Delarosa et al v. Coyote Pumping Services, Inc. et al

Filing 78

ORDER denying 37 Defendant Coyote Pumping Services, Inc.'s Motion for Application of Colorado Law to Plaintiff Antonio Delarosa's Claims and 46 Request to Supplement Reply Brief on Choice of Law by Judge Christine M. Arguello on 8/20/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01188-CMA-KMT
ANTONIO DELAROSA, and
ROSANNA MENDOZA-RIOS,
Plaintiffs,
and
The Phoenix Insurance Company,
Plaintiff-Intervenor,
v.
COYOTE PUMPING SERVICES, INC., and
THE MINE SUPPLY COMPANY (IMSCO),
Defendants.

ORDER ON CHOICE-OF-LAW ISSUE

This matter is before the Court on Plaintiffs’ “Memorandum on Choice of Law”
(Doc. # 36) and “Defendant Coyote Pumping Services, Inc.’s Motion for Application
of Colorado Law to Plaintiff Antonio Delarosa’s Claims” (Doc. # 37). The Court’s
jurisdiction arises under 28 U.S.C. § 1332 (diversity jurisdiction). For the reasons
discussed below, the Court will apply New Mexico law to Plaintiffs’ negligence and strict
liability claims, but Colorado law will govern the claim for loss of consortium.

I. BACKGROUND 1
Plaintiffs Antonio Delarosa and Rosanna Mendoza-Rios, who claims to be
Delarosa’s common-law wife, are citizens and residents of Colorado and were domiciled
in Colorado at all times relevant to their Complaint. (Doc. # 1 at 1.) Defendant Coyote
Pumping Services, Inc. (“Coyote”) was, at all times relevant to the Complaint, a New
Mexico corporation domiciled in New Mexico with its principal place of business in
Albuquerque. (Id.) Defendant The Mine Supply Company (“IMSCO”) was, at all times
relevant to the Complaint, a New Mexico company. 2 (Id. at 2.)
In January 2010, Delarosa was hired by Ames Construction Company (“Ames”),
a Minnesota corporation authorized to do business in Colorado. (Id.) Ames hired
Delarosa for a construction project at a sited called Abo Canyon, which is located near
Belen, New Mexico. (Id.) On February 8, 2010, Delarosa was injured when a hose,
through which concrete was being pumped, tore or ripped, causing concrete to strike
Delarosa and knock him into an 80-foot-tall column (into which the concrete was being
poured). (Id. at 3.) The hose and coupling to which the hose attached were designed,
manufactured, and assembled in New Mexico. (See id. at 3-4.) As a result of the hose

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The following facts are taken from Plaintiffs’ Complaint. (Doc. # 1.) Although the parties had
contemplated briefing the choice-of-law issue “in the form of a request for partial summary
judgment” (Doc. # 33 at 9), neither party did so, at least not explicitly. Further, the briefing
on the choice-of-law issue was submitted well before the close of discovery. Accordingly, as
opposed to requiring evidentiary support for the parties’ factual assertions, the Court will accept
as true the allegations in Plaintiffs’ Complaint, as it would in the context of a Fed. R. Civ. P.
12(b)(6) motion to dismiss. See, e.g., Brown v. Fryer, 12-cv-01740, 2013 WL 1191405, at *1
(D. Colo. Mar. 22, 2013) (unpublished) (addressing choice-of-law issue in context of motion
to dismiss).
2

