DONOVAN FRANK, District Judge
The above-entitled matter came on before the Honorable Donovan W. Frank, Judge of the above-named Court, as a court trial on August 2, 2004.
Based upon the presentations of counsel, the testimony of all witnesses, and exhibits received; the Court having reviewed the contents of the Court's file, including all submissions by counsel; and the Court being otherwise duly advised in the premises, the Court hereby makes the following:
FINDINGS OF FACT
1. This is an action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.
2. The Plaintiff in this case is Illinois Farmers Insurance Company ("Farmers"), as subrogee of the insured, Mark R. Nesseth ("Nesseth") under an automobile insurance policy, Policy No. 0158009582.
3. The Defendants are the United States of America and 1 Lt. Peter Fallgren ("Lieutenant Fallgren"). Lieutenant Fallgren was driving a United States Army ("Army") vehicle westbound on Interstate 494 at approximately 11:00 a.m. on August 21, 2002. Then Sergeant First Class Mark Jacobs ("SFC Jacobs") was a passenger in the Army vehicle.
4. Plaintiff's insured, Nesseth, was driving his 1999 Ford Taurus from north to south on Highway 61. Nesseth was merging onto Interstate 494 ("494") west from Highway 61 at the time of the accident that brings the parties before the Court.
5. The Army vehicle in question was a five-ton truck, pulling a 100-kilowatt generator. At the place of the crash in question on August 21, 2002, on westbound 494, immediately west of where Highway 61 intersects with 494, there were two lanes of westbound 494 through traffic and one access lane which was not a through lane.
6. At the time and place of the collision on August 21, 2002, the roads were wet and there was light drizzle or rain.
7. Nesseth was on his way to work. Nesseth was familiar with the route he was taking and the entrance onto 494. Traffic was not light, nor was it heavy.
8. Where the access lane enters onto 494 westbound, white pavement markings delineate the on-ramp from the two westbound through lanes of 494. The distance where the lanes run together is relatively short. The on-ramp from Highway 61 to 494 west has an unusually sharp curve.
9. There were cement barriers immediately to the left of the two through lanes because of construction in the area at the time.
10. The speed limit was 55 miles per hour.
11. Nesseth asserts that as he entered 494 in the access-merging lane he saw the large Army vehicle approaching westbound in the right through lane. Nesseth testified that he was traveling about 20 miles per hour, remained in the merging lane at all times, while waiting for the Army vehicle to go by, when he saw the generator the Army vehicle was pulling begin to go sideways, drifting into the merging lane where Nesseth was located. Nesseth testified that he at no time entered the through lane.
12. Lieutenant Fallgren testified that he was going approximately 50 miles per hour as he observed what turned out to be Nesseth's vehicle, in the access-merging lane of 494 westbound, when passenger SFC Jacobs said, "He's coming over," meaning Nesseth. Lieutenant Fallgren testified that he locked up his brakes to avoid hitting Nesseth. At that point, Nesseth, in some manner, lost control of his car, whether because he came into contact with some portion of the trailer being pulled by Lieutenant Fallgren or because he overcorrected and hit the guardrail. Lieutenant Fallgren is uncertain of the chronology of the events, in part, because of the size of the Army truck; Nesseth's vehicle was not within his view at all times.
13. SFC Jacobs stated that Nesseth failed to yield to the Army vehicle by merging directly in front of the Army vehicle, losing control as he overcorrected on the wet roadway, thereby causing the collision. Jacobs testified that Nesseth overcorrected to avoid the collision by taking a "hard right."
It appears to the Court that Nesseth's vehicle collided with the right rear portion of the trailer the Army vehicle was pulling.
14. As a result of the accident, Nesseth sustained property damage in the amount of $9,204. Because Nesseth's vehicle was deemed a total loss, Farmers paid Nesseth $9,204, plus $500 for his loss of use. In addition, Nesseth lost his $500 deductible. Farmers received $650.70 as salvage value for the vehicle. Farmers' total damages for the accident, which are not in dispute, are $9,588.93.
Defendant's vehicles were damaged in the approximate amount of $3,071.24. That claim is not before the Court at this time, but that is the alleged damage.
