Free Reply to 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. 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. Defendants. ______________________________________________________________________________ DEFENDANTS GEORGE AND SONS' REPAIR SHOP, INC.'S AND GEORGE ROSLER'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants George and Sons' Repair Shop, Inc., d.b.a. George's Towing, and George Rosler, by and through their attorney, Andrew J. Carafelli, of Hall & Evans, L.L.C., hereby submit their Reply Brief in Support of Motion for Summary Judgment as follows:

I. INTRODUCTION In their Response Brief, Plaintiffs fail to show that these Defendants are not entitled to summary judgment as a matter of law. Rather, in an attempt to "create" disputed facts in this matter, Plaintiffs have mis-cited and mischaracterized the record. Further they have failed to

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support their Response with Affidavits, deposition testimony, Answers to Interrogatories or Responses to Requests for Admissions as the rule requires. Plaintiffs also fail to cite relevant Colorado law which is contrary to their positions and to the caselaw cited by them. As such, Defendants are entitled to summary judgment as to all issues raised in their Motion.

II. UNDISPUTED FACTS In their Response, Plaintiffs have set forth various allegations which they claim are "Undisputed Facts." However, a review of the record reveals that Plaintiffs have misstated and mischaracterized the record to which they cite. Defendants address the various statements by Plaintiffs which they have mischaracterized by first setting forth the statement in Plaintiffs' Response Brief, followed by what the record actually states. Because Plaintiffs have not set forth each individual fact in a separately numbered paragraph, Defendants cite to the page number and paragraph of Plaintiffs' Response where the statement is contained. 1. "Rosler towed the Angel Express rig onto the pavement and then had the Angel Express rig follow him to the next exit to settle the tow bill." See, Plaintiffs' Response, p.2, Undisputed Facts, ¶1. The undisputed deposition testimony of Mr. Rosler indicates that he asked Mr. Lage if he would be willing to go to the next exit to take care of the bill for towing to which Mr. Lage agreed. See, Defendants' Motion, Exhibit A, deposition of George Rosler, p.15, ll.4-12.

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2.

"The Angel Express rig pulled to a stop behind Rosler as instructed." See, Plaintiffs' Response, p.2, Undisputed Facts, ¶1. This is a complete mischaracterization of the record. Plaintiffs

merely cite to "Def's[sic] Mot., p. 5." However, nowhere does Defendants' Motion set forth such facts. Rather, the undisputed testimony of George Rosler indicates that at no time did Rosler ever instruct, direct or otherwise order the Angel Express driver as to where to park once they reached the exit ramp. See, Exhibit N, deposition of George Rosler, p.21, l.25; p.22, ll.1-12. 3. "A short time later a Budget Rent-A-Car panel van driven by decedent Morozov attempted to exit I-70 at the off-ramp and struck the rear of the Angel Express rig." See, Plaintiffs' Response, p.2, Undisputed Facts, ¶2. Again, Plaintiffs cite to Def's[sic] Mot., p. 5. to support this fact. Again, this is complete mischaracterization of not only Defendants' Motion but also the record. There is absolutely no competent evidence in this matter that Morozov was attempting to exit I-70 at the off ramp. This is nothing more than conjecture and speculation by Plaintiffs' counsel. 4. "On October 17, 2002, approximately 11 months after the collision but prior to the commencement of this action, Rosler admitted to insurance investigator Steve Armstrong that he had been stopped approximately 5 to 10 minutes prior to impact, thereby providing ample time to place the required warning triangles behind one or both vehicles." See, Plaintiffs' Response, p.3, Undisputed Facts, ¶1.

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Here, Plaintiffs cite to a letter from an attorney who represented Angel Express and a letter of an insurance investigator who allegedly worked for the insurance carrier for Angel Express. This citation is not supported by Affidavit, deposition testimony, Answers to Interrogatories or Responses to Requests for Admission. Furthermore, at no time during the course of Rosler's deposition did Plaintiffs' attorney ever question him about this alleged statement to the insurance investigator. 5. "While Rosler sat for 10 minutes in his warm tow truck waiting for the Angel Express driver to finish his cell phone call so they could settle the tow bill, Morozov apparently did not realize the Rosler and Angel Express vehicles were stopped in the middle of the exit ramp." See, Plaintiffs' Response, p.3, Undisputed Facts, ¶3. Plaintiffs cite to absolutely no authority to support this alleged "undisputed fact." Again, this is conjecture and speculation on the part of Plaintiffs' counsel. 6. "During his deposition in 2004, Trooper Bandy disclosed for the first time that he had known Rosler's family almost his entire life, and that George Rosler's wife had even been his baby-sitter when he was child[sic]. Trooper Bandy's close life-long relationship with the Roslers because a possible motivation for his unwillingness to assign or explore any fault on the part of Rosler." See, Plaintiff's Response, p.5, Undisputed Facts, ¶1.

