Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S RULE 59 MOTIONS ______________________________________________________________________________ Plaintiff, by her attorneys, Dietze and Davis, P.C., respectfully submits the following Response to Defendant Lionbridge Technologies, Inc.'s Motion for New Trial Pursuant to Fed. R. Civ. P. 59(a), to Alter or Amend the Judgment Pursuant to Fed. R. Civ. P. 59(e), or for Remittitur. A. The Court properly ruled that Lionbridge could not argue that Plaintiff's failure to accept a demotion from Manager of Translation to Translator constituted a failure to mitigate her damages. In her pre-trial Legal Memoranda re Evidentiary Issues, Plaintiff argued that as a matter of law, Ms. DerKevorkian's refusal to accept an immediate demotion from Manager of Translation to Translator was not evidence of a failure to mitigate damages and that Lionbridge was not entitled to an instruction that the jury must find that Plaintiff had failed to mitigate her damages if it found that she had declined to accept the demotion. After hearing additional argument on this issue at trial, the Court ruled that Lionbridge was not entitled to such an instruction. Although Lionbridge now contends and complains that the Court based its decision on cases involving damages arising from wrongful discharge, the sole authority cited by Lionbridge on the

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bottom of its proposed mitigation of damages instruction was Fair v. Red Lion Inn, 943 P.2d 431(Colo.1997), a wrongful discharge case. It cited no other authority in its counsel's argument to the Court during trial. See Ex. A, pp. 311-316, attached to Lionbridge's Motion. Lionbridge agreed to sponsor Plaintiff for a green card in the position of Manager of Translation. See Exhibit 9. Consistent with this agreement, it subsequently applied for a prevailing wage determination for that specific position. Lionbridge did not, as it now suggests, merely agree to help Plaintiff get permanent resident status for "some" position. As a matter of law, the position of Translator was not substantially equivalent to the position of Manager of Translation. It carried a different title and there were substantial differences in job responsibilities, working conditions, and status. Thus, the question is whether Lionbridge, having breached its contract and its fiduciary duties, can avoid the consequences of those breaches because Ms. DerKevorkian declined to accept an undesirable position substantially different from the one for which Lionbridge agreed to sponsor her. Although this case does not involve a wrongful discharge, there is no reason to ignore the analysis applied in those types of situations. As here, the damages in those cases resulted from breach of a contract or other improper conduct and the question is under what circumstances an injured employee must accept alternate employment from the breaching party or from a third-party employer in order to lessen the damages. The courts have found a duty to accept such employment only when the alternative position is substantially equivalent to the one that was lost. Lionbridge does not explain why a different rule should apply in this context. It contends that Ms. DerKevorkian was an at-will employee1, but so was the employee in Red Lion. It also fails to Lionbridge states that "everyone concedes that plaintiff was an employee at-will." This is incorrect. Plaintiff denied a request for admission that she was an at-will employee and 2
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explain why an at-will employee who has been injured at the hands of an employer somehow should have a higher duty to mitigate than one who has suffered damages as a result of a wrongful discharge. Lionbridge argues that its position is supported by Plaintiff's testimony that she would have accepted a subsequent demotion, removal of her direct reports, different job title, etc. in an effort to solve the prevailing wage problem and move the process forward. However, Plaintiff was not required to make these suggestions. She did so out of desperation, after Lionbridge refused to file for the green card. Ms. DerKevorkian's voluntary and quite reasonable proposal of various solutions cannot now be held against her by arguing that her willingness to accept certain changes means that she failed to mitigate her damages by declining to accept the much more harmful and drastic suggestion of an immediate demotion to a substantially different and lesser position. If Lionbridge had proposed the removal of direct reports or the change in title to Translation Supervisor and Plaintiff had rejected this suggestion, a failure to mitigate damages instruction likely would have been proper, since the modified position might have been viewed as substantially equivalent to the prior one. However, that is not what happened here. The Court properly found that the undisputed evidence demonstrated that the Translator position was not substantially equivalent to the job of Translation Manager. Lionbridge claims that the lack of an instruction on this issue was prejudicial, allegedly because much of its trial evidence concerned this point and the jury had no way to account for Plaintiff's refusal to accept the translator position. This is incorrect. The evidence was considered on the issue of liability for both breach of contract and breach of fiduciary duty.

