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' OBJECTION AND RESPONSE TO PLAINTIFFS' SUPPLEMENTAL RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT
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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 Objection and Response to Plaintiffs' Supplemental Response to Motion for Partial Summary Judgment, state as follows: I. OBJECTIONS TO MOTION FOR LEAVE TO FILE SUPPLEMENTAL RESPONSE 1. Plaintiffs request leave to file supplemental response to motion for partial summary judgment and seek to include reference to testimony relating to drug use or positive drug testing in support of said response. It is submitted that this argument and evidence are beyond the scope of the pleadings herein and bear no relevance to the claims for negligence and/or the damages asserted by the Plaintiffs. Defendants, therefore, request that the Motion to File Supplemental Response be denied herein as to those portions of the Response because

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they are beyond the scope of the pleadings herein. Defendants do not waive this objection by responding to Plaintiffs' attempted supplement. Rather, the Response herein is made in the alternative to that objection, should the Court permit the filing of the Supplemental Response. 2. Further, Defendants object to the filing of a Supplemental Response asserting that Plaintiffs are entitled to emotional distress damages based upon claims for negligent infliction of emotional distress. These claims require allegations not only that Plaintiffs were subjected to an unreasonable risk of physical injury/zone of danger, but also require that Plaintiffs allege that they incurred serious physical manifestations or mental illness. Atsepoyi v. Tandy Corp., 51 F.Supp.2d 1120 (D. Colo. 1999); Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Townes v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978). Argument that Plaintiffs were in the zone of danger and thus entitled to recovery under and for negligent infliction of emotional distress are beyond the scope of the Complaint filed by Plaintiffs, who allege only property damage due to the negligence of the Defendant, Ross Reed, and emotional distress resulting therefrom. 3. Lastly, testimony by Mr. Overright that he observed a gas line rupture at the Plaintiff's residence does not provide a basis for supplementation of the Response to Motion for Partial Summary Judgment, months after the original Response was filed. Plaintiff Dannie Johnson completed an affidavit, which was filed with the original Response, noting his own observations of the ruptured gas line. Mr. Overright's cited deposition testimony constitutes merely his observation of the same condition which Plaintiff observed and is not new evidence justifying supplementation of the Response. Plaintiffs' additional inclusion of 2

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reference to testimony regarding drug use and/or drug testing is irrelevant to the issues framed by the Complaint and beyond the scope of the Complaint herein. Thus, there is no justifiable basis for supplementation of the Response, long after the arguments relating to the original Motion for Partial Summary Judgment were framed. Defendants, therefore, respectfully request that the Court deny the Motion to File Supplemental Response to Motion for Partial Summary Judgment. 4. Without waiving the above objections and in the event the Court allows the Supplemental Response to be filed as to any one or more of the issues raised therein, Defendants submit their own Response to the Supplemental Brief below. II. A. REPLY TO SUPPLEMENTAL RESPONSE

Reply to Supplemental Response Regarding Emotional Distress Damages As the Court stated in Atsepoyi v. Tandy Corp., 51 F.Supp.2d 1120 (D. Colo. 1999), a

plaintiff, in order to pursue a cause of action for negligent infliction of emotional distress, must "allege, at a minimum, he suffered emotional distress which resulted in serious physical manifestations or mental illness." Id at 1127. Because the plaintiff in that matter failed to state the necessary allegations to support a claim for negligent infliction of emotional distress, the Court granted a motion to dismiss the claim. Id. In the present matter, the Complaint of Plaintiffs alleges only that they incurred property damage and that they seek recovery for emotional distress resulting from that property damage. There are no allegations in the Complaint that Plaintiffs were subjected to an unreasonable risk of physical injury/zone of danger, or that they incurred serious physical manifestations or mental illness. Thus, any assertion that Plaintiffs are entitled to recovery under this theory are beyond the 3