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Plaintiff cites to absolutely no authority to support this alleged "undisputed fact." Rather, this too is nothing more than conjecture and speculation by Plaintiffs' counsel and his no relevance to a Motion for Summary Judgment.

III. A.

ARGUMENT

SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the pleadings, depositions, answers to

interrogatories, and admissions, if any, together with affidavits, if any, show there was not genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

B.

UNDER COLORADO'S CHOICE OF LAW ANALYSIS, COLORADO HAS THE MOST SIGNIFICANT INTEREST IN APPLYING ITS WRONGFUL DEATH STATUTES TO PLAINTIFFS' CLAIMS In their Motion, Plaintiffs assert that Washington law applies to Plaintiffs' wrongful death

claim because Washington has more significant contacts with this dispute than Colorado. First, it should be noted that Plaintiffs have conceded that Colorado law governs the issue of whether Rosler owed any duty of care to either Angel Express or the decedents herein and that duty was breached. See, Plaintiffs' Response, p.9, ¶2. Plaintiffs go on, however, to argue that Washington law should apply to the "rules of recovery" in this matter because Washington has more significant contacts with this dispute. Plaintiffs fail to cite any Colorado law to support their proposition. Rather, a review of caselaw that has been decided both by the state courts and by the federal courts clearly

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shows that Colorado has more significant contacts in this matter and that Colorado law should also apply to the "rules of recovery." The gravamen of Plaintiffs' argument is that because at least one of the decedents and the decedents' beneficiaries reside in Washington, Washington has more significant contact to this dispute and, therefore, Washington law should apply to the "rules of recovery." However, Irina Morozov, wife of decedent Morozov and personal representative for Morozov's estate, testified in her deposition at the time of this accident decedent Morozov was in the process of moving Plaintiff Natalia Melnik's belongings to Florida. Furthermore, Mr. Morozov was going to remain in Florida where he was going to make arrangements for his family to join him. See, Exhibit O, deposition of Irina Morozov, p.14, ll.14-19; p.15, ll.17-22; pp.23, 24, 25, ll.1-17. The Plaintiffs intent to move to Florida at the time of the accident aside, it is undisputed in this case that the accident happened in Colorado, that George Rosler is a resident of Colorado, and George and Sons' Towing, Inc. is a resident corporation of Colorado. Moreover, Rosler carries a Colorado State driver's license, he is only licensed to do business in Colorado, and his vehicle is insured in Colorado. This court has held under similar circumstances that Colorado had more significant contacts than another state in applying right of recovery rules. In Dorr, et al. v. Briggs, 709 F. Supp. 1005 (D.Colo. 1989), the injured parties filed motions to apply Texas law of damages as a result of two automobile accidents which had occurred in Colorado. In Dorr, the plaintiffs had argued that because the majority of the plaintiffs to the action resided in Texas, Texas law should apply. The court noted while the majority of the plaintiffs were residents of Texas, one defendant was a Colorado resident who, at the time of the accident, possessed a Colorado driver's license and was driving a vehicle and was driving a vehicle registered in Colorado. Another defendant was also

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licensed to drive by the State of Colorado, his logging truck was registered in Colorado, and he operated his truck exclusively in Colorado. There was also evidence that both defendants insured their vehicles in Colorado. Id. at 105-106. The court held that although a majority of the plaintiffs to the action resided in Texas and although the policies in interest of Texas are important considerations, Colorado has the most significant contacts and its interest outweigh those of Texas. Id. at 107. Similarly in Conlin v. Hutcheon, 560 F. Supp. 934 (D.Colo. 1983), the court found that Colorado law applied where the driver, who was a Colorado citizen, had an accident in Nebraska in which the passenger, an Illinois citizen, was injured. The passenger filed suit in Colorado and the driver was served there. The driver answered and raised two affirmative defenses: assumption of the risk and the Nebraska guest statute. The passenger filed motions to strike those affirmative defenses arguing that Colorado law, not Nebraska law applied. The disposition of the motion depended on which state's law applied because Colorado did not recognize assumption of the risk nor did it have a guest statute. In addressing the significant contacts under the Restatement (Second) Conflict of Law, Section 145 and Section 6, the court held: When considering the particular interest and policies of the states involved in this negligence controversy, I find that Colorado, not Nebraska has the most significant contacts. Plaintiff is a citizen and resident of Illinois; defendant is a citizen and resident of Colorado. Defendant possessed a valid Colorado driver's license at the time of the accident and he was and is insured by automobile liability insurance purchased in Colorado. In addition, defendant was served in Colorado and the case was filed in Colorado. In light of the policy factors expounded in §6(b) and (6) and Sabell v. Pacific Intermountain Express Co., 536 P.2d 1160 (1975), Colorado's relevant policies which promote rules of recovery in negligence actions surpass the policies of Nebraska and its interest in the determinations of this issue. Id. at 936.

