HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 006 - Mastec AnswerDISTRICT COURT, LARIMER COUNTY, COLORADO
Address: 201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
Plaintiff: CITY OF FORT COLLINS
v.
Defendants: DIRECTION PLUS, LLC, and MASTEC
NORTH AMERICA, INC.
Attorneys for MasTec North America, Inc.
Ivan A. Sarkissian, #28817
Joseph F. Nistico, III, #49909
McConaughy & Sarkissian, P.C.
4725 S. Monaco Street, Suite 200
Denver, CO 80237
Telephone: (303) 649-0999
Facsimile: (303) 649-0990
isarkissian@mslawpc.com
tnistico@mslawpc.com
▲COURT USE ONLY▲
Case Number: 2023CV30130
Division: 3B
DEFENDANT MASTEC NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S
COMPLAINT AND JURY DEMAND
Defendant, MasTec North America, Inc. (“MasTec”), by and through its attorneys,
McConaughy & Sarkissian, Professional Corporation, hereby answer the Complaint filed by
Plaintiff City of Fort Collins, as follows:
Parties and Venue
1. Paragraph 1 is admitted.
2. Paragraph 2 is admitted.
3. Paragraph 3 is admitted.
4. Paragraph 4 contains a legal conclusion for which no response is required. MasTec does
not dispute venue.
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5. MasTec denies the allegations of Paragraph 5 to the extent such allegations are directed at
MasTec. To the extent the allegations in Paragraph 5 are directed towards Defendant
Directional Plus, LLC (“Directional Plus”), MasTec is without sufficient information to
form a belief as to the truth of these allegations and, therefore, denies the same.
Factual Background
6. MasTec admits that the Colorado Underground Damage Prevention Safety Commission
administers a statewide excavation notification system. MasTec has insufficient
information to determine whether the remaining allegations in Paragraph 6 are true or
false.
7. Paragraph 7 is admitted.
8. MasTec has insufficient information to determine whether the allegations in Paragraph 8
are true or false.
9. MasTec has insufficient information to determine whether the allegations in Paragraph 9
are true or false.
10. MasTec admits that it filed an excavation permit application relating to planned
excavation of a boring hole near 943 Conifer Street, Fort Collins, Colorado, to lay buried
fiber optic cables and that this excavation permit application listed Directional Plus as a
subcontractor. The remaining allegations in Paragraph 10 are denied.
11. Paragraph 11 is admitted.
12. MasTec has insufficient information to determine whether the allegations in Paragraph 12
are true or false.
13. MasTec has insufficient information to determine whether the allegations in Paragraph 13
are true or false.
14. MasTec has insufficient information to determine whether the allegations in Paragraph 14
are true or false.
15. MasTec has insufficient information to determine whether the allegations in Paragraph 15
are true or false.
16. MasTec has insufficient information to determine whether the allegations in Paragraph 16
are true or false.
17. MasTec has insufficient information to determine whether the allegations in Paragraph 17
are true or false.
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18. Paragraph 18 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 18 contains any factual allegations, MasTec has insufficient information to
determine whether the remaining allegations are true or false.
19. Paragraph 19 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 19 contains any factual allegations directed towards MasTec, MasTec denies
such allegations. To the extent Paragraph 19 contains factual allegations directed towards
Directional Plus, MasTec is without sufficient information to form a belief as to the truth
of these allegations and, therefore, denies the same.
20. MasTec admits that, on February 23, 2021, Directional Plus struck and punctured the city
water main. MasTec has insufficient information to determine whether the remaining
allegations in Paragraph 20 are true or false.
21. MasTec has insufficient information to determine whether the allegations in Paragraph 21
are true or false.
Count I – Claim for Civil Penalties Pursuant to § 9-1.5-104.5
22. MasTec incorporates and realleges its answers to those paragraphs incorporated by
reference into Paragraph 22 of the Complaint.
23. The allegations in Paragraph 23 contain a general statement of law for which no response
is required.
24. The allegations in Paragraph 24 contain a general statement of law for which no response
is required.
25. The allegations in Paragraph 25 contain a general statement of law for which no response
is required.
