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HomeMy WebLinkAbout2021CV30613 - JOSHUA HOLOWCZENKO v. LISA N. BUTLER, CITY OF FORT COLLINS, and LORI S. MARTIN - 031 - DEFENDANT MARTIN'S RESPONSE TO MOTION TO STRIKE DISTRICT COURT, LARIMER COUNTY, COLORADO Court Address: 201 La Porte Ave. #100 Fort Collins, CO 80521  COURT USE ONLY  Plaintiff(s): JOSHUA HOLOWCZENKO v. Defendant(s): LISA N. BUTLER, an individual, CITY OF FORT COLLINS, a municipal corporation, and LORI S. MARTIN, an individual Case Number: 2021CV30613 Division: 5A Attorney for Defendant Lori S. Martin: Cordia M. Perez, #52324 Stuart S. Jorgensen & Associates 11080 Circle Point Suite 400 Westminster, CO 80020 Telephone: (303) 657-2000 E-mail and FAX Number: Not Designated Employees of the Law Department State Farm Mutual Automobile Insurance Company DEFENDANT LORI S. MARTIN’S RESPONSE TO MOTION TO STRIKE NON-PARTY DESIGNATION COMES NOW the Defendant, Lori S. Martin, by and through counsel, Stuart S. Jorgensen & Associates, and responds to Plaintiff’s Motion as follows: I. Relevant Case History 1. On September 14, 2021, Defendant Lori S. Martin (hereinafter “Defendant Martin”) filed her answer to Plaintiffs’ complaint and included her designation of a non-party at fault in her answer. The designation states: Defendant, pursuant to the provisions of C.R.S. § 13-21-111.5(3)(b), designates the following person as a nonparty who may be wholly or partially at fault concerning the subject accident and whose conduct should be considered in the above-captioned matter: unknown motorist who reversed from a parking space into Defendant Martin’s lane. It is DATE FILED: December 27, 2021 1:39 PM FILING ID: 58EA89EABDC81 CASE NUMBER: 2021CV30613 believed that the evidence at trial, and particularly the testimony of the parties will show that this designated nonparty was at fault. Nothing contained in this notice may be construed as an admission by the defendant of any of the allegations contained in the Complaint. 2. On November 19, 2021, counsel for Defendants Lisa N. Butler (hereinafter “Defendant Butler) and City of Fort Collins filed a “Notice of Non-Party at Fault Pursuant to C.R.S. §13-21- 111.5.” The designation states: The unknown motorist who pulled out of the center parking lane on southbound College Avenue without warning directly in front of Defendant Martin, causing Defendant Martin to slam on her brakes to avoid a collision. Plaintiff’s injuries, if any, are the result of the negligent acts and omissions of said non-party at fault. 3. On December 3, 2021, Plaintiff filed a “Motion to Strike Defendant’s Designation of Non- Party at Fault” in response to Defendants Butler’s and City of Fort Collins’ November 19, 2021 notice of non-party at fault. II. Plaintiffs’ Motion is Premature where Discovery is Incomplete 4. As evident from the date of Defendant Martin’s answer, this case is still in its infancy, Depositions have not been taken and investigations are still underway. The time period in which to designate individuals wholly or partially at fault is ninety days from the start of the action. Obviously, discovery cannot be completed by that date. Late designations are clearly precarious, subject to “timeliness objections” than one made early in the case. This matter is far from trial or submittal to a jury. Defendants Lisa N. Butler’s and City of Fort Collins’ November 19, 2021 notice, as well as Defendant Lori Martin’s September 14, 2021 non-party designation are both factually based and satisfy all applicable requirements. II. The Designation is Proper 5. Unidentified or unknown persons may be designated as nonparties pursuant to Colorado’s pro rata apportionment statute. Pedge v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo.App. 2002). Here, the unknown motorist who reversed from a parking space into Defendant Martin’s lane was appropriately designated as a non-party at fault. 6. In Redden v. SCI, Colo. Funeral Services, Inc.,38 P.3d 75(Colo. 2001), the Court considered the statutory requirements associated with designating a professional non-party at fault in tort litigation. The subject dispute does not involve the designation of a professional (a doctor in Redden), but rather, another automobile driver who contributed to the occurrence of a car accident, by reversing into traffic from a parking space. Applying the analysis outlined in Redden, the designation is proper. A nonparty designation does not require proof of negligence, nor is the designating party required to produce evidence of the claim. The designating party must provide support for its belief of non-party negligence. As stated by the Court (PDF of the case text inserted for the Court’s convenience): Id., at 81. 7. Defendant Martin shall testify as to the facts surrounding the accident. Those facts include her observation of a parked vehicle reversing into her lane, her pressing her brakes in order to avoid hitting the previously parked vehicle or getting hit. (Exhibit 1, Defendant Martin’s Police Witness Statement). It was reasonable and proper for Defendant Martin to take evasive action, and for her to brake in order to avoid a collision with the car that was reversing into her lane. It was unreasonable for the unknown motorist to reverse from a parking space into traffic. “But for” the unknown motorist reversing into traffic, Defendant Martin would not have braked. 8. Additionally, In the course of the motor vehicle collision described above, the unknown motorist violated C.R.S. §42-4-1402, Limitations on backing. Under 42-4-1402 (1) (a) “The driver of a vehicle, whether on public property or private property which is used by the general public for parking purposes, shall not back the same unless such movement can be made with safety and without interfering with other traffic.” 9. Defendant's Butler and the City of Fort Collins, as well as Defendant Martin’s designation describes the actions of the unknown motorist reversing out of her parking spot in sufficient enough detail that, supported by the testimony of the Defendants and/or any other witness to the event, will substantiate the negligent conduct of that driver. Further, the causal connection of these actions to Defendant Martin’s decision to brake, the resulting accident, and Plaintiff's alleged injuries complete the prima facie case against the non-party tortfeasor. IV. Conclusion Plaintiff’s Motion is premature, where discovery is not complete. Applying the non-party designation analysis, outlined in Redden, the designation is proper. Wherefore, for the reasons stated above, Defendant requests Plaintiff’s Motion be denied. DATED this 27th day of December, 2021 Respectfully submitted, Stuart S. Jorgensen & Associates Cordia M. Perez, #52324 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this 27th day of December 2021 served a true and correct copy of the foregoing DEFENDANT’S RESPONSE TO MOTION TO STRIKE NON-PARTY DESIGNATION upon the following by Electronic Filing Michael P. Fossenier, Esq. Law Office of Michael Fossenier, LLC 4100 E. Mississippi Ave. Suite 1900 Denver, CO 80246 Jeremy R. Rosenthal, Esq. The Law Firm of Jeremy Rosenthal 4100 E. Mississippi Avenue Suite 1900 Denver, CO 80246 John R. Duval, Esq. Fort Collins City Attorney P.O. Box 150 Fort Collins, CO 80522 Andrew W. Callahan, Esq. Julie M. Yates, Esq. Wick & Trautwein, LLC 323 South College Avenue Ste 3 Fort Collins, CO 80522 for Katherine Vineyard