Free Motion for Summary Judgment - 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 CBS-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, AND GEORGE ROSLER, MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT ______________________________________________________________________________ Defendants George's 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., respectfully submit this Motion for Summary Judgment and Brief in Support of their Motion. INTRODUCTION This case arises from an accident which occurred on November 26, 2001. At that time, Mr. Yevgeniy Morozov was driving a Budget Rent-A-Car System's rental truck and his brother-inlaw, Mr. Alexander Bugaychuk, was a passenger in the rental truck. Earlier that morning an Angel Express, Inc. semi-truck had become stuck in the snow along Interstate 70. The Angel Express driver called the police who dispatched a local towing company, George's Towing, to pull the truck

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from the snow. After pulling the Angel Express truck free from the snow and detaching, George Rosler of George's Towing asked the Angel Express driver to drive to a nearby exit for the purposes of settling the small tow bill. The driver of the Angel Express truck, Jorge Lage, agreed. Both vehicles then moved under their own power to Exit 348 off Interstate 70. The George and Sons' tow truck pulled off to the side of the exit ramp and the semi-truck pulled up behind the tow truck. A State Trooper passed the two clearly visible trucks on the side of the road and he did not take exception to their positions on the exit ramp. Within minutes after stopping, Mr. Morozov ran into the backend of the Angel Express semi-truck. As a result, Mr. Morozov was killed instantly and Mr. Bugaychuk later died in the hospital. The Estate of Alexander Bugaychuk as well as his wife Yelena Bugaychuk and his sister Natalia Melnik, and the Estate of Yevgeniy Morozov and his wife Irina Morozov filed their Amended Complaint in this matter on November 26, 2003, bringing personal injury and wrongful death claims pursuant to C.R.S. § 13-21-202 (Colorado's Wrongful Death Statute). Plaintiffs' Amended Complaint asserts two Claims for Relief, negligence and negligence per se. The

gravamen of Plaintiffs' Amended Complaint is that George's Repair Shop and its owner, George Rosler, negligently failed to place warning devices behind the Angel Express truck and that their failure to do so was in violation of C.R.S. § 42-4-230 and the proximate cause of the accident. The Estate of Alexander Bugaychuk through its Administrators, Yelena Bugaychuk and Natalia Melnik, have all executed a Release which releases any and all entities from any type of liability regarding this matter and therefore their claims must be dismissed. Moreover, Natalia Melnik, the sister of decedent Alexander Bugaychuk, has no standing to bring a wrongful death action in the State of Colorado.

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The Plaintiffs' Amended Complaint must also be dismissed because Plaintiffs have previously filed a wrongful death action and recovered damages under the same and Colorado law prohibits more than one wrongful death action. Furthermore, these Defendants owed no duty to the decedents and therefore they are entitled to judgment as a matter of law with respect to Plaintiffs' negligence and negligence per se claims. Finally, because Plaintiffs have asserted numerous conflicting statements and claims with respect to the cause of the accident in other proceedings, they should be estopped from asserting different claims in this action. STATEMENTS OF UNDISPUTED MATERIAL FACTS 1. Complaint, ¶ 4. 2. Complaint, ¶ 5. 3. At about 10:00 a.m. on November 26, 2001 Yevgeniy Morozov was driving a Plaintiff Natalia Melnik is the sister of Alexander Bugaychuk. See Amended Plaintiff Yelena Bugaychuk is the mother of Alexander Bugaychuk. See Amended

Budget rental truck eastbound near exit ramp 348 on Interstate 70 near Cedarpoint, Colorado. Alexander Bugaychuk was a passenger in this vehicle. See Amended Complaint, ¶ 10. 4. On November 26, 2001 George Rosler ("Rosler") was working as a tow truck See

operator for George and Sons' Repair Shop, Inc. ("George's"), a Colorado corporation. Amended Complaint, ¶¶ 7-8. 5.

On November 26, 2001, Rosler received a call from the State Patrol Dispatch Office

requesting that he respond to a truck which had a wheel off the pavement on Interstate 70, just past the Cedarpoint exit. Exhibit A, deposition of George Rosler, p.6, ll.18-25; p.19, ll.2-15. 3

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6.

The truck which Rosler responded to was owned by Angel Express, Inc., a Florida

corporation, and was being driven by an individual by the name of Jorge Lage. See Amended Complaint, ¶¶ 9-10. When Rosler arrived at the scene of the truck there was a State Patrol on the scene with his vehicle located behind the Angel Express truck with his flashing overhead lights on. Exhibit A, deposition of George Rosler, p.13, ll.1-25; p.14, ll.1-2. 7. Rosler then spoke to Mr. Lage (who spoke english) who asked Rosler if Rosler

could pull him back onto the pavement. Exhibit A, deposition of George Rosler, p.10, ll.8-25; p.11, ll.1-7. 8. After agreeing to do so, Rosler hooked his cable to the semi-truck, pulled the

wrecker forward, and pulled the semi-truck onto the pavement. At that point in time Rosler unhooked his tow truck from the Angel Express truck. Exhibit A, deposition of George Rosler, p.11, ll.8-12; p.16, ll.20-22; Exhibit G, Washington State Complaint filed by Plaintiffs, ¶ 23. 9. Rosler and Mr. Lage then agreed to go to the next exit to take care of the bill for the

towing. The exit was approximately one mile away from the point where Rosler had pulled the truck onto the pavement. Exhibit A, deposition of George Rosler, p.15, ll.4-12. 10. Rosler was only on the scene approximately five minutes before both trucks moved

under their own power to the next exit, approximately a mile away. Id., p.15, ll.23-25; p.16, ll.1-9; Exhibit G, Washington State Complaint filed by Plaintiffs, ¶ 24. 11. When the two trucks neared the exit they each pulled off (as far to the right as they

could get) without going off the pavement into the ditch. Exhibit A, deposition of George Rosler, p.21, ll.10-15; Exhibit K, photographs of accident scene.

