Free Response to Motion - District Court of Colorado - Colorado

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

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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, vs. ALLSTATE INSURANCE COMPANY; LIZ MARCHAND; MERASTAR INSURANCE COMPANY; AND PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendants.
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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 PLAINTIFF'S MOTION TO RECONSIDER THE COURT'S ORDER GRANTING SUMMARY JUDGMENT ON WAGE LOSSES TO MERASTAR INSURANCE COMPANY
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COMES NOW Defendant Merastar Insurance Company ("Merastar"), by and through the undersigned counsel, and for its 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 (hereinafter, "Motion for Reconsideration"),1 states as follows:
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Plaintiff requests that her Opposition to Defendant Allstate Insurance Company's Joinder in Merastar's Motion for Partial Summary Judgment "be read as an implicit motion to reconsider [the Court's] order granting summary judgment on wage losses to Merastar Insurance Company." See Motion for Reconsideration, fn 1. See also id., p. 11 (requesting that the Court "reconsider this Court's order granting summary judgment on the work loss claims to Merastar").

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INTRODUCTION The Court should deny Plaintiff's Motion for Reconsideration, because it is nothing more than a thinly veiled attempt to re-hash the same arguments that Plaintiff made or could have made in Plaintiff's Opposition to Defendant Merastar's Motion for Partial Summary Judgment ("Plaintiff's Opposition"). A motion for reconsideration is not an appropriate vehicle to revisit issues already addressed based upon arguments or evidence which were available at the time of the original motion. Plaintiff's Motion for Reconsideration is simply an improper attempt to have a second chance to convince the Court that the arguments that Plaintiff has previously asserted were correct. In granting Defendant Merastar Insurance Company's Motion for Partial Summary Judgment on the Claims of The Estate of Katelyn Hill for Lost Wages ("Merastar's Motion for Partial Summary Judgment'), this Court already considered the arguments raised by Plaintiff and concluded that "the reasons stated, arguments advanced, and authorities cited by Merastar in its motion and reply are well-taken, and they are approved, adopted, and incorporated herein." See Order Granting Defendant Merastar Insurance Company's Motion for Partial Summary Judgment on the Claims of The Estate of Katelyn Hill for Lost Wages ("Order"). Plaintiff does not raise any new authority or extraordinary circumstances which would warrant a reconsideration of the Court's Order in this case. This Court should not entertain a motion for reconsideration whose sole basis is that Plaintiff does not agree with the Court's reasoning. While Merastar's legal analysis is fully set forth in Merastar's Motion for Partial

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Summary Judgment and Reply thereto, as approved, adopted and incorporated by the Court, Merastar does feel compelled to respond to one argument advanced in Plaintiff's Motion for Reconsideration. Plaintiff incorrectly asserts that the Court erred in granting summary judgment on Katelyn's lost wage claim because the parties dispute whether the policy should be reformed to include wage loss benefits unlimited in duration. However, the Court held that Katelyn is not entitled to any wage loss benefits under the No Fault Act as a matter of law, because she did not have any employment or actual wages at the time of the accident ­ regardless of whether her policy is reformed to include lost wages unlimited in duration.2 The dispute over reformation is simply not material to Merastar's Motion for Partial Summary Judgment. Accordingly, this Court should deny Plaintiff's Motion for Reconsideration. LEGAL ANALYSIS I. Plaintiff's Motion For Reconsideration Should Be Denied, Because Plaintiff Simply Rehashes The Same Arguments That The Court Already Considered And Rejected, In An Improper Effort To Convince The Court That The Court's Reasoning In Its Previous Order Was Wrong. The Court should deny Plaintiff's Motion for Reconsideration3, because Plaintiff does not raise any new issues or present any arguments or evidence that Plaintiff could

