UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES MASON BUSSMAN,

Plaintiff, v. Civil Action No. 24-1316 (JEB) UBER TECHNOLOGIES, INC., et al.,

Defendants.

MEMORANDUM OPINION

Pedestrian Charles Bussman was struck and injured in 2021 by an Uber driven by

Bruceline Fru. Two years later, Bussman and Uber’s insurer engaged in settlement discussions.

The wheels eventually came off, and the parties now dispute whether those discussions ever

culminated in an agreement. Bussman filed this action for damages in May 2024 against Uber

Technologies, Inc.; its subsidiary Rasier, LLC; and Fru. Defendants now move to dismiss and

for judgment on the pleadings or, in the alternative, for summary judgment and enforcement of

the purported settlement. Fru separately believes that Bussman’s claim that he violated a D.C.

statute banning distracted driving is facially infirm. At this stage, the Court sides with Bussman

as to the settlement agreement but enters judgment on one count for Fru.

I. Background

On May 10, 2021, Fru was working as a driver for Uber. See ECF No. 3 (Am. Compl.),

¶¶ 81–85. While completing a ride in northwest Washington, Fru struck Bussman as he was

crossing the street. Id., ¶ 102. Plaintiff was “thrown violently into the air and onto the

roadway,” suffering “serious, severe, significant, and permanent injuries,” id., ¶ 104, to (really)

his “head, shoulders, knees, and toes.” ECF No. 12-3 (Bussman Letter) at ECF p. 2. Those

1 injuries, which “limited and will limit his usual activities,” “necessitated medical evaluation and

treatment” and “will require ongoing treatment.” Am. Compl., ¶¶ 115, 130. According to

Bussman, Fru was distracted by the Uber Driver app on his smartphone, which “sen[ds] time-

sensitive notifications and electronic messages” to drivers and “financially incentivizes them to

pay attention to these notifications and messages as well as timely respond to them.” Id., ¶¶ 97–

102.

In October 2023, counsel for Bussman sent a letter to Farmers Insurance Exchange

(Uber’s insurer) demanding the maximum compensation permitted by the policy, see Bussman

Letter at ECF p. 3 — in this case, $1,000,000. See ECF No. 12-2 (Uber Mot.), ¶ 3. Amanda

Kragouras, the assigned insurance adjuster, received authorization from a supervisor to settle

Bussman’s claims for the full amount. See ECF No. 12-5 (Aff. of Amanda Kragouras), ¶ 11.

Following that authorization, on November 28, Kragouras informed Bussman’s counsel

Damien Smith over the phone that Farmers would compensate Bussman $1,000,000 to settle his

claims. Id., ¶¶ 12–13. The parties dispute what Smith said in response. See id. (stating that

Smith “verbally accepted” the offer); ECF No. 22-5 (Aff. of Damien Smith), ¶ 16 (declaring that

Smith “did not, orally or in writing, accept Farmers Insurance’s offer to settle”). The same day,

Kragouras sent Smith a letter confirming the agreement as well as a release for Bussman to sign.

See Kragouras Aff., ¶ 14; ECF No. 12-6 (Nov. 28 Letter). Smith responded that he “would

contact Plaintiff regarding the offer, but that Plaintiff needed to work through some things,

including, but not limited to, potentially setting up a trust, before Plaintiff could agree to any

potential settlement.” Smith Aff., ¶ 18.

Thus Smith and Kragouras embarked upon a winding road that would take months to

travel. In late December 2023, Kragouras reached out to Smith inquiring about the status of the

2 release, see ECF No. 22-8 (Email Thread) at 5, and Smith replied that Bussman’s family would

be “setting up the needed arrangements for the settlement funds in January,” at which point he

would “finalize everything” with Plaintiff and send the executed agreement. See id. After

several weeks passed, Kragouras followed up two more times and eventually received a message

from Smith reiterating that Bussman was “making arrangements for receiving the settlement

funds this month and will sign the release after that is completed.” Id. at 3–4. Kragouras

emailed Smith again on February 15, 2024, and was told that Bussman “had to be out of town

last month for a family emergency.” Id. at 2. Undeterred, Kragouras emailed Smith twice more,

see id. at 1, until Smith finally slammed on the brakes at the end of March. At that time, he

informed Kragouras that Bussman had “instructed [counsel] to proceed with litigation.” See

ECF No. 12-13 (Mar. 28 Email). Smith declared that Bussman “has not formally accepted

settlement or executed a release” and that “[a]ny statements prior to this communication that

were understood as representations that our client has accepted settlement are rescinded.” Id.