IMSCO did not file its own briefing but, rather, has joined Coyote’s motion. (Doc. # 38.)
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failure, Delarosa has experienced numerous injuries, some of which may be permanent.
(Id. at 5.)
On May 8, 2012, Plaintiffs filed their Complaint, asserting claims for negligence,
strict liability on behalf of Delarosa, and loss of consortium as to Mendoza-Rios. (See
id.) On July 23, 2012, Plaintiff-Intervenor The Phoenix Insurance Company (“Phoenix”)
filed a Complaint in Intervention, seeking subrogation for amounts it paid for Delarosa’s
workers’ compensation benefits. (Doc. # 17.)
II. DISCUSSION
Plaintiffs contend that New Mexico law governs their Complaint, while
Defendants assert that the Court should apply Colorado law. Based on the applicable
choice-of-law analysis, Plaintiffs’ argument is more compelling, but only as to their
claims for negligence and strict liability.
Before delving into the law, however, the Court addresses the scope of the issue
presented, over which the parties disagree. Defendants assert that Plaintiffs’ have
requested the Court to determine what law should be applied only as to damages.
(See Doc. # 45 at 2.) Defendants’ assertion is not without merit, because Plaintiffs
have failed to frame consistently the choice-of-law issue. (Compare, e.g. Doc. # 36
at 1 (“New Mexico law should be used as the law on damages”), with, e.g., id. at 10
(“This Court should designate that the law of the state of New Mexico should be utilized
to determine the rights and liabilities of the Parties.”).) Ultimately, though, the Court
agrees with Plaintiffs that the Scheduling Order sets forth the parties’ positions. (Doc.
# 33 at 9 (“Plaintiff believes New Mexico law should be utilized in adjudicating this

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matter, while Defendant Coyote Pumping Services, Inc. believes that Colorado law
applies for some or all of the issues . . . .”).) As such, the Court finds that,
notwithstanding Plaintiffs’ imperfect presentation of the issue, Defendants have been
on notice of the extent of Plaintiffs’ position since at least August 22, 2012, when
Magistrate Judge Tafoya entered the Scheduling Order. (See id.) Therefore, the
Court’s choice-of-law determination affects the entirety of Plaintiffs’ claims against
Defendants.
As an additional preliminary matter, the Court rejects Defendants’ argument that
Colorado law presumptively governs this action because “Plaintiffs have failed to make
any argument or to cite any case law demonstrating any outcome determinative conflict
between the potentially applicable bodies of law” cited in their memorandum. (Doc.
# 45 at 3.) To the contrary, Plaintiffs asserted that an outcome determinative conflict
exists between Colorado and New Mexico law as to both comparative fault and the
amount of recoverable non-economic damages. (Doc. # 44 at 3-4.) Under Colorado’s
comparative fault system for negligence claims, plaintiffs are barred from recovery when
their negligence is as great as or greater than that of the defendants. Colo. Rev. Stat.
§ 13-21-111; see, e.g., Harris v. The Ark, 810 P.2d 226, 230 (Colo. 1991) (explaining
that, in a comparative negligence action, “the defendant seeks to avoid liability by
refuting the plaintiff’s claim of negligence or by establishing that, even if the defendant
may have been negligent, the plaintiff’s negligence was equal to or greater than the
negligence of the defendant and is thus barred from recovery”). The same is not true,
though, under New Mexico law, where “pure comparative fault applies to all negligence

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cases.” Flowers v. Lea Power Partners, LLC, 09-CV-569, 2012 WL 2922689, at *4
(D.N.M. April 17, 2012) (unpublished); see Davis v. Portline Transportes Maritime
Internacional, 16 F.3d 532, 545 (3d Cir. 1994) (explaining that “pure comparative fault”
means that “the worker may recover although his or her fault exceeds 50%”).
Additionally, Colorado Revised Statute § 13-21-102.5 caps non-economic damages.
Whereas, for the type of claims alleged here, New Mexico law does not. Valencia v.
Colorado Cas. Ins. Co., 560 F. Supp. 2d 1080, 1086 (D.N.M. Aug. 8, 2007) (restating,
without contradicting, party’s argument that New Mexico law does not limit noneconomic
damages, as opposed to Colorado law, which “limits the recovery of damages for
noneconomic loss or injury to $250,000.00, unless the court finds justification for
additional damages by clear and convincing evidence”). Given these differences in
New Mexico and Colorado law, which Defendants do not dispute, the Court will engage
in the customary choice-of-law analysis.
A.

