Opinion

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

THE ESTATE OF ANTHONY )

LEZURRO MILLER, )

)

Plaintiff, )

) Case No. 7:23-cv-1201-ACA

v. )

)

UNITED STATES OF AMERICA, )

et al., )

)

Defendants. )

MEMORANDUM OPINION

On a rainy day in February 2022, Ernestine Butler drove to work at the Federal

Correction Institute at Aliceville, Alabama (“Aliceville”) in a van subsidized by the

federal government through its TRANServe program. At around 10:20 a.m.,

Ms. Butler’s van collided with a Mazda5 driven by Anthony Lezurro Miller.

Mr. Miller died at the scene.

Mr. Miller’s daughter and personal representative of his estate, Latasha

Mayhew, filed this lawsuit. Ms. Butler and the United States of America are the only

remaining defendants, and the government moves for summary judgment on Count

One (negligence), Count Two (wantonness), Count Three (wrongful death), and

Count Four (negligent entrustment) under the Federal Tort Claims Act (“FTCA”).

(Doc. 70). It argues that the court lacks jurisdiction under the FTCA because

Ms. Butler was not acting within the scope of her employment when she was

commuting to work. (Id. at 32–53). It also maintains that the estate has not created a

material dispute of fact as to the government’s liability under the FTCA because it

has provided no evidence that Ms. Butler caused the accident. (Id. at 18–32). Finally,

it contends that even if the estate can recover damages, those damages are limited to

the cost of funeral expenses. (Id. at 53–58).

As the court has previously explained, the correct mechanism to challenge the

court’s jurisdiction under the FTCA is Federal Rule of Civil Procedure 12(b)(1).

(Doc. 30 at 3–5). And because “in the unique context of the FTCA, all elements of a

meritorious claim are also jurisdictional,” the government’s arguments regarding the

merits of the estate’s claims also must be brought under Rule 12(b)(1). Brownback

v. King, 592 U.S. 209, 217 (2021). So the court construes these portions of the

government’s motion for summary judgment as a motion to dismiss for lack of

jurisdiction.

The court WILL DENY the government’s motion to dismiss for lack of

jurisdiction because a factfinder could find that Ms. Butler was acting within the

scope of her employment when the accident occurred. The court also WILL DENY

the motion to dismiss Counts One, Two, and Three because the estate has created

genuine disputes of material fact on these claims. However, the estate abandons

Count Four (doc. 89 at 23), so the court WILL GRANT the motion to dismiss Count

Four without further discussion.

The government’s arguments regarding appropriate damages in this case are

properly considered in a motion for summary judgment. See Fed. R. Civ. P. 56(a).

The court WILL GRANT the government’s motion and WILL ENTER

SUMMARY JUDGMENT in favor of the government on the estate’s entitlement

to compensatory damages for the cost of the car Mr. Miller was driving and for

household services. But the court WILL DENY the motion as to the value of

Mr. Miller’s Social Security benefits.

I. BACKGROUND

The parties contest many of the facts. (See, e.g., doc. 89 at 8–9). When

ruling on a motion for summary judgment or a factual jurisdictional challenge to

an FTCA claim under Rule 12(b)(1), the court “must construe the facts and draw

all inferences in the light most favorable to the nonmoving party and when

conflicts arise between the facts evidenced by the parties, [it] must credit the

nonmoving party’s version.” Stalley v. Cumbie, 124 F.4th 1273, 1283 (11th Cir.

2024) (quotation marks omitted; alteration accepted); see Lawrence v. Dunbar,

919 F.2d 1525, 1530 (11th Cir. 1990) (“When the jurisdictional basis of a claim is

intertwined with the merits, the district court should apply a Rule 56 summary

judgment standard when ruling on a motion to dismiss which asserts a factual

attack on subject matter jurisdiction.”). The court’s description of the facts

therefore adopts the version most favorable to the estate, even though those facts

“are not necessarily the true, historical facts; they may not be what a [factfinder]

at trial would, or will, determine to be the facts.” Cantu v. City of Dothan, 974

F.3d 1217, 1222 (11th Cir. 2020).

