Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-M-2018 (MJW) APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation, Plaintiff v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation, et al. Defendants. - and ­ RELATED CASES.

TRIAL BRIEF OF THIRD-PARTY DEFENDANTS LOCKTON COMPANIES, INC. AND LOCKTON COMPANIES OF COLORADO, INC. ON ISSUES RELATED TO CHOICE OF LAW Come now Third-Party Defendants Lockton Companies of Colorado, Inc. ("Lockton") and Lockton Companies, Inc. ("Lockton Inc.") and submit the following Brief on choice of law issues as required by the Court in its Final Pretrial Order. BACKGROUND Lockton was one of AIMCO's retail insurance brokers for the property insurance placement that is the subject of this litigation. Lockton Inc. was the parent company of Lockton and played no active role in the procurement of AIMCO's insurance coverage. More than one year after this litigation was commenced Defendants First Capital Agency, Inc. d/b/a First Capital Group ("First Capital"), Roger Metzger Associates, Inc. ("Metzger") and Security Insurance Company of Hartford ("SOH") brought both Lockton and Lockton Inc. into this case as Third-Party Defendants. First Capital, Metzger, and SOH asserted claims against Lockton and

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Lockton Inc. despite the fact that Lockton and Lockton Inc. had already settled claims that had been asserted against them by the Plaintiff in this action, Apartment Investment and Management Company ("AIMCO"). In that settlement, Lockton paid $3 million to AIMCO and AIMCO released Lockton and Lockton Inc. from any further liability arising out of or related to the very property insurance placement at issue in this litigation.1 First Capital, Metzger, and SOH assert the following third-party claims against Lockton and Lockton Inc. in this litigation: First Capital Group: (1) negligence/misrepresentation; (2) negligence; (3) conversion; and (4) contribution/indemnity. Metzger: (1) negligence/contribution(as AIMCO's agent); (2) negligence (as National Union's and Metzger's agent); (3) conversion; and (4) civil conspiracy. SOH: (1) negligence misrepresentation; (2) negligence; and (3)

contribution/indemnification. Despite the names given by the parties to each of their claims, First Capital, Metzger and SOH each admit in their respective discovery responses that all of their claims are claims for contribution and/or indemnity. First Capital, Metzger and SOH all admit that each of their claims are contingent upon AIMCO first prevailing on its claims against these Defendants. First Capital and Metzger contend that New York law applies to their claims against Lockton and Lockton Inc. Although somewhat unclear, SOH apparently believes that Colorado law applies to its claims against Lockton and Lockton Inc. Lockton and Lockton Inc. respectfully submit that the applicable choice of law rules dictate that Colorado law apply to all claims asserted against them in this litigation.
Colo. Rev. Stat. § 13-50.5-105(1)(b) and/or its New York counterpart ­ New York General Obligations Law § 15-108 - clearly bar First Capital's, Metzger's and SOH's third-party claims here. However, the Court has declined to enter summary judgment in Lockton's favor on that issue.
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ARGUMENT Choice of law issues in federal diversity actions are determined by the law of the forum state. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); Hoiles v. Alioto, 345 F. Supp. 2d 1178, 1182 (D. Colo. 2004). Colorado courts resolve choice of law issues on tort claims by reference to the "most significant relationship" test, established by Restatement (2d) Conflicts of Law §§ 6 and 145. §6 states as follows: "(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of applicable rule of law include: (a) (b) (c) (d) (e) (f) (g) the needs of the interstate and international systems, the relevant policies of the forum, the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, certainty, predictability, and uniformity of result, and ease in the determination and application of the law to be applied."

§ 145 provides as follows: "(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in §6. (2) Contacts to be taken into account in applying the principles of §6 to determine the law applicable to an issue include: (a) (b) (c) (d) the place where the injury occurred, the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue."