argued in her response to Lionbridge's summary judgment motion that her application for and acceptance into the Permanent Resident Program altered the normal at-will relationship. 3

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On the claim of breach of contract, Instruction No. 4 stated that Plaintiff had to prove that Lionbridge "failed to assist and support plaintiff in the process of applying for permanent resident status." Therefore, the jury could have determined that Lionbridge's contractual obligation was merely to assist in getting a green card for "some" position and that it did all that was required when it offered to proceed with the process if Plaintiff accepted an immediate demotion to translator. On the claim of breach of fiduciary duty, Instruction No. 13 set forth the fiduciary duties owed to Plaintiff. The jury could have found that Lionbridge complied with these duties by offering to file the application if Plaintiff accepted an immediate demotion. The undersigned has not seen the transcript of the trial, but believes that Lionbridge's trial counsel asserted these positions in his closing argument. Lionbridge's proposed jury instruction on mitigation of damages stated, "This affirmative defense is proved if you find the following has been proved by a preponderance of the evidence: Isabelle DerKevorkian refused to accept an offer from Lionbridge for a translator position." Since it was undisputed that Plaintiff did not accept this offer, this instruction essentially would have directed the jury to find that she had failed to mitigate her damages. Lionbridge now argues that the jury should have been permitted to weigh whether Ms. DerKevorkian made "reasonable effort" to avoid her damages and whether acceptance of a demotion would have been "appropriate in the circumstances" or would have involved "undue risk, burden, or humiliation." considerations were not included in Lionbridge's proposed instruction. A trial court may refuse an instruction that contains an incorrect statement of the law. U.S. v. Quarrell, 310 F.3d 664, 676(10th Cir. 2002); People v. Tweedy, 126 P.3d 303, 307 (Colo. 2005). Lionbridge's tendered instruction was an incorrect statement of the law, since the mere fact that Plaintiff refused an immediate demotion does not constitute a failure to mitigate. Even under 4 But these

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Lionbridge's current argument, the jury could find that Plaintiff failed to mitigate her damages only if it determined that the evidence proved that acceptance of an immediate demotion was reasonable and appropriate under the circumstances. Since Lionbridge failed to tender an instruction correctly stating the law (as it believes it to be), it cannot now complain that the jury was not properly instructed, even assuming that its position on the issue is correct. The admission or exclusion of a particular jury instruction is within the sound discretion of the trial court. City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th Cir.1996). This Court properly exercised its discretion. Also, it correctly ruled that Plaintiff's failure to accept an immediate demotion to translator did not constitute a failure to mitigate damages. B. Breach of Fiduciary Duty 1. The Court properly ruled, in its January 26, 2006 Order on Lionbridge's Motion for Summary Judgment, that Plaintiff's Fourth Claim for Relief for Breach of Fiduciary Duty was not barred by the Economic Loss Doctrine.

The economic loss rule holds that, where a party suffers only economic loss from the breach of an express or implied contractual duty, it may not assert an additional tort claim, absent the existence of an independent duty of care under tort law. Town of Alma v. AZCO Construction, Inc., 10 P.3d 1256 (Colo. 2000). When non-economic damages are pleaded and proved and an independent duty exists under tort law, a damage award in tort is sustainable. Parr v. Triple L&J Corp., 107 P.3d 1104, 1109 (Colo. App. 2004). In its Order of January 26, 2006, the Court stated: Colorado's economic loss rule is not applicable here, however, because I have determined that Plaintiff has adequately stated facts to support a finding of an independent fiduciary duty. See e.g. A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862, 866 (Colo. 2005)(finding the economic loss rule inapplicable due to an independent duty owed by builders to homeowners). 5

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Order of January 26, 2006 at 14.2

Based upon the evidence, the jury determined that a fiduciary

relationship existed between Plaintiff and Lionbridge. As a matter of law, this fiduciary relationship gave rise to an independent duty. The jury determined that this duty was breached by Lionbridge. A wealth of evidence supports these findings. As such, the Economic Loss Rule does not bar Plaintiff's tort claim. 2. The Court properly submitted the claim of breach of fiduciary duty to the jury. Even if there was an error, it was invited. a. Any error was invited by Lionbridge.