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12.

The Angel Express truck stopped approximately 10 feet behind Rosler's tow truck.

Id., p.23, ll.11-14; Exhibit B, diagram from State Police Accident Reconstruction Report. 13. Both trucks had their emergency flashers activated at the time they stopped by the

exit. Exhibit A, deposition of George Rosler, p.58, ll.17-25; p.59, ll.1-2; p.67, ll.10-19; p.93, ll.4-6; Exhibit L, Affidavit of Sandra Graeff, Elbert County Deputy Coroner. 14. Prior to the collision neither Rosler nor the driver of the Angel Express truck placed

any type of warning triangles behind the Angel Express truck. Exhibit A, deposition of George Rosler, p.38, ll.22-25; p.39, ll.1-2. 15. Shortly before the accident occurred State Patrol Trooper Jason Bandy passed the

two trucks stopped by the exit and had no problem seeing them as he passed. Exhibit C, deposition of Jason Bandy, p.6, ll.14-18; Exhibit D, Declaration of Trooper J.E. Bandy, ¶ 3. 16. Within minutes after the two trucks had stopped at the exit site, the van driven by

Yevgeniy Morozov struck the rear of the Angel Express truck. Exhibit A, deposition of George Rosler, p.39, ll.22-24. 17. The visibility was clear at the time of the accident. Exhibit C, deposition of Trooper

Jason Bandy, p.6, ll.15-18; Exhibit A, deposition of George Rosler, p.28, 11.5-17. 18. When Mr. Morozov rented the truck from Budget Rental in Seattle, Washington he

purchased Budget's $1 million supplemental liability insurance policy. Exhibit E, Letter from Komron Allahyari to Ryan Albrecht, Claims America, Inc., dated March 26, 2002, p.2. 19. Following the accident, Mr. Allahyari, Plaintiffs' counsel herein, wrote a letter to

Ryan Albrecht with Claims America, Insurance Adjustor for Budget, seeking damages on behalf of Mr. Bugaychuk's estate and heirs. In his letter Mr. Allahyari states "[A]s described below it is

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undisputed that Mr. Morozov was negligently operating the Budget truck at the time of the collision. Mr. Morozov's negligence directly and proximately caused Mr. Bugaychuk's injuries and resulting death." Exhibit E, letter from Komron Allahyari to Ryan Albrecht, Claims America, Inc., dated March 26, 2002, ¶ 2. 20. Mr. Allahyari went on to state in his letter: During the early morning of December 26, 2001, a snowstorm had caused significant snow accumulation on the road surface of Colorado's Interstate 70 in the area around the accident site causing the road to be very slippery and hazardous with snow and icepack. Interstate 70 is a four lane highway with two lanes of travel in each direction. The terrain surrounding the accident area has excellent visibility in all directions meaning there are no obstructions such as bridges or hills that would have obscured Mr. Morozov's view of an 18-wheel tractor-trailer combination parked on the shoulder of the Interstate approximately 350 feet west of exit 348." Id. at pp.2-3. 21. That the claim against Budget Rental Car was settled for the sum of $735,000 on or

about May 9, 2002 at which time the administrator of the Estate of Alexander Bugaychuk, Leonid Dmitruk, Yelena Bugaychuk, and Natalia Melnik executed a Release Agreement. The Release provides as follows: The undersigned Releasors for the sole consideration described below, receipt of which is acknowledged, do hereby for themselves and the Estate of Alexander Bugaychuk and their heirs, executors, administrators, successors-in-assigns, release, acquit, and forever discharge Yevgeniy Morozov, the Estate of Yevgeniy Morozov, Philadelphia Indemnity Insurance Company, Budget Rent-A-Car Systems, Inc., and all their agents, attorneys, servants, successors, heirs, executors, administrators, parent, successor and subsidiary companies, insurers, successors and assigns, and all other persons, firms, corporations, associations, and partnerships (collectively the 'Releasees') of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service expenses and compensation whatsoever, that Releasors now have 6

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or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident. (emphasis supplied). Exhibit F, Release between Budget Rent-A-Car and Bugaychuks, p.1. 22. On or about June 9, 2003 the Plaintiffs herein, through their attorney, Komron

Allahyari, filed a Complaint for damages for personal injuries and wrongful death in the Superior Court of Washington State, King County. In that Complaint the Plaintiffs only name Angel Express as the Defendant. See Exhibit G, Washington State Complaint. 23. In the Complaint against Angel Express, the Plaintiffs now claim that visibility was

poor on the day of the accident. (See Exhibit G, Washington State Complaint, ¶ 12). The Plaintiffs go on to allege that the proximate cause of the accident was the driver's of the Angel Express truck failure to put reflective warning triangles or emergency flares behind their Angel Express vehicle. (See ¶ 27, p.29, 43, 47). 24. In June of 2004 the Plaintiffs settled the Washington State lawsuit with Angel

Express for $750,000. See Exhibit H, Settlement Agreement and Release. 25. On or about November 26, 2003 the Plaintiffs filed their Complaint herein against

George and Sons' Repair Shop, Inc., George Rosler, Jorge Luis Lage, and Angel Express, Inc.1 In their Complaint Plaintiffs allege that it was these Defendants' failure to place warning devices behind the stopped Angel Express truck that was the proximate cause of Plaintiffs' damages.

