Free 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-M-2355 (CBS) 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' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________

I. INTRODUCTION The instant Motion of defendants George and Sons Repair Shop, and George Rosler (collectively, "Rosler") must be denied. The authorities cited in Rosler's Motion do not support his arguments, and he has failed in every respect to establish that he should be granted judgment as a matter of law under Fed. R. Civ. P. 56. On the contrary, it is the estates of the decedents Morozov and Bugaychuk and their beneficiaries who are entitled to summary judgment, as described in plaintiffs' pending motion for partial summary judgment re: negligence per se. At a minimum, plaintiffs are entitled to present their claims to the jury and therefore the Court should deny Rosler's Motion in its entirety.

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II. RELIEF REQUESTED Plaintiffs request an order denying Rosler's Motion For Summary Judgment. Rosler is liable to plaintiffs as a matter of law by virtue of Colorado's highway safety laws, which impose strict liability for any failure to comply with emergency warning requirements. III. UNDISPUTED FACTS In the early morning hours of November 26, 2001, a Florida-based tractor-trailer combination owned by Angel Express became stuck in snowy conditions at the bottom of a small hill on Interstate 70 near Limon, Colorado. Def.'s Mot., p. 3-4. Rosler, a local tow truck driver, was dispatched to the scene by the State Patrol Dispatch Office. Def.'s Mot., p. 3. 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. Def.'s Mot., p. 4. However, instead of exiting I-70 and stopping the vehicles in a safe location, Rosler elected to stop within the I-70 right-of-way, a little more than 100 yards from the next off-ramp. Def.'s Mot., p. 4. The Angel Express rig pulled to a stop behind Rosler as instructed. Def.'s Mot., p. 5. In his deposition, Rosler admitted there were several exits and a truck stop where the two vehicles could have pulled completely off of I-70 without fear of getting stuck in the snow and ice.1 Although the two vehicles were stopped within the I-70 right of way, Rosler admits he placed no emergency warning triangles behind his tow truck or behind the Angel Express rig as required by Colorado and federal highway safety standards applicable to both vehicles. Def.'s Mot., p. 5. 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. Def.'s Mot., p. 5.

1

Transcript of Deposition of George Rosler, p. 61:16-65:3, attached as Exhibit 2.

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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.2 Later, during his deposition in this action, Rosler contradicted his prior statements to Armstrong by claiming that he was only stopped for five minutes prior to impact. Interstate 70 typically has two lanes of travel in each direction. At the point where Rosler stopped his tow truck, there is also a third, exit-only lane for traffic exiting Interstate 70 at Exit 348. In his written statement provided for the investigating officer at the accident scene, Rosler initially wrote that the vehicles were "in the turning [lane]." Rosler then crossed out these words from his statement, and instead wrote that the vehicles were parked "as far to the right as we could go at the Exit of 348. Waiting to take care of a bill." Rosler has provided no evidence which suggests that it would have been impossible or more dangerous to exit I-70 at Exit 348 prior to stopping. The Accident Report indicates that Exit 348 was located only 351 feet beyond the scene of the collision.3 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. Morozov was killed instantly while his passenger decedent Bugaychuk did a few weeks later from the fatal injuries sustained in the accident.

2 See true copy of letter of Andrew C. Gauen, attorney for Angel Express, to Komron Allahyari dated June 9, 2004; letter of Steve Armstrong to North American Risk Services dated October 21, 2002; summary of Steve Armstrong interview with George Rosler dated October 17, 2002, attached as Exhibit 4. 3

See true copy of Colorado State Patrol Accident Report, attached as Exhibit 3.

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The estate of Alexander Bugaychuk initially brought claims against Morozov's insurer, alleging that Morozov was negligent in colliding with the rear of the Angel Express rig.4 All living witnesses, including Colorado State trooper Jason Bandy initially concluded that Morozov was at fault. Counsel for the Bugaychuks conducted telephone interviews with Trooper Bandy. Allahyari Decl., p. 3. Trooper Bandy provided sworn testimony in which he maintained that "other than Mr. Morozov's unreasonably high speed . . . I could not ascertain any other causes that contributed to the accident." Allahyari Decl., p. 3. Morozov's insurer did not claim that Rosler or Angel Express were at-fault parties, and tendered the applicable insurance policy limits in settlement of the claims against Morozov prior the commencement of any court proceeding. Allahyari Decl., p. 3-4. Following the settlement with Morozov's insurer, counsel for the Bugaychuks began to question the thoroughness of the official investigation. Photographs taken in connection with the Accident Report by the investigating officers did not show the exact location of the Rosler and Angel Express vehicles relative to the lanes of travel, as the solid white fog lines were obscured by snow and compact ice. Allahyari Decl., p. 4. However, a careful review of the official photographic evidence in comparison with a second set of photographs of the accident scene taken shortly after the snow had melted revealed that the Rosler and Angel Express vehicles were in fact stopped directly in the lane of travel of I-70 (exit lane) at the time of the collision. Allahyari Decl., p. 4. This newly-discovered evidence gave Morozov's survivors reason to believe that, contrary to the original account of the accident, Rosler and Angel Express were potentially liable for negligence and had violated Colorado's Rules of the Road and highway safety statutes.

4

Declaration of Komron Michael Allahyari, attached as Exhibit 1.

