Leonard et al v. Fitzhugh et al
Filing
35
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT 24 , by Judge William J. Martinez on 6/19/2015.(dhans, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-2294-WJM-KLM
FERNANDO LEONARD, and
MOANA LEONARD f/k/a MOANA SYLVESTER,
Plaintiffs,
v.
EDWARD D. FITZHUGH,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT
Plaintiffs Fernando and Moana Leonard filed this action on August 20, 2014
against Defendants William Babich and Edward Fitzhugh, alleging negligence and
unfair and deceptive business practices in connection with Defendants’ alleged legal
malpractice. (ECF No. 2.) On November 3, 2014, Plaintiffs filed a stipulated Motion to
Dismiss Defendant Babich from this suit, which the Court granted. (ECF Nos. 19 & 20.)
On November 5, 2014, the Clerk of the Court entered default against Defendant
Fitzhugh based on his failure to file an answer or otherwise defend this matter. (ECF
No. 23.) Plaintiffs filed a Motion for Default Judgment against Fitzhugh on November
21, 2014, and a Motion for Hearing on May 6, 2015. (ECF Nos. 24 & 27.)
The Court held an evidentiary hearing on the Motion for Default Judgment on
May 15, 2015, after which the Court ordered Plaintiffs to submit proposed findings of
fact and conclusions of law and supplemental briefing on or before June 15, 2015.
(ECF Nos. 28, 29, & 30.) Plaintiffs submitted the requested documents on May 27,
2015. (ECF Nos. 31 & 32.) The Court further ordered Plaintiffs to provide
supplemental briefing on Defendant Fitzhugh’s bankruptcy petition, which was filed on
June 15, 2015. (ECF Nos. 33 & 34.) The following are the Court’s final findings of fact
and conclusions of law with respect to Plaintiffs’ award of damages against Defendant
Fitzhugh.
I. LEGAL STANDARD
Before granting a motion for default judgment, the Court must take several steps.
First, the Court must ensure that it has personal jurisdiction over the defaulting
defendants and subject matter jurisdiction over the action. See Williams v. Life Sav. &
Loan, 802 F. 2d 1200, 1202-03 (10th Cir. 1986). Next, the Court should consider
whether the well-pleaded allegations of fact, which are deemed admitted by a
defendant in default, support a judgment on the claims against the defaulting
defendants. See Fed. Fruit & Produce Co. v. Red Tomato, Inc., 2009 WL 765872, at *3
(D. Colo. March 20, 2009) (“Even after entry of default, however, it remains for the court
to consider whether the unchallenged facts constitute a legitimate basis for the entry of
a judgment.”) (citations omitted). “In determining whether a claim for relief has been
established, the well-pleaded facts of the complaint are deemed true.” Id. (citing
Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th
Cir. 1983)). Once the Court is satisfied that a default judgment should be entered, the
moving party must supply proof as to the amount of damages. See Klapprott v. United
States, 335 U.S. 601, 611-12 (1949).
2
II. FINDINGS OF FACT
A.
The Events Giving Rise to Plaintiffs’ Lawsuit
1.
Plaintiffs, a married couple, were tenants of a rental property located at 6837
Highway 140, Hesperus, Colorado in 2011. (Compl. (ECF No. 2) at 1.)
2.
In the early morning hours of July 9, 2011, a propane gas explosion occurred,
causing the upstairs kitchen to fall to the room below where Plaintiffs were
sleeping. (Id. at 2.)
3.
The gas explosion also caused a fire. (Id. at 2-3.)
4.
As a result of the gas explosion, Plaintiffs suffered injuries, including but not
limited to burns. (Id.) Ms. Leonard testified that she suffered from a burn on her
heel and other “minor burns.” (Test. of Moana Leonard.) Plaintiffs’ Complaint
states that Mr. Leonard received severe burns over 25% of his body. (Compl. at
2.) Mr. Leonard testified that the burns on his legs and other areas of his body
required extensive medical treatment, including skin grafts. (Test. of Fernando
Leonard.) According to Mr. Leonard, those portions of his body that received
skin grafts cause him intense pain when exposed to sunlight. (Id.) Mr. Leonard
further testified that he continues to experience muscle spasms and other lasting
damage due to his injuries. (Id.)