1

As part of their settlement of the Washington State action against Angel Express, Inc., Plaintiffs agreed to dismiss the pending Colorado action against Angel Express. Angel Express was dismissed from this case on ______________________________. 7

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LEGAL ARGUMENT I. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV.P.56(c); Matson v. Burlington Northern Santa Fe R.R. Co., 240 F.3d 1233, 1235 (10th Cir. 2001). Therefore, if the moving party demonstrates that there is no genuine issue of material fact as to the existence of any element essential to the non-moving party's case, then summary judgment is appropriate. Tiberi v. Cigna Corp., 89 F.3d 1423, 1428 (10th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 106 S.Ct. 2548, 2552 (1986)). Once this initial burden is met, it becomes the burden of the non-moving party to come forward with specific facts, supported by the evidence, upon which a reasonable jury could return a verdict for the nonmoving party. Id. at 1428 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Genuine issues of material fact cannot be raised by the argument of counsel. Sullivan v. Davis, 474 P.2d 218 (1970). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Tiberi, 89 F.3d at 1428 (quoting First Nat'l Bank of AZ v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592 (1968)). Therefore, in order to withstand summary judgment in the case at bar, Plaintiffs carry the burden of proving the existence of facts which, if proven true, would warrant a finding that their claims of negligence and negligence per se exist against Defendants George's and Rosler. II. Plaintiff Natalia Melnik Lacks Standing to Assert a Claim Pursuant to Colorado's Wrongful Death Statute

Colorado's wrongful death statute states the following:

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When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages not withstanding the death of the party injured. C.R.S. § 13-21-202 (2004). The classes of Plaintiffs who may bring suit under C.R.S. § 13-21-202 are listed in C.R.S. § 13-21-201. In relevant part, section (c)(I) states: "If the deceased is ... an unmarried adult without descendants, by the father or mother who may join in the suit." C.R.S. § 13-21-201 (2004). Section (c)(I) further states that "[t]he father and mother shall have an equal interest in the judgment, or if either or them is dead, then the surviving parent shall have an exclusive interest in the judgment." Id. It is undisputed Mr. Bugaychuk was an unmarried adult. Therefore, the only people who can file a wrongful death action are his parents. Because Ms. Melnik is his sister, she lacks standing to file a wrongful death action. See Ablin v. Richard O'Brian Plastering Co., 885 P.2d 289 (Colo. App. 1994) (heirs do not include brothers and sisters); Sager v. City of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982) (this section does not provide for cause of action by deceased's sister). Accordingly, her claim must be dismissed.

III.

Even Assuming Arguendo that Natalia Melnik has Standing to Bring a Wrongful Death Suit, Neither She, nor Yelena Bugaychuk, can Prove a Prima Facie Case of Financial Dependence on the Decedent, Alexander Bugaychuk

Both Natalia Melnik (sister of the decedent, Alexander Bugaychuk) and Yelena Bugaychuk (mother of Alexander Bugaychuk) have brought claims alleging they were financially dependent on

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Alexander Bugaychuk. There must be some evidence to prima facie to establish with a reasonable degree of certainty the damages flowing from a wrongful death. Herbertson v. Russell, 371 P.2d 422 (Colo. 1962). During the course of their depositions, both Natalia Melnik and Yelena Bugaychuk were asked about specific amounts of money Alexander Bugaychuk had given them in any one year prior to his death. Neither could state the amount of money Mr. Bugaychuk had allegedly provided to them in any given year. Ms. Melnik testified as follows: Q: A: In 2001, how much money did Alexander give you? We went to Florida to visit him and he paid all our expenses. He took good care of us. We had a terrific vacation. We visited Orlando, University Studios [sic], and other attractions; also museums, Augustine. . . .

Exhibit M, deposition of Natalia Melnik, p.25, ll.22-25; p.26, 11.1-3. Q: A: Q: A: Q: A: Q: A: Other than this trip to Florida that Alexander paid for, what other monies did he give to you in 2001? He gave cash in different amounts. How much cash did he give you total in 2001? I didn't count. So sitting here today you can't tell me at all how much money he might have given you? I don't remember about 2001. But prior to that the amounts were sizeable. That's why I remember. So you don't remember any amounts in 2001, is that correct? Correct. But I know that he was giving me money. That's why I cannot give you the exact number.

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Q: A: Q: A:

Let's talk about in 2000. How much did Alexander give you in the year 2000? That was a long time ago. In 1999 he provided me with cash to buy a car. Going back to my question, can you tell me how much Alexander gave you in 2000? He helped us not only with cash. He purchased clothing for my children. He would buy food for us when he came. And of course he gave cash but I don't remember how much he gave me in 2000. But it was a sizeable help because I'm a single mother working only - - I'm the only source of income and I have four children. But you can't tell me how much it was even though it was a sizeable amount? I cannot give you an exact number. Did you write it down anywhere when he would give you money? No. . . .

Q: A: Q: A:

Id., p.26, ll.23-25; p.27, ll.1-25; p.28, ll.1-5. Q: A: Q: A: Q: A: What's the most he ever gave you at one time? One thousand. Is that the $1,000 you mentioned before that he gave you in 1999 to help buy a car? To help buy a car. Other than that $1,000 in 1999, how much other money did he give you in 1999? As I already said, I didn't record the amounts. Never.

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Q: A:

So you can't tell me? No I cannot give the exact number. . . .

Id., p.29, ll.12-22. Q: A: Can you tell me in the years 1995, 1996, 1997, 1998, how much he gave you in any one of those years? No I don't remember.

Deposition of Natalia Melnik, p.30, ll.20-22. Yelena Bugaychuk testified similarly: Q: Ms. Bugaychuk . . .one of the claims that you're bringing in this case is that you were dependent upon Alexander for financial support. And what I want to know is what - - just like I asked Natalia, can you tell me how much money Alexander gave you in 2001? You know, like she, I did not record any amounts I received. Because in our family it's not tradition to do this and we don't keep track of help we get from family members. Can you give me an estimate of how much he gave you in 2001? I don't know how much total during the year. I know for sure that - - for instance one time he gave me $500. That was in 2001? I don't remember when it was. . . . Exhibit N, deposition of Yelena Bugaychuk, p.6, ll.6-22. Q: First of all, how long has Alexander been giving you money?