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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.5 Trooper Bandy's close life-long relationship with the Roslers became a possible motivation for his unwillingness to assign or explore any fault on the part of Rosler. The Bugaychuk and Morozov families demanded available policy limits from the insurance carriers for both Angel Express and Rosler. Allahyari Decl., p. 5. Research indicated that Angel Express was a multi-jurisdictional common carrier with commercial ties to Washington State, and a lawsuit was filed in the Superior Court for King County, Washington, against Angel Express. Allahyari Decl., p. 6. The instant action was brought against Rosler in Colorado after it was determined that he was not subject to personal jurisdiction in Washington. Allahyari Decl., p. 6. The state court action against Angel Express was immediately removed to the federal district court for the Western District of Washington, and stayed by virtue of a concurrent bankruptcy proceeding in Florida. Allahyari Decl., p. 6. Prior to the termination of the stay of proceedings, the Washington action was settled and dismissed. Allahyari Decl., p. 6. Angel Express never filed any Answer to the plaintiffs' Complaint, and no discovery was conducted. Allahyari Decl, p. 6. Although Angel Express was named as a defendant in the instant action for statute of limitation purposes, all claims against Angel Express were dismissed early on. Allahyari Decl., p. 7. At the time of his death, Morozov was a resident of Washington. His estate was filed in Washington, and his personal representative resides in Washington. His beneficiaries reside in

5

Transcript of Deposition of Jason Bandy, p. 35:20-37:24, attached as Exhibit 5.

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Washington. His widow Irina Morozov lives with her two young daughters, Sara and Eleanna. Alex Bugaychuk was a New York resident. He died single and without issue. All of his beneficiaries resided within Washington at the time of his death. His estate was filed in Washington, and his personal representative resides in Washington. Alex was survived by his mother Yelena Bugaychuk and his sister Natalya Melnik.6 Alex was born in the Ukraine in 1965, the first of six children. Bugaychuk Decl., p. 1. Bugaychuk shared a very close bond with her eldest son until the day of his death. Bugaychuk Decl., p. 1. In the Ukraine, it is customary for the eldest child to assume many of the responsibilities normally undertaken by parents here in the United States. Bugaychuk Decl., p. 1. When his father suffered a massive stroke in 1992, Alex was required to assume his place as the head of the family. Bugaychuk Decl., p. 1. Alex followed his parents to the United States in November 1992, where he lived with his parents for several months. Bugaychuk Decl., p. 2. Mrs. Bugaychuk has no savings or income, and lived in a low income apartment unit provided by the local housing authority. Bugaychuk Decl. p. 2. Alex visited her in Washington every three months, providing transportation, translating documents, completing necessary paperwork, paying bills, and providing necessities such as money, clothing, dishes, and food. Bugaychuk Decl., p. 2. Mrs. Bugaychuk's income for the years 1992 through 2002 is detailed in the Social Security statement and recent federal income tax returns attached to her declaration. Mrs. Bugaychuk's expenses in each year exceeded her income, and in the absence of his financial support, she believes she would not have been able to make ends meet. Bugaychuk Decl., p. 2. Natalya Melnik is Yelena's second child. Melnik Decl., p. 1. Melnik enjoyed a very close relationship with Alex throughout childhood, and through adulthood to the time of his
6

See Declaration of Yelena Bugaychuk attached as Exhibit 6; Declaration of Natalya Melnik attached as

Exhibit 7.

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death. Melnik Decl., p. 1. Melnik has four minor children, all of whom reside with her. Melnik Decl., p. 2. Her husband Vitaliy died in 1995, leaving her dependent upon Alex for both financial and emotional support. Melnik Decl., p. 2. Melnik's federal income tax returns are attached to her declaration. Aside from her meager income and social security death benefits, she had no other means of support. Melnik Decl., p. 2. Melnik's living expenses exceeded her income for each of the years reflected in her income tax returns. Melnik Decl., p. 2. Given her low income and the difficulty of raising four children alone, Melnik had been under severe and constant financial stress since her husband died. Melnik Decl., p. 2. Alex visited her regularly, paying for necessities such as food, household bills, and clothes for his nieces and nephew. Melnik Decl., p. 2. Alex also performed necessary repairs to her home, had carpeting installed, paid for tutoring and music lessons for the children, and gave Melnik $1,000.00 towards the purchase of a vehicle. Melnik Decl., p. 3. In fact, the Budget rental van was loaded with Melnik's household goods and personal effects at the time of the collision, because Alex was moving Melnik's family to Florida so they could live together. Melnik Decl., p. 3. If not for the constant and significant financial support provided by Alex, Melnik would not have been able to make ends meet. Melnik Decl., p. 2. IV. EVIDENCE RELIED UPON Plaintiffs rely upon the Declaration of Komron Michael Allahyari with attachments; the Declaration of Natalya Melnik with attachments; the Declaration of Yelena Bugaychuk with attachments; the Colorado State Patrol Accident Report; the deposition transcripts of George Rosler and Jason Bandy; and upon the pleadings and papers on file herein.

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V. A. Summary Judgment Standard.

ARGUMENT

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions if any, together with affidavits, if any, show that there is no 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, Washington Has The Most Significant Interests In Applying Its Wrongful Death Statutes To The Plaintiffs' Claims. Rosler's Motion assumes without analysis that Colorado's wrongful death statute governs the plaintiffs' claims in this case. However, Washington has the most significant contacts to this dispute with respect to the wrongful death claims. Rosler has failed to establish that he is entitled to judgment as a matter of law. 1. A district court applies the choice-of-law rules of the forum state in determining what law governs a multi-jurisdictional dispute.

"A district court in diversity jurisdiction must apply the law of the forum state to determine the choice of law." Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Cleary v. News Corp., 30 F.3d 1255, 1265 (9th Cir. 1994). "An automobile accident need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence." Allstate Ins. Co. v. Hague, 449 U.S. 302, 314 (1981). The state of residence of the plaintiffs, and the appointment of a personal representative in that state, gives that state important "interest[s] in . . . the recovery," including interests in "full compensation for accident victims," and in keeping those victims "off welfare roles and able to meet financial obligations." Id. at 319. The aggregate of these contacts create interests of the state of the plaintiff's residence "such that the application of its law is neither arbitrary nor fundamentally unfair." Id. at 320.

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In the present case, the plaintiff personal representatives, the estates of the decedents, and the beneficiaries of the decedents reside in Washington, while Rosler is a resident of Colorado. Jurisdiction is based upon diversity of citizenship. The Court must apply Colorado's choice of law rules to determine the substantive law governing the plaintiffs' claims. 2. Colorado's Rules Of The Road govern the issue of Rosler's duty and breach with respect to plaintiffs' negligence claims.

