Free Motion for Leave - District Court of Colorado - Colorado

Case 1:04-cv-00779-PSF-BNB

Document 87

Filed 12/12/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-00779-PSF-BNB BRITISH AIRWAYS PLC, a foreign corporation, Plaintiff, v. AIRCRAFT SERVICE INTERNATIONAL, INC., a foreign corporation, AIRCRAFT SERVICE INTERNATIONAL GROUP, INC., a foreign corporation; and ASIG HOLDING CORP., a foreign corporation, Defendants. ______________________________________________________________________________ DEFENDANTS' MOTION FOR LEAVE TO DESIGNATE ADDITIONAL NON-PARTY FOR APPORTIONMENT OF FAULT OUT-OF-TIME ______________________________________________________________________________ Defendants, by and through Geoffrey S. Race of the law firm of Wells, Anderson & Race LLC, and Charles W. Ryan, III, of the law firm of Dombroff & Gilmore, P.C., hereby respectfully move this Honorable Court for an Order permitting the designation out-of-time of an additional non-party for apportionment of fault. In support hereof, Defendants state as follows: 1. Colorado Revised Statute 13-21-111.5 states in pertinent part: Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary. C.R.S. §13-21-111.5 (3) (b). 2. Defendants obtained documentary evidence produced by British Airways on

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October 24, 2005, along with deposition testimony obtained from Robert Locke, British Airway's Fuel Technical Manager, on October 28, 2005, which reveals a previously unknown fact that United Airlines, Inc. had a contractual relationship with Plaintiff British Airways to provide ground handling services for British Airways' aircraft operating in and out of the Denver International Airport, including the servicing of the specific aircraft involved in the incident at issue in the instant matter.1 3. Both the documents produced by British Airways on October 24, 2005, and their

Fuel Technical Manager's sworn testimony, indicate that United Airlines, Inc.'s mechanics were acting in a supervisory capacity to Defendant ASII, and as an authorized agent of British Airways. 4. Specifically, United Airlines, Inc.'s mechanics served in the delegated capacity of

"Fueling Overseers," and in this capacity they were responsible for the fueling of the accident aircraft and the safety of the entire fueling operation. 5. Plaintiff contends various acts of negligence on the part of an ASII employee,

decedent Joao Rodrigues, yet by the written statement of the United Airlines mechanic who was an eyewitness to the event and who was talking to Mr. Rodrigues at the time the fuel hose separated from the aircraft, no mention is made of any errors or omissions in the fueling process operation of the accident aircraft prior to the hose coming free. This United Airlines, Inc. employee maintained visual and voice contact with the ASII fueller at the time of the accident,

The Robert Locke deposition was videotaped. However, the printed transcript has not yet been received by Defendants. Thus, Defendants cannot provide page and line testimony citation at this time. Defendants will gladly provide to the court a DVD of Mr. Locke's 2

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but, if Plaintiff's theory is to be accepted, failed to perform his delegated duties as Fueling Overseer and notify Mr. Rodrigues of any errors while refueling the accident aircraft. 6. Inasmuch as discovery does not close until January 31, 2006, and the information

upon which this Motion is made was discovered on or about October 28, 2005, no prejudice accrues to the Plaintiff by the designation of an additional non-party for apportionment of fault outside of the ninety day initial window, and Defendants respectfully assert that the Court has ample basis to exercise discretion to allow the designation of United Airlines, Inc. as a non-party for apportionment of fault at this time. 7. In compliance with Local Rule 7.1(A), counsel for Defendants conferred with

Plaintiff's counsel, and on December 9, 2005, Plaintiff's counsel declined to consent to this Motion. As such, an agreement on the sought-after relief could not be obtained. WHEREFORE, Defendants respectfully request this Honorable Court enter an Order allowing Defendants to designate United Airlines, Inc. as a non-party for apportionment of fault pursuant to C.R.S. §13-21-111.5 (3) (b). Dated: December 12, 2005. Respectfully submitted, WELLS, ANDERSON & RACE LLC s/ Geoffrey S. Race By:_______________________________ Geoffrey S. Race, Esq. 1700 Broadway, #1020 Denver, Colorado 80290 Telephone (303) 830-1212 [email protected] testimony if the Court so desires. 3

Case 1:04-cv-00779-PSF-BNB

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Filed 12/12/2005

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- and DOMBROFF & GILMORE, P.C. Mark A. Dombroff, Esq. Dane B. Jaques, Esq. Charles W. Ryan, III, Esq. 1676 International Drive, Penthouse McLean, Virginia 22102 Telephone: (703) 336-8800 [email protected] Attorneys for Defendants

CERTIFICATE OF SERVICE I hereby certify that on this 12th day of December, 2005, I electronically filed the foregoing DEFENDANTS' MOTION FOR LEAVE TO DESIGNATE ADDITIONAL NON-PARTY FOR APPORTIONMENT OF FAULT OUT OF TIME with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Amy L. Benson Jeffrey J. Cowman Donald Lawrence, Jr. Charles Warren Ryan, III Diane Westwood Wilson [email protected] [email protected] [email protected] [email protected] [email protected]

/s/ Karin Carreaga __________________________________

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