Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

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Filed 07/18/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1070-PSF-PAC DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico corporation, and ROSS A. REED, Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION IN LIMINE RE: EXCLUSION OF TESTIMONY OF DENISE KIMSEY
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COME NOW the Defendants, Overright Trucking, Inc., a New Mexico corporation (hereinafter "Overright") and Ross A. Reed, by and through their attorneys of record, Wittman & McCord, and for their Response to Plaintiffs' Motion in Limine RE: Exclusion of Testimony of Denise Kimsey, state as follows: RESPONSE TO MOTION IN LIMINE RE: EXCLUSION OF TESTIMONY OF DENISE KIMSEY This is a matter in which Plaintiffs assert as to damages in Paragraph 10 of their Complaint: 10. The resulting damages to Plaintiffs' home has resulted in such significant and substantial damages as to exceed the diversity jurisdictional minimum of $75,000.00; has forced the Plaintiffs into a temporary trailer as their residence; forced the Plaintiffs to place their personal property in various

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locations

of

storage;

and

has

caused

substantial

inconvenience; lost income; emotional distress; interruption of and loss of enjoyment of life. Plaintiffs have endorsed, for example, photographs of the 5th wheel trailer in which they have been residing pending resolution of this matter and have testified as to ongoing charges for storage. The damages they seek include emotional distress and interruption and loss of enjoyment of life due to the damage to their home that they incurred in the subject accident. To the extent that damages are avoidable, a party has the duty to exercise reasonable care and diligence to minimize or lessen their damages. Martin v. Porack, 638 P.2d 853 (Colo. App. 1981); Powell v. Brady, 30 Colo. App. 406, 496 P2d 328 (1972). Where evidence has a direct bearing on damages claims of a Plaintiff, such may become admissible as bearing on the reasonableness of those claims, even though otherwise inadmissible under the collateral source rule. See Pieffer v. State Farm Mut. Auto Ins. Co., 940 P.2d 967 (Colo. App. 1996). In that matter, the Court of Appeals held that evidence of receipt of Social Security Disability benefits and PIP insurance wage loss benefits was admissible, where the Plaintiff claimed emotional distress because of financial inability to pay medical bills. Plaintiffs, in their Complaint, allege damages related to living in a temporary trailer as their residence, ongoing storage charges for personal property, inconvenience, emotional distress, and interruption and lost enjoyment of life resulting from the damage to their home. However, discovery has revealed that Plaintiffs had a source of payment by which they could have avoided and/or reduced their damages, and that source is relevant to the reasonableness of the damages and the nature and extent of the damages which the Plaintiffs intend to assert at time of trial. For example, 2

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the homeowner's policy issued by their insurer at the time, State Farm, provided coverages for the cost to replace their home, for alternative living expenses while their home was under construction, and for damages to their personal belongings, if any. Ms. Kimsey had testified that State Farm was prepared to adjust their claim, but that Plaintiffs deferred requesting payment under their policy. Plaintiffs will argue to the jury that it has been in excess of a year since their home was damaged and that they continue to incur damages for the various items listed in Paragraph 10 of their Complaint. As in Pieffer, wherein plaintiffs asserted that they had been unable to pay medical bills causing plaintiffs in that case emotional distress, the existence of a source of payment to minimize or mitigate those claimed damages is admissible in assessing the reasonableness of these plaintiffs' alleged damages. While plaintiffs cite the collateral source statute, C.R.S. § 13-21-111.6 and Fed. R. Evid. 411 for the general proposition that such evidence is inadmissible, Pieffer holds that there are circumstances where this general rule does not preclude admission of similar evidence. Further, Rule 411 deals with the admissibility of liability insurance. While the existence of homeowner's insurance might generally be inadmissible under the collateral source rule, Plaintiffs nonetheless had access to the policy to rebuild their home, which arguably would have reduced the inconvenience/lost enjoyment of life/emotional distress damages and the length of time over which they could have claimed such. Further, if Plaintiffs intend to assert inconvenience and/or similar damages by virtue of occupying a fifth-wheel trailer as an alternative living arrangement during the pendancy of this action, evidence of alternative living expense coverage is clearly relevant in mitigation of that contention. Plaintiffs also assert ongoing storage charges and the existence of

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coverage to replace the home and reduce the length of time during which they were required to store their items, would be relevant as well. It is respectfully submitted that both evidence of the insurance contract as well as the testimony of Ms. Kimsey that Plaintiffs' home would likely be rebuilt and paid for by State Farm if a claim had been made and a file opened under the policy, are relevant and admissible given the claims asserted by the Plaintiffs herein. WHEREFORE, Defendants respectfully request that the Court deny Plaintiffs' Motion in Limine RE: Exclusion of Testimony of Denise Kimsey and further that the Court deny the request therein that testimony and/or evidence regarding the existence of the homeowner's policy be excluded at time of trial. Respectfully submitted this 18th day of July, 2005. WITTMAN & McCORD

s/ J. Bradley Hardman J. Bradley Hardman (#17122) 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 Telephone: (719) 590-9899 Fax: (719) 590-9984 Email: [email protected] Attorney for Defendants

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Case 1:04-cv-01070-PSF-PAC

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION IN LIMINE RE: EXCLUSION OF TESTIMONY OF DENISE KIMSEY was electronically filed with the Clerk of the Court, this 18th day of July, 2005, using the CM/ECF system which will send notification of such filing to the following, via their respective email addresses: Michael W. Baty, Esq. 1040 Main Avenue P.O. Box 1157 Durango, CO 81301 Randolph H. Phillips, Esq. 609 Pine Avenue P.O. Box 2303 Albany, GA 31702 /s/ Regina Dineen

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