True to his word, Bussman filed this lawsuit against Uber and Rasier (referred to jointly

here as Uber), as well as Fru, in May. He brings ten counts against Defendants, including — as

relevant for our current purposes — negligence per se for statutory violations (Count X). See

Am. Compl., ¶¶ 253–72. Uber filed its dispositive Motion in July, and Fru followed shortly

thereafter. Before proceeding, the Court notes that Uber frames its Motion as a “Motion to

Dismiss, or in the alternative, Motion for Summary Judgment and to Enforce Settlement.” Uber

Mot. at i (capitalization altered). Because Uber relies on facts not listed in the Complaint,

however, its Motion cannot be treated as a motion to dismiss and instead is properly viewed as a

motion for summary judgment. See Pinson v. DOJ,

(D.D.C. 2014). For

the same reasons, the Court treats the portion of Fru’s “Motion for Judgment on the Pleadings or,

3 in the Alternative, Motion for Summary Judgment and Motion to Enforce Settlement” relating to

the existence of a settlement agreement as a motion for summary judgment. See ECF No. 20-1

(Fru Mot.) (capitalization altered). The rest of Fru’s Motion relies only on legal arguments,

however, and the Court consequently treats those portions as a motion for judgment on the

pleadings.

II. Legal Standard

A. Summary Judgment

Summary judgment may be granted if “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); see also Anderson v. Liberty Lobby, Inc.,

(1986); Holcomb v.

Powell,

(D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris,

(2007); Liberty Lobby,

; Holcomb,

. “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion” by “citing to particular parts of materials in the record” or

“showing that the materials cited do not establish the absence or presence of a genuine dispute,

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). When a motion for summary judgment is under consideration, “[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”

Liberty Lobby,

; see also Mastro v. PEPCO,

(D.C. Cir. 2006);

Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (en banc).

4 B. Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on

the pleadings at any time “[a]fter the pleadings are closed –– but early enough not to delay trial.”

A party seeking judgment on the pleadings must demonstrate “that no material fact is in dispute

and that it is entitled to judgment as a matter of law.” Dist. No. 1 v. Liberty Maritime Corp.,

(D.C. Cir. 2019) (cleaned up). When deciding such a motion, a court “accept[s] as

true the allegations in the opponent’s pleading, and as false all controverted assertions of the

movant.”

(cleaned up). “[A] judgment on the pleadings is not appropriate if there are

issues of fact which if proved would defeat recovery, even if the trial court is convinced that the

party opposing the motion is unlikely to prevail at trial.”

(quoting Wager v. Pro,

(D.C. Cir. 1976)); see also Tapp v. Washington Metro. Area Transit Auth.,

(D.D.C. 2016) (“Because a Rule 12(c) motion would summarily extinguish litigation

at the threshold and foreclose the opportunity for discovery and factual presentation, the Court

must treat such a motion with the greatest of care and deny it if there are allegations in the

complaint which, if proved, would provide a basis for recovery.”) (cleaned up). The appropriate

standard for reviewing a 12(c) motion is therefore similar but not identical to that applied to a

motion to dismiss under Rule 12(b). See Samuels v. Safeway, Inc.,

(D.D.C.

2019); see

(noting that “a Rule 12(b) motion may be based on procedural failures, including

lack of subject-matter jurisdiction,” while “a Rule 12(c) motion centers upon the substantive

merits of the parties’ dispute”) (cleaned up).

III. Analysis

Defendants Uber and Fru make largely intersecting arguments in favor of summary

judgment. The Court accordingly first addresses Uber’s contention that an enforceable

5 settlement agreement exists before turning to Fru’s argument that Plaintiff’s negligence

allegations are insufficient.

A. Uber

“It is well established that federal district courts have the authority to enforce settlement

agreements entered into by the litigants in cases pending before them.” Demissie v. Starbucks

Corp. Off. & Headquarters,

(D.D.C. 2015) (internal quotation marks

omitted), aff’d,

(D.C. Cir. 2017). D.C. law, which governs here under choice-

of-law principles, provides that a settlement agreement, like any contract, is enforceable if there

was “(1) an agreement to all material terms, and (2) [the] intention of the parties to be bound.”

Duffy v. Duffy,

(D.C. 2005). “Which of the parties’ agreement terms are

material is a question of fact.” Demissie,

. Terms crucial to informing

parties “how they are expected to perform,” such as “the amount to be paid and the release of

liability,” are generally found to be material.

(internal quotation marks omitted). As for

intent to be bound, courts look to “written materials, oral expressions and the actions of the

parties” as indications of the requisite intent. Duffy,

. A signed written

agreement is the “clearest evidence of mutual assent to the terms of the document,” but is not

necessary to show a mutual agreement to be bound.