Of course, Merastar contends that its offer of additional PIP benefits was compliant with Colorado law and seriously disputes Plaintiff's assertion that the Policy should be reformed to include unlimited PIP wage loss benefits. Nevertheless, this issue is not before the Court with respect to Merastar's Motion for Partial Summary Judgment on the Claims of Katelyn Hill for Lost Wages. As a preliminary matter, Plaintiff improperly joined this Motion for Reconsideration of the Court's Order granting Merastar's Motion for Partial Summary Judgment as part of Plaintiff's Opposition to Defendant Allstate Insurance Company's motion. Local Rule 7.1(C) provides, "A motion shall not be included in a response or reply to the original motion." Thus, Plaintiff's Motion for Reconsideration should be stricken for failure to comply with Local Rule 7.1(C).
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not have presented in Plaintiff's Opposition. As the Tenth Circuit has noted, "the Federal Rules of Civil Procedure do not recognize a `motion to reconsider.'" Van Skiver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1992). Instead, the Rules allow a party to file a motion for relief from judgment pursuant to Fed. R. Civ. P. 59(e) or 60(b), in extraordinary circumstances. Id. Even if Plaintiff's Motion for Reconsideration is considered as a motion for relief from judgment, such motions "are inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion. Absent extraordinary circumstances, not present here, the basis for the second motion must not have been available at the time the first motion was filed." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). See also Walker v. Pollock, 2005 WL 1799330 (D. Colo., July 27, 2005) (quoting Servants of the Paraclete, 204 F.3d at 1012 ("a motion for reconsideration is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing"); Van Skiver, 952 F.2d at 1243 (district court properly denied motion for reconsideration because "revisiting the issues already addressed is not the purposes of a motion to reconsider, and advancing new arguments or supporting facts which were otherwise available for presentation when the original summary judgment motion was briefed is likewise inappropriate"); Evans v. Board of County Commissioners of the County of Boulder, Colorado, 752 F. Supp. 973, 978 (D. Colo. 1990) (denying motion for reconsideration because a "motion

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for reconsideration is an improper vehicle to introduce new evidence that could have been adduced during the summary judgment briefing process"). In this case, Plaintiff does not assert any arguments that were not available at the time Plaintiff filed Plaintiff's Opposition. Instead, Plaintiff simply re-asserts that the cases cited in Plaintiff's Opposition ­ Bondi v. Liberty Mutual Ins. Co., 757 P.2d 1101 (Colo. App. 1988), Bailey v. Mid-Century Ins. Co., 902 P.2d 411 (Colo. App. 1995), and Tait v. Hartford Underwriters Ins. Co., 49 P.3d 337 (Colo. App. 2001) ­ support Plaintiff's position that Katelyn is entitled to speculative future lost wages. However, both parties have already fully briefed their positions on the legal effect of Bondi, Bailey, and Tait. See Merastar's Motion for Summary Judgment, pp. 5, 8-9; Plaintiff's Opposition, pp. 2-7; Merastar's Reply, pp. 2-6, 10. Plaintiff's Motion for Reconsideration is no more than an attempt to have a second chance to convince the Court that Plaintiff's interpretation of these cases ­ which the Court has already rejected ­ is the correct one. This Court should not entertain a motion for reconsideration whose sole basis is that Plaintiff does not agree with the Court's reasoning. "A motion for reconsideration is proper when the court has made a mistake not of reasoning but of apprehension . . . or if there has been a significant change or development in the law or facts since submission." M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996) (citations omitted). Under well established law, Plaintiff's Motion for Reconsideration is not properly before this Court when Plaintiff does not assert any new authority or compelling circumstances beyond her belief that the Court got it wrong.

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To the extent that some of the arguments in Plaintiff's Motion for Reconsideration were not raised in Plaintiff's Opposition, each of these arguments could have been raised in Plaintiff's Opposition. As such, in the absence of any new law or previously unavailable evidence, Plaintiff cannot have a second bite at the apple through a motion for reconsideration. See Servants of the Paraclete, 204 F.3d at 1012 (10th Cir. 2000) ("a motion for reconsideration is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing"); Van Skiver, 952 F.2d at 1243 ("advancing new arguments or supporting facts which were otherwise available for presentation when the original summary judgment motion was briefed is likewise inappropriate"); Walker v. Pollock, 2005 WL 1799330 at * 1. Plaintiff had every opportunity to assert these arguments in her original Opposition, and Plaintiff cannot offer these arguments after-the-fact just because the Court disagreed with the arguments Plaintiff previously asserted. Accordingly, because Plaintiff does not offer any new arguments or evidence that she did not or could not raise in Plaintiff's Opposition, the Court should deny Plaintiff's Motion for Reconsideration. II. Summary Judgment on the Lost Wage Claim Does Not Depend Upon A Determination of Whether The Policy Should Be Reformed To Include Unlimited Benefits. In Plaintiff's Motion for Reconsideration, Plaintiff alleges that the Court erred in granting summary judgment on Katelyn's lost wage claim because the issue of whether the policy should be reformed to include wage loss benefits unlimited in duration has not yet been adjudicated. See Plaintiff's Motion for Reconsideration, pp. 2-3, 8-9.

