Maisel v. Erickson Construction, Inc. et al

Filing 82

MINUTE ORDER. Defendants Erickson Construction, Inc. and Rickie Dean Ericksons Motion for Leave to Designate Non-Parties at Fault 80 is GRANTED. The designation of Homestead Associates of the Rockies, LLC, Dan Filler and Condos in Steamboat, Inc. a s nonparties at fault filed on behalf of Defendants Erickson Construction, Inc., Rickie Dean Erickson, Frontier Enterprises, Ltd., Cog Plumbing & Heating, Inc., Peak Service & Renovation, Inc. and Charles L. Cunniffe [80-1] is accepted for filing as of the date of this Order. By Magistrate Judge Kristen L. Mix on 7/26/2011.(sah, )

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,
COG PLUMBING & HEATING, INC., a Colorado corporation,
COLUMBINE INSULATING, INC., a Colorado corporation,
CROSS SEVEN, INC., a Colorado corporation,
FRONTIER ENTERPRISES, LTD., d/b/a Frontier Structures, Inc., a Colorado corporation,
DAVID JOHNS, individually, d/b/a John’s Construction,
PEAK SERVICE AND RENOVATION INC., d/b/a Peak Mechanical Services, Inc., a
Colorado corporation,
STEAMBOAT LANDSCAPING, INC., d/b/a Mountain West Environments, Inc., a Colorado
corporation,
THE LOG CONNECTION, INC., a Colorado corporation, and
TINMAN ROOFING AND HOME IMPROVEMENTS, INC., a Colorado corporation,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants Erickson Construction, Inc. and Rickie
Dean Erickson’s Motion for Leave to Designate Non-Parties at Fault [Docket No. 80;
Filed July 26, 2011] (the “Motion”).

Pursuant to the Motion, Defendants Erickson

Construction, Inc. and Rickie Dean Erickson seek leave to designate three nonparties at
fault who are believed to have performed services on the property which is the subject of
this litigation [Docket Nos. 47 & 48]. Defendants Frontier Enterprises, Ltd., Cog Plumbing

& Heating, Inc., Peak Service and Renovation, Inc. and Charles L. Cunniffe join in the
designation. Motion [#80] at 2.
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 my prior Order permitting certain Defendants to
designate other nonparties at fault [Docket No. 52], ninety days following the
commencement of this case was June 6, 2011. Given the history of this case, including that
Plaintiff delayed effecting service on Defendants and that the parties have not yet
exchanged initial disclosures, the Court finds that a longer period for designation is
necessary and appropriate. Moreover, I note that Plaintiff does not oppose the request to
extend the nonparty designation deadline. Motion [#80] at 2. Accordingly,
IT IS HEREBY ORDERED that the Motion is GRANTED. The designation of
Homestead Associates of the Rockies, LLC, Dan Filler and Condos in Steamboat, Inc. as
nonparties at fault filed on behalf of Defendants Erickson Construction, Inc., Rickie Dean
Erickson, Frontier Enterprises, Ltd., Cog Plumbing & Heating, Inc., Peak Service &
Renovation, Inc. and Charles L. Cunniffe [Docket No. 80-1] is accepted for filing as of the
date of this Order.1
Dated: July 26, 2011

1

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
Motion [#80] at 2, the Motion pertains only to whether Defendants may designate nonparties at
fault outside the 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).