Uber insists that Smith verbally entered into a settlement contract on Bussman’s behalf

on November 28, 2023, and repeatedly confirmed that contract in his ensuing email exchanges

with Kragouras. See Uber Mot. at 10, 13. The Court separately assesses whether there was

agreement to all material terms and whether the parties intended to be bound. See Blackstone v.

Brink,

, 77–78 (D.D.C. 2014) (taking this approach).

6 Uber argues that, because Plaintiff had previously demanded $1,000,000 in

compensation, when Kragouras stated on the phone on November 28 that Farmers was willing to

pay that amount, she accepted Bussman’s offer and thus formed a binding contract. See Uber

Mot. at 7; ECF No. 26 (Uber Reply) at 3. Smith, conversely, avers that he understood Kragouras

to be “relay[ing] an offer of their purported policy limits of One Million Dollars” but insists that

he “did not, orally or in writing, accept” that offer. See Smith Aff., ¶¶ 15–16. Because the

Court, viewing the evidence in the light most favorable to Plaintiff, can draw a justifiable

inference that Smith never accepted an offer for Farmers to compensate Bussman $1,000,000, it

cannot conclude at summary judgment that Kragouras and Smith came to rest on the key terms

of the agreement — namely, the amount to be paid and Bussman’s release of liability.

While this would be sufficient to deny the Motion, there is more. For example,

Kragouras and Smith did not discuss their expectations regarding confidentiality and

nondisparagement during the November 28 phone call. True, a contractual term is generally not

considered material if neither party mentions it while negotiating the settlement and only raises it

after an agreement has been reached. See Blackstone,

; Dyer v. Bilaal,

(D.C. 2009) (finding that confidentiality clause was not material term in part

because neither party mentioned confidentiality while negotiating or accepting settlement). And

“if the parties have reached an agreement as to all material terms, a party’s misgivings about

other terms ‘do not constitute grounds for relieving a party of his obligations to comply’ with the

agreement.” Blackstone,

(quoting Williams v. WMATA,

(D.D.C. 2008)). Bussman, then, could not escape the obligation to comply with an

agreed-upon settlement by raising new doubts about nonmaterial terms after the fact. Here,

however, Smith has declared that he “would not have agreed to” any requirements that he “be

7 bound by both the confidentiality and non-disparagement clauses of the release.” Smith Aff.,

¶ 20. Because the evidence that Kragouras and Smith reached an agreement on the November 28

call is mixed at best, the Court will draw the inference that Smith indeed viewed confidentiality

and nondisparagement provisions as material terms and would not have agreed to a settlement

without first negotiating them. Employing the deferential summary-judgment standard, the

Court therefore concludes that the parties did not agree on the contract’s material terms.

Even if they had, however, Defendants hit another roadblock: the Court must also find

that “the parties intended to be bound by their words alone.” Blackstone,

.

As our Circuit has explained, intent to be bound by oral representations does not exist if “either

party knows or has reason to know that the other party regards the agreement as incomplete” or

intends to be bound only by a later written agreement. See Steven R. Perles, P.C. v. Kagy,

(D.C. Cir. 2007) (quoting Restatement (Second) of Contracts § 27 cmt. b (Am.

L. Inst. 1981)). To determine whether parties intended to be bound by oral statements, courts

look to “the parties’ conduct after they reach an alleged oral agreement,” id., as well as “the

importance of the transaction and amount of money (or other rights) at stake.” Blackstone,

.

The Court finds illuminating the written communications between Kragouras and Smith

following the November 28 phone call. In those messages, both clearly viewed the existence of

a signed written agreement as important — and even critical — to the settlement process. For

example, immediately after the call, Kragouras sent Smith a written agreement along with a letter

requesting execution. She then sent him no fewer than six emails (on December 20, January 11,

January 25, February 15, March 7, and March 28) following up on the status of the release and

asking for updates on when it would be executed. See Email Thread. Indeed, Smith declares

8 that “[d]uring settlement negotiations, [he] understood . . . that a signed release would be needed

to enter into any settlement agreement.” Smith Aff., ¶ 11. Kragouras’s course of conduct, as

well as Smith’s responses, thus demonstrate that neither person believed their oral conversation

was sufficient to bind Farmers and Bussman to an agreement.

In particular, Smith repeatedly noted that Bussman and his family needed to “mak[e]

arrangements” before signing the release and receiving any settlement funds. See Email Thread

at 3, 5. Although Smith at times represented that his client would sign the release, he also made

clear that he needed to “finalize everything” with Bussman and that Plaintiff would sign the

release only after the necessary arrangements had been made. See id. at 3, 5. In turn, Kragouras

acknowledged that the release could not be executed until Bussman straightened out his affairs.

