Free Reply - District Court of Colorado - Colorado

Case 1:04-cv-00865-REB-CBS

Document 118

Filed 09/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv- 0865- REB- CBS
ESTATE OF APRil Hill

SCOTT Hill , personal representative; SCOTT Hill , as Conservator of the Estate of Katelyn Hill; and SCOTT Hill , individually
Plaintiffs

AllSTATE INSURANCE COMPANY; MERASTAR INSURANCE COMPANY; and PRUDENTIAL INSURANCE COMPANY OF AMERICA

Defendants.
DEFENDANT ALLSTATE INSURANCE COMPANY' S REPLY TO PLAINTIFF' S OPPOSITION TO JOINDER IN MERASTAR' S MOTION FOR PARTIAL SUMMARY JUDGMENT ON CLAIMS FOR LOST WAGES

Defendant Allstate Insurance Company ("Allstate ), through its counsel , submits

the following Reply to Plaintiff's Opposition to Joinder in Merastar s Motion for Partial
Summary Judgment on the Claims of Scott Hill as the Conservator of the Estate of

Katelyn Hill for lost Wages.

On August 9 , 2005 , this Court entered an Order granting Defendant
Merastar Insurance Company s Motion for Partial Summary Judgment on the Claims of

The Estate of Katelyn Hill for lost Wages (the " Motion for Partial Summary Judgment"

(Order , Docket No. 98. )

In granting

summary judgment , the Court adopted Merastar

argument that Katelyn Hill is not entitled to lost wages under the No Fault Act as a

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matter of law , because she was not employed and was not earning wages at the time of

the accident. (kL; Merastar s Motion for Partial Summary Judgment , Docket No. 82.
On August 10 , 2005 , Allstate filed a Joinder in the Motion for Partial

Summary Judgment (the " Joinder ), incorporating the arguments made by Merastar

because they are equally applicable to Allstate. (Docket No.

1 02.

Plaintiff filed an Opposition to the Joinder on August 29 , 2005 (the

Opposition ), which was in substance a motion to reconsider the order granting
Merastar partial summary judgment. (Docket No. 1 08) By using the Opposition as a

vehicle to seek reconsideration of the order , Plaintiff violated D.

Colo. LCivR 7. 1 (C),

which provides that a motion " shall not be included in a response or reply to the original

motion " but rather , must be made in a separate paper.

Id.

On September 1 , 2005 , Merastar filed a Response to Plaintiff's Opposition

to the Joinder ("Merastar s Response ), arguing that the Opposition was an improper

effort to re- hash the arguments already made by Plaintiff and rejected by the Court in
ruling on the Motion for Partial Summary Judgment. (Merastar s Response , Docket No.
114 at 2) Merastar also

addressed Plaintiff' s argument that summary judgment

should not have been granted because the scope of coverage in the policy is a disputed

factual issue. (kL at 6- ) Allstate joins in Merastar s arguments , and incorporates the
contents of Merastar s Response by reference.
In his last- ditch effort to obtain a reversal of the Court' s order , Plaintiff

argued that to rule that Katelyn Hill has no valid wage loss claim is to determine that the
coverage at issue is limited rather than unlimited in scope , a disputed factual issue.

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(Opposition , Docket No. 108- 1 at 8- ) However , there is no relationship between the
Court' s summary judgment ruling and any disputed factual issue. In adopting

Merastar s arguments , the Court held that lost wages are not recoverable under the
undisputed facts of this case
even if

Plaintiff could establish entitlement to reformation.

(See Merastar s Response , Docket No. 114 at 7. ) The ruling determined a legal issue

not a factual one , as it was based on the provisions of the No- Fault Act and the
undisputed facts surrounding Katelyn s employment status.

Not only did the Opposition merely re-assert the arguments that had

already been made , it contained no argument in " opposition " to Allstate s Joinder.
Plaintiff did not even attempt to make a distinction between Allstate and Merastar , or to

articulate any reason why Allstate should not obtain the same summary judgment relief
granted to Merastar.