Alabama Highway 17 (“AL-17”) is a two-lane highway with one lane

running in each direction and a speed limit of 55 miles per hour. (Doc. 68-1 at 9,

27–28; doc. 68-48; doc. 70 at 8 ¶ 46; doc. 89 at 9). On February 21, 2022,

Mr. Miller was driving a black Mazda5 minivan southbound while Ms. Butler was

driving a white Dodge Caravan northbound. (Doc. 68-1 at 28–29; doc. 68-2 at 22;

doc. 68-13 at 11; doc. 70 at 4 ¶ 8; doc. 89 at 8). Neither owned the cars they were

driving: Mr. Miller was not listed on any documents relating to the Mazda5 and

Ms. Butler was driving a rental used for carpool purposes by Aliceville employees.

(Doc. 68-33; doc. 68-2 at 6–7).

Combyuatta Bryant was also driving northbound on AL-17. (Doc. 68-3 at

6). About ten seconds before the accident, a van passed her driving 75 miles per

hour. (Doc. 15-1; doc. 68-3 at 8, 11, 19, 22). At the time, it was raining and she

and the van were ascending a small hill that obscured the view of oncoming traffic.

(Doc. 68-3 at 8, 10–11). Ms. Bryant testified that the van did not return to the

correct lane after passing her. (Id. at 11). And, although Ms. Bryant did not see the

accident itself—she had turned to look at her nephew in the passenger seat—when

she looked back at the road, she saw a ball of white smoke ahead and then came

upon the accident. (Id. at 4, 19). According to Ms. Bryant, the accident occurred

in the southbound lane. (Id. at 10).

Mr. Miller and Ms. Butler collided around 10:20 a.m. (Doc. 68-30). The

parties agree that Mr. Miller and Ms. Butler were both traveling 65 miles per hour

on impact. (Docs. 68-26; doc. 70 at 9 ¶ 51; doc. 89 at 9). The parties also agree

that the collision occurred in Ms. Butler’s lane (doc. 70 at 7 ¶ 38; doc. 89 at 8–9),

but contest whether Mr. Miller veered into Ms. Butler’s lane to avoid Ms. Butler’s

car. (doc. 70 at 7–8 ¶¶ 35–35, 39–41; doc. 89 at 8–9). Ms. Butler was taken to the

emergency room and does not remember the accident. (Doc. 68-2 at 5, 11).

Mr. Miller died at the scene of the accident. (Doc. 68-35). He was 61 years old

and had end-stage renal disease. (Doc. 68-12 at 1, doc. 68-5 at 10, 15). Mr. Miller

had no dependents and his sole income was Social Security disability insurance

payments. (Doc. 68-13 at 4–5).

Because this case involves a question about whether Ms. Butler was acting

in the scope of her employment at the time of the accident, the court now turns to

the facts relevant to that issue. The Bureau of Prisons (“BOP”) employed

Ms. Butler as a recreation specialist at Aliceville. (Doc. 68-15 at 3). Ms. Butler

was commuting from her home to work using the TRANServe program. (Id. at 1).

The TRANServe program covers costs for federal employees to commute to work

via mass transit. (Doc. 68-7 at 9). BOP paid the cost of Ms. Butler’s commute via

the TRANServe program. (Doc. 70 at 13 ¶¶ 85–86; doc. 89 at 9; id. at 6–7 ¶ 27;

doc. 95 at 5). She received $270 per month to participate in this program. (Doc.

68-37). The parties dispute the details about how the TRANServe program works

in practice at Aliceville, but for purposes of this opinion, the court must accept

that BOP paid to rent the van and that Ms. Butler paid for maintenance and gas for

the van using a preloaded card provided by the TRANServe program. (Doc. 68-2

at 5, 7–8, 30; but see doc. 68-7 at 8, 10–11).

II. DISCUSSION

Where the jurisdictional basis of the claims is intertwined with the merits, as

is the case here, the court applies the summary judgment standard when ruling on a

motion to dismiss for lack of subject matter jurisdiction. Lawrence, 919 F.2d at 1530.

Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). To defeat a motion for summary judgment, “[t]he

nonmoving party must offer more than a mere scintilla of evidence for [his] position;

indeed, the nonmoving party must make a showing sufficient to permit the

[factfinder] to reasonably find on [his] behalf.” Calderon v. Sixt Rent a Car, LLC,

114 F.4th 1190, 1199 (11th Cir. 2024).

The government moves to dismiss this case for lack of jurisdiction for two

reasons: Ms. Butler was not acting within the scope of her employment at the time

of the crash (doc. 70 at 32–53); and (2) Mr. Miller, not Ms. Butler, caused or

contributed to the accident (id. at 20–27, 29–32). In the alternative, the government

maintains that, even if the estate survives dismissal, its damages are limited to

funeral expenses. (Id. at 53–58). The court begins with the scope of employment.

1. Scope of Employment

Sovereign immunity protects the United States and its agencies against suit.

Smith v. United States, 14 F.4th 1228, 1230–31 (11th Cir. 2021). Because sovereign

immunity “is jurisdictional in nature,” the court lacks jurisdiction over such suits

unless the government has explicitly waived immunity. FDIC v. Meyer, 510 U.S.

471, 475 (1994); Smith, 14 F.4th at 1231. The United States has waived its immunity

from claims for money damages for “death caused by the negligent or wrongful act

or omission of any employee of the Government while acting within the scope of

[her] office or employment, under circumstances where the United States, if a private

person, would be liable to the claimant.” 28 U.S.C. § 1346(b)(1). So the court has

subject matter jurisdiction over this case only if Ms. Butler was acting within the

scope of her employment and if she could be liable to the estate. See id.; Brownback,

592 U.S. at 217 (2021) (“[I]n the unique context of the FTCA, all elements of a

meritorious claim are also jurisdictional.”).

“The question of whether an employee’s conduct was within the scope of

[her] employment is governed by the law of the state where the incident occurred.”

Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) (quotation marks omitted). In

Alabama, “[a]n act is within an employee’s scope of employment if the act is done

as part of the duties the employee was hired to perform or if the act confers a benefit

on [her] employer.” Hulbert v. State Farm Mut. Auto. Ins. Co., 723 So. 2d 22, 23

(Ala. 1998). Under Alabama’s “going and coming rule,” an employee is not acting

within the scope of her employment when she is traveling to or from work. Smith v.

Brown-Serv. Ins. Co., 35 So. 2d 490, 493 (Ala. 1948). Relying on this rule, the

government argues that Ms. Butler was not acting within the scope of her

employment because she was driving to work when the accident occurred. (Doc. 70

at 35–38).

The estate does not dispute that Ms. Butler was commuting to work when the

accident occurred, but it argues that Ms. Butler was still acting within the scope of

her employment because (1) the government provided transportation expenses as

part of the consideration paid for Ms. Butler’s services; (2) the government retained

control over the van provided for Ms. Butler’s commute; and (3) to the extent the

government might argue that Ms. Butler misused the transit benefit, it ratified her

misuse by failing to stop it. (Doc. 89 at 24–42). The court does not find the last two

arguments persuasive but will not address them because the first argument prevails

at this stage.

Under Alabama law, when an employer “bears a part of the expense of an

automobile” used for an employee’s commute and “such transportation arrangement

is beneficial to both” the employer and employee, the employee’s commute falls

within the scope of employment. Atlanta Life Ins. Co. v. Stanley, 165 So. 2d 731,

735 (Ala. 1964). In Stanley, the Alabama Supreme Court held that an employer was

vicariously liable for its employee’s negligence because the employee, an insurance

salesman who worked out of his own home and received a weekly stipend for his

car’s operation, was traveling home after collecting premiums and “it was beneficial

to his [employer] that [the employee] returned the premium collections to his home

and headquarters.” Id. Most recently, the Alabama Supreme Court held that an

employee was acting in the scope of his employment when he negligently caused an

accident during his commute home because the employer had paid for the

employee’s gas. Cheshire v. Putman, 54 So. 3d 336, 340–41 (Ala. 2010). Notably,

the Alabama Supreme Court in Cheshire did not require the employee to show a

benefit to both the employee and employer before finding that the gas payment

brought the employer’s commute within the scope of his employment. See id.

