Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-01841-LTB-KLM

Document 162

Filed 02/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF COLORADO

Civil Action No. 00-cv-01841-LTB-PAC RICKY EUGENE CLARK, on behalf of himself and all others similarly situated, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant.

PLAINTIFF'S RESPONSE TO EXPEDITED MOTION TO DEPOSIT FUNDS WITH COURT AND TO RELEASE SUPERSEDEAS BOND

Plaintiff, Ricky Eugene Clark, on behalf of himself and all others similarly situated, by and through his attorneys of record, The Carey Law Firm, submits the following Response to Defendant's Expedited Motion to Deposit Funds with Court and to Release Supersedeas Bond, as follows: Certificate of Compliance pursuant to Rule L.R. 7.1: As the Court will note from the attachments to the Defendant's motion, the contact between the attorneys for these parties involved the exchange of two e-mails before the State Farm motion was filed. State Farm made no attempt to avoid the necessity of filing this motion. Rather, State Farm merely chose to file the motion instead of replying to the e-mail from Clark's counsel. 1. As indicated in the e-mail from Clark's counsel to State Farm's on February 8,

2006, the only questions raised by Clark's counsel at the time the payment of monies was raised

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by State Farm involved (1) whether State Farm was attempting to affect Clark's status as a putative class representative by paying monies directly to him through his counsel and (2) whether State Farm was attempting to preclude claims that Clark may still have, or may have in the future, against State Farm. 2. State Farm chose not to respond to that e-mail, but rather file this motion, thus

necessitating this response. 3. Clark takes no issue with the deposit of these monies with the Court, and the

resulting release of the supersedeas bond. Clark can then obtain those funds to which he is entitled from the court, as he chooses. However, because there are further proceedings yet to take place in this case (as is now acknowledged in paragraph 7 of State Farm's motion), counsel for Clark wanted to ensure that they were not participating in a transaction that State Farm was going to claim that they waived any status or rights by accepting the monies. For example, under the No Fault Act: Any payment by the insurer prior to trial or arbitration which does not resolve all issues in dispute shall not be binding on the parties. Any payment by the insurer shall be agreed upon by all parties as resolving all issues in dispute or the arbitration or trial shall proceed on all unresolved issues. C.R.S. § 10-4-708(1.7)(b). Issues are still in dispute and a trial on unresolved issues is still a possibility. Clark was simply seeking to determine if State Farm believed the payment had some binding effect. 4. Clark's counsel was neither seeking to "extract some litigation advantage" from

State Farm in their response to the e-mail communications about the amount of the judgment, nor raise an inappropriate issue. Payment of a judgment is typically accompanied by a written

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release of the obligation associated with the payment, and were a release sought, it could not include terms that impair Clark's right to proceed in a case that is not yet final. 5. State Farm is, therefore, entitled to pay amounts to the Court, and does not need

agreement of Clark's counsel or leave of this Court, to do so. Indeed, State Farm could have and should have paid these monies long ago, and Clark is and has been more than willing to receive them, but he is not going to do so in a way that permits State Farm to argue that Clark's acceptance of money (1) affects his ability to serve as a class representative, or (2) operates to preclude, by waiver or otherwise, Clark's right to proceed with any other claims that he may have against State Farm. 6. Because there may yet be additional judgments entered in this case (the attorney

fees appeal, for example, is still pending with the 10th Circuit Court of Appeals), it is incumbent upon Clark's counsel to insure that no satisfaction of judgment results in a complete resolution of this case. 7. Therefore, to the degree that such a payment, once made, entitles State Farm to

some relief, Clark confesses the motion and the relief requested in the prayer of the Motion, noting that as to request (3) of the prayer of the motion, the motion is confessed only to the extent that the payment may satisfy the judgment that exists at present. Respectfully submitted this 24th day of February, 2006. THE CAREY LAW FIRM

By:

s/L. Dan Rector________________________ L. Dan Rector Robert B. Carey Leif Garrison 2301 East Pikes Peak

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Colorado Springs, CO 80909 Telephone: (719) 635-0377 Attorneys for Plaintiff CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 24th day of February, 2006, I 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] [email protected] [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]