5.
Plaintiffs retained the services of Defendant Edward Fitzhugh, an Arizona
attorney, by written fee agreement, to represent them in a Colorado state district
court action against Amerigas and Plaintiffs’ landlord to seek compensation for
their injuries. (Compl. at 3; Test. of Moana Leonard.)
3
6.
Fitzhugh subsequently affiliated with Colorado attorney William Babich as local
counsel for the Colorado state court action. (Id.)
7.
Babich agreed to act as local counsel pursuant to a co-counsel f ee agreement.
(Compl. at 4.)
8.
Babich’s involvement in the case was contingent upon Fitzhugh seeking
admission pro hac vice, handling all discovery, attending depositions, and
advancing costs. (Id.)
9.
During the course of the state court litigation, Fitzhugh failed to enter his
appearance pro hac vice, failed to participate in the litigation, and failed to front
costs as agreed. (Id.)
10.
After attempts by Babich to persuade Fitzhugh to enter his appearance pro hac
vice, and to enlist Fitzhugh’s help in preparing for trial of the state court action,
Babich withdrew from representation of the Plaintiffs in November 2013. (Id. at
3-4.)
11.
Plaintiffs’ state court action proceeded to the pretrial conf erence where Plaintiffs,
acting under the assumption that Fitzhugh had done everything necessary to
pursue their case, went unrepresented. (Id. at 4; Test. of Moana Leonard.)
12.
Fitzhugh was provided a copy of the motion to withdraw, but continued to take no
action on behalf of Plaintiffs, other than to maintain that he continued to
represent them. (Compl. at 4.)
13.
Based on the disclosure and other procedural violations, the state district judge
held at the pretrial conference that no further continuances of the April 2014 trial
4
would be granted, and all witnesses and exhibits not disclosed within one week
would be excluded at trial. (Id.)
14.
More than a week passed without such disclosures, precluding Plaintiffs from
introducing any exhibits or witnesses at trial. (Id.)
15.
On March 20, 2014, the state court defendants took Plaintiffs’ depositions, at
which point it became clear that Plaintiffs could not establish liability against the
defendants. (Id. at 4-5.) The claims against both defendants were therefore
dismissed in exchange for payment by Amerigas of $5,000.00, and an
agreement by Plaintiffs’ landlord not to seek attorney’s fees and costs. (Id.)
16.
Up to and including the date of depositions, one month before the scheduled trial
date, Fitzhugh was in telephonic contact with Plaintiffs, maintaining that he
continued to represent them. (Id.; Test. of Moana Leonard.)
17.
Fitzhugh appears to have largely ignored expert reports asserting zero liability in
the two state court defendants. (Compl. at 5.)
18.
During the time of Fitzhugh’s purported representation of Plaintiffs, Fitzhugh was
suspended from the practice of law in Arizona—his only state of
admission—from March 29, 2013 through December 16, 2013; this information
was provided to Plaintiffs in correspondence from Fitzhugh, which Plaintiffs
relayed to Babich who had been unaware of Fitzhugh’s suspension. (Test. of
Fernando Leonard; Ex. 3.)1
1
Plaintiffs’ exhibits were admitted into evidence in hard-copy form during the
evidentiary hearing on May 15, 2015, but were not uploaded to the CM/ECF case management
system, and therefore have no corresponding docket number.
5
19.
Plaintiffs subsequently filed the instant litigation against Babich and
Fitzhugh. (See generally Compl.)
20.
Babich filed a Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6), and Plaintiffs
stipulated to Babich’s dismissal. (ECF No. 17.)
21.
Following Fitzhugh’s failure to answer Plaintiffs’ complaint or otherwise appear in
this litigation, the Clerk of Court entered default against Fitzhugh on November 5,
2014. (ECF No. 23.) Plaintiffs subsequently moved for default judgment (ECF
No. 24), and a damages hearing was held on May 15, 2015, during which
Plaintiffs submitted testimony and evidence of the damages outlined herein.
