Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cv-1160-LTB-CBS Isabelle DerKevorkian, Plaintiff, v. Lionbridge Technologies, Inc. d/b/a Lionbridge US, Inc., et al., Defendants. DEFENDANT LIONBRIDGE TECHNOLOGIES, INC.'S RESPONSE IN PARTIAL OPPOSITION TO PLAINTIFF'S MOTION TO ALTER OR AMEND THE JUDGMENT Defendant Lionbridge Technologies, Inc. ("Lionbridge") respectfully submits this Response in Partial Opposition to Plaintiff's Motion to Alter or Amend the Judgment. I. Introduction and Summary Plaintiff argues in her motion (pp. 1-2) that her fiduciary duty claim is a tort claim for personal injuries caused by her fellow employees during and in connection with her employment with Lionbridge, but it does not follow that the Court may award the personal injury rate of interest. To the contrary, Colorado law expressly forbids awarding plaintiff "any method, form, or amount of compensation ... for or on account of such personal injuries[.]" C.R.S. § 8-41-104 (emphasis added); Serna v. Kingston Enter., 72 P.3d 376, 379 (Colo. Ct. App. 2002). Prejudgment interest is a form of compensation, see, e.g., City of Milwaukee v. Nat'l Gypsum Co., 515 U.S 189, 195 (1995), and so its award is preempted by Colorado law, just like the noneconomic damages in this case. For that reason, plaintiff's motion to amend the judgment to

#1217808 v1

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 2 of 6

apply the personal injury interest rate should be denied, and no interest should be awarded on her non-economic damages. As for the economic damages, plaintiff argues that the accrual date for interest on the economic damages should be October 1, 2003 (the actual date plaintiff ceased to be a Lionbridge employee), and that C.R.S. § 5-12-102 requires annual compounding of that amount. Lionbridge agrees, and does not oppose the portion of plaintiff's motion that asks to amend the accrual date and to compound annually the pre-judgment interest on her economic damages. In agreeing that this is what Colorado law provides, Lionbridge does so without prejudice to its pending motion for a new trial or remittitur on plaintiff's economic damages. II. Statement of Facts Relevant to the Motion The jury awarded plaintiff economic damages of $313,570.20 on her breach of contract claim and $1,000,000 for emotional distress on the breach of fiduciary duty claim. Both claims are based on plaintiff's contention that Lionbridge, her employer, had a contractual obligation to "support and assist" her efforts to gain permanent residency status in the United States. The Court's judgment awarded pre-judgment interest at the rate of 8% from January 1, 2004 to December 7, 2006. See Judgment, Doc. No. 125, filed 12-11-06, p. 4. The Court awarded 8% pre-judgment interest on the entire amount that the jury awarded. Id. The Court started the interest running on January 1, 2004 because it thought that this was the date on which plaintiff terminated employment with Lionbridge. Id. On December 26, 2006, plaintiff moved to alter or amend the judgment. See Motion to Alter or Amend the Judgment ("Motion to Alter"), Doc. No. 126, filed 12-26-06. On her economic damages, plaintiff asks for interest to run from October 1, 2003 (the date plaintiff

2
#1217808 v1

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 3 of 6

resigned) and for interest to be compounded annually on October 1 of 2004, 2005, and 2006. Motion to Alter, p. 3. On her non-economic damages, plaintiff asks the Court to modify the judgment to apply the interest rate that applies to "damages for personal injuries from or occasioned by the tort of any other person[.]" Motion to Alter, pp. 1 ­ 2, ¶ 1 (citing and quoting C.R.S. § 13-21-101(1)). According to plaintiff, her claim for breach of fiduciary duty -- the tort that allegedly caused her these personal injuries -- had accrued by October 1, 2002, a full year before she left Lionbridge's employ. Id., p. 2, ¶ 2. That is, under plaintiff's own view, she suffered personal injuries from a tort inflicted by her co-employees arising out of and in the course of her employment. III. Argument A. The Court Should Not Award Any Pre-Judgment Interest on the Personal Injury Award.

