Free Motion for Leave - District Court of Colorado - Colorado

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

Document 109

Filed 08/29/2005

Page 1 of 6

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 MOTION FOR lEAVE TO FilE SECOND AMENDED ANSWER AND COUNTERCLAIM

Defendant Allstate Insurance Company (" Allstate ), through its undersigned

counsel and pursuant to Rule 15(a), Fed. R. Civ. P., moves the Court for leave to file its
Second Amended Answer to the First Amended Complaint and Jury Demand and
Counterclaim (" Second Amended Answer and Counterclaim ) in this matter. In support

thereof, Allstate states as follows:
RULE

CERTIFICATION
A of the U. S.

Pursuant to local Rule 7.

District Court for the District of Colorado

counsel for Allstate hereby certifies that on August 29, 2005, he conferred with counsel

for Plaintiffs, Ms. Co Horgan. Ms. Horgan stated that Plaintiffs oppose this motion.

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

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On July 21 2005 , Allstate filed a Motion for Leave to File: (1) Amended
Answer and Counterclaim; and (2) Third- Party Complaint Against John Paul (the " First
Motion to Amend" ). Although the First Motion to Amend is still pending, Allstate seeks

to further amend its Answer , to place Plaintiffs on notice that Allstate will assert two
additional defenses; Le. :
Plaintiffs '

recovery, if any, is subject to setoff or reduction
Scott Hill, et a/. v. Western Door,
see, e.
et a/.

based on Plaintiffs ' recovery, if any, in

No. 04-

cv- 0332- REB- CBS (the " Related Tort Action

RS. S 13- 21- 111. 6; and

Plaintiffs ' claims are subject to setoff or reduction under the terms of the policy,
including the Reimbursement and Trust Agreement provisions of the policy.

(See
Exhibit A

Proposed Second Amended Answer and Counterclaim, attached hereto as

14.

These defenses arise from the Related Tort Action which involves the

same auto accident that gives rise to this case. In the Related Tort Action , which is
scheduled for trial on December 5 , 2005 , Plaintiffs are seeking damages which overlap

with damages sought in this case. The offset Allstate seeks will prevent Plaintiffs from
obtaining a double recovery for the losses sustained in the accident.
The Tenth Circuit has held that setoff is

not a defense that is waived if not

pleaded in the answer.

See, e. g., Dixson v. Newsweek, Inc. 562 F. 2d 626 , 633 (10th
of America,

Cir. 1977);

Moore v. Subaru

891 F. 2d 1445 , 1451 (10th Cir. 1989).

Nonetheless , Allstate requests the proposed amendment to provide Plaintiffs with ample
notice of its intent to seek a setoff against , or reduction of , any award in this case.

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Allstate s proposed Second Amended Answer and Counterclaim is
submitted herewith as

Exhibit A .

As reflected by this pleading, the only difference

between the Second Amended Answer and Counterclaim and the Amended Answer
and Counterclaim previously submitted is the inclusion of the setoff defenses described

above. 1 Nothing in this Motion is intended to affect Allstate s previously submitted
Third- Party Complaint against John Paul.
Granting the proposed amendment will cause no prejudice to Plaintiffs
because the setoff Allstate seeks is contingent on events that have not yet occurred (Le., a verdict or settlement in the Related Tort Action); the Plaintiffs do not require any
discovery from Allstate on these defenses;
evidence at trial.

2 and it should not affect the claims or

WHEREFORE, Allstate respectfully requests that this Court grant it leave to file

the attached Second Amended Answer to the First Amended Complaint and Jury
Demand and Counterclaim , as well as the previously submitted Third- Party Claim

Against John Paul.

1 The proposed pleading also changes the word " clams " to "claims " in affirmative defenses twenty-one and twenty-two. 2 Even if Plaintiffs did need discovery from Allstate, they would not be prejudiced
because Plaintiffs have not yet taken any depositions of Allstate witnesses.

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

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Respectfully submitted this 29th day of August, 2005.

sf Terence M. Ridlev Terence M. Ridley
Wheeler Trigg Kennedy

LLP 1801 California Street, Suite 3600 Denver, CO 80202

Telephone: (303) 292-2525 Facsimile: (303) 294- 1879 Mail: ridley(Q)wtklaw. com
Attorney for Defendant

Allstate Insurance Company

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of August , 2005 , I electronically filed the

foregoing Defendant Allstate Insurance Company s Motion for Leave to File Second
Amended Answer and Counterclaim with the Clerk of Court using the CMfECF system which will send notification of such filing to the following e-mail addresses:

Michael D. Alper
alper(Q)wtklaw. com purdy(Q)wtklaw. com

Michael K. Alston michael. alston(Q)husch . com
. Meghan Frei Berglind berglind(Q)wtklaw. com

Robert Bruce Carey
rob. carey(Q)att. net
kuhl(Q)careylaw. com

. Co Horgan co(Q)hbsslaw. com karenw(Q)hbsslaw. com

Clifton J. Latiolais, Jr.
cjl(Q)clr- law. com dla(Q)clr- law. com

. Alma M. Lugtu
lugtu(Q)wtklaw. com purdy(Q)wtklaw. com

Elizabeth L. Morton
10key. lizzy(Q)dorsey. com valenzuela. I isa(Q)dorsey. com ;chafin. kem per(Q)dorsey. com

. Alan

E. Popkin alan. popkin(Q)husch. com lisa. carter(Q)husch. com

. Casey A. Quillen caq(Q)clr- law. com amm(Q)clr- law. com

Terence M. Ridley
ridley(Q)wtklaw. com norris(Q)wtklaw. com

Kenneth Alan Senn ksenn(Q)belisouth. net
David W. Sobelman
david . sobelman(Q)husch . com

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Gregory Scot Tamkin tamkin. greg(Q)dorsey. com
va lenzu ela.

isa(Q)dorsey. com; chafi n. kem per(Q)dorsey. com

Cindy Rae Ten Pas
cten pas(Q) ca reylaw. co m ddom ingues(Q) ca reylaw. com

. John Mark Vaught vaught(Q)wtklaw. com como(Q)wtklaw. com

and I hereby certify that a copy of the document has been served to the following nonCMfECF participant in the manner indicated by the non- participant's name:

Marian Elizabeth Lokey
Dorsey & Whitney,

LLP

( ) First Class Mail ( ) Hand Delivery
( ) Facsimile

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

( ) Overnight Delivery
(x) E- Mail

sf Terence M. Ridlev Terence M. Ridley
Wheeler Trigg Kennedy

LLP 1801 California Street , Suite 3600

Denver , CO 80202
Telephone: (303) 292- 2525 Facsimile: (303) 294- 1879 Mail: ridley(Q)wtklaw. com
Attorney for Defendant

Allstate Insurance Company