MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Plaintiff
Lisa Moore was a pedestrian crossing a street in the District
of Columbia when she was stuck by a car driven by a United
States Marshals Service employee. She has sued to recover for
her damages and the United States has advanced an affirmative
defense of contributory negligence. Ms. Moore moves to strike
the affirmative defense, arguing that it is no longer
available under the Motor Vehicle Collision Recovery Act of
2016 (MVCRA), D.C. Code § 50-2204.51, et seq.,
and that, as pled, the affirmative defense fails to satisfy
the heightened pleading standard that D.C. requires. The
United States responds that the MVCRA does not apply
retroactively, and that even if it did, discovery will likely
demonstrate that Ms. Moore was more than 50% negligent, which
would bar her recovery under the MVCRA. The motion is now
ripe for decision.
I.
BACKGROUND
On
December 29, 2014, Ms. Moore was struck by a United States
Marshals Service vehicle operated by employee Willard Thomas
King while Ms. Moore was crossing the street in the vicinity
of 3rd and E streets, Northwest, in Washington,
D.C. Thereafter, D.C. adopted the MVCRA, which became
effective on November 26, 2016. See D.C. Law 21-167,
Act 21-490 (2016). The statute shifts D.C. law from a
contributory to a comparative negligence regime for
collisions between automobiles and pedestrians, bicyclists,
and other non-motorized users of public streets, such as
skateboards. On May 31, 2017, Ms. Moore filed a complaint
comprising claims under the Federal Tort Claims Act (FTCA),
28 U.S.C. § 2671, et seq., and alleging that
she sustained bodily injury, pain and suffering, lost wages,
medical expenses, and other damages as a result of Mr.
King's negligence. Compl. [Dkt. 1]. In its Answer, filed
on September 27, 2017, the United States pled the affirmative
defense of contributory negligence, alleging that Ms. Moore
was not lawfully crossing the street at the time of the
incident and denying that Mr. King was negligent in any way.
Answer [Dkt. 7] at 1, 3. Ms. Moore moved to strike the
affirmative defense on October 11, 2017. She argues that the
Court should apply the MVCRA retroactively and bar the
government's affirmative defense. She also challenges the
adequacy of the affirmative defense as pled to meet a
heightened pleading standard required in D.C.[1]
II.
LEGAL STANDARD
“The
decision to grant or deny a motion to strike is vested in the
trial judge's sound discretion.” Gates v.
District of Columbia, 825 F.Supp.2d 168, 169 (D.D.C.
2011). An insufficient defense might be stricken,
Fed.R.Civ.P. 12(f), as might inadequate affirmative defenses
brought under Rule 8(c). Fed.R.Civ.P. 8(c). However, motions
to strike are a drastic remedy that courts disfavor.
Naegele v. Albers, 355 F.Supp.2d 129, 142 (D.D.C.
2005); see also Stabilisierungsfonds Fur Wein v. Kaiser
Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C.
Cir. 1981) (citation omitted) (“[M]otions to strike, as
a general rule, are disfavored.”). In considering a
motion to strike, courts will draw all reasonable inferences
in the pleader's favor and resolve all doubts in favor of
denial of the motion to strike. Nwachukwu v. Karl,
216 F.R.D. 176, 178 (D.D.C. 2003) (citations omitted).
III.
ANALYSIS
Ms.
Moore alleges that the driver was negligent when he hit her
and the government answers that her contributory negligence
also caused the incident. Before the MVCRA, a victim's
contributory negligence resulting in injury would result in
no recovery. Thus, if a plaintiff contributed to the accident
in any way, she would not be entitled to any damages. The
MVCRA introduced a comparative negligence standard for
accidents involving motor vehicles and pedestrians,
bicyclists, and persons on non-motorized vehicles. In such
accidents, the fact finder compares the faults of all who
contributed to an accident and allocates damages among them.
As long as a plaintiff is 50% or less at fault, she can now
recover something in damages. In seeking to strike the
government's affirmative defense, Ms. Moore argues that
D.C. law no longer recognizes contributory negligence in an
accident in which a car strikes a pedestrian and that the
MVCRA, which became effective on November 26, 2016, should
apply retroactively to preclude the defense arising from her
injuries on December 29, 2014.
A.
Retroactive Application of the MCVRA
Ms.
Moore has some precedent upon which she bases her argument
for retroactivity. She notes a 1975 decision in which the
Supreme Court of the State of Washington applied the
Washington comparative negligence statute
“retrospectively to causes of action having arisen
prior to the statute's effective date of April 1, 1974,
but in which trials have begun subsequent thereto.”
