HomeMy WebLinkAbout2023CV30276 - Higgins v. City of Fort Collins, et al. - 048 - Kodiak Field Services Mot Summ J 1
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
CHRISTIAN HIGGINS,
v.
Defendants:
CITY OF FORT COLLINS, C&L WATER SOLUTIONS,
INC. SUNBELT RENTALS, INC., KODIAK FIELD
SERVICES, LLC AND BCH SERVICES, LLC
Case Number: 2023CV030276
Div.: 4C
Attorneys for Defendant Kodiak Field Services, LLC
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Overturf McGath & Hull, P.C.
625 E. 16th Avenue, Suite 100
Denver, Colorado 80203
Telephone: 303-860-2848
Facsimile: 303-860-2869
E-mail: san@omhlaw.com
stc@omhlaw.com
DEFENDANT KODIAK FIELD SERVICES, LLC’S C.R.C.P. 56 MOTION FOR
SUMMARY JUDGMENT
Defendant Kodiak Field Services, LLC (“Defendant” or “Kodiak”), by and
through its attorneys, Overturf McGath & Hull, P.C., submits this Motion for Summary
Judgment (“MSJ”), as follows:
CERTIFICATE OF CONFERRAL
Counsel for Defendant Kodiak made a reasonable effort to confer with counsel
for Plaintiff. Plaintiff’s counsel did not respond to Kodiak’s conferral, but given the
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
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dispositive nature of the relief requested, it is assumed that Plaintiff opposes the relief
sought herein.
I. INTRODUCTION
This litigation arises out of an incident where Plaintiff, Christian Higgins
(“Plaintiff” or “Higgins”), was riding her bicycle in the road in a public park in Fort
Collins, CO at approximately 9:07 PM on October 8, 2021, when she encountered a
pressurized hose attached to a fire hydrant that was installed across Welch Street,
continuing across the sidewalk/bike path. Plaintiff reports that she crashed her bicycle
(the “incident”) after her rear tire came into contact with this hose. For damages
allegedly arising from the incident, Plaintiff has filed the subject lawsuit against the City
of Fort Collins (the “City”), C&L Water Solutions, Inc. (“C&L”), Sunbelt Rentals, Inc.
(“Sunbelt”), Kodiak, and BCH Services, LLC (“BCH”).
Against Kodiak, specifically, Plaintiff brings premises liability claims pursuant to
C.R.S. § 13-21-115 and negligence from the same nexus of facts relating to the presence of
the hose across Welch Street. Because Kodiak had no involvement whatsoever in placing
the hose across Welch Street, and because Kodiak had no contractual obligations or
otherwise to post signs or other warnings at the incident location, summary judgment
should be granted in its favor on both of Plaintiff’s claims.
The incident happened on public property owned by the City of Fort Collins. As
described further below, there was public utility work being done on the sewer system
and this hose was installed as a bypass line while the work was being done. C&L was the
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general contractor for this project, and it contracted with and rented equipment from
Sunbelt, which hired BCH and Kodiak. Kodiak had nothing to do with the decision to
install, or the installation of, the hose that the Plaintiff ran over. In fact, Kodiak’s limited
scope of work involved monitoring the pump at the end of the hose to ensure it was
secure. At the time of the incident, Kodiak had a single employee on scene. Kodiak
employee Zecheriah Vint was approximately 50-60 yards away from where Plaintiff was
injured, watching the subject pump. Kodiak had no additional legal or contractual
responsibility to put up cones, lights, or signs in the area. Thus, Kodiak is not liable for the
dangerous condition on the property and Kodiak had no duty from a negligence
standpoint to warn of the dangerous condition.
II. STANDARD OF REVIEW
Summary judgment is proper under Colorado Rule of Civil Procedure 56(c)
when the pleadings, affidavits, depositions, and admissions on file show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Colo. R. Civ. P. 56(c). A factual dispute is “material” if it is one that
would affect the outcome of the case. Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d
1155, 1158 (Colo. App. 2008). Summary judgment is appropriate where the moving
party establishes that no issue of material fact precludes summary judgment. Mehaffy,
Rider, Windholz & Wilson v. Central Bank of Denver, 892 P.2d 230, 235 (Colo. 1995). Where
the moving party does not bear the burden of persuasion at trial on a particular issue,
he may do so by showing that there is an absence of evidence in the record to support
the non-moving party's case. Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991);
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Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987). The burden then shifts to
the non-moving party to establish a triable issue of fact. Mancuso v. United Bank of
Pueblo, 818 P.2d 732, 736 (Colo. 1991). The non-moving party may not rely on the
pleadings and, instead, must set forth “specific facts showing that there is a genuine
issue for trial.” C.R.C.P. 56(e). If he cannot, then the moving party is entitled to
summary judgment as a matter of law. Continental Air Lines, 731 P.2d at 713.
The purpose of summary judgment is to permit the parties to pierce the formal
allegations of the pleadings and save the time and expense connected with trial when,
as a matter of law, and based on the undisputed facts, one party could not prevail.
Walcott v. Total Petroleum, Inc., 964 P.2d 609, 611 (Colo. App. 1998). Importantly, a
“genuine issue” of material fact sufficient to preclude summary judgment cannot be
raised simply by the arguments of a party. Sullivan v. Davis, 474 P.2d 218, 221 (Colo.
1970). Once a party moving for summary judgment makes a convincing showing there
are no genuine issues of material fact, the opposing party must demonstrate by relevant
and specific facts that a real controversy exists. See Knittle v. Miller, 709 P.2d 32, 35
(Colo. App. 1985).
III. UNDISPUTED MATERIAL FACTS
The following facts, as established by evidence disclosed in this case, show
beyond dispute that Plaintiff cannot prevail on her claims against Kodiak, and that
Kodiak is entitled to summary judgment as a matter of law. For purposes of this motion
only, Defendant admits that the following material facts are undisputed, with the
understanding that any admissions of fact in this motion will terminate if this motion is
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denied. See Churchey v. Adolph Coors. Co., 759 P.2d 1336, 1340 (Colo. 1988).
1. Prior to October 8, 2021, the City was engaged in a utilities project (“the
project”) which included rehabilitating a sewer line that runs underneath Spring Creek
Trail near Welch Street in Fort Collins, Colorado. Amended Complaint at ¶ 33.
2. Prior to October 8, 2021, during the project, a bypass hose was dislodged
from a nearby manhole and spilled sewage into Spring Creek Pond, adjacent to Welch
Street. Amended Complaint at ¶ 39.
3. To remediate this sewage spill at the project, a pressurized hose was
attached to a fire hydrant in the 1700 block of Welch Street, Fort Collins, CO, and laid
across Welch Street where water was being pumped into a manhole across the street.
Amended Complaint at ¶¶ 37-39.
4. The incident occurred when Plaintiff was riding her bicycle in the road in
a public park in Fort Collins, CO at approximately 9:0 0 PM on October 8, 2021, where
she encountered the pressurized hose attached to a fire hydrant that was installed
across Welch Street. The incident occurred on or around the 1700 block of Welch Street
within the municipality of Fort Collins, Colorado (the “property”). Amended
Complaint at ¶¶ 40, 47-49.
5. The City subcontracted work for the project to C&L. Exhibit A, Fort
Collins-C&L Contract.
6. The City’s contract with C & L approved affixing the hose to the fire
hydrant that the hose was ultimately affixed to. See e.g. Exhibit B, City’s Responses to
Plaintiff’s RFA #5 and ROG #22.
7. The City’s contract with C&L also specifies that it is C&L’s responsibility
to submit a traffic control plan and application for traffic control permit in the event
that C&L or any of its subcontractors intended to place any equipment across public
streets. Exhibit B, City of Fort Collins’ Responses to Plaintiff’s ROG #15.
8. C&L subcontracted work for the project to Sunbelt. Exhibit C, C&L-
Sunbelt Quote.
9. C&L’s position is that Sunbelt was responsible for laying the hose across
Welch Street and C & L had no advanced knowledge of this action taken by Sunbelt.
Exhibit D, C & L Response to City RFA #14.
10. On or about October 8, 2021, Sunbelt verbally subcontracted with Kodiak
to provide bypass labor for a pump connected to the subject pressurized hose affixed to
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the fire hydrant on the other side of Welch Street. Exhibit E, Vint Affidavit at ¶3; Vint
Affidavit, page 5.
11. Kodiak was not privy to the details of the project at the time of its
contracting. Exhibit E, Vint Affidavit at ¶3.
12. Kodiak had one employee at the property when the incident occurred,
Zecheriah Vint. Exhibit F, Kodiak Response to Plaintiff RFA #6.
13. Kodiak had no subcontractors involved in work at the property. See e.g.
Exhibit F, Kodiak Response to City RFA #9; Exhibit E, Vint Affidavit at ¶5.
14. For its scope of work, Kodiak was hired to essentially watch the pump for
several hours at a time to ensure that it was working properly , pumping water into the
manhole. Exhibit E, Vint Affidavit at ¶4; page 5.
15. When Kodiak arrived at the property to perform its scope of work, the
subject pressurized hose was already attached to a fire hydrant that was installed across
Welch Street, as depicted in the photograph below [Kodiak 000005]. Exhibit E, Vint
Affidavit at ¶6.
[Kodiak 00005].
16. Kodiak was not involved or consulted with in the decision or the act of
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installing this pressurized hose. Exhibit E, Vint Affidavit at ¶6; Exhibit G, Kodiak
Response to Plaintiff ROG # 19.
17. Kodiak was not involved or consulted with in the decision or act of
affixing the pressurized hose to the fire hydrant. Exhibit E, Vint Affidavit at ¶6;
Exhibit G, Kodiak Response to Plaintiff ROG # 19.
18. Kodiak was not involved or consulted with in the placement of the
pressurized hose across Welch Street. Exhibit E, Vint Affidavit at ¶6; Exhibit G,
Kodiak Response to Plaintiff ROG # 19.
19. Kodiak’s scope of work was simply to monitor the pump to make sure it
was secure after it had already been installed by another entity. Exhibit E, Vint
Affidavit at ¶7; Exhibit G, Kodiak Response to Plaintiff ROG # 25.
20. Kodiak’s scope of work did not include—and it had no responsibility to—
put up cones or lights or signs in the area where the incident occurred or otherwise at
the property. Exhibit E, Vint Affidavit at ¶7; Exhibit G, Kodiak Response to Plaintiff
ROG # 25.
21. At the time of the incident, Zechariah Vint, of Kodiak, was performing
Kodiak’s scope of work an estimated 50-60 yards away from where the incident
occurred. Exhibit E, Vint Affidavit at ¶9.
22. Mr. Vint could not visually see the location of the incident when it
occurred as Kodiak’s scope of work was too far away from the location of the incident
and Mr. Vint’s vantage point was obstructed by trees. Exhibit E, Vint Affidavit at ¶9.
23. Plaintiff Christian Higgins does not know what Kodiak’s role was in
setting up the hose that she ran over on October 8, 2021. Exhibit H, Plaintiff’s
deposition at page 252, line 24 – page 253, line 2.
24. Plaintiff Christian Higgins has no independent sense of why Kodiak
would be responsible for her injuries. Exhibit H, page 254, lines 7-11.
IV. ARGUMENT
A. Plaintiff’s Exclusive Remedy against Defendant Kodiak is the Colorado
Premises Liability Act; C.R.S. § 13-21-115, et. seq.
The PLA, codified at § 13-21-115, et seq., provides the exclusive remedy for the
Plaintiff in this action. The General Assembly adopted the PLA to promote a state
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policy of responsibility by both landowners and those upon the land as well as to
provide a remedy for injured trespassers, licensees, or invitees. C.R.S. § 13-21-
115(1.5)(a). In Vigil v. Franklin, the Colorado Supreme Court determined that the
“express, unambiguous language of subsection (2) of Colorado’s premises liability
statute evidences the General Assembly’s intent to establish a comprehensive and
exclusive specification of the duties landowners owe to those injured on their
property,” and that coupled with the precisely drawn landowner duties in subsection
(3), this language “preempts prior common law theories of liability and establishes the
statute as the sole codification of landowner duties in tort.” See Vigil v. Franklin, 103 P.3d
322, 328 (Colo. 2004); see also Wark v. United States, 269 F.3d 1185, 1190 (10th Cir. 2001)
(“All civil actions brought against landowners in Colorado for injuries caused by the
condition of the property are governed by the PLA); Burbach v. Canwest Inv., LLC,
App.2009, 224 P.3d 437 (“Premises-liability statute provides the sole remedy, if any, for
a person alleging injury that occurred on property of another and that arose out of a
condition of the property”).
A plaintiff can recover against a landowner only as provided under the statute,
and not under any common law theory. See Wilson v. Marchiondo, 124 P.3d 837, 839-40
(Colo. App. 2005). Because any potential relief against Defendant Kodiak must be
obtained through its status as a “landowner” under the PLA and given th at the PLA is
the exclusive remedy against statutory landowners, Plaintiff’s negligence-based claims
must be barred, and judgment must enter in favor of Defendant Kodiak.
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B. Defendant Kodiak is a Landowner as defined by C.R.S. § 13-21-115(7)(b).
The PLA defines a landowner as, without limitation, “an authorized agent or a
person in possession of real property and a person legally responsible for the condition
of real property or for the activities conducted or circumstances existing on real
property.” C.R.S. § 13-21-115(7)(b). The term “landowner” is no more expansive than
the common law definition. Wark v. U.S., 269 F.3d 1185, 1188 (10th Cir. 2001). To be a
landowner, possession need not necessarily be to the exclusion of all others. Pierson v.
Black Canyon Aggregates, Inc., 48 P.3d 1215, 1220 (Colo. 2002). Importantly, legal
responsibility for the condition of property, for the purposes of determining whether
the person is a landowner within the meaning of the PLA, may be determined by
contract. See Lucero v. Ulvestad, App.2015, 411 P.3d 949; see also Henderson v. Master Klean
Janitorial, Inc., 70 P.3d 612, 615 (Colo. App. 2003).
In Wark v. United States, the Tenth Circuit noted that “[b]y the terms of the
statute, “landowner” includes three types of people: (1) authorized agents; (2) persons
in possession; and (3) persons legally responsible for the condition of the property. Id.
at 1188. Defendant Kodiak posits that “landowner” actually includes four types of
people: (1) authorized agents; (2) persons in possession; (3) persons legally responsible
for the condition of the Property; and (4) persons legally responsible for the activities
conducted or circumstances existing on the Property. See § 13-21-115(7)(b).
The undisputed material facts establish that Defendant Kodiak can be considered
a landowner pursuant to the PLA in this case, as having a responsibility for the
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activities conducted on the Property (watching the hose to make sure that it did not fail)
(SUMF ¶ 19). Defendant Sunbelt contracted Kodiak to provide bypass labor for the
pump and hose in question (SUMF ¶ 10), which involved watching the pump to ensure
that it was working properly (SUMF ¶ 14). While Kodiak was not responsible for setting
up the hose or connecting it to the fire hydrant (SUMF ¶¶ 15-17), Kodiak was on the
scene approximately 50-60 yards away from the incident location through its employee
in a Kodiak truck (SUMF ¶¶ 21-22). Therefore, based on Kodiak’s relationship with
Sunbelt as Sunbelt’s subcontractor for a portion of this project , Kodiak’s presence on the
scene at the time of Plaintiff’s incident, and involvement in monitoring the condition of
the hose/pump in question, Kodiak can be considered to be a landowner under the
PLA. As such, Plaintiff’s negligence claim fails as a matter of law and as discussed
below, Plaintiff’s PLA claim likewise fails.
c. There is a Lack of Evidence Associated with the Undisputed Material
Facts in this Case that Kodiak Failed to Use Reasonable Care with
Respect to the Danger on the Property
Pursuant to C.R.S. § 13-21-115(5)(b), “”Licensee” means a person who enters or
remains on the land of another for the licensee’s own convenience or to advance his
own interests, pursuant to the landowner’s permission or consent. “Licensee” also
includes social guest.” Plaintiff was riding her bicycle on the road in a public park at the
time of her incident, and it is asserted that she was a “Licensee” at the time of her
incident (SUMF ¶ 4). 1However, even if this Court find that Plaintiff was an “Invitee” in
1 Plaintiff’s status under the PLA must be determined based on her relationship/interaction with each
individual defendant. Therefore even if she could be considered an “invitee” as to her claims against the
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the park at the time of the Incident given the City’s “express or implied representation
that the public is requested, expected, or intended to enter or remain…” she must still
prove that Kodiak “failed to exercise reasonable care to protect against the danger.”