Colorado has a compelling interest in regulating the use of the highways within its borders. Washington does not have a significant policy interest in applying its highway safety laws to motor vehicle traffic within Colorado. The parties agree that Colorado motor vehicle law governs the issue of whether Rosler owed a duty to the plaintiffs' decedents, and if so, whether that duty was breached. Although this threshold issue is easily decided, the Court must still determine what law governs the remaining issues to be decided by the jury at trial. 3. The courts of Colorado and Washington analyze choice of law questions in multi-jurisdictional disputes under the "most significant relationship" test contained in the Restatement (Second) Conflict of Laws.

Colorado, like Washington, has adopted the general rule of applying the law of the state having the most "significant relationship" to each legal issue to be determined in a multijurisdictional dispute, as set forth in the Restatement (Second) Conflict of Laws § 145 (1971). Ranger v. Fortune Ins. Co., 881 P.2d 394 (Colo. App. 1994); Burnside v. Simpson Paper Co., 123 Wn.2d 93, 864 P.2d 937 (1994). 4. Actual conflicts exist between the tort recovery rules of Washington and Colorado in the present case, requiring the Court to make a determination of which jurisdiction has the most significant contacts to the dispute.

A district court will only engage in a choice of law determination where there is an actual conflict between the laws or interests of the jurisdictions affected by the resolution of the dispute. Burnside, 123 Wn.2d 93, 100-101, 864 P.2d 937 (1994). Where there is no conflict between the Page -9-

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laws or interests of the affected jurisdictions, the law of the forum state governs. Id. at 101. The laws applicable to the plaintiffs' tort recovery claims in each jurisdiction may be summarized as follows: Washington RCW 4.20.020 provides that a wrongful death action may be maintained for the benefit of the wife, husband, child or children, including stepchildren, or if there is no spouse or child, for the benefit of the parents and/or siblings of the decedent who may be dependent upon the decedent for support. Dependency is satisfied by a de minimus showing of partial dependency, as the statute is remedial in nature, and therefore construed liberally. Estes v. Schulte, 146 Wash. 688, 264 P. 990 (1928); Cook v. Rafferty, 200 Wash. 234, 93 P.2d 376 (1934); Mitchell v. Rice, 183 Wash. 402, 48 P.2d 949 (1935). Washington has no bar against multiple or successive wrongful death actions arising from the same occurrence, other than the judicial doctrines of res judicata and collateral estoppel. Washington's Constitution bars recovery of punitive damages in wrongful death actions. Colorado Rosler's Motion provides that Melnik lacks standing to maintain a wrongful death action, as siblings are not included within the class of persons entitled to bring suit for wrongful death under CRS 13-21-201 and -202.

Rosler's Motion provides that Melnik and Bugaychuk fail to establish a prima facie case of dependency under Colorado law, which requires damages to be established to a reasonable degree of certainty.

Rosler's Motion provides that the plaintiffs' claims are barred by CRS 13-21-203, which bars successive actions to recover damages for the wrongful death of any one decedent. Punitive damages are recoverable.

If we were to assume that Rosler's Motion accurately describes Colorado's wrongful death laws, the substantive differences described above establish an actual conflict between the tort recovery rules of Washington and Colorado. As a result, there is no presumption that Colorado law applies, and the Court must determine which jurisdiction has the most significant aggregation of contacts to the dispute under the guidelines set forth in the Restatement (Second) of Conflict of Laws §§ 6 and 145. Page -10-

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Section 145 sets forth the required significant contacts analysis as follows: (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) of Conflict of Laws § 145 (1971). Restatement § 6 sets forth a number of overarching policy considerations to be considered in determining the relative importance of each contact: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, .... Restatement (Second) of Conflict of Laws § 6 (1971). The analysis of contacts and the policy considerations which determine the relative importance of each contact in the overall analytical framework has been described as a two-part inquiry: [T]he court applies a two-part analysis regarding each issue presented. First, we Page -11-

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examine which state has the most significant contacts in light of the principles stated in Restatement of Conflicts § 145. Second we examine which state has the most significant interest in applying its law on a particular issue in light of the principles stated in Restatement of Conflicts § 6. Each issue is examined separately. . . .In determining which state has the most significant contacts, the court does not simply count contacts; rather, it must `consider which contacts are most significant and . . . determine where these contacts are found. Williams v. State, 76 Wn. App. 237, 243, 885 P.2d 845 (1994)(citing Johnson v. Spider Staging Corp., 87 Wn.2d 577, 580-84, 555 P.2d 997 (1976)). In this analytical framework, a state's relevant contacts to a given legal issue to be resolved are not merely counted; the relevant inquiry is the relative significance of each contact. See e.g. Mentry v. Smith, 18 Wn. App. 668, 571 P.2d 589 (1977)(Washington's interest in permitting full recovery for injuries sustained in an Oregon car collision outweigh Oregon's interest in applying limitations on tort recovery to nonresidents). When each contact is analyzed with reference to the policy concerns of each jurisdiction, Washington has the most significant relationship to the wrongful death claims. The § 145 factors are analyzed as follows: Place of injury. The personal representatives, estates, and beneficiaries all resided within Washington at the time of the collision which gave rise to this action. Although the Morozov and Bugaychuk were killed in Colorado, the Complaint in this action seeks damages for the injuries to the beneficiaries and the estates arising from the wrongful death of the decedents. The place of injury is therefore Washington, not Colorado. Under Colorado's choice of law analysis, the place of injury is usually the jurisdiction with the most significant interest in the controversy. Ranger, supra, 881 P.2d at 395, 398. These plaintiffs resided and were injured in Washington, and therefore Washington has the greater interest in applying its tort recovery rules to this action. Page -12-

