HomeMy WebLinkAbout2023CV30276 - Higgins V. V. City Of Fort Collins, Et Al. - 034 - C&L Answer And Crossclaim
28885650.1:11772-0041
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
Cross-Claim Plaintiff:
C & L WATER SOLUTIONS, INC
v.
Cross-Claim Defendant:
SUNBELT RENTALS, INC
Attorneys for C&L Water Solutions, Inc.
Jason H. Klein, Reg. No. 53303
Tamara C. Jordan, Reg. No. 52061
Susan E. Malcolm, Reg. No. 52612
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
tjordan@wshblaw.com
smalcolm@wshblaw.com
▲ COURT USE ONLY ▲
Case No. 2023CV30276
Division:
DEFENDANT C&L WATER SOLUTIONS, INC.'S ANSWER TO PLAINTIFF'S FIRST
AMENDED COMPLAINT AND JURY DEMAND AND CROSS-CLAIM AGAINST
DEFENDANT SUNBELT RENTALS, INC.
DATE FILED: July 13, 2023 4:29 PM
FILING ID: BC22C98BFC389
CASE NUMBER: 2023CV30276
28885650.1:11772-0041 2
Defendant C&L Water Solutions, Inc. ("C&L"), by and through its attorneys, Wood,
Smith, Henning & Berman LLP, and as for its Answer to Plaintiff's First Amended Complaint and
Jury Demand and Cross-Claim Against Defendant Sunbelt Rentals, Inc. states as follows:
I. PARTIES
1. Without knowledge and therefore, denied.
2. Without knowledge and therefore, denied.
3. Admitted.
4. Without knowledge and therefore, denied.
5. Without knowledge and therefore, denied.
6. Without knowledge and therefore, denied.
II. JURISDICTION AND VENUE
7. C&L does not dispute jurisdiction at this time, however, reserves the right to so
dispute should information be obtained during discovery indicating that jurisdiction is improper.
8. C&L does not dispute venue at this time, however, reserves the right to so dispute
should information be obtained during discovery indicating that venue is improper.
9. Without knowledge and therefore, denied.
10. Without knowledge and therefore, denied.
11. Without knowledge and therefore, denied.
12. Without knowledge and therefore, denied.
13. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
14. Without knowledge and therefore, denied.
15. Without knowledge and therefore, denied.
16. Without knowledge and therefore, denied.
17. Without knowledge and therefore, denied.
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18. Without knowledge and therefore, denied.
19. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
20. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
21. Without knowledge and therefore, denied.
22. Without knowledge and therefore, denied.
23. Without knowledge and therefore, denied.
24. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
25. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
26. Without knowledge and therefore, denied.
27. Paragraph 27 does not contain an averment to which a response is required.
28. Paragraph 28 does not contain an averment to which a response is required.
29. Without knowledge and therefore, denied.
30. Without knowledge and therefore, denied.
III. GENERAL ALLEGATIONS
31. Without knowledge and therefore, denied.
32. Without knowledge and therefore, denied.
33. Without knowledge and therefore, denied.
34. Without knowledge and therefore, denied.
35. Without knowledge and therefore, denied.
36. Denied.
37. Denied.
38. Denied.
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39. Without knowledge and therefore, denied.
40. Denied.
41. Admitted that C&L worked with the City pursuant to the Services Agreement dated
October 30, 2019. To the extent the allegations herein are an incorrect recitation of that agreement,
C&L denies the allegations.
42. Without knowledge and therefore, denied.
43. Without knowledge and therefore, denied.
44. Without knowledge and therefore, denied.
45. Without knowledge and therefore, denied.
46. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
47. Without knowledge and therefore, denied.
48. Without knowledge and therefore, denied.
49. Without knowledge and therefore, denied.
50. Without knowledge and therefore, denied.
51. Without knowledge and therefore, denied.
52. Without knowledge and therefore, denied.
53. Without knowledge and therefore, denied.
54. Without knowledge and therefore, denied.
55. Without knowledge and therefore, denied.
56. Denied.
57. Denied.
58. Without knowledge and therefore, denied.
59. Without knowledge and therefore, denied.
60. Without knowledge and therefore, denied.
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IV. FIRST CLAIM FOR RELIEF
(Premises Liability — as against the CITY)
61. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
62. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
63. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
64. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
65. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
66. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
67. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
68. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
69. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
70. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
71. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
72. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
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V. SECOND CLAIM FOR RELIEF
(Premises Liability — as against C&L)
73. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
74. Denied.
75. Denied.
76. Denied.
77. Denied.
78. Denied.
79. Denied.
80. Denied.
81. Denied.
82. Denied.
83. Denied, including all subparts.
VI. THIRD CLAIM FOR RELIEF
(Premises Liability — as against SUNBELT)
84. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
85. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
86. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
87. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
88. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
89. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
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90. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
91. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
92. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
93. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
94. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
VII. FOURTH CLAIM FOR RELIEF
(Premises Liability — as against KODIAK)
95. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
96. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
97. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
98. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
99. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
100. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
101. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
102. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
103. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
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104. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
105. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
VIII. FIFTH CLAIM FOR RELIEF
(Premises Liability — as against BCH)
106. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
107. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
108. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
109. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
110. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
111. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
112. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
113. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
114. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
115. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
116. The allegations in this paragraph are not directed to C&L. To the extent the
allegations are deemed to be directed to C&L, C&L denies same.
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IX. SIXTH CLAIM FOR RELIEF
(Negligence — as against all Defendants)
117. C&L hereby incorporates its responses to the above paragraphs of the First
Amended Complaint as if fully restated herein.
118. Denied.
119. Denied.
120. Denied.
121. Denied.
122. Denied.
123. Denied.
124. Denied, including all subparts.
WHEREFORE CLAUSE - PRAYER FOR RELIEF
C&L denies all allegations contained in the First Amended Complaint's "Wherefore" or
“Prayer for Relief” clause.
GENERAL DENIAL
C&L denies all allegations contained in Plaintiff's First Amended Complaint not expressly
admitted herein.
AFFIRMATIVE DEFENSES
1. Plaintiff’s claims are barred by a failure to state a claim upon which relief can be
granted.
2. Plaintiff’s claims are barred by the doctrine of comparative negligence pursuant to
C.R.S. § 13-21-111.
3. Plaintiff's alleged damages, if any, and C&L's liability, if any, must be determined
in accordance with sections 13-21-102.5 (limitations on damages for non-economic loss or injury),
13-21-111 (comparative negligence as a measure of damages), 13-21-111.5 (pro-rata liability of
defendants), 13-21-111.6 (collateral sources), and 13-21-111.7 (assumption of risk) of the
Colorado Revised Statutes.
4. Plaintiff’s claims are barred by her failure to mitigate her alleged damages.
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5. Plaintiff’s claims are barred or should be reduced by the doctrine of set-off.
6. The 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 and should have avoided it.
RESERVATION OF DEFENSES
C&L reserves the right to assert and amend defenses as discovery and investigation in
this matter is accomplished, including by amending the Answer to add, delete, and/or modify
affirmative defenses. C&L does not waive any applicable defenses.
CROSS-CLAIM AGAINST DEFENDANT
SUNBELT RENTALS, INC.
Cross-Claimant C&L Water Solutions, Inc. (“C&L”), by and through its attorneys, Wood,
Smith, Henning & Berman LLP, hereby asserts the following Cross-Claims against Cross-Claim
Defendant Sunbelt Rentals, Inc. ("Sunbelt").
PARTIES
1. C&L is Colorado Corporation with its principal place of business at 112249
Mead Way, Littleton, Colorado 80125.
2. Sunbelt is a foreign corporation licensed to do business in Colorado with its
principal place of business at 1799 Innovation Point, Fort Mill, South Carolina 29715.
JURISDICTION AND VENUE
3. Venue is proper pursuant to C.R.C.P. 98 because the incident that is the subject of
this case occurred in Larimer County, Colorado.
4. This court has personal jurisdiction over Cross-Claim Defendant as it did business
in the State of Colorado and purposefully availed itself of the rights and privileges of the State of
Colorado at all times material to this action.
GENERAL ALLEGATIONS
5. C&L was retained by the City of Fort Collins to perform pipe lining at the project
known as Spring Creek Edora (the "Project").
6. C&L hired Sunbelt as its subcontractor to perform sanitary bypass on the Project.
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7. Upon information and belief, Sunbelt asked C&L if they could stretch a hose across
Welch Street at the Project to connect it to a water meter.
8. C&L's superintendent at the Project told Sunbelt they could not stretch the hose
across the street without a traffic control permit.
9. Upon information and belief, Sunbelt stretched its hose across Welch Street without
the proper traffic controls or permits and without the knowledge, permission, or approval from
C&L.
