Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:02-cv-02216-WYD-KLM

Document 492

Filed 01/21/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-02216-WYD-KLM

ROYAL INDEMNITY COMPANY, a Delaware corporation, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation; AMERICAN STATES INSURANCE COMPANY, an Indiana corporation, Defendants. ______________________________________________________________________________ AMERICAN FAMILY'S SUPPLEMENT TO ITS REPLY WITH CERTIFIED COPIES OF DOUGLAS COUNTY RESOLUTIONS ADOPTING THE UNIFORM BUILDING CODE PURSUANT TO Fed.R.Evid. 201(d) ______________________________________________________________________________ Defendant American Family Mutual Insurance Company, by and through its counsel, Lambdin & Chaney, LLP, hereby supplements its Reply to Royal's Response to American Family's Motion for Summary Judgment with certified copies of Douglas County Resolutions adopting the Uniform Building Code Pursuant to Fed.R.Evid. 201(d) as follows: 1. When a party requests a court to take judicial notice of adjudicative facts and

supplies the court with the necessary information, Federal Rule of Evidence 201(d) requires the court to comply with the request. Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1504 (10th Cir. 1997). 2. In its Reply Brief, American Family requested this Court to take judicial notice

that the 440-units at issue in the underlying construction defect action necessarily had to be completed prior to the use and occupancy of those units by the individual owners identified in

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the First Amended Complaint. The basis of this request was that the Uniform Building Code prohibits such use and occupancy until the building official has issued a certificate of occupancy. 3. Certified copies of the Douglas County Resolutions adopting the Uniform

Building Code during the relevant time periods, including the particular provision at issue in this case ­ Use and Occupancy ­ are attached as follows: A. November 18, 1991 - Resolution No. R-991-126 adopting the 1991 Uniform Building Code with the following amendment: 12. DELETION AND SUBSTITUTION (CERTIFICATE OF OCCUPANCY) Sec. 308(a). Use and Occupancy. Delete the first paragraph and exception to UBC Sec. 308(a) and revise to read as follows: No building shall be used or occupied, and no change in the existing occupancy of a building or portion thereof shall be made until the Chief Building Official has issued a Certificate of Occupancy therefor as provided herein. EXCEPTION: Group M Occupancies.1 B. November 26, 1993 ­ Resolution No. R-993-122 adopting and amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above. April 28, 1994 ­ Resolution No. R-994-055 adopting and amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above. July 8, 1994 ­ Resolution No. R-994-078 adopting and amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above. December 23, 1994 ­ Resolution No. R-994-143 adopting and amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above.

C.

D.

E.

Group M Occupancies are private garages, carports, sheds and agricultural buildings. See Table No. 5-A of the 1991 Uniform Building Code.

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F.

October 26, 1995 ­ Resolution No. R-995-116 adopting and amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above. January 12, 1998 ­ Resolution No. R-998-040 amending the 1991 Uniform Building Code with the same amendment outlined in paragraph A. above. January 10, 2001 ­ Resolution No. R-001-021 adopting and amending the 1997 Uniform Building Code with the following amendment: 8. DELETION AND SUBSTITUTION (CERTIFICATE OF OCCUPANCY) Sec. 109.1 Use and Occupancy. Delete Sec. 109.1 in its entirety and substitute the following: No building or structure shall be used or occupied, and no change in the existing occupancy of a building or portion thereof shall be made until the Building Official has issued a Certificate of Occupancy therefor as provided herein. EXCEPTION: Group U Occupancies.2

G.

H.

WHEREFORE, American Family requests this Court take judicial notice that Douglas County, Colorado required a Certificate of Occupancy to have been issued for each of the 440 units prior to those units being used and occupied. Respectfully submitted, LAMBDIN & CHANEY, LLP By: /s/ L. Kathleen Chaney L. Kathleen Chaney Attorneys for Defendant American Family LAMBDIN & CHANEY, LLP 4949 S. Syracuse Street, Suite 600 Denver, Colorado 80237 Telephone: (303) 799-8889 FAX: (303) 799-3700 E-mail: [email protected]

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Group U Occupancies are private garages, carports, sheds and agricultural buildings. See Table No. 3-A of the 1997 Uniform Building Code.

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of January, 2008, a true and correct copy of the foregoing AMERICAN FAMILY'S SUPPLEMENT TO ITS REPLY WITH CERTIFIED COPIES OF DOUGLAS COUNTY RESOLUTIONS ADOPTING THE UNIFORM BUILDING CODE PURSUANT TO Fed.R.Evid. 201(d) was sent to the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Laurence M. McHeffey, Esq. Jonathan A. Decker, Esq. McElroy, Deutsch & Mulvaney, LLP 1700 Broadway, Suite 1900 Denver, Colorado 80290 Attorneys for Plaintiffs Joseph C. Jaudon, Esq. David H. Yun, Esq. Jaudon & Avery, LLP 1660 Wynkoop St., Suite 1010 Denver, CO 80202 Attorneys for American States Insurance Company .

By:

s/ L. Kathleen Chaney L. Kathleen Chaney, Esq. Attorneys for American Family LAMBDIN & CHANEY, LLP

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