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Place where conduct occurred. The alleged tortious conduct of Rosler occurred in Colorado. However, the courts of Colorado have ruled that "the place of the accident [is] merely a `fortuitous occurrence'" to be given little weight in the choice of law analysis. See Scheer v. Scheer, 881 P.2d 479, 481 (Colo. App. 1994). Domicile, residence, place of incorporation, and place of business of the parties. The residency of a party in a forum state alone has not been considered a sufficient relation to the action to warrant application of forum law. Rice v. Dow Chem. Co., 124 Wn.2d 205, 216, 875 P.2d 1213 (1994). Colorado courts consider the domicile and residence of the plaintiffs as the most significant factor in resolving rule of recovery conflicts. Scheer, 881 P.2d at 481. The plaintiffs reside in Washington. Rosler resides in and is incorporated in Colorado. Rosler's place of incorporation is an insignificant contact under the facts of this case, as the domicile of Rosler's corporate entity is irrelevant to the analysis of tort recovery rules in this case. Place where the relationship, if any, between the parties is centered. There is no relationship between the plaintiffs and defendants. The relationship among all the plaintiffs is centered in Washington. Other relevant factors under Restatement § 6. Other factors include the interest of each jurisdiction in protecting its citizens against the alleged unlawful conduct, and the interest in deterring unlawful conduct of corporations having a substantial business presence within a jurisdiction. Kammerer v. Western Gear Corp., 96 Wn.2d 416, 422, 635 P.2d 708 (1981). Colorado does not enforce its tort recovery limitations against non-resident motor vehicle accident victims who are entitled to recover damages under the laws of their state of residence.

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Scheer, 881 P.2d at 481-482 (refusing to apply Colorado's parental immunity law as a bar to nonresident son's claims against father for personal injuries arising from Colorado motor vehicle accident). Colorado has no significant or important interest in regulating the ability of these plaintiffs to obtain the remedies provided by Washington's wrongful death statute, which is remedial in nature. Conversely, Washington has a substantial interest in ensuring that its residents receive full compensation for injuries sustained in automobile collisions, as the social costs associated with providing services to accident victims, particularly those left without income providers, are more likely to be assumed by Washington and its citizens, not Colorado. The beneficiaries have relied exclusively upon the social services and benefits available in Washington, not Colorado. Colorado has absorbed no direct social costs as a consequence of this accident. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 314 (1981), supra (non-forum state has substantial interest in protecting resident victims of wrongful death). Under the significant contacts analysis, the jurisdiction with the most significant interest in applying its rules of tort recovery to this controversy is Washington. 5. Plaintiffs are entitled to request and present evidence of punitive damages at trial under Colorado law.

Section 145 of the Restatement (Second) of Conflicts, comment (e), provides that "when the primary purpose of the tort rule involved is to deter or punish misconduct, the place where the misconduct occurred has peculiar significance." Comment (d) to § 171 expressly addresses the issue of whether punitive damages are recoverable, and provides that the state where the conduct occurred has the most significant interest in applying its punitive damages rules, and is therefore determinative of whether punitive damages are available to a Washington resident.

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Kammerer v. Western Gear Corp., 96 Wn.2d 416, 422, 635 P.2d 708 (1981); Barr v. Interbay Citizens Bank, 96 Wn.2d 692, 699, 649 P.2d 827 (1981). The choice-of-law analysis as to whether punitive damages are available under Colorado law is not controlled by the law governing other issues. As noted in comment (d) to Section 171 of the Restatement: The law governing the right to exemplary damages need not necessarily be the same as the law governing the measure of compensatory damages. This is because situations may arise where one state has the dominant interest with respect to the issue of compensatory damages and another state has the dominant interest with respect to the issue of exemplary damages. Section 171, Comment (d); See In Re Air Crash Disaster Near Chicago, 644 F.2d 594, 611 (7th Cir. 1981)(approving the concept of "depecage," or process of applying rules of different states on the basis of the precise issue involved). In the Air Crash case, the court determined that the most significant relationships for punitive damages purposes were the state of the defendant's primary place of business and the state where the alleged misconduct occurred. Id. at 614-615, 620-621. Washington has no interest that is impaired by imposing punitive damage remedies upon those who are guilty of misconduct in a sister state. Washington has no policy prohibiting its own citizens from collecting punitive damages when they have been victimized by misconduct occurring in a jurisdiction which authorizes imposition of punitive damages. In Kammerer, supra, 96 Wn.2d at 416, the court upheld an award of $350,000 in punitive damages under California law, rejecting the defendant's claim that Washington's prohibition against punitive damages barred the recovery. The court placed particular emphasis on the fact that the conduct giving rise to the punitive damages claim occurred in California. Id. at 421-423. The court held that Washington has "no interest in protecting persons" who are guilty of misconduct. Id. at 422. Page -15-

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In the present case, Rosler's primary place of business is within Colorado, and the misconduct occurred in Colorado. The analysis clearly favors the application of Colorado law to the issue of whether Rosler acted with reckless indifference to the welfare and safety of other motorists when he caused the two commercial vehicles to stop within the traveling lanes of I-70 to settle a tow bill without deploying statutorily mandated warning devices. The Court should apply Colorado law in determining whether the plaintiffs may obtain an award of punitive damages at trial herein. C. Natalya Melnik Has Standing To Recover Damages For Wrongful Death In The Instant Action. Rosler's argument concerning Melnik's standing to recover damages for wrongful death assumes that Colorado's wrongful death statute governs her tort recovery claims. As set forth above, Melnik's wrongful death claims are governed by Washington law, and under RCW 4.20.010 et seq., an action for wrongful death may be properly maintained for the benefit of the siblings of a decedent provided he or she is not survived by husband, wife, or children. It is undisputed that Alex Bugaychuk died unmarried and without issue. Colorado has no significant interest which would be served by barring her recovery. Therefore, Melnik is not barred from seeking damages against Rosler for the wrongful death of her brother. Defendants' Motion with respect to this issue must be denied. D. Natalya Melnik and Yelena Bugaychuk Were Dependent Upon Alex Bugaychuk For Support. 1. Melnik and Bugaychuk have satisfied the evidentiary standard of dependency under Washington law.

