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

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

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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.

THIRD-PARTY DEFENDANT LOCKTON'S REPLY TO DEFENDANT/THIRD-PARTY PLAINTIFF SECURITY INSURANCE COMPANY OF HARTFORD'S RESPONSE IN OPPOSITION TO LOCKTON'S MOTION FOR SUMMARY JUDGMENT Security Insurance Company of Hartford ("SOH") does not dispute any of the facts included by Lockton in its Motion for Summary Judgment, nor does it add any facts of its own. SOH acknowledges that Colo. Rev. Stat. § 13-50.5-105(1)(b) bars its third-party claims if Colorado law applies to those claims. SOH Response Brief at p. 2 fn.1. Interestingly, while SOH argues that New York rather than Colorado law should apply to its claims against Lockton, it does not explain how the application of New York law would lead to a different result. This is because it would not.1 New York has a statute similar to Colo. Rev. Stat. § 13-50-5.105 that also bars SOH's claims.

Although Lockton believes that there is little doubt that Colorado law applies to SOH's third-party claims against it, a choice of law analysis is not necessary at this time because Colorado law and New York law are virtually identical on the issues relevant to this Motion.

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SOH admits that all of its claims are for contribution/indemnity. As set forth by Lockton in its original Motion for Summary Judgment, Colo. Rev. Stat. § 13-50.5-105 bars third-party claims for contribution/indemnity like those asserted here when a third-party defendant settles with and is released by the plaintiff. Specifically, Colo. Rev. Stat. § 13-50.5-105 provides: "(1) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death: (a) It does not discharge any of the other tortfeasors from liability for their several pro rata shares of liability for the injury, death, damage, or loss unless its terms so provide; but it reduces the aggregate claim against the others to the extent of any degree or percentage of fault or negligence attributable by the finder of fact, pursuant to section 13-21-111(2) or (3) or section 13-21-111.5, to the tortfeasor to whom the release or covenant is given; and (b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor." Emphasis added. SOH admits that if Colorado law applies to its claims then this statute bars them. (See, SOH's Response at p. 2, footnote No. 1 "... Colo. Rev. Stat. Section 13-50.5105(1)(b) regulates [SOH's] right to pursue Lockton for indemnity, contribution, etc."). As explained at length in Lockton's original Motion, the primary purpose of Colo. Rev. Stat. § 13-50.5-105 is to encourage settlement. This statute allows one of two or more joint tortfeasors to settle with a plaintiff without the fear of being brought back into the action as a third-party defendant. This statute allows a tortfeasor to "buy its peace" and rid itself of

litigation in its entirety. Most states, including New York have similar statutes. New York General Obligations Law § 15-108 provides: "(a) Effect of release of or covenant not to sue tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury

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or wrongful death unless its terms expressly so provides, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is greatest. (b) Release of tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision(a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules. (c) Waiver of contribution. A tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person." Thus, whether New York or Colorado law applies to SOH's claims against Lockton, SOH's claims are barred as a result of Lockton's settlement with AIMCO. Lockton's Motion for Summary Judgment should therefore be granted.2

In the second section of its Response SOH argues that it does not have to prove Lockton owed it a duty in order to assert third-party claims for contribution or indemnity against it. SOH misunderstands Lockton's argument. The argument made by Lockton in its original Motion was an alternative argument; an argument that applied only if the Court were to determine that SOH's claims against Lockton were for direct negligence rather than contribution. If SOH's claims were for direct negligence, SOH would be required to prove the existence of a duty - a necessary element of a negligence claim. It is now clear that SOH's claims are solely for contribution/indemnity and therefore an analysis of whether or not Lockton owed SOH a duty is unnecessary.

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Respectfully submitted, LATHROP & GAGE L.C. By: /s/ Stephen J. Horace ­ CO#32961 4845 Pearl East Circle, Suite 300 Boulder, CO 80301 Telephone: 720-931-3000 Fax: 720-931-3001 and 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 24th day of June, 2005, 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

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Jeffrey A. Chase Barry A. Schwartz Jacobs Chase Frick Kleinkopf & Kelley 1050 ­ 17th St., Ste. 1500 Denver, CO 80265 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

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John P. Mitzner Allman & Mitzner LLC 535 16th Street, Suite 727 Denver, CO 80202 Jeffrey Lorell Marc Singer Saiber Schlesinger Satz & Goldstein One Gateway Center 13th Floor Newark, NJ 07102 /s/

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