A:

Q: A: Q: A:

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A:

I cannot tell you exactly because it was always a rule in the family that if one experiences difficulties others help but we never made it a habit of record everything. Would it be accurate to say then that you can't tell me for any given year how much money Alexander might have given you in any one given year? I never counted it because his assistance, which he provided me was the same type as you heard from my daughter's testimony.

Q:

A:

Exhibit N, Deposition of Yelena Bugaychuk, p.6, 1.25; p.7, ll.1-12. In short, 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. Because they cannot set forth any amounts with certainty, they cannot establish a prima facie case with a reasonable degree of certainty with respect to financial dependence on Alexander Bugaychuk. As such, their claim for financial dependence must be dismissed as a matter of law. IV. The Estate of Alexander Bugaychuk's, Yelena Bugaychuk's, and Natalia Melnik's Claims Must be Dismissed Because They Have Released the Defendants Herein From Any and All Liability

On May 9, 2002, Plaintiffs Ms. Bugaychuk, Ms. Melnik and Ms. Dmitruk signed a release stating: The undersigned, Yelena Bugaychuk, Natalia Melnik and Leonid Dmitruk, Administrator of the Estate of Alexander Bugaychuk (hereinafter collectively referred to as the "Releasors"), claim to have been injured as the result of the Accident which the Releasors allege to have been the fault of Morozov. The parties desire to forever resolve all disputes as to the liability for the Accident and for all damages that have resulted from the Accident. In order to forever resolve this dispute and to forever buy the peace of the parties, the following agreement is made: 13

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RELEASE: The undersigned Releasors, for the sole consideration described below, receipt of which is acknowledged, do hereby for themselves, and the Estate of Alexander Bugaychuk and their heirs, executors, administrators, successors and assigns release, acquit and forever discharge Yevgeniy Morozov, the Estate of Yevgeniy Morozov, Philadelphia Indemnity Insurance Company, Budget Rent-A-Car Systems, Inc., and their agents, attorneys, servants, successors, heirs, executors, administrators, parent, successor and subsidiary companies, insurers, successors and assigns, and all other persons, firms, corporations, associations and partnerships (collectively the "Releasees") of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, that Releasors now have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the Accident. (See Exhibit F, Release between Budget Rent-A-Car and Bugaychuks) The Court of Appeals for the Tenth Circuit has upheld the district courts' granting of summary judgment in many cases involving signed releases. In an unpublished decision with a very similar release to the one at hand, the passenger in an automobile executed two releases after an accident between an automobile and a truck. Smith v. Englerth, 1995 U.S. App LEXIS 3954 (1995) (attached as Exhibit O). While Smith arose out of Oklahoma, the court examined language in Oklahoma's Uniform Contribution Against Tortfeasors Act, which is identical to the language in Colorado's Uniform Contribution Against Tortfeasors statute. Id at LEXIS 6; see also COLO. REV. STAT. § 13-50.5-105 (2004). In Smith, the court examined the following statutory language: "[a release] does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide." Smith at U.S. App. LEXIS 3954 at 6 (quoting Okla. Stat. Tit. 12 832(H)). The court held that the legislature's use of "'unless its terms so provide' makes it clear that the statute does not limit the reach of the release where, as here, the terms of the release specifically 14

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include all possible Defendants, named and unnamed." Smith at U.S. App. LEXIS 3954 at 8. The Court also pointed out that where a release is "properly executed, is unambiguous, and release[s] all potential Defendants from liability resulting from the accident, ... [the] action against the Defendants is barred by the provisions of the ... Release." Id. at LEXIS 9. The United States District Court for the District of Colorado has also examined the scope of releases. "Colorado law establishes that '[t]he scope of a release is determined by 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.'" Equitable Life Assurance Society v. Meiers, 629 F. Supp. 1194, 1194 (Colo. 1986) (quoting Cingoranelli v. St. Paul Fire and Marine Ins. Co., 658 P.2d 863, 865 (Colo. 1983)). In Equitable Life Assurance Society, the Court stressed the importance of giving "the language reflecting the scope of the release its obvious meaning ...." 629 F. Supp at 1194. Colorado state courts have afforded releases similar treatment. The Colorado Court of Appeals has upheld a release as barring future claims where the release is written in plain language. USAA Property and Casualty Co. v. Brady, 867 P.2d 203, 205 (Colo. App. 1993). The Colorado Supreme Court in Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (1989) (quoting the Illinois Supreme Court in Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917 (1988)), stated, "when the parties adopt broad language in a release, it is reasonable to interpret the intended coverage to be as broad as the risks that are obvious to experienced participants." The broad language in Plaintiffs' release is a perfect example of language plainly written and comprehensible to the signed parties. The Colorado Supreme Court also traced the common-law reasoning behind releases by explaining, "where multiple tortfeasors acted in concert in causing an injury, the act of one became

