Dakota Station II Condominium Association, Inc. v. Auto Owners Insurance Company

Filing 95

ORDER ON MOTION TO STRIKE by Magistrate Judge Nina Y. Wang on 2/5/16. The Clerk of the Court is DIRECTED to STRIKE the Notice of Non-Party at Fault 89 ; Owners Insurance Company's Motion to Strike Third Party Defendants Scott Benglen and Claim Solutions, LLC's Designation of Nonparties at Fault 91 is DENIED as MOOT; and Owners Insurance Company's Motion for Protective Order 90 is GRANTED IN PART and DENIED IN PART; and Owners is granted an extension of time up to and including 2/11/2016 to respond to Third-Party Defendant Scott Benglen's second set of interrogatories and requests for production of documents. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-2839-RM-NYW

DAKOTA STATION II CONDOMINIUM ASSOCIATION, INC.,
Plaintiff/Counterclaim Defendant,
v.
OWNERS INSURANCE COMPANY,
Defendant/Counterclaimant and Third-Party Plaintiff,
v.
SCOTT BENGLEN,
CLAIMS SOLUTIONS, LLC,
SUSAN CWIK,
GUNBARREL WEST REAL ESTATE COMPNAY, a Colorado corporation d/b/a
COUNTRYSIDE ASSET MANAGEMENT CORPORATION, and
HAVEN PROPERTY MANAGERS & ADVISORS,
Third-Party Defendants.

ORDER ON MOTION TO STRIKE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Owners Insurance Company’s Motion to Strike
Third Party Defendants Scott Benglen and Claim Solutions, LLC’s Designation of Nonparties at
Fault (“Motion to Strike”) [#91, filed Feb. 1, 2016], Owners Insurance Company’s Motion for
Protective Order (“Motion for Protective Order”), and the Notice of Withdrawal of Designation
of Non-Party at Fault (“Notice of Withdrawal”) [#94, filed Feb. 3, 2016]. The Motion to Strike

and Motion for Protective Order are before the undersigned Magistrate Judge pursuant to the
Order of Reference dated February 4, 2015 [#23], the Order Reassigning Magistrate Judge dated
February 10, 2015 [#24], the Memoranda dated February 1, 2016 [#92] and February 2, 2016
[#93], respectively.
On January 26, 2016, Third-Party Defendants Scott Benglen and Claims Solutions, LLC
filed a Notice of Non-Party at Fault giving notice that they designated Karen Wheeler and the
law firm of Levy Wheeler Waters, P.C. as non-parties at fault designated pursuant to C.R.S. §
13-21-1115 as responsible for claim damages against Claim Solutions and Mr. Benglen in
connection with payment of recoverable depreciation and/or contingent funds. [#89]. Ms.
Wheeler and the law firm of Levy Wheeler Waters, P.C. currently represent Defendant Owners
Insurance Company (“Owners”) in this case. See [#17].
On February 1, 2016, Owners filed a Motion to Strike, requesting that the court strike the
Notice as “disallowed” because the designation fails to meet the standards for such a designation
under Colorado law. [#91]. On the same day, Owners filed a Motion for a Protective Order
relating to the Notice of Non-Party at Fault. [#90]. Owners represented that if the non-party
designation was not stricken, Owners’ present lawyers would be required to appear on the
verdict form in this case, might have been required to testify as witnesses, and might not have
been able to continue to represent Owners. [Id. at 2-3]. Owners stated that it should not be
required to respond to discovery in this case until after a ruling from the court on its Motion to
Strike. Accordingly, Owners requested a protective order that would provide it until 7 days after
the resolution of its Motion to Strike to respond to any written discovery that would otherwise be
due sooner and requiring that Owners’ deposition not take place until after the issue is resolved.

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[Id. at 5]. Owners represented that the only written discovery that would be immediately
affected by this issue were its responses to Mr. Benglen’s second set of interrogatories and
requests for production of documents, which would have otherwise been due on February 1,
2016. [Id. at 4].
Two days later, on February 3, 2016, Third-Party Defendants Scott Benglen and Claims
Solutions, LLC filed a Notice of Withdrawal of the Designation of Non-Party at Fault. [#94]. In
light of the Notice of Withdrawal, the Motion to Strike is moot. The court also finds that the
pending Motion for Protective Order is moot in light of the Notice of Withdrawal. Nonetheless,
the court will grant Owners a short extension of time to respond to Mr. Benglen’s second set of
interrogatories and requests for production.
Accordingly, IT IS ORDERED that:
(1)

The Clerk of the Court is DIRECTED to STRIKE the Notice of Non-Party at

Fault [#89];
(2)

Owners Insurance Company’s Motion to Strike Third Party Defendants Scott

Benglen and Claim Solutions, LLC’s Designation of Nonparties at Fault [#91] is DENIED as
MOOT; and
(3)

Owners Insurance Company’s Motion for Protective Order is GRANTED IN

PART and DENIED IN PART; and
(4)

Owners is granted an extension of time up to and including February 11, 2016 to

respond to Third-Party Defendant Scott Benglen’s second set of interrogatories and requests for
production of documents.

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DATED: February 5, 2016

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

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