Here, Ms. Butler presented evidence that BOP rented the van that she was

driving and paid her $270 per month for participating in the TRANServe program,

which she used to pay for gas and maintenance. (Doc. 68-2 at 5, 7–8, 30; doc. 68-7

at 11; see doc. 68-37). The government has presented conflicting evidence. (See doc.

68-7 at 8–11). But that evidence simply creates a factual dispute that must be

resolved at trial. See Fed. R. Civ. P. 56(a); Calderon, 114 F.4th at 1199.

Ms. Butler also presented evidence that the “transportation arrangement is

beneficial to both” her and the BOP because she did not have to use her personal car

to commute (doc. 68-7 at 6–7, 14; doc. 68-2 at 6), and the government benefits from

its employees having reliable transportation to work and reduced pollution and

traffic (doc. 68-7 at 6, 12–13; doc. 68-11 at 9; 68-2 at 7, 16); see Stanley, 165 So. 2d

at 735. The government argues that these benefits are too attenuated from

Ms. Butler’s employment to confer a benefit on the government, but it offers no

authority to support its conclusory statement. (Doc. 70 at 46). Given the Alabama

Supreme Court’s application of this exception even in the absence of evidence of a

benefit to the employer, see Cheshire, 54 So. 3d at 340–41, the court declines to find

this benefit too attenuated under Alabama law.

The government also argues that application of this exception here would

subject the federal government to liability whenever an employee participates in the

TRANServe program. (Doc. 70 at 46–47). Even if the court were inclined to consider

public policy arguments in the face of a statute waiving sovereign immunity and an

Eleventh Circuit decision squarely holding that this court is constrained by state law,

the government’s argument paints too broad a picture of the import of this ruling.

This case involves only Alabama’s interpretation of the scope of employment. See

Flohr, 84 F.3d at 390. Other States’ scope of liability may differ.

Under Stanley and Cheshire, a factfinder could conclude that Ms. Butler was

acting within the scope of her employment during her commute because BOP paid

for part of the expense of the van and the arrangement benefited both the government

and Ms. Butler. Cheshire, 54 So. 3d at 340–41; Stanley, 165 So. 2d at 735.

Accordingly, the court WILL DENY the motion to dismiss based on the scope of

Ms. Butler’s employment.

2. Merits Arguments

The estate brings claims of negligence, wantonness, and wrongful death.

(Doc. 1 at 6–16; see also doc. 89 at 23). The government argues that the estate cannot

establish that Ms. Butler proximately caused Mr. Miller’s death, that Ms. Butler

acted wantonly, or that Mr. Miller was contributorily negligent. (Doc. 70 at 20–27,

29–32). The court takes each argument in turn.

a. Proximate Cause

An essential element of negligence, wantonness, and wrongful death claims

is that the defendant proximately caused the injury. Martin v. Arnold, 643 So. 2d

564, 567 (Ala. 1994); Hughes v. Marley, 390 So. 3d 545, 549 (Ala. 2023).

“Proximate cause is an act or omission that in a natural and continuous sequence,

unbroken by any new independent causes, produces the injury and without which

the injury would not have occurred.” Martin, 643 So. 2d at 567.

The government argues that the estate has not provided evidence that

Ms. Butler proximately caused Mr. Miller’s death because it has identified neither

an eyewitness to the crash nor an expert who could opine during the case in chief

about how the collision occurred, whereas the government has experts who have

opined that Mr. Miller caused the crash. (Doc. 70 at 20–23). The court disagrees.

The estate does not need direct evidence to prove proximate causation. Bell v.

Colony Apartments Co., 568 So. 2d 805, 810 (Ala. 1990) (“[P]roof of negligence

may be established completely through circumstantial evidence.”). Ms. Bryant’s

testimony is circumstantial evidence that can be considered when determining if

Ms. Butler caused the accident. Accepting Mr. Bryant’s deposition testimony as true,

she saw Ms. Butler driving above the speed limit, in the rain, on the wrong side of

the highway on a blind hill seconds before the accident. (Doc. 68-3 at 6, 8, 10–11,

19, 22). This is circumstantial evidence that Ms. Butler proximately caused

Mr. Miller’s death. The fact that Ms. Bryant did not actually witness the accident can

be considered when determining what weight to give her testimony.