NEGLIGENCE AND STRICT LIABILITY CLAIMS
In diversity actions, the Court applies “the substantive law of the forum state,

including its choice of law rules.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico,
Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). In tort cases, such as this one, Colorado’s
choice-of-law standard is the “most significant relationship” test, as articulated in
the Restatement (Second) of the Conflict of Laws §§ 6, 145, 171 (1971) (the
“Restatement”). AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 508 (Colo.
2007). In applying that test, the Court analyzes the following contacts:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,

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(c) the domicile, residence, nationality, place of incorporation and place
of business of the parties, and
(d) the place where the relationship, if any, between the parties is
centered.
Restatement § 145(2). Such contacts “are to be evaluated according to their
relative importance with respect to the particular issue.” Id. Further, § 145(2)
requires the Court to analyze the following factors listed in § 6 of the
Restatement:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
The weight these factors carry often “var[ies] in importance and in application
depending upon the field of law and the particular issue under consideration.” Sabell v.
Pac. Intermountain Express Co., 536 P.2d 1160, 1164 (Colo. App. 1975). When, as
here, a tort action involves claims of personal injury, “the location of the injury
presumptively provides the controlling law unless some other state has a more
significant relationship.” Elvig v. Nintendo of Am., Inc., 696 F. Supp. 2d 1207, 1210
(D. Colo. 2010). 3 Application of this presumption “furthers the choice-of-law values of
certainty, predictability and uniformity of result and, since the state where the injury
occurred will usually be readily ascertainable, of ease in the determination and

3

This presumption “applies to personal injuries that are caused either intentionally or negligently
and to injuries for which the actor is responsible on the basis of strict liability.” Restatement
§ 146 cmt. a.
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application of the applicable law.” Restatement § 146 cmt. c. Because Delarosa’s
injury occurred in New Mexico, the Court begins with the presumption that New Mexico
law governs.
Such a presumption is well supported by the relevant contacts in this case.
To begin with, although Defendants deny liability for Delarosa’s injuries, no doubt exists
that his injury – i.e., being struck by concrete and getting knocked into the support
column – occurred at the Abo Canyon site, which is located in New Mexico. Defendants
assert that “it was mere fortuity that this accident occurred in New Mexico” because
“Delarosa would have gone anywhere his company sent him to work.” (Doc. # 37 at 12.
(citing Scheer v. Scheer, 881 P.2d 479 (Colo. App. 1994) (in negligence suit arising from
a car accident, the court determined that the location of the accident was a “fortuitous
occurrence”)).) But conceptualizing the issue in this way injects an element of
uncertainty not found in Plaintiffs’ Complaint and which common sense does not
support. Plaintiffs allege, and Defendants do not dispute, that the Abo Canyon project
for which Delarosa was hired existed entirely in New Mexico. As compared to Scheer,
881 P.2d 479, in which the car accident happened to occur in Colorado, Delarosa could
have been injured during his work on the Abo Canyon project only while he was in New
Mexico. Moreover, Defendants’ argument gains little traction in this case because
Plaintiffs could just as easily assert that Delarosa’s status as a Colorado citizen was
fortuitous for Defendants, given that the conduct causing his injury occurred in New
Mexico, where they operate their businesses.

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Additionally, as just mentioned, the conduct causing Delarosa’s injuries occurred
in New Mexico. Defendants may be able to prove that the hose and coupling were not
designed, manufactured, or assembled in New Mexico, but they have made no such
argument at this point in the proceedings. Instead, Defendants contend that “to the
extent Plaintiff Delarosa has suffered any damages, such as medical expense, pain and
suffering, inconvenience, emotional stress, or loss of life enjoyment, [he] incurred these
injuries while in Colorado.” (Doc. # 37 at 12.) However, this argument confuses cause
and effect and conflates injury with damages. The Restatement directs the Court to
consider “the place where the conduct causing the injury occurred.” Restatement
§ 145(2)(b). Clearly the conduct that caused Delarosa’s injury consists of the actions
leading up to, and culminating in, the tear or rip in the pumping hose that allowed the
concrete to strike him. The Court’s focus is on where such actions occurred, not on
the location at which Delarosa continues to endure the lasting effects of his injuries.
Similarly, medical expenses, pain and suffering, inconvenience, etc., are damages for
which a plaintiff often seeks compensation because of an injury he has experienced.
See, e.g., Lymon v. Aramark Corp., 499 Fed. Appx. 771, 776 (10th Cir. Oct. 11, 2012)
(unpublished) (describing claim of “damages for personal injury”). Again, in the instant
case, the Court’s focus is on where the conduct causing Delarosa’s injury occurred, not
on where his damages have accrued. See Restatement § 146 cmt. d. (noting that when
“conduct and injury occur in [the] same state[,]” such state “will usually be the state of
dominant interest, since the two principal elements of the tort, namely, conduct and
injury, occurred within its territory.”).

