HomeMy WebLinkAbout2023CV30276 - Higgins V. V. City Of Fort Collins, Et Al. - 041 - Case Management Order29499139.1:11772-0041 1
Pursuant to C.R.C.P. 16(b), the parties should discuss each item below. If they agree, the
agreement should be stated. If they cannot agree, each party should state its position briefly. If an
item does not apply, it should be identified as “Not Applicable”.
This form shall be submitted to the Court in editable format. When approved by the court,
it shall constitute the Case Management Order for this Case unless modified by the Court upon a
showing of good cause.
This form must be filed with the court no later than 42 days after the case is at issue and at
least 7 days before the date of the Case Management Conference.
District Court, Larimer County, Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80631
Phone: (970) 475-2400
COURT USE ONLY
Christian Higgins
Plaintiff,
vs.
City of Fort Collins, C&L Water Solutions, Inc., Sunbelt
Rentals, Inc., Kodiak Field Services, LLC, and BCH
Services, LLC
Defendants
Case Number: 23CV30276
Division: 4C Karl W. Hager #52710
VanMeveren Law Group, P.C.
123 N College Ave. Ste 112
Fort Collins, CO 80524
Telephone (970) 495-9741
Fax (970) 495-6854
khager@vanmeverenlaw.com
CASE MANAGEMENT ORDER
DATE FILED: September 22, 2023 5:04 PM
CASE NUMBER: 2023CV30276
29499139.1:11772-0041 2
The Case Management Conference is set for September 22, 2023 at 1:15 p.m. via
WebEx.
1. The “at issue date” is: August 4, 2023 (per Court’s Order).
2. Responsible attorney’s name, address, phone number and email address:
Name: Karl W. Hager, VanMeveren Law Group, P.C.
Address: 123 North College Avenue, Suite 112
Fort Collins, CO 80524
Phone Number: (970) 495-9741
Email Address: khager@vanmeverenlaw.com
3. The lead counsel for each party, Karl Hager, Andrew Callahan, Tamara Jordan, Jamey Jamison,
Sean Conrecode and Arthur Kutzer, met and conferred by telephone concerning this Proposed
Order and each of the issues listed in Rule 16(b)(3)(A) through (E) on August 16, 2023_.
4. Brief description of the case and identification of the issues to be tried (not more than one page,
double-spaced, for each side):
Plaintiff Christian Higgins
Plaintiff’s claims against Defendants arose from injuries she suffered as a result of a bicycle
crash on October 8, 2021 on the 1700 block of Welch Street caused by a dangerous condition that
the City of Fort Collins (“the City”) created through the work of its independent contractor
Defendant C& L Water Solutions (“C&L”) and its subcontractors, Defendants Sunbelt Rentals,
Inc., (“Sunbelt”), Kodiak Field Services, LLC, (“Kodiak”) and BCH Services, LLC (“BCH”).
Plaintiff was riding her bicycle, and without any warning, came upon a five-inch fortified and
pressurized hose (“the Hose”) laid across the street, crashed into it, causing her to jump her bicycle
and body into the air and violently whiplashed her through her neck and back before she lost
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complete control ultimately crashing approximately 30 yards from the Hose causing her serious
bodily injuries and permanent impairment.
Prior to the crash, upon information and belief, the City had contracted with C&L, and
C&L had contracted with various subcontractors, to perform a project for the City (“the Utilities
Project”). In the course of their work for the City, C&L and/or its subcontractors stretched the
Hose from a fire hydrant across Welch Street at night in a dimly lit area. Defendants do not dispute
that the Hose was laid across the 1700 block of Welch Street. Plaintiff contends that the City and/or
C&L, Sunbelt, Kodiak, and/or BCH created a dangerous condition by stretching the Hose across
Welch Street for which Defendants are liable to invitees under the premises liability statute and
whose duties under the statute are nondelegable.
The crash resulted in Plaintiff’s injuries, damages and losses, including past and future
medical expenses, past and future lost income, past and future pain and suffering and emotional
distress, past and future loss of the normal pursuits and pleasures in life and permanent physical
impairment and disability. Defendants admit that an incident occurred on the date and in the
location stated. Defendants deny liability and causation and damages. Plaintiff has requested a
jury trial of all issues so triable.
Plaintiff’s claims are asserted under Colorado’s premises liability act C.R.S. §13 -21-115
et seq. Plaintiff asserts that the City waived immunity under C.R.S. §§ 24-10-106(1)(d)(I) and 24-
10-106(1)(f). Plaintiff also asserts claims for negligence against all Defendants.
