HomeMy WebLinkAbout2023CV30276 - Higgins V. V. City Of Fort Collins, Et Al. - 036 - Sunbelt Answer C&L Crossclaims
DISTRICT COURT, COUNTY OF LARIMER
STATE OF COLORADO
Court Address: 201 La Porte Avenue, #100
Fort Collins, CO 80521
COURT USE ONLY
_______________________
Case No. 23CV30276
Ctrm./Div. 4C
Plaintiff: CHRISTIAN HIGGINS
Defendants: CITY OF FORT COLLINS, C&L WATER
SOLUTIONS, INC., SUNBELT RENTALS,
INC., KODIAK FIELD SERVICES, LLC, and
BCH SERVICES, LLC
ATTORNEYS FOR DEFENDANT SUNBELT RENTALS
Jamey W. Jamison, #10953
Randee L. Stapp, #26202
Dino G. Moncecchi, #45429
Harris, Karstaedt, Jamison & Powers, P.C.
10333 E. Dry Creek Road, Suite 300
Englewood, Colorado 80112
Phone: 720-875-9140
Fax: 720-875-9141
E-mail: jjamison@hkjp.com
rstapp@hkjp.com
dmoncecchi@hkjp.com
DEFENDANT SUNBELT RENTALS, INC.’s ANSWER AND JURY DEMAND TO
DEFENDANT C&L WATER SOLUTIONS, INC.’S CROSS-CLAIM AND SUNBELT
RENTALS, INC.’S COUNTER-CLAIM AND JURY DEMAND AGAINST C&L WATER
SOLUTIONS, INC.
COMES NOW the Defendant Sunbelt Rentals, Inc., (hereinafter “Sunbelt” or “this
Defendant” appearing separate and apart from the other named Defendants herein, by and
through their counsel, Harris, Karstaedt, Jamison & Powers, P.C., and files their Answer to
Defendant C&L Water Solutions, Inc.’s Cross-Claim (hereinafter “C&L” or “C&L’S Cross-
Claim Complaint”) and Sunbelt’s Counter-Claim Against C&L states and avers as follows:
I. ANSWER TO PARTIES
1. This Defendant admits the allegations contained in paragraphs 1, and 2 to C&L’s
Cross-Claim Complaint.
DATE FILED: July 31, 2023 3:52 PM
FILING ID: FE35E186C285C
CASE NUMBER: 2023CV30276
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II. ANSWER TO JURISDICTION AND VENUE
2. This Defendant admits the allegations contained in paragraphs 3 and 4 of C&L’s
Cross-Claim Complaint.
III. RESPONSE TO GENERAL ALLEGATIONS
3. This Defendant admits the allegations contained in paragraphs 5, 6 of C&L’s
Cross-Claim Complaint.
4. This Defendant denies the allegations in paragraphs 7, 8, and 9 of C&L’s Cross-
Claim-Claim Complaint.
IV. ANSWER TO FIRST CLAIM FOR RELIEF
(Breach of Contract)
5. This Defendant incorporates herein by reference its responses to paragraphs 1-9 in
response to paragraph 10 of C&L’s Cross-Claim Complaint.
6. This Defendant admits the allegations contained in paragraphs 11 and 12 of
C&L’s Cross-Claim Complaint.
7. This Defendant denies the allegations in paragraphs 13, 14, 15, 16, and 17 of
C&L’s Cross-Claim Complaint.
V. ANSWER TO SECOND CLAIM FOR RELIEF
(Negligence)
14. This Defendant incorporates herein by reference its responses to paragraphs 1-17
in response to paragraph 18 of C&L’s Cross-Claim Complaint.
15. This Defendant admits the allegations contained in paragraphs 19 and 21 of
C&L’s Cross-Claim Complaint.
16. This Defendant denies the allegations in paragraphs 20, 22 and 24 of C&L’s
Cross-Claim Complaint.