Lionbridge argues that the fiduciary relationship already must be in existence at the time of the transaction in question. It did not make this argument in its March 23, 2005 motion for summary judgment. Rather, it argued that its sponsorship of Plaintiff under the Permanent Resident Program did not create a confidential relationship. See Memorandum Brief in Support of Defendant's Motion for Summary Judgment at 11-12. Before trial, Lionbridge submitted a jury instruction based on C.J.I. Civil 4th 26:3, adding only the work "primarily" to the fourth element for proof of a confidential relationship. This instruction (No. 12) was given as tendered. Lionbridge did not object to the lack of any language requiring that the fiduciary relationship be in existence at the time Plaintiff was accepted into the Permanent Resident Program and it did not tender an instruction setting forth what it now claims to be the law. At the very least, had Lionbridge raised this question before the jury was instructed, the jury could have been asked to determine whether a confidential relationship existed prior to Lionbridge's sponsorship of Plaintiff (see discussion below). If in fact such a requirement exists, this was invited
2

This Order is attached as Exhibit B to Lionbridge's Motion. 6

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error. The invited error doctrine "prevents a party who induces an erroneous ruling from being able to have it set aside on appeal." United States v. Burson, 952 F.2d 1196, 1203 (10th Cir. 1991). It is well established that an appellant may not generally complain on appeal of errors he has himself induced or invited. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996); Gundy v. United States, 728 F.2d 484, 488 (10th Cir. 1984); See also, Koch v. Koch Industries, Inc. 203 F.3d 1202 (10th Cir. 2000)(as a result of invited error, the trial court improperly required evidence of "firm plans" instead of "making plans" in summary judgment ruling). Lionbridge cannot now be permitted to assert this new argument and ask for a new trial when it had every opportunity to avoid any perceived error at the first trial. b. There was a confidential or fiduciary relationship before Lionbridge accepted Plaintiff into the Permanent Resident Program.

From the time she was hired by Lionbridge's predecessor ILE in 1997, Plaintiff was completely dependent upon the company for her ability to live and work in the United States. The company obtained a J-1 Visa, allowing her to work as an intern. When she was hired as a full-time translator, the company retained an attorney to obtain an H1-B Visa. This process was handled entirely by the attorney and Lionbridge's Visa Liaison at the time, Jenni Tymkovich. Ms. DerKevorkian played no role in the process. The attorney's letter describing the process was sent to Ms. Tymkovich, but not to Plaintiff. See Exhibit 2.3 When the initial three-year term of the H1-B Visa expired, Plaintiff could not remain in the country without an extension. Lionbridge obtained one. Again, this process was controlled entirely

In fact, the last page of this letter suggests that Ms. Tymkovich "share this letter and discuss these issues with your corporate attorney." A discussion with the employee is not even mentioned. 7