(ECF No. 30.)
B.
Plaintiffs’ Damages
1.
22.
Past Medical Expenses
Plaintiff Moana Leonard suffered relatively minor burns, requiring brief
hospitalization and treatment. (Test. of Moana Leonard; Ex. 2.)
23.
Ms. Leonard’s medical expenses total $3,432.52, including $1,432.52 for
ambulance transportation by Durango Fire & Rescue following the explosion,
and approximately $2,000.00 in medical bills from Southwest ER
Physicians/Mercy Medical Center. (Ex. 2; Test. of Moana Leonard.)
24.
The difference between the original total of Ms. Leonard’s Southwest ER
Physicians bill ($349.00), and the amended total of $2,000.00, is based on Ms.
Leonard’s testimony that she received a recent bill with the updated $2,000.00
total based on the length of time the original amount went unpaid and charges
associated therewith. (Ex. 2; Test. of Moana Leonard.)
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25.
Plaintiff Fernando Leonard was burned much more severely over twenty-five
percent of his body. (Compl. at 2.) (Fernando L. Test.; Exs. 1, 2.)
26.
Mr. Leonard’s medical bills, as documented in Exhibit 2, total $130,115.79, and
include:
a.
b.
c.
d.
e.
f.
g.
h.
i.
San Juan Regional Medical Center ER, $10,656.16;
Air Care1 to San Juan Regional Medical Center, $11,606.16;
Air Care2 to University of New Mexico Medical Center, $17,046.00;
Ambulance service, $299.00;
San Juan regional Medical Center ER Physicians, $677.00;
Four Corners Radiology, $29.11;
University of New Mexico Health Sciences Center, $72,590.36;
Albuquerque Ambulance, $569.00; and
UNM Medical Group, $16,643.00.
(Exs. 1 & 2.)
2.
27.
Future Medical Expenses
Plaintiffs’ future medical costs are unknown to any degree of legal certainty, as
Plaintiffs presented no testimony or documentation on precisely what their future
medical expenses might be. The Court therefore has no evidence on which to
base a finding of Plaintiffs’ entitlement to future medical expenses.
3.
28.
Costs
Plaintiffs have expended costs of $533.70, including filing fees of $403.70 and
service of process fees of $130.00. (Aff. of Christian Hatfield; Test. of Moana
Leonard.) Additional costs for Plaintiffs’ counsel’s appearance at the May 15,
2015 damages hearing totaled $3,113.00, resulting in total costs of $3,646.70.
(Aff. of Christian Hatfield.)
4.
29.
Lost Wages
Mr. Leonard testified that he missed approximately 280 hours of work due to his
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injuries. (Test. of Fernando Leonard.) Although Mr. Leonard did not testify as to
his hourly wage, Plaintiffs’ counsel stated in his Proposed Findings of Fact that
Mr. Leonard earned $26.00 per hour. (ECF No. 31 at 6.) Althoug h this
information should have been provided in an affidavit from Mr. Leonard, or
elicited through his testimony, the Court will accept this figure as accurate
because Plaintiffs’ counsel is an officer of this Court. The Court therefore finds
that Mr. Leonard sustained lost wages in the amount of $7,280.00.
5.
30.
Personalty
Plaintiffs lost all of their belongings in the fire, which included clothing, furniture,
and turquoise jewelry acquired by Ms. Leonard over the course of years, which
she testified was worth $3,000.00. (Test. of Moana Leonard.)
6.
31.
Pain and Suffering Damages
Mr. and Ms. Leonard testified that on the night of the explosion, Mr. Leonard
woke up screaming and realized that the kitchen above had collapsed on his and
Ms. Leonard’s bedroom. (Test. of Fernando Leonard and Moana Leonard.)
Surrounded by flames, Mr. Leonard quickly escorted Ms. Leonard from the
home, and collapsed. (Id.) A neighbor carried Mr. Leonard from the scene and
placed him in a chair. (Id.) Mr. Leonard testified that he was still conscious at
this point, saw his burned skin fall down around his ankles as he waited for
medical help, and that his injuries were extremely painful. (Test. of Fernando
Leonard.) Plaintiffs’ Complaint states that Mr. Leonard received severe burns
over 25% of his body. (Compl. at 2.)
