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HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 010 - Directional's AnswerDISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 LaPorte Ave, Suite 100 Fort Collins, Colorado 80521 Telephone: (970) 494-3500 Plaintiff: CITY OF FORT COLLINS v. Defendants: DIRECTIONAL PLUS, LLC and MASTEC NORTH AMERICA, INC. ▲ COURT USE ONLY ▲ Case Number: 23CV30130 Division: Attorneys for Defendant Directional Plus, LLC: Stuart D. Morse, #16978 Amber L. Brink, #57381 Stuart D. Morse & Associates, LLC 5445 DTC Parkway, Suite 250 Greenwood Village, CO 80111 Telephone: 303-996-6661 Facsimile: 303-996-0908 smorse@sdmorselaw.com abrink@sdmorselaw.com DEFENDANT DIRECTIONAL PLUS, LLC’S ANSWER AND JURY DEMAND TO PLAINTIFF’S COMPLAINT AND JURY DEMAND Defendant, Directional Plus LLC (“Directional Plus”), by and through its attorneys, Stuart D. Morse & Associates, LLC, hereby submits its Answer and Jury Demand to Plaintiff’s Complaint and Jury Demand. Regarding the numbered allegations of Plaintiff’s Complaint, Defendant Directional Plus responds as follows: PARTIES AND VENUE 1. Admitted. 2. Admitted. DATE FILED: April 10, 2023 3:32 PM FILING ID: BF0727B111919 CASE NUMBER: 2023CV30130 2 3. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, Defendant Directional Plus denies all allegations in this paragraph for lack of information or belief. 4. Admitted that venue for this action is proper in Larimer County District Court because the alleged wrongful conduct of Defendants and alleged harm incurred by Plaintiff occurred in Larimer County, Colorado though this Defendant denies any wrongful conduct. The remaining allegations in this paragraph are denied for lack of information or belief. 5. Denied. FACTUAL BACKGROUND 6. The statute, C.R.S. § 9-1.5-101, speaks for itself and no response is required. To the extent a response is required, Defendant Directional Plus admits to the contents of the Statute. Any and all remaining allegations in this paragraph are denied for lack of information or belief. 7. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and, therefore, no response is required. To the extent a response is required, denied for lack of information or belief. 8. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and, therefore, no response is required. To the extent a response is required, denied for lack of information or belief. 9. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and, therefore, no response is required. To the extent a response is required, denied for lack of information or belief. 3 10. Denied for lack of information or belief. 11. Denied for lack of information or belief. 12. Denied. 13. Denied for lack of information or belief. 14. Admitted that on February 11, 2021, Defendant Directional Plus filed a locate request. The remaining allegations in this paragraph are denied for lack of information or belief. 15. Denied for lack of information or belief. 16. Denied for lack of information or belief. 17. Denied for lack of information or belief. 18. Denied. 19. Denied. 20. Admitted that on February 23, 2021, Directional Plus struck and punctured the City water main while following the directions of the City of Fort Collins. The remaining allegations in this paragraph are denied for lack of information or belief. 21. Denied for lack of information or belief. COUNT I – CLAIM FOR CIVIL PENALTIES PURSUANT TO § 9-1.5-104.5 22. Defendant Directional Plus incorporates its responses to the above paragraphs as if fully set forth herein. 23. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and no response is required. To the extent a response is required, Defendant Directional Plus admits to the contents of C.R.S. § 9-1.5- 4 104.5(2)(a). All remaining allegations in this paragraph are denied for lack of information or belief. 24. The statute, C.R.S. § 9-1.5-104.5(2)(c)(I), speaks for itself and no response is required. To the extent a response is required, Defendant Directional Plus admits to the contents of the Statute. Any and all remaining allegations in this paragraph are denied for lack of information or belief. 25. The statute, C.R.S. § 9-1.5-104.5(d), speaks for itself and no response is required. To the extent a response is required, Defendant Directional Plus admits to the contents of the Statute. Any and all remaining allegations in this paragraph are denied for lack of information or belief. 26. Denied. 27. Denied. 28. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and no response is required. To the extent a response is required, Defendant Directional Plus admits to the contents of C.R.S. § 9-1.5- 103. All remaining allegations in this paragraph are denied for lack of information or belief. 29. Denied. 30. Denied. COUNT II - NEGLIGENCE 31. Defendant Directional Plus incorporates its responses to the above paragraphs as if fully set forth herein. 