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by the company. When Plaintiff wanted to temporarily leave the country, Lionbridge filed the appropriate paperwork to enable her to return. See Exhibits 5, 6, 7, 8. When Lionbridge promoted Plaintiff to Manager of Translation, it was supposed to report this fact to the government. The failure to provide such information was a violation of regulation and presumably could jeopardize the employee's status and ability to remain in the country. This too was entirely in the hands of Lionbridge. Ms. DerKervorkian's right to continue to live and work in the United States after October 1, 2003 also was dependent upon Lionbridge, since a green card application could be filed only if she had a job and a sponsor. Participation in the Permanent Resident Program was predicated upon a "high level of commitment and loyalty to the company" (emphasis original). See Exhibit 1. This demonstrated high level of commitment and loyalty itself distinguishes this from other employment relationships. Finally, although Lionbridge's complete control of the green card process obviously occurred after Plaintiff entered the Permanent Resident Program, it provides additional evidence of the type of relationship that existed before sponsorship was granted. The lives and livelihood of the other immigrant employees were similarly controlled by Lionbridge. Had Ms. DerKevorkian or any of the other employees been terminated, their right to stay in the United States would have been eliminated or placed in serious jeopardy. This was not a run-of-the-mill employment relationship. Rather, it was a fiduciary or confidential relationship, affording Lionbridge the power and means to take undue advantage over the employee. Rosales v. v. AT & T Information Systems, 702 F. Supp. 1489, 1498 (D. Colo. 1988), citing Security Nat. Bank v. Peters, Writer & Christiansen, Inc., 569 P.2d 875, 880 (Colo. App. 1987). Here, this power ultimately placed Ms. DerKevorkian in the horrible position of having to

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choose between an immediate demotion and having to leave the country after her Visa expired. This relationship pre-existed Plaintiff's acceptance into the Permanent Resident Program. Had this issue been presented at trial and had the Court agreed with Lionbridge's position, the jury could have been asked to determine whether a fiduciary or confidential relationship existed at the time Plaintiff was accepted for sponsorship. But the evidence relating to the nature and history of the long-term relationship between this immigrant employee and her employer is undisputed. As a matter of law, there was a pre-existing fiduciary or confidential relationship between Ms. DerKevorkian and Lionbridge. 3. The verdict on the breach of fiduciary duty claim was fully supported by and not against the clear weight of the evidence.

Despite Lionbridge's argument to the contrary, the fact that Plaintiff sought information about the process and ultimately did some research and contacted an attorney4 does not mean that she did not place trust in Lionbridge. She certainly had lost that trust by mid-September 2002, but it was there from the fall of 2001 to late summer 2002. Actually, she had no choice but to trust Lionbridge and its attorney, since under the terms of the Permanent Resident Program (Exhibit 1), she surrendered all control over the process. In fact, her effort to keep informed was thwarted by Lionbridge, which instructed its attorney in June 2002 not to engage in further direct communications with Plaintiff. C. Plaintiff agrees that the award of non-economic damages must be capped. However, non-economic damages should only be reduced to $732,500. Further, pre-judgment interest must be calculated on the $1,000,000 awarded by the jury, rather than on the capped amount.
4

The evidence established that she did not contact an attorney until October or November 2002, after Lionbridge had refused to proceed forward unless she agreed to an immediate demotion. By that time, it already was too late to avoid loss of her job after October 1, 2003, even if Lionbridge had changed its position and filed for the green card. 9

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1.

Non-economic damages should be capped at $732,500.

C.R.S. §13-21-102.5(3)(a) provides: (3) (a) In any civil action other than medical malpractice actions in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of noneconomic loss or injury damages exceed five hundred thousand dollars. The damages for noneconomic loss or injury in a medical malpractice action shall not exceed the limitations on noneconomic loss or injury specified in section 13-64-302. (emphasis added). The $250,000 and $500,000 limits set forth in the statute have been increased to $366,250 and $732,500. See Exhibit C to Lionbridge's Motion. Plaintiff agrees that the statute is applicable. However, she believes that there is clear and convincing evidence providing justification for an increase in the cap. A reduction to $366,250 would deprive her of $633,750 of compensation for the damages that the jury found she suffered as a result of Lionbridge's conduct. Plaintiff recognizes that this Court previously has stated that the "clear and convincing" standard allows the court to exceed the cap only in extreme circumstances and that legislative history demonstrates that the clear and convincing exception is intended as a "relief value" in cases involving "seriously or desperately" injured plaintiffs. James v. Coors Brewing Co., 73 F.Supp.2d 1250, 1253 (D.Colo. 1999), citing General Elec. Co. v. Niemet, 866 P.2d 1361, 1365 (Colo. 1994) (quoting Senate Floor Debate on S.B. 67 Before the Full Senate, 55th Gen. Assembly, 2d Reg. Sess., 2d Reading (Audio Tape 86-14, Feb. 25, 1986)).5 The "relief value" and "seriously or desperately" language is found in the quoted comments of Senator Meikeljohn, who was concerned about the