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The court reached a similar result in Niven v. Falkenburg, 553 F. Supp. 1021 (D.Colo. 1983). In Niven, a California resident driving in Colorado, died as a result of injuries sustained where her car was struck by a car driven by the alleged tortfeasor, a Colorado resident. The plaintiffs, California residents, filed a wrongful death action against the alleged tortfeasor, asserting claims under the Colorado and California wrongful death statutes. The defendant moved to strike and dismiss plaintiffs' claims under the Colorado Wrongful Death Act and their general damages claims. The court concluded that Colorado had the most significant contacts with the accident and that the Colorado Wrongful Death Statute applied. First, recognizing that the "most significant relationship" approach was adopted by the Colorado courts in First National Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973), the court stated: There are a minimum number of factors to consider in the instant action. As was previously stated, plaintiffs are citizens and residents of California, defendant is a citizen and resident of Colorado, and the accident occurred in Colorado. § 175 of the Restatement says: In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. The Restatement of § 179 provides that the law selected by the application of § 175 determines the measure of damages. Murphy v. Colorado Aviation, Inc., 41 Colo. App. 237, 588 P.2d 877 (1978). 553 F. Supp. at 1023. The court went on to hold: Plaintiffs allege that at all times the decedent was a citizen and resident of the State of California yet the car she was driving at the time of the accident was registered in the State of Colorado. 8

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Defendant's automobile was also licensed and registered in Colorado. I agree that the policies and interest of California which plaintiffs promote are important considerations to this court's decision. But, on the facts before me, I hold that the State of Colorado has the most significant contacts, its interest outweigh those of California and its wrongful death statute, C.R.S. 1973 § 13-21-201, et seq. shall apply. Id. Plaintiffs' attempted reliance on Scheer v. Scheer, 881 P.2d 479 (1994) is misplaced. In Scheer, while a father and son were in Colorado driving home to California after a trip to New York, they were involved in an automobile accident with another vehicle driven by a third party. As a result of that accident, the son filed a negligence action against his father and the other driver as a co-defendant. The father filed a motion for summary judgment contending that his son's action against him was barred by parental immunity, a doctrine recognized in Colorado but not in California. In addressing the choice of laws issue the court stated: We note that the specific choice of law principle for intra-family disputes set forth in Restatement (Second) of Conflict of Laws, Section 169 (1969), provides that the law selected by application of Restatement Section 145 'will usually be the local law of the state of the parties [domicile]' because 'the state of the parties [domicile] will almost always be the state of dominant interest. . .' 881 P.2d at 481. The appellate court went on to reverse the trial court stating: The trial court gave little weight to the domicile of the father and son and instead focused on the place of the accident and injury. However, the place of the accident was merely a 'fatuitous occurrence' focusing on the place of the injury in an intra-family immunity dispute subjects the rights, duties, liabilities and immunities conferred or imposed by the family relationship to constant change as family members cross state lines during temporary absences from home. . . [W]e conclude that the trial court erred in applying Colorado law to the parental immunity issue here. Rather, California has the dominant interest in the parties' family relationship and its law should be applied to that issue. 9

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Id. at 481-482. There is no intra-family dispute at issue here. Thus, Scheer has little application in this matter. C. PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES IS WITHOUT MERIT In their Response Brief, Plaintiffs assert that they should be entitled to raise the issue of punitive damages to a jury. This argument is partially predicated upon their "choice of laws argument" referenced above. However, Plaintiffs' argument that they should be allowed to present a claim of punitive damages to the jury makes no sense in light of the fact that Plaintiffs claim that Washington State law should apply to their damages claim. Indeed, Plaintiffs concede in their Response that Washington's Constitution bars recovery of punitive damages in wrongful death actions. See, page 10 of Plaintiff's Response. See, also, Mason Dailey v. North Coast Life Ins. Co., 129 Wn.2d 572, 575, 919 P.2d 589 (1996). Thus, if Washington State's law applies to this wrongful death action, Plaintiffs have no right to bring a punitive damages claim. More importantly, C.R.S. § 13-21-203 provides in part with respect to limitation on damages for death by negligence: (c)(I) A claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief. A claim for any exemplary damages in an action governed by this section shall be allowed by amendment to the pleadings only after the passage of 60 days following the exchange of initial disclosures pursuant to Rule 26 of the Colorado Rules of Civil Procedure and the plaintiff establishes prima facie proof of a triable issue. After the plaintiff establishes the existence of a triable issue of exemplary damages, the court may, in its discretion, allow additional discovery on the issue of exemplary damages as the court deems appropriate. (III) The assertion of a claim for exemplary damages in an action governed by this section shall not be rendered in effect solely 10

