Free Motion for Leave to File Excess Pages - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 210

Filed 03/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-CV-2098 - REB - MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

DEFENDANT'S MOTION FOR LEAVE TO EXCEED THE PAGE LIMITATIONS OF REB CIV. PRACTICE STANDARD V.H. 3.a. IN ORDER TO FILE NEW MOTION FOR PARTIAL SUMMARY JUDGMENT

The Defendant, Prudential Property and Casualty Insurance Company ("Prupac"), by its counsel, and for its Motion, states as follows:

Pursuant to Local Rule 7.1, the undersigned represents that he has conferred with Plaintiff's counsel, Mr. Dan Rector (by e-mails dated March 6 and 7, and by telephone on March 7), but he is not yet in a position to advise whether or not Plaintiff intends to oppose the relief requested herein. Counsel has indicated the need for additional time to confer with his co-counsel and his client, and when that has been completed, he will advise the Court of Plaintiff's position.

1.

Now that this case is scheduled for trial on those claims remaining

following this Court's reformation order, Defendant proposes to file one final

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partial summary judgment motion to determine whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). The Amended Scheduling Order of September 14, 2006 [# 202], acknowledged Defendant's request to file such a motion, and ordered that dispositive motions be filed by June 15, 2007. [#202, pp. 5-6, section 8.C.] According to REB Civ. Practice Standard V.H.3.a., however, the parties are limited to twenty pages for the opening and response briefs for all motions filed under Fed. R. Civ. P. 56. Defendant has filed two previous motions for summary judgment, and due to the above page limitations, is unable to file additional motions absent relief from the rule. Because of the somewhat unique procedural posture of this case, and in an effort to avoid unnecessary use of judicial resources and potentially wasteful discovery efforts, Prupac requests permission to file one final summary judgment motion.

2.

Defendant filed its original motion for summary judgment [# 29] on

September 24, 2001, while the case was before Chief Judge Lewis Babcock (and not subject to a combined page limit). The case was reassigned to this Court by Minute Order dated March 7, 2002, and on June 10, 2002, this Court granted to Prupac summary judgment on grounds that Brennan v. Farmers Alliance Mutual Insurance Company, 961 P.2d 550 (Colo. App. 1998) did not apply retroactively, thus barring Plaintiff's claims for extended PIP benefits. The Tenth Circuit reversed this Court's order and remanded the case for a hearing to determine the date and scope of policy reformation. Fincher v. Prudential Property and

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Casualty Insurance Company, 76 Fed. Appx. 917 (Tenth Circuit 2003) (Unpublished).

4.

Upon remand to this Court, Prupac filed a motion for partial summary

judgment and to dismiss [# 107] on October 28, 2004, seeking judgment on the amount of available policy benefits, and dismissal of Plaintiff's Consumer Protection Act claim and wage loss claim. On March 24, 2005, this Court granted partial relief to Prupac, dismissing Plaintiff's Consumer Protection Act claim.

5.

A reformation hearing was conducted on April 4 & 5, 2005, and on

February 28, 2006, this Court entered its Findings of Fact, Conclusions of Law, & Orders [# 158] addressing both the date and extent of policy reformation, and clarifying Plaintiff's remaining claims still at issue for the now-scheduled trial date of October 15, 2007.

6.

Following the Court's reformation order, Prupac completed payment of all

extended PIP benefits owing under that order. As a result, Plaintiff's remaining contract claims are now moot and should be dismissed. To proceed to trial on the contract claims would be a tremendous waste of time and money for all concerned ­ the Amended Scheduling Order [# 202] authorizes 12 experts and additional written and oral discovery all relating to damages which Defendant submits are now moot. In addition, the extra-contractual claims are similarly subject to dismissal because Prupac's decision to pay Plaintiff basic rather than

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extended PIP benefits was grounded in reasonable legal positions. Defendant submits that a limited suspension of REB Civ. Practice Standard V.H.3.a. to permit the filing of one final partial summary judgment motion would help to assess whether trial is necessary. White , supra.

7.

Filed contemporaneously herewith are Defendant's Motion For Partial

Summary Judgment, and the Memorandum In Support of that motion, seeking judgment on all remaining claims except for attorneys' fees, and excluding Plaintiff's pending Amended Motion for Class Certification [# 175]. As grounds, Defendant states that the contract claims originally asserted by Plaintiff are now moot, as this Court has addressed in its reformation order the scope of Prudential's liability, and Prudential has now discharged by payment all contractual obligations imposed by this Court. Second, Plaintiff's claims for extra contractual damages (bad faith and willful and wanton conduct) are ripe for summary judgment because Prudential had reasonable legal bases, fully supported by this Court's initial grant of summary judgment in its favor, for its handling of Ms. Fincher's claim.

8.

These arguments could not have been made when the prior summary

judgments motions were filed, because it was not until this Court entered its reformation order that the amounts of plaintiff's remaining contract claims were determined. The viability of Plaintiff's extra-contractual claims was equally uncertain until the court established the date of reformation. Defendant

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respectfully submits that the suspension of REB Civ. Practice Standard V.H.3.a. under the circumstances of this case ­ unique procedural posture and evolving nature of the claims and defenses ­ is appropriate to assess whether trial is necessary.

WHEREFORE, for the reasons set forth above, Prupac respectfully requests limited relief from REB Civ. Practice Standard V.H.3.a., and requests that the Court accept for filing the accompanying Defendant's Motion For Partial Summary Judgment and the Memorandum In Support of Defendant's Motion For Partial Summary Judgment.

Respectfully submitted this 9th day of March, 2007.

Campbell, Latiolais & Ruebel, P.C.

Bryan Cave LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102-2750 (314) 259-2000 (phone) (314) 259-2020 (fax)

By: __s/ Clifton J. Latiolais, Jr.________ Clifton J. Latiolais, Jr., #13765 825 Logan Street Denver, CO 80203-3114 (303) 861-7760 (phone) (303) 861-7767 (fax)

Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of March, 2007, a true and correct copy of the foregoing DEFENDANT'S MOTION FOR LEAVE TO EXCEED THE PAGE LIMITATIONS OF REB CIV. PRACTICE STANDARD V.H.3.a. IN ORDER TO FILE NEW MOTION FOR PARTIAL SUMMARY JUDGMENT was filed and served electronically via CM/ECF to the following: L. Dan Rector, #7568 Franklin D. Azar & Associates, P. C. 5536 Library Lane Colorado Springs, CO 80918 (719) 527-8000 Robert B. Carey, #1717 Leif Garrison, #14394 Steve W. Berman, c/o The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Courtesy copy to: Magistrate Judge Michael J. Watanabe United States District Court U.S. Courthouse, Room C-337 1929 Stout Street Denver, CO 80294 s/ Denise L. Albares

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