C.R.S. § 13-21-115(5)(b).
Regardless of Plaintiff’s status, Plaintiff cannot prove based on the undisputed
material facts above that Kodiak breached its duty to Plaintiff by failing to exercise
reasonable care to protect against the danger on the property. The undisputed material
facts conclusively prove that Kodiak was not involved in setting up the hose or
deciding where it was going to be placed (SUMF ¶¶ 14 -18), Kodiak was not responsible
for putting up cones, lights or signs in the area to warn bicyclists or pedestrians of the
hose (SUMF ¶ 18), and all Kodiak was responsible for was to monitor the pump to
make sure that it was secure (SUMF ¶ 19). While Kodiak had an employee present near
the incident in question, it is undisputed that Kodiak had nothing to do with setting up
or warning of the instrumentality that injured Plaintiff, and therefore cannot be held
liable based on a lack of reasonable care.
Plaintiff also alleges in her Amended Complaint that the “HOSE in the roadway
on Welch Street was a dangerous condition on the roadway that physically interfered
with the flow of traffic and presented an unreasonable risk of harm and injury to
motorists, cyclists, and others.” Amended Complaint at ¶ 100. However, traffic control
and traffic control permits including the placement of any equipment across the public
City of Fort Collins (as the operator of the public park), as to her claims against Kodiak she is likely a
Licensee.
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roadways were the responsibility of the City and/or C&L (SUMF ¶ 7; Exhibit B, City of
Fort Collins’ Responses to Plaintiff’s ROG #15), and not the responsibility of Kodiak
(SUMF ¶¶ 14-18). Therefore, Kodiak cannot be held to have failed to exercise reasonable
care with regard to traffic control if it had no role or responsibility regarding traffic
control in the area in question.
The standard for reasonable care is measured by “what a person of ordinary
prudence would or would not do under the same or similar circumstances.” Lombard v.
Colorado Outdoor Educ. Center, Inc., 187 P.3d 565, 574 (Colo. 2008). Furthermore, although
a landowner must exercise reasonable care for the safety of others, landowners are “not
an insurer of the safety of such visitor” and thus, “the mere happening of an accident
raises no presumption of negligence” against the owner. Shutt v. Kaufman’s, Inc., 438
P.2d 501, 503 (Colo. 1968); see also Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612,
613 (Colo. App. 2003) (affirming summary judgment in favor of defendant after plaintiff
submitted no evidence that the defendant failed to exercise reasonable care, nor any
evidence that the defendant could have acted in a different manner as to prevent
plaintiff’s injury). Additionally, the “[f]ailure to guard against the bare possibility of
accident is not actionable negligence.” Mendoza v. White Stores, Inc., 488 P.2d 90, 92
(Colo. 1971) (citations omitted). Plaintiff’s burden of proof is also not sustained by
evidence that is surmise, speculation or conjecture. Martin K. Eby Constr. Co. v. Neely,
344 F.2d 482, 485 (10th Cir. 1965). The fact that the Incident occurred does not qualify as
evidence that Kodiak failed to exercise reasonable care to protect Plaintiff from injury,
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and Plaintiff has failed to submit evidence establishing that Kodiak failed to exercise
reasonable care. See Shutt, supra, 438 P.2d at 503.
V. CONCLUSION
Where, as here, undisputed facts demonstrate that Plaintiff cannot prevail as a
matter of law, summary judgment saves the litigants, and the court, the time and
expense of submitting those claims to trial. See O.C. Kinney, Inc. v. Paul Hardeman, Inc.,
379 P.2d 628, 631 (Colo. 1968). For the reasons stated above, there is no genuine issue as
to any material fact and Kodiak is entitled to judgment as a matter of law.
Respectfully submitted this 22nd day of April 2024.
OVERTURF McGATH & HULL, P.C.
By s/ Scott A. Neckers
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Attorney for Defendant Kodiak Field Services,
LLC
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing DEFENDANT
KODIAK FIELD SERVICES, LLC MOTION FOR SUMMARY JUDGMENT was
electronically filed in Larimer District Court via Colorado Courts E-Filing this 22nd day
of April 2024, with service to the following:
Karl W. Hager
VanMeveren Law Group, O.C.
123 N. College Avenue, Suite 112
Fort Collins, CO 80524
Attorney for Plaintiff
Arthur J. Kutzer
SGR, LLC
3900 East Mexico Avenue, Suite 700
Denver, CO 80210
Attorneys for Defendant BCH Services, LLC
Clayton D. Manceaux
Resnick & Louis, P.C.
7900 E. Union Ave., Suite 1100
Denver, CO 80237
Attorney for Defendant City of Fort Collins
Jason H. Klein
Jay C. Jacobson
Claudia Huggins
Wood, Smith, Henning & Berman LLP
1805 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Attorneys for Defendant C&L Water
Solutions, Inc.
Jamey W. Jamison
Randee L. Stapp
Dino G. Moncecchi
Harris, Karstaedt, Jamison & Powers, P.C.
10333 E. Dry Creek Road, Suite 300
Englewood, Colorado 80112
Attorneys for Defendant Sunbelt Rentals
s/ Jessica Pringle
In accordance with C.R.C.P. 121, §1-26(7), a printed or printable copy of this document with original, electronic, or scanned
signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court up on
request.
.
COFC-0024
EXHIBIT
A
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
COFC-0025
COFC-0026
COFC-0027
COFC-0028
COFC-0029
COFC-0030
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District Court, Larimer, Colorado
201 LaPorte Avenue, Ste 100
Fort Collins, CO 80521
Phone: (970) 498-6100
↑ Court Use Only ↑
Christian Higgins
Plaintiff,
vs.
City of Fort Collins, C&L Water Solutions, Inc., Sunbelt
Rentals, Inc., Kodiak Field Services, LLC, and BCH Services,
LLC
Defendants.
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
Cassie L. Williams, #58279 – cwilliams@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone & Fax Number: (970) 482-4011
Case No.: 2023CV30276
Division: 4C
DEFENDANT CITY OF FORT COLLINS’ RESPONSES TO
PLAINTIFF’S FIRST SET OF DISCOVERY
COMES NOW Defendant City of Fort Collins, by and through its attorneys and the law
firm of Wick & Trautwein, LLC and for its Responses to Plaintiff Christian Higgins first discovery
requests, states as follows:
OBJECTIONS TO PLAINTIFF’S DEFINITIONS
Defendant City of Fort Collins objects to the following definitions:
(i) UTILITIES PROJECT refers to the project/scope of work that Defendant C&L (and
subsequent sub-contracted named defendants) was/were contracted to perform for Defendant
City for sewer bypass services, remediation work or the like, including the remediation work
done on the 1700 block of Welch Street on or before October 8, 2021.
Objection: This definition is factually inaccurate. The remediation work for the cured in
place pipe lining project was being performed within Edora Park. There was no remediation work
being done on the 1700 block of Welch Street on or before October 8, 2021.
SERVED ONLY: December 4, 2023 5:44 PM
FILING ID: 84D9594B817BC
CASE NUMBER: 2023CV30276
EXHIBIT
B
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
2
(k) DANGEROUS CONDITION refers to the condition created by laying the HOSE across the
1700 block of Welch Street.
Objection: The use of the term "dangerous condition" in this manner requires the City to
respond to and adopt a conclusion of law which it presently disputes. The City denies the hose
represents a dangerous condition.
PATTERN INTERROGATORIES
INTERROGATORY NO. 1
1.1 State the name, ADDRESS, telephone number, and relationship to you of each person who
prepared or assisted in the preparation of the responses to these interrogatories. (Do not identify
anyone who simply typed or reproduced the responses).
ANSWER: Andrew Gingerich | Water Field Operations Director, City of Fort Collins
c/o Wick & Trautwein, LLC | 323 S. College Ave., Ste. 3, Fort Collins, CO 80524 | (970) 482-
4011
INTERROGATORY NO. 2
3.4 State the name, ADDRESS, and the job title of the person(s) with the most knowledge of
the INCIDENT or events leading to the INCIDENT.
ANSWER:
Christopher Larson | c/o Wood, Smith, Henning & Berman, LLP | 1805 Shea Center Dr., Ste. 200,
Highlands Ranch, CO 80129
Chief Operations Officer, C&L Water Solutions, Inc.
Sandra Bratlie | 5150 Snead Dr, Fort Collins, CO 80525| 970.226.3104 x 106
Currently District Engineer for Fort Collins Loveland Water District. Formerly Civil
Engineer/Program Manager, City of Fort Collins Utilities (at the time of Incident)
Andrew Gingerich | c/o Wick & Trautwein, LLC | 323 S. College Ave., Ste. 3, Fort Collins, CO
80524 | (970) 482-4011
Water Field Operations Director, City of Fort Collins
Tom Utech | c/o Wick & Trautwein, LLC | 323 S. College Ave., Ste. 3, Fort Collins, CO 80524 |
(970) 482-4011
Senior Inspector, City of Fort Collins Traffic Operations
INTERROGATORY NO. 3
12.1 State the name, ADDRESS, and telephone number of each individual:
3
(a) who witnessed the INCIDENT or the events occurring immediately
before or after the INCIDENT;
(b) who made any statements at the scene of the INCIDENT;
(c) who heard any statements made about the INCIDENT by any
individual at the scene;
(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claims
to have knowledge of the INCIDENT (except for expert witnesses
covered by C.R.C.P. 26(a)(2) and (b)(4)).
ANSWER:
Christian Higgins, Plaintiff | c/o VanMeveren Law Group
Rob Hewitt | c/o VanMeveren Law Group
Cory Kiper | Officer, City of Fort Collins Police Services
c/o Wick & Trautwein, LLC | 323 S. College Ave., Ste. 3, Fort Collins, CO 80524 | (970) 482-
4011
Corey Donovan | Officer, City of Fort Collins Police Services
c/o Wick & Trautwein, LLC | 323 S. College Ave., Ste. 3, Fort Collins, CO 80524 | (970) 482-
4011
Zechariah Vint | 636 N. Shields St., Fort Collins, CO 80521 | (312) 805-1230
INTERROGATORY NO. 4
12.2 Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual
concerning the INCIDENT? If so, for each individual state;
(a) the name, ADDRESS, and telephone number of the individual
interviewed;
(b) the date of the interview;
(c) the name, ADDRESS, and telephone number of the PERSON OR ENTITY
who conducted the interview.
ANSWER: No.
INTERROGATORY NO. 5
12.3 Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded
statement from any individual concerning the INCIDENT? If so, for each statement state:
(a) the name, ADDRESS, and telephone number of the individual from
whom the statement was obtained;
(b) the name, ADDRESS, and telephone number of the individual who
obtained the statement;
(c) the date the statement was obtained;
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(d) the name, ADDRESS, and telephone number of each PERSON OR
ENTITY who has the original statement or a copy.
ANSWER: None, other than those documents already provided in the City’s Initial Disclosures. See
COFC-00291-199 (“Police Report”), COFC-00300 (“Citizen Claim Form”).
INTERROGATORY NO. 6
12.6 Was a report made by any PERSON OR ENTITY concerning the INCIDENT? If so, state:
(a) the name, title, identification number, and employer of the PERSON OR
ENTITY who made the report;
(b) the date and type of report made;
(c) the name, ADDRESS, and telephone number of the PERSON OR ENTITY
for whom the report was made.
ANSWER: None, other than those previously provided in the exchange of the Parties’ Initial
Disclosures. See Answer to Interrogatory No. 5, above; C&L WATER 000314.
INTERROGATORY NO. 7
12.7 Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of the
INCIDENT? If so, for each inspection state:
(a) the name, ADDRESS, and telephone number of the individual making the
inspection (except for expert witnesses covered by C.R.C.P. 26 (a)(2) and
(b)(4));
(b) the date of the inspection.
ANSWER: No.
INTERROGATORY NO. 8
15.1 Identify each denial of a material allegation in paragraph 6 of your Answer to the First
Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
Objection. Defendant objects to this Interrogatory to the extent that this is a contention interrogatory,
seeking legal opinions about Defendant’s defenses before Defendant has had an opportunity to engage
in adequate investigation and discovery into the facts of the case. Under the circumstances, this
interrogatory is premature. See C.R.C.P. 33(c); 12 Colo. Prac.: Civil Proc. Forms and Commentary §
5
33:31; see also Fisher and Porter Co. v. Tolson, 143 F.R.D. 93 (Ed.Pa. 1992); In re: Convergent
Tech. Sec. Litig., 108 F.R.D. 328 (N.D. Cal. 1985).
Defendant also objects to the Interrogatory to the extent that it asks Defendant to exhaustively state
facts supporting its present contentions and speculate as to future contentions prior to the completion
of discovery. See, e.g., 12 Colo. Prac.: Civil Proc. Forms and Commentary § 33:31; see also Stovall
v. Golf & So. Amer. Steam Ship Co., 30 F.R.D. 152, 154, (S.D. Texas 1961); Sheffield Corp. v. George
F. Alger Co., 16 F.R.D. 2729 (S.D. Ohio 1954); State Farm Mut. Auto Ins. Co. v. Superior Court, 804
P.2d 1323 (Ariz. App. 1991).
Furthermore, Defendant objects to the interrogatory to the extent that it calls for information protected
by the attorney-client privilege or work-product doctrine. Additionally, because the Interrogatory
targets Defendant’s denial of paragraphs 10 through 23 of Plaintiff’s First Amended Complaint, this
is a compound question concerning a total of fourteen distinct assertions, resulting in a total of 38
Interrogatories in total (taking into account that two of Plaintiff’s Interrogatories are marked
“Interrogatory 23”, as well as the fact that Interrogatory 9, below, concerns two separate assertions).
INTERROGATORY NO. 9
15.1 Identify each denial of a material allegation in paragraph 8 of your Answer to the First
Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
Objection. Defendant objects to this Interrogatory to the extent that this is a contention interrogatory,
seeking legal opinions about Defendant’s defenses before Defendant has had an opportunity to engage
in adequate investigation and discovery into the facts of the case. Under the circumstances, this
interrogatory is premature. See C.R.C.P. 33(c); 12 Colo. Prac.: Civil Proc. Forms and Commentary §
33:31; see also Fisher and Porter Co. v. Tolson, 143 F.R.D. 93 (Ed.Pa. 1992); In re: Convergent
Tech. Sec. Litig., 108 F.R.D. 328 (N.D. Cal. 1985).
Defendant also objects to the Interrogatory to the extent that it asks Defendant to exhaustively state
facts supporting its present contentions and speculate as to future contentions prior to the completion
of discovery. See, e.g., 12 Colo. Prac.: Civil Proc. Forms and Commentary § 33:31; see also Stovall
v. Golf & So. Amer. Steam Ship Co., 30 F.R.D. 152, 154, (S.D. Texas 1961).
Furthermore, Defendant objects to the interrogatory to the extent that it calls for information protected
by the attorney-client privilege or work-product doctrine. Additionally, because the Interrogatory
targets Defendant’s denial of paragraphs 25 and 26 of Plaintiff’s First Amended Complaint, this is a
6
compound question concerning a total of two distinct assertions, resulting in a total of 38
Interrogatories in total (see Interrogatory 8, above).
INTERROGATORY NO. 10
15.1 Identify each denial of a material allegation in paragraph 18 of your Answer to the First
Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
ANSWER: Paragraph 39 of Plaintiff’s First Amended Complaint states: “Upon information and
belief, prior to October 8, 2021, during operation of the Utilities Project a bypass hose was
dislodged from a nearby manhole and began spilling sewage into Spring Creek pond in or near
Edora Park, adjacent to Welch Street.” (Emphasis added). Defendant avers that no such spill
occurred prior to October 8, 2021. See COFC-001-002 (“Coloradoan Article”), 0003-00023
(“WQCD Reporting Form 2021”).
The City also expresses, based on the documents already disclosed by the Parties, that the spill in
question was not related to the placement of the hose on Welch Street.
