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

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

Document 205

Filed 11/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02098-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, a New Jersey Corporation, Defendant.

PLAINTIFF'S REPLY IN SUPPORT OF HER MOTION FOR RECONSIDERATION OF FINDINGS OF FACT, CONCLUSIONS OF LAW, & ORDERS DATED FEBRUARY 28, 2006, AS TO THE IMPOSITION OF THE $200,000 CAP ON BENEFITS

Plaintiff Kelly Fincher, by and through her attorneys of record, respectfully moves the Court to grant her Motion for Reconsideration of Findings of Fact, Conclusions of Law, & Orders Dated February 28, 2001, as to the imposition of the $200,000 cap on benefits, submitted on October 3, 2006, as follows: This court retains jurisdiction and considerable discretion to reconsider interlocutory orders such as the one at issue here. Under Federal Rule of Civil

Procedure 54(b), an interlocutory order "is subject to revision at any time" prior to entry of final judgment. See also Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988) (acknowledging district courts' discretion to reconsider and revise interlocutory

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

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Filed 11/06/2006

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orders); Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D. Kan. 2002) ("it is well within the court's discretion to revise interlocutory orders prior to the entry of final judgment"). In this case, such reconsideration is justified by the Colorado Court of Appeals' decision in Snipes v. American Family Mutual Insurance Co., 134 P.3d 556 (Colo. Ct. App. 2006). Snipes is the most recent pronouncement from a Colorado appellate-level court that is directly on-point with regard to what standard should be applied to determine whether to cap a reformed policy, and therefore, is relevant authority that should be given substantial deference. Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240 (10th Cir. 2003) ("Clark I"). This is particularly true given that although other cases have touched on the issue, prior to Snipes, none of the previous Colorado appellate court cases had directly articulated the standard to be applied. Therefore, the Snipes decision, issued after February 28, 2006, provides an important clarification of what the law is in Colorado, and that law should be applied to this case. As the Snipes court made clear, the determination of whether a cap will be included in a reformed policy hinges on "whether the policy itself so provided." 134 P.3d at 558. The Snipes court went on to find that because the PIP endorsement in that case clearly contained an aggregate cap of $200,000, that cap should be incorporated in the policy at issue. Id. Under Snipes, the proper standard is whether the cap was expressed in the policy itself; not an analysis of the equitable factors described in Clark I for determining the effective date of reformation, and not consideration of the insurer's intent if it is not expressed in the policy itself.

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

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In this case, the court applied a cap to the reformed policy based on a consideration of the Clark I factors after acknowledging that the policy itself contained no such cap. Findings of Fact, Conclusions of Law, & Orders, February 28, 2006 at 25. The holding in Snipes, however, makes clear that it is the policy language itself that governs, and therefore it is appropriate for this Court to reconsider its holding in light of the standard announced in Snipes. Although the Defendant attempts to muddy the waters by trying to link the current motion with the Plaintiff's previous arguments regarding automatic incorporation, Plaintiff's motion clearly only requests reconsideration of the decision to apply a cap and is not challenging or in any way attacking the Court's decision on the date of reformation. Plaintiff's request for reconsideration is both appropriate given the new authority of Snipes and well within the Court's discretion. Plaintiff therefore respectfully moves the Court to grant the motion for reconsideration. Respectfully submitted this 6th day of November, 2006.

s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Steve W. Berman, WSBA #12536 HAGENS BERMAN, L.L.P. 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 3

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

Document 205

Filed 11/06/2006

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L. Dan Rector FRANKLIN D. AZAR & ASSOCIATES, PC 5536 Library Lane Colorado Springs, CO 80918 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on this 6th day of November, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System, which will send notification to the following email addresses: [email protected] [email protected]

s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected]

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