Direct Marketing Association, The v. Huber

Filing 103

REPLY to Response to 99 MOTION for Partial Summary Judgment Counts I and II (Commerce Clause filed by Defendant Roxy Huber. (Attachments: # 1 Exhibit Hubbell v. Carney Bros. Const.)(Snyder, Melanie) Modified on 6/13/2011 to remove repetitive text (sah, ).

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Slip Copy, 2010 WL 5109984 (D.Colo.)
(Cite as: 2010 WL 5109984 (D.Colo.))

Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Platt T. HUBBELL, and Kelley S. Hubbell,
Third-Party Plaintiffs,
v.
CARNEY BROTHERS CONSTRUCTION, a Colorado corporation, Ian Carney, Richard Carney,
Teamcorp, Inc. d/b/a Draft Tek, a Colorado corporation, T.J. Concrete Construction, Inc., A Colorado
Corporation, and Kerry M. Karnan, Third-Party Defendants.
Civil Action No. 05-cv-00026-CMA-KLM.
Dec. 8, 2010.
Daniel McKay Fowler, Katherine Taylor Eubank,
Fowler, Schimberg & Flanagan, P.C., Denver, CO, for
Third-Party Plaintiffs.
Jerad A. West, Lelia Kathleen Chaney, Sara M. Cantrick, Lambdin & Chaney, LLP, Bruce Norman
Shibles, Joel N. Varnell & Associates, Denver, CO,
Robert Samuel Hoover, Krabacher & Sanders, P.C.,
Aspen, CO, for Third-Party Defendants.
ORDER DENYING THIRD-PARTY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (# 514), GRANTING IN PART AND
DENYING IN PART THIRD-PARTY PLAINTIFFS' MOTION TO STRIKE (# 550), AND
GRANTING THIRD-PARTY DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING THE STANDARD OF
CARE (# 513)
CHRISTINE M. ARGUELLO, District Judge.
*1 This matter is before the Court on Third-Party
Defendants Teamcorp, Inc. d/b/a Draft-Tek (“Teamcorp”) and Kerry Karnan's (“Karnan”) (Teamcorp and
Karnan will collectively be referred to as “Defendants”) Motion for Summary Judgment (Doc. # 514),
Third-Party Plaintiffs Platt T. Hubbell and Kelley S.
Hubbell's FN1 (“Hubbells”) Motion to Strike Defendants' Summary Judgment Reply Brief (Doc. # 550),
and Defendants' Motion for Partial Summary Judg-

ment Regarding the Standard of Care Applicable to
Defendants (Doc. # 513). For the following reasons,
Defendants' motion for summary judgment is denied,
the Hubbells' motion to strike is granted in part and
denied in part, and Defendants' motion for partial
summary judgment on the issue of the standard of care
is granted.
FN1. Kelley S. Hubbell is now known as
Kelley S. Hogan.
I. BACKGROUND
This third-party construction defect action concerns allegations of negligence, negligent misrepresentation, breach of contract, and unjust enrichment
against various construction companies and professionals, including Thane R. Lincicome, a licensed
professional engineer; Teamcorp, the company that
had retained his services; and Karnan, Teamcorp's
principal who was instrumental in retaining Lincicome. (Doc. # 25, Third-Party Compl.; Doc. # 76-1,
Am. Third-Party Compl.).
A. DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
On April 1, 2010, Defendants filed a motion for
summary judgment. (Doc. # 514). Defendants contend
that judgment in their favor is appropriate on certain
claims FN2 because the Hubbells failed to file a certificate of review that is required for claims concerning
the negligence of licensed professionals.FN3
FN2. Defendants seek judgment on the
Hubbells' negligence claim (Claim 1), breach
of contract claim (Claim 4), and negligent
misrepresentation claim (Claim 7).
FN3. Colo.Rev.Stat. § 13-20-602(1)(a) states
in relevant part that “[i]n every action for
damages or indemnity based upon the alleged
professional negligence of ... a licensed professional, the plaintiff's or complainant's attorney shall file with the court a certificate of
review for each ... licensed professional
named as a party.” Pursuant to Colo.Rev.Stat. § 13-20-602(1)(b), “[a] certificate of review shall be filed with respect to

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every action ... against a company or firm
that employed a person specified ... at the
time of the alleged negligence, even if such
person is not named as a party in such action.”

