurance contract in New Jersey. Under New Jersey law, where an automobile liability policy was issued in one state and an accident occurred in another state, the law of the place of the contract controls the rights and obligations arising from that contract. Maryland Casualty Company v. Jacek, 156 F. Supp. 43 (D.N.J. 1957); Moye v. Palma, 263 N.J. Super. 287, 622 A.2d 935 (App. Div. 1993).

 The Court disagrees with plaintiff's position. Pursuant to 28 U.S.C.A. § 1346(b), the Court must apply the law of the state in which the accident occurred in order to determine the liability of the United States for acts of its employees. 28 U.S.C.A. § 1346(b) provides:

 
the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 Since the collision allegedly occurred in New York, liability will be determined under the law of New York. Goodkin v. United States, 773 F.2d 19, 21 (2d Cir. 1985); Patrello v. United States, 757 F. Supp. 216 (S.D.N.Y. 1991). The applicable law is Article 51 of New York's Insurance Law ("The Comprehensive Motor Vehicle Insurance Reparations Act"), N.Y. Insurance Law §§ 5101-5108. Goodkin at 21. New York's no-fault system allows for full compensation for economic losses up to $ 50,000 without the necessity of recourse to the courts and simultaneously eliminates recovery for ...


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