Maisel v. Erickson Construction, Inc. et al

Filing 163

ORDER granting 160 Defendant Cog Plumbing & Heating, Inc.'s Motion for Leave to Designate Settlement Parties as Non-Parties at Fault. The designation [160-1] is accepted for filing as of the date of this Order. By Magistrate Judge Kristen L. Mix on 8/15/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00555-REB-KLM
ELLIOT B. MAISEL,
Plaintiff,
v.
ERICKSON CONSTRUCTION, INC., a Colorado corporation,
RICKIE DEAN ERICKSON, individually,
CHARLES L. CUNNIFFE, individually, d/b/a Charles Cunniffe & Assoc, Architects,
ALPINE HEATING AND SHEET METAL, INC., a Colorado corporation, and
THE LOG CONNECTION, INC., a Colorado corporation,
Defendants;
RICKIE DEAN ERICKSON, individually, and
ERICKSON CONSTRUCTION, INC.,
Cross Claimants,
v.
CHARLES L. CUNNIFFE, individually, and
COG PLUMBING & HEATING, INC.,
Cross Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Cog Plumbing & Heating, Inc.’s
Motion for Leave to Designate Settlement Parties as Non-Parties at Fault [Docket No.
160; Filed August 13, 2012] (the “Motion”). Defendant Cog Plumbing & Heating, Inc.
(“Cog”) represents that Defendants Charles L. Cuniffe, The Log Connection, Erickson

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Construction, Inc., and Rickie Dean Erickson (collectively, “Defendants”) join in the
requested relief. [#160] at 2. Plaintiff objects to the requested relief. Id. Defendants seek
leave to designate six nonparties at fault who were previously named as defendants in this
action and who were dismissed from it after settling with Plaintiff. Id. at 3.
Pursuant to Colo. Rev. Stat. § 13-21-111.5(3)(b), “[n]egligence or fault of a nonparty
may be considered if the claimant entered into a settlement agreement with the nonparty
or if the defending party gives notice that a nonparty was wholly or partially at fault within
ninety days following commencement of the action unless the court determines that a
longer period is necessary.” As noted in the prior Orders permitting certain Defendants to
designate other nonparties at fault [## 52, 82], ninety days following the commencement
of this case was June 6, 2011. Given the history of this case, as well as the fact that the
nonparties at issue were still parties to the action on June 6, 2011, the Court finds that a
longer period for designation is necessary and appropriate. Accordingly,
IT IS HEREBY ORDERED that the Motion [#160] is GRANTED. The designation
of Steamboat Landscaping Inc. d/b/a Mountain West Environments, Inc., David Johns d/b/a
Johns Construction, Cross Seven, Inc., Frontier Enterprises, Ltd. d/b/a Frontier Structures,
Inc., Tinman Roofing and Home Improvements, Inc., and Peak Service and Renovation,
Inc. d/b/a Peak Mechanical Services as nonparties at fault filed on behalf of Defendants
Cog Plumbing & Heating, Inc., Charles L. Cunniffe, The Log Connection, Erickson
Construction, Inc., and Rickie Dean Erickson [Docket No. 160-1] is accepted for filing as
of the date of this Order.1

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To be clear, the Court does not pass judgment on the validity of the designation. While
Defendants indicate that Plaintiff opposes the designation of these particular nonparties, see [#160]
at 2, the Motion pertains only to whether Defendants may designate nonparties at fault outside the

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Dated: August 15, 2012

statutory deadline. Any objection to the validity of the designation must be raised separately and
specifically address the designation’s alleged failure to make a prima facie showing of nonparty
liability. See, e.g., Redden v. SCI Colo. Funeral Servs., Inc., 38 P.2d 75 (Colo. 2002).

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