15. No party has made a claim for personal injury resulting from the accident.
16. Lieutenant Fallgren had the right-of-way on August 21, 2002, as he traveled westbound on 494 on the right-hand through lane.
17. Lieutenant Fallgren was licensed to drive the Army vehicle and trailer in question and had received training prior to operating the vehicle.
18. The Court finds that Lieutenant Fallgren was traveling approximately 50 miles per hour at the time he first observed Nesseth, at which time he slowed his vehicle to below 50 miles per hour in response to observing the anticipated merge of Nesseth.
19. The Court finds that Nesseth was traveling at a speed that was not reasonable and prudent for the conditions that existed on August 21, 2002. Those conditions included, but are not limited to:
a. The wet condition of the road.
b. The sharp curve of the entrance ramp to 494.
c. The existence of construction in the area, including the cement dividing barrier immediately to the left of the two through lanes.
d. The short distance a merging driver has within which to merge into a through lane.
e. Speed of oncoming through traffic.
f. The frequency of accidents in the area because of the speed limit and the sharp entrance onto 494.
20. The Court finds that Lieutenant Fallgren was traveling at a speed that was not reasonable and prudent for the conditions that existed on August 21, 2002. Those conditions included, but are not limited to:
a. The wet condition of the road.
b. The sharp curve of the entrance ramp to 494.
c. The existence of construction in the area, including the cement dividing line immediately to the left of the two through lanes.
d. The short distance a merging driver has within which to merge into a through lane.
e. Size and weight of the Army truck.
f. The fact that the vehicle was towing a generator.
g. The frequency of accidents in the area because of the speed limit and the sharp entrance onto 494.
21. State Trooper Ronald Degler ("Trooper Degler") responded to the scene on August 21, 2002. While Trooper Degler did not assign responsibility to either party, Trooper Degler's conclusions are of little probative value because he testified he rarely issues citations. Trooper Degler had little or no recall of the statements made by the parties on August 21, 2002, because he did not write them down and had no basis to refresh his memory. According to his testimony, it was his general impression or understanding that Nesseth was attempting to merge and that Lieutenant Fallgren, at some point, hit his brakes and that, subsequent to hitting his brakes, at some point, the trailer he was pulling jackknifed or went sideways in some fashion. Because of the lack of recollection by Trooper Degler and the fact that he did not record any of the statements made by any party or witness, Trooper Degler's testimony plays no part in the Court's evaluation of the testimony of Nesseth, Lieutenant Fallgren, or SFC Jacobs.
22. Any conclusion of law which may be deemed a finding of fact is incorporated herein as such.
Based upon the above findings of fact, the Court hereby makes the following:
CONCLUSIONS OF LAW
1. The Court has subject matter jurisdiction over this case pursuant to the FTCA, 28 U.S.C. §§ 1345(b), 2671-2680.
2. On August 21, 2002, Nesseth was negligent because he failed to yield as a driver of a vehicle merging on to an interstate highway.
3. On August 21, 2002, Nesseth was negligent in driving too fast for the conditions that existed on August 21, 2002, consistent with the findings of fact above.
4. The negligence of Nesseth was a direct cause of the collision on August 21, 2002.
5. On August 21, 2002, the Defendant, through its driver Lieutenant Fallgren, was negligent in driving a large Army vehicle which was pulling a trailer at a speed that was unreasonable and imprudent under the conditions that existed on August 21, 2002.
6. The negligence of Defendant was a direct cause of the collision on August 21, 2002. Consistent with the findings and conclusions of this Court, taking all of the negligence which contributed as a direct cause of the collision on August 21, 2002, to be 100 percent, the Court finds that Nesseth's comparative negligence was 55 percent and that of the United States was 45 percent.
7. Because the negligence of Nesseth was greater than the negligence of the Defendants, Farmers is not entitled to recover any damages resulting from the collision on August 21, 2002, pursuant to Minnesota Statute § 604.
