Free Motion to Deposit Funds - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT 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. ______________________________________________________________________________ EXPEDITED MOTION TO DEPOSIT FUNDS WITH COURT AND TO RELEASE SUPERSEDEAS BOND

Defendant State Farm Mutual Automobile Insurance Company ("State Farm"), pursuant to Rule 67 of the Federal Rules of Civil Procedure, hereby moves this Court for entry of an Order permitting it to deposit with the Court the amount of the judgment entered in favor of Plaintiff, and to release the supersedeas bond issued by State Farm Fire and Casualty Company on or about February 6, 2004. As grounds in support of this Motion, State Farm states as follows: CERTIFICATION Counsel for State Farm hereby certify, pursuant to D.C.COLO.LCivR 7.1(A) and Fed. R. Civ. P. 67, that they have conferred with counsel for the Plaintiff and attempted to resolve this matter without intervention by the Court. Specifically, on February 3, 2006, counsel for State Farm spoke with and wrote to counsel for Mr. Clark, offering to pay the judgment upon agreement regarding the calculation of post-judgment interest. See E-mail from M. Williams to

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D. Rector (Feb. 3, 2006), attached as Exh. 1. Counsel for Mr. Clark, however, have refused to accept payment of the judgment owed to their client unless State Farm agrees to certain unwarranted and inappropriate conditions. See E-mail from D. Rector to M. Williams (Feb. 8, 2006), attached as Exh. 2. Accordingly, State Farm brings this matter to the Court for resolution. MOTION 1. On December 19, 2003, this Court entered its Findings of Fact, Conclusions of

Law and Order (the "Order") in this case. The Court ordered that: (1) the Madrid policy under which Mr. Clark received PIP benefits was reformed to include the P4 level of benefits for pedestrians; (2) the effective date of reformation was the date of the Order; (3) benefits under the reformed policy were subject to a $200,000 aggregate limit; (4) Mr. Clark was awarded $132,276.02 as damages; (5) Mr. Clark's remaining claims for breach of contract, breach of the duty of good faith and fair dealing, and willful and wanton breach of contract were dismissed; and (6) final judgment was entered on all of these issues pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. 2. On December 26, 2003, Judgment entered accordingly. Particularly relevant here,

Mr. Clark was awarded the sum of $132,276.02, representing the amount of PIP benefits to which he has entitled under the Court's Order. The Judgment further specified that post

judgment interest would accrue at the legal rate of 1.27% from the date of entry of the judgment. 3. Both parties appealed portions of the Court's Order to the United States Court of

Appeals for the Tenth Circuit. See Notices of Appeal (Jan. 16, 2004). 4. In light of the then-pending appeals, State Farm filed a Motion for Stay of

Proceedings to Enforce Judgment on February 9, 2004. At the same time, State Farm submitted

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a Supersedeas Bond in the amount of $140,000, which had been obtained from State Farm Fire and Casualty Company on February 6, 2004 (the "Bond"). The Bond was posted "as sufficient security for the amount of the judgment in favor of Plaintiff, plus interest at the rate of 1.27%." See Motion for Stay of Proceedings to Enforce Judgment (Feb. 9, 2004) at 2, ¶ 5. 5. The Court of Appeals issued its opinion in this case on December 30, 2005. The

mandate of the Court of Appeals was sent to this Court on or about January 23, 2006. 6. By its opinion, the Court of Appeals affirmed this Court's Order in its entirety,

including the judgment in favor of Mr. Clark in the amount of $132,276.02. See Opinion (Dec. 30, 2005) at 22. 7. There will be no further proceedings in this case relating to the Judgment amount

of $132,276.02 in favor of Mr. Clark. Rather, the issues remaining before this Court relate only to issues of class certification. See Order (Dec. 19, 2003) at 30 ("This Order resolves all claims between State Farm and Mr. Clark.") & 31 (certifying the judgment pursuant to Fed. R. Civ. P. 54(b)). 8. State Farm stands ready, willing, and able to pay the amount of the judgment and

applicable post judgment interest to Mr. Clark. 9. Indeed, counsel for State Farm have attempted to pay the amount of the judgment,

plus applicable post judgment interest, as indicated by the attached communications with counsel for Mr. Clark. See Exh. 1. Pursuant to directions from the Clerk of this Court, counsel for State Farm anticipated being able to agree with Mr. Clark's counsel on the appropriate interest calculation, pay the judgment to Mr. Clark, and then to file a stipulated motion to release the supersedeas bond.

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10.

