Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01253-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-MK-1253 RICHARD TEBO and RENEE TEBO, Plaintiffs, v. LAURA M. BAKOS, and LEVTZOW LIMO LLC, doing business as MOUNTAIN LIMO DELUXE LLC, Defendants. DEFENDANTS' MOTION FOR PARTIAL SUMMARY ADJUDICATION REGARDING PLAINTIFF RENEE TEBO'S CLAIMS AND MEMORANDUM OF LAW IN SUPPORT THEREOF Defendants, Laura M. Bakos and Levtzow Limo LLC, by and through their counsel of record, Dewhirst & Dolven, LLC, pursuant to F.R.C.P. 56, hereby move this Court for an order of partial summary adjudication against Plaintiff Renee Tebo on her first, second, fourth and fifth claims for relief and in support thereof, state as follows:

I.

PRELIMINARY STATEMENT

Defendants recognize that motions for partial summary judgment are not favored by this court. Defendants state that, if granted, the scope of evidence to be presented at trial will be significantly reduced, as no evidence as to the alleged physical injuries to Renee Tebo will be required.

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II.

SUMMARY OF THE ISSUE

This matter arises from a motor vehicle accident that occurred on January 16, 2002 in Gunnison County, Colorado. Husband and Wife, Richard and Renee Tebo have brought four tort claims against Defendant Bakos--negligence, negligence per se, loss of consortium, negligent infliction of emotional distress--and have asserted a vicarious liability claim against Bakos' employer, Defendant Levtzow. Defendants contend that because Renee Tebo has not met, and cannot satisfy, the no-fault threshold requirements of C.R.S. § 10-4-714, all of her personal injury claims must be dismissed as a matter of law. Renee Tebo's claim for loss of consortium is not the subject of this motion.

III.

ANALYSIS OF THE CLAIMS

A. Description of first claim and issues on which summary judgment is warranted-- Negligence of Defendant Bakos. Defendants request that this Court enter summary judgment on Renee Tebo's First Claim for Relief, Negligence against Bakos. Plaintiff has the burden of proof by a preponderance of the evidence on the following elements: (1) Bakos owed Renee Tebo a duty of reasonable care in the operation of the motor vehicle. (2) (3) (4) (5) By her actions and omissions, Bakos negligently breached such duty. Renee Tebo has sustained injuries. The negligence of Bakos was the direct and proximate cause of Tebo's injuries. Renee Tebo has suffered one of the following: death, dismemberment, permanent disability, permanent disfigurement, reasonable need for medical services in 2

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excess of $2,500.00, or loss of earnings and loss of earning capacity in excess of fifty-two weeks. C.R.S. § 10-4-714. This element must be established as a matter of probabilities, not possibilities. Facts that are not genuinely in dispute as to the negligence claim. (1) Duty of reasonable care. Defendants admit that Bakos owed Renee Tebo a duty of reasonable care in the operation of the motor vehicle. (2) (3) (4) (5) Breach of duty. This element is in dispute. Damages. This element is in dispute. Causation. This element is in dispute. Threshold requirement. Renee Tebo has not met the threshold requirement for bringing a tort action under C.R.S. § 10-4-714 as it was in effect in January 2002. Renee Tebo has not suffered death, dismemberment, permanent disability, permanent disfigurement, reasonable need for medical services in excess of $2,500.00 or loss of earnings and earning capacity in excess of fifty-two weeks. · The only injury that Renee Tebo claims she sustained as a result of the January 16, 2002 motor vehicle accident is a low back injury. (Statement of Michael Kerensky during Deposition of Alan Heilman, p. 47, lines 3-- 23, Exhibit A-1 attached hereto.) · Renee Tebo did not seek treatment for low back pain until she saw Dr. Alan Heilman on August 27, 2002--more than seven months after the January 16, 2002 accident. (Deposition of Dr. Alan Heilman, p. 43, lines 13--15, Exhibit A-1 attached hereto.)