32.
Ms. Leonard witnessed her husband’s injuries, traveled repeatedly to be with him
8
during his hospitalization and recovery, and was also injured, albeit less
severely. (Test. of Moana Leonard.)
33.
Mr. Leonard further testified that, before the explosion, he slept well throughout
the night. (Test. of Fernando Leonard.) However, he now regularly awakes in
the middle of the night and cannot fall back asleep for hours at a time. (Id.) Mr.
Leonard testified that this occurs every other night, and that he frequently goes
to work feeling tired. (Id.)
34.
Plaintiffs’ Exhibit One contains several pictures of the devastation caused by the
explosion, including Plaintiffs’ destroyed home, and Plaintiffs’ injuries. The Court
finds these photos, the accompanying medical records, and Plaintiffs’ testimony
to be compelling evidence of Plaintiffs’ pain and suffering. (Exs. 1 & 2; Test. of
Moana and Fernando Leonard.)
7.
35.
Deceptive Trade Practices Damages
Plaintiffs submitted a post-hearing brief regarding the award of damages for
Defendant’s deceptive trade practices. Based on the evidence presented at the
hearing and Plaintiffs’ briefing on Colorado’s Consumer Protection Act, Plaintiffs
have not demonstrated the existence of a harm to the public as opposed to a
merely private wrong. See Crowe v. Tull, 126 P.3d 196, 204, 208 (Colo. 2006)
(holding that the Colorado Consumer Protection Act “cannot be used to remedy
a purely private wrong.”). The Court accordingly finds that Plaintiffs are not
entitled to damages on their claim for deceptive trade practices under the
Colorado Consumer Protection Act. The Court also declines to award Plaintiffs
attorneys’ fees, as Plaintiffs have not submitted any authority other than the
9
Consumer Protection Act that suggests their entitlement to such fees.
8.
36.
Physical Impairment and Disfigurement Damages
Plaintiffs further seek damages for physical impairment or disfigurement. The
Court finds, based on the facts recited above, that Mr. Leonard is entitled to such
damages. Because Ms. Leonard testified she suffered only minor burns, the
Court declines to award her damages for physical impairment and disfigurement.
(Test. of Moana Leonard.) The Court will determine the proper amount of Mr.
Leonard’s physical impairment and disfigurement damages below.
III. CONCLUSIONS OF LAW
A.
Defendant’s Pending Bankruptcy Case
The Court must first determine whether Defendant’s ongoing bankruptcy case
affects the Court’s ability to enter a default judgment in this matter. On May 30, 2013,
Defendant filed a voluntary Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court
for the District of Arizona. In re Fitzhugh, 2:13-bk-09235 (Bankr. D. Ariz. 2013); (ECF
No. 34 at 1.)
A Chapter 7 petition “discharges the debtor from all debts that arose before the
date of the order for relief.” 11 U.S.C. § 727. When a debtor files a bankruptcy petition,
all actions against his estate are automatically stayed pursuant to 11 U.S.C. § 362.
However, the Bankruptcy Code does not stay judicial proceedings that could not have
been commenced prior to the bankruptcy petition, or proceedings to recover a claim
against the debtor that did not arise before the commencement of the bankruptcy case.
11 U.S.C. § 362(a)(1); see also Matter of Growth Dev. Corp., 168 B.R. 1009, 1014
10
(Bankr. N.D. Ga. 1994) (“Proceedings and claims that arise postpetition are not subject
to the automatic stay. Rather, it is the enforcement of these claims that may be
prohibited by the automatic stay.”) (emphasis in original); In re Reynard, 250 B.R. 241,
244 (Bankr. E.D. Va. 2000) (automatic stay does “not prevent the commencement of a
lawsuit to collect a post-petition debt . . . [and a] “post-petition creditor . . . has the rig ht
to initiate a suit against a debtor and obtain a judgment for a post-petition debt without
violating the automatic stay”).
