Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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

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Filed 04/04/2006

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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.

MOTION FOR LEAVE TO AMEND COMPLAINT

Rule 7.1 Certification: Pursuant to L.R. 7.1, counsel for Mr. Fincher has attempted to consult with the attorney for Prudential regarding his client's position as to this motion, but was unable to reach him at the time of this filing. COMES NOW the Plaintiff, KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, through their counsel of record, THE CAREY LAW FIRM, and pursuant to F.R.C.P. 15, hereby moves this Court for leave to amend the complaint in this matter to reflect the class definition used in the Motion for Class Certification, filed

contemporaneously herewith; and in support thereof, states as follows: 1. On September 19, 2000, the complaint in this matter was filed in El

Paso County District Court, requesting, inter alia, relief that included certification of a class of Prudential insureds under F.R.Civ. P. 23. 2. The class definition in the complaint is as follows:

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

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All injured persons covered under a Prudential automobile insurance policy who were not offered extended coverage as required by C.R.S. § 10-4-710 of the Colorado Auto Accident Reparations Act, and who were not provided the additional benefits provided for therein.

3.

At the time the complaint was filed, the class definition was

footnoted as follows: "Plaintiff reserves the right to supplement the appropriate class periods for each count, after preliminary discovery, and as is determined appropriate for each count based on state law and the facts of the case." 4. Following removal of this case by Prudential to federal court, the

case has been active for approximately five years, during which time other cases and case law have developed on the issues of class certification and the substantive issues raised in this case. 5. Pursuant to a recent Order of this Court, the Plaintiff was to file her

Motion for Class Certification on April 4, 2006, and as part of that motion, the class definition has been changed slightly, to wit: All persons who received medical or wage-loss personal injury protection benefits under a Prudential Colorado car insurance policy, and received those benefits no earlier than August 25, 1992. Excluded from the class are all Prudential executives, their legal counsel, and their immediate family members, the Court and its staff, and all employees of The Carey Law Firm. 6. It is the desire of the Plaintiff to modify the class definition

contained in the complaint to conform to the definition in the Motion for Class Certification, to the extent that the two would thereafter be consistent.

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7.

The amendment, if allowed, could be accomplished by the

proposed Order deeming the definition in paragraph 9 of the complaint to be hereafter deemed modified to contain the new class definition without the necessity of the filing of further pleadings. WHEREFORE, the Plaintiff prays for an Order of this Court, allowing the amendment of the Complaint to reflect the same class definition in Paragraph 9 of the complaint as that in the Motion for Class Certification filed on April 4, 2006. Respectfully submitted this 4th day of April, 2006. THE CAREY LAW FIRM s/L. Dan Rector Robert B. Carey L. Dan Rector The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on 4th day of April, 2006, electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected]

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