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Further, as previously noted, while Plaintiffs are Colorado citizens and residents,
Defendants are New Mexico businesses, domiciled and doing business in that state at
all times relevant to Plaintiffs’ Complaint. Being from Colorado does not materially affect
Plaintiffs’ claims, 4 especially considering that any conduct by Delarosa, which
Defendants might allege constitutes contributory fault, also occurred in New Mexico.
See id. § 164 cmt. b. (explaining that when the plaintiff’s conduct, “which is claimed to
constitute contributory fault,” occurs in the same state in which he was injured, “the local
law of this state will usually be applied to determine whether the plaintiff’s conduct
amounted to contributory fault and if so, whether the effect of this fault is to preclude
recovery by the plaintiff in whole or in part.”). Finally, the parties agree that, at least as
between Delarosa and Coyote, no relationship existed between the parties prior to the
accident. (Doc. ## 36 at 9; 37 at 13.) Because the accident occurred in New Mexico,
the relationship between the parties, if any, was also centered there. 5
4

Defendants frame this case as “aris[ing] in connection with a workers compensation claim
brought by Plaintiff Antonio Delarosa against his employer, Ames Construction[,]” and they
assert that “Delarosa seeks economic damages for medical expenses and lost wages in order
to satisfy Phoenix’s right of subrogation . . . .” (Doc. # 37 at 2, 9.) A plain reading of Plaintiffs’
Complaint (Doc. # 1) and, especially, a plain reading of Phoenix’s Complaint in Intervention
(Doc. # 17), demonstrate that Defendants err in their conception of Plaintiffs’ case. Plaintiffs
seek damages – premised on negligence, strict liability, and loss of consortium claims – for
injuries Delarosa suffered, while Phoenix asserts a right of subrogation “[p]ursuant to C.R.S.
§ 8-41-203” to recover “all monies expended to, and/or on behalf of,” Delarosa (id. at 2).
As such, Plaintiffs being from Colorado, and Delarosa having filed for worker’s compensation
there, does affect Phoenix’s claim – a point to which, as Phoenix emphasizes, no party
disagrees. (Doc. # 43 at 1-2 (“There is no legal dispute that Plaintiff DeLaRosa [sic] has
requested and received benefits under the Colorado Workers Compensation statutory scheme.
Thus, there is no dispute that Phoenix’s claim of subrogation for the benefits paid also arises
under the Colorado statutes.”).)

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In asserting that Delarosa’s relationship with Coyote was centered in New Mexico, Plaintiffs
argue, as they do throughout their briefing, that the Court should consider a subcontract Ames
allegedly entered into with Coyote. (Doc. # 36 at 9.) According to Plaintiffs, the subcontract
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In addressing these contacts, the Court has also considered the factors listed in
§ 6 of the Restatement and has found that none of these factors alter the presumption
that New Mexico law governs. In a tort case, the factors that carry the greatest weight
are: (1) the needs of the interstate system; (2) the relevant policies of the forum; (3) the
relevant policies of other interested states; and (4) ease of determination and
application of the law to be applied. Restatement § 145 cmt. b. First, given that the
only contact between the parties occurred in New Mexico, the needs of the interstate
system are best satisfied by applying New Mexico law. See, e.g., Vignola v. Gilman,
854 F. Supp. 2d 883, 888 (D. Nev. 2012) (determining that the needs of the interstate
system were best satisfied by applying Colorado law given the “volume of contacts”
between the parties that occurred there). Second, because Delarosa’s injury and the
conduct that caused it both occurred in New Mexico, New Mexico’s interest in having its
policies applied, in particular, its policies as to comparative fault and the amount of
recoverable non-economic damages, trumps Colorado’s interest. See Restatement
§ 146 cmt. d. (“The state where the defendant’s conduct occurs has the dominant
interest in regulating it and in determining whether it is tortious in character. Similarly,
the state where the injury occurs will, usually at least, have the dominant interest in