Godfrey v. State, 84 Wash.2d 959, 961 (1975). Ms.
Moore urges this Court to use Godfrey as a guidepost
in its retroactivity analysis; that is, this Court should
apply the MVCRA to events before its passage because: (1) the
local law is procedural and remedial and, therefore, its
retroactivity would not offend due process because it would
alter only recovery and not liability; and (2) the
legislative purpose behind MVCRA was to end the bar to
recovery effected by contributory negligence; a solely
prospective application would subvert its purpose by allowing
defendants to plead contributory negligence for years to
come.
Godfrey
is an interesting case in which the Supreme Court of the
State of Washington found that it had given retroactive
application to “those statutes which relate to
practice, procedure or remedies and do not affect a
contractual or vested right . . . or do not impose a
penalty.” Id. at 961. The Washington Supreme
Court also held “that there is no vested right to a
common-law bar to recovery that is provided by the
affirmative defense of contributory negligence.”
Id. at 962. That court distinguished statutory
rights from common law rights in this regard. Id. at
963. It is, at best, very unclear that the D.C. Court of
Appeals would follow the lead of the Washington Supreme Court
or that the City Council and government would expect it to do
so with no signal or legislation on point. To the contrary,
the District of Columbia Court of Appeals has closely applied
the common law of negligence-to and including last clear
chance-as the governing principles in this City. This Court
is loath to take a position on the application of local law
which is not supported by legislative history and seems
foreign to the approach of the local courts.
Notably,
the Godfrey decision is not binding on this Court
and does not alter the principle that “[i]n general,
courts presume that a law does not apply retroactively unless
it is sufficiently clear that the legislature intended to
give the statute retroactive effect.” Casey v.
McDonald's Corporation, 880 F.3d 564, 570 (D.C. Cir.
2018). This presumption “stems from bedrock rule of law
values that counsel against retroactive application of new
laws.” Metroil, Inc. v. ExxonMobil Oil
Corp., 672 F.3d 1108, 1113 (D.C. Cir. 2012). The
District of Columbia Court of Appeals has similarly held that
“statutes are to be construed as having only a
prospective operation, unless there is a clear legislative
showing that they are to be given a retroactive or
retrospective effect.” Bank of Am., N.A. v.
Griffin, 2 A.3d 1070, 1074 (D.C. 2010). The statute at
issue here is clearly governed by this holding as it is part
of the D.C. Code.
Ms.
Moore seeks to avoid these opinions, arguing that the MVCRA
can be given retroactive effect without “offend[ing]
principles of due process because the implications relate to
practice, procedure, or remedies and do not affect a
contractual or vested right.” Mot. at 3 (citing
Godfrey, 84 Wash.2d at 963). The government responds
that retroactive application of the MVCRA would “create
new legal consequences by altering Defendant's common
law, affirmative defense to negligence by imposing liability
if Plaintiff's negligence failed to meet the strict
requirements of the MVCRA.” Opp'n at 5-6. However,
at this juncture the Court need not decide whether the change
in D.C. negligence law for automobile/pedestrian accidents
implicates substantive or merely procedural rights. It is
undisputed that the MVCRA took effect on November 26, 2016,
almost two years after the accident in question. Plaintiff
urges retroactive application to her case, but has not made
the necessary showing of clear legislative intent to that
effect.
State
courts, and federal courts applying state law, have generally
held that comparative negligence statutes are not retroactive
absent a definitive expression by the legislature. See,
e.g., Hunt v. Sun Valley Co., Inc., 561 F.2d
744 (9th Cir. 1977) (applying Idaho law and declining to
apply retroactively a statute which was enacted prior to, but
did not take effect until after, the incident in question);
Crutsinger v. Hess, 408 F.Supp. 548 (D. Kan. 1976)
(applying Kansas law and holding that “[t]he
plaintiff's cause of action here arose before the
comparative negligence statute . . . became effective, and
his right to recover must therefore be gauged by the
standards of the prior law”); Conley v. American
Motors Corp., 769 S.W.2d 75 (Ky. Ct. App. 1989)
(declining to apply comparative negligence statute
retroactively where “[statute] was not granted
expressed retroactive application as is required by the
legislature”); Hyde v. Chevron, U.S.A., Inc.,
697 F.2d 614, 628-29 (5th Cir. 1978) (holding that
Louisiana's comparative negligence statute does not apply
retroactively). If the City Council intended the MVCRA to
apply retroactively, it could easily have included language
to that effect. The D.C. government was one of the most
recent adopters of a comparative negligence statute and the
Council had the benefit of decades of analogous statutes in
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