General Elec. Co. v. Niemet, supra, did not involve an application of the clear and convincing exception. Rather, the issue in that case pertained to the relation between the statutory cap on non-economic damages and the pro-rata liability statute. 10

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fairness of imposing a "cold-hearted limit" "no matter how seriously or desperately a person was injured." The Colorado Supreme Court described the legislative intent as follows: The final amended legislation balanced the concern over insurance affordability and predictability with concern for fairness to seriously injured people. The intent was to cap the amount of noneconomic damages paid by individual defendants, in order to increase predictability for insurance companies, while at the same time not restricting the recovery of noneconomic damages by seriously injured persons more than was necessary to accomplish the goal of insurance predictability. (emphasis added) Id. at 1365-66. Thus, it could be said that the clear and convincing exception is limited to cases of "serious" injury. But regardless of the adjective used to describe the injury for which the jury awarded compensation, the question is simply whether, by clear and convincing evidence, an award of an amount above the lower cap is justified in order to provide fair compensation for all the damages suffered by the injured party. Ms. DerKevorkian suffered a serious injury, as reflected in the jury's award of $1,000,000. She had dreamed of living in the United States since she was a girl. She came to work in this country in 1997 and later that year secured a job in Boulder. She dedicated herself to the company, working long hours and frequently volunteering for projects and performing other tasks outside of her assigned duties. She had "a high level of commitment and loyalty" to Lionbridge.

Boulder became her home. She and her boyfriend purchased and moved into a house. Her friends lived in Colorado and she had spent her entire professional life in the United States. This country was her home and Ms. DerKevorkian applied for Lionbridge's Permanent Resident Program so that she could live and work here indefinitely. Ultimately, her sights were set on becoming a United States citizen. After being accepted into the program with a glowing recommendation from her boss and after diligently and promptly providing the Visa Liaison and the attorney with everything they 11

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requested, Ms. DerKevorkian waited. She was kept in the dark and misled about the extent of the prevailing wage problem. She was denied access to the attorney. During the summer of 2002, she became increasingly worried about the lack of progress and whether the process would proceed far enough to enable her to remain in the country while the green card application was pending. When Lionbridge finally told her the nature of the problem in mid-September 2002, only a couple of weeks remained before the application had to be filed in order to allow her to stay beyond October 1, 2003. She started to panic. She made numerous suggestions to Lionbridge of ways around the prevailing wage problem - including options that had been utilized for other Lionbridge employees. All her ideas were refused. Lionbridge gave her one option - demotion to translator a position she held when she first started with ILE in 1997. This put her in the horrible position of having to choose between a career-damaging demotion to a job she did not want and leaving the country and her home after her Visa expired. When Ms. DerKevorkian expressed her frustrations, Lionbridge unjustifiably placed her on a performance improvement plan, which in part was based on her expressions of frustration over the company's mishandling of the green card process. The PIP also criticized her management style, which had been subject to some comment in the past, but which never before had led to any disciplinary action. The PIP threatened her with termination. Since her ability to live in the United States was dependent upon her H-1B Visa and since that Visa was dependent upon employment with Lionbridge, she knew that termination of employment would have required her to leave the country. Ms. DerKervorkian loved her job and working with her co-workers. She was forced to resign her position on October 1, 2003, when her visa expired. She received numerous emails and communications from her co-workers and customers, telling her how much they enjoyed working with her and how much they would miss her. She now was out of work, but was able to stay in the 12