The Hubbells opposed the motion, arguing that
summary judgment is not warranted because the experts allegedly disagree as to the appropriate standard
of care. (Doc. # 533.) Defendants timely filed their
reply. (Doc. # 544.) The motion is fully briefed.

The Hubbells oppose the motion, asserting that a
certificate of review is not required. The Hubbells
contend that (1) their claims against Defendants are
not premised on the alleged negligence of Lincicome,
a licensed engineer, but on Defendants' own conduct,
and (2) because Defendants are unlicensed professionals, the Hubbells' claims fall outside the purview
of Colo.Rev.Stat. § 13-20-602.

II. LEGAL STANDARD-SUMMARY JUDGMENT
Summary judgment is warranted under Federal
Rule of Civil Procedure 56(c) when the movant shows
“the materials in the record ... do not establish ... the
presence of a genuine dispute” and “the movant is
entitled to judgment as a matter of law.” A movant
who bears the burden at trial must submit evidence to
establish every essential element of its claim. In re
Ribozyme Pharms., Inc. v. Sec. Litig., 209 F.Supp.2d
1106, 1111 (D.Colo.2002). The nonmoving party may
not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that
there is a genuine issue for trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); see Fed.R.Civ.P. 56(e). When
reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to
the non-moving party. McBeth v. Himes, 598 F.3d
708, 715 (10th Cir.2010).

Defendants filed their reply brief on June 18,
2010. (Doc. # 543). In it, Defendants' assert a new
theory that allegedly supports their motion for summary judgment. Because the Hubbells admit their
claims against Defendants are not premised on vicarious liability for Lincicome's conduct, Defendants
contend Lincicome is solely responsible for the plans
he stamped with his professional seal.
B. THE HUBBELLS' MOTION TO STRIKE
On June 29, 2010, the Hubbells filed their Motion
to Strike Defendants' Summary Judgment Reply or for
Alternative Relief. (Doc. # 550). The Hubbells seek to
strike the reply on the grounds that it fails to address
the Hubbells' statement of facts and that it allegedly
presents new arguments and evidence to which the
Hubbells did not have the opportunity to respond. In
their response to the motion to strike, Defendants
addressed the Hubbells' first basis for objection and
provided responses to the Hubbells' statements of fact.
(Doc. # 553.) The Hubbells timely filed their reply.
(Doc. # 554 .)
C. DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT REGARDING THE APPROPRIATE STANDARD OF CARE
*2 Defendants move for partial summary judgment arguing that they should not be held to the
standard of care of a licensed architect or engineer.
(Doc. # 513.) Defendants provided the parties' unsworn expert opinions on the standard that is appropriate and the Hubbells' interrogatory responses which
allegedly demonstrate that the Hubbells were seeking
to hold Defendants to the standard of care of a licensed
architect or engineer. (Id. at 4, ¶¶ c, d; at 5, ¶ e.)

III. ANALYSIS
A. THE HUBBELLS' MOTION TO STRIKE
As a threshold matter, the Court must determine
what arguments and evidence are properly before the
Court on Defendants' motion for summary judgment.
The Hubbells move to strike Defendants' reply
filed in support of their motion for summary judgment
for two reasons. (Doc. # 550.) First, in direct contravention of the Court's practice standards, Defendants
failed to respond to the new statements of fact the
Hubbells asserted in their response. (Id. at 3-4.)
Second, the Hubbells contend that Defendants improperly present two new arguments not raised in their
opening brief: (a) the Hubbells were required to file
separate certificates of review for Defendants and for
Lincicome and (b) Lincicome's engineering stamp
bars Defendants' liability for Lincicome's professional
negligence. (Id. at 4-5). The Hubbells also object to
new supporting exhibits submitted on the latter issue.
(Id. at 5).
Having reviewed the Defendants' reply brief, the
Court agrees that Defendants failed to respond to the

