Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02355-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2355-RPM LEONID DMITRUK, Administrator of the Estate of Alexander Bugaychuk, deceased, and YELENA BUGAYCHUK, an individual, and NATALIA MELNIK, an individual, and IRINA MOROZOV, personally and as administrator of the Estate of Yevgeniy Morozov, deceased, and as Guardian for SARA MOROZOV, a minor, and ELEANNA MOROZOV, a minor, Plaintiffs, v. GEORGE AND SONS' REPAIR SHOP, INC., a Colorado corporation, d.b.a. "George's Towing", GEORGE ROSLER, a resident of the State of Colorado, and JORGE LUIS LAGE, a resident of the State of Florida, and ANGEL EXPRESS, INC., a Florida corporation, Defendants. ____________________________________________________________________________ PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR LEAVE TO AMEND COMPLAINT ____________________________________________________________________________

Plaintiffs submit this Reply strictly responding to Defendants' Response in Opposition to Plaintiffs' Motion for Leave to Amend Complaint, filed October 21, 2005.

I. COUNTER-STATEMENT OF FACT Allegation: the "undisputed evidence" shows Rosler did not "force, tell, request or instruct the Angel Express driver where to park when the trucks arrived at the exit."1

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Response, page 3, para. 1.

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Fact: since Mr. Morozov and Mr. Bugaychuk were killed, and the Angel Express driver and passenger cannot be located, the only source of information regarding Rosler's instructions are through the self-serving testimony of Rosler himself. However, Rosler admitted during his deposition that after providing towing services to Angel Express, Rosler asked the Angel Express driver to drive together to the next exit to settle the tow bill.2 Rosler also admits that he "believed both of us was where we ought have been."3 The jury should be allowed to determine Rosler's credibility in regard to whether Rosler instructed the Angel Express driver to stop behind his tow truck. Allegation: Rosler claims it is pure "speculation on the part of Plaintiffs' counsel" to assume that Morozov was properly attempting to exit Interstate 70 at Exit 348.4 Fact: on the contrary, it would be pure speculation to assume Morozov was not attempting to exit the highway, when the undisputed evidence shows Angel Express and Rosler were stopped directly in the lane used by motorists to exit the highway at Exit 348,5 and Morozov drove directly into the back of the Angel Express truck - as opposed to sliding or being out of control prior to impact.6 There simply is no evidence or indication Morozov was doing anything other than attempting to exit Interstate 70 at this location but suddenly found Angel Express and Rosler directly in his path.

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Exhibit 1 to plaintiffs' Motion, at 15:4-9. Id., at 45:10-19. Response, page 3, para. 2. Exhibit 3 to plaintiffs' Motion. Exhibit 2 to plaintiffs' Motion, Trooper Bandy Deposition, at 61:14-62:4.

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Allegation: both Rosler and Angel Express pulled "as far to the right as they could get without going off the pavement into the ditch."7 Fact: the collision report (Ex. 3 to plaintiffs' Motion) shows the Angel Express vehicle directly in the exit lane. Rosler admits the Angel Express vehicle was "stopped approximately 10 feet behind Rosler's tow truck."8 Allegation: it is undisputed that both Rosler and Angel Express had their emergency flashers activated at the time of the collision.9 Fact: on October 17, 2002, Rosler reported to insurance investigator Steve Armstrong that "He [Rosler] does not remember if the tractor-trailer [Angel Express] had its flashers on, but he believes he did but could not state for certain since it has been quite some time since the accident. He does remember that he had his lights flashing on top of his wrecker...."10 However, during his deposition more than 2 years later on November 23, 2004, Rosler claimed "the Angel Express driver had all four lights blinking and all when he pulled off there to stop, and mine were blinking, too."11 Rosler's reliance on the declaration of Sandra Graeff is misplaced as Ms. Graeff admittedly did not arrive on scene until long after the accident had occurred. Allegation: Trooper Bandy, who allegedly passed Rosler and Angel Express as they were stopped directly in the exit lane on Interstate 70, had "no problem seeing them as he passed"12
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Response, page 4, para. 5. Response, page 4, para. 7. Response, page 5, para. 1. Exhibit 7 to plaintiffs' Motion, page 4, para. 6. Exhibit 1 to plaintiffs' Motion, at 58:24-59:1. See also 67:10-19; 93:4-6. Response, page 5, para. 3.

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and "did not take exception to their position on the exit lane."13 Fact: based on Trooper Bandy's prior relationship with Rosler,14 the jury should be able to weigh the veracity of Trooper Bandy's statements and whether his prior relationship with Rosler influenced Trooper Bandy's failure to instruct Rosler to deploy the required warning triangles before the accident occurred. Allegation: it is undisputed that the collision occurred "within minutes" after Rosler and Angel Express had stopped at the exit site.15 Fact: on October 17, 2002, Rosler reported to insurance investigator Steve Armstrong that he "had been stopped approximately 5 to 10 minutes prior to impact."16 Rosler admits he sat in his tow truck to keep warm, while he watched in his rear-view mirror waiting for the Angel Express driver to finish a cell phone call. The collision occurred before the cell phone call ended.17 Allegation: it is undisputed that the "visibility was clear at the time of the accident."18 Fact: there are no independent witnesses to corroborate Rosler's allegation. The photographic evidence taken by troopers who arrived on scene shortly after the collision shows significant fog in the area. See color photographs previously submitted by plaintiffs in the

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Response, page 14, para. 2.