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the act of all, with each participant liable for the entire loss sustained by the Plaintiff. The surrender of that single cause of action resulted in releasing each joint tortfeasor from liability." Cingoranelli v. St. Paul Fire and Marine Ins. Co., 658 P.2d 863, 866 (1983) (citing W. PROSSER, HANDBOOK ON THE LAW OF TORTS § 49 at 301 (4th ed. 1971)). The Court in Cingoranelli noted that some prior decisions had gone even further by expanding "the joint tortfeasor release rule to include torts which were independent or successive and did so on the basis that the compensation received for the first release was presumed to include any injuries and damages resulting from the other tort claims." Cingoranelli, 658 P.2d at 866. Because this rule was deemed draconian in some circumstances, the Colorado Supreme Court "tempered the rule so as to allow a party to preserve a claim against another 'joint' tortfeasor, even though there was only one resulting injury, as long as the intent was specifically set forth in the release instrument." Id. (citing Cox v. Pearl Inv. Co., 450 P.2d 60 (1969)). However, here, Plaintiffs' release made no movement towards preserving a claim against other tortfeasors in that as they released "all other persons ... from any and all claims ... expenses and compensation whatsoever ... on account of or in any way growing out of any and all ... foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the Accident" (See Exhibit F, Release between Budget Rent-A-Car and Bugaychuks) As the Supreme Court of Colorado has noted, "[w]here a valid release which would defeat the cause of action is asserted as an affirmative defense, the court has a duty to grant a judgment based thereon." DeJean v. United Airlines, Inc., 839 P.2d 1153, 1161 (1992) (citing Ulibarri v. Christenson, 275 P.2d 170, 171 (Utah 1954)). Given the foregoing reasons and supporting case law,

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Plaintiffs have already released all parties from liability in exchange for their settlement with Budget Rent-A-Car. Therefore, summary judgment is appropriate for these Defendants. V. The Plaintiffs' Complaint Must be Dismissed as Colorado Law Allows Only One Wrongful Death Action and Plaintiffs Have Already Pursued Such an Action and Settled the Same in Washington State

Colorado's Wrongful Death Statute states in part "[T]here shall be only one civil action . . . for recovery of damages for the wrongful death of any one decedent." C.R.S. § 13-21-203(1). Similarly, the Court in Estate of Kronemeyer v. Meinig: We conclude that the plain language of 13-21-203(1) clearly and unambiguously reflects the intent of the General Assembly to permit only one wrongful death action for the death of one decedent. Pursuing in any sequential manner several wrongful death actions against different Defendants in asserting different causes of death is prohibited. Therefore, the trial court correctly concluded that the second wrongful death action in the instant case could not be maintained. 948 P.2d 119 (Colo. App. 1997) Furthermore, the legislative history is explicit that the reason that the legislature included this language regarding one civil action was its concern for the possibility that a decedent's heirs might obtain multiple recoveries under the Wrongful Death Act. Amendment that added this language, Representative Berry stated: There had been some misunderstandings as to whether multiple actions could be brought based on the death of one person. It is the Colorado case law as interpreted by the courts that only one action can be brought for the wrongful death of any one decedent, and based on some of the misunderstanding I thought it was necessary to put that in the Statute to codify that rule. And you see the Berry 4 Amendment which says that for the wrongful death of any person there may only be one action and one recovery and not multiple actions by multiple survivors and I would ask for its adoption. In discussing the 1989

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Transcript of Proceedings In Re: Senate Bill 93: Wrongful Death, House-Second Reading (March 22, 1989). Here, it is undisputed that the Plaintiffs have already maintained one wrongful death action, albeit in the State of Washington for the death of the decedents herein. They have also recovered damages pursuant to the settlement of that lawsuit. To allow the Plaintiffs to now pursue another wrongful death action here in Colorado would subvert the very purpose of Colorado's Wrongful Death Statute which prohibits such multiple actions. As such, Plaintiffs' Amended Complaint must be dismissed. VI. Defendants are Entitled to Judgment as a Matter of Law With Respect to Plaintiffs' Negligence and Negligence Per Se Claims A. Plaintiffs' Negligence Claim

Plaintiffs allege that Defendants, George's and Rosler, were negligent based on the following allegations: stopping in the exit lane for east-bound vehicles exiting Interstate 70, not placing adequate warnings to approaching east-bound traffic, and for towing the Angel Express semi-truck and trailer to the exit. In order for Plaintiffs to establish a claim of negligence under Colorado law they "must establish: (1) a duty of reasonable care owed by the Defendant to the Plaintiff; (2) a breach of that duty; (3) damage to the Plaintiff; and (4) a causal connection between the duty breached and the damage sustained." Ryder v. Mitchell, 54 P.3d 885, 889 (Colo. 2002). Plaintiffs' claim of negligence must fail however, as Defendants owed no duty to the decedents. At common law, the existence of duty is a question of law. Cary v. United of Omaha Life Ins. Co., 68 P.3d 462, 465 (Colo. 2003). A Defendant always has the option at common law of arguing that he did not owe a duty to an injured Plaintiff. Structurally, this argument is independent

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of and arises before other recognized tort defenses such as contributory and comparative fault. Where a Defendant successfully argues no duty, there is no subsequent inquiry into negligence. Vigil v. Franklin, 103 P.3d 322, 325 (Colo. 2004). The undisputed facts reveal that Defendants responded to Mr. Lage's call that his truck was stuck in a snow-bank. Rosler drove the tow-truck from George's to the location on Interstate 70 where the Angel Express truck was located. After quickly extricating the truck from the snowbank, Rosler unhooked the Angel Express truck from the tow-truck and they both independently traveled almost a mile down the interstate and parked partially in an exit lane and partially off the pavement. State Trooper Jason Bandy passed the tow-truck and Angel Express truck parked on the far right of the roadway and out of the through lanes just minutes before the accident. Trooper Bandy noticed them on the side of the road, could clearly see the Angel Express truck, took no exception the circumstances because the vehicles were positioned appropriately near the shoulder, and both trucks were clearly visible from a significant distance from Mr. Morozov's direction of travel. (See Exhibit D, Declaration of J.E. Bandy). Exhibit L, Affidavit of Sandra Graeff, Elbert County Deputy Coroner. Despite these facts, Mr. Morozov drove directly into the rear of the Angel Express truck. First, Plaintiffs' claim is based upon the false notion that these Defendants towed the Angel Express truck to the final stopping point where the accident occurred. However, the undisputed evidence is that the two vehicles drove to the location independently of one another. Exhibit A, deposition of George Rosler, p.11, ll.8-12; p.15, ll.4-25; p.16, ll.1-9, 20-22; Exhibit G. Washington State Complaint filed by Plaintiffs, ¶¶ 23-25.