The government’s position rests entirely on rejecting Ms. Bryant’s testimony

about what she witnessed shortly before the accident.1 (Id. at 22–23). Ms. Bryant’s

credibility is a question for trial. See Reese, 527 F.3d at 1271; Baker v. Upson Reg’l

Med. Ctr., 94 F.4th 1312, 1217 (11th Cir. 2024) (“The court will not make credibility

determinations or weigh the parties’ evidence.”). At this stage of the proceedings,

the court must accept Ms. Bryant’s testimony as true and draw all reasonable

inferences in the estate’s favor. Stalley, 124 F.4th at 1283.

b. Wantonness

Wanton conduct is that “which is carried on with a reckless or conscious

disregard of the rights or safety of others.” Hicks v. Dunn, 819 So. 2d 22, 24 (Ala.

2001). The tortfeasor must have been conscious that the act would likely result in

injury, but actual intent to injure another is not required. Burns v. Moore, 494 So. 2d

4, 5–6 (Ala. 1986). “The test for whether the conduct rises above simple negligence

to the level of wantonness is a fact question to be submitted to the [factfinder], unless

1 Ms. Bryant’s testimony has changed in some ways over time. For example, in 2023, she

attested that she “noticed there was a terrible accident involving [an Aliceville] prison van that had

just passed [her]” around 10:00 a.m. (Doc. 15-1). In 2025, she testified that the accident occurred

around 4:00 p.m. and denied ever saying it was an “Aliceville prison van.” (Doc. 68-3 at 14, 20).

The government points to this and other inconsistencies to argue that the court can disregard her

testimony. (Doc. 70 at 22–23). But it offers no authority for the proposition that the court can

disregard a disinterested witness’s testimony because of internal inconsistencies. (See id.); see

Lane v. Celotex Corp., 782 F.2d 1526, 1530–31 (11th Cir. 1986). The inconsistencies between

Ms. Bryant’s affidavit and deposition testimony do not make her testimony inadmissible; they

merely offer a basis for the government to impeach her credibility. See Reese v. Herbert, 527 F.3d

1253, 1271 (11th Cit. 2008) (“it was not for the district court to discount or disregard [affidavits]

at the summary judgment stage based on its assessment of the quality of the evidence. . . . Such

credibility determinations are for the [factfinder].”).

there is a total lack of any evidence from which the [factfinder] could reasonably

infer the higher degree of culpability.” Id. at 5.

The government argues that the estate has not presented evidence of

Ms. Butler’s consciousness that her actions were likely to cause injury. (Doc. 70 at

24–26). It maintains that the only evidence of wantonness is Ms. Butler’s speed, but

Ms. Butler could not have been conscious of any potential injury from her speed

because she did not know she was speeding and, in any event, speeding alone does

not constitute wantonness. (Id.). But “speed, coupled with other circumstances, may

amount to wantonness.” Serio v. Merrell, Inc., 941 So. 2d 960, 966 (Ala. 2006).

Construing the facts in the light most favorable to the estate, seconds before the

accident, Ms. Butler was driving twenty miles per hour over the speed limit in the

rain, passed Ms. Bryant on a two-lane highway before a hill that obscured oncoming

traffic, and did not return to the correct lane. (Doc. 68-3 at 4, 6, 8, 10–11, 19, 22;

doc. 15-1). A reasonable factfinder could determine that these facts rise to the level

of wantonness. See Hicks, 819 So. 2d at 23, 25 (holding that a jury question on

wantonness existed when a defendant was driving fifteen to twenty-five miles per

hour over the speed limit and did not slow down when he crested a blind hill despite

knowing that drivers on the other side of the hill might be turning into a busy

restaurant); see also Sellers v. Sexton, 576 So. 2d 172, 175 (Ala. 1991) (holding that

wantonness was a jury question where the driver was going the speed limit but knew

that rocks were scattered on the road and a wide curve blocked her view of oncoming

traffic).

c. Contributory Negligence

“Contributory negligence is an affirmative and complete defense to a claim

based on negligence.” Serio, 941 So. 2d at 964. To establish the defense, the

defendant must prove “that the plaintiff 1) had knowledge of the dangerous

condition; 2) had an appreciation of the danger under the surrounding circumstances;

and 3) failed to exercise reasonable care, by placing himself in the way of danger.”