INTERROGATORY NO. 11
15.2 For your affirmative defense # 2 in your Answer to Plaintiff’s First Amended Complaint,
you state: “Plaintiff’s damages, if any, are the sole result of the wrongful actions of third parties
or parties to this action other than the City. The City properly delegated the task of sewer
remediation to its subcontractors, subject to strict safety requirements. Under the circumstances
alleged by Plaintiff, the subcontractors acted entirely outside of the safety requirements imposed
upon them, and the City had no actual knowledge or reason to know of the circumstances alleged
in Plaintiff’s First Amended Complaint. [T]he alleged condition of the Hose being placed across
the subject road in the First Amended Complaint, to the extent it was even there, was an open
and obvious condition and Plaintiff could have or should have avoided it”:
(a) state all the facts upon which you base this affirmative defense;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS OR
ENTITIES who have knowledge of the facts;
7
(c) identify all DOCUMENTS and other tangible things which support your affirmative
defense, and state the name, ADDRESS, and telephone number of the PERSON OR
ENTITY who has each DOCUMENT.
Objection. Defendant objects to this Interrogatory to the extent that this is a contention interrogatory,
seeking legal opinions about Defendant’s defenses before Defendant has had an opportunity to engage
in adequate investigation and discovery into the facts of the case. Therefore, this interrogatory is
premature. See C.R.C.P. 33(c); 12 Colo. Prac.: Civil Proc. Forms and Commentary § 33:31; see also
Fisher and Porter Co. v. Tolson, 143 F.R.D. 93 (Ed.Pa. 1992); In re: Convergent Tech. Sec. Litig.,
108 F.R.D. 328 (N.D. Cal. 1985).
Defendant also objects to the Interrogatory to the extent that it asks Defendant to exhaustively state
facts supporting its present contentions and speculate as to future contentions prior to the completion
of discovery. See, e.g., 12 Colo. Prac.: Civil Proc. Forms and Commentary § 33:31; see also Stovall
v. Golf & So. Amer. Steam Ship Co., 30 F.R.D. 152, 154, (S.D. Texas 1961). Furthermore, Defendant
objects to the interrogatory to the extent that it calls for information protected by the attorney-client
privilege or work-product doctrine.
Subject to and without waiving the foregoing objections, the City provides the following response:
The City and C&L initially entered into a Master Services Agreement on October 14, 2019.
See COFC 0024-169, 00191-211. On July 26, 2021, pursuant to the extension of the Master
Services Agreement, C&L received Work Order No. 2021-07 C+L Spring Creek CIPP for the
above-defined Utilities Project. COFC 00212-270. C&L avers that it hired Sunbelt Rentals, Inc.
as its subcontractor to perform sanitary bypass pumping on the Spring Creek Project. Sunbelt
thereafter subcontracted Kodiak Field Services, LLC, who further contracted BCH Services, LLC.
The Master Agreement between the City and C&L provides a number of provisions
related to C&L’s responsibilities in hiring subcontractors. Initially, the contract states:
Subcontractors. Service provider may not subcontract any of the Work set forth in
the Exhibit A/B, Statement of Work without the prior written consent of the city,
which shall not be unreasonably withheld. If any of the Work is subcontracted
hereunder (with the consent of the City), then the following provisions shall apply:
(a) the subcontractor must be a reputable, qualified firm with an established record
of successful performance in its respective trade performing identical or
substantially similar work, (b) the subcontractor will be required to comply with all
applicable terms of this Agreement, (c) the subcontract will not create any
contractual relationship between any such subcontractor and the City, nor will it
obligate the City to pay or see to the payment of any subcontractor, and (d) the work
of the subcontractor will be subject to inspection by the City to the same extent as
the work of the Service Provider.
COFC-0026. See also, e.g., COFC-0067.
8
C&L did not inform the City that it subcontracted with Sunbelt Rentals, Inc., nor did any
party, entity, or individual inform the City that Kodiak Field Services, LLC or BCH Services, LLC
had been further subcontracted.
With regard to subsections (b) and (c) of this Interrogatory, see the City’s Initial
Disclosures.
INTERROGATORY NO. 12
16.1 Do you contend that any PERSON OR ENTITY, other than you or plaintiff, contributed to
the occurrence of the INCIDENT or the injuries or damages claimed by plaintiff? If so, for each
PERSON OR ENTITY:
(a) state the name, ADDRESS, and telephone number of the PERSON OR
ENTITY;
(b) state the facts upon which you base your contention;
(c) state the names, ADDRESSES, and telephone numbers of all
PERSONS OR ENTITIES who have knowledge of the facts;
(d) identify all DOCUMENTS and other tangible things that support
your contention and state the name, ADDRESS, and telephone
number of the PERSON OR ENTITY who has each DOCUMENT or thing.
ANSWER: Yes. To the extent that Plaintiff’s allegations can be established, the City contends
that Defendant C&L Water Solutions, Inc., Defendant Sunbelt Rentals, Inc., Defendant Kodiak
Field Services, LLC, and/or Defendant BCH Services, LLC contributed to or directly caused the
incident and all potential resulting injuries or damages.
(a) None, other than those previously disclosed.
(b) See Interrogatory 11, above. See also, e.g., COFC 0024-169, 00191-211, 00212-270; C&L
WATER 000314.
(c) None, other than those previously disclosed.
(d) None, other than those previously disclosed.
NON-PATTERN INTERROGATORIES
INTERROGATORY NO. 13
List any and all contractual obligations YOU had with C&L on or before October 8, 2021
as those obligations pertain to C&L performing the UTILITIES PROJECT, including any and
all contractual duties to supervise subcontractors.
9
The City had no contractual duty to directly supervise C&L or any other subcontractors. Rather,
C&L, as the City’s contractor, had a duty to comply with the City’s safety procedures and
subcontracting requirements, among other contractual duties.
In further answer, see the following documents previously produced with Defendant’s Initial
Disclosures: COFC-00120-121 (“Owner’s Responsibilities”); COFC-00121-125 (“Engineer’s
Status During Construction”); see generally COFC 0024-169, 00191-211, 00212-270. See also,
e.g., COFC-0026 (“Subcontractors”); COFC-0061 (“Preconstruction Conference”, “Pumping and
Bypassing”); COFC-0062-0063 (“Hours”, “Traffic Control”); COFC-0064 (“Quality Control”);
COFC-0066 (“Unsatisfactory Operations”, “Fees, Licenses, Permits”, “Project Contact”); COFC-
0067 (“Use of Subcontractors”, “Construction Services”); COFC-0068 (“Accident Reporting”,
“Safety Practices, Safety Documentation and Training”); COFC-00113; COFC-00115 (§ 6.8 -
6.9); COFC-0016 (§ 6.13-6.14); COFC-00117 (§ 6.16 “Use of Premises”, § 6.20 “Safety and
Protection”); (§ 6.21 “Safety Representative”).
INTERROGATORY NO. 14
For your response to Interrogatory No. 13, please indicate whether YOU fulfilled each of
the obligations identified and specifically how those contractual obligations were fulfilled on or
before October 8, 2021.
ANSWER: See Defendant’s Answer to Interrogatory No. 13, above.
INTERROGATORY NO. 15
Describe in detail YOUR contractual obligations with C&L with regard to overseeing the
security and safety of the subject worksite including, but not limited to, the work performed on the
UTILITIES PROJECT on or before October 8, 2021.
ANSWER: See Defendant’s Answer to Interrogatory No. 13, above. Relevantly, the City’s
contract with C&L specified the contractor’s responsibility to submit a traffic control plan and
application for traffic control permit in the event that C&L or any of its subcontractors intended to
place any equipment across public streets. COFC-0063 (“Traffic Control”).
INTERROGATORY NO. 16
For your responses to Interrogatory No. 15, please indicate whether YOU fulfilled each of
the obligations identified and specifically how those contractual obligations were fulfilled on or
before October 8, 2021.
ANSWER: See Defendant’s Answer to Interrogatory No. 14, above. Because the City received
no notice that the hose or any such equipment would be laid on the street, there was no obligation
for the City to conduct any further investigation.
10
INTERROGATORY NO. 17
Please provide the name(s) and address(es) of any supervisor(s) or project manager(s) who
was (were) on-site during the time when the work was being performed for the UTILITIES
PROJECT, including but not limited to when the HOSE was laid across Welch Street.
Objection. See Defendant’s objection to definitions above. The term Utilities Project is
inaccurate and misleading.
ANSWER: To the best of the City’s knowledge, the hose was being used to provide water to flush
the bypass pumping equipment on the day of the incident. The City was not notified that anyone
had placed the hose across the street, and no supervisor, project manager or other City employee
was present at or near Welch street around the time of the incident.
Sandra Bratlie was the City employee who acted as point of contact between the City and
Defendant C&L for the sewer pipe lining project in Edora Park.
INTERROGATORY NO. 18
Describe and explain generally the CITY’s standard operating procedure and policies
regarding supervision of subcontractors during the performance of the subcontractors’ duties.
(Include in your answer the name or names and addresses of anyone assigned to supervise
the remedial work done for the City, and list any procedures regarding oversight and safety, such
as company policy(ices), operating manuals, safety manuals and/or safety logs.)
Objection. This request is overly broad and unduly burdensome and is not reasonably calculated
to lead to the production of relevant information.
ANSWER: Subject to and without waiving the foregoing objection, the City did not have a contract
with any of the subcontractors utilized by Defendant C&L to perform bypass pumping. The City
relied on C&L to supervise its own subcontractors. C&L failed to disclose that it had hired any
subcontractors. For information on C&L’s responsibilities to supervise any subcontractors, see
the City’s Response to Interrogatory No. 13 and accompanying documentation.
INTERROGATORY NO. 19
When and how did you learn that the HOSE was laid across Welch Street with respect to
the INCIDENT?
ANSWER: See COFC-00300 (“Citizen Claim Form”); COFC-00304-305 (“Email to Ray Fisher
from Christopher Larson”).
11
INTERROGATORY NO. 20
Did YOU OR ANYONE ACTING ON YOUR BEHALF obtain a permit or attempt to
obtain a permit to place the HOSE across Welch Street? If yes, please identify the permit and any
documentation relating to the permit; if no, please explain why YOU OR ANONE ACTING ON
YOUR BEHALF did not obtain or attempt to obtain a permit.
ANSWER: Contractors and other such actors who are working within a City roadway may have
an obligation to apply for one or more permits or a number of different permits. The contract
between the City and Defendant C&L did require the use of traffic control devices, permits, and
other safety measures if C&L intended to take on any work (not otherwise disclosed) which would
typically necessitate such measures.
The only traffic control permit contemplated for the sewer pipelining project would have been for
the Spring Creek Trail as bicyclists and pedestrians were detoured around the trail and through
other sidewalks in the park. The City has found no evidence that anyone applied for a traffic
control permit to place the water hose across Welch Street, nor has it found that any such hose
placement was contemplated in the original project.
INTERROGATORY NO. 21
Identify by block and street name the fire hydrants that the CITY approved for the sewage
remediation work for the UTILITIES PROJECT on or before October 8, 2021.
ANSWER: See Work Order dated October 8, 2021 and Invoice dated October 15, 2021, produced
herein. To the best of the City’s knowledge, no other hydrants were approved or used.
INTERROGATORY NO. 22
In the response to Interrogatory No. 21, was the fire hydrant to which the HOSE was
attached at the time of the INCIDENT one of the approved fire hydrants for use in the UTLITIES
PROJECT?
ANSWER: Yes. However, approval of a fire hydrant does not equate to approval to stretch any
equipment attached to said hydrant across the adjacent street without the proper traffic control
permit. C&L did not seek a permit, and the plans discussed between the City and C&L indicated
that C&L planned to use the hydrant to fill a water storage truck for cleaning the bypass pumping
equipment.
INTERROGATORY NO. 23
Please provide a detailed explanation as to the basis for YOUR response to Request for
Admission # 5.
12
ANSWER: See COFC-0062-63 (“Traffic Control”); COFC-0067-68 (“Use of Subcontractors”,
“Safety Practices, Safety Documentation and Training”); COFC-00117-118 (“Safety and
Protection”, “Safety Representative”).
INTERROGATORY NO. 23
Please provide a detailed explanation as to the basis for YOUR response to Request for
Admission # 8.
ANSWER: See COFC-0062-63 (“Traffic Control”); COFC-0067-68 (“Use of Subcontractors”,
“Safety Practices, Safety Documentation and Training”); COFC-00117-118 (“Safety and
Protection”, “Safety Representative”).
REQUESTS FOR ADMISSION
1. Admit that the CITY had a duty to supervise the work of C&L during the pendency of the
UTILITIES PROJECT.
ANSWER: Denied.
2. Admit that C&L had a duty to supervise the work of its subcontractors pursuant to its contract
with the CITY during the pendency of the UTILITIES PROJECT.
ANSWER: Admitted.
3. Admit that the CITY was required by its contract with C&L to oversee the work on-site at the
time the HOSE was laid across Welch Street on the day of the INCIDENT.
ANSWER: Denied.
4. Admit that the CITY is responsible for the acts and/or omissions of its subcontractors.
ANSWER: Denied.
5. Admit that the CITY’s duties to keep the public safe for the remedial work performed by its
subcontractors continued until all work was completed with respect to the INCIDENT.
ANSWER: Denied. The City contracted with C&L to perform the sewer lining project. The City’s
contract with C&L required C&L to take steps to protect the site and keep the public safe, including
applying for any necessary traffic control permits. The City does not have an independent duty to
have on-site supervision of the project being performed by C&L.
6. Admit that the CITY required use of traffic control devices during completion of the
UTILITIES PROJECT.
13
Objection. See Defendant’s objection to definitions above. The term Utilities Project is
inaccurate and misleading.
ANSWER: The City admits that the project plans submitted by Defendant C&L called for a traffic
control permit for bicyclists and pedestrians on Spring Creek Trail, and that this permit was
approved. The City denies that any traffic control permit was contemplated for Welch Street, as
the project plans did not call for any hose or other equipment to cross the street. The sewer lining
project was taking place inside Edora Park.
7. Admit that the CITY cannot delegate its duty to keep invitees safe for work done for the
UTILITIES PROJECT.
ANSWER: Denied. The City contracted with C&L to perform the sewer lining project. The City’s
contract with C&L required C&L to take steps to protect the site and keep the public safe, including
applying for any necessary traffic control permits. The City does not have an independent duty to
have on-site supervision of the project being performed by C&L.
8. Admit that C&L and/or its subcontractor(s) were required to obtain a permit to lay the HOSE
across Welch Street where the INCIDENT took place.
ANSWER: Admitted.
9. Admit C&L and/or its subcontractor(s) did not obtain the requisite permit(s) to lay the HOSE
across Welch Street.
ANSWER: Admitted.
10. Admit that there was a water meter that could have been used by C&L and/or its subcontractors
to gain access to water within the bounds of the Edora Park on or before the INCIDENT
ANSWER: Denied. The City is not aware of a suitable hydrant within the bounds of Edora Park.
It is the responsibility of the contractor requesting access to a fire hydrant to determine what
hydrant is most appropriate for the project. The original request was for a hydrant located at 1401
Edora Road. This was moved to the Welch location on October 13, 2021.
11. Admit that the CITY had control over Welch Street at the time of the INCIDENT.
ANSWER: The City denies that it had control over the hose which was placed across Welch Street
at the time of the Incident. The City contracted with C&L to perform the sewer lining project. The
City’s contract with C&L required C&L to take steps to protect the site and keep the public safe,
including applying for any necessary traffic control permits. The City does not have an
independent duty to have on-site supervision of the project being performed by C&L.
14
12. Admit that the CITY had a duty to keep the area of the 1700 block of Welch Street where the
INCIDENT took place free from dangerous conditions on October 8, 2021.
ANSWER: Denied. The City contracted with C&L to perform the sewer lining project. The City’s
contract with C&L required C&L to take steps to protect the site and keep the public safe, including
applying for any necessary traffic control permits. The City does not have an independent duty to
have on-site supervision of the project being performed by C&L.
13. Admit that the CITY was the landowner of Welch Street at the time of the INCIDENT.
ANSWER: Denied. C&L and/or its subcontractors were in control of the activities conducted on
the premises at the time the project at issue was ongoing. Jordan v. Panorama Orthopedics &
Spine Center, PC, 346 P.3d 1035 (Colo. 2015). Plaintiff has not alleged that there were any
defects in construction of the roadway which led to the incident.
14. Admit that the CITY, by the terms of its contract with C&L, should have had a supervisor on
site to oversee the work performed by C&L for the UTILITIES PROJECT.
Objection. See Defendant’s objection to definitions above. The term Utilities Project is
inaccurate and misleading.
ANSWER: Denied.