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because the assertion was made after the applicable deadline contained in the court's case management order so long as the amendment establishes that he or she did not discover and could have not reasonably discovered prior to such deadline the grounds for asserting the exemplary damages claim. Here, Plaintiffs have never filed a motion to amend their pleadings to include an exemplary damages claim. Furthermore, the deadline to amend pleadings has long since expired and Plaintiffs have failed to do so in a timely manner. As such, their claim for punitive damages should be dismissed.

D.

NATALIA MELNIK HAS NO STANDING TO RECOVER DAMAGES FOR WRONGFUL DEATH IN THE INSTANT ACTION As set forth above, Colorado law controls this case not Washington law as claimed by

Plaintiffs. As such, it is patently clear that Natalia Melnik, a sibling of decedent, has no standing to bring an action under Colorado's Wrongful Death Act. As such, her claim is barred as a matter of law.

E.

PLAINTIFFS HAVE FAILED TO SHOW THAT EITHER NATALIA MELNIK OR YELENA BUGAYCHUK CAN PROVE A PRIMA FACIE CASE OF FINANCIAL DEPENDENCE ON THE DECEDENT ALEXANDER BUGAYCHUK As set forth in Defendants' original motion, Plaintiffs Natalia Melnik and Yelena

Bugaychuk are unable to provide any type of credible testimony with respect to financial support that they allegedly received from Alexander Bugaychuk. Plaintiffs' Response in the Declarations of Natalia Melnik and Yelena Bugaychuk have failed to create any genuine issues of material fact with respect to this issue. Indeed, the Declarations attached to Plaintiffs' Response do not

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set forth with certainty any monetary amounts which Melnik and Bugaychuk allegedly received from Alexander Bugaychuk. This is because their own deposition testimony revealed that they apparently have absolutely no recollection of any sum certain amounts other than one gift of $1,000 and one gift of $500 that Alexander Bugaychuk gave to them. Such testimony cannot establish a prima facie case with a reasonable degree of certainty with respect to financial dependence as is required under Colorado law. As such, their claim based upon financial dependence of the decedent must be dismissed as a matter of law.

F.

THE ESTATE OF ALEXANDER BUGAYCHUK'S, YELENA BUGAYCHUK'S, AND NATALIA MELNIK'S CLAIMS MUST BE DISMISSED BECAUSE THEY HAVE RELEASED THE DEFENDANTS HEREIN In their Response, Plaintiffs attempt to argue that Defendants' Motion for Summary

Judgment on the release issue must be rejected under Cingoranelli v. St. Paul Fire and Marine Insurance Co., 658 P.2d 863 (1983) and the Uniform Contribution Among Tortfeasors' Act. In Cingoranelli, the court held that the scope of claims to be discharged by a release was to be ascertained based upon the parties' intent. Id. at 865. The general release involved in Cingoranelli was executed prior to Colorado's enactment of the Uniform Contribution Among Tortfeasors' Act and was decided under the common law release rule as it existed in Colorado. However, the Colorado Supreme Court in Neves v. Potter, 769 P.2d 1047 (Colo. 1989) addressed the question of whether the form release of "all other persons, firms or corporations" discharges all joint tortfeasors from liability under Section 13-50.5-105 C.R.S. The Neves court found the reasoning of Cingoranelli instructive on the issue of intent. The court went on to hold that the emphasis on ascertaining the parties' intent is well placed and should be extended to the

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construction of general releases. Id. at 1055. In order to ascertain the intent of the parties, the court must look to the intent of the parties as expressed in the release instrument, considered in the light of nature of the claim and the objective circumstances underlying the release's execution. Id. at 1055, citing Cingoranelli, 658 P.2d at 865. In Neves, the court had before it several affidavits from the releasors which stated that they had not intended to release any other parties other than the hospital mentioned in the release. Here, Plaintiffs have presented no such Affidavits to the court. The release that the Bugaychuk Plaintiffs signed herein makes it clear that they intended to give up any other claims against any other tortfeasor. Exhibit F to Defendants' Motion for Summary Judgment, states as follows: UNKNOWN CLAIMS Releasors recognize that they may have some claim, demand or cause of action against the Releasees, or one or more of them, of which they are totally unaware and unsuspecting that they are giving up by execution of this Release. Releasors further recognize that they may have some loss or damage now known that could have consequences or results not now known or suspected that they are giving up by execution of this Release. It is the intention of Releasors in executing this Release with advice of their undersigned legal counsel that it will deprive them of any such claim, demand, cause of action, loss or damage, and prevent them from asserting the same against any Releasee. The provisions of any local, state, federal or foreign law, statute or judicial decision providing in substance that releases shall not extend to such unknown or unsuspected claims, demands or damages to a Releasor are hereby expressly waived. The Releasors understand that this is a full, final and complete release of any and all claims, including but not limited to unknown claims. The intent of the Bugaychuk Plaintiffs could not be more clear from the language in the release. It is clear that they were aware that they may have had claims against any one or more of the Releasees, including "other persons, firms, corporations, associations, and partnerships" which The release,

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would have included these Defendants.