17. This Defendant denies lacks sufficient knowledge to admit or deny the allegations
contained in paragraph 23 of C&L’s Cross-Claim Complaint and therefore denies them.
VI. ANSWER TO THIRD CLAIM FOR RELIEF
(Contribution pursuant to C.R.S. 13-50.1-101 et seq.)
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18 This Defendant incorporates herein by reference its responses to paragraphs 1-24,
in response to paragraph 25 of C&L’s Cross-Claim Complaint.
19. This Defendant denies the allegations contained in paragraphs 26, 28, and 29 of
C&L’s Cross-Claim Complaint.
20. This Defendant lacks sufficient knowledge to admit or deny the allegations
contained in paragraph 27 of C&L’s Cross-Claim Complaint and therefore denies them.
V. ANSWER TO PRAYER FOR RELIEF
21. This Defendant requests the Court deny the requests in the WHEREFORE Clause
of C&L’s Cross-Claim Complaint.
VI. GENERAL DENIAL
22. This Defendant denies all allegations contained in C&L’s Cross-Claim Complaint
that have not been expressly admitted herein.
VII. AFFIRMATIVE DEFENSES
1. C&L’s Cross-Claim Complaint fails to state a claim or cause of action against this
Defendant.
3. C&L’S claims and alleged damages, if any, are barred or limited by their
comparative fault or other named Defendants or third parties’ negligence that reduces or bars
C&L’s recovery from this Defendant.
4. C&L’S alleged damages, if any, are barred or limited by their failure to mitigate
their damages.
6. This Defendant’s fault, if any, is limited by its proportionate share of fault.
7. The damages and losses, if any, sustained by the C&L may have been caused by
the acts, omissions, and/or fault of third parties whom this Defendant had no control or right of
control.
8. C&L’s claims are barred by their assumption of risk on October 8 2021, the date
of C&L’ alleged claim of the incident involving this Defendant.
9. This Defendant reserves the right to assert additional affirmative defenses as
appropriate pending discovery action and to withdraw affirmative defenses that cannot be
supported after appropriate discovery is performed.
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WHEREFORE, this Defendant prays that this Court enters an order dismissing C&L’s
Cross-Claim Complaint with prejudice and award this Defendant its costs, witness fees,
attorneys’ fees, and such other and further relief as the court deems just and appropriate.
DEFENDANT REQUESTS A TRIAL TO A JURY OF SIX (6) ON ALL ISSUES.
VIII. SUNBELT’S COUNTER-CLAIM AGAINST DEFENDANT C&L WATER
SOLUTIONS, INC.
IV. PARTIES
1. 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.
2. C&L is a Colorado Corporation with its principal place of business at 112249 Mead
Way, Littleton, Colorado 80125.
V. JURISDICTION AND VENUE
3. Venue is proper pursuant to C.R.C.P. Rule 98 because the incident that is the subject
of this case occurred in Larimer County, Colorado.
4. This court has personal jurisdiction over this Counter-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.
VI. GENERAL ALLEGATIONS
5. The City of Fort Collins retained and entered into an Agreement (the “Agreement”)
with C&L to perform pipe lining at the project known as Spring Creek Edora (the “Project”).
6. The Agreement required C&L to perform all the work pursuant to the Agreement.
(Exhibit A).
7. The Agreement required C&L to take all necessary precautions while performing
work under the Agreement to prevent injury to persons and property.
8. The Agreement allowed C&L to hire subcontractors to perform work at the Project.
9. On or about July 6, 2021, C&L entered into a Contract (the “Contract”) with Sunbelt
for them to perform bypass pumping for the Project. (Exhibit B).
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10. Pursuant to the Special Terms and Conditions of the Contract C&L was responsible
for obtaining Permits.
11. Pursuant to the Special Terms and Conditions of the Contract C&L was responsible
for Traffic Control.
12. On October 8, 2021, Sunbelt was performing bypass pumping work at the
Project that was located at or near the 1700 block of Welch Street, Fort Collins, Colorado.
