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

Case 1:04-cv-01187-PSF-MJW

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Filed 09/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01187-PSF-MJW SUSAN PENA, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and SUZANNE LIENING, Defendants.

DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE OUTRAGEOUS CONDUCT CLAIM

Defendants Travelers Property Casualty Company of America and Suzanne Liening, by and through their attorneys, Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., respectfully submit their Reply in Support of Motion for Summary Judgment on the Outrageous Conduct Claim as follows: 1. Plaintiff's Response Brief fails to meet the high threshold under Colorado law for This case is simply about whether Defendants

establishing an outrageous conduct claim.

engaged in bad faith by denying Plaintiff taxi vouchers for a period of five months during a sixyear period of taxi transportation to and from appointments during the pendency of the workers' compensation case. Plaintiff's claim that she missed an emergency psychiatric evaluation as a result of the taxi voucher issue is devoid of any evidentiary support. See Plaintiff's Response, at p. 3.

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2.

Indeed, Plaintiff fails to offer any evidence, either by affidavit, deposition,

answers to interrogatories, or admissions, to support her theory that Defendants interfered with her alleged need for emergency psychiatric treatment. See Plaintiff's response, at p. 3. Plaintiff did not produce an affidavit from herself or from any doctor to provide support for this serious claim. She did not do so because there is no evidence that Defendants' decision on the taxi vouchers affected Plaintiff's emergency psychiatric treatment. As the Tenth Circuit has recognized, unsubstantiated and conclusory allegations do not create an issue of fact. Eisken v. Network Multi-Family Sec. Corp., 49 F.3d 1470, 1475 (10th Cir. 1995). 3. Plaintiff relies on a decision, Rawson v. Sears Roebuck & Co., 530 F. Supp. 776

(D. Colo. 1982), in which the court dismissed an outrageous conduct claim. See Plaintiff's Response, at p. 5. In that decision, Senior Judge Kane recites several cases in which the courts dismissed outrageous conduct claims. Rawson, 530 F. Supp. at 779-780. In Rawson, the court stated "that there is a certain threshold level of conduct that must be established for the plaintiff to state a cause of action." Id. at 780. Judge Kane observed that the "cases finding no cause of action did not involve either patterns of conduct calculated to cause emotional distress or severe abuses of discretion by public officials." Id. (emphasis added). Rawson further noted that "very few fact situations give rise to a cognizable claim for intentional infliction of emotional distress . . . . It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Id.

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4.

Plaintiff's claim that Defendants engaged in a pattern of conduct to intentionally

or recklessly cause severe emotional distress is unavailing. See Plaintiff's Response, at p. 6. Again, Plaintiff fails to cite any affidavit, deposition testimony, answers to interrogatories, or admissions to support her position. Instead, she has cited to a few letters, claim notes, and medical records. This documentation, even if admissible, does not establish a claim of

outrageous conduct. These documents (Plaintiff's Exhibits 3-6) merely suggest that Defendants knew Plaintiff had ankle surgeries, was depressed, and that her doctor had requested transportation for her. See Plaintiff's Response, at p. 6. What these documents do not suggest, however, is that Defendants engaged in a pattern of conduct that either has intended to cause or recklessly did cause severe emotional distress. See id. Accordingly, Plaintiff cannot satisfy the high threshold recognized by state and federal courts for establishing a claim of outrageous conduct. Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 383 (10th Cir. 1988) (stating that the "defendant's conduct must be more than unreasonable, unkind or unfair; it must truly offend community notions of acceptable conduct."). 5. Plaintiff will have her day in court on her claim of bad faith to determine whether

Defendants' conduct was unreasonable, unkind, or unfair. As a matter of law, however, she should not be able to present her claim of outrageous conduct to the jury based on the evidence relied upon by Plaintiff in her response.

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Respectfully submitted on September 12, 2005, MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

s/ Erik Neusch Kevin F. Amatuzio Erik R. Neusch 475 17th Street, Suite 1600 Denver, Colorado 80202 Telephone: 303-592-6600 Facsimile: 303-592-666 e-mail [email protected] e-mail [email protected] ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that I did on the 12th day of September, 2005, serve a true and correct copy of the foregoing DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE OUTRAGEOUS CONDUCT CLAIM via the U.S. District Court ECF system to the following: Counsel for Plaintiff Marc Bendinelli, Esq. W. Joseph Lapham II Bendinelli Law Office, P.C. 11184 Huron Street, Suite 10 Denver, Colorado 80234

s/ Jacqueline Sims Barnes

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