HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 016 - Directional Plus's Response And Objection To Mastec's Motion For Leave To Amend AnswerDISTRICT COURT, LARIMER COUNTY, COLORADO
Court Address: 201 LaPorte Ave., Suite 100
Fort Collins, CO 80521
Plaintiff: CITY OF FORT COLLINS
v.
Defendants: DIRECTIONAL PLUS, LLC and MASTEC
NORTH AMERICA, INC.
▲ COURT USE ONLY ▲
Case Number: 2023CV30130
Division:
Attorneys for Defendant Directional Plus, LLC:
Stuart D. Morse, #16978
Amber L. Brink, #57381
Stuart D. Morse & Associates, LLC
5445 DTC Parkway, Suite 250
Greenwood Village, CO 80111
Telephone: 303-996-6661
Facsimile: Not Designated
smorse@sdmorselaw.com
abrink@sdmorselaw.com
DEFENDANT DIRECTIONAL PLUS, LLC’S RESPONSE AND OBJECTION TO
MASTEC NORTH AMERICA, INC.’S MOTION FOR LEAVE TO AMEND ANSWER
TO COMPLAINT AND ASSERT CROSSCLAIMS AGAINST DIRECTIONAL PLUS,
LLC
Defendant Directional Plus, LLC (“Directional”), by and through its attorneys, Stuart D.
Morse & Associates, LLC, hereby submits the following Response and Objection to MasTec
North America, Inc,’s (“MasTec”) Motion for Leave to Amend Answer to Complaint and Assert
Crossclaims against Directional Plus, LLC:
INTRODUCTION
This matter is a subrogation action initiated by the City of Fort Collins (“The City”) to
recover monies it allegedly spent repairing a hole in a water main at Conifer Street and Redwood
DATE FILED: August 11, 2023 9:34 AM
FILING ID: A5048D90E4026
CASE NUMBER: 2023CV30130
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Street that occurred on February 23, 2021. The City hired MasTec for a project involving the
installation of fiber optic cables. MasTec then hired Directional to perform the drilling and
boring work necessary for cable installation.
To prepare for this project, MasTec contacted The City’s 811 number and asked The City
to locate and mark the water lines in the area of the dig. Though MasTec was informed by The
City that the locate could not be completed due to inclement weather, when MasTec and
Directional arrived onsite, the locate had been done and locate marks were clearly visible,
indicating that the water main was more than 5 feet away from the planned bore path.
Directional began to dig/drill where all parties (including The City) believed was below
the gas line. Directional opened a pothole1 10+ feet deep, but the water main could not be found
where it was “located” to be by the locate performed by The City2. After conferral between
MasTec, Directional, and Mike Valloric from The City, an agreement was made to continue
drilling until they reached the gas line (which was appropriately and accurately marked). The
City’s plans indicated the water line was to be below the gas line. Even more importantly, The
City’s locate marks showed the waterline to be more than five feet from where it actually was.
Based upon The City’s faulty information, it was agreed by MasTec, Directional and The City
that Directional may begin drilling. Before reaching the gas line, however, the bore struck a
water line. The City hired Hydro Construction to repair the damage.
1 The process of “potholing” is used in excavations near marked utilities to ensure excavations don’t hit the utilities.
It is performed usually by hand and is a smaller excavation that is opened.
2 The City owns and operates the water line and therefore performs its own “locate” for showing the locations of its
water lines.
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ARGUMENT
Through this lawsuit, The City now seeks reimbursement from MasTec and Directional for
the costs of repair. MasTec, in turn, recently filed a motion to add a crossclaim against Directional
for breach of contract and indemnity. Directional objects to MasTec’s motion because the
indemnification language in the contract is void and unenforceable as against public policy.
The Indemnification Language in the Contract Between MasTec and Directional is Void as Against
Public Policy and is, Therefore, Unenforceable
Under C.R.S. §13-21-111.5(6)(b), “any provision in a construction agreement that requires a
person to indemnify, insure, or defend in litigation another person against liability for damage
arising out of death or bodily injury to persons or damage to property caused by the negligence or
fault of the indemnitee or any third party under the control or supervision of the indemnitee is void
as against public policy and unenforceable.” In enacting this statute, the General Assembly’s intent
was to encourage fairness among businesses, ensuring that one business does not delegate its own
negligence to others. C.R.S. §13-21-115(6)(a)
Here, the contract between MasTec and Directional requires Directional to:
indemnify, defend and hold harmless Contractor and Owner…and other
representatives (collectively, the “Indemnitees”) from and against all claims,
damages, liabilities, losses, penalties, injuries, and expenses…incurred or
suffered, directly or indirectly…by the Indemnitees and arising out of or
resulting from, directly or indirectly, the performance or quality of the Work,
the materials supplied by Subcontractor, or from any other action or
omission of Subcontractor…Further, Subcontractor will indemnify, defend
and hold harmless the Indemnitees to the fullest extent that Contractor is
required to indemnify, defend, and hold harmless Owner under the Primary
Contract. (Exhibit A - ¶ 15)
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Consequently, this contract requires Directional to indemnify, defend and hold MasTec
harmless for all claims arising from the entire project that relate to the performance of or quality of
the work done on the project, which would include claims for Mastec’s own negligence. As a
result, this provision violates public policy and is, therefore, unenforceable.
WHEREFORE, Directional respectfully requests this Court enter an Order denying MasTec
North America, Inc.’s Motion for Leave to Amend Answer to Complaint and Assert Cross Claims
Against Directional Plus, LLC.
Dated this 11th day of August 2023.
Respectfully submitted,
STUART D. MORSE & ASSOCIATES, LLC
Original signature on file at the offices of
Stuart D. Morse & Associates, LLC
By: /s/Stuart D. Morse
Stuart D. Morse, #16978
Amber L. Brink, #57381
Attorneys for Defendant Directional Plus, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on August 11, 2023, a true and correct copy of the foregoing
DEFENDANT DIRECTIONAL PLUS, LLC’S RESPONSE AND OBJECTION TO
MASTEC NORTH AMERICA, INC.’S MOTION FOR LEAVE TO AMEND ANSWER TO
COMPLAINT AND ASSERT CROSSCLAIMS AGAINST DIRECTIONAL PLUS, LLC,
was electronically filed through the State of Colorado’s ICCES e-filing system upon all counsel of
record.
Original signature on file at the offices of
Stuart D. Morse & Associates, LLC
/s/ Christine Coriano
Christine Coriano