The Plaintiffs have not provided any competent

evidence to the contrary to defeat Defendants' Motion for Summary Judgment. As such, the Bugaychuk Plaintiffs' claim against these Defendants must be dismissed as a matter of law.

G.

PLAINTIFFS HAVE FAILED TO SHOW THAT THIS ACTION SHOULD NOT BE DISMISSED BECAUSE THEY HAVE ALREADY PURSUED AND SETTLED A WRONGFUL DEATH ACTION IN WASHINGTON STATE In their Response, Plaintiffs cite to caselaw contending that multiple wrongful death

actions in different states are not prohibited. However, the cases cited by Plaintiffs such as Hughes v. Fetter, 341 U.S. 609 (1951) and First National Bank v. United Airlines, 342 U.S. 396 (1952) have no application here. Those cases deal with situations where a foreign state has attempted to deprive courts of jurisdiction to entertain wrongful death actions under laws of a sister state or have attempted to require plaintiffs to bring wrongful death actions in the state where death occurred. Such is not the case here. Rather, the Colorado legislature has made it clear that pursuant to its law which is controlling here, there shall be only one civil action for recovery of damages for the wrongful death of any one decedent. The Plaintiffs' reliance on Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997) is misplaced. Plaintiffs attempt to argue that Kronemeyer held that § 203 does not purport to create an exclusive remedy for damages arising from the negligent death of another and therefore other types of wrongful death actions are available in other states. This is a completely erroneous characterization of Kronemeyer. At issue in Kronemeyer was whether the plaintiffs could have pursued a medical malpractice action as well as a wrongful death action. The court held that the malpractice claims were based on defendant's treatment of the decedent's injuries from the

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accident and that because damages recoverable under the wrongful death statute were not exclusive, some damages could be recovered under the survival statute. However, in no way did the Kronemeyer court ever hold that multiple wrongful death actions could be pursued. Here, there is absolutely no question that the Plaintiffs could have brought suit against both Defendants in the District Court for Colorado. However, they instead chose to pursue a wrongful death action in the State of Washington against the Angel Express defendant first. They settled that case. Now they are attempting to do exactly what the General Assembly attempted to prohibit; bringing sequential wrongful death actions against different defendants and asserting different causes of death. See, Kronemeyer, 948 P.2d 119 (Colo. App. 1997). This is not a case where the State of Colorado is trying to limit actions which plaintiffs could have brought elsewhere. Rather, the Colorado legislature has merely invoked a rule whereby

plaintiffs are prohibited from bringing more than one wrongful death action. Here, as noted above, Plaintiffs could have brought one wrongful death action in Colorado joining both Angel Express and these Defendants. And indeed, they did just that while the action in Washington was pending against Angel Express. Plaintiffs then dismissed Angel Express from this suit once they had settled the Washington State action. In essence, Plaintiffs are attempting to get two bites at the apple. In the Washington State suit they alleged that it was Angel Express' duty to put out the warning triangles. In their original suit filed in Colorado, they alleged that either Angel Express or these Defendants were responsible for putting out the warning triangles. Because they have already settled their Washington State wrongful death action for the same injuries, wherein they alleged that the Plaintiffs' decedents' deaths were proximately caused

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by failure to put out warning triangles, they are now precluded from pursuing a wrongful death action on the same basis here in Colorado.

H.

