Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-02056-JLK

Document 146

Filed 02/12/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02056-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.

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES

I.

INTRODUCTION Pilatus Business Aircraft, Ltd (PilBal) and Pilatus Aircraft, Ltd (Pilatus) cannot be jointly

liable for the same fault or held liable for the fault of the other. Since plaintiffs' strict liability claim is indivisible and since both Pilatus and PilBal are in the class of persons that may be held liable for plaintiffs' claims, they must choose which defendant against which to make their claim lest the jury be asked to select between them or apportion fault by speculation. II. A. ARGUMENTS Pilatus Business Aircraft, Ltd (Pilbal) And Pilatus Aircraft, Ltd (Pilatus) Cannot Be

Jointly Liable For The Same Fault.
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Case 1:01-cv-02056-JLK

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Since Colorado abolished joint and several liability for property damage claims, PilBal and Pilatus cannot be jointly liable for the same fault. C.R.S. §13-21-111.5(1) says that no defendant shall be liable for an amount greater than that represented by the degree or percentage of fault attributable to such defendant that produced the claimed damage or loss. This pro rata liability statute applies to product liability claims. Loughridge v. Goodyear Tire & Rubber Co., 207 F. Supp.2d 1187 (D. Colo. 2002). C. Plaintiffs Must Chose Which Defendant Against Which To Make Their Claim Or The

Lest The Jury Be Asked To Select Between Them Or Apportion Fault By Speculation. Having abandoned their negligence claims, plaintiffs do not allege any culpable conduct against either Pilatus or PilBal. Their only remaining claim is strict liability for damage caused by an allegedly defective product. The pre-trial order and their Response to this Motion indicate that plaintiffs intend to make the identical indivisible product liability claims against both Pilatus and PilBal. But since neither Pilatus nor PilBal can be held liable for the fault of the other, (C.R.S. §13-21-111.5(1)), plaintiffs must chose which defendant against which to make their claim lest the jury be asked to select or apportion fault by speculation. See Park Rise Homeowners Association, Inc. v. Resource Construction Co., No. 04CA0091 (Colo.App. 06/15/2006) (.Jury verdict of apportionment requires sufficient evidence.) Loza v. State Farm Mutual Automobile Insurance Co., 970 P.2d 478 (Colo.App. 11/13/1997) (Automobile insurance carrier cannot apportion PIP benefits without evidence.) III. CONCLUSION The intent of this motion is to simplify the matter by treating both defendants in the jury instructions as "Pilatus." But this solution does not resolve the issue of which entity, if any, a

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES

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Case 1:01-cv-02056-JLK

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judgment may be entered against. That issue must be resolved by plaintiffs' selection of one or the other. DATED this 12th day of February 2007. By__/s Robert Schultz_______________________ Robert Schultz Schultz & Associates 9710 W. 82nd Ave. Arvada, CO 80005 Tel (303) 456-5565 Fax (303) 456-5575 E-mail [email protected] Attorney For Defendants Pilatus Business Aircraft, Ltd And Pilatus Flugzeugwerke Aktiengesellschaft/ Pilatus Aircraft, Ltd

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES

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Case 1:01-cv-02056-JLK

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of February 2007, I caused the forgoing REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES to be served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following addresses:

Jon A. Kodani Jeff Williams Law Offices of Jon A. Kodani [email protected] Thomas Byrne Byrne, Kiely & White LLP [email protected]

__s/ Robert Schultz__________ Law Offices of Robert B. Schultz [email protected]

REPLY RE MOTION IN LIMINE BY PILATUS DEFENDANTS RE PILATUS PARTIES

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