This action and the Court’s issuance of a default judgment against Defendant do
not violate the automatic stay. Plaintiffs’ claims could not have arisen until after
Defendant’s bankruptcy filing. In Colorado, “[t]he statute of limitations for a legal
malpractice action commences running at the time the client discovers, or through use
of reasonable diligence should have discovered, the negligent act of the attorney.”
Broker House Int’l, Ltd. v. Bendelow, 952 P.2d 860, 863 (Colo. App. 1998). T he Court
finds that, at the earliest, Plaintiffs discovered, or should have discovered, Defendant’s
malpractice in November 2013 when Mr. Babich withdrew from representation due to
Defendant’s failure to comply with the terms of the co-counsel agreement with Plaintiffs.
(ECF No. 2 at 3.) Therefore, because Defendant’s bankruptcy petition was filed on May
30, 2013, this action could not have been commenced prior to, and Plaintiffs’ claims
against Defendant did not arise before, the commencement of the bankruptcy case.
11 U.S.C. § 362(a)(1). The Court accordingly proceeds with its analysis below.
B.
The Court’s Jurisdiction
The Court finds that it has proper subject matter jurisdiction pursuant to 28
11
U.S.C. § 1332 because Plaintiffs and Defendant are diverse and the amount in
controversy exceeds $75,000.00. (ECF No. 2.) The Court also finds that it has
personal jurisdiction over Defendant because Defendant negotiated and entered into a
written fee agreement with Colorado residents, and Defendant’s breach of that
agreement caused foreseeable harm to Plaintiffs in Colorado. See Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 479 (1985). Therefore, the Court has jurisdiction over all
claims and parties in this action.
C.
Plaintiffs’ Negligence Claim
Plaintiffs’ Complaint asserts that Defendant acted negligently during his
representation of Plaintiffs in the underlying state court action, which caused them to
sustain the losses described above. (ECF No. 2.) To succeed on a legal malpractice
claim founded in negligence, “a plaintiff must establish that (1) the attorney owed a duty
of care to the plaintiff; (2) the attorney breached that duty; and (3) the attorney
proximately caused damage to the plaintiff.” Luttgen v. Fischer, 107 P.3d 1152, 1154
(Colo. App. 2005). “Establishing causation in a legal malpractice action requires the . . .
plaintiff [to] demonstrate that the claim underlying the malpractice action would have
been successful if the attorney had acted in accordance with his or her duties.” Id.
Except in “clear and palpable cases,” expert testimony is necessary to establish the
standards of professional conduct in legal malpractice actions. McCafferty v. Musat,
817 P.2d 1039, 1044 (Colo. App. 1990).
The Court finds that Defendant was negligent in his representation of Plaintiffs,
and that Plaintiffs would not have incurred the damages they now seek but for
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Defendant’s conduct. Defendant represented to Plaintiffs, and Mr. Babich as local
counsel, that he would appear on Plaintiffs’ behalf pro hac vice in the state court action.
(ECF No. 2 at 3.) Defendant failed to do so, and Plaintiffs were consequently prohibited
from introducing any exhibits or witnesses at trial. (Id. at 4.) While Amerigas and
Plaintiffs’ landlord were dismissed from the suit, the reports of experts retained by
Plaintiffs that could have established liability in Amerigas and the landlord were
excluded from trial due to Defendant’s failure to timely disclose them. (Id. at 5.)
Moreover, Defendant largely ignored expert reports assessing zero liability in Amerigas
and Plaintiffs’ landlord. (Id.) Expert testimony is not necessary for the Court to
determine that Defendant’s conduct was negligent and constituted a “clear and
palpable” deviation from the acceptable standards of professional conduct. McCafferty,
817 P.2d at 1044. The Court accordingly finds that Defendant’s negligence prevented
Plaintiffs from asserting their claims against two parties potentially responsible for their
injuries, and that the state court action would have succeeded, whether against the
named defendants or others, in the hands of competent counsel. Therefore, the Court
will award Plaintiffs damages on the negligence count of their Complaint.