As set forth supra, the wrongful death claims of Melnik and Bugaychuk are governed by Washington law. Rosler's argument is dependent on the erroneous assumption that Colorado's Page -16-

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wrongful death statutes govern the plaintiffs' claims in this case. Washington courts have long held that the wrongful death statute, RCW 4.20.010 et seq., is remedial in nature, and therefore to be construed liberally. Under RCW 4.20.020, dependency is a question for the jury, and proof of complete dependency is not required; a finding of partial dependency is sufficient under the statute. Estes v. Schulte, 146 Wash. 688, 264 P. 990 (1928); Cook v. Rafferty, 200 Wash. 234, 93 P.2d 376 (1934). Recoverable damages include the pecuniary losses associated with Alex Bugaychuk's economic contributions to Mrs. Bugaychuk and Ms. Melnik, along with intangible losses such as loss of love, support, affection, companionship, society and consortium. Parrish v. Jones, 44 Wn. App. 449, 722 P.2d 878 (1986). See also Chapple v. Ganger, 851 F. Supp. 1481 (E.D. Wash. 1994)(pecuniary loss includes intangible loss such as contributions of time, energy, emotional support, and the loss of love, affection, care, service, companionship, society, training, and consortium). The evidence presented in the declarations of Melnik and Bugaychuk is more than sufficient to satisfy the standard of proof at trial herein. As the oldest of six children, Alex was obliged by Ukrainian custom to help his parents raise his younger siblings. After his father was paralyzed following a massive stroke, Alex became the head of the family. Even after the family emigrated to the United States, Alex continued to provide support to his mother and to his younger sister Natalya, who was left to raise four minor children with very limited resources following the death of her own husband in 1995. Based upon the verified financial information provided by Natalya and Yelena, a reasonable jury could find that, but for Alex's support, neither woman would have been able to make ends meet. The undisputed evidence establishes that Alex Bugaychuk played a very important role in Page -17-

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supporting his mother, his sister, and his sister's children. Rosler nevertheless asserts that Melnik's and Bugaychuk's claims should be dismissed, based solely upon the fact that they were unable to tell defense counsel the specific dollar amounts they received from Alex prior to his death. Rosler cites no authority which supports this argument. Rosler's Motion must be denied with respect to this issue. 2. Under Colorado law, Natalya & Yelena were dependent upon Alex for support.

Even assuming arguendo that Washington law does not govern the plaintiffs' wrongful death claims, the evidence presented by Melnik and Bugaychuk satisfies the threshold standard of proof required to proceed to trial under Colorado law. Rosler's reliance on Herbertson v. Russell, 371 P.2d 422 (Colo. 1962) is misplaced. A correct reading of Herbertson shows that, contrary to Rosler's erroneous arguments, Melnik and Bugaychuk have sustained recoverable damages under Colorado's wrongful death statute. In Herbertson, the jury awarded the highest damages available at that time - $25,000.00 to the parents of a six-year-old girl who died in an automobile collision. Id. at 425. The parents had eight other children, four of whom were married and living outside the home, and were unable to substantiate any contributions from any of their children, aside from $200 used to purchase fares to travel to Colorado for trial. Id. The decedent had been living with her aunt and uncle for one year prior to the collision, and had lived apart from her parents for two years. Id. Rosler's argument falsely implies that the Herbertson court dismissed the wrongful death claims due to insufficient evidence. This is not the case. The court ruled that the scant evidence of damages at trial did not warrant the amount of the award, and remanded for retrial of the measure of damages only. Id. In the present case, both Melnik and Bugaychuk have

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demonstrated their dependence upon Alex for support. This evidence is more compelling than the facts presented in Herbertson. Herbertson does not support Rosler's argument, and therefore the Motion must be denied with respect the issue of Melnik and Bugaychuk's dependency and damages under Colorado's wrongful death statutes. E. The Release Of Morozov's Insurer Does Not Bar The Bugaychuk Plaintiffs' Claims Against Rosler. The Bugaychuk plaintiffs' release of Morozov does not bar their claims in the instant action. "The scope of a release is determined primarily by the intent of the parties as expressed in the release instrument, considered in light of the nature of the claim and the objective circumstances underlying the execution of the instrument." Cingoranelli v. St. Paul Fire & Marine Ins., 658 P.2d 863, 865 (Colo. 1983). Where joint tortfeasors act independently, the courts have ruled that a release does not bar independent claims: Colorado case law also has recognized that the common law joint tortfeasor release rule does not operate where there are separate and distinct causes of action against independent wrongdoers, which result in separate wrongs to the claimant. Not only are there no "joint" tortfeasors in such a situation, but, more important, the independent cause of action originates in a legal source separate from the original tortfeasor's misconduct and involves distinct elements of damages. In contrast to the situation involving joint tortfeasors causing one injury or wrong, there is no reasonable basis to conclude that the settlement of one independent cause of action results in complete satisfaction of the other. Id. at 866 (citations omitted). The Cingoranelli court quoted the following passage from Prosser with approval: Causes of action against mere concurrent tortfeasors not acting in concert have always been separate, and their separate character should not be affected by the possibility of joinder for procedural convenience. A surrender of one therefore should not on any logical or reasonable basis discharge the other, except to the extent that there has been full compensation. Id. (quoting W. Prosser, Handbook on the Law of Torts, § 49 at 302). The court also noted that Page -19-