C&L has filed a cross-complaint against Sunbelt for breach of contract and negligence, and
Sunbelt has filed a counter-claim against C&L for breach of contract and negligence and for
contribution pursuant to C.R.S. § 13-50.1-101 et seq.
29499139.1:11772-0041 4
Defendant Sunbelt Rentals, Inc.
Defendant Sunbelt Rentals, Inc. (hereinafter Sunbelt) was hired by C & L Water Solutions,
its general contractor, to perform sanitary bypass pumping on the city’s project. On October 8,
2021 the city installed a meter on a fire hydrant to be used in the sanitary flushing operation. No
one at Sunbelt was aware of which fire hydrant was to be used. Sunbelt had previously sent out
employees from Kodiak to perform the pumping operation. Kodiak is an independent contractor.
Kodiak in turn hired BCH Services, another independent contractor, to assist in the flushing
operation. No one from Sunbelt was present when the meter was installed or when the pumping
operation began and therefore, had no knowledge as to where the subject hose was placed. Only
C & L does traffic control. Sunbelt does no traffic control and never has. Sunbelt denies that there
was any unreasonable failure to exercise reasonable care by it. Sunbelt denies any issues related
to causation concerning plaintiff’s injuries. Sunbelt disputes the nature and extent of plaintiffs’
claimed injuries, damages, and losses. Sunbelt alleges that plaintiff was comparatively at fault,
which reduces or bars her recovery. Sunbelt denies it ever made a phone call or received a phone
call from C & L concerning the stretching of the hose across the roadway. Sunbelt incorporates
herein by reference its denials and affirmative defenses set forth in its answer. Sunbelt claims in
its counterclaim against C & L the following: Breach of Contract, Negligence, and Contribution
Pursuant to C.R.S. §13.50.1-101 et seq. Sunbelt denies that it was acting as a landowner on the
evening of the accident, and is without knowledge as to plaintiffs status as an invitee, licensee, or
trespasser.
Defendant BCH Services, LLC
BCH Services, LLC denies liability and questions the nature and extent of damages
claimed.
Defendant City of Fort Collins
The City denies liability in this case and specifically denies that it authorized or had
knowledge of the water hose placed across the street at issue in this case. The City further disputes
the nature and extent of damages.
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Defendant C & L Water Solutions, Inc.
Defendant C & L Water Solutions, ("C & L") was hired by the City of Fort Collins to
perform pipe lining at the project known as Spring Creek Edora. C & L hired Sunbelt Rentals, Inc.
("Sunbelt") as its subcontractor to perform sanitary bypass pumping on the project. During the
project, a bypass hose was dislodged from a nearby manhole and began spilling sewage into the
Spring Creek pond. Remediation work began. Upon information and belief, as part of the
remediation efforts, an employee from Sunbelt stretched a hose across Welch Street to connect it
to a fire hydrant. C & L denies that it was the landowner of the premises, and denies any negligence
and denies that it is responsible for any of Plaintiff's alleged injuries or damages. C & L
incorporates its affirmative defenses asserted in response to the Complaint.
Sunbelt asked C & L if they could stretch a hose across Welch Street and C & L's
superintendent told Sunbelt they could not stretch the hose across the street without a traffic control
permit. Upon information and belief, Sunbelt stretched the hose across Welch Street without the
proper traffic control or permits and without the knowledge, permission, or approval from C & L.
Defendant C & L asserts claims for breach of contract, negligence, and contribution and co-
defendant Sunbelt.
Defendant Kodiak Field Services, LLC
Defendant Kodiak generally disputes Plaintiff’s claims, allegations, and damages, and,
pursuant to C.R.C.P. 10(c), hereby incorporates fully by reference its Answer, Jury Demand, and
Affirmative Defenses set forth in its responsive pleading to Plaintiff’s Amended Complaint as if
fully set forth herein. Defendant Kodiak denies it is liable for Plaintiff’s claimed injuries/losses
and deny it breached any standards of care. Further, Defendant Kodiak denies its conduct caused
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or contributed to the alleged accident or Plaintiff's claimed injuries/losses. Defendant Kodiak
further denies the scope of Plaintiff's alleged damages and their causal connection to the accident.
Specifically, Defendant Kodiak was not responsible for placing the subject hose in the
roadway and is not responsible for Plaintiff’s incident and the damages linked thereto. Moreover,
Defendant Kodiak disputes that Plaintiff was an “invitee” at the subject property at the time of the
incident.