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It is also undisputed that Rosler and his truck were not involved in the accident as the decedent's vehicle only struck the Angel Express Truck. Simply put, Rosler and George's owed no duty to the decedents. Once the two trucks moved under their own power to the location near the accident, each driver had their own independent duty with respect to placing warning triangles to protect the back of their vehicles. It is undisputed that the Angel Express truck stopped in back of Rosler's tow truck. At no time did the Angel Express driver place any type of warning devices behind his truck. At no time did Rosler ever assume any type of duty to do so. As such, any duty that was owed to decedents was owed by Angel Express and/or its driver. Because these

Defendants owed no duty to the Plaintiffs, their claim for negligence must be dismissed. Furthermore, given the undisputed facts, it is clear that Mr. Morozov's negligence as a matter of law was the sole and proximate cause of Plaintiffs' damages. A court may usurp the function of the jury in a negligence action and direct a verdict for either party where the evidence is undisputed and where reasonable men could reach but one conclusion from the evidence. Pioneer Construction Co. v. Richardson, 490 P.2d 71, 73 (Colo. 1971). And while under Colorado's comparative negligence statute (C.R.S. § 13-21-111(4)) the percentage of fault is usually an issue for the jury, where the facts are undisputed and reasonable minds can draw but one inference from them, such issues may be determined as a matter of law. See, Transamerica Ins. Co. v. Pueblo Gas and Fuel Co., 519 P.2d 1201 (Colo. App. 1973); Gordon v. Benson, 925 P.2d 775 (Colo. 1996). Further, in the absence of conflicting testimony, the determination of proximate cause is for the court. Pioneer Construction, 490 P.2d at 74, citing Stout v. Denver Park Amusement Co., 287 P. 650 (Colo. 1930).

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Several courts have addressed similar factual scenarios where drivers have driven into the back of other vehicles. In Ackley v. Watson Bros. Transp. Co., Inc., 123 F. Supp. 649, 651 (D. Colo. 1954), the court, in directing a verdict for the Defendant, stated that Plaintiff: was willing to proceed without a judgment as to the distance it would take him to stop. . . [H]e should have foreseen, in view of his conceded knowledge of conditions, that if other vehicles were not actually stopped so as to necessitate flares, still they might be proceeding so slowly that their avoidance by him would involve about the same problem as if they were stopped. Colorado state courts have also addressed similar issues. In a case that is both similar and analogous to the case at hand, a truck driver who was traveling very slowly on a highway during a severe dust storm with limited visibility (ten to fifteen feet in front of an automobile), was rearended by a vehicle traveling between 40 and 50 miles per hour. Brice v. Miller, 218 P.2d 746 (Colo. 1950). The Colorado Supreme Court held that because the truck driver's judgment was that of a reasonably prudent person and because the Plaintiff was the sole and proximate cause of his passenger's death, the truck driver was not negligent. Id. at 752. Here, it is undisputed that there was absolutely no reason why Morozov could not have seen the Angel Express truck that was stopped partially in an exit lane and on the shoulder of Interstate 70. Reasonable persons cannot differ or draw any inferences to the contrary that it was Morozov's negligence and his negligence alone that caused the accident. As such, Defendants are entitled to summary judgment. B. Plaintiffs' Negligence Per Se Claim

Plaintiffs' second claim for relief asserts negligence per se based on C.R.S. § 42-4-230. C.R.S. § 42-4-230 states, in part: Emergency lighting equipment--who must carry

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(1) No motor vehicle carrying a truck license and weighing six thousand pounds or more ... shall be operated over the highways of this state at any time without carrying in an accessible place inside or on the outside of the vehicle three bi-directional emergency reflective triangles of a type approved by the department ... (2) Whenever a motor vehicle referred to in subsection (1) of this section is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the bi-directional emergency reflective triangles as directed in subsection (3) of this section. (3) Except as provided in subsection (2) of this section, whenever a motor vehicle referred to in subsection (1) of this section is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within ten minutes, place the bidirectional emergency reflective triangles in the following manner... (4) No motor vehicle operating as a wrecking car at the scene of an accident shall move or attempt to move any wrecked vehicle without first complying with those sections of the law concerning emergency lighting. (5) Any person who violates any provision of this section commits a class B traffic infraction. There is no genuine issue for trial as to Plaintiffs' negligence per se claim. Defendants fully complied with the statute at issue. Specifically, at the time of the accident Rosler was carrying the bi-directional emergency triangles required under the statute. Exhibit A, deposition of George Rosler, p.65, ll.16-25. As previously noted, Rosler pulled the Angel Express semi-truck from the snow-bank and then unhooked the Angel Express truck from the tow-truck. Rosler then drove up to the exit ramp, followed by the independently-driven Angel Express truck. Although the tow-truck and the Angel Express truck were not still connected, they did pull on the shoulder of the exit lane on Interstate 70. They had been there for only a few minutes in order to settle the bill for removing 22