15. Admit that C&L should have known that laying the HOSE across Welch Street created a
dangerous condition for cyclists.
Objection. Defendant denies that this hose presented a dangerous condition.
ANSWER: Notwithstanding the objection, this request asks the City to opine as to the knowledge
or state of mind of another Defendant. The City is without knowledge of that information, and
therefore must deny the same.
16. Admit that C&L had a duty to report any dangerous conditions to the CITY.
ANSWER: Admitted.
17. Admit that it was foreseeable that the HOSE used and stretched across Welch Street on or before
October 8, 2021 presented a hazard to cyclists.
ANSWER: Denied.
18. Admit that Plaintiff suffered bodily injuries resulting from the INCIDENT on October 8, 2021.
ANSWER: Denied.
15
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Produce any and all documents contained in the files of any insurer or claims representative
that relate to the incident which is the subject of Plaintiff’s First Amended Complaint and
that were prepared in the ordinary course of business prior to the initiation of litigation,
including but not limited to, any and all adjuster(s) notes, correspondence, memoranda, and
adjuster(s) logs in the possession of Defendant’s insurance carrier or claims handling entity,
including any investigative report(s).
ANSWER: None other than those already produced.
2. Produce any and all communications and/or correspondence between YOU, YOUR
employees and any of the named Defendants in this action regarding the UTLITIES
PROJECT.
ANSWER: None other than those already produced.
3. Produce any and all communications between YOU, YOUR employees and any of the named
Defendants in this action regarding the INCIDENT after it occurred.
ANSWER: None other than those already produced.
4. Produce any and all photographs, digital images, video tapes, moving pictures, diagrams, or
other depictions in your possession, custody or control concerning Plaintiff, Plaintiff’s
injuries and the area where Plaintiff was injured on October 8, 2021.
ANSWER: None other than those already produced.
5. Produce any and all documents, manuals, guidelines, pamphlets, training materials, sweep
logs and regulations that describe or relate to policies and procedures regarding inspection
and maintenance of work sites, as well as supervision of subcontractors.
Objection. This request is overly broad, unduly burdensome, and not reasonably calculated to
lead to the production of relevant information. Subject to the foregoing objection, for relevant
documentation, see COFC-0024-169 (C&L Contract) and Defendant’s Response to
Interrogatory No. 13.
6. Produce any and all documents including, but not limited to, policies, procedures,
regulations, and rules regarding inspections on the work completed on or near Welch Street
where the INCIDENT took place for the UTILITIES PROJECT.
Objection. This request is overly broad, unduly burdensome, and not reasonably calculated to
lead to the production of relevant information. Subject to the foregoing objection, for relevant
documentation, see COFC-0024-169 (C&L Contract) and Defendant’s Response to
Interrogatory No. 13.
16
7. Produce any and all contracts and/or service agreements you entered into with any of the
named Defendants in this action regarding the UTILITIES PROJECT.
ANSWER: None other than those already produced.
8. Produce any and all statements taken by defendant, defendant’s agents, or its insurance
company’s representatives, from defendant’s agents or employees or any witnesses or other
persons with information about the INCIDENT.
ANSWER: None other than those already produced.
9. Produce any and all documents showing any investigation done into the INCIDENT and the
documentation relating to you obtaining knowledge of the INCIDENT.
ANSWER: None other than those already produced.
10. Produce the full, unredacted and unedited versions of any photographs, video, or any other
electronically stored image which shows the condition of Welch Street on October 7, 2021
and October 8, 2021 respectively.
ANSWER: None other than those already produced.
11. Produce any and all documentation of any effort to mitigate or warn about the HOSE
stretched across Welch Street on or before October 8, 2021.
ANSWER: To the City’s knowledge, none, other than those already produced.
12. Produce any and all documents substantiating any efforts of YOU OR ANYONE ACTING
ON YOUR BEHALF to secure permits or signage regarding placement of the HOSE across
Welch Street on or before October 8, 2021.
ANSWER: None other than those already produced.
13. Produce any documents that you relied on in responding to the Interrogatories, Requests for
Admissions and Requests for Production herein.
ANSWER: None other than those already produced.
17
I declare under penalty of perjury under the laws of the State of Colorado that the foregoing
answers are true and correct to the best of my knowledge and belief.
Andrew S. Gingerich, P.E., CWP Dated
Director, Water Field Operations
City of Fort Collins
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
Attorneys for Defendant City of Fort Collins
18
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing
DEFENDANT CITY OF FORT COLLINS’ RESPONSE TO PLAINTIFF’S DISCCOVERY
REQUESTS was served on all counsel of record via the Colorado Courts E-filing System
(CCES) this 4th day of December, 2023.
s/ Andrew W. Callahan
BYPASS QUOTE
i Eg
7-6-2021
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SOLUTIONS
Sunbelt Rentals Pump Solutions
285 CR 27
Brighton,CO 80603
Phone:720-214-0867
Joe Cerretani
Sales Representative
Cell:(720)402-2889
Email:Joe.cerretani@sunbeltrentals.com
We appreciate the opportunity to quote you on this project.Sunbelt Rentals supports all of our equipment with the
best possible service you'd expect from one of the nation's largest equipment suppliers.If you have any questions
or require additional information,please feel free to contact us at the following phone numbers.
Sunbelt Rentals Pump Solutions is pleased to offer you the following rental information regarding the bypass
pumping for the project referenced above.We are basing our bid on flow data provided by C&L and the City of Fort
Collins.
REDACTEDSUNBELT-195
EXHIBIT
C
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
Project Scope &Pricing
Sunbelt Bypass System Includes:
o
$2,330.00
$6,550,00
$19,850.00
$3,400/DAY
INITIAL
ENGINEERED PUMPING SOLUTIONS
HERE
i
O
O
Auto-Priming Silenced Pumps w/all hose and hardware
to complete the bypasses listed in the phases below.
Backup bypass pumps w/Auto-start controls.
(1)Sewer plug per the line to be bypassed.
Additional Pricing:
•ADA Ramp for bike path/pipe -$1,950.00
Based upon flows seen Sunbelt proposes the use of (3)10x8"Diesel Trash Pumps,(2)as primary and (1)s backup to
bypass the flows around the segment of pipe to be lined.We propose to use 12"hose/pipe as a means of discharge.
All pumps will be plumbed in and available for use.There will be the need for some kind of pedestrian control on
the bike path during system setup and teardown.
Sunbelt Rentals Pump Solutions
285 CR 27 Brighton,CO 80603
Fort Collins Eldora Park
PC Phone:720-214-0867
Sanitary Bypass
1)Suction MH:Upstream of MH 10029126
Discharge MH:Downstream of MH 10029127
Distance:+/-1,100'
Design:6 MGD
o Equipment for setup w/Operators /Setup Supervisor.
o Fusion Techs.
o Lump sum pricing for the Setup /Breakdown.
o Bypass System Test.
o Line flush at the end of the bypass.
BYPASS DAILY RENTAL
SITE SERVICING OF EQUIPMENT
ALL BYPASS ITEMS REQUIRED TO PERFORM THE BYPASS AS STATED ABOVE
BYPASS WEEKLY RENTAL
•SITE SERVICING OF EQUIPMENT
•ALL BYPASS ITEMS REQUIRED TO PERFORM THE BYPASS AS STATED ABOVE
MOBILIZATION/DEMOBILIZATION
•SETUP LABOR
•FREIGHT IN
•SYSTEM TEST
•DISMANTLEMENT LABOR
•SYSTEM FLUSH
•FREIGHT OUT .
BYPASS PUMP WATCH
•(1)CERTIFIED PUMP MECHANIC ONSITE 24/7
•FULLY STOCKED SERIVICE VEHICLE WITH SPARE PARTS
•FUEL FOR PUMPS
REDACTEDSUNBELT-196
Special Terms and Conditions:
Customer responsible for:
Overtime:$127.50 Holiday:$170.00
INITIAL
ENGINEERED PUMPING SOLUTIONS
HERE
If Contractor does not select the option for Subcontractor supplied Pump Watch as detailed in the Quote,then Subcontractor shall be indemnified by
the Contractor for all liability associated with bypass operation and performance after the equipment is setup and possession is transitioned to
Contractor.Contractor is to perform pump operation with a Qualified Individual onsite at all times while the bypass is in operation.This individual is
responsible for de-ragging pumps,checking fluids,monitoring gauges,fueling,and daily inspections of discharge piping.Pump Watch forms provided
by Subcontractor are to be filled out by the Qualified Individual every %hour while the system is in operation.If Subcontractor is dispatched to the
jobsite for a service call,such service hours will be billed at the rates below.
Terms:Quote Valid for 120 Days.Tax is not included,customer to provide tax exempt certificate if applicable.Sunbelt Rentals billing is on a 28 day
rental cycle.The minimum billing period is Daily @ 40%of weekly rate.Rental pricing based on net 30-day Terms without retainage.Customer to pay
full insurance value for equipment and accessories not returned or damaged.Any rental that results from this quote will be subject to our standard
terms and conditions*.www.SunbeltRentals.com/rentalcontract
OPERATION,FUELING OF PUMPS ONCE SETUP AND TEST HAS BEEN COMPLETED.(IF PUMP WATCH &SITE
FUELING IS NOT REQUESTED)
CUSTOMER RESPONSIBLE FOR PROVIDING LARGE ENOUGH SUCTION AND DISCHARGE POINTS.INCLUDING
AND NOT LIMITED TO REMOVING CROWNS OF MANHOLES TO ELIMINATE SUCTION INTERFERENCES &SPACE
CONSTRAINTS.
LAYDOWN AREAS FOR MOBILIZATION AND DEMOBILIZATION.
ALL PERMIT /PERMISION FOR SITE ACCESS AND OR RIGHT OF ENTRY.
WATER SOURCE FOR BYPASS FLUSH AND TEST
TRAFFIC CONTROL AS REQUIRED,INCLUDING BUT NOT LIMITED TO:
ANY TRENCHING
CUSTOMER RESPONSIBLE FOR PLACING AND REMOVING SEWER PLUGS.
CUSTOMER RESPONSIBLE FOR SITE ACCESS ROAD,CLEARING,&GRADING FOR PUMP &PIPE PLACEMENT.
PRIOR TO SUNBELT MOBILIZATION.
SITE/PARK RESTORATION.
Equipment Rental Period:
The rental period will begin the day the equipment arrives on the customer's jobsite.Sunbelt Rentals billing is on a 28 day rental cycle.The rental
period will terminate when the customer calls for a release number and then retains the number for his or her records.The price quoted is a rental
estimate,and is based on equipment availability.
Additional Labor Rates:
•Straight Time:$85.00
•Per diem:$165.00
Sunbelt Rentals Pump Solutions
285 CR 27 Brighton,CO 80603
Fort Collins Eldora Park
PC Phone:720-214-0867
Subcontract:
This quote in its entirety is to be executed and inserted into the subcontract documents.
Pump Watch:
If Pump Watch is provided,Subcontractor shall have no responsibility for any incidents occurring due to Contractor's negligence or that of any of its
employees,contractors or agents.When no Pump Watch is provided,Contractor has care,custody,and control of the Work at all times
Subcontractor does not;therefore,Contractor agrees to indemnify,defend and hold Subcontractor harmless from and against any third party claims
including any and all Claims to the proportionate extent arising from Contractor's or any of its contractors,suppliers,officers,agents,or employees
negligent acts or omissions in the performance of this Agreement.Subcontractor will (i)give Contractor prompt notice of any such Claim,and (ii)at
Contractor's reasonable request,cooperate with Contractor in the defense and settlement of the Claim.There shall be no right or authority for any
claims to be arbitrated or tried on a class action basis.
Insurance:
Customer to provide insurance on all equipment or choose the Sunbelt Rentals Rental Protection Plan at 15%of the rental items.
REDACTEDSUNBELT-197
Detention Cost:$125.00 may be applied after the first hour of unloading /loading.
Prepaid Fuel Option:0.00 Pay On Return:0.00
Preventative Maintenance if Pump Watch and or site operation is not chosen:
Please sign below to signify that you have read and agree to all terms within this document.
X
Customer Signature
INITIAL
ENGINEERED PUMPING SOLUTIONS
HERE
Sunbelt Rentals continues to effectively maintain our commitment to quality and exceptional customer service through Preventative Maintenance
(PM)Program.Certain equipment included in this document may require scheduled Preventative Maintenance which will be performed in accordance
with the following:
Sunbelt Rentals will monitor the operation time and perform PM Service as required in accordance with manufacturer's minimum service
period.
Preventative Maintenance will be performed per our schedule.
Customer shall be charged for each PM Service during the rental period.
Weekly,or Bi-Weekly Charge Per Site Service $.
Build schedule will be provided upon award of project.All construction and operational activities are intended to be completed with a reasonably
uninterrupted schedule and reasonably unimpeded access to the working areas required to complete the scope of work described herein.Coordination
of subcontractors remains the responsibility of the General Contractor.Sunbelt Rentals reserves the right to apply for a change order for delays to our
intended schedule.
Project labor and operation is quoted with the understanding work will not be performed on nationally recognized holidays.Sunbelt reserves the right
to request additional cost to pay our employees for time worked on holidays when work cannot be suspended.
If the project is delayed or shutdown through no fault of Sunbelt then Sunbelt reserves the right for equitable adjustment to the contract for
demobilization,remobilization,and rental for any stored equipment not in use on the project site.
Sunbelt Rentals Pump Solutions
285 CR 27 Brighton,CO 80603
Fort Collins Eldora Park
PC Phone:720-214-0867
Work Sequence,Schedule and Delays:
All scopes of work outlined in this proposal are bid to be delivered,build,operated,torn down and removed from the site in sequence to be determined
by the agreed upon schedule.Unless otherwise described and agreed upon,there is no concurrent scope of work outlined in this proposal and Sunbelt
Rentals reserves the right to apply for a change order to operate or build any sequence of work concurrently with another.
Freight &Handling Cost:
The freight and costs associated with freight &handling are based on shipments originating from Sunbelt Rentals facilities.Sunbelt Rentals may hire
third party trucking companies or company owned trucks.Drivers allow (1)hour to load and off load equipment at the customer's site.Detention
costs may be incurred beyond that time.
Mobilization Costs and Notice to Proceed:
Sunbelt Rentals incurs mobilization costs to facilitate the delivery of equipment.The costs associated with mobilization are the responsibilities of the
customer should the project be canceled prior to scheduled delivery.Sunbelt Rentals requires at least a 2 weeks'notice before mobilization
activities can be scheduled.Any and all efforts will be made to compress lead times at the contractor's written request,which may or may not come
with a change order to compensate for additional expense to compress schedules.
Fueling:
If Sunbelt Site fueling is not requested,then the customer is responsible for site fueling and shall indemnify Sunbelt of all liability associated with the
Customer's self-performance of site fueling.Customer responsible for returning equipment full of fuel or choose the pay on return fueling option.*
FUEL PRICE SUBJECT TO CHANGE WITHOUT NOTICE.
REDACTEDSUNBELT-198
29856008.1:11772-0041
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Ave, Suite 100
Ft. Collins, CO 80521
Plaintiff:
CHRISTIAN HIGGINS,
v.
Defendants:
CITY OF FORT COLLINS; C&L WATER SOLUTIONS,
INC.; SUNBELT RENTALS, INC.; KODIAK FIELD
SERVICES, LLC; AND BCH SERVICES, LLC
Attorneys for C&L Water Solutions, Inc.
Jason H. Klein, Reg. No. 53303
Jay C. Jacobson, Reg. No. 36994
Manda L. “Mandy” Neuman, Reg. No. 55906
Wood, Smith, Henning & Berman LLP
1805 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Phone: 720-479-2500
Fax: 303-471-1855
E-mail: jklein@wshblaw.com
jjacobson@wshblaw.com
mneuman@wshblaw.com
▲ COURT USE ONLY ▲
Case No. 2023CV30276
Division:
DEFENDANT C&L WATER SOLUTIONS, INC.’S RESPONSES TO DEFENDANT
CITY OF FORT COLLINS’ REQUEST FOR ADMISSIONS
Defendant C&L Water Solutions, Inc. (“C&L”), by and through its attorneys, Wood,
Smith, Henning & Berman LLP, and as for its Responses to Defendant City of Fort Collins’
Request for Admissions states as follows:
SERVED ONLY: November 20, 2023 2:48 PM
FILING ID: F5F670002EF41
CASE NUMBER: 2023CV30276
EXHIBIT
D
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
29856008.1:11772-0041 2
REQUESTS FOR ADMISSION
1. Please admit that you entered into an agreement, titled Services Agreement Work
Order Type (previously provided as COFC-0024-169 by Defendant City of Fort Collins), with
Defendant City of Fort Collins.