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·

Renee Tebo she indicated to Dr. Heilman that her low back pain first became symptomatic in March of 2002. (Deposition of Dr. Heilman, p. 43, lines 19--25, Exhibit A-1 attached hereto.

·

Dr. Heilman testified that it is medically possible, but not probable, that Renee Tebo's low back pain symptoms, were caused by the subject January 2002 motor vehicle accident. (Deposition of Alan Heilman, p. 46, lines 1--23, Exhibit A-1 attached.)

·

Renee Tebo's attorney, Michael Kerensky, has conceded that Tebo's low back pain symptoms are her "only injury" symptoms allegedly related to the accident and that because Dr. Heilman cannot testify that the subject accident probably caused the onset of Renee Tebo's low back symptoms, Renee Tebo cannot satisfy the requirements of Colorado's no-fault act. He further conceded that Renee Tebow has no case, as a matter of law. (Statement of Michael Kerensky during Deposition of Alan Heilman, p. 47, lines 3--23, Exhibit A-1.)

B. Description of second claim and issues on which summary judgment is warranted-- negligence per se of Bakos. Defendants request that this Court enter summary judgment on Renee Tebo's Second Claim for Relief, Negligence per se against Bakos. Plaintiff has the burden of proof by a preponderance of the evidence on the following elements: (1) At the time of the accident at issue in this case, the following statutes of the State of Colorado were in effect: C.R.S. § 42-4-1401 (reckless driving) and 42-4-1402 (careless driving). 4

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(2) (3) (4) (5)

Bakos violated either or both of these statutes. Renee Tebo has suffered injuries. The violation of the statute was a direct and proximate cause of Tebo's injuries. Tebo has met the threshold requirements of C.R.S. § 10-4-714.

Facts that are not genuinely in dispute as to the negligence per se claim. (1) Statutes in effect. Defendants admit the referenced statutes were in effect at the time of the accident. (2) (3) (4) (5) Violation of statutes. This element is in dispute. Damages. This element is in dispute. Causation. This element is in dispute. Threshold requirement under C.R.S. § 10-4-714. As set forth in Section A above, Renee Tebo has not met and cannot satisfy the threshold requirements for bringing a tort action. C. Description of fourth claim and issues on which summary judgment is warranted-- negligent infliction of emotional distress. Defendants request that this Court enter summary judgment on Renee Tebo's Fourth Claim for Relief, negligent infliction of emotional distress against Bakos. Plaintiff has the burden of proof by a preponderance of the evidence on the following elements: (1) (2) Defendant Bakos was negligent. The negligence of Bakos created an unreasonable risk of physical harm to the Plaintiff, Renee Tebo. (3) The defendant's negligence caused Renee Tebo to be put in fear for her own safety and such fear was shown by physical consequences or long continued 5

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emotional disturbance, rather than only momentary fright, shock, or other similar and immediate emotional distress. (4) (5) The plaintiff's fear caused her injuries, damages or losses. Renee Tebo has met the threshold requirements of C.R.S. § 10-4-714.

Facts that are not genuinely in dispute as to the negligent infliction of emotional distress claim. Negligence of Defendant Bakos. This element is in dispute. Unreasonable risk of harm to Renee Tebo. This element is in dispute. Physical consequences demonstrating fear. This element is in dispute. Damages. This element is in dispute. Threshold requirement under C.R.S. § 10-4-714. As set forth in Section A above, Renee Tebo has not met and cannot satisfy the threshold requirements for bringing a tort action. D. Description of fifth claim and issues on which summary judgment is warranted-- vicarious liability of Defendant Levtzow. Defendants request that this Court enter summary judgment on Renee Tebo's Fifth Claim for Relief, vicarious liability against Levtzow. Plaintiff has the burden of proof by a preponderance of the evidence on the following elements: (1) (2) Defendant Bakos was the employee of Defendant Levtzow. Defendant Bakos was acting within the scope of her employment at the time of the accident. (3) Renee Tebo has suffered injuries or damages as the result of Defendant Bakos' actions. (4) Renee Tebo has met the threshold requirements of C.R.S. § 10-4-714.