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"[e]ffective July 1, 1977, the joint tortfeasor release rule was abrogated in Colorado in the Uniform Contribution Among Tortfeasors Act," which provides: (1) Where a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death: (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater; and (b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. Id., n. 3. Cingoranelli executed the releases prior to the abrogation of the joint tortfeasor rule, which was not retroactive. Id. Rosler's arguments must be rejected under Cingoranelli, which advances three independent bases to deny summary judgment. First, under basic principles of contract law, a reviewing court considers the intent of the parties by reference to the "nature of the claim and the objective circumstances underlying the execution of the instrument." Id. at 865. In the present case, the release in question was given to Morozov and his insurer by the Bugaychuk plaintiffs in return for settlement of their claims against Morozov. At the time the release was signed, the Bugaychuk claimants had not filed suit, nor had any formal discovery been conducted. The living witnesses and Trooper Bandy had assigned 100% fault to Morozov. Under the facts of our case, a reasonable jury would find the parties to the release did not contemplate Rosler's potential liability and in no way intended to release a tortfeaser whose potential liability had been misrepresented. Secondly, Rosler's Motion incorrectly assumes that Rosler and Morozov were joint

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tortfeasors. Under Cingoranelli, the joint tortfeasor release rule does not apply to independent tortfeasors. As stated by Prosser, "causes of action against mere concurrent tortfeasors not acting in concert have always been separate. . . . A surrender of one therefore should not on any logical or reasonable basis discharge the other, except to the extent there has been full compensation." Id. at 866. In the present case, the settlement with Morozov's alleged negligence was based upon the operation of his vehicle. By contrast, the alleged negligence of Rosler did not involve the operation of his vehicle, which was parked at the time of the collision. Third, Colorado abrogated the joint tortfeasor rule in 1977 when it enacted the Uniform Contribution Among Tortfeasors Act. Rosler has not demonstrated any basis to grant him the relief he now seeks under Colorado law. Even assuming for the sake of argument that fault will be apportioned to Morozov, it cannot be said that Rosler acted in concert with him as a joint tortfeasor. When viewed in a light most favorable to the Bugaychuks, a reasonable jury would find Morozov fault-free in view of Morozov's proper attempt to exit the highway and Rosler's statutory violations. Under the facts presented, Rosler is not entitled to summary judgment based upon the Bugaychuks' release of Morozov, and his Motion must be denied with respect to this issue. F. Colorado's Prohibition Against Multiple Wrongful Death Actions Does Not Bar Plaintiffs' Claims. 1. Plaintiffs' wrongful death claims are governed by Washington law.

As set forth supra at § B.4, Washington's wrongful death statutes govern the plaintiffs' tort recovery claims in the present case, as Washington has the most significant contacts to the parties and the most significant governmental interest in enforcing the provisions of its remedial wrongful death statutes. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 314 (1981). Colorado has

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no important or significant interest in enforcing its limitations on tort recoveries against residents of Washington. There is no valid legal basis to dismiss plaintiffs' wrongful death claims under Colorado's statutory wrongful death scheme, which does not govern plaintiffs' claims. 2. Even assuming that Colorado law governs the wrongful death claims, Rosler's Motion fails to establish entitlement to judgment as a matter of law because there is only one action pending in Colorado.

Plaintiffs' claims are not subject to dismissal under Colorado's wrongful death statutes. The Court must reject Rosler's argument, which would impermissibly extend the reach of Colorado's prohibition on multiple wrongful death actions. Under Colorado's statutory scheme, CRS § 13-21-201 creates a cause of action for damages for death, and proscribes a class of plaintiffs who may bring suit for wrongful death. CRS § 13-21-202 creates a survivorship action on behalf of the decedent, preserving the negligence action he or she could have brought against the tortfeasor if he or she had survived the conduct which caused death. CRS § 13-21-203 serves to organize, consolidate, and limit the scope of sections 201 and 202 by requiring that all potential party plaintiffs join in a single action under one or both of the prior sections. A party plaintiff who brings suit under CRS Chapter 13-21 in Colorado state court is subject to these limitations. However, Rosler's argument seeks to extend the scope of § 203's limiting provisions to any wrongful death action, regardless of the forum state, or governing law. This argument is erroneous. As the 10th Circuit Court of Appeals recognized more than half a century ago, Colorado's wrongful death statute does not purport to apply to actions brought for wrongful death under a statute of another state. Stoltz v. Burlington Transp. Co., 178 F.2d 514 (10th Cir. 1949)(cert. denied, 339 U.S. 929 (1950)).

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Furthermore, any attempt by a state to limit the constitutional obligation to enforce the rights and duties validly created under the wrongful death statutes of a sister state violates the Full Faith and Credit clause of the U.S. Constitution. Hughes v. Fetter, 341 U.S. 609 (1951)(forum state may not deprive its courts of jurisdiction to entertain wrongful death action under laws of sister state); First Nat.'l Bank v. United Air Lines, 342 U.S. 396 (1952)(forum state may not require plaintiff to bring wrongful death action in state where death occurred and defendant is subject to personal jurisdiction). The case of Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997), does not support Rosler's argument. The court in Kronemeyer held that § 203 does not purport to create the exclusive remedy for damages arising from the negligent death of another: The damages recoverable under the Wrongful Death Statute are not exclusive, and therefore, some damages may be recoverable under another theory or statute. . . .. Id. at 121. The courts of Colorado recognize that the prohibition against multiple wrongful death actions contained in § 203(1) applies only to actions brought in Colorado state court alleging a cause of action under § 201, which, contrary to Rosler's erroneous argument, has never been brought before by these plaintiffs. The instant action is the only action which has ever been brought under § 201. Under the authorities cited above, Rosler's Motion must be denied. Colorado must give full faith and credit to Washington's wrongful death statutes, and may not refuse to entertain this action on the basis that an earlier wrongful death action was filed and settled in Washington under Washington law. Since the instant action is the only action filed by plaintiffs in Colorado arising from the wrongful deaths of Morozov and Bugaychuk, even if the Court rules that Colorado's wrongful death statutes govern this action, it is not subject to dismissal under the

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limitations imposed under § 203(1). G. Rosler Is Not Entitled To Summary Judgment Dismissal Of Plaintiffs' Negligence Claims. 1. Plaintiffs incorporate by reference Plaintiffs' Motion for Partial Summary Judgment Re: Negligence Per Se.