5. The following motions have been filed and are unresolved: None.
6. Brief assessment of each party’s position on the application of the proportionality factors,
including those listed in C.R.C.P. 26(b)(1):
Plaintiff and Defendants agree that the discovery limitations of C.R.C.P. 26(b)(2) are likely
appropriate in this case.
7. The lead counsel for each party, Karl Hager, Andrew Callahan, Tamara Jordan, Jamey
Jamison, Sean Conrecode and Arthur Kutzer, met and conferred concerning possible settlement.
The prospects for settlement are:
Good. Counsel for Plaintiff and for the Defendant have discussed settlement and will
continue to do so as discovery continues.
8. Deadlines for:
a. Amending or supplementing pleadings: (Not more than 105 days (15 weeks) from at
issue date.) November 17, 2023
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b. Joinder of additional parties: (Not more than 105 days (15) weeks from at issue date.)
November 17, 2023
c. Identifying non-parties at fault: November 2, 2023. (Not more than 90 days from at
issue date.)
d. The parties shall engage in ADR, which shall be completed no later than 60 days
after expert disclosures. If ADR is unsuccessful, the responsible attorney shall file a trial setting
notice no later than 7 days after the ADR deadline.
9. Dates of initial disclosures: No later than September 1, 2023.
Objections, if any, about their adequacy:
The parties agree to confer in good faith regarding objections, if any, to the adequacy
of their disclosures in an attempt to resolve any objections. If the parties cannot resolve their
objections, they will seek assistance from the Court.
10. If full disclosure of information under C.R.C.P. 26(a)(1)(C) was not made because of a
party’s inability to provide it, provide a brief statement of reasons for that party’s inability and
the expected timing of full disclosures, and completion of discovery on damages. N/A.
Completion of discovery on damages is expected to be completed 49 days before trial.
11. Proposed limitations on and modifications to the scope and types of discovery, consistent with
the proportionality factors in C.R.C.P. 26(b)(1): N/A
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(a) Number of depositions per Party (C.R.C.P. 26(b)(2)(A) limit 1 of each adverse party + 2
others + experts per C.R.C.P. 26(b)(4)(A)): At this time, the parties do not anticipate
requiring more than the standard allotment of depositions.
(b) Number of interrogatories per Party (C.R.C.P. 26(b)(2)(B) limit of 30): 30
(c) Number of requests for production of documents per Party (C.R.C.P. 26(b)(2)(D) limit
of 20): 20
(d) Number of requests for admission per Party (C.R.C.P. 26(b)(2)(E) limit of 20): 20
(e) Any physical or mental examination per C.R.C.P. 35: one per medical specialty
Defendant Kodiak shall be entitled to conduct Rule 35 examinations related to all claimed
medical, psychological, psychiatric, and other physical or mental damages claimed by
Plaintiff as a result of the alleged accident. Defendant Kodiak shall not request more than
one Rule 35 examination related to any particular field of medicine. Defendant Kodiak
shall also be entitled to an examination of Plaintiff by a Life Care Planner, to the extent
Plaintiff designates a Life Care Planner as an expert. Defendant Kodiak does not agree to
any conditions being imposed upon any Rule 35 examinations of Plaintiff not raised prior
to or at the Case Management Conference and either stipulated to by counsel prior to the
Case Management Conference, or ordered by the Court at the Case Management
Conference.
DEFENDANT SUNBELT RENTALS, INC: The defendant Sunbelt, may seek multiple Rule
35 examinations of the plaintiff given her myriad of claims. The potential rule 35 examinations
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would be by a physiatrist, neurosurgeon and/or orthopedic surgeon, and a vocational rehabilitation
specialist. Defendant Sunbelt will not request any examinations which would be duplicative of
the co-defendants examinations of the plaintiff. Sunbelt does not agree to any condition s being
imposed on any rule 35 examination of the plaintiff.
(f) Any limitations on awardable costs: None.
(g) State the justifications for any modifications in the foregoing C.R.C.P. 26(b)(2)
limitations: N/A
12. Number of experts, subjects for anticipated expert testimony, and whether experts
will be under C.R.C.P. 26(a)(2)(B)(I) or (B)(II):
Plaintiff anticipates retaining a biomechanical expert, a medical expert and a
vocational/rehabilitation expert. Plaintiff anticipates calling up to four (4) of her non-
retained experts, all of which are Plaintiff’s treating medical providers and physicians, on
issues regarding Plaintiff’s injuries, treatment, physical limitations, permanency and
damages.
BCH Services, LLC reserves the right to endorse experts as needed to respond to Plaintiff’s
claim.
