Loading...
HomeMy WebLinkAbout2023CV30130 - City Of Fort Collins V. Directional Plus, Et Al. - 023 - Directional Response To Mastec CrossclaimDISTRICT 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 TO MASTEC NORTH AMERICA, INC.’S CROSSCLAIM AGAINST DIRECTIONAL PLUS, LLC Defendant Directional Plus, LLC (“Directional”), by and through its attorneys, Stuart D. Morse & Associates, LLC, hereby submits the following Response to MasTec North America, Inc.,’s (“MasTec) Crossclaim Against Directional Plus, LLC: Regarding the numbered allegations of MasTec’s Crossclaim, Directional responds as follows: PARTIES, JURISDICTION AND VENUE 1. The allegations in this paragraph are not directed at Directional and, therefore, do not require a response. To the extent a response is required, denied for lack of information or belief. DATE FILED: September 19, 2023 11:49 AM FILING ID: B0D1486A68195 CASE NUMBER: 2023CV30130 2 2. Admitted. 3. Admitted. Directional does not dispute jurisdiction or venue. 4. Directional objects to this manner of pleading, as it is vague and, therefore, unclear. To the extent that a response is required, Directional denies for lack of information or belief. GENERAL ALLEGATIONS 5. Directional admits that Plaintiff the City of Fort Collins (“the City”), alleges that Directional struck and punctured a water main owned by the City. Directional further admits that the City alleges Directional failed to comply with the statutory procedures for requesting the City to provide utility locations as set forth in C.R.S. §§ 9-1.5-101 et seq., prior to commencing excavation of the boring hole at the Subject Location. Directional denies that it failed to comply with the statutory procedures set forth in C.R.S. §§ 9-1.5- 101, et. seq. before commencing excavation of the boring hole at the Subject Location. 6. Denied for lack of information or belief. 7. Admitted. 8. Admitted. 9. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 10. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 11. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 12. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 3 13. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 14. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 15. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 16. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 17. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. FIRST CLAIM FOR RELIEF Breach of Contract 18. Directional hereby incorporates its responses to the above paragraphs as if fully set forth herein. 19. Denied for lack of information or belief. 20. Admitted that the City alleges Directional struck and punctured a water main owned by the City, which the City further erroneously alleges was due to Directional’s alleged failure to comply with C.R.S. §§ 9-1.5-101, et. seq. prior to commencing excavation of the boring hole at the Subject location. Directional denies that it failed to comply with C.R.S. §§ 9-1.5-101, et. seq. Directional further denies that the punctured water main was due to Directional’s failure to comply with C.R.S. §§ 9-1.5-101, et. seq. Directional denies that the puncture of the water line was caused by its negligence or inattention or that it’s actions or negligence caused any damage. 4 21. Denied for lack of information or belief. 22. (a-g) Denied. 23. The contract language speaks for itself and does not require any further response here. It is denied that Directional caused the damage complained of or is liable for any of the damages claimed either by the City or MasTec. Any and all remaining allegations, if any are denied for lack of information or belief. 24. Denied. 25. Denied. 26. Denied. 27. The allegations in this paragraph do not require a response. To the extent a response is required, denied for lack of information or belief. 28. Denied for lack of information or belief. DEFENSES 1. Directional hereby incorporates all defenses set forth in its Answer to the Complaint filed by the City. 2. The City and MasTec’s damages, if any, may have been caused by its own assumption of a known risk, which assumption of the risk bars or diminishes any recovery of damages pursuant to C.R.S. § 13-21-111.7. 3. The City and MasTec’s damages, if any, may have been caused by its own comparative conduct, or the conduct of others imputed to it, which conduct bars or diminishes any recovery of damages pursuant to the Colorado comparative negligence statute, C.R.S. § 13- 21-111. 4. The City and MasTec may have failed to reasonably mitigate their damages, if any. See C.R.S. §901.5-103(7)(a). 5. The City and MasTec’s damages, if any, are not reasonable and/or related to the incident giving rise to this lawsuit. 6. The City and MasTec’s damages, if any, may have been caused by the negligence of others for whom Directional was not responsible or over whom Directional had no control. 5 7. The City and MasTec’s damages, if any, may have been caused by circumstances not anticipated and not reasonably foreseeable by Directional in the exercise of due care. 8. MasTec’s cross claim failed to state a claim against Directional upon which relief may be granted. 9. Directional exercised the same degree of care, skill, and diligence in the performance of its work as is ordinarily exercised by other subcontractors in the industry. 10. Directional’s work was free of deficiencies and defects in workmanship. 11. The City and MasTec’s damages, if any, were proximately caused by inadequate project management and/or incorrect instructions by the City and/or MasTec. 12. The City and Mastec’s damages, if any, did not arise out of and did not result from the quality of work performed by Directional. 13. The Contract, particularly the indemnity language, between Directional and MasTec, is void as against public policy and unenforceable pursuant to C.R.S. §13-21-111(6)(b). 14. The City and Mastec’s claims and damages, if any, are subject to and limited by the Colorado Construction Defect Action Reform Act, C.R.S. §13-20-801, et. seq. 15. The City and MasTec’s claims and damages, if any, may be barred in whole or in part because Directional substantially complied with the requirements of C.R.S. §901.5-103. 16. Directional reserves the right to amend this Answer to include such other affirmative defenses as may be supported by evidence. WHEREFORE, having fully answered MasTec’s crossclaim against Directional, Defendant Directional prays that the crossclaim herein be dismissed at no cost, that it recovers its costs and attorney fees herein, and for such other and further relief as the Court may deem just and proper. JURY DEMAND Defendant Directional demands a jury trial with respect to all triable issues herein. 6 Dated this 19th day of September 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 CERTIFICATE OF SERVICE I hereby certify that on September 19, 2023, a true and correct copy of the foregoing DEFENDANT DIRECTIONAL PLUS, LLC’S RESPONSE TO MASTEC NORTH AMERICA, INC.’S CROSSCLAIM 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