Plaintiffs incorporate by reference Plaintiffs' Motion for Partial Summary Judgment Re: Negligence Per Se, and all exhibits attached thereto, which plaintiffs filed on August 14, 2005. 2. Rosler was subject to one or more specific statutory duties owed to plaintiffs' decedents under Colorado law by virtue of his status as a professional tow truck driver.

Rosler's Motion fails to set forth any legal basis to grant summary judgment dismissal of the Complaint. The case at bar involves a multi-jurisdictional motor vehicle collision occurring within the traveling lanes of Interstate 70. The Court must reject Rosler's argument that he owed no duty to the plaintiffs as matter of law, since the undisputed facts demonstrate that a reasonable jury could only find that Rosler 1) parked his vehicle upon the traveling lane of I-70 in the absence of an emergency; and 2) failed to deploy emergency warning triangles at any time prior to the collision. Rosler's argument is based upon the logical fallacy that he owed no duty of care to the plaintiffs because the Angel Express rig pulled up and parked behind him, and therefore any duties owed to the plaintiffs' decedents were discharged as a matter of law. This argument confuses the existence of a duty of care owed to plaintiffs' decedents, with the evidentiary standard for establishing a breach of that duty. The fact that Rosler's tow truck was not hit by Morozov's vehicle does not establish as a matter of law that Rosler owed no duty to the plaintiffs to refrain from parking in the traveling lanes of I-70, and no duty to deploy the emergency Page -24-

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warning triangles behind his own vehicle, if not the Angel Express vehicle he had just towed. Rosler's Motion provides no authority for the proposition that a tow truck driver's duty to exercise reasonable care for the protection of other motorists is extinguished under such circumstances, particularly when Rosler himself could see that Angel Express was not deploying warning triangles. Rosler's Motion omits the undisputed material fact that his vehicle was parked in the right-hand lane of travel of I-70, only 348 feet from the nearest exit. CRS 42-4-1204 provides in pertinent part: (1) Except as otherwise provided in subsection (4) of this section, no person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or an official traffic control device, in any of the following places: * * * * * * * * (i) On any controlled-access highway; (7) Any person who violates any provision of this section commits a class B traffic infraction. Id. CRS 42-4-230 provides, when stopped on the highway or shoulder, that "the driver shall, as soon as possible, but in any event within ten minutes, place the bidirectional emergency reflective triangles. . . ." (emphasis added). These statutes establish the standard of conduct of a reasonable person, provided that the plaintiffs' decedents were members of the class the statute was intended to protect, the injuries suffered were of the kind the statute was enacted to prevent, and the statutes proscribe or prescribe specific conduct. Hageman v. TSI, Inc., 786 P.2d 452, 454 (Colo. App. 1989). Under the undisputed facts, these statutes established a standard of conduct for Rosler to obey. The decedents Morozov and Bugaychuk were proceeding in a vehicle upon a traveled Page -25-

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portion of I-70 when they collided with the Angel Express vehicle which was parked in the exit lane at Rosler's direction. Five to 10 minutes prior, Rosler told the Angel Express driver to follow him to the next exit, where the bill would be settled. Inexplicably, Rosler then deviated from his own instructions, and instead stopped within the traveling lanes of I-70, only 100 yards before the next lawful exit. The Angel Express driver would not have stopped in that location had Rosler not instructed him to do so. Rosler knew, or in the exercise of reasonable care should have known, that he could not legally stop at that location. He further knew, or in the exercise of reasonable care should have known, that he was obligated to immediately deploy emergency warning triangles. A reasonable jury could only find that the elements set forth in Hageman are met in this case, and therefore the statutory provisions cited above establish the standard of conduct of a reasonable person in the present case. There can be no question that Rosler owed duties of reasonable care to plaintiffs' decedents under Colorado law. 3. Rosler violated his statutory duties of care, proximately causing the deaths of Morozov and Bugaychuk as a matter of law.

The "violation of a statute or ordinance adopted for the public's safety may be negligence per se and establish the violator's civil liability for all damages proximately caused thereby." Hageman, 786 P.2d at 453-454. "In Colorado, the doctrine [of negligence per se] has established negligence for violations of, among other provisions, the state liquor code, a city building code, motor vehicle safety statutes, and motor vehicle and pedestrian safety ordinances." Id. (citations omitted). Colorado also applies the negligence per se doctrine to violations of federal highway safety regulations applicable to interstate motor carriers and Colorado tow truck operators. 49 Page -26-

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CFR § 392.21 prohibits stopping "upon the traveling portion of any highway outside of a business. . .district." 49 CFR § 392.22 provides that "[i]f a motor vehicle is stopped upon the traveled portion of the shoulder of a divided . . . highway, the driver shall place [three] warning devices . . . ." Id. In Hageman, the court held that a violation of these federal regulations constituted negligence per se under Colorado law, and the failure to instruct the jury on negligence per se constituted reversible error. Id. at 454-455. In the present case, it is undisputed that Rosler "agreed" with Lage that the two vehicles would proceed under their own power to the next exit to settle the tow bill. It is also undisputed that Rosler did not in fact proceed to the next exit, but instead made an arbitrary, unlawful stop within the traveling lanes of I-70. It is also undisputed that Rosler violated federal highway safety regulations when he failed to deploy the emergency warning triangles. Rosler makes several insufficient and erroneous arguments against the imposition of liability under Colorado and federal highway safety law. Protection of the public health and welfare necessitated the enactment of these laws, in order to lessen the risk of just the type of accident which killed Bugaychuk and Morozov. In the absence of a bona-fide emergency which required Rosler to disregard state and federal highway safety laws, his arguments ring hollow. A reasonable jury could only find that Rosler disregarded these laws for convenience sake. First, Rosler argues that his tow truck had disengaged from the Angel Express rig at the time of the collision, and therefore he cannot be held liable. He cites no authority for this proposition. Under the undisputed facts of this case, Rosler instructed Lage to follow him to the next exit to settle the tow bill. He then pulled to a stop short of the exit, within the lane of travel. Rosler's negligent acts of stopping within the traveling lanes of I-70 and failing to deploy emergency warning triangles constituted a proximate cause of the collision. Rosler set in motion Page -27-