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the Angel Express truck from the snow-bank when the accident occurred. Rosler was still within the statute's "10 minutes" prescribed period and thus did not violate the statute. More importantly however, because Rosler did not tow the Angel Express semi-truck to the location of the accident, any obligation to place the warning signals would have fallen upon the Angel Express driver. The Angel Express truck was the vehicle in the proper position to place warning flares or triangles so as to warn drivers of its presence, not George's tow-truck. Even had George's or Angel Express violated C.R.S. § 42-4-230, a failure to place warning flares "does not constitute actionable negligence unless it is the proximate cause of the injury." Denver-Los Angeles Trucking Co. v. Ward, 164 P.2d 730, 732 (Colo. 1946). In Denver-Los Angeles Trucking Co., the defendant truck driver was traveling up an icy highway in a large truck-trailer going about five miles per hour. His truck started to slip backwards, so he jackknifed the truck in order to prevent it from rolling backwards down the slope of the highway. A second truck was behind him and stopped in order to avoid running into the jackknifed truck. Immediately thereafter, within three or four minutes, a passenger car crashed into the back of the second truck. The Plaintiffs sued the jackknifed truck for negligence because it blocked the highway and failed to place out warning flares to warn approaching cars. The Colorado Supreme Court held that summary judgment should have been awarded to the Defendant because he was not negligent and the Plaintiff should have seen the truck's lights. Id. at 731. Given the clear visibility at the time of the accident, failure to place warning triangles was not the proximate cause of the accident. If Morozov could not see the large semi-truck on the side of the road that had its flashers on, there is no reason to believe warning triangles would have prevented him from running into the back of the truck.

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VII.

Plaintiffs Should be Judicially Estopped From Asserting Claims Against These Defendants In Light of Previous Contradictory Claims in Other Courts Alleging That the Accident was Either the Fault of Decedent Morozov or That of Angel Express' Driver

Plaintiffs herein have alleged that the sole and proximate cause of the accident from which they claim damages was the negligence of these Defendants in failing to place warning triangles or flares behind the Angel Express truck. However, Plaintiffs should be judicially estopped from asserting such claims against these Defendants in light of the fact that the Plaintiffs have taken previous contradictory positions in other courts alleging that the sole and proximate cause of the accident was either the fault of the driver, Morozov, or that of the Angel Express driver. The Supreme Court has addressed the issue of judicial estoppel in the State of New Hampshire v. State of Maine, 532 U.S. 742, 121 S.Ct. 1808 (149 Law.Ed.2nd 986) (2001). There the court stated: Although we have not had occasion to discuss the doctrine elaborately, other courts have uniformly recognized that its purpose is 'to protect the integrity of the judicial process,' Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (C.A.6 1982), by 'prohibiting parties from deliberating changing positions according to the exigencies of the moment," United States v. McCaskey, 9 F.3d 368, 378 (C.A.5 1993). See In Re Cassidy, 892 F.2d 637, 641 (C.A.7 1999) ('judicial estoppel is a doctrine intended to prevent the perversion of the judicial process,'); Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (C.A.4 1982) (judicial estoppel 'protects the essential integrity of the judicial process'); Scarano v. Central R.Co., 203 F.2d 510, 513 (C.A.3rd) (judicial estoppel prevents parties from playing 'fast and loose with the courts') (quoting Stretch v. Watson, 6 N.J.Super. 456, 469, 69 A.2d 596, 603 (1949). Because the rule is intended to prevent 'improper use of judicial machinery,' Konstantinidis v. Chen, 200 U.S. App. D.C. 69, 626 F.2d 933, 938 (C.A.D.C. 1980), judicial estoppel 'is an equitable doctrine invoked by a court at its discretion.' Russell v. Rolfs, 893 F.2d 1033, 1037 (CA.9 1990). 532 U.S. 750-51 (citations in original).

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The Supreme Court went on to note: Courts have observed that the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle. Nevertheless, several factors typically inform the decision whether to apply the doctrine in a particular case: [F]irst, a party's later position must be 'clearly inconsistent' with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception of either the first or second court was misled.' Absent success in a later proceeding, a party's later inconsistent position introduces no 'risk of inconsistent court determinations' and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Id. at 750-51. However, the Supreme Court was quick to point out that in enumerating the aforementioned factors, it was not establishing inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel. The Court noted that additional

considerations may inform the doctrine's application in specific factual context. Id. at 751. The Tenth Circuit has also recently addressed the issue of judicial estoppel in Beem v. McKune, 317 F.3d 1175 (10th Cir. 2003) (plurality). In a concurring opinion, Judge O'Brien wrote "[N]ow is the time to embrace the invitation extended by the Supreme Court in New Hampshire and join other circuits in reining in those litigants who play 'fast and loose with the courts.'" citing Sperling v. United States, 692 F.2d 223, 227 (2nd Cir. 1982) (Graafeiland, J., concurring). The Third Circuit Court of Appeals in Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3rd Cir. 1996), has expanded on the doctrine of judicial estoppel and 25

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has held that at least in the Third Circuit that it is not the general rule that a party must have benefited from his prior position in order to be judicially estopped from subsequently asserting an inconsistent one. Id. at 361. Rather, citing to Lewandowski v. National Railroad Passenger Corp. (AMTRAK), 882 F.2d 815, 819 (3rd Cir. 1989), the court held "[T]he critical issue is what the [party] contended in the underlying proceeding, rather than what the jury found." Whether the party sought to be estopped benefited from its earlier position or is motivated to seek such a benefit may be relevant insofar as it evidences an intent to play fast and loose with the courts. It is not, however, an independent requirement for application of the doctrine of judicial estoppel. Id. Defendants here would urge this Court to adopt the Third Circuit's position in that this is a classic case of litigants playing "fast and loose with the courts." As noted above, Plaintiffs' attorney herein initially represented only the Bugaychuks and made a claim against Budget Rent-A-Car's insurance company claiming that it was Morozov's , the driver of the Budget rental van, sole negligence that was the proximate cause of the accident that is the subject matter of this litigation. On May 9, 2002 that matter was settled for $735,000. As part of the settlement agreement, Philadelphia Indemnity Insurance Company, the insurer for Budget Rent-A-Car, interpleaded $225,000 into the District Court for Elbert County based upon allegations by the Angel Express driver and passenger that they had been injured in the accident. The Bugaychuks, Jorge Lage, and Orelvis Nieves were named as defendants in that action. Then, on June 9, 2003, Plaintiffs (both Bugaychuks and Morozovs) through the same attorney, Komron Allahyari, filed a Complaint for damages for personal injuries and wrongful death in the Superior Court of Washington State, King County. In that Complaint the Plaintiffs