PLAINTIFFS HAVE FAILED TO SHOW THAT DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW WITH RESPECT TO PLAINTIFFS' NEGLIGENCE AND NEGLIGENCE PER SE CLAIMS Plaintiffs' Response to Defendants' Motion for Summary Judgment regarding Plaintiffs'

negligence and negligence per se claims is rife with unsupported factual allegations and unsupported legal propositions. In their Response Brief, Plaintiffs continue to argue that Rosler "instructed Lage to follow him to the next exit to settle the tow bill." There simply is no support for this assertion. Rather, the undisputed deposition testimony of Rosler shows that at no time did Rosler instruct, force or direct Lage to go to the next exit or where to park when he arrived at that exit. See, attached hereto, Exhibit N, deposition of George Rosler, p.21, l.25; p.22, ll.1-12. Similarly, Plaintiffs argue that Rosler was parked at the exit ramp for at least 10 minutes. In support of this allegation, Plaintiffs have attached to their Response a letter from a supposed insurance investigator who allegedly spoke with Rosler. This document is not supported by an Affidavit, nor is it deposition testimony, an answer to interrogatories, or a response to a request for admission. It is nothing more than a hearsay document that would be inadmissible at trial. Apparently Plaintiffs' counsel had the subject letter at the time of George Rosler's deposition. However, at no time did Plaintiffs' counsel question Mr. Rosler about the alleged statement. Failure to do so was fatal. See, Miles v. Ramsey, 31 F. Supp.2d 869, 877 (D.Colo. 1998) (rejecting hearsay statements in support of motion for summary judgment noting that there was an opportunity to cross-examine the person who allegedly made the statements and the

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deposition did not turn up any proof that supported the alleged hearsay statements). As such, Plaintiffs have failed to present any competent evidence of such a "fact" in order to defeat Defendants' Motion for Summary Judgment. Plaintiffs now argue, without merit, that Defendants violated Federal Highway Regulations. First, it should be noted that Plaintiffs did not plead that violation of CFRs was negligence per se in this case. Rather, Plaintiffs only pled that violation of Colorado Revised Statutes was the basis of their negligence per se claim. More importantly, however, is the fact that the CFRs to which Plaintiffs refer have no application in this case. 49 CFR Section 390.5 states in part as follows: DEFINITIONS. COMMERCIAL MOTOR VEHICLE Means any self-propelled or towed motor vehicle used on a highway and interstate commerce to transport passengers or property when the vehicle ­ (1) has a gross vehicle weight rating or gross accommodation weighting rate or gross vehicle rate or gross accommodation rate, of 4,536 kg (10,001 lbs) or more, whichever is greater. . . However, Federal Highway Regulations only apply to interstate trucking companies. Plaintiffs have offered absolutely no evidence that Mr. Rosler's tow truck is being used in interstate commerce. Rather, Mr. Rosler's business operates only in the State of Colorado. See, Exhibit G, Affidavit of George Rosler. As such, he is not engaged in interstate commerce and therefore the CFRs upon which Plaintiffs attempt to rely have no application here. Plaintiffs' argument that "Rosler had a non-delegable duty to place at least three triangles as far as 500 feet behind his tow truck" is simply not supported in law. Indeed, Plaintiffs fail to cite to any legal authority to support this proposition. 17

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To recover on a claim of negligence, a plaintiff must establish the existence of a legal duty on the defendant's part, defendant's breach of the duty, causation, and damages. See, Davenport v. Community Corrections of Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998). A negligence claim, therefore, must fail if based upon circumstances for which the law imposes no duty of care upon the defendant. See, Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). The initial determination of whether defendant owes a duty to the plaintiff as well as the scope of that duty is a question of law for the court. Bath Excavating and Construction Co. v. Wills, 847 P.2d 1141, 1142 (Colo. 1993). If a court determines that the defendant owed the plaintiff a legal duty, the question of whether the defendant has breached that duty and thereby caused the plaintiff damages is for the jury. See, Perreira v. State, 768 P.2d 1198 (Colo. 1989). In determining whether defendant owes a duty to a particular plaintiff, the law distinguishes between acting and failure to act, that is, misfeasance, which is active misconduct that injures others and nonfeasance, which is failure to take positive steps to protect others from harm. University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). The reason for this distinction is that a misfeasant creates a risk of harm; while the nonfeasant, although not creating a risk of harm, merely fails to benefit the injured party by interfering in his or her affairs. See, Perreira v. State, supra. Thus, because in misfeasance the actor has created a new risk, and in nonfeasance the actor has simply preserved the status quo, the situations in which nonfeasance leads to liability are more circumscribed than those for misfeasance. See, Lego v. Schmidt, 805 P.2d 1119 (Colo. App. 1990); Schmidt v. Darwin Anderson; 72 P.3d 369, 372 (Colo. App. 2002).