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the chain of events that led to the death of Morozov and Bugaychuk, and the act of Lage in stopping behind Rosler does not as a matter of law constitute a supervening cause which would eliminate any possibility of Rosler's negligence. No Colorado case has recognized the act of disengaging from the disabled vehicle as a valid defense to a violation of state and federal highway safety laws. Rosler next argues that Lage was negligent for failing to deploy emergency warning triangles behind the Angel Express rig, and Rosler could not be held liable for failing to deploy triangles because he never "assumed"any duty to do so. Rosler cites no authority for the proposition that, when two vehicles are illegally stopped on the traveling lanes of a highway, only the following vehicle has a duty to deploy triangles. The applicable highway safety statutes contain no such exception, and could not provide such an exception in this case where Rosler specifically knew Angel Express was not deploying the warning triangles. The Angel Express rig was parked only 10 feet behind Rosler. Rosler had a non-delegable duty to place at least three triangles as far as five hundred feet behind his tow truck. He could not "assume" a duty which the law imposed upon him in the first place. Had he placed his emergency reflective triangles as required by law, they would have extended several hundred feet past the Angel Express rig towards Morozov's direction of travel. A reasonable jury could only find that the emergency reflective triangles would have prevented this collision from occurring. Rosler next argues that he was only parked for "a few minutes" and therefore "still within the statute's "10 minutes" prescribed period and thus did not violate the statute." This argument misstates the mandatory language of CRS § 42-4-230, which provides that "the driver shall, as soon as possible, but in any event within ten minutes, place the bi-directional emergency reflective triangles. .. ." (emphasis added). The statutory language does not create a safe harbor Page -28-

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of 10 minutes in which the mandatory requirement of placing the emergency reflective triangles may be ignored. The statute mandates compliance as soon as it is "possible." Rosler has admitted that he was parked for between five and ten minutes before the collision, watching in his rear view mirror for that amount of time as the Angel Express driver finished a cell phone call. The Court must reject Rosler's arguments against imposition of liability under state and federal highway safety laws. Under Colorado law, the only affirmative defenses to a negligence per se action requires proof by a preponderance of the evidence that either 1) compliance with the statutory standard of care was impossible, or 2) compliance would have created a greater risk of danger or injury. Hageman, 786 P.2d at 454. Rosler has presented no evidence to support either affirmative defense, and no reasonable jury could find that either affirmative defense has been established in the present case. A reasonable jury could only find that Rosler was negligent per se in stopping in the traveling portion of the highway, and in failing to deploy the required emergency warning triangles. H. The Courts Of The 10th Judicial Circuit Do Not Recognize Judicial Estoppel. Rosler's argument for the application of the doctrine of judicial estoppel must be rejected by this Court. The 10th Circuit Court of Appeals does not recognize the doctrine of judicial estoppel. U.S. v. 162 Megamania Gambling Devices, 231 F.3d 713, 726 (10th Cir. 2000)("this circuit has expressly rejected the principle of judicial estoppel"); Guidry v. Sheet Metal Workers Int'l Ass'n, Local No. 9, 10 F.3d 700, 716 (10th Cir. 1993). Further, even if one assumes that the 10th Circuit might adopt the doctrine, the facts of the instant case fall far short of establishing that the plaintiffs' claims are barred by judicial estoppel. In order to make out a defense based upon judicial estoppel, it must be shown that 1) the Page -29-

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party allegedly taking an inconsistent position prevailed in an earlier stage of the litigation, Id. at 716; 2) the court at the earlier stage of the litigation adopted the inconsistent position as the law of the case, Id.; 3) at a minimum, there must be a prior judgment based upon the position taken by the litigant, R.L. Clark Drilling Contractors v. Schramm, Inc., 835 F.2d 1306, 1307 n. 2 (10th Cir. 1987); and 4) a detrimental change in the position of the party urging judicial estoppel as a result of reasonable reliance on the inconsistent conduct. Paul v. Monts, 906 F.2d 1468, 1474 (10th Cir. 1990). Judicial estoppel requires that each element set forth above be satisfied. Rosler's arguments fail to satisfy even one single element. His evidence is based wholly upon settlement communications, which are not admissible in this or any court to establish liability. There was no "earlier stage of the litigation" involving Rosler. No court adopted any allegedly inconsistent position. No judgment has ever been entered in any court. Most significantly, Rosler was never a party to any earlier claim or lawsuit arising from this collision, and as a result he cannot establish any detrimental change in his position based upon any alleged inconsistent position taken by the plaintiffs at an earlier stage in the proceedings. Rosler's position has been completely unaffected by any other claims against potentially responsible persons, because at no time did Rosler rely upon any allegation raised by the plaintiffs. Based upon the foregoing, Rosler's argument is wholly without merit. Even if this Court were permitted to apply the doctrine of judicial estoppel under 10th Circuit precedent, Rosler has not satisfied even one element of the four-part test. VI. CONCLUSION Rosler's summary judgment is completely lacking in any merit whatsoever. Plaintiffs respectfully request that this court deny the instant motion. Page -30-

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Dated this September 9, 2005. Respectfully submitted, /s___________________________ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 Telephone: (206) 423-1045 Facsimile: (206) 523-0822 Email: [email protected] ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 9, 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 WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 Telephone: (206) 423-1045 Facsimile: (206) 523-0822 Email: [email protected] ATTORNEYS FOR PLAINTIFFS

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