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United States on a tourist visa until early February 2004, when she had to leave the country and return to France. She left behind her long-time boyfriend, her friends, her house, and her home. Upon her return to France, Ms. DerKevorkian had live with relatives, bouncing around from house to house. She could not find full-time employment. It appeared that she had landed a job with Lionbridge in Europe, but the company changed its mind after the lawsuit was filed. She spent hundreds of hours looking for work, but her skills were most valuable in the United States, where she was prohibited from working or living. Ms. DerKervorkian became significantly depressed and had to see a psychologist. She took anti-depressants and anti-anxiety pills. Many days, she could hardly get out of bed. Her personality changed, from one who likes to have fun to one who is withdrawn. She lost her self-confidence and found it difficult to make decisions. She described herself as a "ghost." Ms. DerKevorkian came back to this country a couple times for purposes of this case. While here, she tried to salvage the important relationships that she had formed when she was living here. In late 2001, she was on a path to permanent residence and ultimately United States citizenship. Now, she now must start over.6 The question is whether there is justification for finding that $366,250 is insufficient to compensate Ms. DerKevorkian for the enormous distress and suffering and manifest loss of enjoyment of life. It is respectfully submitted that it is not. Plaintiff requests that the damages be capped at $732,500, which still deprives her of $267,500 of the awarded compensation. 2. Pre-judgment interest under C.R.S. §13-21-101(1) must be calculated on the $1,000,000 jury award rather than on the capped amount.

The number of H1-B Visas has been significantly reduced since 9-11, thus making it more difficult to find employment in the United States. The undersigned thinks that there was testimony on this issue, but does not recall specifically. 13

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C.R.S. §13-21-101(1) provides: (1) In all actions brought to recover damages for personal injuries sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, ...... it is lawful for the plaintiff in the complaint to claim interest on the damages alleged from the date said suit is filed; and, on and after July 1, 1979, it is lawful for the plaintiff in the complaint to claim interest on the damages claimed from the date the action accrued. When such interest is so claimed, it is the duty of the court in entering judgment for the plaintiff in such action to add to the amount of damages assessed by the verdict of the jury, or found by the court, interest on such amount calculated at the rate of nine percent per annum on actions filed on or after July 1, 1975, ........, and calculated from the date such suit was filed to the date of satisfying the judgment and to include the same in said judgment as a part thereof. On actions filed on or after July 1, 1979, the calculation shall include compounding of interest annually from the date such suit was filed. ....... (emphasis added). Although the $1,000,000 in non-economic damages will be reduced pursuant to C.R.S. §1321-102.5(3)(a), pre-judgment interest must be calculated on the full amount awarded by the jury. Goodwin v. Morris, ____ P.3d ____ (Colo. App. 2006)(decided August 10, 2006). In Goodwin, the jury awarded non-economic damages of $1,116,500. Since the defendant was a physician, noneconomic damages were reduced to $250,000 pursuant to the Colorado Health Care Availability Act (HCAA), C.R.S. §13-64-302(1)(b). The trial court awarded pre-judgment interest under C.R.S. §1321-101(1) on the capped amount and plaintiff appealed. The Court of Appeals found that the plain language of C.R.S. §13-21-101(1) required that interest be based on the amount of damages awarded by the jury. Although Goodwin relates to a claim under HCAA, the same result should apply here. Both C.R.S. §13-21-102.5(3)(a) and C.R.S. §13-64-302(1)(b) provide for caps on non-economic damages and in both instances, C.R.S. §13-21-101(1) governs the award of pre-judgment interest on damages

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for personal injury. Therefore, Plaintiff is entitled to pre-judgment interest on the $1,000,000 in non-economic damages awarded by the jury.7 D. The Court properly ruled, in its January 26, 2006 Order on Lionbridge's Motion for Summary Judgment, that Plaintiff's Fourth Claim for Relief for Breach of Fiduciary Duty is not barred by the Colorado Workers' Compensation Act. Lionbridge's argument on this issue does not provide any basis for reversal of that ruling. Lionbridge's motion for summary judgment argued that Plaintiff's tort claim for breach of fiduciary duty was barred by the exclusivity provisions of the Colorado Worker's Compensation Act.