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The courts therefore apply different tests to establish whether a defendant owed a duty to the injured party depending upon whether the alleged negligence is misfeasance or nonfeasance. See, Lewis v. Emile Clayton Plumbing Co., 25 P.3d 1254 (Colo. App. 2000); Schmidt, supra at 372. In nonfeasance cases, the existence of a duty has been recognized only in a limited number of special relationships between the parties such that social policy justifies the imposition of a duty to act. See, University of Denver v. Whitlock, supra; Lewis v. Emile Clayton Plumbing Co., supra. Hence, there exists a duty to control the conduct of a third person to prevent him from causing physical harm to another only if a special relationship exists between the nonfeasant and either the wrongdoer or the victim. Schmidt, supra at 372. While Colorado has not recognized the relationship between a tow truck driver and a vehicle that had previously been towed and/or a victim who strikes such a vehicle as a special relationship, Colorado courts have rejected imposing "special relationship status on those relationships where the nonfeasant lacks control over the other parties." Community Corrections of Pikes Peak Region, Inc., supra, the court held: Whether a special relationship exists between Pikes Peak and Rutledge depends, in large part upon the level of control exercised by Pikes Peak over its residents. See, Perreira, 768 P.2d at 121516; see also, Restatement (2nd) Torts § 319 (1965). Although Pikes Peak serves a custodial role and has a contractual obligation to closely monitor the activities of its residents, Pikes Peak exerts far less control over its residents than a prison. Pikes Peak residents maintain fulltime employment, provide their own transportation, and readily obtain curfew, weekend, church, overnight, and furlough passes. Thus, offenders housed at Pikes Peak spend a substantial amount of time off the premises without direct supervision. We are therefore persuaded that the level of control exerted by Pikes Peak over Rutledge is insufficient to establish a special relationship in this case. (Citations in original). 962 P.2d at 969. 19 In Davenport v.

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While legal research reveals no other court in any state which has held that a special relationship exists between a tow truck driver and a vehicle which he had previously towed and/or a person who ran into the back of a vehicle previously towed, the case of Mikillian v. City of Los Angeles, 79 Cal. App. 3rd 150, 144 Cal. Rpt. 794 (1978) is analogous. In Mikillian, a tow truck driver had filed suit against the defendant Police and City for injuries he sustained when struck by a vehicle while attempting to tow a vehicle. There, the plaintiff attempted to argue that the police officer had instructed him to park his tow vehicle in a certain location and that the officer had a duty to place warning triangles or other warning devices behind his tow vehicle. The trial court directed a verdict for defendants from which the tow truck driver appealed. The appellate court first noted that the plaintiff's trial testimony wherein he had claimed he had been instructed by police as to where to park, had been contradicted by his own earlier prior inconsistent statements. As a result, the appellate court held that he had not presented any issue of fact in this regard. Id. 79 Cal. App. at 158. Then, turning to the issue of duty the court stated: Every negligence case presents a threshold question of whether the defendant has violated any duty to the plaintiff. Unless plaintiff can show such a duty and a violation thereof by substantial evidence, it is the duty of the trial court to grant defendant's Motion for Nonsuit. . . Plaintiff was injured in this case allegedly as the result of an omission (the failure of officers to place flares for his protection). Such an omission is nonfeasance and 'liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. . .' As this court said in Mann v. State of California, a defendant can be held liable for those negligent omissions only if a special relationship then obtained between him and plaintiff. . . The keystone of plaintiff's claim of a special relationship was his assertion that the officers directed him to take the tow truck and impounded vehicle across Vineland and park them on the east side 20

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where they were in blind spot for northbound traffic. The inventory report had not been completed by the officers and signed by plaintiff. Pursuant to the rules governing official police garages of the Los Angeles Police Commission, plaintiff was required to 'abide by the decisions of police officers and . . .cooperate in removing hazards, illegally parked vehicles, and impounding vehicles.' If the officers had directed plaintiff where to park until the paperwork was completed, the exercise of such control would have placed him in a position of dependence upon the officers. At trial, plaintiff testified three times that he was directed where to park. However, in his deposition he unequivocably stated that no one directed him to park on the east side of Vineland and that the decision to park there was his own, dictated by the greater ease of this maneuver. These unequivocal statements in his deposition were confirmed by his trial testimony that it was his and not the officers' decision to move the vehicles to the east curb of Vineland. Even on redirect examination when offered the opportunity to reconcile or explain his prior statements by stating his understanding as to what he was to do, plaintiff answered, '[get] it out of the water and get it to an area that was dry' and made no reference to any alleged directive that he was to park on the east side of Vineland. Id. at 159-160. (citations omitted). The court in Mikillian, went on to hold: We conclude on the basis of the foregoing authorities that there was no substantial evidence supporting plaintiff's claim that he was directed to park on the east side of Vineland and that the only finding that a reasonable trier of fact could make in that respect was that it was plaintiff's own decision for his own convenience to park in that location. Such being the case there was nothing left upon which to base plaintiff's claim of duty except the facts that plaintiff was called upon to remain somewhere in the vicinity of the original accident to sign off on an inventory report and that two of the officers present were aware of the fact that he had parked on the east side of Vineland. These facts did not give rise to a special relationship sufficient to impose a duty upon the officers to place flares warning northbound traffic on Vineland. Id. at 163.

