Free Trial Brief - District Court of Colorado - Colorado

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2018-RPM APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation, Plaintiff v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, a Pennsylvania corporation, SECURITY INSURANCE COMPANY OF HARTFORD, a Connecticut corporation, FIRST CAPITAL AGENCY, INC., d/b/a FIRST CAPITAL GROUP, a New York corporation, NATIONAL PROGRAM SERVICES, INC., a New Jersey corporation, VITO B. GRUPPUSO, a New Jersey resident, and ROGER METZGER ASSOCIATES, a New York corporation, Defendants. - and RELATED CASES. DEFENDANT ROGER METZGER ASSOCIATES' TRIAL BRIEF RE: CHOICE OF LAW Defendant Roger Metzger Associates ("Metzger"), by and through its attorneys, Treece, Alfrey, Musat & Bosworth, P.C., hereby submits this Trial Brief re: Choice of Law. In support thereof, Metzger states as follows:

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 2 of 10

BACKGROUND This case involves a dispute concerning the placement of property insurance for Plaintiff Apartment Investment and Management Company ("AIMCO"), a real estate investment trust. In particular, the dispute concerns the activities of Plaintiff and its agents and representatives, several intermediaries, insurance companies and fronting insurers, and insurance premium financing agencies during the years 1999-2001 while AIMCO's property insurance risk was shopped to the insurance market, placed in layers with various insurers, and financed through various insurance premium financing agencies. This action has been pending before this Court since 2001, and discovery occurred from 2003 through 2005. Discovery has been volumetrically substantial, involving over fifty depositions, one thousand deposition exhibits, hundreds of thousands of pages of documents, and twelve separate expert witnesses regarding discrete areas of testimony. Fact discovery closed on October 29, 2004, and no timely served requests for fact discovery are outstanding. The parties have all submitted voluminous dispositive motions and briefs, and have undoubtedly taxed the storage resources of this Court. In the interest of brevity, Metzger will state facts that all parties at this stage of the litigation must concede are incontrovertible, and it is these facts alone that must be analyzed to determine that New York law is appropriate to apply to all claims against Metzger.

2

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 3 of 10

INDISPUTABLE FACTS For the most part, all parties have already set out their positions as to this choice of law issue when dispositive motions and briefs were filed in May and June of last year. Currently the only party with claims against Metzger is Plaintiff AIMCO. AIMCO is a Delaware corporation with its principle place of business in Denver, Colorado. Metzger is an insurance wholesale broker incorporated, licensed and domiciled in New York. AIMCO believes Colorado law applies to its claims against Metzger (see AIMCO's Joint Resp. in Opp. to Mots. For Summ. J. of First Capital Group and Roger Metzger Associated at § II(A), filed with this Court on June 6, 2005 (referred to hereafter as "AIMCO's Joint Response")). Metzger believes AIMCO's claims against it are controlled by the substantive law of New York. The events of this case with regard to Metzger's involvement took place substantially outside of this jurisdiction. AIMCO filed this case in Colorado and apparently assumes that Colorado law applies despite the fact that none of the actions or omissions allegedly giving rise to the lawsuit occurred in Colorado and, more particularly to this motion, all of the transactions involving Metzger happened in New York. In resolving choice of law disputes in multi-state tort litigation, Colorado follows the "most significant relationship" test of the RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971 & Supp. 2004). Vandeventer v. Four Corners Elec. Co., 663 F.2d 1016, 1017 (10th Cir. 1981); First Nat'l Bank v. Rostek, 514 P.2d 314, 320 (Colo. 1973). Section 145 provides: (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.