26. Paragraph 26 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 26 contains any factual allegations directed towards MasTec, MasTec denies
such allegations. To the extent Paragraph 26 contains factual allegations directed towards
Directional Plus, MasTec is without sufficient information to form a belief as to the truth
of these allegations and, therefore, denies the same.
27. Paragraph 27 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 27 contains any factual allegations directed towards MasTec, MasTec denies
such allegations. To the extent Paragraph 27 contains factual allegations directed towards
Directional Plus, MasTec is without sufficient information to form a belief as to the truth
of these allegations and, therefore, denies the same.
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28. Paragraph 28 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 28 contains any factual allegations, MasTec has insufficient information to
determine whether the remaining allegations are true or false.
29. To the extent Paragraph 29 contains factual allegations directed towards MasTec, MasTec
denies such allegations. MasTec is without sufficient information to form a belief as to the
truth of the remaining allegations in Paragraph 29 and, therefore, denies the same.
30. To the extent Paragraph 30 contains factual allegations directed towards MasTec, MasTec
denies such allegations. MasTec is without sufficient information to form a belief as to the
truth of the remaining allegations in Paragraph 30 and, therefore, denies the same.
Count II – Negligence
31. MasTec incorporates and realleges its answers to those paragraphs incorporated by
reference into Paragraph 31 of the Complaint.
32. Paragraph 32 contains legal conclusion(s) for which no response is required.
33. Paragraph 33 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 33 contains any factual allegations directed towards MasTec, MasTec denies
such allegations. To the extent Paragraph 33 contains factual allegations directed towards
Directional Plus, MasTec is without sufficient information to form a belief as to the truth
of these allegations and, therefore, denies the same.
34. Paragraph 34 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 34 contains any factual allegations, MasTec has insufficient information to
determine whether the remaining allegations are true or false.
Count III – Breach of Contract
35. MasTec incorporates and realleges its answers to those paragraphs incorporated by
reference into Paragraph 35 of the Complaint.
36. Paragraph 36 contains legal conclusion(s) for which no response is required.
37. Paragraph 37 is admitted.
38. Paragraph 38 is admitted.
39. Paragraph 39 is admitted.
40. Paragraph 40 is admitted.
41. The allegations in Paragraph 41 contain a general statement of law for which no response
is required.
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42. The allegations in Paragraph 42 contain a general statement of law for which no response
is required.
43. Paragraph 43 contains legal conclusion(s) for which no response is required.
44. Paragraph 44 contains legal conclusion(s) for which no response is required.
45. Paragraph 45 contains legal conclusion(s) for which no response is required.
46. Paragraph 46 contains legal conclusion(s) for which no response is required. To the extent
Paragraph 46 contains any factual allegations directed towards MasTec, MasTec denies
such allegations.
47. MasTec admits that Directional Plus struck and punctured the city water main. MasTec
has insufficient information to determine whether the remaining allegations in Paragraph
47 are true or false.
48. Paragraph 48 contains legal conclusion(s) for which no response is required.
49. Paragraph 49 is admitted.
50. Paragraph 50 contains legal conclusion(s) for which no response is required.
GENERAL DENIAL
MasTec denies any allegation not expressly admitted herein and further denies the
allegations in Plaintiff’s Prayer for Relief.
AFFIMATIVE DEFENSES
1. Plaintiff’s Complaint may fail to state a claim for relief against MasTec upon which relief
may be granted.
2. Plaintiff’s claims, in whole or in part, may be barred due to spoliation of evidence.
3. Plaintiff’s recovery of damages, if any exist, must be reduced by the comparative fault of
other persons, including responsible non-parties, pursuant to C.R.S. §§ 13-21-406 and 13-
21-111.5.
4. Plaintiff’s recovery of damages and losses, if any exist, must be reduced by the amounts
received from collateral sources, pursuant to C.R.S. § 13-21-111.6, and by any applicable
setoffs.
5. MasTec’s work was, at all times, in accordance with applicable industry standards.
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6. Plaintiff’s claims and damages, if any, were caused by intervening or superseding causes
not attributable to MasTec.
7. Plaintiff’s claims and damages, if any, are subject to and limited by the Colorado
Construction Defect Action Reform Act, C.R.S. § 13-20-801, et seq.
