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HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 020 - Mastec's Amended Answer To ComplaintDISTRICT 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. ________________________________________________ Crossclaim Plaintiff: MASTEC NORTH AMERICA, INC. v. Crossclaim Defendant: DIRECTION PLUS, LLC 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 AMENDED ANSWER TO COMPLAINT AND CROSSCLAIM AGAINST DIRECTIONAL PLUS, LLC Defendant, Mastec North America, Inc, by and through its attorneys, McConaughy & Sarkissian, Professional Corporation, hereby submits its Amended Answer to Plaintiff, City of Fort Collin’s, Complaint, stating and averring as follows: Parties and Venue 1. Paragraph 1 is admitted. DATE FILED: August 29, 2023 5:33 PM FILING ID: 5915A8B81E7F5 CASE NUMBER: 2023CV30130 2 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. 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. 3 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. 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 4 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. 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. 5 40. Paragraph 40 is admitted. 41. The allegations in Paragraph 41 contain a general statement of law for which no response is required. 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. MasTec denies that it did not assist with and/or participate in repairs of the alleged damage. Paragraph 49 is otherwise 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. 6 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. 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). 7 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. 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. DEFENDANT MASTEC NORTH AMERICA, INC.’S CROSSCLAIM AGAINST DEFENDANT DIRECTIONAL PLUS, LLC Defendant MasTec North America, Inc., for its Crossclaim against Defendant Directional Plus, LLC, hereby states and avers as follows: PARTIES, JURISDICTION, AND VENUE 1. MasTec North America, Inc. (“MasTec”) is a Florida corporation with a principal office address of 800 S. Douglas Road, Suite 1200, Coral Gables, Florida 33134. 2. Directional Plus, LLC (“Directional Plus”) is a Colorado limited liability company with a principal office address of 36401 County Road 43, Eaton, Colorado 80615. MasTec retained Directional Plus to excavate a boring hole near 943 Conifer Street, Fort Collins, Colorado (the “Subject Location”). 3. Jurisdiction and venue are proper in this judicial district pursuant to the applicable subcontract. 4. All conditions precedent to bringing this action have been performed, waived, or have otherwise been satisfied or occurred. 8 GENERAL ALLEGATIONS 5. As set forth in the Complaint filed by Plaintiff, the City of Fort Collins (the “City”), the City alleges that Directional Plus struck and punctured a water main owned by the City, which the City further alleges was due to Directional Plus failing to comply with statutory procedures for requesting the City to provide utility locations, as set forth in C.R.S. §§ 9-1.5-101, et seq., prior to commencing excavation of the boring hole at the Subject Location. 6. In conjunction with evaluating and defending the City’s alleged claims, MasTec has incurred, and will continue to incur, costs and expenses based, in whole or in part, on damage which may have been caused, in whole or in part by, arising and/or resulting from work performed by Directional Plus. 7. Pursuant to the Subcontract Agreement executed by MasTec and Directional Plus on or about March 6, 2019 (the “Subcontract”), MasTec agreed to perform and provide construction- related services, including, but not limited to, excavating a boring hole at the Subject Location. 8. Under the Subcontract, Directional Plus agreed to “exercise the same degree of care, skill and diligence in the performance of the Work as is ordinarily exercised by other subcontractors in the industry….” Subcontract, ¶ 2. 9. The Subcontract further contains an express warranty, whereby Directional Plus warranted “that the Work complies with all diagrams, drawings, plans, specifications and other documentation, information or requirements regarding the Work under the Primary contract (‘Specifications’) and that it is free of all deficiencies and defects in workmanship….” Id. 10. Pursuant to this warranty, Directional Plus further agreed to “immediately repair or replace any defective Work that in Contractor’s…reasonable judgment is defective or deficient or does not meet the Specifications, or that Subcontractor damages or destroys in carrying out its obligations under this Agreement, without any additional compensation.” Id. (emphasis added). 11. As further set forth in the Subcontract, Directional Plus was “responsible for any licenses or other authorizations necessary for Subcontractor to perform the Work,” and Directional Plus agreed that it would “comply with the requirements of all such permits, licenses and authorizations.” Id., ¶ 6. 12. Directional Plus further agreed to “observe all…rules and regulations of any governmental authority in performing the Work, including without limitation those relating to safety and health, [and] the environment….” Id., ¶ 8. 13. Directional Plus further agreed that Directional Plus would have “full control and supervision of the performance of the Work.” Id., ¶ 9 (“Subcontractor has full control and supervision of the performance of the Work.”). 9 14. Pursuant Paragraph 10 of the Subcontract, Directional Plus “acknowledge[d] that it has…visited the site(s) where the Work is to be performed and visually inspected and is familiar with the general and local conditions which could affect the Work,” and Directional Plus “assume[d] the risk of the condition of the site(s) where the Work is to be performed.” Id., ¶ 10 (emphasis added). 15. Paragraph 10 of the Subcontract further provides, “Subcontractor [i.e., Directional Plus] is responsible for any damage to property caused directly or indirectly by Subcontractor or its agents or representatives….” Id. 16. In addition, Directional Plus agreed to indemnify and hold MasTec harmless for any claims arising out of its work at the Subject Location: Subcontractor will indemnify, defend and hold harmless Contractor and Owner and their respective officers, directors, stockholders, affiliates, employees, agents, subcontractors, independent contractors and other representatives (collectively, the “Indemnitees”) from and against all claims, damages, liabilities, losses, penalties, injuries, and expenses (including attorneys' and paralegal fees and court costs and including penalties and interest) incurred or suffered, directly or indirectly (including consequential, punitive and other special damages) (collectively, “Damages”), by the Indemnitees and arising out of or resulting from, directly or indirectly, the performance or quality of the Work, the materials supplied by Subcontractor, or from any breach of this Agreement or the Primary Contract by Subcontractor, or from any other action or omission of Subcontractor, including, in all such cases, Subcontractor's officers, directors, stockholders, affiliates, employees, agents, subcontractors, independent contractors, invitees or others under its direction or control. Id., ¶ 15 (emphasis added). 