When a court decides upon a rule of law , that decision should continue to

govern the same issues in subsequent stages in the same case. See ,
v. Ce/otex Corp. 53 F. 3d 1181 , 1183 (10th Cir. 1995) (citing cases);

e.

Rohrbaugh

Sa/ehpoor v.

Shahinpoor 358 F. 3d 782 , 785 n. 4 (10th Cir. 2004). In this case , the Court'
determination that Katelyn Hill cannot recover lost wage benefits should apply with

equal force to Plaintiff's lost wage claims against Allstate. Because this legal issue has
already been determined , and because Plaintiff has articulated no reason why Allstate

would stand in any different position from Merastar on this issue , Allstate should be
granted partial summary judgment on the same grounds argued by Merastar and
adopted by the Court.

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WHEREFORE Defendant Allstate Insurance Company respectfully requests that
this Court enter judgment in favor of Allstate with respect to all claims to the extent they
seek lost wages on behalf of Katelyn

Hill

assert breach of contract or bad faith for
Hill

failure to pay lost wages on behalf of Katelyn

or seek reformation of the Policy to

provide for lost wages to Katelyn

Hill

and for such other and further relief as this Court

deems just and proper.

Respectfully submitted this 7th day of September , 2005.

sf

Marian L. Carlson , oriqinal maintained on file Marian L. Carlson
Wheeler Trigg Kennedy

LLP

1801 California Street , Suite 3600

Denver , CO 80202 Telephone: (303) 292-2525 Facsimile: (303) 294- 1879 E-mail: carlson(Q).wtklaw. com

Attorneys for Defendant Allstate Insurance Company

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CERTIFICATE OF SERVICE (CMfECF)
I hereby certify that on September 7 , 2005 , I electronically filed the foregoing

Defendant Allstate Insurance Company s Reply to Plaintiff' s Opposition to Joinder in

Merastar s Motion for Partial Summary Judgment on the Claims for Lost Wages with the
Clerk of Court using the CMfECF system which will send notification of such filing to the
following email addresses:

Michael D. Alper alper~wtklaw. com purdy~wtklaw. com
Michael K. Alston michael. alston~husch. com

Meghan Frei Berglind berglind~wtklaw. com

Robert Bruce Carey
rob. carey~att. net kuhl~careylaw. com

. Co Horgan co~hbsslaw. com karenw~hbsslaw. com

Clifton J. Latiolais , Jr cjl~clr- Iaw. com dla~clr- Iaw. com
. Alma M. Lugtu

lugtu~wtklaw. com purdy~wtklaw. com
Elizabeth L. Morton 10key. izzy~dorsey. com
valenzuela. I isa~dorsey. com; chafi n. kemper~dorsey. com

Alan E. Popkin alan. popkin~husch. com lisa.carter~husch. com
Casey A. Quillen

caq~clr- Iaw. com

amm~clr- Iaw. com

Case 1:04-cv-00865-REB-CBS

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Terence M. Ridley ridley~wtklaw. com norris~wtklaw. com

Kenneth Alan Senn ksenn~bellsouth. net
David W. Sobelman david. sobelman~husch. com

Gregory Scot Tamkin tamkin. greg~dorsey. com
valenzuela. I isa~dorsey. com; chafi n. kemper~dorsey. com

Cindy Rae Ten Pas
ctenpas~careylaw. com ddomingues~careylaw. com

John Mark Vaught vaught~wtklaw. com como~wtklaw. com

and I hereby certify that I have served the document to the following non- CMfECF
participant in the manner indicated by the non- participant' s name:

Marian Elizabeth Lokey, Esq. Dorsey & Whitney, LLP- Colorado

( ) First

Class Mail Hand Delivery

370 Seventeenth Street , #4700
Denver, CO 80202- 5647

( ) Facsimile

Overnight Delivery (x) E- Mail - lokey. lizzy~dorsey. com

sf

Marian L. Carlson by Cindy Carpenter

Marian L. Carlson
Wheeler Trigg Kennedy

LLP

1801 California Street , Suite 3600 Denver , CO 80202 Telephone: (303) 292-2525 Facsimile: (303) 294- 1879 E-mail: carlson~wtklaw. com

Attorney for Defendant Allstate Insurance Company

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