Free Response - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

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Filed 06/28/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.

01-cv-2056-JLK

UNITED STATES AVIATION UNDERWRITERS, INC., a New York corporation; PAUL LEADABRAND, an Idaho resident; and JEFLYN AVIATION, INC. dba ACCESS AIR, an Idaho corporation, Plaintiffs, vs. PILATUS BUSINESS AIRCRAFT, LTD., a Colorado corporation; PILATUS FLUGZEUGWERKE AKTIENGESELLSCHAFT, a Swiss corporation; PILATUS AIRCRAFT, LTD., a Swiss corporation; PRATT & WHITNEY CANADA, INC., a Canadian corporation; and DOES 1 through 500, Inclusive, Defendants.

PLAINTIFFS' RESPONSE TO DEFENDANTS' OBJECTIONS TO PROPOSED FORM OF JUDGMENT (Doc. 210)

/// ///

USAU v. Pilatus

Plaintiffs' Response re Proposed Judgment
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1.0

SUMMARY. On June 21, 2007, the jury allocated 49% of the total fault to the defendants.

(Doc. 405.) On June 25, 2007, the plaintiffs submitted a proposed form of judgment to the Court via email. The defendants lodged objections to that proposed judgment. (Doc. 210) For the following reasons, plaintiffs respectfully submit that the defendants'

objections should be overruled, and plaintiffs' proposed form of judgment should be entered without further delay (see, e.g., FED.R.CIV.P. 58(a)(2)(B) ["[T]he court must promptly approve the form of judgment, which the clerk must promptly enter ..."])

1.

First, the Pilatus defendants knowingly and voluntarily waived the provisions of

C.R.S. § 13-21-111.5(1) [abolishing joint and several liability] when the Pilatus defendants successfully urged the Court (over plaintiffs' objections) to instruct the jury that the Pilatus defendants must be treated as a single entity.

2.

Second, the jury's verdict properly awards damages for the loss of the aircraft to

both USAU and Access Air.

3.

Third, the plaintiffs are clearly the "prevailing parties" in this matter because the

jury found that both the engine and the airplane were defective and unreasonably dangerous, and caused the loss of the airplane. The defendants cannot seriously

contend they are the "prevailing parties" in light of the jury's conclusion that the defendants owe more than $1,500,000.00 to the plaintiffs.

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4.

Fourth, as a matter of Colorado law, the plaintiffs are entitled to substantial

prejudgment interest at the rate of 8% per annum (C.R.S. § 5-12-102) compounded annually from the date of the loss (July 8, 2001) until the date the final judgment is entered.

A revised form of judgment, reflecting updated prejudgment interest calculations, is attached to this brief.

2.0

THE PILATUS DEFENDANTS AGREED TO JOINT AND SEVERAL LIABILITY WHEN THEY SUCCESSFULLY URGED THE COURT TO PROHIBIT THE JURY FROM ASSIGNING FAULT TO EACH SEPARATE PILATUS DEFENDANT. In an email to the Court dated June 26, 2007, the Pilatus defendants lodged the

following objection to the form of judgment proposed by the plaintiffs:

"This form of judgment is incorrect with respect to the Pilatus defendants in that there is no joint and several liability for this action in Colorado."

Of course, before the trial began, the Pilatus defendants demanded that the jury only consider the fault of a single "consolidated" Pilatus entity. (Doc. 111.) Plaintiffs

opposed the Pilatus defendants' demands, and argued (among other things) that the jury must be allowed to consider the fault of each separate Pilatus defendant. (Doc. 125, p. 7.) During oral argument on the Pilatus defendants' motion on May 30, 2007, plaintiffs' counsel specifically pointed to the fact that treating the Pilatus defendants as a single entity (as Pilatus wanted to do) could not be squared with the abolition of joint and

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several liability.

(Doc. 169.) The Court eventually granted the Pilatus defendants'

motion, over plaintiffs' objections. (Doc. 168.) The Pilatus defendants now complain that they cannot be treated as a single entity on the judgment, when that is exactly what they demanded during the trial. To the extent treating the Pilatus defendants as a single entity on the judgment is inconsistent with the abolition of joint and several liability, that problem was created by Pilatus. Pilatus's pretrial motion (Doc. 111) constitutes an express waiver of the abolition of joint and several liability, and any prejudice to the Pilatus defendants is entirely self-inflicted.

3.0

THE PLAINTIFFS ARE THE "PREVAILING PARTIES" ENTITLED TO COSTS. The "prevailing party" is entitled to recover costs as a matter of law.

(FED.R.CIV.P. 54(d)(1).) "Rule 54 creates a presumption that the district court will award the prevailing party costs. ... The burden is on the non-prevailing party to overcome this presumption." (Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. (D.Colo. 2004).) "'[U]sually the litigant in whose favor judgment is rendered is the prevailing party for purposes of Rule 54(d)[(1)].'" (Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1234 (10th Cir. (N.D.Okla.) 2001).) Under this legal standard, the plaintiffs are clearly the "prevailing parties." Regardless of which form of judgment is adopted by the Court, that judgment will result in an award of substantial damages (more than $1.5 million plus prejudgment interest) to the plaintiffs. While the amount of plaintiffs' damages has been reduced by the jury's

allocation of 49% of the total fault to the defendants, the fact remains that the verdict is an unqualified and unequivocal victory for the plaintiffs on their claim that the engine and the airplane were both defective and unreasonably dangerous. Page 4
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In sum, there is no logical support for the defendants' claim that plaintiffs are not "prevailing parties," when the judgment will reflect an award of more than $1.5 million in favor of the plaintiffs, and when the jury agreed with the plaintiffs that both the airplane and the engine were defective and unreasonably dangerous.