3

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 4 of 10

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 (1971 & Supp. 2004). In identifying the state with the most significant relationship, "the relative interests of the states in the determination of the outcome is the most significant guiding principle." Abdelsamed v. New York Life Ins. Co., 857 P.2d 421, 429 (Colo. Ct. App. 1992). To determine which state's interests are best served by applying its own rule of law, these contacts must be evaluated according to their relative importance to the particular issue. Vandeventer, 663 F.2d at 1017; Sabell, 536 P.2d at 1164. In determining which state's rules apply to establish whether particular conduct is negligent, factors (a) and (b) of § 145 assume primary importance. Vandeventer, 663 F.2d at 1018; Sabell, 536 P.2d at 1165. With respect to choosing from competing rules of recovery, i.e., "the manner in which one citizen may seek redress from another and the rules under which disputes are resolved," factors (c) and (d) assume primary importance. Vandeventer, 663 F.2d at 1018-19; Sabell, 536 P.2d at 1166. Considerations to Metzger's Contacts Because the particular issue under consideration dictates the relative significance of the contacts, Sabell, 536 P.2d at 1164, the issues to which the choice of law analysis applies must be clarified.

4

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 5 of 10

AIMCO itself alleges that Metzger is a corporation organized under the laws of the State of New York with its principal place of business located in New York, New York. Fourth Am. Compl. ¶ 9. It cannot be disputed that:
· · · · · ·

·

Metzger offices in New York, New York. Metzger is licensed as an insurance broker (producer) only in New York. Metzger received all transactional information related to this litigation in New York. All transactional information passed on by Metzger was passed on from its office in New York. All correspondence drafted by Metzger originated in New York. Metzger's involvement with transmitting the submission from National Program Services used to underwrite the policies at issue was received and transmitted by Metzger to First Capital in New York. All telephone calls originated or received by Metzger occurred in New York.

By the same token, it cannot be disputed that there is no evidence Metzger ever had contacts in Colorado with AIMCO. Indeed, not one single AIMCO employee or former employee deposed could recall having any knowledge of who Metzger was during the entire time relevant to this suit, much less that Metzger had even had any contacts with these witnesses.1 AIMCO has previously sought to frustrate this obvious conclusion by pointing out that, on occasion, representatives of Metzger attended meetings with other parties to this lawsuit in Connecticut and New Jersey. See AIMCO's Joint Resp. § II(A). AIMCO does not, however, argue that Connecticut or New Jersey law should apply to its claims. It should also be noted that discovery indicates these meeting to have occurred on or after March and July of 2000, well after
1

The witnesses were: - Terry Considine, AIMCO's C.E.O.; - Peter Kompaniez, AIMCO's former President and current Vice Chairman; - Miles Cortez, AIMCO V.P. and General Counsel; - Thomas Toomey, former AIMCO C.F.O.; and - Jeff Adler, current AIMCO Corporate Risk Manager (not employed by AIMCO in relevant time period). 5

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 6 of 10

the latest date Metzger could have made the alleged misrepresentations when each of the policies at issue were bound (February 28, 2000 for Security's policy; April 28, 2000 for National Union's polic). The mere happenstance of these infrequent meetings abroad is of no consequence to this analysis, and provides no basis in logic or reason to frustrate the obvious application of New York law on claims against Metzger in favor of Colorado law. There can be no question that Metzger's most significant contacts in this matter occurred in New York, and New York's substantive law is properly applied to claims against Metzger. Vandeventer, 663 F.2d at 1017-18; Sabell, 536 P.2d at 1164-65. Considerations to AIMCO's Claims Against Metzger AIMCO's fall back argument in favor of Colorado law focuses on only one element of each claim still remaining: that it was allegedly damaged in Colorado. See AIMCO's Joint Resp. § II(A).2 In support of this, AIMCO cites only to cases which describe the nature of an insurer (i.e., National Union) and an insured (i.e., AIMCO) as extolling a policy interest in construing AIMCO's claims under substantive Colorado law. This argument is similarly unavailing as to its claims against Metzger. First, AIMCO has consistently maintained that Metzger was not one of its agents, which destroys any potential theory that Metzger owed AIMCO any duty as an insurance broker. See, e.g., Fourth Am. Compl. in toto (alleging Metzger as an agent of National Union). Secondly, and as mentioned above, not one single AIMCO witness could testify in five different depositions of any

To a limited extent, AIMCO also argues in that response that contacts are established in Colorado because parties other than Metzger are licensed to do business in Colorado, i.e., the insurers Security Insurance Company of Hartford and National Union. Id. at 30. The argument cannot extent to Meztger as it is undisputed Metzger is not licensed to, and conducts no business in, Colorado. 6