This argument was rejected by this Court in its Order of January 26, 2006: Worker's Compensation Act I also reject Lionbridge's argument that Plaintiff's tort claims are barred by the exclusivity provisions of the Colorado Worker's Compensation Act. Claims to injuries to economic interests and harm affecting a proprietary or financial interest are not "personal injuries"within the purview of the Worker's Compensation Act. See Serna v. Kingston Enterprises, 72 P.3d 376, 379 (Colo. App. 2002)(under the Act, an employee does not surrender any cause of action for injuries apart from "personal injuries," which are defined as "job-related physical or mental injuries of an employee"); C.R.S. §8-41-104 (under the Act an employee surrenders "any cause of action, action at law, suit in equity, or statutory or common-law right, remedy or proceeding for or on account of [his or her] personal injuries or death"). Order of January 26, 2006 at 14-15.

It appears that this same conclusion was reached by the Court in Price v. Wilson Sporting Goods Co., 2006 WL 1409519 (D. Colo. 2006) (decided May 23, 2006) (no discussion of issue in decision, but it appears that interest under C.R.S. §13-21-101(1) was awarded on the full amount of non-economic damages, rather than on the capped amount). 15

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Despite this ruling, Lionbridge now contends that Plaintiff's request for interest under the C.R.S. §13-21-101(1) constitutes an admission that she suffered personal injuries and that claims for personal injuries during employment are governed exclusively by the Colorado Worker's Compensation Act. Lionbridge's position is defeated by language of the Act and by the cases construing it. C.R.S. §8-41-102 provides that complying employers are not liable for the death of or personal injury to any employee, except as provided in the Act. The meaning of the term "personal injury" in C.R.S. §8-41-102 may be discerned from the type of injuries for which the Act provides a remedy. Serna v. Kingston Enterprises, 72 P.3d 376, 379 (Colo. App. 2002). If an injury is not compensable under the Act, a tort action is not barred. In re Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, 759 P.2d 17, 20 (Colo.1988) ("If we conclude that (employee's) injury is not compensable under the Act, then her tort action against (employer) is not barred").

C.R.S. §8-41-301 sets forth the conditions of recovery of compensation under the Act. C.R.S. §8-41-301. Conditions of recovery. (1) The right to the compensation provided for in articles 40 to 47 of this title, in lieu of any other liability to any person for any personal injury or death resulting therefrom, shall obtain in all cases where the following conditions occur: (a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance; (b) Where, at the time of the injury, the employee is performing service arising out of and in the course of the employee's employment;

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(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment and is not intentionally self-inflicted. (emphasis added). Under this statute, compensation for personal injury or death is provided only when the personal injury or death "is proximately caused by an injury or occupational disease." Therefore, the personal injury must be caused by an "injury or occupational disease." This is consistent with the legislative purpose that the Act be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to injured workers...." C.R.S. §8-40-102(1). See also Claimants in re Kohler v. Industrial Commission, 671 P.2d 1002, 1005-6 (Colo. App. 1983) ("The purpose of the act is to provide monetary relief to employees, who while performing services for the employer, suffer disability or death as a result of an accident or injury arising out of and in the course of their employment") (emphasis added). An "accident" means an unforseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause being known, an unprecedented consequence of it. C.R.S. §8-40201(1). "Accident", "injury", or "injuries" includes disability or death resulting from accident or occupational disease. C.R.S. §8-40-201(2). Under these provisions, only those personal injuries resulting from an accident, injury, or occupational disease are governed by the Act. Ms. DerKevorkian's injuries were not caused by accident, injury, or occupational disease. As such, C.R.S. §8-41-301 does not provide her with a right to compensation under the Act in lieu of any other remedy. C.R.S. §8-41-301(1)(c) also requires that the injury or occupational disease that is the cause of the death or personal injury arise out of and in the course of the employee's employment. An