5 32. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and no response is required. To the extent a response is required, denied for lack of information or belief. 33. Denied. 34. Denied. COUNT III – BREACH OF CONTRACT 35. Defendant Directional Plus incorporates its responses to the above paragraphs as if fully set forth herein. 36. Defendant Directional Plus objects to this manner of pleading, as the determination of a duty is a question of law for the Court to decide and no response is required. To the extent a response is required, denied for lack of information or belief. 37. Denied for lack of information or belief. 38. Denied for lack of information or belief. 39. Denied for lack of information or belief. 40. Denied for lack of information or belief. 41. The City of Fort Collins Municipal Code, Chapter 23, Article II, Section 23-22 speaks for itself and no response is required. To the extent a response is required, denied for lack of information or belief. 42. The City of Fort Collins Municipal Code, Chapter 23, Article II, Section 23-20 speaks for itself and no response is required. To the extent a response is required, denied for lack of information or belief. 6 43. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. 44. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. 45. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. 46. Defendant Directional Plus objects to the manner of pleading, as this paragraph contains legal conclusions to which no response is required. To the extent that a response is required, denied for lack of information or belief. 47. Admitted that Defendant Directional Plus drilled into the City water main. The remaining allegations are denied. 48. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. 49. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. 7 50. The allegations in this paragraph are not directed at Defendant Directional Plus and do not require a response. To the extent a response is required, denied for lack of information or belief. GENERAL DENIAL Defendant Directional Plus denies each and every allegation set forth in the Complaint that was not expressly and specifically admitted to above. DEFENSES 1. Plaintiff’s damages, if any, may have been caused by its own comparative conduct, or the conduct of others imputed to it, which conduct bars or diminishes any recovery of damages pursuant to the Colorado comparative negligence statute, C.R.S. § 13-21-111. 2. Plaintiff may have failed to reasonably mitigate its damages. 3. Plaintiff’s damages, if any, may have been caused by the negligence of others for whom Defendant Directional Plus is not responsible, or over whom Defendant Directional Plus has no control. 4. Damages alleged by Plaintiff may have been caused by occurrences not anticipated and not reasonably foreseeable by Defendant Directional Plus in the exercise of due care. 5. The damages claimed by Plaintiff, if any, were not proximately caused by Defendant Directional Plus’ conduct or omission but were the proximate result of an intervening cause or circumstance which Defendant Directional Plus could not have reasonably foreseen and/or for which Defendant Directional Plus is not responsible. 8 6. The damages alleged by Plaintiff may have been caused by occurrences not anticipated and not reasonably foreseeable by Defendant Directional Plus in the exercise of due care. 7. Plaintiff’s Complaint fails to state a claim against Defendant Directional Plus upon which relief may be granted. 8. Defendant Directional Plus reserves the right to amend this Answer to include other such defenses as may be submitted by the evidence. WHEREFORE, having fully answered, Defendant Directional Plus prays that the Complaint herein be dismissed and at no cost, that it recovers its costs and attorney fees herein, and for such other and further relief as the Court may deem just and proper. JURY DEMAND Defendant Directional Plus demands a trial to a jury of six (6) with respect to all issues so triable herein. Dated this 10th day of April, 2023. Respectfully submitted, STUART D. MORSE & ASSOCIATES, LLC Original signature on file at the offices of Stuart D. Morse & Associates, LLC Defendant’s Address: By: /s/Stuart D. Morse 36401 County Rd. 43 Stuart D. Morse, #16978 Eaton, CO 80615 Amber L. Brink #57381 Attorneys for Defendant Directional Plus 9 CERTIFICATE OF SERVICE I hereby certify that on April 10, 2023, a true and correct copy of the foregoing, DEFENDANT DIRECTIONAL PLUS, LLC’S ANSWER AND JURY DEMAND TO PLAINTIFF’S COMPLAINT AND JURY DEMAND, was electronically filed through the State of Colorado’s ICCES e-filing system upon all counsel of record. Original signature on file at the offices of Stuart D. Morse & Associates, LLC /s/Christine Coriano Christine Coriano