Plaintiff is right that Colorado law requires 9% pre-judgment interest on damage awards for personal injuries caused by the torts of "any other person." See C.R.S. § 13-21-101(1). Plaintiff is also right that her fiduciary duty claim is a tort claim for personal injury. See Motion to Alter, pp. 1 ­ 2, ¶ 1. Finally, plaintiff is right that this claim accrued during her employment with Lionbridge. Id., p. 2, ¶ 2. But Plaintiff is wrong that she is entitled to pre-judgment interest on the personal injury damages awarded to her. Under Colorado law, worker's compensation is the exclusive remedy for personal injuries arising out of employment and caused by the acts or omissions of coemployees. Triad Painting Co. v. Blair, 812 P.2d 638, 641 ­ 642 (Colo. 1991) (holding that injuries incurring "in the course of" and "arising out of" employment are covered by the Workers' Compensation Act). Here, plaintiff was eligible to participate in the residency program because she was a Lionbridge employee and because Lionbridge wanted her to remain

3
#1217808 v1

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 4 of 6

so; she agreed to remain employed at Lionbridge in exchange for participation in the program; and her fellow Lionbridge employees allegedly mishandled the application process and by so doing allegedly injured her. Plaintiff's injuries thus occurred "in the course of" and "arose out of" her employment, and they were "personal injuries" within the meaning of the Act. Accordingly, Colorado law bars pre-judgment interest on plaintiff's non-economic damages. Because plaintiff's tort damages are within the scope of the Act, no pre-judgment interest should be awarded on those damages. Colorado law forbids awarding plaintiff "any method, form, or amount of compensation ... for or on account of such personal injuries[.]" C.R.S. § 8-41-104. Pre-judgment interest is a "method, form, or amount of compensation." See, e.g., City of Milwaukee, 515 U.S. at 195 ("The essential rationale for awarding pre-judgment interest is to ensure that an injured party is fully compensated for its loss."); Johnson v. Continental Airlines Corp., 964 F.2d 1059, 1062 (10th Cir. 1992) ("Courts have long characterized pre-judgment interest as an element of [plaintiff's] complete compensation.") (citation and quotation omitted; alteration in the original). See also Great Lakes Dredge & Dock Co. v. City of Chicago, 260 F.3d 789, 796 (7th Cir. 2001) (Easterbrook, J.) ("Pre-judgment interest is an aspect of full compensation[.]"). In sum, the Court should deny the motion to alter or amend the judgment to apply the 9% pre-judgment interest rate applicable to personal injury damages. No pre-judgment interest should be awarded on the non-economic damages, and the judgment should be amended accordingly. Because the issue of the proper interest award (if any) was opened by plaintiff's motion, the Court may make any amendment in the judgment necessary to conform the judgment to law. See Varley v. Tampax, Inc., 855 F.2d 696, 699 (10th Cir. 1988) (holding that, when a

4
#1217808 v1

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 5 of 6

Rule 59 motion is filed, the district court has "the power and jurisdiction to amend the judgment for any reason[.]"). B. Without Prejudice to Its Rule 59 Motion, Lionbridge Does Not Oppose the Requested Amendment Regarding Interest on the Economic Damages Awarded in the Judgment.

Plaintiff also moves to (1) change to October 1, 2003, the starting date for pre-judgment interest on the economic damages and (2) to compound the interest annually on October 1, 2004, 2005, and 2006. See Motion to Alter, p. 3. Without prejudice to its pending Rule 59 motion that no award of economic damages is proper, or that a remittitur should be ordered, Lionbridge does not oppose these amendments. IV. Conclusion For the reasons stated, the judgment should be amended to eliminate any award of prejudgment interest on the non-economic damages, and plaintiff's motion for interest at the 9% personal injury rate should be denied. Without prejudice to its pending Rule 59 motion, Lionbridge does not oppose the relief that plaintiff seeks regarding the accrual date and compounding of pre-judgment interest on the economic damages. Respectfully submitted this 16th day of January, 2007.

s/ Michael J. Hofmann_________ David B. Wilson Michael J. Hofmann HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 Email: [email protected]; [email protected] Attorneys for Lionbridge Technologies, Inc.

5
#1217808 v1

Case 1:04-cv-01160-LTB-CBS

Document 138

Filed 01/16/2007

Page 6 of 6

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 16th day of January, 2007, I electronically filed the foregoing RESPONSE IN PARTIAL OPPOSITION TO PLAINTIFF'S MOTION TO ALTER OR AMEND THE JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Joel C. Maguire [email protected] Attorneys for Plaintiff John Edwin Bolmer, II [email protected] [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected]

s/Jackie A. Delay

6
#1217808 v1