RESPONSE: Admit.
2. Please admit that you entered into further agreements to extend the term of the
Services Agreement Work Order Type with Defendant City of Fort Collins, copies of which have
been provided by Defendant City of Fort Collins as COFC-00170-190 and COFC-00191-211.
RESPONSE: Admit.
3. Please admit that, by the terms of the Services Agreement Work Order Type which
you entered into with the City, you were not authorized to complete any projects for the City of
Fort Collins without first receiving a Work Order.
RESPONSE: Admit.
4. Please admit that, by the terms of the Services Agreement Work Order Type which
you entered into with the City, you accepted full responsibility for the actions of your employees
in the event of an injury at your work site.
RESPONSE: Deny.
5. Please admit that, by the terms of the Services Agreement Work Order Type which
you entered into with the City, you accepted full responsibility for the actions of your
subcontractors in the event of an injury at your work site.
RESPONSE: Deny.
6. Please admit that, by the terms of the Services Agreement Work Order Type which
you entered into with the City, you agreed to indemnify the City for any damages incurred at your
work site which resulted from the actions of your employees.
RESPONSE: Deny.
7. Please admit that, by the terms of the Services Agreement Work Order Type which
you entered into with the City, you agreed to indemnify the City for any damages incurred at your
work site which resulted from the actions of your subcontractors.
RESPONSE: Deny.
29856008.1:11772-0041 3
8. Please admit that you received a Work Order, a copy of which has been provided
by Defendant City of Fort Collins as COFC-00212-270, authorizing you to complete work for a
sewage rehabilitation project taking place on or around October 8, 2021, around Spring Creek
Trail.
RESPONSE: Admit.
9. Please admit that you subcontracted or otherwise employed Defendant Sunbelt
Rentals, Inc. ("Sunbelt") for sewage rehabilitation services to occur on or around October 8, 2021,
under Spring Creek Trail.
RESPONSE: Admit only for sewage bypass services.
10. Please admit that you did not contract directly with Defendant Kodiak Field
Services, LLC ("Kodiak") for services related to a sewer rehabilitation project taking place on or
around October 8, 2021, around Spring Creek Trail.
RESPONSE: Admit.
11. Please admit that you did not contract directly with Defendant BCH Services, LLC
("BCH") for services related to a sewer rehabilitation project taking place on or around October 8,
2021, around Spring Creek Trail.
RESPONSE: Admit.
12. Please admit that you did not inform the City that your subcontractor, Defendant
Sunbelt, subcontracted with Defendant Kodiak for services related to a sewer rehabilitation project
taking place on or around October 8, 2021, around Spring Creek Trail.
RESPONSE: Admit. C&L was unaware that Sunbelt subcontracted or otherwise
employed Kodiak.
13. Please admit that you did not inform the City that your subcontractor, Defendant
Sunbelt, subcontracted with Defendant BCH for services related to a sewer rehabilitation project
taking place on or around October 8, 2021, around Spring Creek Trail.
RESPONSE: Admit. C&L was unaware that Sunbelt subcontracted or otherwise
employed BCH.
14. Please admit that you did not submit any applications to the City of Fort Collins for
a Traffic Control Permit allowing your employees to lay a hose across Welch Street on or around
October 8, 2021.
29856008.1:11772-0041 4
RESPONSE: Admit. C&L did not submit a permit because Sunbelt was responsible for
laying the hose across Welch Street. C&L was also unaware that Sunbelt laid the hose across
Welch Street.
15. Please admit that you did not submit any applications to the City of Fort Collins for
a Traffic Control Permit allowing your subcontractors to lay a hose across Welch Street on or
around October 8, 2021.
RESPONSE: Admit. C&L did not submit a permit because Sunbelt was responsible for
laying the hose across Welch Street. C&L was also unaware that Sunbelt laid the hose across
Welch Street.
16. Please admit that you did not receive any Traffic Control Permit allowing your
employees to lay a hose across Welch Street on or around October 8, 2021.
RESPONSE: Admit. C&L did not submit a Traffic Control Permit to lay the hose across
Welch Street.
17. Please admit that no employee of the City of Fort Collins placed a hose across
Welch Street on October 8, 2021.
RESPONSE: Admit.
18. Please admit that neither the City of Fort Collins nor any of its employees
authorized your employees to place a hose across Welch Street on October 8, 2021.
RESPONSE: Admit. C&L’s employees did not place the hose across Welch Street.
19. Please admit that neither the City of Fort Collins nor any of its employees
authorized your subcontractors to place a hose across Welch Street on October 8, 2021.
RESPONSE: Admit. C&L never asked City of Fort Collins for authorization for any of its
subcontractors to place the hose across Welch Street. Sunbelt placed the hose without C&L’s
knowledge.
20. Please admit that your employee connected and placed a hose across Welch Street
on October 8, 2021.
RESPONSE: Deny. Sunbelt connected and placed a hose across Welch Street.
21. Please admit that an employee of one of your subcontractors connected and placed
a hose across Welch Street on October 8, 2021.
29856008.1:11772-0041 5
RESPONSE: Propounding party has exceeded the limit of request for admission permitted
by the Case Management Order.
Respectfully submitted this 20th day of November, 2023.
WOOD, SMITH, HENNING & BERMAN LLP
/s/ Mandy L. Neuman
Jason H. Klein
Jay C. Jacobson
Mandy L. Neuman
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of November, 2023, a true and correct copy of the
DEFENDANT C&L WATER SOLUTIONS, INC.’S RESPONSES TO DEFENDANT
CITY OF FORT COLLINS’ REQUEST FOR ADMISSIONS was e-filed and/or e-served via
Colorado Courts E-Filing System on the following parties:
Karl Hager
VanMeveren Law Group, PC
123 N. College Ave., #112
Fort Collins, CO 80524
Attorneys for Plaintiff
Arthur J. Kutzer
SGR, LLC
3900 E. Mexico Ave., #700
Denver, CO 80210
Attorneys for Defendant BCH Services, LLC
Jamey W. Jamison
Randee L. Stapp
Dino G. Moncecchi
Harris, Karstaedt, Jamison & Powers, P.C.
10333 E Dry Creek Rd., #300
Englewood, CO 80112
Attorneys for Defendant/Cross-Claim Plaintiff Sunbelt Rentals, Inc.
29856008.1:11772-0041 6
Andrew W. Callahan
Cassie L. Williams
WICK & TRAUTWEIN, LLC
323 South College Ave., #3
Fort Collins, CO 80522
Attorneys for City of Fort Collins
Scott A. Neckers
Sean T. Conrecode
Overturf McGrath & Hull PC
625 E. 16th Ave., #100
Denver, CO 80203
Attorneys for Defendant Kodiak Field Services LLC
/s/Sharon Nordentoft
Sharon Nordentoft
1
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
CHRISTIAN HIGGINS,
v.
Defendants:
CITY OF FORT COLLINS, C&L WATER SOLUTIONS,
INC. SUNBELT RENTALS, INC., KODIAK FIELD
SERVICES, LLC AND BCH SERVICES, LLC
Case Number: 2023CV030276
Div.: 4C
AFFIDAVIT OF ZECHARIAH VINT
Undersigned affiant, Zechariah Vint, states as follows to the best of the affiant’s
knowledge and under penalty of perjury:
1. I am over the age of 18 and am competent to make this affidavit based
upon personal knowledge.
2. I am an employee of Kodiak Field Services, LLC (“Kodiak”), my job title is
Field Supervisor.
3. On October 8, 2021, I was an employee of Kodiak serving the role of Field
Operator. I was promoted to Field Supervisor approximately one year ago.
4. On or about October 8, 2021, Sunbelt Rentals, Inc. (“Sunbelt”) hired and
verbally subcontracted with Kodiak to provide bypass labor for a larger project that
Kodiak was not privy to the details of at the time , in the vicinity of 1700 Welch Street,
EXHIBIT
E
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
2
Fort Collins, CO (the “property”).
5. The attached invoice (Exhibit A) reflects the bypass labor that was
performed by Kodiak. Exhibit A. For the job near the property, Kodiak was hired to
essentially watch the pump for several hours at a time to ensure that it was working
properly.
6. Kodiak did not subcontract with any individual or entity to perform work
at the property.
7. When Kodiak arrived at the property to perform its scope of work, the
subject pressurized hose was already attached to a fire hydrant that was installed across
Welch Street, as depicted in the photograph below [Kodiak 000005]. No employee or
representative of Kodiak was involved or consulted with in the decision or the act of
installing this pressurized hose; no employee or representative of Kodiak was involved
or consulted with in the decision or act of affixing the pressurized hose to the fire
hydrant, and; no employee or representative of Kodiak was involved or consulted with
in the placement of the pressurized hose across Welch Street.
3
[Kodiak 00005].
8. Kodiak’s scope of work was simply to monitor the pump to make sure it
was secure after it had already been installed by another entity. Kodiak’s scope of work
did not include—and it had no responsibility to—put up cones or lights or signs in the
area where the incident occurred or otherwise at the property.
9. On October 8, 2021, at approximately 9:07 PM, a woman later learned to
be Christine Higgins, was riding her bicycle near 1700 Welch Street, Fort Collins, CO,
when she encountered a pressurized hose attached to a fire hydrant that was installed
across Welch Street (the “incident”).
10. I was in the vicinity of the incident when it occurred, performing Kodiak’s
scope of work an estimated 50-60 yards away. Kodiak’s scope of work was too far away
Kodiak Field Services, LLC Thanks you for your business and reminds you to KEEP F OC US ED ON S AFETY
P age 1 of 1
K o dia k Field Ser v ice s, LLC
6232 S 1500 E
Vernal, UT 84078
(435) 781-0955
ap@kodiakfieldservices.com
INVOICE
BILL TO
Sunbelt Rentals
Po Box 410928
Charlotte, NC 28241
INVOICE 1783
DATE 10/10/2021
TERMS Net 30
DUE DATE 11/09/2021
LOCATION AND WELL NAME
Denver Colorado
JOB DESCRIPTION
10/4-10/10
REQUESTED BY
Erik Stensby
DATE ACTIVITY DESCRIPTION QTY RATE AMOUNT
10/10/2021 Bypass Labor Dylan Schaus 52 58.00 3,016.00
10/10/2021 Bypass Labor David Berumen 80.25 60.00 4,815.00
10/10/2021 Bypass Labor Zech Vint 52.50 58.00 3,045.00
PO 13747332 PAYMENT 10,876.00
BALANCE DUE $0 .0 0
PAID
Pay in v o ic e
1
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
CHRISTIAN HIGGINS,
v.
Defendants:
CITY OF FORT COLLINS, C&L WATER SOLUTIONS,
INC. SUNBELT RENTALS, INC., KODIAK FIELD
SERVICES, LLC AND BCH SERVICES, LLC
Case Number: 2023CV030276
Div.: 4C
Attorneys for Defendant Kodiak Field Services, LLC
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Overturf McGath & Hull, P.C.
625 E. 16th Avenue, Suite 100
Denver, Colorado 80203
Telephone: 303-860-2848
Facsimile: 303-860-2869
E-mail: san@omhlaw.com
stc@omhlaw.com
KODIAK FIELD SERVICES, LLC’S RESPONSES TO THE REQUESTS FOR
ADMISSIONS OF THE CITY OF FORT COLLINS
Kodiak Field Services, LLC (“Kodiak”), by and through its attorneys, Overturf
McGath & Hull, P.C., for its Responses to the Requests for Admissions by the City of
Fort Collins, states as follows:
RESPONSES TO REQUESTS FOR ADMISSION
Request for Admission #1. Please admit that you subcontracted with Defendant
Sunbelt Rentals, Inc (“Sunbelt”) for services related to a sewer rehabilitation project
taking place on or around October 8, 2021, around Spring Creek Trail.
Response: Admit.
EXHIBIT
F
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
2
Request for Admission #2. Please admit that you subcontracted with Defendant
BCH Services, LLC (“BCH”) for services related to a sewer rehabilitation project taking
place on or around October 8, 2021, around Spring Creek Trail.
Response: Denied.
Request for Admission #3. Please admit that you never entered into any
contract or agreement, written or otherwise, with Defendant City of Fort Collins for
services related to a sewer rehabilitation project taking place on or around October 8,
2021, around Spring Creek Trail.
Response: Admit.
Request for Admission #4. Please admit that you did not receive a Work Order
from the City requesting you or any of your employees to complete any work on Welch
Street on October 8, 2021.
Response: Admit.
Request for Admission #5. Please admit that you did not notify the City that
you subcontracted with Defendant Sunbelt for services related to a sewer rehabilitation
project taking place on or around October 8, 2021, around Spring Creek Trail.
Response: Kodiak does not have sufficient information to admit or deny whether
the City was notified of its agreement with Sunbelt at the project or whose
responsibility it was to notify the City, if at all, and therefore denies same.
Request for Admission #6. Please admit that you never entered into any
contract or agreement, written or otherwise, with Defendant C&L Water Solutions, Inc.
(“C&L”) for services related to a sewer rehabilitation project taking place on or around
October 8, 2021, around Spring Creek Trail.
Response: Admit.
Request for Admission #7. Please admit that you did not notify Defendant C&L
that you subcontracted with Defendant Sunbelt for services related to a sewer
rehabilitation project taking place on or around October 8, 2021, around Spring Creek
Trail.
Response: Kodiak does not have sufficient information to admit or deny whether
Defendant C&L was notified of its agreement with Sunbelt at the project or whose
responsibility it was to notify the C&L, if at all, and therefore, denies same.
3
Request for Admission #8. Please admit that you did not submit any
applications to the City of Fort Collins for a Traffic Control Permit allowing your
employees to lay a hose across Welch Street on or around October 8, 2021.
Response: Admit that Kodiak itself did not submit an application for said action;
however, Kodiak denies submitting an application was its responsibility and denies
that Kodiak set the hose across Welch Street on or around October 8, 2021 or directed
others to do so.
Request for Admission #9. Please admit that you did not submit any
applications to the City of Fort Collins for a Traffic Control Permit allowing yo ur
subcontractors to lay a hose across Welch Street on or around October 8, 2021.
Response: Admit, as Kodiak did not utilize any subcontractors for this project.
Request for Admission #10. Please admit that no employee of the City of Fort
Collins placed a hose across Welch Street on October 8, 2021.
Response: Kodiak is without sufficient information to admit or deny this
request and, therefore, must deny same.
Request for Admission #11. Please admit that neither the City of Fort Collins
nor any of its employees authorized your employees to place a hose across Welch Street
on October 8, 2021.
Response: Objection, this request is vague and ambiguous. Kodiak did not place
the hose across Welch Street on October 8, 2021, and therefore, this request is denied as
phrased.
Request for Admission #12. Please admit that neither the City of Fort Collins
nor any of its employees authorized your subcontractors to place a hose across Welch
Street on October 8, 2021.
Response: Objection, this request is vague and ambiguous. Kodiak did not have
subcontractors involved in this project, and therefore, this request is denied as phrased.
Request for Admission #13. Please admit that on the night of October 8, 2021, on
or around the time of the incident, one or more of your employees were located on or
around Welch Street.
Response: Admit.
4
Request for Admission #14. Please admit that on the night of October 8, 2021, on
or around the time of the incident, one or more of your subcontractors were located on
or around Welch Street.
Response: Denied.
Request for Admission #15. Please admit that your employee connected and
placed a hose across Welch Street on October 8, 2021.
Response: Denied.
Request for Admission #16. Please admit that an employee of one of your
subcontractors connected and placed a hose across Welch Street on October 8, 2021.
Response: Denied.
Respectfully submitted this 6th day of November 2023.
OVERTURF McGATH & HULL, P.C.
By s/Scott A. Neckers
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Attorney for Defendant Kodiak Field Services,
LLC
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing KODIAK
FIELD SERVICES, LLC’S RESPONSES TO THE REQUESTS FOR ADMISSIONS
OF THE CITY OF FORT COLLINS was electronically served via Colorado Courts E-
Filing this 6th day of November 2023, with service to the following:
Karl W. Hager
VanMeveren Law Group, O.C.