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However, the Court granted summary judgment based upon Merastar's argument that Katelyn is not entitled to any lost wages, as a matter of law, regardless of whether the Policy is reformed to include unlimited lost wages. Merastar moved for summary judgment on the grounds that "because Katelyn Hill was not employed and was not earning wages at the time of the Accident, she cannot recover lost wages under the No Fault Act, as a matter of law." See Merastar's Motion for Partial Summary Judgment on the Claims of the Estate of Katelyn Hill for Lost Wages, pp. 6-7. Indeed, Merastar acknowledged that the only way that Katelyn could potentially be entitled to any lost wages was if the Court reformed the Policy to incorporate additional PIP benefits pursuant to C.R.S. § 10-4-710(2)(a).4 See Merastar's Motion for Partial Summary Judgment, fn 3. Nevertheless, "Merastar move[d] this Court for Summary Judgment on this distinct issue, because even assuming that Plaintiff could persuade the Court to reform the policy, lost wages would still not be reimbursable as a matter of law." Id. Merastar argued, and the Court held, that Katelyn was not entitled to any wage loss benefits under the No Fault Act, because she did not have any employment or actual wages at the time of the accident. Plaintiff's assertion that Merastar's motion "presupposes the non-existence of unlimited extended PIP coverage," see Plaintiff's Opposition, p. 2, is simply wrong. The Court held that Merastar is entitled to summary judgment regardless of whether the policy is reformed to include PIP wage loss benefits of unlimited duration, because "where the wage loss benefits have never accrued,
It is undisputed that Katelyn could not be entitled to any lost wages under C.R.S. § 10-4706(1)(d), because the lost wage benefits available under that section are only available for a time period not to exceed 52 weeks after the accident. Plaintiff does not assert that Katelyn incurred any lost wages in this 52 week period.
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because the insured has no employment or offers of employment at a time certain, there are no wage loss benefits to recover for any duration." See Merastar's Reply to Plaintiff's Opposition to Merastar's Motion for Partial Summary Judgment, at p. 5. Accordingly, the Court correctly granted summary judgment on Katelyn Hill's claim for lost wages, because Katelyn would not be entitled to any lost wages under the No Fault Act, regardless of Plaintiff's assertion that the policy should be reformed to include unlimited lost wages. CONCLUSION WHEREFORE, Defendant Merastar Insurance Company respectfully requests that this Court deny Plaintiff's Motion for Reconsideration. DORSEY & WHITNEY LLP

s/ Elizabeth Lokey Morton Gregory S. Tamkin Elizabeth Lokey Dorsey & Whitney, LLP Republic Plaza Building, Suite 4700 370 17th Street Denver, CO 80202-5647 Telephone: (303) 629-3400 Fax: (303) 629-3450 ATTORNEYS FOR DEFENDANT MERASTAR INSURANCE COMPANY OF COUNSEL: HUSCH & EPPENBERGER, LLC Alan E. Popkin, Esq. David W. Sobelman, Esq. Melissa Z. Baris, Esq. 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Tel. 314-480-1500

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Michael K. Alston, Esq. 736 Georgia Avenue, Suite 300 Chattanooga, TN 37402 Tel. 423-266-5500

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 1, 2005, I electronically filed the foregoing document, titled 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 PLAINTIFF'S MOTION TO RECONSIDER THE COURT'S ORDER GRANTING SUMMARY JUDGMENT ON WAGE LOSSES TO MERASTAR INSURANCE COMPANY, with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [Robert Bruce Carey] [email protected] [Cindy Rae Ten Pas] [email protected] [Kenneth Alan Senn] [email protected] [Co Horgan] [email protected] [Michael D. Alper] [email protected] [Meghan Frei Berglind] [email protected] [Alma M. Lugtu] [email protected] [Terence M. Ridley] [email protected] [John Mark Vaught] [email protected] [Michael K. Alston] [email protected] [Alan E. Popkin] [email protected] [David W. Sobelman] [email protected] [Clifton J. Latiolais, Jr.]

s/ Elizabeth Lokey Morton Gregory S. Tamkin Elizabeth Lokey Attorneys for Defendant Merastar Insurance Company DORSEY & WHITNEY LLP Republic Plaza Building, Suite 4700 370 Seventeenth Street Denver, CO 80202-5647 Telephone: (303) 629-3400 Fax: (303) 629-3450 Email: [email protected] [email protected]

4846-8844-2624\1

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