13. On October 8, 2021, a hose was used to flush the system at the Project.
14. On October 8, 2021, the hose was connected to a fire hydrant located across
Welch Street.
15. On October 8, 2021, the hose used was crossing Welch Street and connected to the
fire hydrant.
16. At all times relevant, pursuant to the Agreement C&L was responsible for taking all
necessary precautions while work was being performed at the Project to prevent injury to persons
and property.
17. At all times relevant pursuant to the Contract C&L was responsible for obtaining
Permits and performing Traffic Control.
18. While Sunbelt was performing work at the Project on October 8, 2021, C&L failed to
take necessary precautions, failed to obtain Permits, and failed to perform Traffic Control to
prevent individuals like Christine Higgins from riding her bicycle on Welch Street.
19. Plaintiff Christine Higgins alleges there were no warning signs, additional lighting or
traffic-control devices used to alert motorists, cyclists or pedestrians of the hose’s presence in the
roadway, and no alternate routes were suggested or made available.
20. As a result of C&L’s failure to take necessary precautions Plaintiff Christine Higgins
alleges on October 8, 2021, while riding her bicycle on Welch Street that she struck the hose,
fell, and suffered injuries.
VII. FIRST CLAIM FOR RELIEF
(Breach of Contract)
21. Sunbelt incorporates by reference all the allegations contained in this Counter-Claim
as fully set forth herein.
22. Plaintiff alleges personal injuries related to an October 8, 2021, bicycle accident that
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occurred as a result of her hitting a hose stretched across Welch Street, Fort Collins, Colorado, as
described more fully in her First Amended Complaint.
23. Prior to October 8, 2021, Sunbelt entered into a Contract with C&L to perform a
sewer bypass at the Project. (Exhibit B).
24. Pursuant to the Special Terms and Conditions of the Contract C&L was responsible
for obtaining Permits.
25. Pursuant to the Special Terms and Conditions of the Contract C&L was responsible
for Traffic Control.
26. Upon information and belief, C&L failed to obtain a permit and failed to control
traffic from travelling on Welch Street on October 8, 2021.
27. C&L’s actions constitutes a breach of the Contract in failing to take all necessary
precautions while Sunbelt was performing work at the Project, failing to obtain permits, and
failing to control traffic from travelling on Welch Street to prevent injury to persons.
28. Plaintiff Christine Higgins’ claims are based, in whole or in part, on injuries and
damages allegedly caused by C&L’s work performed at the Project and C&L’s failure to take all
necessary precautions, failure to obtain permits, and failing to control traffic from travelling on
Welch Street while Sunbelt was performing its work on October 8, 2021.
29. Sunbelt has fully performed all conditions, covenants, and promises required to be
performed in accordance with the terms and conditions of the Contract.
30. To the extent that the allegations asserted by Plaintiff Christine Higgins are proven to
be true, all or a portion of the damages incurred by Sunbelt were proximately caused in whole or
in part by the breach of the Contract by C&L and/or its unknown subcontractors.
VIII. SECOND CLAIM FOR RELIEF
(Negligence)
31. Sunbelt incorporates by reference all the allegations contained in this Counter-Claim
as fully set forth herein.
32. Sunbelt entered into an agreement with C&L that they would take all necessary
precautions to protect the public, obtain permits and control traffic while Sunbelt performed
bypass pumping at the Project.
33. C&L owed Sunbelt a duty of reasonable care to carry out its obligations to prevent
people like Plaintiff Christine Higgins from travelling on Welch Street while Sunbelt was
performing its work on October 8, 2021.
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34. To the extent that the allegations by Plaintiff Christine Higgins are proven to be
true, C&L has breached its duty of reasonable care it owed to Sunbelt.
35. Plaintiff Christine Higgin’s claims are based, in whole or in part, on damages
allegedly caused by the work, and/or services provided, or failed to be provided by C&L at the
Project.