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accident "arises out of" employment when there is a causal connection between the work conditions and the injury. In re Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, supra, at 20. For an injury to be compensable under the Act, there must be a sufficient nexus between the employment and the injury. Id. Ms. DerKevorkian's non-economic injuries were not caused by the work conditions associated with her job as Manager of Translation. There was no nexus between her performance of her job duties and her non-economic injuries. Not only do Plaintiff's non-economic injuries fail to meet the requirements of C.R.S. §8-41301(1)(c), her injuries are not even the type of "personal injury" for which compensation is available under C.R.S. §8-41-301. Serna v. Kingston Enterprises, supra, referred to the statement in 3 Larson's Workers' Compensation Law ch. 55 at 55-1 (2002) that " 'Personal injury' includes any harmful change in the body." (emphasis added) Id. at 379. There was no evidence that Ms. DerKevorkian suffered any harmful change in or to her body during her employment or at any time thereafter. All the cases cited by Lionbridge in its present motion and in its earlier summary judgment brief involved physical or mental injuries resulting from harm to the worker's person. The non-applicability of the Act to Plaintiff's injuries is further demonstrated by the provisions relating to mental impairment found in C.R.S. §8-41-301(2)(a). (2) (a) A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), "mental impairment" means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. The mental impairment that is the basis of the claim shall have arisen primarily from the claimant's then occupation and place of employment in order to be compensable. 18

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(emphasis added). Ms. DerKevorkian did not suffer a "mental impairment" and therefore would not be entitled to compensation under the Act, even assuming the requirements of C.R.S. §8-41301(1)(c) had been met. But C.R.S. §8-41-301(2)(a) is probative because it indicates that compensation for such mental injuries is limited to those caused by an accident and arising primarily from the claimant's then occupation. As noted above, Ms. DerKevorkian's injuries were not caused by an accident. Lionbridge's conduct was purposeful. Further, her emotional injuries arose not from her occupation as Manager of Translation, but from Lionbridge's conduct with respect to the process of applying for permanent resident status.8 Lionbridge's mishandling of the green card process is more akin to the type of management actions (demotion, termination, etc.) that are described in C.R.S. §8-41-301(2)(a) and which do not give rise to a claim for compensation under the Act. As this Court already has ruled, Plaintiff's claim for non-economic injuries is not barred by the exclusivity provisions of the Colorado Worker's Compensation Act. E. Economic Damages Lionbridge contends that $83,000 per year was the highest compensation that anyone suggested and that this supports an award of only $172,918 for Ms. DerKevorkian's 25 months of effective unemployment. This $83,000 figure represents a salary within 5% of the $87,922 prevailing wage for "Managers, All Other." See Exhibit 53. But the State of Colorado did not place

Clearly, permanent resident status was not part of the job description or requirements for the position of Manager of Translation, since Plaintiff held that position for two and a half years without a green card. The lack of connection between the green card process and Plaintiff's then occupation is further demonstrated by the fact that Lionbridge offered to continue the process if Plaintiff accepted a different occupation - translator - and by the fact that Sharryn Ross testified that Plaintiff could have quit her employment with Lionbridge after the green card application had been filed and then transferred her application to a new employer. 19

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her in that category. The category in which she was placed was "General and Operations Managers," which had a prevailing wage of $106,288. See Exhibit 52. Had Lionbridge proceeded to file the green card application by paying her the prevailing wage for the category in which she was placed, she would have received wages of $221,433 over that 25 month period.. In addition, Plaintiff's compensation from employment, was not limited to wages. She also received benefits. See Exhibit 30. She also testified that her loss of employment and departure from the country adversely affected her Social Security and retirement. Damages need not be computed with "mathematical certainty" and recovery will not be denied where the evidence affords a reasonable basis for estimating a plaintiff's loss. In reviewing a jury's award of damages, the court should sustain the award unless it is clearly erroneous or there is no evidence to support the award. Hudson v. Smith, 618 F.2d 642, 646 (10th Cir. 1980); Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324 (10th Cir. 1996). Although it is unknown how the jury came up with its award of economic damages, it cannot be said that the amount is clearly erroneous and unsupported by the evidence. Dated this 16th day of January, 2007. Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian 20

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CERTIFICATE OF SERVICE I hereby certify that on January 16, 2007, 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 email addresses: 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] Michael James Hofmann [email protected] [email protected] David Bruce Wilson [email protected] [email protected] By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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