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Diana Carovski v. Ronald Jordan and U.S. Bulk Transport

April 10, 2011

DIANA CAROVSKI, PLAINTIFF,
v.
RONALD JORDAN AND U.S. BULK TRANSPORT, INC., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Carovski commenced this motor vehicle personal injury action on April 27, 2005, by filing a Summons and Verified Complaint in New York State Supreme Court, County of Erie, against Defendant Jordan. She filed an Amended Summons and Verified Complaint on September 25, 2006, adding U.S. Bulk Transport, Inc. as a Defendant. On October 27, 2006, Defendants removed the action to this Court based on diversity of citizenship. Currently before this Court are Defendants' Motion for Summary Judgment dismissing the action (Docket No. 63) and Plaintiff's Motion for Partial Summary Judgment on the issue of liability (Docket No. 64). For the reasons stated below, Defendants' Motion is denied and Plaintiff's Motion is granted.

II. BACKGROUND

A. Facts

On October 8, 2003, Carovski was driving a 2003 Mercedes C-230 eastbound on Interstate 90. (Docket No. 64-2 at 7-9.) She was traveling in the right lane, and was a few minutes west of Batavia, when an accident occurred at approximately 5:15 to 5:20 p.m. (Id at 9-10.) The weather conditions were dry, it was still light out, and Carovski was traveling at 65 mph. (Id. at 10-11.)

At the time of the accident, Jordan was driving a 1998 Peterbilt tractor with attached 39-foot Mack dump trailer, which he owned. (Id. at 22-23.) As Jordan neared the site of the accident, he was traveling in the left lane with his cruise control set at 65 mph. (Id. at 29.) He attempted to move past Carovski's vehicle and into the right lane, at which time he felt a bump. (Id. at 29-31.) Jordan did not see Carovski's car in his mirrors prior to commencing the lane change, and believed she had pulled behind him. (Id. at 32.) The car actually was in Jordan's "blind spot" near the tractor's front steering tire. (Id. at 33.) Altogether, Jordan felt two to four "bumps." (Id. at 34.)

Carovski first saw the truck when it was crossing over into her lane. (Id. at 12.) The tractor portion of the rig came in contact with the driver's side of Carovski's car. (Id. at 13.) There was a second impact which caused her car to fishtail moving counterclockwise. (Id.) Carovski ultimately lost control of her vehicle, coming to rest off the road in a grass area. (Id. at 11.)

The Police Accident Report indicates that Jordan's vehicle made an unsafe lane change and sideswiped Carovski's vehicle. (Id. at 2-3.) Jordan was issued a traffic citation for violating New York State's Vehicle and Traffic Law, § 1128-A and, on November 13, 2003, pled guilty to the unsafe lane change. (Id. at 4.)

B. The Pending Motions

As previously noted, Defendants removed this action on October 27, 2006. After several extensions of the original scheduling order, efforts to mediate the case, and discovery-related motion practice, all parties moved for summary judgment on January 16, 2009. Defendants seek dismissal of the Amended Complaint in its entirety, arguing that Carovski did not sustain a "serious injury" and thus has no right of recovery for non-economic loss as a matter of law. Plaintiff contends she is entitled to summary judgment as to Defendant Jordan on the issue of liability because, inter alia, his guilty plea constitutes negligence per se.

III. DISCUSSION

A. The Summary Judgment Standard

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material ...


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