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scope of the allegations in the Complaint. The Complaint does not contain allegations relative to such a claim. See Atsepoyi v. Tandy Corp., supra; see also Townes v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978). Rather, what the Complaint alleges is negligence causing damage to the property of Plaintiffs. See Paragraph 10 of the Complaint. They seek recovery of emotional distress damages resulting from that property damages. Id. In Colorado, "There is generally no recovery in tort for mental suffering resulting from injury to property." Webster v. Boone, 992 P.2d 1183, 1185 (Colo. App. 1999). The Complaint makes a claim only for emotional distress resulting from property damage, which is not a recognized claim under Colorado law. Therefore, Defendants seek partial summary judgment that Plaintiffs are precluded from recovering for emotional distress under the Complaint filed by Plaintiffs. In the alternative, where a plaintiff alleges that they were subjected to an "unreasonable risk of bodily harm," Plaintiff must also prove that the emotional distress resulted in serious physical manifestations or mental illness. Atsepoyi v. Tandy Corp., supra at 1127; Scharrel v. Wal-Mart Stores, Inc., 949 P.2d 89 (Colo. App. 1997); Townes v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978). However, courts have found generally that symptoms such as headaches, insomnia, crying spells, vomiting and diarrhea are insufficient to constitute a serious physical manifestation. Atsepoyi v. Tandy Corp., supra. The Plaintiffs have submitted answers to interrogatories identifying only eye twitches, sleep disturbance, adrenaline rushes and jumpiness when they hear trucks drive over rumble strips, arm twitches and weight gain. As noted in Atsepoyi, these are not the types of serious physical manifestations which give rise to damages recoverable applicable under Colorado law. See also, 4

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Colo. Jury Instr., Civil 9:2 4th Ed. (elements required to prove negligent infliction of emotional distress include negligence, unreasonable risk of bodily harm, physical consequences or long continued emotional disturbance, and damages). As a matter of law, the Complaint fails to state a claim for negligent infliction of emotional distress and any arguments attempted by Plaintiffs at this late date are beyond the scope of the pleadings. Further, the Plaintiffs have failed to identify serious physical manifestations or mental illness as required to permit recovery. Defendants are, therefore, entitled to summary judgment as a matter of law on Plaintiffs' claim that they are entitled to emotional distress as pled in their Complaint. B. The Rupture of a Gas Line at Plaintiffs' Residence Has No Bearing on the Failure to Mitigate Defense Asserted by Defendants Plaintiffs continue to assert in their supplement to their Response to Motion for Partial Summary Judgment, arguments previously made, that the existence of homeowner's insurance is a collateral source and not admissible in evidence at time of trial herein. They thus contend that evidence of such constitutes an election of remedies and therefore, that any evidence of homeowners' insurance is also irrelevant to the issues herein. If Plaintiffs' claim were limited to only damages for replacement or the market value of their home, such might be an appropriate argument. However, the Complaint also alleges emotional distress, loss of enjoyment of life, inconvenience, ongoing storage charges and damages allegedly related to living in a fifth-wheel trailer during the pendancy of this action, and all resulting from the damage to their home. The existence of homeowners' insurance, therefore, is relevant to the reasonableness to Plaintiffs' claims for these damages and whether they failed to mitigate those consequential damages under law. See Peiffer v. State Farm Mut. Auto Ins. Co., 940 P.2d 967 (Colo. 5

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App. 1996) (evidence of receipt of Social Security Disability benefits and PIP insurance wage loss benefits may be admissible where a plaintiff claimed consequential damages, in that case emotional distress because of financial inability to pay medical bills). Defendants hereby incorporate their response to Plaintiffs' Motion in Limine Regarding Testimony of Denise Kimsey and their Motion for Partial Summary Judgment on file herein. Needless to say, Plaintiffs have the means by which they could have avoided certain of their consequential damages simply by making a claim under their homeowner's insurance policy and would have avoided inconvenience, lost income, emotional stress, additional storage fees and loss of enjoyment of life which they have asserted as to this matter. It is respectfully submitted that Plaintiffs have failed to mitigate their damages in these areas as a matter of law, entitling Defendants to partial summary judgment that Plaintiffs have failed to mitigate their claimed damages herein. The alleged additional facts regarding the gas line rupture have no bearing on whether Plaintiffs could have avoided any additional damages caused by their failure to make a claim under their homeowner's policy. III. CONCLUSION

For the reasons set forth herein, as well as those arguments set forth in the Motion for Partial Summary Judgment and Response to Motion in Limine Regarding Testimony of Denise Kimsey, Defendants are entitled to summary judgment as a matter of law that Plaintiffs have failed to mitigate their damages, summary judgment on Plaintiffs' claims for emotional distress and related losses of Plaintiffs.

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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

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANTS' OBJECTION AND RESPONSE TO PLAINTIFFS' SUPPLEMENTAL RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT 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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