states: “Any disputes arising out of this Subcontract shall be controlled by the law in effect at
the location of the Project . . . .” (Id. at 3.) However, Plaintiffs’ claims do not arise out of Ames’s
subcontract with Coyote, which was apparently for the provision of labor and materials. (See
id.) Rather, they arise out of Defendants’ alleged negligence and strict liability. See, e.g.,
Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., No. 12-cv-00587, 2013 WL 2114372, at *5
(D. Colo. May 15, 2013) (unpublished) (noting that “[t]ort claims . . . do not arise out of a
contract.”). As such, the Court rejects Plaintiffs’ argument to the extent it relies on the
subcontract between Ames and Coyote. Thus, the Court will deny Plaintiffs’ “Request to
Supplement Reply Brief on Choice of Law,” in which Plaintiffs seek to further their contractbased argument with additional documentary evidence. (Doc. # 46.)
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determining whether the interest affected is entitled to legal protection.”). Finally, ease
in determining and applying New Mexico law exists in this case, given that Plaintiffs’
negligence and strict liability claims are relatively straightforward and well-recognized
claims under New Mexico law. See, e.g., Smith ex rel. Smith v. Bryco Arms, 33 P.3d
638, 645 (N.M. App. 2001) (“It is well-established in New Mexico negligence law that
manufacturers and distributors of products have a duty to use ordinary care in
producing products so as to avoid a foreseeable risk of injury cause by a condition
of the product or manner in which it is used.”).
Accordingly, the rights and liabilities of Plaintiffs and Defendants will be
determined by New Mexico law for Plaintiffs’ negligence and strict liability claims
because, for those claims, New Mexico has the most significant relationship to the
occurrence and the parties under the principles stated in the Restatement. 6
B.

LOSS OF CONSORTIUM
As to Mendoza-Rios’s claim for loss of consortium, however, the Court concludes

that Colorado bears the most significant relationship under the Restatement test.
Loss of consortium “is not just a damage claim but a claim for relief contingent on
primary liability.” Doe v. Nevada Crossing, Inc., 920 F. Supp. 164, 168 (D. Utah 1996).
As stated by the Nevada Crossing court, loss of consortium “is separate and distinct
from the claim of the injured spouse. It lies in the law of marital relationships. It is
derivative only in the sense that unless one’s spouse has sustained a personal injury it

6

To be clear, this determination applies to both the “rules of conduct” and the “rules of recovery”
for these claims. See Restatement § 145; see also id. § 171 (“The law selected by application
of the rule of § 145 determines the measure of damages.”).
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does not apply, but it is a separate claim for relief.” Id. at 168 n.5 (quotation marks and
citations omitted). As a separate claim, “it is appropriate to segregate the claim [for loss
of consortium] from primary liability for making a choice of law determination.” Id.
In doing so, the Court applies the same Restatement analysis as above.
As opposed to the injury underlying Plaintiffs’ negligence and strict liability claims,
the injury for Mendoza-Rios’s loss of consortium claim took place in Colorado, because
that is where the harm to her relationship with Delarosa occurred, despite the fact that
the conduct causing the injury took place in New Mexico. See id. at 167. For the loss
of consortium claim, Plaintiffs’ status as Colorado residents takes on added importance
since it is the place of their consortium. Id. (“For the purposes of a claim of loss of
consortium the residence and domicile of plaintiffs is the more relevant situs since it is
the place of the consortium of plaintiffs.”). That Defendants are New Mexico businesses
has no impact on where Plaintiffs have chosen to base their relationship, which is
clearly centered in Colorado. As such, Colorado has the most significant relationship
to the loss of consortium claim.
This result accords with the “majority view, and the more recent trend, [which] is
that the law of the family domicile governs a conflicts question in an action for loss of
either spousal or parental consortium.” Wright v. Minter, 736 F. Supp. 1024, 1028 (W.D.
Mo. 1990) (holding that “[w]hile Missouri has a significant interest in the issues involved
in the underlying medical malpractice and products liability claims, it has little, if any,
interest in the loss of parental consortium claim which arises only because of a familial
relationship centered in Iowa”); Avis Rent-A-Car Sys., Inc. v. Abrahantes, 559 So.2d