Here, the available categories of damages include: (1) economic damages,
including lost wages, the value of destroyed personal property, and medical expenses
that are reasonable in amount and medically necessary, see Kendall v. Hargrave, 349
P.2d 993, 994 (Colo. 1960); (2) non-economic damages, including pain and suffering,
see Van Schaack & Co. v. Perkins, 272 P.2d 269, 272 (1954); see also Colo. Rev. Stat.
§§ 13-21-102.5(3); (3) physical impairment or disfigurement damages, see Cooley v.
13
Paraho Dev. Corp., 851 P.2d 207, 210 (Colo. Ct. App. 1992); see also Colo. Rev. Stat.
§ 13-21-102.5(5) (cap on non-economic damages not to be construed to limit separate
damages for physical impairment or disfigurement). The Court discusses each
category of damages below.
1.
Economic Damages
Ms. Leonard testified that her medical expenses totaled $3,432.52, and
submitted medical records and bills in support thereof. (Test. of Moana Leonard; Exs. 1
& 2.) Mr. Leonard submitted medical records and bills documenting medical expenses
of $130,115.79. (Exs. 1 & 2.) The Court has reviewed Plaintiffs’ exhibits and finds that
these medical expenses were reasonable and medically necessary as a result of the
explosion. The Court accordingly awards Ms. Leonard $3,432.52 and Mr. Leonard
$130,115.79 as compensation for their medical expenses incurred as a direct result of
the explosion and Defendant’s negligence.
Mr. Leonard testified that he missed 280 hours of work due to his hospitalization
and subsequent recovery. (Test. of Fernando Leonard.) The Court also accepts that
Mr. Leonard earned $26.00 per hour. The Court therefore awards Mr. Leonard
$7,280.00 in damages for lost wages.
Ms. Leonard testified that she and Mr. Leonard lost approximately $3,000.00 in
jewelry and other personal property due to the explosion. (Test. of Moana Leonard.)
The Court found Ms. Leonard’s testimony to be credible on this issue, and therefore
awards Plaintiffs $3,000.00 in damages for their personal property that was destroyed.
Plaintiffs’ counsel submitted an affidavit that documented $3,646.70 in costs
expended in this matter to date. (ECF No. 31-1.) Plaintiffs are therefore awarded
14
$3,646.70 in costs pursuant to Federal Rule of Civil Procedure 54(d), which provides
that costs, other than attorneys’ fees, should be awarded to a prevailing party.
2.
Non-economic Damages and Physical Impairment and Disfigurement
Mr. Leonard requests pain and suffering damages in the amount of $500,000.00.
(ECF No. 31 at 9.) Colorado law imposes a limitation on damages for non-economic
injury of $250,000.00 per claimant, or $500,000.00 per claimant if the Court finds
“justification by clear and convincing evidence therefor.” Colo. Rev. Stat.
§ 13-21-102.5(3)(a). However, these figures are adjusted for inflation, allowing the
Court to award $468,010.00 for a successful claim under § 13-21-102.5(3)(a), which
may be increased upon clear and convincing evidence to a maximum of $936,030.00.
Colo. Rev. Stat. § 13-21-102.5(3)(c)(III). These limitations do not apply to awards for
physical impairment or disfigurement. Colo. Rev. Stat. § 13-21-102.5(5).
The evidence shows that the explosion harmed Plaintiffs physically and mentally,
resulting in substantial pain and suffering. Some of this harm, particularly Mr.
Leonard’s burns and skin grafts, will cause Plaintiffs pain and suffering for the
remainder of their lives. Moreover, Mr. Leonard’s burns have resulted in serious
physical impairment and disfigurement. The Court therefore awards Ms. Leonard
$12,865.04 in pain and suffering damages, as requested. (ECF No. 31 at 9.) The
Court declines to award Ms. Leonard any damages for her physical impairment or
disfigurement based on her testimony that she suffered only minor burns. (Test. of
Moana Leonard.) The Court further declines to award Mr. Leonard his requested sum
of $500,000.00 for pain and suffering as he has not presented clear and convincing
evidence suggesting his entitlement to such an award. The Court instead awards Mr.