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Hubbells' additional statement of facts. However,
Defendants did ultimately provide such responses,
albeit in their opposition to the motion to strike. Thus,
Defendants' original failure does not result in confusion or the “obstruct[ion of the] application of the
summary judgment standard” as the Hubbells contend. (See Doc. # 550 at 3.)
*3 Secondly, the Court recognizes that Defendants' argument regarding the requirement of a separate certificate of review for Defendants was raised in
their opening brief. (Doc. # 514 at 4, 6-8 (“the filing of
a certificate of review relating to the work Teamcorp
completed for the Project is a prerequisite to the
Hubbells' ability to maintain their claims against
Teamcorp and Karnan.”)) Defendants' reply brief is,
therefore, proper in this regard.
On the other hand, the Court finds that Defendants' contention that Lincicome's engineering stamp
acted to eliminate any liability on Defendants' behalf
is a new argument not properly raised in their reply.
Defendants claim the argument responds to a new
admission by the Hubbells, namely that their claims
against Defendants are not premised on vicarious
liability. (Doc. # 553 at 8.) While this may be true, the
admission's ultimate effect on Defendants' liability is
not relevant to the issue raised in Defendants' motion,
which is whether a certificate of review should have
been filed for the Defendants' conduct. The Court,
therefore, will not consider this additional argument
and its associated exhibits.FN4
FN4. The Court nevertheless notes that the
Colorado statute cited by Defendants in
support of this argument says nothing of
Lincicome being held solely responsible for
his conduct. (See Doc. # 543 at 4-7.)
Accordingly, the Court grants the Hubbells' motion to strike as it relates to the new argument concerning the effect of Lincicome's engineering stamp
and its supporting evidence, but denies the motion in
all other respects.
B. DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT REGARDING THE CERTIFICATE OF REVIEW
Having dispensed with the issue of what arguments and evidence are properly before the Court, the
Court can now address the merits of Defendants' mo-

tion for summary judgment.
Defendants invoke Colo.Rev.Stat. § 13-20-602 in
an attempt to obtain judgment in their favor on the
Hubbells' breach of contract, negligence, and negligent misrepresentation claims. This statute provides
that, “[i]n every action for damages ... based upon the
alleged professional negligence of ... a licensed professional,” a certificate of review “shall be filed ...
against a company or firm that employed [a licensed
professional] at the time of the alleged negligence.”
Colo.Rev.Stat. § 13-20-602(1)(a)-(b). The purpose of
the certificate of review is to demonstrate that the
plaintiff has consulted with a person who has expertise
in the area and that the expert has concluded that the
plaintiff's claim is substantially justified, including
with respect to the scope of the standard of care and
whether the professional conformed to the applicable
standard of care. See RMB Servs., Inc. v. Truhlar, 151
P.3d 673, 675 (Colo.App.2006); Ehrlich Feedlot, Inc.
v. Oldenburg, 140 P.3d 265, 271 (Colo.App.2006)
(referring to “duty” as opposed to “standard of care”).
Notably, the statute only governs actions in which the
claims are based upon allegations of negligence by a
licensed professional.
The Court agrees that a certificate of review need
not be filed against Defendants. The Hubbells contend
their claims against Defendants are premised on the
actions of Defendants, not on those of Lincicome.
(Doc. # 531 at 5, ¶ 8; at 10-11.) The Hubbells explain:
*4 Hubbell/Hogan's claims against Teamcorp are
based on Teamcorp/Karnan's own conduct, including (1) representations that led Hubbell/Hogan to
expect that Teamcorp could and would prepare a
constructible set of plans with the required architectural design and structural engineering calculations, as well as a permit set of drawings; (2)
Teamcorp/Karnan's production of plans that were
deficient and violated local building requirements.
(Doc. # 531 at 5, ¶ 8.) Additionally, the parties
agree Karnan is not a licensed architect or engineer
and Teamcorp did not have any licensed architects or
engineers as principals or on staff. (Doc. # 531 at 5, ¶ 9
and # 553 at 4, ¶ 4.) Thus, because the claims are not
based on the negligence of a licensed professional, the
Hubbells were not required to file a certificate of review as a matter of law. The Hubbells' claims survive.
Defendants' motion for summary judgment is denied.