12

1262, 1264 (Fla. App. 1990) (“Claims for loss of consortium are governed by the law of
the state where the marriage is domiciled, rather than by the law of the state where the
injury occurred.”); Sullivan v. Bankhead Enters., Inc., No. 84-1186-N, 1986 WL 13947,
at *7 (D. Mass. Dec. 11, 1986) (unpublished) (even though accident occurred in Maine,
loss of consortium claim would be governed by Massachusetts law because
“Massachusetts has a stronger interest in determining the rights and liabilities of its
residents vis-à-vis each other than does Maine”); Felch v. Air Florida, Inc., 562 F. Supp.
383, 386-87 (D.D.C. 1983) (Washington, D.C., where the accident occurred, “does have
a strong interest in punishment and deterrence of wrongful conduct causing harm to the
plaintiffs within its borders. However, it has little, if not no, interest in the marital (or premarital) relationship of Virginia residents.”). This result is also consistent with the
language of § 146 of the Restatement, which provides that, if for a particular issue in
a personal injury action, one state has a more significant relationship, then the local law
of that state should govern the resolution of that issue.
The Court determines that it has reached the correct result notwithstanding the
language in Restatement § 158 comment a., which states that “when a spouse suffers
personal injury the law selected by application of the rule of § 145 should determine
whether the other spouse may recover for loss of consortium . . . .” Although § 158(1)
states that the “law selected by application of the rule of § 145 determines whether
the interest affected is entitled to legal protection,” § 145 goes on to state that the
“applicable law will usually be the local law of the state where the injury occurred.”
Restatement § 158 (emphasis added). In the instant case, as already mentioned, the

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loss of consortium injury suffered by Mendoza-Rios – in the form of loss of Delarosa’s
companionship, services, and conjugal affection – occurred in Colorado, where Plaintiffs
live. Further, comment a. also explains that “[t]he state where the injury occurred has
a relatively greater interest, and the state where the wrongful conduct occurred has a
lesser interest, in the question whether actionable injury has been sustained than in
whether the defendant’s conduct was tortious.” Id. § 158 cmt. a. Such is the case here.
Defendants’ allegedly wrongful conduct occurred in New Mexico, and Delarosa suffered
personal injuries there. However, the injury to Plaintiffs’ consortium occurred in
Colorado. See Nevada Crossing, Inc., 920 F. Supp. at 168 (although personal injury
occurred in Nevada, Utah law would be applied to loss of consortium claim, because
that was the state in which the plaintiffs’ “marital union was located”).
Accordingly, as to Mendoza-Rios’s claim for loss of consortium, the Court will
apply Colorado law.
III. CONCLUSION
For the foregoing reasons, it is ORDERED that “Defendant Coyote Pumping
Services, Inc.’s Motion for Application of Colorado Law to Plaintiff Antonio Delarosa’s
Claims” (Doc. # 37) is DENIED. It is
FURTHER ORDERED that, in keeping with the “Memorandum on Choice of Law”
(Doc. # 36), filed by Plaintiffs Antonio Delarosa and Rosanna Mendoza-Rios, the Court
will apply New Mexico law to Plaintiffs’ negligence and strict liability claims; however,
the Court will apply Colorado law to Mendoza-Rios’s claim for loss of consortium. It is

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FURTHER ORDERED that Plaintiffs’ “Request to Supplement Reply Brief on
Choice of Law” (Doc. # 46) is DENIED.
DATED: August

20 , 2013
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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