8. Plaintiff’s claims and damages, if any, may be limited by Plaintiff’s failure to minimize
and/or mitigate said damages. See C.R.S. § 9-1.5-103(7)(a) (“In the event of damage to an
underground facility, the excavator, owner, and operator shall cooperate to mitigate
damages to the extent reasonably possible, including the provision of in-kind work by the
excavator where technical or specialty skills are not required by the nature of the
underground facility.”).
9. MasTec’s liability to Plaintiff, if any, may be barred or diminished by the acts or
omissions of third parties over whom MasTec had no responsibility or authority to control.
10. Plaintiff’s noneconomic damage claims, if any, may be subject to the limitations set forth
in C.R.S. § 13-21-102.5.
11. Plaintiff’s claims and damages, if any, may be barred by its own negligence or fault, or the
negligence or fault attributed to Plaintiff, with such comparative negligence or fault
reducing or barring Plaintiff’s claims. See C.R.S. § 13-21-111; see also Comcast v.
Express Concrete, Inc., 196 P.3d 269 (Colo. App. 2007) (holding that principles of
comparative negligence apply to claims brought under C.R.S. §§ 9-1.5-101, et seq.).
12. Plaintiff’s claims and damages, if any, may be barred, in whole or in part, by the doctrines
of waiver, estoppel, laches, or release.
13. Plaintiff’s claims and damages, if any, may be barred, in whole or in part, by Plaintiff’s
failure to comply with C.R.S. § 9-1.5-103(4)(a), including but not limited to the
requirements that Plaintiff, as the owner or operator, (1) “use reasonable care to advise the
excavator of the location, number, and size of any underground facilities in the proposed
excavation area, including laterals in the public right-of-way, by marking the location of
the facilities with clearly identifiable markings within eighteen inches horizontally from
the exterior sides of the facilities” within two business days of receiving notice pursuant to
C.R.S. § 9-1.5-103(3); and (2) “upon predetermined agreement at the request of the
excavator or owner, provide on-site assistance.” See C.R.S. §§ 9-1.5-103(4), (6).
14. Plaintiff’s claims and damages, if any, may be barred, in whole or in part, because the
excavation was performed less than thirty days following the due date of the locate request
initiated pursuant to C.R.S. § 9-1.5-103(3) and the markings were clearly visible at the
time the excavation was performed.
15. Plaintiff’s claims and damages, if any, may be barred, in whole or in part, because
Defendants substantially complied with the applicable requirements of C.R.S. § 9-1.5-103.
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16. Plaintiff’s claims and damages, if any, may be barred, in whole or in part, because Plaintiff
failed to comply with the requirements for owners and operators set forth in C.R.S. § 9-
1.5-103.
17. MasTec hereby incorporates by reference any affirmative defenses or other matters in
avoidance alleged by any other Defendant in the above-captioned case.
18. MasTec reserves its right to assert additional defenses and affirmative defenses, as its
bases become known through additional investigation, disclosures, discovery, or
otherwise.
WHEREFORE, Defendant, MasTec North America, Inc. respectfully requests that the
Complaint and Jury Demand be dismissed with prejudice or, in the alternative, that judgment be
entered thereon in their favor, including their court costs, expert witness fees, deposition costs,
attorneys’ fees, and such other and further relief as the Court deems just and proper.
Dated this 5th day of April, 2023.
Respectfully submitted,
McCONAUGHY & SARKISSIAN
Professional Corporation
SIGNATURE ON FILE WITH MCCONAUGHY & SARKISSIAN, P.C.
By: /s/ Joseph F. Nistico, III
Ivan A. Sarkissian, #28817
Joseph F. Nistico, III, #49909
Attorneys for MasTec North America, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of April, 2023, a true and correct copy of the foregoing
DEFENDANT MASTEC NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S
COMPLAINT AND JURY DEMAND was filed with the Court and served via CCEF and
addressed to all active counsel of record on CCEF’s service list.
/s/Sabrina Cooper
SIGNATURE ON FILE WITH MCCONAUGHY & SARKISSIAN, P.C.
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