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C. DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT REGARDING THE APPROPRIATE STANDARD OF CARE
In this negligence action, it is the Hubbells' burden to establish the appropriate standard of care. See
Palmer v. A.H. Robins, Co., 684 P.2d 187, 224 (Colo.1984) (“To recover in negligence, a plaintiff must
prove by a preponderance of the evidence that the
defendant breached a legal duty owing to the plaintiff,
proximately causing damages.”). Defendants move
for summary judgment to prevent the Hubbells from
holding them to the standard of care of a licensed
architect or engineer. (Doc. # 513.)
To show that the Hubbells are seeking to hold
them to this standard, Defendants provide the Hubbells' response to an interrogatory and the opinion of
one of the Hubbells' experts, Mr. G .E. McNally. (Id.
at 4, ¶¶ c, d.) Defendants contend that they cannot be
held to such a standard because neither of them are
licensed professionals. (Id. at 5-8.) Defendants also
provide the opinion of their own expert, Mr. Daniel
Havekost, a licensed architect, who allegedly opines
that the appropriate standard of care for Defendants is
that of an unlicensed drafting firm. (Id. at 5, ¶ e.)
In response, the Hubbells first challenge the use
of both parties' unsworn expert reports and their own
interrogatory response because they allegedly do not
comply with Rule 56(e).FN5 The Hubbells also dispute
that their expert “opines that [Teamcorp] should be
held to the standard of care of a licensed architect.”
(Doc. # 513, Defs.' Mot. Summ. J. at 4, ¶ d; Doc. # 533
at 3, ¶ 4[d].) Significantly, the Hubbells do not provide
any clarification as to what their expert's opinion allegedly is; they simply dispute that it evinces the
standard of care of a licensed architect. Because there
is allegedly conflicting testimony here, the Hubbells
contend the issue should be left for determination by
the jury.
FN5. The Court overrules the Hubbells'
evidentiary objections. First, it is well-settled
that answers to interrogatories can be considered on a motion for summary judgment. In
fact, the 1963 amendment to Rule 56 codified
the former practice. H.B. Zachry Co. v.
O'Brien, 378 F.2d 423, 425 (10th Cir.1967).
Second, statements in the parties' expert reports can be considered at summary judg-

ment because they can be “presented in a
form that would be admissible in evidence”,
namely through the experts' testimony.
Fed.R.Civ.P. 56(c)(2) (effective Dec. 1,
2010.)
However, the Hubbells have not shown that there
is in fact a conflict between the parties' expert's opinions. First, the parties agree that whatever the Hubbells' expert's opinion may be, it is not that Defendants
should be held to the standard of care of a licensed
architect. Additionally, the Hubbells have not pointed
the Court to the opinion of any expert demonstrating
that Defendants should be held to the standard of care
of a licensed architect or engineer. In order to survive
Defendants' motion for partial summary judgment,
they are required to do so. The Court, therefore, grants
Defendants' motion. FN6
FN6. The Court also notes that allowing the
Hubbells to hold Defendants to the standard
of care of a licensed professional would be
Colo.Rev.Stat.
§
inconsistent
with
13-20-602. As discussed previously, the
purpose of filing a certificate of review for
claims involving negligence of a licensed
professional is to ensure that a licensed professional-expert has concluded a the claims
have merit. If the court were to deny Defendants' motion, it would in effect allow the
Hubbells to hold Defendants to the standard
of care of a licensed professional without
requiring their claims be subject to a merit
evaluation by a licensed professional. This
would defeat the purpose of the certificate of
review filing requirement.
IV. CONCLUSION
*5 Accordingly, for the foregoing reasons it is
ORDERED that Third-Party Defendants Teamcorp, Inc. d/b/a Draft Tek and Kerry Karnan's Motion
for Summary Judgment (Doc. # 514) is DENIED. The
Court finds that a certificate of review is not required
against Defendants because the Hubbells' claims are
based on Defendants' own conduct and Defendants are
not licensed professionals. It is further
ORDERED that Plaintiffs' Motion to Strike
Teamcorp/Karnan's Summary-Judgment Reply (Doc.
# 543) or for Alternative Relief” (Doc. # 550) is

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GRANTED IN PART and DENIED IN PART. The
Court grants the Hubbells' motion with respect to the
newly raised theory of the effect of Lincicome's stamp
on Defendants' liability, but denies the motion in all
other respects. It is further
ORDERED that Third-Party Defendants Teamcorp, Inc. d/b/a Draft Tek and Kerry Karnan's Motion
for Partial Summary Judgment Regarding the Standard of Care Applicable to Teamcorp d/b/a Draft Tek
and Kerry Karnan (Doc. # 513) is GRANTED. Defendants shall not be held to the standard of care of a
licensed architect or engineer.
D.Colo.,2010.
Hubbell v. Carney Bros. Const.
Slip Copy, 2010 WL 5109984 (D.Colo.)
END OF DOCUMENT

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