See id. at 4. Both parties, then, seemed to understand that key steps needed to be completed

before they could finalize the agreement through the written release. See Perles, 473 F.3d at

1250–51 (finding significant that parties behaved as though there were more details to be

“worked out”).

Last, the character of the purported contract informs the Court’s analysis of the parties’

intent. This settlement is not of a kind that the parties are likely to have entered into lightly. One

million dollars for a personal injury was surely a “major” transaction “involving a considerable

amount of money” for Bussman. See Jack Baker, Inc. v. Off. Space Dev. Corp.,

(D.C. 1995); see also Restatement (Second) of Contracts § 27 cmt. c (“whether the amount

involved is large or small” is factor “which may be helpful in determining whether a contract has

been concluded”). In addition to implicating a large sum of money, a settlement agreement

would mark the culmination of a years-long odyssey in Bussman’s life that began with a

devastating car accident. It therefore “strains credulity” to suggest that Smith and Kragouras —

9 an attorney and insurance adjuster, respectively — “intended a single, undocumented telephone

conversation to give rise to a mutually binding agreement” entitling Bussman to $1,000,000 and

releasing Uber from liability for a major incident. See Perles,

.

In sum, “the fact that the parties clearly contemplated a written contract; the parties’ post-

conversation conduct evincing lack of agreement; and the large amount of money at stake,”

, all point to the conclusion that Kragouras and Smith did not intend to be bound by their

oral conversation and therefore did not reach an enforceable agreement. On this record, then, the

Court concludes that sufficient factual disputes exist to deny Defendants’ Motions for Summary

Judgment and to Enforce the Settlement.

B. Fru

As Fru’s arguments about the existence of an enforceable settlement agreement overlap

entirely with Uber’s, see Fru Mot. at 1 (“Mr. Fru adopts the argument set forth in Uber’s

Motion.”), the Court thus also denies his Motion as it relates to the purported settlement. Fru,

however, detours into two additional arguments for granting him judgment on Count X

(negligence per se for statutory violations): 1) Plaintiff fails to plead sufficient facts to make out

a negligence claim; and 2) the Distracted Driving Safety Act of 2004 violates the First

Amendment. The Court need only address the first.

In his Complaint, Bussman relies on the D.C. Distracted Driving Safety Act of 2004,

et seq., to bring his negligence per se claim. See Am. Compl., ¶¶ 106–

19. The Act prohibits drivers from “us[ing] a mobile telephone or other electronic device while

operating a moving motor vehicle in the District of Columbia unless the telephone or device is

equipped with a hands-free accessory.”

(a); Am. Compl., ¶ 110 (citing

statute). According to Plaintiff, because Fru was violating D.C.’s motor-vehicle safety laws at

10 the time of the collision, he per se behaved negligently. In response, Fru contends that Plaintiff

has failed to allege that Fru “use[d]” a mobile device or, even if he did use such a device, that he

did not also use a “hands-free accessory.” Fru Mot. at 11–13. As a result, Defendant argues,

Bussman has not properly alleged that he violated the Act.

Bussman, by neglecting to respond to either of these arguments, apparently concedes

them. See Wannall v. Honeywell, Inc.,

(D.C. Cir. 2014). In any case, the

Court agrees that Plaintiff has not alleged that Fru used his cell phone without a hands-free

accessory. The Act forbids cell-phone use only if the driver does not employ such an accessory,

see

(a), which it defines as “an attachment, add-on, built-in feature, or

addition to a mobile telephone . . . that when used allows the vehicle operator to maintain both

hands on the steering wheel.”

§ 50-1731.02(2). In his Complaint, Bussman states only that

Fru received “notifications and messages” from the Uber app that he was required to “respond

to” within “only 15 seconds,” with no mention of how Fru received and responded to those

communications. See Am. Compl., ¶¶ 98–100. As Fru points out, modern cell phones contain

speakerphones and other increasingly advanced capabilities that could be used to interact with

the Uber app without requiring the driver to physically engage with his device. See Fru Mot. at

11–12. Because Plaintiff has not alleged that Fru did not employ such a hands-free accessory

while operating his mobile device, the Court will grant him judgment on Count X of the

Complaint.

11 IV. Conclusion

For the foregoing reasons, the Court will deny Uber’s Motion and grant Fru’s in part and

deny it in part. A separate Order so stating shall issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: January 8, 2025

12