2

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 7 of 10

representation made by Metzger to AIMCO on which to infer the duty aspect of this special Colorado policy argument AIMCO makes. AIMCO claims that Metzger was allegedly negligent and made negligent misrepresentations which caused AIMCO harm. But up to this point in over four years of litigation, AIMCO has never articulated a theory under any state's law as to why alleged representations not made to it in states other than Colorado by parties it never heard of are properly couched in any state's substantive law, much less Colorado in particular. AIMCO's arguments do not obviate the contacts test required under Colorado jurisprudence. The law, and the contacts which are indisputable, direct application of New York law to all claims against Metzger. CONCLUSION All activities of any import attributable to Metzger occurred solely in the province of the State of New York. As such, and due to these factors analyzed under Colorado's choice of law analysis, the substantive laws of New York should apply to all activities Metzger. FOR THE FOREGOING REASONS, Metzger requests this Court apply the substantive laws of the State of New York to all claims against Metzger as issue in this action.

7

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 8 of 10

Dated this 27th day of February, 2006. TREECE, ALFREY, MUSAT & BOSWORTH, P.C.

s/ Robert Zavaglia Paul E. Collins Robert J. Zavaglia, Jr. 999 18th Street, Suite 1600 Denver, Colorado 80202 Telephone: (303) 292-2700 Fax: (303) 295-0414 Attorneys for Defendant Roger Metzger Associates

8

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 9 of 10

CERTIFICATE OF SERVICE I hereby certify that on this 27th day of February, 2006, a true and correct copy of the foregoing DEFENDANT ROGER METZGER ASSOCIATES' TRIAL BRIEF RE: CHOICE OF LAW was served upon the following by the method indicated: Thomas L. Roberts, Esq. ROBERTS, LEVIN & PATTERSON, P.C. 1660 Wynkoop Street, Suite 800 Denver, Colorado 80202 via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail

Karma Giulianelli, Esq. Lester Houtz, Esq. BARTLIT BECK HERMAN PALENCHAR & SCOTT 1899 Wynkoop, 8th Floor Denver, Colorado 80202 Jeffrey A. Hall, Esq. Elizabeth A. Thompson, Esq. BARTLIT BECK HERMAN PALENCHAR & SCOTT 54 West Hubbard Street, Suite 300 Chicago, Illinois 60610 Jeffrey A. Chase, Esq. JACOBS CHASE FRICK KLEINKOPF & KELLEY LLC 1050 17th Street, Suite 1500 Denver, Colorado 80265 John T. Wolak, Esq. GIBBONS, DEL DEO, DOLAN, GRIFFINGER & VECCHIONE, P.C. One Riverfront Plaza Newark, New Jersey 07101 James M. Miletich, Esq. MCCONNELL SIDERIUS FLEISCHNER HOUGHTALING & CRAIGMILE, LLC 4700 South Syracuse Street, Suite 200 Denver, Colorado 80237

9

Case 1:01-cv-02018-RPM-MJW

Document 638

Filed 02/27/2006

Page 10 of 10

Leonard B. Rose, Esq. Jed Reeg, Esq. LATHROP & GAGE L.C. 2345 Grand Boulevard, Suite 2800 Kansas City, Missouri 64108-2612 John R. Trigg, Esq. Julie M. Walker, Esq. Melissa Collins, Esq. WHEELER TRIGG & KENNEDY, L.L.P. 1801 California Street, Suite 3600 Denver, CO 80202 John D. Martin, Esq. OSTER & MARTIN, LLC 717 17th Street, Suite 1475 Denver, CO 80202

via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail

via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail via U.S. Mail via Hand Delivery via Facsimile via Overnight Delivery via CM/ECF e-mail

Charles R. Tuffley, Esq. Donna B. Howard, Esq. GROTEFELD & DENENBERG, LLC 30800 Telegraph Road, Suite 3858 Bingham Farms, MI 48025 Joe Robert Caldwell, Jr., Esq. Nicholas A. Brady, Esq. BAKER BOTTS LLP 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004

s/ Theresa Webb ___________________________________

10