Id. Contributory negligence is a question for trial unless “the facts are such that all

reasonable people would logically have to reach the conclusion that the plaintiff was

contributorily negligent.” Id.

The government maintains that Mr. Miller was contributorily negligent, and

therefore foreclosed from recovery, for two reasons: (1) he was speeding and veered

into the opposite lane and, (2) his license had been revoked, he did not have

insurance, and the car was not registered to him. (Doc. 70 at 30–31).

A material issue of fact exists as to whether Mr. Miller acted negligently by

veering into Ms. Butler’s lane given the circumstances. Taking the facts in the light

most favorable to the estate, a reasonable factfinder could conclude that shortly

before the collision, Ms. Butler was speeding in Mr. Miller’s lane, causing

Mr. Miller to leave his lane in an attempt to avoid her. (Doc. 68-3 at 7, 11). As for

Mr. Miller’s speeding, the government has neither presented evidence nor argued

that his speed contributed to the accident. See Allman v. Beam, 130 So. 2d 194, 196–

97 (1961) (holding that negligence per se “will not in itself prevent recovery on the

ground of contributory negligence if the violation . . . is not a contributing cause of

the injury”). Likewise, the government does not explain how Mr. Miller’s lack of

license, registration, and insurance contributed to the accident. See Terry v. Nelms,

54 So. 2d 282, 284 (1951) (“Negligence must be a concurring proximate cause of

the injury and not merely a remote or antecedent occasion or condition of the injury

to be available under a plea of contributory negligence.”).

Genuine disputes of material fact bar dismissal of the estate’s claims. See

Lawrence, 919 F.2d at 1530. The court therefore WILL DENY the government’s

motion to dismiss Count One, Two, and Three.

3. Damages

The FTCA provides that “the United States shall be liable . . . in the same

manner and to the same extent as a private individual under like circumstances, but

shall not be liable for . . . punitive damages.” 28 U.S.C. § 2674. Alabama limits

recovery in wrongful death actions to punitive damages. Trott v. Brinks, Inc., 972

So. 2d 81, 84 (Ala. 2007). Where a State does that, “the United States shall be liable

for actual or compensatory damages, measured by the pecuniary injuries resulting

from such death to the persons respectively, for whose benefit the action was

brought.” 28 U.S.C. § 2674. Federal law provides the definition for the term

“pecuniary injuries.” Hoyt v. United States, 286 F.2d 356, 359 (5th Cir. 1961).2 And

under federal law, “pecuniary injuries” means “[t]he damages . . . equivalent to

compensation for the deprivation of the reasonable expectation of pecuniary benefits

that would have resulted from the continued life of the deceased.” Id. This

calculation includes lost income and services the estate might reasonably have

expected from the deceased during his lifetime. Id. at 559–60.

The estate, estimating that Mr. Miller would have otherwise survived to the

age of 82, seeks damages compensating for the loss of Mr. Miller’s Social Security

payments, the value of his household services, and the value of the Mazda5. (Doc. 1

at 17; doc. 68-6 at 9; doc. 68-42; 88-8 at 3). The government argues that the estate

can recover only funeral expenses. (Doc. 70 at 53–58).

a. Social Security Benefits

The government maintains that the estate is not entitled to Mr. Miller’s Social

Security benefits because (1) benefits cut off upon the death of a beneficiary and he

had no family that would be entitled to survivor benefits, and (2) it is speculative to

assume that Mr. Miller would have survived to the age of 82 given his end-stage

renal disease. (Doc. 70 at 54–55).

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed

down before October 1, 1981.