123 N. College Avenue, Suite 112
Fort Collins, CO 80524
Attorney for Plaintiff
Arthur J. Kutzer
SGR, LLC
3900 East Mexico Avenue, Suite 700
Denver, CO 80210
Attorneys for Defendant BCH Services, LLC
Andrew W. Callahan
Cassie L. Williams
Wick & Trautwein, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Attorney for Defendant City of Fort Collins
Jason H. Klein
Jay C. Jacobson
Manda L. “Mandy” Neuman
Wood, Smith, Henning & Berman LLP
1805 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Attorneys for Defendant C&L Water
Solutions, Inc.
Jamey W. Jamison
Randee L. Stapp
Dino G. Moncecchi
Harris, Karstaedt, Jamison & Powers, P.C.
10333 E. Dry Creek Road, Suite 300
Englewood, Colorado 80112
Attorneys for Defendant Sunbelt Rentals
s/ Jessica Pringle
In accordance with C.R.C.P. 121, §1-26(7), a printed or printable copy of this document with original, electronic, or scanned
signatures is being maintained by the filing party and will be made available for inspection by other parties or the Court upon
request.
.
1
DISTRICT COURT, LARIMER COUNTY,
COLORADO
201 La Porte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
CHRISTIAN HIGGINS,
v.
Defendants:
CITY OF FORT COLLINS, C&L WATER SOLUTIONS,
INC. SUNBELT RENTALS, INC., KODIAK FIELD
SERVICES, LLC AND BCH SERVICES, LLC
Case Number: 2023CV030276
Div.: 4C
Attorneys for Defendant Kodiak Field Services, LLC
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Overturf McGath & Hull, P.C.
625 E. 16th Avenue, Suite 100
Denver, Colorado 80203
Telephone: 303-860-2848
Facsimile: 303-860-2869
E-mail: san@omhlaw.com
stc@omhlaw.com
KODIAK FIELD SERVICES, LLC’S RESPONSES TO PLAINTIFF’S
INITIAL WRITTEN DISCOVERY
Defendant Kodiak Field Services, LLC (“Kodiak”), by and through its attorneys,
Overturf McGath & Hull, P.C., pursuant to C.R.C.P. 26 through 34 of the Colorado
Rules of Civil Procedure, responds to Plaintiff’s First Set of Interrogatories, Requests for
Production of Documents and Requests for Admissions as follows:
GENERAL OBJECTIONS
1. Kodiak has not completed its factual and legal investigation. Discovery is
ongoing in this matter. As such, Kodiak expressly reserves its right to continue
discovery and investigation. If additional information is discovered, Kodiak shall
supplement its responses to Plaintiff’s Discovery Requests.
EXHIBIT
G
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
2
2. The General and Specific objections do not preclude Kodiak from later relying on
information, discovered pursuant to subsequent investigation or discovery, which, if
known at the time, may have been included in these objections. Nothing in these
objections is intended to preclude Kodiak from answering the discovery requests in
compliance with, and at the times specified by, the Colorado Rules of Civil Procedure.
3. To the extent that the discovery requests posed by Plaintiff exceeds the
requirements and scope of the Colorado Rules of Civil Procedure, Defendant objects.
4. Kodiak objects to Plaintiff’s discovery requests to the extent that they incorporate
or set forth definitions and instructions that attempt to impose upon Kodiak burdens
and obligations beyond those contemplated by the Colorado Rules of Civil
Procedure. Kodiak will respond as required by the applicable provisions of the
Colorado Rules of Civil Procedure and any purported instructions, definitions,
requirements, or requests to the contrary will be disregarded.
5. To the extent that Plaintiff’s discovery is inconsistent with and exceeds the cost-
benefit and proportionality factors as set forth in C.R.C.P. 26(b)(2)(F), and are unduly
burdensome, Kodiak objects.
6. To the extent Plaintiff’s discovery requests are vague and overly broad, and not
limited in time or scope, Kodiak objects.
7. To the extent Plaintiff’s discovery requests seek information protected by the
attorney-client or work-product privileges, Kodiak objects.
8. Kodiak hereby incorporates by reference, as if fully stated, the foregoing
objections in the responses to each discovery request.
PATTERN INTERROGATORIES
INTERROGATORY NO. 1 (1.1) State the name, ADDRESS, telephone number, and
relationship to you of each person who prepared or assisted in the preparation of the
responses to these interrogatories. (Do not identify anyone who simply typed or
reproduced the responses).
RESPONSE: Whitney Hemmert, representative of Kodiak c/o Overturf McGath &
Hull, P.C., 625 E. 16th Ave, Denver, CO 80203, 303-860-2848. Sean Conrecode, Esq. as
to form and objections.
3
INTERROGATORY NO. 2 (3.4) State the name, ADDRESS, and the job title of the
person(s) with the most knowledge of the INCIDENT or events leading to the
INCIDENT.
OBJECTION: This interrogatory is overbroad and unduly burdensome. The person(s)
with the most knowledge of the INCIDENT or the events leading to the INCIDENT
would likely be individuals from other entities at the subject property.
RESPONSE: This objection notwithstanding, Zech Vint (Field Supervisor) was at the
subject property when the INCIDENT occurred and, therefore, likely has the most
knowledge of the INCIDENT. Dylan Schaus (Field Manager) was also at the subject
property earlier in the day prior to the INCIDENT.
INTERROGATORY NO. 3 (12.1) State the name, ADDRESS, and telephone number of
each individual:
(a) who witnessed the INCIDENT or the events occurring immediately before
or after the INCIDENT;
(b) who made any statements at the scene of the INCIDENT;
(c) who heard any statements made about the INCIDENT by any individual
at the scene;
(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claims to have
knowledge of the INCIDENT (except for expert witnesses covered by
C.R.C.P. 26(a)(2) and (b)(4)).
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case.
RESPONSE:
This objection notwithstanding:
(a) Zech Vint was at the subject property when the INCIDENT occurred
witnessed the aftermath of same.
(b) Zech Vint made statements at the scene of the INCIDENT which have
previously been disclosed pursuant to Rule 26.
(c) Mr. Vint also invariably heard statements made by others at the scene, the
names and contact details of these individuals have been disclosed pursuant to
Rule 26 and will be supplemented as necessary.
(d) Representatives of Kodiak, including Whitney Hemmert, have learned about
the INCIDENT but were not present at the subject property when it occurred.
4
INTERROGATORY NO. 4 (12.2) Have YOU OR ANYONE ACTING ON YOUR
BEHALF interviewed any individual concerning the INCIDENT?
If so, for each individual state;
(a) the name, ADDRESS, and telephone number of the individual
interviewed;
(b) the date of the interview;
(c) the name, ADDRESS, and telephone number of the PERSON OR ENTITY
who conducted the interview.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks information
protected as privileged work product or attorney-client communications.
Additionally, this interrogatory could be read to necessitate premature expert
identification.
RESPONSE: This objection notwithstanding, no.
INTERROGATORY NO. 5 (12.3) Have YOU OR ANYONE ACTING ON YOUR
BEHALF obtained a written or recorded statement from any individual concerning the
INCIDENT?
If so, for each statement state:
(a) the name, ADDRESS, and telephone number of the individual from whom
the statement was obtained;
(b) the name, ADDRESS, and telephone number of the individual who
obtained the statement;
(c) the date the statement was obtained;
(d) the name, ADDRESS, and telephone number of each PERSON OR
ENTITY who has the original statement or a copy.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks information
protected as privileged work product or attorney-client communications.
Additionally, this interrogatory could be read to necessitate premature expert
identification.
RESPONSE: This objection notwithstanding, no.
5
INTERROGATORY NO. 6 (12.6) Was a report made by any PERSON OR ENTITY
concerning the INCIDENT?
If so, state:
(a) the name, title, identification number, and employer of the PERSON OR
ENTITY who made the report;
(b) the date and type of report made;
(c) the name, ADDRESS, and telephone number of the PERSON OR ENTITY
for whom the report was made.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks information
protected as privileged work product or attorney-client communications.
Additionally, this interrogatory could be read to necessitate premature expert
identification.
RESPONSE: This objection notwithstanding, not by Kodiak. However, Rule 26
disclosures of the parties to this lawsuit have revealed such reports.
INTERROGATORY NO. 7 (12.7) Have YOU OR ANYONE ACTING ON YOUR
BEHALF inspected the scene of the INCIDENT?
If so, for each inspection state:
(a) the name, ADDRESS, and telephone number of the individual making the
inspection (except for expert witnesses covered by C.R.C.P. 26 (a)(2) and
(b)(4));
(b) the date of the inspection.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Objection to the term “inspected”, as it is
vague and ambiguous. Further this interrogatory seeks information protected as
privileged work product or attorney-client communications. Additionally, this
interrogatory could be read to necessitate premature expert identification.
RESPONSE: This objection notwithstanding, representatives of Kodiak have visited
the subject property and observed its condition on the date of the INCIDENT in
order to perform its agreed upon scope of work. Individuals include Zech Vint and
Dylan Schaus.
6
INTERROGATORY NO. 8 (15.1) Identify each denial of a material allegation in
paragraph 37 of your Answer to Plaintiff’s First Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
OBJECTION: This interrogatory is overbroad and unduly burdensome. Moreover,
this is a contention interrogatory that relates to the application of law to facts.
C.R.C.P. 33(c). This interrogatory is premature as discovery is still ongoing in this
matter.
RESPONSE: This objection notwithstanding, see documentation disclosed pursuant
to C.R.C.P. 26(a)(1) and C.R.C.P. 26(a)(2). Defendant will supplement a response after
discovery has been completed.
INTERROGATORY NO. 9 (15.1) Identify each denial of a material allegations in
paragraph 38 of your Answer to Plaintiff’s First Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
OBJECTION: This interrogatory is overbroad and unduly burdensome. Moreover,
this is a contention interrogatory that relates to the application of law to facts.
C.R.C.P. 33(c). This interrogatory is premature as discovery is still ongoing in this
matter.
RESPONSE: This objection notwithstanding, see documentation disclosed pursuant
to C.R.C.P. 26(a)(1) and C.R.C.P. 26(a)(2). Defendant will supplement a response after
discovery has been completed.
7
INTERROGATORY NO. 10 (15.1) Identify each denial of a material allegations in
paragraph 101 of your Answer to Plaintiff’s First Amended Complaint and for each:
(a) state the facts upon which you base the denial;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
denial, and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT.
OBJECTION: This interrogatory is overbroad and unduly burdensome. Moreover,
this is a contention interrogatory that relates to the application of law to facts.
C.R.C.P. 33(c). This interrogatory is premature as discovery is still ongoing in this
matter.
RESPONSE: This objection notwithstanding, see documentation disclosed pursuant
to C.R.C.P. 26(a)(1) and C.R.C.P. 26(a)(2). Defendant will supplement a response after
discovery has been completed.
INTERROGATORY NO. 11 (15.2) For your affirmative defense #1 in your Answer to
Plaintiff’s First Amended Complaint, you state: ”Plaintiff’s Complaint fails to state a
claim against Defendant upon which relief may be granted”:
(a) state all the facts upon which you base this affirmative defense;
(b) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(c) identify all DOCUMENTS and other tangible things which support your
affirmative defense, and state the name, ADDRESS, and telephone
number of the PERSON OR ENTITY who has each DOCUMENT.
OBJECTION: This interrogatory is overbroad and unduly burdensome. Moreover,
this is a contention interrogatory that relates to the application of law to facts.
C.R.C.P. 33(c). This interrogatory is premature as discovery is still ongoing in this
matter.
RESPONSE: This objection notwithstanding, see documentation disclosed pursuant
to C.R.C.P. 26(a)(1) and C.R.C.P. 26(a)(2). Defendant will supplement a response after
discovery has been completed.
8
INTERROGATORY NO. 12 16.1 Do you contend that any PERSON OR ENTITY, other
than you or plaintiff, contributed to the occurrence of the INCIDENT or the injuries or
damages claimed by plaintiff? If so, for each PERSON OR ENTITY:
(a) state the name, ADDRESS, and telephone number of the PERSON OR
ENTITY;
(b) state the facts upon which you base your contention;
(c) state the names, ADDRESSES, and telephone numbers of all PERSONS
OR ENTITIES who have knowledge of the facts;
(d) identify all DOCUMENTS and other tangible things that support your
contention and state the name, ADDRESS, and telephone number of the
PERSON OR ENTITY who has each DOCUMENT or thing.
OBJECTION: This interrogatory is overbroad and unduly burdensome. Moreover,
this is a contention interrogatory that relates to the application of law to facts.
C.R.C.P. 33(c). This interrogatory is premature as discovery is still ongoing in this
matter.
RESPONSE: This objection notwithstanding, yes, other co-defendants are
responsible for the alleged “dangerous condition” in this INCIDENT. Further, it is
our position that Plaintiff is responsible for the INCIDENT and may have failed to
mitigate her damages, if any. Kodiak reserves the right to supplement this position.
As it pertains to information supporting this, see documentation disclosed pursuant
to C.R.C.P. 26(a)(1) and C.R.C.P. 26(a)(2). Defendant will supplement a response after
discovery has been completed.
NON-PATTERN INTERROGATORIES
INTERROGATORY NO. 13 List any and all contractual obligations YOU had with
respect to the UTILITIES PROJECT on or before October 8, 2021 and to whom those
obligations were owed.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks potential
legal analysis concerning “contractual obligations” and “to whom those obligations
were owed.”
RESPONSE: This objection notwithstanding, the invoices submitted by Kodiak
reflect the scope of work performed for Sunbelt. Kodiak was responsible for
performing the work outlined in the invoice, see [KODIAK 000009].
9
INTERROGATORY NO. 14 For your responses to Interrogatory No. 13 indicate whether
and how YOU fulfilled each of the listed obligations above.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks potential
legal analysis concerning “contractual obligations” and “to whom those obligations
were owed.”
RESPONSE: This objection notwithstanding, the invoices submitted by Kodiak
reflect the scope of work performed for Sunbelt. Kodiak was responsible for
performing the work outlined in the invoice and did so. See [KODIAK 000009].
INTERROGATORY NO. 15 Describe in detail your contractual obligations with any of
the named Defendants with regard to overseeing the security and safety of Welch Street
where the HOSE was laid on or before October 8, 2021.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks potential
legal analysis concerning “contractual obligations” and “to whom those obligations
were owed.”
RESPONSE: This objection notwithstanding, none.
INTERROGATORY NO. 16 For your response to Interrogatory No. 15, indicate whether
and how YOU fulfilled each of the listed obligations.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks potential
legal analysis concerning “contractual obligations” and “to whom those obligations
were owed.”
RESPONSE: This objection notwithstanding, the invoices submitted by Kodiak
reflect the scope of work performed for Sunbelt. Kodiak was responsible for
performing the work outlined in the invoice and did so. See [KODIAK 000009].
INTERROGATORY NO. 17 Please provide the name(s) and address(es) of any
supervisor(s) or project manager(s) who was (were) on-site during the time when the
work was performed for the UTILITIES PROJECT, including but not limited to when
the HOSE was laid across Welch Street on the date of the INCIDENT.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further Kodiak cannot respond to this
interrogatory as it does not know when the HOSE was laid across Welch Street on the
date of the INCIDENT.
10
RESPONSE: This objection notwithstanding, Kodiak does not know when the HOSE
was laid across Welch Street; however, Zech Vint, David Berumin (Field Operator),
and Dylan Schaus were at the property when work was performed for the UTILITIES
PROJECT. Only Zech Vint was at the property when the INCIDENT occurred.
Employees of Kodiak are c/o Overturf McGath & Hull, P.C., 625 E. 16th Ave, Denver,
CO 80203, 303-860-2848.
INTERROGATORY NO. 18 Describe and explain your company’s standard operating
procedure and policies regarding overseeing the work of your employees or agents
with respect to the UTILITIES PROJECT. (Include in your answer the name or names
and addresses of anyone assigned to supervise the remedial work done for the City,
and list any procedures regarding oversight and safety, such as company policy(ices),
operating manuals, safety manuals and/or safety logs.)
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks information
concerning “standard operating procedure and policies” for work performed with
respect to one project.
RESPONSE: This objection notwithstanding, Kodiak’s standard protocol was
followed at the UTILITIES PROJECT and requires its trained employees to fulfill the
scope of work as agreed. Kodiak’s responsibilities were to check the pump once an
hour. Kodiak’s employees are competent and qualified to perform such work.