FIRST CLAIM FOR RELIEF
(Breach of Contract)
10. C&L incorporates by reference all of the allegations contained in this Cross-Claim
as though fully set forth herein.
11. Plaintiff alleges personal injuries related to a bicycle accident that involved a
hose being stretched over the road, as described more fully in her First Amended Complaint.
12. C&L and Sunbelt entered into an agreement for performance of labor and
services related to Sanitary bypass the Project. Attached as Exhibit A.
13. Upon information and belief, Sunbelt stretched the hose across street at the Project
against the express direction of C&L.
14. This action constitutes a breach of contract by Sunbelt in failing to perform its work
under the contract in a good and workmanlike manner and by completely disregarding the direction
of C&L in Sunbelt placing the hose across the street without approval or proper permitting and
traffic control.
15. Plaintiff's claims are based, in whole or in part, on damages allegedly caused by
the work, and/or services provided by Sunbelt at the Project.
16. C&L has fully performed all conditions, covenants, and promises required to be
performed in accordance with the terms and conditions of the agreement.
17. To the extent that the allegations asserted by the Plaintiff are proven to be true, all
or a portion of the damages incurred by the C&L were proximately caused in whole or in part by
the breach of contract by Sunbelt and/or its subcontractors.
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SECOND CLAIM FOR RELIEF
(Negligence)
18. C&L incorporates by reference all of the allegations contained in this Cross-Claim
as though fully set forth herein.
19. C&L and Sunbelt entered into an agreement for performance of labor and
services related to Sanitary bypass the Project.
20. Upon information and belief, Sunbelt stretched the hose across street at the Project
against the express direction of C&L
21. Sunbelt owed C&L a duty of reasonable care in carrying out its work and/or service
on the Project.
22. To the extent that the allegations by the Plaintiff are proven to be true, Sunbelt has
breached its respective duty of reasonable care.
23. Plaintiff's claims are based, in whole or in part, on damages allegedly caused by
the work, and/or services provided by Sunbelt at the Project.
24. To the extent that the allegations by the Plaintiff are proven to be true, C&L has
suffered and will continue to suffer damages as a direct and/or proximate result of the actions of
these Sunbelt arising from and/or related to the breach of its duty of reasonable care.
THIRD CLAIM FOR RELIEF
(Contribution pursuant to C.R.S. 13-50.1-101 et seq.)
25. C&L incorporates by reference all of the allegations contained in this Cross-Claim
as though fully set forth herein.
26. C&L has incurred, and will incur in the future, damages on based on Plaintiff's
allegations which Sunbelt is responsible.
27. In resolving Plaintiff's claims, C&L has paid, or will pay, more than its respective
share of alleged liability.
28. Sunbelt is responsible for paying C&L the proportionate share of damages
attributable to Plaintiff's injuries, for which Sunbelt is deemed at fault.
29. To the extent that C&L is found liable to the Plaintiff for an amount in excess of its
pro-rata share of fault, C&L is entitled to contribution from Sunbelt, including under Colorado's
Uniform Contribution Among Tortfeasors Act, C.R.S. §13-50.5-101 et seq.
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PRAYER FOR RELIEF
WHEREFORE, Cross-Claimant C&L Water Solutions, Inc., prays that the Court enter
judgment in its favor as follows:
1. For C&L's actual damages, costs of suit, fees of experts, including engineering and
construction experts, attorneys fees, interest as permitted by law and/or applicable
contracts from the date of occurrence to the date of entry of judgment, as well as
post-judgment interest until paid at the highest lawful rate; and;
2. For such other and further relief as this Court deems just and proper.
JURY DEMAND
C&L demands a jury trial on all issues so triable.
Respectfully submitted this 13th day of July, 2023.
WOOD, SMITH, HENNING & BERMAN LLP
/s/ Susan E. Malcolm
Jason H. Klein
Tamara C. Jordan
Susan E. Malcolm
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CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of July, 2023, a true and correct copy of the
DEFENDANT C&L WATER SOLUTIONS, INC.'S ANSWER TO PLAINTIFF'S FIRST
AMENDED COMPLAINT AND JURY DEMAND AND CROSS-CLAIM AGAINST
DEFENDANT SUNBELT RENTALS, INC. 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
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
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 Sunbelt Rentals, Inc.
Andrew W. Callahan
Cassie L. Williams
WICK & TRAUTWEIN, LLC
323 South College Ave., #3
Fort Collins, CO 80522
Attorneys for City of Fort Collins
/s/ Joreen Hensley
Joreen Hensley