8. Any finding of fact which may be deemed a conclusion of law is incorporated herein as such.
Based upon the above findings of fact and conclusions of law, the Court enters the following:
ORDER FOR JUDGMENT
1. That consistent with the findings of fact and conclusions of law, it is ordered that the Plaintiff's claims against the Defendants are hereby DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
MEMORANDUM
The Court viewed this as a very straightforward comparison of fault situation, less complicated than perhaps the parties viewed it. The Court is convinced that every witness who testified believed in good faith what they were saying was what essentially happened. However, the burden of proof in the case before the Court is on the Plaintiff. Whether Nesseth merged all of the way into the through traffic lane or was about to merge, it was the driving conduct of Nesseth, not that of Lieutenant Fallgren, that precipitated the braking and skidding of the vehicle, followed by the jackknife of the trailer. Both parties were going too fast for conditions. Both parties were negligent.
The Court acknowledges that there is a possibility that Lieutenant Fallgren panicked as he saw Nesseth's vehicle in the merging lane, locked up his brakes, thereby causing the trailer with the generator on it to jackknife into the merging lane. However, the Court cannot decide a case on a mere possibility. In this case, it was the burden of the Plaintiff to prove by a preponderance of the evidence that Lieutenant Fallgren in effect was not only going too fast for conditions, but panicked when he saw Nesseth, even though Lieutenant Fallgren had the right-of-way, thereby, carelessly or recklessly locking up his brakes on a wet roadway, causing the jackknife of the trailer. That is not what the evidence establishes by a preponderance of the evidence. Rather, it is more likely than not that Nesseth, by his driving conduct, whether he merged into the through lane or not, did not yield properly to the right-ofway of the through traffic and, because of his driving conduct, required drastic action on the part of Lieutenant Fallgren to avoid colliding with Nesseth.
The exact chronology of events in terms of whether Nesseth's vehicle hit the trailer first or boomeranged off the guardrail and came back, or some other sequence of events, is of little moment to the allocation of fault, based upon the Court's evaluation of the evidence and its allocation of fault. In this case, as in so many accidents, the determinative issue is who set the unfortunate course of events into motion. In this case, while the speed of both vehicles contributed to the accident, it was the inability and failure of Nesseth to safely and properly merge and yield to the Army vehicle that set the events in motion.
While Trooper Degler did not remember much, perhaps through no fault of his own, the fact is that this was a high accident area that was not treated as such, especially in the rain, by either Nesseth or Lieutenant Fallgren. Even if the braking or skidding of the Army vehicle caused the trailer Lieutenant Fallgren was towing to jackknife, the result is the same as to the allocation of fault by the Court because the conduct of Nesseth in failing to safely and appropriately merge and yield to oncoming traffic in the through lane required Lieutenant Fallgren to brake or lock up his wheels, as he did. The 55 percent allocation of fault to Nesseth as found by the Court is a conservative figure. Specifically, it is more likely that that figure should be 60 percent than 55 percent. In other words, the Court did not err on the side of the Defendants. Rather, the Court evaluated the evidence in the case in the light of what was established by a preponderance of the evidence. Of course, as a result of the Court's finding on liability, the Plaintiff is not entitled to recover any damages from the Defendants.
Conclusion
As noted by the Court off the bench on August 2, 2004, it is perplexing to this Court how this case ended up at trial. A trial judge and the civil justice system should never discourage individuals from taking highly principled positions so that they might receive a fair trial and their day in court. However, the facts suggest to the Court that it was quite foreseeable that a reasonable fact finder would find both parties negligent, which necessarily means that there never was more than $5,000 to $6,000 in dispute from the outset.
At a time when government resources are scarce and insurance premiums continue to rise, it is difficult to conclude, irrespective of how the Court decided this case, that the interests of justice, including the interests of the parties in this case, could be served by a trial. In the end, that is for the parties to decide.
The Court assumes that this case will end here, without any thought by the United States of pursuing, formally or informally, any claim they may have for the damage to their vehicles. The Court's decision and its accompanying remarks are not intended to suggest that the parties did not proceed in good faith. The Court is not even suggesting that anyone was cavalier in carrying out their responsibilities in proceeding to trial. Based upon the evidence before the Court and for the reasons stated, the Court has entered judgment for the Defendants.