36. To the extent that the allegations by Plaintiff Christine Higgins are proven to be true,
Sunbelt has suffered and will continue to suffer damages as a direct and/or proximate result of
the actions of C&L arising from and/or related to the breach of its duty of reasonable care.
IX. THIRD CLAIM FOR RELIEF
(Contribution Pursuant to C.R.S. §13.50.1-101 et seq.)
37. Sunbelt has incurred, and will incur in the future, damages based on Plaintiff
Christine Higgin’s allegations which C&L is responsible.
38. In resolving Plaintiff Christine Higgin’s claims, Sunbelt has paid, or will pay, more
than its respective share of alleged liability.
39. C&L is responsible for paying Sunbelt the proportionate share of damages
attributable to Plaintiff Christine Higgin’s injuries and damages, for which C&L is deemed at
fault.
40. To the extent that Sunbelt is found liable to Plaintiff Christine Higgins for an amount
in excess of its pro-rata share of fault, Sunbelt is entitled to contribution from C&L, including
under Colorado’s Uniform Contribution Among Tortfeasor’s Act. C.R.S. § 13-50.5-101 et seq.
PRAYER FOR RELIEF
WHERFORE, Counter-Claim Plaintiff Sunbelt Rentals, Inc. prays for judgment in its
favor and that the Court enter an Order as follows:
1. Sunbelt be awarded its actual damages, costs of suit, all expert fees including
construction experts, attorneys fees, interest in accordance with law and/or applicable
contracts from the date of the occurrence to the date of the entry of the judgment,
post-judgment interest as paid at the highest lawful rate, and;
2. For such other and further relief as the Court deems just an proper.
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JURY DEMAND
Sunbelt demands a jury at trial on all triable issues.
Respectfully submitted this 31st day of July, 2023.
Defendant Sunbelt Original signature on file at office of
Rentals Address: Harris, Karstaedt, Jamison & Powers, P.C.
285 County Road 27
Brighton, CO 80603 /s/ Randee L. Stapp
____________________________________
Jamey W. Jamison, No. 10953
Randee L. Stapp, No. 26202
Dino G. Moncecchi, No. 45429
ATTORNEYS FOR SUNBELT RENTALS, INC.
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CERTIFICATE OF SERVICE
I certify that on this 31st day of July, 2023, a true and correct copy of the foregoing
DEFENDANT SUNBELT RENTALS, INC.’s ANSWER AND JURY DEMAND TO
DEFENDANT C&L WATER SOLUTIONS, INC.’S CROSS-CLAIM AND SUNBELT
RENTALS, INC.’S COUNTER-CLAIM AND JURY DEMAND AGAINST C&L WATER
SOLUTIONS, INC. was electronically filed via Colorado Courts E-filing addressed to the
following:
Karl W. Hager, Esq.
VanMeveren Law Group, P.C.
123 N. College Avenue, Suite 112
Fort Collins, CO 80524
Attorneys for Plaintiff
Andrew W. Callahan, Esq.
Cassie L. Williams, Esq.
Wick & Trautwein, LLC
323 South College Ave., Suite 3
Fort Collins, CO 80522
Attorneys for City of Fort Collins
Arthur J. Kutzer, Esq.
SGR, LLC
3900 East Mexico Ave., Suite 700
Denver, CO 80210
Attorneys for BCH Services, LLC
Scott A. Neckers, #43956
Sean T. Conrecode, #52864
Overturf McGath & Hull, P.C.
625 E. 16th Ave., Suite 100
Denver, CO 80203
Attorneys for Kodiak Field
Services, LLC
Jason H. Klein, Esq.
Tamara C. Jordan, Esq.
Susan E. Malcom, Esq.
Wood, Smith, Henning & Berman LLP
1805 Shea Center Drive, Suite 200
Highlands Ranch, CO 80129
Attorneys for C&L Water Solutions, Inc.
Original signature on file at office of
Harris, Karstaedt, Jamison & Powers, P.C.
/s/ C. Kentner