Free Status Report - District Court of Colorado - Colorado

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

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Filed 03/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-RB-2098 (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 STATUS REPORT AND REQUEST FOR STATUS CONFERENCE

The Defendant, Prudential Property & Casualty Insurance Company, by its attorneys, Campbell, Latiolais & Ruebel, P.C., and Bryan Cave, LLP, in accordance with this Court's Order of February 28, 2006, submits the following Status Report outlining its position regarding the proceedings and discovery necessary to prepare for trial. As a preliminary matter, undersigned counsel represents that he conferred with Plaintiff's counsel to discuss the Court's Order and the possible filing of a joint status report. The parties explored areas of agreement, but because the areas of disagreement predominate, it was determined to file separately. Both parties would request a status conference with the Court, before scheduling a trial date, to resolve the disputed issues and determine the appropriate scope and timing of trial. Order of Proceedings. Defendant submits that the next stage of the

proceedings is to conduct a jury trial on Fincher's remaining individual claims. Following

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such a trial, the class certification issues would be addressed. This approach is consistent with the 10th Circuit's remand instructions: "The district court's decision regarding the effective date of reformation will, in turn, have an impact on the viability of Fincher's remaining claims against Prudential. . . . Lastly, the district court should consider Fincher's motion for class certification (which was denied as moot in light of its summary judgment ruling)." Fincher v. Prudential Prop. and Cas. Ins. Co., 76 Fed. Appx. 917, 923 (10th Cir. 2003). Scope of Trial. In its Findings of Fact, Conclusions of Law, & Orders,

dated February 28, 2006, this Court reformed the Prudential policy to include a $200,000 cap on APIP benefits. Fincher's counsel has indicated his intent to introduce evidence at trial supporting the complete range of claimed APIP damages in this case, including both wage losses and other medical care expenses above and beyond the $200,000 aggregate. Prudential submits that such evidence is irrelevant and inappropriate given the court's reformation ruling, would create a significant waste of trial time and resources, and would require extensive additional lay and expert discovery and/or testimony neither necessary nor relevant to the issues now before the Court. (See discussion in "Remaining Discovery", below.) Prudential has stipulated that Fincher is entitled to $200,000 in APIP benefits, without further proof of such damages. As such, there is no need for the presentation of any further wage loss or medical expense testimony at trial. The only issues are Fincher's entitlement to statutory benefits (interest, treble damages and attorney fees) for untimely payment of those benefits, damages for bad faith breach of insurance contract, and whether she is entitled to exemplary damages. (Plaintiff's Colorado Consumer Protection

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Act claim was previously dismissed by this Court's Order of March 24, 2005.) None of these claims require the presentation of further medical or economic damages testimony. Remaining Discovery. Prudential submits that no further discovery

is necessary to prepare for a jury trial on Fincher's remaining claims. All individual claim discovery, except for a few medical and economic expert issues which are now presumably moot in light of the reformation order, was completed prior to this Court's grant of summary judgment on June 10, 2002. Class discovery was also completed, as Fincher filed her class certification motion in December of 2001. Prudential anticipates filing one pretrial motion on the scope of its potential extra-contractual damages exposure, a motion that could be filed within three weeks or so if the Court wishes to set the trial date promptly. If the Court determines further damages testimony is appropriate at trial, however, the parties' medical experts will need to update their opinions concerning Ms. Fincher's current and future condition, and the economic experts will require an opportunity to revise their opinions concerning past and future economic losses based on recent medical developments. In addition, one of Prudential's specially retained medical experts is believed to have passed away recently from cancer, and a new expert may need to be retained given these circumstances. The parties will then need depositions of these experts, and perhaps Ms. Fincher, as well. Prudential anticipates filing 3 pretrial motions should additional damages testimony be presented at trial. First, Prudential will renew an earlier motion to strike any future wage loss claims, on grounds the facts now demonstrate that Ms. Fincher had neither employment nor any offer of employment at the time of her injury. Second, it will file a motion to strike portions of three of Plaintiff's

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experts' testimony regarding claimed damages, as they involve tort damages outside the scope of Plaintiff's claim for APIP coverage under Colorado's former No-Fault Act. Finally, Prudential anticipates filing a Rule 702 motion concerning at least one of Plaintiff's medical experts. As for class certification discovery, none is necessary. Following the completion of all discovery in accordance with the Scheduling Order, Fincher filed her motion for class certification in December of 2001. Prudential thereafter filed a motion to strike the pleading as untimely filed, or in the alternative, stay the briefing pending resolution of the pending summary motions. Briefing was stayed, and summary judgment rendered moot Plaintiff's motion in June, 2002. Prudential is prepared to file its response brief within 30 days of the Court's order to do so, but no further discovery is necessary to complete the briefing process. Scheduling of Trial. Prudential submits that a trial on Fincher's

remaining individual claims could be scheduled in three months. Given the identified witnesses and exhibits, three days should be sufficient. If additional damages testimony will be permitted, however, the parties will likely require an additional 9 months before they will be prepared for trial. This will be necessary to permit the medical experts to conduct examinations and update their opinions and/or expert reports, following which the economic experts will need to revise their reports. Depositions will then be necessary to complete trial preparation on medical and expert testimony, and then the parties will be able to file their pretrial motions. A five day trial would be necessary. Of course, these dates assume trial will proceed before a class certification hearing.

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Request for Status Conference.

Until such time as the Court resolves the

parties' dispute over the proper order and scope of trial, the parties cannot adequately determine the appropriate length or date of trial. The Court's recent Order set a trial scheduling conference for March 15, and Prudential respectfully submits that date is premature given the outstanding issues. A brief status conference is therefore requested to address these issues prior to scheduling the trial date. Respectfully submitted this 13th day of March, 2006. CAMPBELL, LATIOLAIS & RUEBEL, P.C. Clifton J. Latiolais, Jr., Esq. # 13765 1625 Downing Street Denver, Colorado 80218 Phone: (303) 861-7760 and BRYAN CAVE LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102-2750 314-259-2000 Attorneys for Defendant Prudential
A duly signed original is on file at the offices of Campbell, Latiolais & Ruebel, P.C.

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT'S STATUS REPORT AND REQUEST FOR STATUS CONFERENCE was

filed electronically with the U. S. District Court this 13th day of March, 2006, and served on the following by facsimile and U.S. Mail: Robert B. Carey, L. Dan Rector The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909

/s/ Denise L. Albares
A duly signed original is on file at the offices of Campbell, Latiolais & Ruebel, P.C.