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Plaintiffs have failed to produce any evidence to support that the Angel Express driver was dependent upon Rosler for putting out the warning devices. Indeed, the Angel Express truck had its own warning flashers on at the time of the accident and presumably also carried the same warning devices as required by law. Nor have Plaintiffs provided any evidence to support their assertion that the Angel Express driver was directed by or forced by Rosler to park where he did on the exit ramp. Plaintiffs cite to no legal authority to support the proposition that George and Sons or George Rosler had a duty to place warning triangles behind the Angel Express truck when the Angel Express truck had moved to the exit ramp under its own power and without any assistance from the George and Sons' towing vehicle. In short, Plaintiffs have failed to show that there was a special relationship between Rosler and the Angel Express driver and that created such a duty which extended to the Plaintiffs herein. The undisputed fact remains that Morozov's vehicle ran into the back of the Angel Express truck and not George and Sons' Towing vehicle. The Angel Express driver made his own independent decision as to where to place his vehicle near the exit ramp. Moreover, he had his own separate duty to place the warning triangles behind his vehicle. Because Plaintiffs have failed to show that these Defendants owed any duty to Angel Express or to the Plaintiffs, Plaintiffs have failed to show that Defendants are not entitled to summary judgment. Finally, Plaintiffs contend that assuming arguendo that Rosler had any duty to place warning triangles behind the Angel Express truck, they had to do so immediately. Again, Plaintiffs cite to no legal authority to support such a proposition. Moreover, such a position would render the words "but in any event within 10 minutes" found within C.R.S. § 42-4-230 superfluous and without effect. Defendants could only locate one case which has examined this

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particular language of a similar state statute. In Strong v. Freeman Truckline, Inc., 456 S.2d 968 (Miss. 1984), the court addressed, among other issues, Mississippi's state statute requiring the placement of flares, reflectors or other signals behind trucks stopped on the highway and 49 CFR 392.22, which requires that the driver shall act "as soon as possible, but in any event within 10 minutes. . ." The Mississippi court held: We regard the state statute and federal regulation as imposing essentially similar standards. Normally the reasonable promptness and diligence required by the state statute will require action in 10 minutes. In any event, under the facts in this case, the witnesses have established a range of time between the moment Long stopped his truck until the fatal accident at between four and ten minutes. The evidence is certainly not so clear that we have an unquestionable violation of the time feature of either the federal regulation or the state statute. Id. at 710.1 Here, Plaintiffs have failed to present any competent evidence that there was any violation of the statutory 10 minute time period for Defendants to act, assuming they had a duty to do so.

I.

PLAINTIFFS HAVE FAILED TO SHOW WHY THIS COURT SHOULD NOT INVOKE THE DOCTRINE OF JUDICIAL ESTOPPEL In their Response, Plaintiffs argue vehemently that this court should not invoke the

doctrine of judicial estoppel because none of the elements have been met. However, Plaintiffs comprehensively fail to address the specific facts set forth in Defendants' Motion. Instead, they

But, see, Johnson v. Gmeinder, 2000 U.S.Dist. LEXIS 2354 (D.Kan. 2000) wherein the court rejected defendant's argument that there was no duty to place warning devices because the collision occurred within 10 minutes and holding that there was a genuine issue of material fact as to whether defendant Gmeinder could have placed the warning devices before the collision pursuant to 49 CFR 392.22(b)(1).

1

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rely on nothing more than conclusory statements in their Response. Such conclusory statements of counsel are insufficient to defeat a Motion for Summary Judgment. It is clear from the facts set forth in Defendants' Motion that the Plaintiffs have been "playing fast and loose" with the courts since this accident happened. The courts have relied on these representations, both in awarding Mr. Allahyari fees and ruling on the various motions throughout the various cases of litigation filed by the Plaintiffs. As such, Defendants would urge this court to adopt the Third Circuit's position with respect to judicial estoppel and dismiss Plaintiffs' claims herein.

IV. CONCLUSION WHEREFORE, Defendants respectfully request that this court grant their Motion for Summary Judgment and for such other and further relief as their cause may require. Dated this 23rd day of September 2005. Respectfully submitted, /s Andrew J. Carafelli Andrew J. Carafelli HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 23rd day of September 2005, I electronically filed the foregoing DEFENDANTS GEORGE AND SONS' REPAIR SHOP, INC.'S AND GEORGE ROSLER'S REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Komron M. Allahyari, Esq. Washington Law Group 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 E-mail: [email protected]

s/Leslie E Grauberger, Secretary Andrew J. Carafelli, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 303-293-3231 ­ Fax [email protected] ATTORNEYS FOR DEFENDANTS

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