INTERROGATORY NO. 19 Please describe why the HOSE was affixed to the specific
hydrant it was on October 8, 2021, as opposed to using a different water source.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory presumes
KODIAK was involved in setting up the HOSE.
RESPONSE: This objection notwithstanding, Kodiak was not involved in affixing
the HOSE to the hydrant or setting the HOSE across Welch Street; accordingly,
Kodiak does not know why.
INTERROGATORY NO. 20 Were there any other fire hydrants that could have been
used on or before October 8, 2021 that did not require laying the HOSE across Welch
Street?
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory presumes
KODIAK was involved in setting up the HOSE.
11
RESPONSE: This objection notwithstanding, Kodiak was not involved in affixing
the HOSE to the hydrant or setting the HOSE across Welch Street; accordingly,
Kodiak does not know.
INTERROGATORY NO. 21 Describe in detail any conversations YOU had with any
employees or other named Defendants in this action regarding the location of the HOSE
placement prior to the INCIDENT occurring.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case.
RESPONSE: This objection notwithstanding, none.
INTERROGATORY NO. 22 Why was the water meter located in Edora Park identified
in Defendants’ Disclosures not used for the remediation?
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory presumes Kodiak
was involved in setting up the HOSE.
RESPONSE: This objection notwithstanding, Kodiak was not involved in affixing
the HOSE to the hydrant or setting the HOSE across Welch Street; accordingly,
Kodiak does not know.
INTERROGATORY NO. 23 Describe in detail any communication regarding the
INCIDENT (sent to you or by you and to whom or by whom and when), and what
actions, if any, were taken after the INCIDENT, e.g., what reports were filed, what
statements were given or taken, what images were taken or what video tapes were
preserved, and the identity of the personnel who performed these actions.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory seeks information
protected as privileged work product or attorney-client communications.
Additionally, this interrogatory could be read to necessitate premature expert
identification.
RESPONSE: This objection notwithstanding, communications responsive to this
interrogatory have been produced pursuant to Rule 26 and will be supplemented as
needed.
12
INTERROGATORY NO. 24 Identify by block and street name the fire hydrants
approved by the City for the sewage remediation work during the relevant time period
in which the INCIDENT occurred.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case. Further this interrogatory presumes
KODIAK was involved in setting up the HOSE or obtaining approval from the City
related to remediation work.
RESPONSE: This objection notwithstanding, Kodiak was not involved in affixing
the HOSE to the hydrant, setting the HOSE across Welch Street, or obtaining
approval from the City for remediation work; accordingly, Kodiak does not know.
INTERROGATORY NO. 25 Did YOU OR ANYONE ACTING ON YOUR BEHALF
place signage or any other warning signs to warn of the HOSE laid across Welch Street?
If your answer is no, please explain why not?
RESPONSE: No, because Kodiak did not set the HOSE across Welch Street and was
not involved in the decision to do this. This was not part of Kodiak’s scope of work.
INTERROGATORY NO. 26 Describe in detail your professional relationship with
SUNBELT regarding the remediation project undertaken on or before October 8, 2021?
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case.
RESPONSE: This objection notwithstanding, SUNBELT subcontracted with Kodiak
to perform work. This is outlined in the Kodiak invoice document previously
disclosed pursuant to Rule 26.
INTERROGATORY NO. 27 Describe in detail your professional relationship with
Defendant BCH Services regarding the UTILITIES PROJECT.
OBJECTION: This interrogatory is overbroad, unduly burdensome, and
disproportional to the needs of the case.
RESPONSE: This objection notwithstanding, Kodiak did not knowingly have a
professional relationship with Defendant BCH besides the fact that it was at the
subject property at the same time that Kodiak was performing its scope of work.
13
REQUESTS FOR ADMISSION
1. Admit that YOU had an obligation to keep Welch Street safe during and after
performing YOUR contractual duties on or before October 8, 2021 in the area where the
INCIDENT occurred.
OBJECTION: This request is vague and ambiguous. Objection to the extent this
request seeks to impose duties above and beyond those set by law.
RESPONSE: This objection notwithstanding, denied. Kodiak’s work did not involve
setting the HOSE on Welch Street; its scope of work was not in the immediate
vicinity of the INCIDENT.
2. Admit that YOU were required to get permission to use the fire hydrant YOU
used to perform a portion of the remediation work.
OBJECTION: This request is vague and ambiguous as it pertains to “permission.”
Moreover, this request appears to improperly assume that Kodiak was involved in
setting up the HOSE and/or obtaining approval from the City, which it was not.
RESPONSE: This objection notwithstanding, Kodiak did not set the HOSE across
Welch Street or affix the hose to the hydrant. This Request cannot be admitted or
denied and therefore is denied.
3. Admit that YOU did not obtain the requisite permission to use the fire hydrant
that was used in performing the remediation work on Welch Street on or before October
8, 2021.
OBJECTION: This request is vague and ambiguous as it pertains to “permission.”
Moreover, this request appears to improperly assume that Kodiak was involved in
setting up the HOSE and/or obtaining approval from the City, which it was not.
RESPONSE: This objection notwithstanding, Kodiak did not set the HOSE across
Welch Street or affix the hose to the hydrant. This Request cannot be admitted or
denied and therefore is denied.
4. Admit that YOU did not have permission from any of the other named
Defendants to lay the HOSE across Welch Street on or before October 8, 2021.
OBJECTION: This request is vague and ambiguous as it pertains to “permission.”
Moreover, this request appears to improperly assume that Kodiak was involved in
setting up the HOSE and/or obtaining approval from the City, which it was not.
14
RESPONSE: This objection notwithstanding, Kodiak did not set the HOSE across
Welch Street. This Request cannot be admitted or denied and therefore is denied.
5. Admit that YOU had the duty to warn invitees of the presence of the HOSE on
Welch Street by signage or other warning device.
RESPONSE: Denied.
6. Admit that YOU had employees on-site at the time and location that the
INCIDENT occurred.
RESPONSE: Admitted, but only one employee, Zech Vint.
7. Admit that on or before October 8, 2021, there were other water devices to which
YOU could have affixed the HOSE within the boundaries of Edora Park.
OBJECTION: This request appears to improperly assume that Kodiak was involved
in setting up the HOSE and/or obtaining approval from the City, which it was not.
RESPONSE: This objection notwithstanding, Kodiak did not set the HOSE across
Welch Street of affix the hose to the hydrant. Kodiak does not have sufficient
information to admit or deny this request and, therefore, denies same.
8. Admit that Plaintiff suffered bodily injuries resulting from the INCIDENT.
OBJECTION: This request seeks an expert medical opinion that Kodiak is not
qualified to provide.
RESPONSE: Kodiak does not have sufficient knowledge to admit or deny this
request and, therefore, denies same.
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Produce any and all documents contained in the files of any insurer or claims
representative that relate to the incident which is the subject of Plaintiff’s First
Amended Complaint and that were prepared in the ordinary course of business prior to
the filing of said First Amended Complaint, including but not limited to, any and all
adjuster(s) notes, correspondence, memoranda, and adjuster(s) logs in the possession of
Defendant’s insurance carrier or claims handling entity, including any investigative
report(s).
15
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request seeks information protected by the work-
product and/or attorney-client privileges.
RESPONSE: Objections notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
2. Produce any and all photographs, digital images, video tapes, moving pictures,
diagrams, or other depiction in your possession, custody or control depicting the area
where Plaintiff was injured on October 8, 2021, which were taken at or near the time of
the INCIDENT.
RESPONSE: All documents potentially responsive to this request have previously
been disclosed pursuant to C.R.C.P. 26.
3. Produce any and all photographs, films or videotapes depicting any place, object
or individual concerning the INCIDENT or plaintiff’s injuries.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case.
RESPONSE: Objections notwithstanding, all documents responsive to this request
have previously been disclosed pursuant to C.R.C.P. 26.
4. Produce any and all documents, manuals, guidelines, pamphlets, training
materials, sweep logs and regulations that describe or relate to policies and procedures
regarding inspection and maintenance of work sites including but not limited to
dangerous conditions created by you or subcontractors.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request improperly presumes that Kodiak created
a dangerous condition, which it did not.
RESPONSE: Objections notwithstanding, Kodiak did not create a dangerous
condition and did not have subcontractors at the site. Documentation responsive to
this request has been requested and will be supplemented upon receipt.
5. Produce any and all documents including, but not limited to, policies,
procedures, regulations, and rules regarding inspections of Welch Street where the
INCIDENT took place for safety concerns.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request is vague and ambiguous and this request
16
improperly presumes that Kodiak has specialized policies, procedures, regulations
and/or rules for inspections at Welch Street.
RESPONSE: Objections notwithstanding, documentation responsive to this request
has been requested and will be supplemented upon receipt.
6. Produce any and all contracts, service agreements and/or any written
correspondence you entered into with the C&L and/or SUNBELT regarding the
UTILITIES PROJECT.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case.
RESPONSE: Objections notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
7. Produce any and all contracts, agreements or any written correspondence
evidencing an agreement you entered into with any other subcontractors regarding
services to be performed for the UTILITIES PROJECT including but not limited to
services to be performed where the INCIDENT took place.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case.
RESPONSE: Objections notwithstanding, none.
8. Produce any statements taken by defendant, defendant’s agents, or its insurance
company’s representatives, from defendant’s agents or employees or any witnesses or
other persons with information about the INCIDENT.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of the case. Further this request seeks information protected as privileged
work product or attorney-client communications.
RESPONSE: This objection notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
9. Produce any and all documents showing any investigation done into the
INCIDENT.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of the case. Further this request seeks information protected as privileged
work product or attorney-client communications. This request also calls for
premature disclosure of experts.
17
RESPONSE: This objection notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
10. Produce the full, unredacted and unedited versions of any photographs, video,
or any other electronically stored image which shows the condition of Welch Street on
October 7, 2021 and October 8, 2021 respectively.
RESPONSE: All documents potentially responsive to this request have previously
been disclosed pursuant to C.R.C.P. 26.
11. Produce documentation of any effort to mitigate or warn about the
DANGEROUS CONDITION.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request is vague and ambiguous and this request
improperly presumes that Kodiak participated in setting up the HOSE across Welch
Street or otherwise creating the alleged DANGEROUS CONDITION, which it did
not.
RESPONSE: Objections notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
12. Produce documents substantiating any efforts of YOU OR ANYONE ACTING
ON YOUR BEHALF or any subcontractor(s) to secure permits or signage or otherwise
warn of the DANGEROUS CONDITION.
OBJECTION: This request is vague and ambiguous and this request improperly
presumes that Kodiak participated in setting up the HOSE across Welch Street or
otherwise creating the alleged DANGEROUS CONDITION, which it did not.
RESPONSE: Objections notwithstanding, none.
13. Provide any and all emails or other communications YOU sent or received
regarding the INCIDENT to any named Defendant in this action or any insurance
company.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request seeks documentation protected pursuant
to the common defense privilege.
RESPONSE: Objections notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
18
14. Provide any documents supporting each denial of any Request for Admission.
OBJECTION: This request is overbroad, unduly burdensome, and disproportional to
the needs of this case. Further, this request seeks documentation protected as work-
product and/or attorney-client privilege.
RESPONSE: Objections notwithstanding, all documents potentially responsive to
this request have previously been disclosed pursuant to C.R.C.P. 26.
15. Produce any documents that you identified in any of your responses to this
written Discovery.
RESPONSE: All documents responsive to this request have previously been
disclosed pursuant to C.R.C.P. 26.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
Respectfully submitted this 14th day of November 2023.
AS TO THE OBJECTIONS AND
RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS AND
REQUESTS FOR ADMISSION
OVERTURF McGATH & HULL, P.C.
By s/Sean T. Conrecode
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Attorney for Defendant Kodiak Field Services,
LLC
21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing KODIAK
FIELD SERVICES, LLC’S RESPONSES TO PLAINTIFF’S INITIAL WRITTEN
DISCOVERY was electronically served via Colorado Courts E-Filing this 14 th day of
November 2023, with service to the following:
Karl W. Hager
VanMeveren Law Group, O.C.
123 N. College Avenue, Suite 112
Fort Collins, CO 80524
Attorney for Plaintiff
Arthur J. Kutzer
SGR, LLC
3900 East Mexico Avenue, Suite 700
Denver, CO 80210
Attorneys for Defendant BCH Services, LLC
Andrew W. Callahan
Cassie L. Williams
Wick & Trautwein, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Attorney for Defendant City of Fort Collins
Jason H. Klein
Tamara C. Jordan
Wood, Smith, Henning & Berman LLP
1805 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Attorneys for Defendant C&L Water
Solutions, Inc.
Jamey W. Jamison
Randee L. Stapp
Dino G. Moncecchi
Harris, Karstaedt, Jamison & Powers, P.C.
10333 E. Dry Creek Road, Suite 300
Englewood, Colorado 80112
Attorneys for Defendant Sunbelt Rentals
s/ Jessica Pringle
In accordance with C.R.C.P. 121, §1-26(7), a printed or printable copy of this document
with original, electronic, or scanned signatures is being maintained by the filing party
and will be made available for inspection by other parties or the Court upon request.
.
In The Matter of:
CHRISTIAN HIGGINS vs CITY OF FORT COLLINS, et al.
CHRISTIAN HIGGINS
March 28, 2024
HANSEN REID, LTD.
EXHIBIT
H
DATE FILED: April 22, 2024 4:25 PM
FILING ID: BC39494F6F06F
CASE NUMBER: 2023CV30276
· · ·DISTRICT COURT, LARIMER COUNTY, STATE OF COLORADO
· · ·Case No. 2023CV30276
· · ·_______________________________________________________
·
· · ·VIDEOCONFERENCE DEPOSITION OF:· CHRISTIAN HIGGINS -
· · ·MARCH 28, 2024
· · ·_______________________________________________________
·
· · ·CHRISTIAN HIGGINS,
·
· · ·Plaintiff,
·
· · ·v.
·
· · ·CITY OF FORT COLLINS; C&L WATER SOLUTIONS, INC.;
· · ·SUNBELT RENTALS, INC.; KODIAK FIELD SERVICES, LLC; AND
· · ·BCH SERVICES, LLC,
·
· · ·Defendant.
· · ·_______________________________________________________
·
· · · · · · · ·PURSUANT TO NOTICE AND AGREEMENT, the
· · ·VIDEOCONFERENCE DEPOSITION OF CHRISTIAN HIGGINS was
· · ·taken on behalf of the C&L WATER SOLUTIONS, INC., via
· · ·videoconference, on March 28, 2024, at 9:06 a.m.,
· · ·before Doreen Girdeen, Certified Realtime Reporter,
· · ·Registered Merit Reporter, and Notary Public within
· · ·Colorado.
·
·
·
·
·
·
CHRISTIAN HIGGINS - 03/28/2024
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office@hansenreid.com
CHRISTIAN HIGGINS - 03/28/2024
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office@hansenreid.com
Page 2
·1· · · · · · · · · · ·A P P E A R A N C E S
·2
· · ·For the Plaintiff:· · · ·KARL W. HAGER, ESQ.
·3· · · · · · · · · · · · · · VanMeveren Law Group, PC
· · · · · · · · · · · · · · · 123 North College Avenue
·4· · · · · · · · · · · · · · Suite 112
· · · · · · · · · · · · · · · Fort Collins, Colorado· 80524
·5· · · · · · · · · · · · · · (970) 341-8520
· · · · · · · · · · · · · · · Khager@vanmeverenlaw.com
·6
· · ·For C&L Water· · · · · · JAY JACOBSON, ESQ.
·7· ·Solutions, Inc.:· · · · ·Wood, Smith, Henning & Berman
· · · · · · · · · · · · · · · LLP
·8· · · · · · · · · · · · · · 1805 Shea Center Drive
· · · · · · · · · · · · · · · Suite 200
·9· · · · · · · · · · · · · · Highlands Ranch, Colorado· 80129
· · · · · · · · · · · · · · · (720) 479-2500
10· · · · · · · · · · · · · · Jjacobson@wshblaw.com
11· ·For Sunbelt Rentals,· · ·JAMEY W. JAMISON, ESQ.
· · ·Inc.:· · · · · · · · · · Harris, Karstaedt, Jamison &
12· · · · · · · · · · · · · · Powers, P.C.