The City of Fort Collins anticipates endorsing experts as necessary to rebut Plaintiff’s
expert testimony. In addition, the City may call a City employee as a non-retained expert
on sewer maintenance and construction policies and procedures as it relates to the incident
in question.
Defendant C & L anticipates retaining a liability expert in project management, a medical
expert to opine on Plaintiff's alleged injuries and damages, and an expert to rebut Plaintiff's
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vocational/rehabilitation expert. C & L reserves the right to designate any other rebuttal
experts.
DEFENDANT SUNBELT RENTALS, INC: Sunbelt may retain a biomechanical expert, an
expert in the field of vocational rehabilitation, a neurosurgeon and/or orthopedic surgeon, a
standard of care expert, physiatrist, a human factors expert, a forensic accountant, and a
lighting expert. Defendant Sunbelt may further retain experts, which would be rebuttal in
nature to plaintiffs experts. Sunbelt may retain experts in rebuttal to plaintiff’s experts.
Defendant Kodiak reserves the right to call experts in each ca tegory that Plaintiff endorses.
Defendant Kodiak reserves the right to retain additional experts depending on what is
learned from discovery.
If more than one expert in any subject per side is anticipated, state the reasons why such expert is
appropriate consistent with proportionality factors in C.R.C.P. 26(b)(1) and any differences
among the positions of multiple parties on the same side: N/A
13. Proposed deadlines for expert witness disclosure if other than those in C.R.C.P. 26(a)(2):
a. production of expert reports:
i. Plaintiff/claimant: At least 126 days (18 weeks) before the trial date.
ii. Defendant/opposing party: At least 98 days (14 weeks) before the trial date.
b. production of rebuttal expert reports: At least 77 days (11 weeks) before the trial date.
c. production of expert witness files: Contemporaneous with reports.
State the reasons for any different dates from those in C.R.C.P. 26(a)(2)(C): N/A
29499139.1:11772-0041 11
14. Oral Discovery Motions. The court does not require discovery motions to be presented
orally, without written motions or briefs.
15. Electronically Stored Information. The parties do not anticipate needing to discover a
significant amount of electronically stored information. The following is a brief report
concerning their agreements or positions on search terms to be used, if any, and relating to the
production, continued preservation, and restoration of electronically stored information,
including the form in which it is to be produced and an estimate of the attendant costs. No such
agreements at this time.
16. Parties’ best estimate as to when discovery can be completed: 49 days before trial
Parties’ best earliest estimate trial date: July 2024
Parties’ best estimate of length of trial: 8 days. (Subject to change)
Trial will be set by the court at a later date.
17. Other appropriate matters for consideration: None known at this time.
Dated this _14_day of September, 2023.
WICK & TRAUTWEIN, LLC
By: /s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Attorneys for Defendant City of Fort Collins
OVERTURF, MCGATH & HULL, P.C. SGR, LLC
By: /s/ Sean T. Conrecode By: /s/Arthur J. Kutzer
Scott A. Neckers, #43956 Arthur J. Kutzer, #18878
Sean T. Conrecode, #52864 3900 E. Mexico Avenue, #700
625 E. 16th Avenue, #100 Denver, CO 80210
Denver, CO 80203 Attorneys for BCH Services, LLC
Attorneys for Defendant Kodiak
VANMEVEREN LAW GROUP, PC
By: /s/Karl W. Hager
Karl W. Hager, Esq., #52710
123 N College Ave., Ste. 112
Fort Collins, CO 80524
Attorneys for Plaintiffs
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HARRIS, KARSTAEDT, JAMISON WOOD, SMITH, HENNING & BERMAN,
& POWERS, P.C. LLP
By: /s/Jamey W. Jamison By: /s/Jason H. Klein
Jamey W. Jamison, #10953 Jason H. Klein, #53303
Randee L. Stapp, #26202 Tamara C. Jordan, #52061
Dino G. Moncecchi, #45429 1805 Shea Center Drive, Suite 200
10333 E. Dry Creek Road, #300 Highlands Ranch, CO 80129
Englewood, CO 80112 Attorneys for C&L Water Solutions, Inc.
Attorneys for Defendant/Cross-Claim Plaintiff
Sunbelt Rental, Inc.
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CASE MANAGEMENT ORDER
IT IS HEREBY ORDERED that the foregoing, including any modifications made by the court, is
and shall be the Case Management Order in this case.
Dated this ______ day of ________________________, 20__.
BY THE COURT:
__________________________
District Court Judge
22 September 23