Trooper Bandy grew up with the Rosler family and was even baby-sat by Rosler's wife. See Plaintiffs' Response to Defendants' Motion for Summary Judgment, filed September 9, 2005, at page 5, para. 1.
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Response, page 5, para. 4. Exhibit 7 to plaintiffs' Motion, page 4, para. 4. Exhibit 1 to plaintiffs' Motion, at 24:7-20. Response, page 5, para. 5.

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Declaration of Komron Michael Allahyari dated February 10, 2005, at Exhibit 4.

II. GOOD CAUSE EXISTS TO GRANT LEAVE TO AMEND THE COMPLAINT The Court issued the D.C. Colo. L. Civ. R. 16.2 Scheduling Order herein on May 21, 2004. The Scheduling Order set the deadline for amendment of pleadings on June 28, 2004, five weeks later. Plaintiffs propounded written discovery and obtained responses thereto prior to the discovery cutoff. Under applicable Colorado law, plaintiffs must bring a motion to amend after initial disclosures have occurred, setting forth a prima facie case for inclusion of exemplary damages in the amended complaint. Plaintiffs did not come into possession of evidence to make their prima facie showing of exemplary damages under CRS § 13-21-102 until after the depositions of Rosler and Bandy. At that time, the deadline to amend their Complaint under the Scheduling Order had already passed. Good cause to modify a scheduling order exists where the party seeking to amend its pleading establishes that, despite diligence, it could not reasonably meet the deadline to amend pleadings under the case schedule. Marcum v. Zimmer, 163 F.R.D. 205, 254 (S.D.W.Va. 1995)(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). The amendment sought in the present case relates only to exemplary damages under Colorado law, and does not seek to add any new or different substantive causes of action. Contrary to Rosler's claims, there is no resulting prejudice in allowing amendment of the complaint to include plaintiffs' claim for exemplary damages. No trial date has been set, and Rosler has at all times been aware plaintiffs would be making a claim for exemplary damages. If Rosler was able to show what additional discovery was required to defend against the exemplary

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damages claim, plaintiffs would have no objection to re-opening discovery for that purpose. The court has already granted Rosler's previous request for an extension of the discovery cutoff which resulted in an extension of more than 9 months.

III. PLAINTIFFS' WERE OWED A DUTY BY Rosler Rosler has incorporated its motion for summary judgment. In fact, the parties currently have cross-motions for summary judgment set before this Court. Rather than repeat the numerous arguments, plaintiffs incorporate their statements and responses contained within the motions for summary judgment. It is contemplated that the Court, at a minimum, will find as a matter of law that Rosler had a duty to deploy warning triangles behind his own vehicle for 200 500 feet. This would have necessarily extended the warning triangles beyond the Angel Express vehicle, which Rosler knew was not deploying its own warning triangles. Rosler's argument seems to be as follows: Rosler only had a duty to deploy warning triangles until Angel Express pulled up behind him. Once that occurred, and even though Rosler knew Angel Express was not deploying warning triangles to warn motorists, Rosler's duty to deploy the warning triangles disappeared. Unfortunately, no such exception exists.

IV. ROSLER'S CONDUCT JUSTIFIES EXEMPLARY DAMAGES Based on the undisputed facts, and the disputed facts which plaintiffs are entitled to argue to the jury, Rosler's conduct justifies the imposition of exemplary damages. As argued by plaintiffs: · Rosler stopped and instructed the Angel Express driver to stop in the middle of the exit

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lane on Interstate 70. · The location was selected merely for the convenience of Rosler, who was looking to quickly settle the tow bill and proceed to the next accident further down the road. · Instead of deploying the required warning triangles "as soon as possible" as required by law, Rosler watched in his rear-view mirror of his tow truck - for 5 to 10 minutes - while he waited for the Angel Express driver to finish his cell phone call. · Exhibiting absolutely no concern for the safety of oncoming motorists, in icy road conditions with questionable visibility, Rosler did not deploy warning triangles, and did not care whether Angel Express deployed its own warning triangles - or even whether they had their emergency flashers on. · Rosler regularly disregards the mandatory emergency warning device requirement, despite professing knowledge of such requirements. · Similarly, Rosler understands he is not authorized to stop on the traveled portion of Interstate 70 absent an emergency; however, Rosler claims to believe the exit lane is not part of the traveled portion of the highway. · Rosler's testimony shows that he considers the warning triangles as inconvenient and unnecessary, despite the extreme disregard for the safety of and risk to other motorists such as Morozov and Bugaychuk. Plaintiffs respectfully submit there could hardly be a better case for a jury's imposition of exemplary damages.

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WHEREFORE, plaintiffs respectfully pray for an order consistent with the matters set forth herein. A proposed Second Amended Complaint and Jury Demand is attached as Exhibit 8 to plaintiffs' Motion. Dated this November 4, 2005. Respectfully submitted,

/s_Komron Michael Allahyari____ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 (206) 423-1045 [email protected] ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 4, 2005, I electronically filed a true and correct copy of this document with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Andrew Carafelli Hall & Evans, LLC 1125 17th St., Suite 600 Denver, CO 80202-2052 E-mail: [email protected]

/s__Komron Michael Allahyari_____ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 (206) 423-1045 [email protected] ATTORNEYS FOR PLAINTIFFS

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