15
Leonard $250,000.00 for his pain and suffering, and an additional $100,000.00 f or his
physical impairment and disfigurement.
3.
Total Damages
In sum, the Court finds that Ms. Leonard sustained $6,432.52 in econom ic
damages, and $12,865.04 in non-economic damages. The Court further finds that Mr.
Leonard sustained $137,395.79 in econom ic damages, and $350,000 in non-economic
damages. Plaintiffs are further awarded $3,646.70 in costs. The Complaint lastly
requests pre-judgment interest on the foregoing amounts. (ECF No. 2.) In accordance
with Colorado Revised Statute § 13-21-101, Plaintiffs are entitled to interest on their
damages from the date this action accrued 2, or July 9, 2011, when the explosion
occurred, at a rate of 9% compounding annually.3 Ms. Leonard is accordingly awarded
2
Plaintiffs did not address the date on which their claims accrued. Schuessler v.
Wolter, 310 P.3d 151, 168 (Colo. App. 2012) (“Pursuant to section 13-21-101, a party must
request interest from either the date suit is filed or the date an action accrues.”). Nonetheless,
the Court awards prejudgment interest from the date of the explosion, July 9, 2011, and finds
that this is the date on which Plaintiffs’ claims accrued. See McCafferty, 817 P.2d at 1046
(“Moreover, because [the defendant’s] legal malpractice was an injury personal to [the plaintiff],
. . . the trial court erred in denying [the plaintiff] prejudgment [interest] as of the date of the
accident, as of which date he would have been entitled to prejudgment interest in the underlying
case absent [the defendant’s] malpractice.”).
3
Plaintiffs are entitled to interest under Colorado Revised Statute § 13-21-101 even
though this is a malpractice action. McCafferty, 817 P.2d at 1046 (“We hold that if the case
underlying a malpractice action involves actual physical or mental pain and suffering, as here,
the injuries suffered by virtue of the malpractice are per se to be considered personal injuries”
for purposes of § 13-21-101). Plaintiffs are also entitled to interest on both their economic and
non-economic damages. David v. Sirius Computer Solutions, Inc., 779 F.3d 1209, 1210-11
(10th Cir. 2015) (holding that § 13-21-101 “does not limit prejudgment interest to cases
involving physical injuries, bodily injuries, or noneconomic damages. Instead, it permits interest
in any action brought seeking compensation for a personal injury without any apparent
consideration to the nature of the compensatory damages the jury happens to award”).
However, Plaintiffs are not entitled to interest on any losses attributable to the destruction of
their personal property, costs, or lost wages. Herod v. Colo. Farm Bureau Mut. Ins. Co., 928
P.2d 834, 838 (Colo. App. 1996) (Ҥ 13-21-101(1) . . . provides for prejudgment interest on
damages for personal injuries. An injury is personal when it impairs the well-being or the
16
$5,790.77 in interest, and Mr. Leonard is awarded $170,592.37 in interest.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Plaintiffs’ Motion for Default Judgment (ECF No. 24) is GRANTED IN PART AND
DENIED IN PART as detailed herein, and default judgment shall enter against
Defendant Edward D. Fitzhugh;
2.
Plaintiff Moana Leonard is awarded $19,297.56 in damages against Defendant
Edward D. Fitzhugh, and prejudgment interest pursuant to Colorado Revised
Statute § 13-21-101 in the amount of $5,790.77;
3.
Plaintiff Fernando Leonard is awarded $487,395.79 in damages against
Defendant Edward D. Fitzhugh, and prejudgment interest pursuant to Colorado
Revised Statute § 13-21-101 in the amount of $170,592.37;
4.
Plaintiffs are awarded $3,646.70 in costs;
5.
Plaintiffs shall have post-judgment interest as permitted by law; and
6.
The Clerk shall enter final judgment in accordance with this Order and shall
TERMINATE this case.
mental or physical health of the victim. In contrast, an injury is not personal when inflicted on
property.”).
17
Dated this 19th day of June, 2015.
BY THE COURT:
William J. Martínez
United States District Judge
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