17. Paragraph 21 of the Subcontract states, in relevant part, that “[a]ny provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invaliding the remaining provisions of this Agreement….” Id., ¶ 21. FIRST CLAIM FOR RELIEF Breach of Contract 18. MasTec incorporates the allegations in paragraphs 1 through 17 as if fully set forth herein. 19. MasTec performed its obligations under the applicable subcontract. 10 20. As set forth in the Complaint filed by Plaintiff, the City of Fort Collins (the “City”), the City alleges that Directional Plus struck and punctured a water main owned by the City, which the City further alleges was due to Directional Plus failing to comply with statutory procedures for requesting the City to provide utility locations, as set forth in C.R.S. §§ 9-1.5-101, et seq., prior to commencing excavation of the boring hole at the Subject Location. 21. MasTec has incurred, and will continue to incur, costs and expenses based on damages caused by work performed or which should have been performed by Directional Plus at the Subject Location. 22. The damages incurred by MasTec were proximately caused by Directional Plus’s breach of the terms of the subcontract including, but not limited to, the following: a. failing to “exercise the same degree of care, skill and diligence in the performance of the Work as is ordinarily exercised by other subcontractors in the industry” (see Subcontract, ¶ 2); b. failing to comply “with all diagrams, drawings, plans, specifications and other documentation, information or requirements regarding the Work” (see id., ¶ 2); c. failing to ensure the “the Work…is free of all deficiencies and defects in workmanship” (see id., ¶ 2); d. failing to “immediately repair or replace any defective Work or materials or equipment…that Subcontractor damages or destroys in carrying out its obligations under this Agreement” (see id., ¶ 2); e. failing to repair, replace, and/or assume financial responsibility for “any damage to property caused directly or indirectly by [Directional Plus] or its agents or representatives” (see id., ¶¶ 10, 15); f. failing to “comply with the requirements of” all “licenses or other authorizations necessary for Subcontractor to perform the Work” (see id., ¶ 6); and g. failing to “observe all…rules and regulations of any governmental authority,” including, as relevant here, the statutory procedures for requesting the City to provide utility locations, as set forth in C.R.S. §§ 9-1.5-101, et seq. (see id., ¶ 8). 23. As set forth above, Directional Plus also guaranteed its work through one or more express warranties set forth in the Subcontract, including but not limited to, agreeing to immediately repair or replace any defective Work or resulting damage. See id. ¶ 2. Likewise, Directional Plus “assume[d] the risk of the condition of the site(s) where the Work is to be performed” and “responsibility for any damage to property caused directly or indirectly by Subcontractor or its agents or representatives….” Id., ¶ 10. 11 24. MasTec provided Directional Plus with notice of the alleged damages, losses, and expenses attributable to its negligence or omissions; however, Directional Plus has failed to repair, or otherwise provide financial compensation for, the defective work preformed by Directional Plus and the damage resulting therefrom. 25. Directional Plus is directly or indirectly responsible and legally liable for the defects and deficiencies that have caused actual property damage, resultant and consequently property and other damages, and all other losses requiring the necessity to repair or replace the defective and deficient work of Directional Plus as a direct result of its breach of the subcontract. 26. Such actual property damage arises out of the negligence or fault of Directional Plus, and not out of the negligence or fault of MasTec or any third party under the control or supervision of MasTec. See id. at ¶ 9 (“Subcontractor has full control and supervision of the performance of the Work.”) and at ¶¶ 6 and 8 (providing that Directional Plus is solely responsible for compliance with, all “licenses or other authorizations necessary for Subcontractor to perform the Work” and “all…rules and regulations of any governmental authority”). 27. However, to the extent that MasTec, or any third party under the control or supervision of MasTec, is ultimately determined to bear some degree or fault for the damage and damages claimed by the City, MasTec only seeks to hold Directional Plus liable for the associated damages, costs, and expenses attributable to Directional Plus’s own negligence. See Order Re: MasTec’s Mot. for Leave to Amend Answer, Aug. 20, 2023; see also C.R.S. § 13-21-111.5(6)(c) (“The provisions of this subsection (6) shall not affect any provision in a construction agreement that requires…reimbursement of attorney fees and costs, if provided for by contract…but not for any amounts that are greater than that represented by the degree or percentage of negligence or fault attributable to the indemnitor….”). 28. MasTec has incurred, and will continue to incur, damages, costs, and expenses based on, or arising out of, damage caused by work performed by Directional Plus at the Subject Location in an amount to be proven at trial. WHEREFORE, Defendant/Crossclaim Plaintiff, MasTec North America, Inc., respectfully requests that the Court enter judgment against Defendant/Crossclaim Defendant, Directional Plus, LLC, and in favor of MasTec North America, Inc., on its above claims for relief in an amount of damages to be determined at trial, and for pre-judgment and post-judgment interest, costs, fees and attorneys’ fees, and for such other and further relief as the Court deems just and proper. Dated this 29th day of August, 2023. 12 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 29th day of August, 2023, a true and correct copy of the foregoing DEFENDANT MASTEC NORTH AMERICA, INC.’S AMENDED ANSWER TO COMPLAINT AND CROSSCLAIM 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.