4.0

THE PLAINTIFFS ARE ENTITLED TO PREJUDGMENT INTEREST. "The right to recover prejudgment interest for damages other than resulting from

personal injuries is a matter of law determined pursuant to" C.R.S. § 5-12-102. (Bennett v. Greeley Gas Co., 969 P.2d 754, 765-766 (Colo.App. 1998).) Section 5-12-102 broadly mandates prejudgment interest in nearly all cases involving property damage:

(1) Except as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows: (a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant, (b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs. ... (3) Interest shall be allowed as provided in subsection (1) of this section even if the amount is unliquidated at the time of wrongful withholding or at the time when due. (C.R.S. § 5-12-102)

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"Prejudgment interest is awarded in property damage cases from the date the injured party was wronged." (Bennett v. Greeley Gas Co., supra, 969 P.2d at p. 765.)

Colorado courts have given this statute a liberal construction and, in so doing, have uniformly upheld awards of pre-judgment interest in property damage cases. They have been equally consistent in holding that interest accrues in a property damage case from the time the cause of action accrued; in other words, from the date on which the injured party was wronged. (Federal Ins. Co. v. Ferellgas, Inc., 961 P.2d 511, 514 (Colo.App. 1997) [in property damage subrogation case, prejudgment interest is calculated from the date of loss]; Loughridge v. Chiles Power Supply Co., Inc., 431 F.3d 1268, 1290-1291 (10th Cir. (D.Colo.) 2005) [affirming award of prejudgment interest calculated from time when defective product first caused damage].)

Therefore, under section 5-12-102, plaintiffs are entitled to recover prejudgment interest at the rate of 8% per annum, compounded annually from the date of loss (July 8, 2001) until judgment is entered.

4.1

Defendant PWC: The jury determined that defendant PWC is responsible for

30% of plaintiffs' total damages:

Hull Leadabrand Ttl Damages PWC (30%)

$3,100,000.00 $3,023.35 $3,103,023.35 $930,907.01

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Based on the jury's allocation of 30% of the fault to defendant PWC, plaintiffs are entitled to prejudgment interest in the sum of $543,927.08 through June 29, 2007, calculated as follows:

Rate (C.R.S. § 5-12-102(2)) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually)

Term 1 year (7/8/01 - 7/7/02) 1 year (7/8/02 - 7/7/03) 1 year (7/8/03 - 7/7/04) 1 year (7/8/04 - 7/7/05) 1 year (7/8/05 - 7/7/06) 357 days (7/8/06 - 6/29/07)

Principal $930,907.01 $1,005,379.57 $1,085,809.93 $1,172,674.73 $1,266,488.70 $1,367,807.80

Accrued Interest $74,472.56 $80,430.37 $86,864.79 $93,813.98 $101,319.10 $107,026.28 $543,927.08

Total Prejudgment Interest (PWC) as of June 29, 2007:

4.1

Pilatus Defendants: The jury determined that the Pilatus defendants are

responsible for 19% of plaintiffs' total damages:

Hull Leadabrand Ttl Damages Pilatus (19%)

$3,100,000.00 $3,023.35 $3,103,023.35 $589,574.44

Based on the jury's allocation of 19% of the fault to the Pilatus defendants, plaintiffs are entitled to prejudgment interest in the sum of $344,505.13 through June 29, 2007, calculated as follows:

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Rate (C.R.S. § 5-12-102(2)) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually) 8% (comp. annually)

Term 1 year (7/8/01 - 7/7/02) 1 year (7/8/02 - 7/7/03) 1 year (7/8/03 - 7/7/04) 1 year (7/8/04 - 7/7/05) 1 year (7/8/05 - 7/7/06) 357 days (7/8/06 - 6/29/07)

Principal $589,574.44 $636,740.39 $687,679.62 $742,693.99 $802,109.51 $866,278.27

Accrued Interest $47,165.95 $50,939.23 $55,014.37 $59,415.52 $64,168.76 $67,783.30 $344,505.13

Total Prejudgment Interest (Pilatus) as of June 29, 2007:

5.0

CONCLUSION. Based on the foregoing, plaintiffs respectfully request that the final judgment in

this case include prejudgment interest in the amount of $543,927.08 as to defendant PWC, and in the amount of $344,505.13 as to the Pilatus defendants, if judgment is entered on June 29, 2007. For each day that entry of judgment is delayed after June 29, 2007, plaintiffs request that the total amount of prejudgment interest be increased by $189.87 per day as to defendant PWC, and increased by $299.79 day as to the Pilatus defendants. Respectfully Submitted, Dated: June 28 , 2007 s/ Jeffrey J. Williams Jon A. Kodani, Esq. Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected] Page 8
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CERTIFICATE OF SERVICE U.S. Aviation Underwriters et al. v. Pilatus Business Aircraft etc. et al. D.Colorado Case No. 01-K-2056 [XXXXX] I hereby certify that on June 28, 2007 , I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: For Defendant Pratt & Whitney Thomas J. Byrne, Esq. Byrne, Kiely & White 1120 Lincoln Street, Suite 1300 Denver, CO 80203 Tel. (303) 861-5511 Fax (303) 861-0304 Email: [email protected] [email protected]

For Pilatus Defendants Robert B. Schultz, Esq. Law Offices of Robert B. Schultz 9710 W. 82nd Avenue Arvada, CO 80005 Tel. (303)456-5565 Fax (303)456-5575 Email: [email protected]

[

]

I hereby certify that on , I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: s/ Jeffrey J. Williams Jeffrey J. Williams, Esq. LAW OFFICES OF JON A. KODANI Attorneys for Plaintiffs United States Aviation Underwriters, Inc. et al. 2200 Michigan Avenue Santa Monica, CA 90404-3906 Tel: (310) 453-6762 Fax: (310) 829-3340 Email: [email protected]

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