Free Response - District Court of Colorado - Colorado

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

Document 117

Filed 09/02/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-00865-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, v. ALLSTATE INSURANCE COMPANY; MERASTAR INSURANCE COMPANY; and PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendants. PLAINTIFF'S REPLY TO DEFENDANT MERASTAR INSURANCE COMPANY'S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT ALLSTATE INSURANCE COMPANY'S JOINDER IN MERASTAR'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE CLAIMS FOR LOST WAGES AND [SIC] PLAINTIFF'S MOTION TO RECONSIDER THE COURT'S ORDER GRANTING SUMMARY JUDGMENT ON WAGE LOSSES TO MERASTAR INSURANCE COMPANY

Plaintiff Scott Hill ("Hill"), by his undersigned attorneys, replies to the response of Defendant Merastar Insurance Company ("Merastar") to what Merastar incorrectly captions to include the clause "And Plaintiff's Motion To Reconsider The Court's Order Granting Summary Judgment On Wage Losses To Merastar Insurance Company."1

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Hill did not submit a Motion To Reconsider, as Merastar states, in violation of

D.C.COLO.LCivR 7.1(C). Hill requested, in a footnote, an "implicit" reconsideration, "to the extent this Court allows," to avoid a separate iteration of briefs in case the order as to Allstate is inconsistent to any extent with the order as to Merastar.

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Katelyn Hill ("Katelyn") was seriously injured in an accident involving a car insured by Allstate, thereby becoming an insured of Allstate under the Colorado Automobile Accident Reparations Act (the No Fault Act). Katelyn was also insured as a resident relative under a policy issued by Merastar to her father, Scott Hill. Merastar was granted summary judgment as to wage loss claims, on the basis that Katelyn was unemployed at the time of the accident. (Order of Aug. 9, 2005 Grant. Summ. J. For Lost Wages; Merastar's Mot. Summ. J. on Claims of Estate of Katelyn Hill for Lost Wages (Merastar's MPSJ) at 1-2.) Defendant Allstate Insurance Company ("Allstate") moved to join in Merastar's partial summary judgment motion after the order granting it was received (Allstate's Joinder in Merastar's MPSJ (Allstate's Joinder)), and Plaintiff responded to Allstate's motion (Pl.'s Resp. to Allstate's Joinder (Pl.'s Br.)). Allstate's motion, while incorporating all of Merastar's arguments and authorities, independently requested summary judgment as to wage loss claims against Allstate. Merastar responded to Hill's response to Allstate's joinder motion (Merastar's Resp. to Pl.'s Br. (Merastar's Br.)), arguing that Hill's response was "an improper attempt to have a second chance to convince the Court that the arguments that Plaintiff has previously asserted were correct" (Merastar's Br. at 2), and that "[t]he dispute over reformation is simply not material to Merastar's Motion for Partial Summary Judgment" (id. at 3). Hill respectfully disagrees with both of these contentions. Merastar is wrong to state that Hill's response to Allstate's motion was improper. Allstate's motion, while it incorporated facts and legal analysis from Merastar's earlier motion, is an independent motion for summary judgment, by a distinct defendant, with a distinct policy, and with distinct circumstances surrounding the offer, provision, and denial of insurance coverage. Summary judgment is not to be taken lightly. Quite the contrary to Merastar's contention that Hill's response to Allstate's motion is improper,

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Hill's counsel would be remiss to not respond to Allstate's motion. Further, this Court can reconsider its own previous order sua sponte, to avoid injustice or lack of judicial economy, if it concludes differently on the wage loss claim as to Allstate and determines that there are no differentiating factors. Riggs v. Scrivner, Inc., 927 F.2d 1146, 1148 (10th Cir. 1991) ("[A] court possesses the discretion to revise its interlocutory orders prior to the entry of a final judgment."). Noting this fact does not convert Hill's response to a motion for summary judgment as to one defendant into a motion for reconsideration. If the order as to Allstate should be inconsistent with the order as to Merastar, Hill will move for reconsideration at that point, if this Court chooses not to sua sponte resolve any inconsistency. Merastar is wrong to state that the dispute as to whether the policies contain extended Personal Injury Protection (extended PIP) is not material. The No Fault Act specifically requires an offer of extended PIP benefits that includes "benefits equivalent to eighty-five percent of loss of gross income per week from work the injured person would have performed had such injured person not been injured during the period commencing on the day after the accident without dollar or time limitations." C.R.S. § 10-4-710(2)(a)(II)(2001) (emphasis added). If this Court determines that the policies contain this coverage, then dismissing all possible wage loss claims, purely on the basis that the injured was not employed, and had no offer of employment, at the time of the accident, impermissibly narrows the scope of the No Fault Act.2 Plaintiff Hill respectfully requests this Court to give Hill's response to Allstate's motion for summary judgment the full consideration due to any summary judgment brief.

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The No Fault Act does not permit any limitation on time for § 10-4-710(2)(a)

coverages, only an aggregate limit on amount. § 10-4-710(2)(b). 3

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Hill also respectfully requests that, should any part of an order as to Allstate be inconsistent with any part of the order as to Merastar, that this Court, in the interests of judicial economy, exercise its power to sua sponte reconsider its previous orders.

Respectfully submitted this 2nd day of September, 2005. By: _/s Co Horgan__________________ Robert B. Carey Co Horgan Hagens Berman Sobol. Shapiro, LLP 2425 East Camelback Rd, Suite 650 Phoenix, AZ 85016 (602) 840-5900 FAX: 602-840-3012

Cindi R. Ten Pas The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 (719) 635-0377

Kenneth A. Senn, Esq. Law Offices of Kenneth A. Senn 3620 Oakhill Drive Titusville, FL 32780 Attorneys for Plaintiff

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

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Filed 09/02/2005

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 2, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses. Alma M. Lugto ([email protected]) John Mark Vaught ([email protected]) Michael D. Alper ([email protected]) Meghan Frei Berglind ([email protected]) Terence M. Ridley ([email protected]) Attorneys for Defendant Allstate Insurance Company Alan E. Popkin ([email protected]) David W. Sobelman ([email protected]) Elizabeth L. Morton ([email protected]) Gregory Scot Tamkin ([email protected]) Michael K. Alston ([email protected]) Attorneys for Defendant Merastar Insurance Company Clifton J. Latiolais, Jr. ([email protected]) Casey A Quillen ([email protected]) Attorney for Defendant Prudential Insurance Company of America Cindy Rae Ten Pas ([email protected]) Kenneth Alan Senn ([email protected]) Robert Bruce Carey ([email protected]) Attorneys for Plaintiffs I certify I have emailed the document to the following non-email CM/ECF participant: Marian Elizabeth Lokey ([email protected]) Attorney for Defendant Merastar Insurance Company s/Co Horgan Co Horgan Hagens Berman Sobol Shapiro LLP 2425 E. Camelback Rd. Suite 650 Phoenix, AZ 85016 Telephone: (602) 840-5900 FAX: (602) 840-3012 E-mail: [email protected] Attorney for Plaintiffs ________________________________

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