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As set forth above, First Capital, Metzger and SOH admit that all of their claims are actually claims for contribution and/or indemnity. These parties do not contend that they were directly harmed by any of Lockton's alleged tortious conduct. Rather, First Capital, Metzger and SOH contend that Lockton's and Lockton Inc.'s alleged tortious conduct caused damage to AIMCO - the Plaintiff in this action. Lockton (the entity that performed all of the work relating to the insurance coverage at issue in this litigation) and AIMCO are both citizens of the state of Colorado. Both Lockton and AIMCO have their principal place of business in Colorado (the Denver metropolitan area).2 Thus, to the extent AIMCO was damaged, that damage was

sustained in Colorado. Moreover, to the extent Lockton did anything to contribute to AIMCO's alleged injury, the conduct causing such injury occurred in Colorado. The only contact this case has with the state of New York is that First Capital and Metzger reside there. Both of these parties will admit that Lockton had no communications and/or dealings with either of their companies related in any way to the insurance placement at issue in this litigation. In fact, Metzger was not even aware that Lockton was involved in the transaction. First Capital had no contact with Lockton whatsoever with regard to these insurance policies. Thus, the factors to be considered by the Court which are set forth in § 145 of the Restatement (2d) Conflicts of Law weigh heavily in favor of the application of Colorado law to the claims asserted by First Capital, Metzger and SOH against Lockton and Lockton Inc. in this case.

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Lockton Inc. has its principal place of business in the state of Missouri.

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Respectfully submitted, LATHROP & GAGE L.C. By: /s/ Jed D. Reeg Leonard Rose Jed D. Reeg 2345 Grand Blvd., Suite 2800 Kansas City, MO 64108 Telephone: 816-292-2000 Fax: 816-292-2001

ATTORNEYS FOR THIRD-PARTY DEFENDANTS LOCKTON COMPANIES, INC. AND LOCKTON COMPANIES OF COLORADO, INC.

CERTIFICATE OF SERVICE This is to certify that on this 1st day of March, 2006, a true and correct copy of the foregoing was sent via electronic mail filing, addressed to the following: Karma Giulianelli Bartlit Beck Herman Palenchar & Scott 1899 Wynkoop St., 8th Floor Denver, CO 80202 Thomas L. Roberts, Esq. Roberts Levin & Patterson, P.C.. 1660 Wynkoop Street, Suite 800 Denver, Colorado 80202 Jeffrey A. Hall Elizabeth A. Thompson Bartlit Beck Herman Palenchar & Scott 54 West Hubbard St.,. Ste. 300 Chicago, IL 60610 Jeffrey A. Chase Barry A. Schwartz Jacobs Chase Frick Kleinkopf & Kelley 1050 ­ 17th St., Ste. 1500 Denver, CO 80265

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John Wolak Gibbons Del Deo Dolan Griffinger & Vecchione One Riverfront Plaza Newark, NJ 07102 James Miletich McConnell Siderius Fleischner Houghtaling & Craigmile 4700 South Syracuse St., Ste. 200 Englewood, CO 80237 William Jeffress, Jr. Baker Botts LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004 Paul E. Collins, Esq. Robert Zavaglia Treece, Alfrey, Musat & Bosworth, P.C. 999 18th Street, Suite 1600 Denver, Colorado 80202 John Martin Oster & Martin LLC 717 17th St., Ste. 1475 Denver, CO 80202 Jack Trigg Melissa Collins Julie Walker Wheeler Trigg & Kennedy, P.C. 1801 California St., Ste. 3600 Denver, CO 80202 Charles Tuffley Rozana Widlicka Grotefeld & Denenberg, LLC 30800 Telegraph Rd., Ste. 3858 Bingham Farms, MI 48025 John P. Mitzner Allman & Mitzner LLC 535 16th Street, Suite 727 Denver, CO 80202

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Jeffrey Lorell Marc Singer Saiber Schlesinger Satz & Goldstein One Gateway Center 13th Floor Newark, NJ 07102 /s/

Jed D. Reeg

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