Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372

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1 GRANTED Movant shall serve copies of this ORDER on any pro se parties, pursuant to CRCP 5, and file a certificate of service with the Court within 10 days. Dated: May 27, 2010 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock St., Rm. 256 Denver, Colorado R. Michael Mullins District Court Judge DATE OF ORDER INDICATED ON ATTACHMENT Plaintiff: NORMAN UTLEY CONSTRUCTION, INC. v. Defendant: PROGRESSIVE CASUALTY INSURANCE COMPANY COURT USE ONLY Counsel for Plaintiff: Marc R. Levy, #11372 Case No.: 2009CV9741 Brian J. Waters, # Joshua R. Proctor, #33835 Courtroom: 19 LEVY, MORSE & WHEELER, P.C. Plaza Tower One, Suite S. Fiddlers Green Cir. Greenwood Village, CO Phone: (303) Fax: (303) mlevy@levymorsewheeler.com, bwaters@levymorsewheeler.com, jproctor@levymorsewheeler.com PLAINTIFF S MOTION TO STRIKE DEFENDANT S DESIGNATION OF NON- PARTY AT FAULT PLAINTIFF, Norman Utley Construction, Inc. ( Utley ), through counsel, submits its Motion to Strike Defendant s Designation of Non-party at Fault, and states as follows: Certification Pursuant to C.R.C.P (8) Undersigned counsel for Plaintiff certifies that they conferred with defense counsel about this motion and are advised that Defendant opposes the relief requested herein. 1. On February 19, 2010, Defendant filed a non-party designation designating Bituminous Insurance as a non-party at fault pursuant to C.R.S (3)(b). See Defendant Progressive s Designation of Non-party at Fault Pursuant to C.R.S (3)(b).

2 2. As an initial matter, Defendant s non-party designation should be stricken as untimely. Plaintiff commenced this action on October 14, By statute, Defendant s nonparty designation was required to be filed within 90 days following commencement of the action. C.R.S (3)(b). Defendant was served with the Complaint on October 15, However, Defendant did not file its non-party designation until February 19, 2010, 128 days after the commencement of the action. Defendant neither sought nor received leave of court to file it late. Defendant s designation of non-party should be stricken as untimely. 3. Defendant s non-party designation should also be stricken on its merits. In this case, Plaintiff is suing Defendant for breach of insurance contract. As a matter of law, Defendant s non-party designation is invalid with respect to Plaintiff s breach of contract claim. Broderick v. McElroy and McCoy, Inc., 961 P.2d 504, 507 (Colo.App. 1997). 4. The damages Plaintiff seeks in this case are those benefits to which it is entitled under Defendant s insurance contract. Bituminous Insurance, the non-party designated by Defendant, has nothing to do with Defendant s performance of the contract or Defendant s fulfillment of its own contractual obligations to Plaintiff. Accordingly, Defendant s designation of Bituminous Insurance as a non-party at fault is invalid as a matter of law, and must be stricken. 5. Defendant s non-party designation is also deficient because it does not include any facts upon which Bituminous could be found liable for causing any of Plaintiff s damages. Unlike the Defendant here, Bituminous Insurance fulfilled its contractual obligations to Plaintiff by defending and indemnifying Plaintiff in the underlying personal injury lawsuit. Non-party designations are to be strictly construed. See Redden v. SCI Colorado Funeral Services, Inc., 38 2

3 P.3d 75, 80 (Colo. 2001). A proper non-party designation connects alleged facts with the established elements of negligence. Id. at 81. When a court does not believe a defendant has established legal culpability against an alleged non-party, the designation is properly disallowed. Id. On its face, Defendant s non-party designation should be disallowed because there is nothing in the designation upon which legal culpability against Bituminous Insurance could be established. WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests the Court enter an Order GRANTING this motion and STRIKING Defendant s Designation of Non-party at Fault, filed February 19, Respectfully submitted, LEVY, MORSE & WHEELER, P.C. Original signature on file at Levy, Morse & Wheeler, P.C. By: s/ Joshua R. Proctor Marc R. Levy, #11372 Brian J. Waters, # Joshua R. Proctor, #33835 Attorneys for Plaintiff Norman Utley Construction, Inc. 3

4 CERTIFICATE OF SERVICE I hereby certify that on April 9, 2010, a true and correct copy of the foregoing PLAINTIFF S MOTION TO STRIKE DEFENDANT S DESIGNATION OF NON- PARTY AT FAULT was e-filed through LexisNexis File & Serve and served electronically on the following: Franklin D. Patterson, Esq. Adam B. Kehrli, Esq. Patterson, Nuss & Seymour, P.C DTC Parkway, Suite 400 Greenwood Village, CO Original signature on file at the offices of Levy, Morse & Wheeler, P.C. /s/ Lou Ann Berlin 4

5 Court: CO Denver County District Court 2nd JD Judge: Ronald M Mullins File & Serve Transaction ID: Current Date: May 27, 2010 Case Number: 2009CV9741 Case Name: NORMAN UTLEY CONSTR INC vs. PROGRESSIVE CASUALTY INS CO /s/ Judge Ronald M Mullins