The government’s first argument fails because neither the estate nor

Mr. Miller’s survivors are seeking to receive Mr. Miller’s Social Security; it is

seeking to recover the value of the income he would have received if he had survived

the accident, a form of compensatory damages permitted by the FTCA. See Hoyt,

286 F.2d at 359 (explaining that damages under the FTCA include “pecuniary

benefits that would have resulted from the continued life of the deceased”).

The government also argues that even if the estate is entitled to recover for

Mr. Miller’s lost Social Security income, those damages should be reduced by his

average monthly expenditures. (Doc. 70 at 55). But it offers no authority in support

of that position. (See id.; see also doc. 95 at 23–27). It has therefore abandoned this

argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir.

2014) (“Abandonment of an issue can . . . occur when passing references appear in

the argument section of an opening brief, particularly when the references are mere

‘background’ to the [party]’s main arguments or when they are ‘buried’ within those

arguments.”).

The government’s second argument, that damages through the age of 82 are

speculative because Mr. Miller might not have survived to that age (doc. 70 at 54–

55), fails because “where the tort itself is of such a nature as to preclude the

ascertainment of the amount of damages with certainty, it would be a perversion of

fundamental principles of justice to deny all relief to the injured person, and thereby

relieve the wrongdoer from making any amend for his acts.” Hoyt, 286 F.2d at 360.

Whether the estate can establish its entitlement to the equivalent of Mr. Miller’s

Social Security payments through the age of 82 is a question for trial.

b. Household Services

As explained above, the estate can recover for “pecuniary injuries,” including

household services, for the individual “whose benefit the action was brought.” 28

U.S.C. § 2674; Hoyt, 286 F.2d at 359–60. Under Alabama law, wrongful death

actions are brought by the personal representative of the estate—here,

Ms. Mayhew—on behalf of the statutory beneficiaries. (Doc. 1 ¶ 8); Kirksey v.

Johnson, 166 So. 3d 633, 645 (Ala. 2014); see Steele v. Steele, 623 So. 2d 1140, 1141

(Ala. 1993) (“[D]amages awarded [for wrongful death] are distributed according to

the statute of distribution and are not part of the decedent’s estate.”).

The government maintains that the estate may not recover for household

services because Mr. Miller only provided chores for his own maintenance and not

for any individual for whose benefit the action was brought. (Doc. 70 at 55–57). The

estate counters that Mr. Miller provided lawn and garden care for Ms. Mayhew,

including growing food. (Doc. 89 at 45, 48; see doc. 68-5 at 17–18). But

Ms. Mayhew was not part of Mr. Miller’s household. (Doc. 68-5 at 20). Thus, the

services Mr. Miller provided her were not household services. Accordingly, estate is

not entitled to recover for those damages and the court WILL GRANT summary

judgment to the government on this issue.

c. Property Loss of the Mazda5

The government maintains that the estate cannot recover the cost of

Mr. Miller’s destroyed Mazda5 because he did not own the car, did not hold its title,

and was not listed on its registration. (Doc. 70 at 58; see doc. 68-33). The estate

responds that the government’s economist included the value of the car in her

estimate of economic damages. (Doc. 89 at 43; see doc. 88-8 at 1, 4). But this expert

report does not opine on whether the estate is legally entitled to that damage

calculation. And nothing in the economist’s calculation rebuts the government’s

evidence that this was not Mr. Miller’s car.

The estate has not created a triable issue of material fact as to whether it is

entitled to compensatory damages for the lost value of the Mazda5. Accordingly, the

court WILL GRANT summary judgment to the government on this issue.

III. CONCLUSION

The court WILL DENY the government’s motion to dismiss under Rule

12(b)(1) on the negligence, wantonness, and wrongful death claims but WILL

GRANT the motion on the negligent entrustment claim. The court WILL GRANT

the government’s motion for summary judgment on damages for the Mazda5 and

household services and WILL ENTER JUDGMENT in its favor on that part of

the claim. The court WILL DENY the motion as to Social Security benefits.

The court will enter a separate partial judgment consistent with this opinion.

DONE and ORDERED this March 31, 2026.

ANNEMARIE CARNEY AXON

UNITED STATES DISTRICT JUDGE

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