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only name Angel Express as a defendant, alleging that it was Angel Express' sole negligence that was the proximate cause of the accident. On November 26, 2003, the Plaintiffs herein filed their Complaint in this Court against George and Sons' Repair Shop, Inc., George Rosler, Jorge Luis Lage, and Angel Express, Inc., alleging it was the Defendants' failure to place warning devices behind the stopped Angel Express truck was the proximate cause of Plaintiffs' damages. The Washington State lawsuit against Angel Express was settled in June of 2004 for $750,000. In a Declaration filed with this Court, Mr. Allahyari now maintains that the reasons behind filing the 2003 lawsuits against Angel Express and George and Sons' et al. was the examination of photographs by which he concluded that the Angel Express truck and George and Sons' trucks were in the exit lane of I-70 as opposed to being on the shoulder. However, since the filing of these Complaints in 2003 the Plaintiffs, through their attorney, have continued to take inconsistent positions in court filings and maintain that it was Morozov's negligence that caused the accident. For example, following the Washington State litigation settlement, guardianship proceedings were instituted in the Superior Court of Washington, County of King, for the benefit of the minor Morozov children. (Cause No. 03-4-06947-4 SEA). That guardianship proceeding dealt with distribution of portions of the $750,000 settlement. As part of that guardianship proceeding, Mr. Allahyari sought payment of $250,000 in attorney's fees. In support thereof, Mr. Allahyari submitted a declaration to the court on March 12, 2004 with numerous exhibits including a letter to Helene Ellenbogen, the guardian ad litem appointed for the children. See,

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Exhibit I.

Defendants would direct the Court's attention to page 4 of Exhibit I wherein

Mr. Allahyari states: In the meantime, the materials sent to you to date illustrate the significant effort expended by my office (including the combined efforts of three separate attorneys) on the $750,000 settlement. When evaluated in light of the additional claims, (including the Morozovs as claimants), the completely different approach on liability (pursuit of Angel Express versus pursuit of Morozov) and the risk associated with recovery against Angel Express (after already establishing and recovering settlement based on Morozov's liability), it is clear that my office is entitled to the full measure of the agreed upon fees. Mr. Allahyari goes on to state in his letter: On behalf of the Bugaychuks, my office initially pursued Morozov claiming Mr. Morozov was solely responsible for the subject accident. . . .The risk and/or likelihood of thereafter prevailing against Angel Express should not be ignored in your determination of the reasonableness of the recent $750,000 settlement with respect to the minors. We have discussed several of these risks already. Most significantly there is significant possibility that, according to Colorado law Mr. Morozov could be found to be more than 50% responsible for the accident thereby completely eliminating any entitlement to the recovery from Morozov or his family. According to Trooper Bandy, Mr. Morozov was 100% responsible. Exhibit I, letter to Helene Ellenbogen, pp.4-5. Based upon these representations, the Washington State court awarded Mr. Allahyari his attorneys fees. As noted above, Philadelphia Indemnity Insurance Company filed an interpleader action in Elbert County District Court with respect to $225,000 that was set aside from insurance proceeds due to injury claims that Jorge Lage and Mr. Nieves, the driver and passenger of the Angel Express truck, had asserted. Initially a default judgment was entered against the Bugaychuk Defendants (including Leonid Dmitruk, Yelena Bugaychuk, and Natalia Melnik on August 19, 2003) for failure 28

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to respond to the Complaint. On April 9, 2004, the Bugaychuk Defendants, through their Colorado attorney, Robert Steiert, filed a Motion to Dismiss alleging that the court lacked personal jurisdiction over them in the interpleader action. Mr. Nieves' and Mr. Lage's attorney filed a response to that Motion and on May 4, 2004 the Bugaychuk Defendants filed a Reply Brief, (attached hereto as Exhibit J). In that Reply Brief when discussing how the accident occurred, the Bugaychuk's attorney references a Declaration of Mr. Allahyari which in turn references the State of Colorado Traffic Accident Report and the Release signed by the Bugaychuks in the Budget Rental Car settlement. On page 3 of the Reply Brief, the Bugaychuks' attorney states: Since the collision was caused in part by the negligence of Morozov, the Bugaychuk survivors made a claim against Morozov's insurance carrier, Plaintiff Philadelphia Indemnity Insurance Company. Thus, even subsequent to filing their Complaint against these Defendants alleging it was these Defendants' sole negligence that was the proximate cause of the accident herein, they are still making contradictory representations to other courts regarding this matter. It is clear that the Plaintiffs are "playing fast and loose" with the courts saying whatever they have to when it benefits their interest. In the guardianship proceedings, they admit to the fault of Morozov. In the interpleader action the Plaintiffs were attempting to recover the

$225,000 that they had initially agreed to interplead into the Elbert County Court arguing that the insurance company was somehow negligent. In the Washington State action against Angel Express, the Plaintiffs were attempting to lay sole blame on only Angel Express. Here, they are attempting to assert new legal and factual theories alleging that it was these Defendants' negligence that caused the Plaintiffs' damages. Such actions should not be condoned by this Court. Defendants would respectfully request this Court apply its discretion and invoke the

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doctrine of judicial estoppel, prohibiting Plaintiffs from asserting inconsistent positions in this matter and dismiss the claims against these Defendants. CONCLUSION For the foregoing reasons, Defendants would respectfully request that this Court grant them summary judgment and for such other and further relief as their cause may require. Dated this 11th day of August, 2005. Respectfully submitted, /s____________________________ 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 11th day of August 2005, I electronically filed the foregoing DEFENDANTS' GEORGE AND SONS' REPAIR SHOP, AND GEORGE ROSLER, MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT 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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