Counsel for Mr. Clark, however, refuse to accept payment of the judgment and

post judgment interest, without imposing certain conditions on that payment: We cannot accept any monies for Mr. Clark that limit his ability to serve as a class representative. If you will concede that his accepting these monies has no impact on his ability to serve as a class representative, or pursue any other claims that he may yet have, we can discuss the amounts further. Exh. 2. By attempting to impose these conditions, counsel for Mr. Clark apparently seek to extract some litigation advantage in connection with State Farm's payment of the judgment amount. 11. State Farm will not agree to the conditions that Mr. Clark's counsel improperly

attempts to impose on payment of the judgment. Nor should post judgment interest continue to accrue on the judgment amount because of litigation tactics by Mr. Clark's counsel. * 12. Accordingly, State Farm requests, pursuant to Rule 67 of the Federal Rules of

Civil Procedure, that it be permitted to deposit with the Court the total amount of the judgment plus applicable post judgment interest. 13. Rule 67 provides, in part:

In an action in which any part of the relief sought is a judgment for a sum of money . . . a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum. Fed. R. Civ. P. 67; see also 28 U.S.C. §§ 2041 & 2042. 14. "The purpose of the [Rule 67] deposit is to relieve the depositor of responsibility

for a fund in dispute. . . . Under some circumstances it may suffice to stop the running of interest." 12 Fed. Prac. & Proc. Civ. 2d (Wright, Miller & Marcus) § 2991.

This is to say nothing of the impact that the position taken by Plaintiff's counsel has on their own client, who claims to be totally disabled.

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15.

State Farm does not dispute its liability for the amount of the judgment plus post

judgment interest owing to Mr. Clark. Rather, there is a dispute between the parties regarding the terms under which the judgment should be paid. Rule 67 therefore is an appropriate

mechanism for State Farm to deposit the disputed judgment with the Court. See, e.g., Siebrand v. Gossnell, 234 F.2d 81, 97 (9th Cir. 1956) (implicitly acknowledging that a disputed judgment might be deposited with the Court). 16. Moreover, by depositing the full amount of the judgment (plus interest and

without restrictions) with the Court, State Farm is entitled to have post judgment interest stop accruing. See, e.g., Kotsopoulos v. Asturia Shipping Co., S.A., 467 F.2d 91, 95 (2d Cir. 1972) (noting that interest stopped accruing on "the day the judgment debt was paid into the registry"). 17. As of today, February 13, 2006, the total amount of the judgment plus post

judgment interest is $135,888.46. The daily interest rate is $4.72, and State Farm acknowledges that such interest shall continue to accrue until it deposits the judgment amount with the Court. Accordingly, State Farm requests that the Court rule on this Motion in an expedited fashion. 18. Once State Farm has deposited the judgment amount with the Court, it will have

satisfied the obligation secured by the supersedeas bond. See Motion for Stay of Proceedings to Enforce Judgment (Feb. 9, 2004) at 2, ¶ 5. supersedeas bond at that time. WHEREFORE, Defendant State Farm Mutual Automobile Insurance Company respectfully requests that the Court enter an Order: (1) permitting State Farm to deposit the amount of the judgment, plus post judgment interest through the date of the deposit, with the Court; (2) terminating the further accrual of post judgment interest on the judgment; (3) finding, Accordingly, the Court should release the

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upon deposit of the funds with the Court, that State Farm will have satisfied its obligation to pay the judgment amount to Mr. Clark; (4) finding, upon deposit of the funds with the Court, that the Bond is no longer required; (5) ordering, upon deposit of the funds with the Court, that the Bond be fully and unconditionally discharged, released, and exonerated, and that State Farm Fire and Casualty Company be released from any and all past, present, and future liability in connection with issuance of the Bond; and (6) directing the Clerk of the Court, upon deposit of the funds with the Court, to release and deliver the original supersedeas bond to the undersigned counsel for State Farm. Respectfully submitted this 13th day of February, 2006.

s/ Michael S. McCarthy Michael S. McCarthy Mark W. Fischer Marie E. Williams FAEGRE & BENSON LLP 1700 Lincoln Street, Suite 3200 Denver, Colorado 80203 (303) 607-3500 Attorneys for Defendant State Farm Mutual Automobile Insurance Company

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of February, 2006, I electronically filed the foregoing EXPEDITED MOTION TO DEPOSIT FUNDS WITH COURT AND TO RELEASE SUPERSEDEAS BOND with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
· · ·

Robert Bruce Carey [email protected] [email protected] Leif Garrison [email protected] [email protected] Leo Daniel Rector [email protected] [email protected];[email protected]

s/ Michael S. McCarthy________________ Michael S. McCarthy
DNVR1:60333066.03

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