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Facts that are not genuinely in dispute as to the vicarious liability claim. (1) (2) Employment. Defendants admit that Bakos was the employee of Levtzow. Scope of employment. Defendants admit that Bakos was acting within the scope of her employment at the time of the accident. (3) (6) Damages. This element is in dispute. Threshold requirement under C.R.S. § 10-4-714. As set forth in Section A above, Renee Tebo has not met and cannot satisfy the threshold requirements for bringing a tort action.

IV.

ARGUMENT

Colorado's former no-fault law requires that, as a threshold requirement for bringing a personal injury action, a plaintiff must satisfy the requirements of C.R.S. § 10-4-714, which states that either death, dismemberment, permanent disability, permanent disfigurement, loss of requisite earnings and earning capacity, or reasonable and necessary medical expenses exceeding $2,500.00 be incurred as a result of the motor vehicle accident, or no recovery is allowed against an owner, user or operator of a motor vehicle. In order to satisfy the threshold requirements of C.R.S. § 10-4-714, the plaintiff bears the burden of proof, including the burden to demonstrate that the reasonable value of medical services caused by an accident exceed $2,500.00. Jorgensen v. Heinz, 847 P.2d 181 (Colo. App. 1992). The burden of proof on the plaintiff to establish that the no-fault threshold requirements have been met is to make a showing based on probabilities, not possibilities. C.J.I. 4th 3:4, citing

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Letts v. Iwig, 384 P.2d 726 (Colo. 1963), see also, Cox v. Public Service Company, 494 P.2d 1302 (Colo. App. 1972). Plaintiffs' attorney acknowledged at Dr. Heilman's deposition Renee Tebo's low back complaints were her only injury allegedly caused by the accident. He also admitted that without testimony from Dr. Heilman that the subject accident probably caused the onset of Renee Tebo's low back symptoms, thereby allowing admission of her back pain treatment medical bills, Renee Tebo could not satisfy the no-fault threshold requirements of Colorado law. Pursuant to F.R.C.P. 56, summary judgment is appropriate when the undisputed facts demonstrate that one party is entitled to judgment as a matter of law. Here, the undisputed and admitted-to facts demonstrate that, Renee Tebo's principal treating physician, Dr. Alan Heilman, cannot testify to a probability that Renee Tebo's low back pain complaints were caused by the subject accident. Therefore, Renee Tebo cannot satisfy the threshold requirements of Colorado's no-fault act contained in C.R.S. § 10-4-714. Therefore, summary judgment is appropriate in favor of Defendants and against Renee Tebo on the first, second, fourth and fifth claims for relief. Respectfully submitted this 27th day of June 2005. DEWHIRST & DOLVEN, LLC /s/ Patrick J. Maggio, Esq. Original signature on file at the office of Dewhirst & Dolven, LLC _______________________________ Miles M. Dewhirst, Esq. Patrick J. Maggio, Esq. 102 S. Tejon Street, Suite 500 Colorado Springs, CO 80903 Phone: (719) 520-1421; Fax (719) 520-1421 [email protected] [email protected] 8

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CERTIFICATE OF SERVICE I hereby certify that on June 27, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: THE KERENSKY LAW FIRM Michael W. Kerensky, Esq. 5300 Memorial Drive, Suite 950 Houston, TX 77007 Phone: 713-522-8686; Fax : 713-522-6925 [email protected] ATTORNEYS FOR PLAINTIFFS (paper copy mailed to Kerensky Law firm by Dewhirst & Dolven) BREIT BOSCH COPPOLA & MARLIN, P.C. William C. Marlin, Esq. Michael T. Leinz, Esq. 1512 Larimer St, Suite 900 Denver, Co 80202 Phone: (303) 573-7777; Fax : (303) 825-3950 [email protected] ATTORNEYS FOR PLAINTIFFS /s/ Jean A. Zapf _________________________

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