· · · · · · · · · · · · · · · 10333 East Dry Creek Road
13· · · · · · · · · · · · · · Suite 300
· · · · · · · · · · · · · · · Englewood, Colorado· 80112
14· · · · · · · · · · · · · · (720-875-9140
· · · · · · · · · · · · · · · Jjamison@hkjp.com
15
· · ·For Kodiak Field· · · · ·SCOTT A. NECKERS, ESQ.
16· ·Services, LLC:· · · · · ·Overturf McGath & Hull PC
· · · · · · · · · · · · · · · 625 East 16th Avenue
17· · · · · · · · · · · · · · Suite 100
· · · · · · · · · · · · · · · Denver, Colorado· 80203
18· · · · · · · · · · · · · · (303) 860-2848
· · · · · · · · · · · · · · · san@omhlaw.com
19
· · ·For BCH Services, LLC:· ·ARTHUR J. KUTZER, ESQ.
20· · · · · · · · · · · · · · Senter Goldfarb & Rice, LLC
· · · · · · · · · · · · · · · 3900 East Mexico Avenue
21· · · · · · · · · · · · · · Suite 700
· · · · · · · · · · · · · · · Denver, Colorado· 80210
22· · · · · · · · · · · · · · (303) 320-0509
· · · · · · · · · · · · · · · akutzer@sgrllc.com
23
24
25
Page 3
·1
· · ·For City of Fort· · · · ·KEVIN L. BERNDT, ESQ.
·2· ·Collins:· · · · · · · · ·Resnick & Louis, PC
· · · · · · · · · · · · · · · 7900 East Union Avenue
·3· · · · · · · · · · · · · · Suite 1100
· · · · · · · · · · · · · · · Denver, Colorado· 80237
·4· · · · · · · · · · · · · · (303) 743-8179
· · · · · · · · · · · · · · · kberndt@rlattorneys.com
·5
· · ·Also Present:· · · · · · None
·6
·7
·8
·9
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18
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·1· · · · · · · · · · · · · · I N D E X
·2· · · · · · · · · · · · · · · · · · · · · · · · · · · · · PAGE
· · ·EXAMINATION OF CHRISTIAN HIGGINS:
·3· ·March 28, 2024
·4· ·By Mr. Jacobson:· · · · · · · · · · · · · · · · · · · · · ·7
· · ·By Mr. Jamison:· · · · · · · · · · · · · · · · · · 154, 282
·5· ·By Mr. Berndt:· · · · · · · · · · · · · · · · · · · · · ·224
· · ·By Mr. Neckers:· · · · · · · · · · · · · · · · · · · · · 252
·6· ·By Mr. Kutzer:· · · · · · · · · · · · · · · · · · · · · ·272
· · ·By Mr. Hager:· · · · · · · · · · · · · · · · · · · · · · ·--
·7
·8· · · · · · · · · · · · · · · · · · · · · · · · · · · ·INITIAL
· · ·DEPOSITION EXHIBITS· · · · · · · · · · · · · · ·REFERENCE
·9
· · ·Exhibit 1· · Photo· · · · · · · · · · · · · · · · · · · · 12
10
· · ·Exhibit 2· · Photo (HIGGINS 000005)· · · · · · · · · · · ·12
11
· · ·Exhibit 3· · Google Maps (9 pages)· · · · · · · · · · · · 12
12
· · ·Exhibit 4· · Visit Notes (HIGGINS 000026 -· · · · · · · · 68
13· · · · · · · · 000032)
14· ·Exhibit 5· · MR Cervical Spine Without· · · · · · · · · · 76
· · · · · · · · · Contrast Details (HIGGINS 000033
15· · · · · · · · - 000034)
16· ·Exhibit 6· · XR Cervical Spine Details· · · · · · · · · · 78
· · · · · · · · · (HIGGINS 000118 - 000119)
17
· · ·Exhibit 7· · CT Cervical Spine Without· · · · · · · · · · 79
18· · · · · · · · Contrast Details (HIGGINS 000120
· · · · · · · · · - 000121)
19
· · ·Exhibit 8· · UCHealth Appointment Details· · · · · · · · ·81
20· · · · · · · · (HIGGINS 000152 - 000153)
21· ·Exhibit 9· · The Imaging Center Radiology· · · · · · · · ·85
· · · · · · · · · Report (HIGGINS 000035 - 000040)
22
· · ·Exhibit 10· ·UCHealth Emergency Care - Poudre· · · · · · ·88
23· · · · · · · · Valley Hospital (HIGGINS 001013 -
· · · · · · · · · 001018)
24
25
Page 5
·1· · · · · · · · · · · ·I N D E X, Continued
·2· ·Exhibit 11· ·Integrative Sports Medicine Visit· · · · · · 90
· · · · · · · · · Summary (HIGGINS 000144 - 000145)
·3
· · ·Exhibit 12· ·Integrative Sports Medicine Visit· · · · · · 96
·4· · · · · · · · Summary (HIGGINS 000146 - 000147)
·5· ·Exhibit 13· ·Banner Health Orthopedic Office· · · · · · · 98
· · · · · · · · · Final Report (HIGGINS 000993 -
·6· · · · · · · · 000997)
·7· ·Exhibit 14· ·Orthopaedic & Spine Center of the· · · · · ·101
· · · · · · · · · Rockies (HIGGINS 000863 - 000866)
·8
· · ·Exhibit 15· ·Facebook posts· · · · · · · · · · · · · · · 102
·9
· · ·Exhibit 17· ·UCHealth Emergency Care - Longs· · · · · · ·258
10· · · · · · · · Peak Hospital (HIGGINS 001048 -
· · · · · · · · · 001049)
11
· · ·Exhibit 18· ·Berkana Rehabilitation, LLC,· · · · · · · · 259
12· · · · · · · · Physical Therapy Initial
· · · · · · · · · Examination (HIGGINS 000890)
13
· · ·Exhibit 19· ·Insight Pelvic Health SOAP notes· · · · · · 261
14· · · · · · · · (HIGGINS 000390)
15· ·Exhibit 20· ·Klarisana notes (HIGGINS 000416)· · · · · · 264
16· ·Exhibit 21· ·June 4, 2023, email from Heather· · · · · · 267
· · · · · · · · · Wright to Karl Hager (HIGGINS
17· · · · · · · · 000371 - 000372)
18· ·Exhibit 16· ·Shelly Haddock's report (HIGGINS· · · · · · 113
· · · · · · · · · 000114 - 000117)
19
20· ·(Exhibits attached to original and copy transcripts.)
21
· · ·PREVIOUSLY MARKED DEPOSITION· · · · · · · · · · · · INITIAL
22· ·EXHIBITS:· · · · · · · · · · · · · · · · · · · · ·REFERENCE
· · ·(None)
23
24
25
CHRISTIAN HIGGINS - 03/28/2024
Hansen Reid, Ltd.
office@hansenreid.com
CHRISTIAN HIGGINS - 03/28/2024
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office@hansenreid.com
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Page 6
·1· · · · · I N D E X, Continued
·2
· · · · · · INFORMATION REQUESTED:
·3
· · · · · · · · ·Page· · · Line
·4· · · · · · · · 245· · · · · 4
·5
· · ·QUESTIONS INSTRUCTED NOT TO ANSWER:
·6
· · · · · · · · ·Page· · · Line
·7· · · · · · · · 278· · · · · 1
·8
·9
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Page 7
·1· · · · · · WHEREUPON, the following proceedings were
·2· ·taken pursuant to the Colorado Rules of Civil
·3· ·Procedure.
·4· · · · · · · · · · · ·CHRISTIAN HIGGINS,
·5· ·having been first duly sworn to state the whole truth,
·6· ·testified as follows:
·7· · · · · · (Technical difficulties at the beginning of
·8· ·the proceedings.)
·9· · · · · · · · · · · · · ·EXAMINATION
10· ·BY MR. JACOBSON:
11· · · · Q.· ·So we'll try to do an executive summary here
12· ·of what we've talked about in the first eight minutes.
13· · · · · · ·Please state your name for the record.
14· · · · A.· ·Christian Marie Higgins.
15· · · · Q.· ·And your date of birth?
16· · · · A.· ·4/26/73.
17· · · · Q.· ·And your address?
18· · · · A.· ·1440 Edora Road, Number 21, 80525.
19· · · · Q.· ·And you've never been married?
20· · · · A.· ·No, sir.
21· · · · Q.· ·Your current partner is Robert Hewitt?
22· · · · A.· ·Yes.
23· · · · Q.· ·Correct?
24· · · · A.· ·Correct.
25· · · · Q.· ·Okay.· And he lives with you?
Page 8
·1· · · · A.· ·Correct.
·2· · · · Q.· ·Was he living with you at the time of the
·3· ·accident?
·4· · · · A.· ·Part time.
·5· · · · Q.· ·Okay.· And so we're here to talk about your
·6· ·bicycle accident on October 8, 2021.· Right?
·7· · · · A.· ·Yes.
·8· · · · Q.· ·And you remember the accident clearly, and
·9· ·you're clearheaded today?
10· · · · A.· ·Yes.
11· · · · Q.· ·And you have -- you're not under the
12· ·influence of drugs or medications or alcohol that would
13· ·affect your memory?
14· · · · A.· ·No.
15· · · · Q.· ·Okay.· And you haven't reviewed any documents
16· ·or videos or pictures in preparation for today?
17· · · · A.· ·No.
18· · · · Q.· ·Okay.· And we were talking -- you said you
19· ·graduated high school in California the early '90s, and
20· ·you went on to trade school in Henrietta, New York.
21· ·And I think that's about where we left off.
22· · · · · · ·What was the name of the trade school?
23· · · · A.· ·Continental Beauty School.
24· · · · Q.· ·And how long did that last?
25· · · · A.· ·I'm not -- I'm not a hundred percent sure,
Page 9
·1· ·about nine months, roughly.
·2· · · · Q.· ·And did you graduate with a certificate or a
·3· ·degree of some sort?
·4· · · · A.· ·Cosmetology degree.
·5· · · · Q.· ·Okay.· So some states actually regulate the
·6· ·cosmetologists just like they would a CPA or a
·7· ·architect.
·8· · · · · · ·Does -- are you -- do you have a license in
·9· ·any state to practice cosmetology?
10· · · · A.· ·Yes, currently, in Colorado.
11· · · · Q.· ·Okay.· So you -- Colorado Department of
12· ·Regulatory Affairs issued you a license?
13· · · · A.· ·Is that DORA?
14· · · · Q.· ·What's your -- tell me, in your
15· ·understanding, who issued you a license and what the
16· ·license is for, please.
17· · · · A.· ·A cosmetology license through the State of
18· ·Colorado.
19· · · · Q.· ·Okay.· And when did you obtain that license?
20· · · · A.· ·In Colorado, 2004.
21· · · · Q.· ·And has it been in good standing ever since?
22· · · · A.· ·Yes.
23· · · · Q.· ·Okay.· Have you ever been subject to any kind
24· ·of disciplinary action or letters of concern on your
25· ·license?
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Page 250
·1· ·get the name of it.
·2· · · · · · ·So do you ride the Spring Creek Trail?
·3· · · · A.· ·Sometimes.
·4· · · · Q.· ·And how would you access the Spring Creek
·5· ·Trail?
·6· · · · A.· ·Go on the sidewalk, and it's right around the
·7· ·corner on Welch.
·8· · · · Q.· ·Okay.· When you say "right around the
·9· ·corner" --
10· · · · A.· ·From my condo.
11· · · · Q.· ·Okay.· And was the hose across the sidewalk
12· ·on the side of Welch Street?
13· · · · · · ·The side close -- the sidewalk closest to you
14· ·when you crashed, was it -- was across that sidewalk?
15· · · · · · ·MR. HAGER:· Objection to form.
16· · · · A.· ·I don't know, because it went over the other
17· ·sidewalk, over the road, and then it went somehow -- I
18· ·don't know if there was a sidewalk right there, and
19· ·then over the bike path.
20· · · · Q.· ·(BY MR. BERNDT)· Okay.· So you are not sure
21· ·if it went over that sidewalk or not on the east side
22· ·of Welch?
23· · · · A.· ·I don't -- I mean, it seems like it must
24· ·have.· But I don't know if it -- if it went through the
25· ·parking lot.· You'd have to look at the picture.
Page 251
·1· · · · Q.· ·And then you talked about your eyesight
·2· ·earlier.
·3· · · · · · ·What kind of -- what are the glasses meant to
·4· ·correct that you wear?
·5· · · · A.· ·My -- I'm farsighted, to see up close better.
·6· · · · Q.· ·Do you have any nearsightedness?
·7· · · · A.· ·I'm not -- maybe a little.· I don't know.
·8· ·Mainly in my left eye.
·9· · · · Q.· ·And is your prescription today about what it
10· ·was at the time of the accident?
11· · · · A.· ·No.· Because my eyes weren't seeing equal
12· ·after the accident.· I went to a specialist and they
13· ·had to give me new prescriptions to help with that.
14· · · · Q.· ·The glasses you wore at the time of the
15· ·accident, did they help with nearsightedness or just
16· ·farsighted?
17· · · · · · ·Did they help you see things far away or just
18· ·up close, or both?
19· · · · A.· ·I think both.
20· · · · · · ·MR. BERNDT:· That's all the questions I have.
21· · · · · · ·THE DEPONENT:· Okay.
22· · · · · · ·MR. NECKERS:· All right.· Ms. Higgins, still
23· ·good to go for a few more minutes?
24· · · · · · ·THE DEPONENT:· Yep.
25· · · · · · ·MR. NECKERS:· You need a break?· Totally
Page 252
·1· ·fine.
·2· · · · · · ·THE DEPONENT:· I just want to -- I want to
·3· ·leave.
·4· · · · · · ·MR. NECKERS:· Okay.· Gotcha.
·5· · · · · · ·MR. JACOBSON:· I can use a quick
·6· ·three-minute, four-minute break, just get some water
·7· ·and use the restroom.
·8· · · · · · ·MR. NECKERS:· Okay.
·9· · · · · · ·MR. JAMISON:· Do you mind?
10· · · · · · ·MR. NECKERS:· I don't care.
11· · · · · · ·MR. JAMISON:· Okay.
12· · · · · · ·(Recess taken from 4:23 p.m. to 4:26 p.m.)
13· · · · · · · · · · · · · ·EXAMINATION
14· ·BY MR. NECKERS:
15· · · · Q.· ·Let me start asking some questions,
16· ·Ms. Higgins.
17· · · · · · ·So my name is Scott Neckers.· I represent
18· ·Kodiak Field Services, LLC.
19· · · · · · ·And do you recall seeing a truck with
20· ·"Kodiak" on the side of it on the evening of October 8,
21· ·2021?
22· · · · A.· ·I recall seeing a truck.· I don't recall that
23· ·it said that on it.
24· · · · Q.· ·Okay.· Do you have any idea what Kodiak's
25· ·role was, if anything, in setting up the hose that you
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·1· ·ran over on October 8, 2021?
·2· · · · A.· ·I don't know that information.
·3· · · · Q.· ·Okay.· And again, if this information -- if
·4· ·it's the only way you know this information is from
·5· ·your attorney, I'm guessing he'll speak up.· But you
·6· ·know, I'm trying to get independent recollection.
·7· · · · · · ·So does Christian Higgins, yourself,
·8· ·independently have any sense of why Kodiak would be
·9· ·responsible for your injuries?
10· · · · · · ·MR. HAGER:· Objection to form.
11· · · · A.· ·I have no idea.
12· · · · Q.· ·(BY MR. NECKERS)· Okay.· Do you take any
13· ·responsibility for causing your own injuries,
14· ·Ms. Higgins?
15· · · · · · ·MR. HAGER:· Objection to form.
16· · · · A.· ·No, I don't.
17· · · · Q.· ·(BY MR. NECKERS)· Why not?
18· · · · A.· ·Because I'm a great cyclist.· And there
19· ·should have been flashing lights in the hose or some
20· ·kind of sign saying there's something going across the
21· ·road to protect me from running into it.
22· · · · Q.· ·Okay.· And you say you're a great cyclist,
23· ·and you've never had a bicycle accident before October
24· ·8, 2021, right?
25· · · · A.· ·Correct.
CHRISTIAN HIGGINS - 03/28/2024
Hansen Reid, Ltd.
office@hansenreid.com
CHRISTIAN HIGGINS - 03/28/2024
Hansen Reid, Ltd.
office@hansenreid.com
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