Pertile et al v. General Motors, LLC et al

Filing 312

ORDER denying 154 General Motors LLC'S Motion for Partial Summary Judgment. ORDERED by Judge William J. Martinez on 06/13/2017. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0518-WJM-NYW
DANIEL PERTILE, and
GINGER PERTILE,
Plaintiffs,
v.
GENERAL MOTORS, LLC, a Delaware limited liability company,
TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation,
KELSEY-HAYES COMPANY, a Delaware corporation,
Defendants.

ORDER DENYING DEFENDANT GENERAL MOTORS LLC’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

In this personal injury/product liability action pending under the Court’s diversity
jurisdiction, 28 U.S.C. § 1332(a), Plaintiffs Daniel and Ginger Pertile (together,
“Plaintiffs” or the “Pertiles”) bring suit against Defendants General Motors, LLC (“GM”),
TRW Vehicle Safety Systems, Inc., and Kelsey-Hayes Company, for various claims,
including for negligence, breach of warranty, violation of the Colorado Consumer
Protection Act, Colo. Rev. Stat. §§ 6-1-101 et seq., and loss of consortium. (See
generally ECF No. 254.)
Now before the Court is Defendant General Motors LLC’s Motion for Partial
Summary Judgment (ECF No. 154 (Defendant’s “Motion”)), which was separately joined
by Defendants TRW Vehicle Safety Systems, Inc. and Kelsey-Hayes Company (ECF
No. 161), and seeks summary judgment against Ginger Pertile’s claim for loss of

consortium. For the reasons explained below, the Motion is denied.
I. BACKGROUND
This case arises from a single vehicle rollover accident, in which Plaintiff Daniel
Pertile was injured, near Vernal, Utah, on February 25, 2013. (See generally ECF No.
254 at 7–17.) Among the pending claims is a claim for loss of consortium, by which
Ginger Pertile seeks damages for having “lost the love, support, companionship,
affection, consortium, care, comfort, household services, aid and society of her
husband, Daniel Pertile.” (ECF No. 31 ¶ 134; see also ECF No. 254 at 5, 10.)
The undisputed facts reflect that Daniel and Ginger Pertile were not civilly
married at the time of the accident, but had been in a committed relationship for close
to ten years at that time. (ECF No. 162 at 2, ¶ 1; ECF No. 167 at 2, ¶ 1.)
In the instant Motion, Defendants argue that Ginger Pertile’s claim for loss of
consortium fails as a matter of law because the Pertiles were not married at the time of
the accident, while the Pertiles claim that they had a valid common law marriage under
Colorado law, and that her loss of consortium claim may proceed on that basis.
II. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). W hether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely, is so one-sided that one

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party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248–49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
In the Tenth Circuit, “the moving party carries the burden of showing beyond a
reasonable doubt that it is entitled to summary judgment.” Pelt v. Utah, 539 F.3d 1271,
1280 (10th Cir. 2008) (alterations incorporated; internal quotation marks omitted).
“When the moving party does not have the ultimate burden of persuasion at trial, it has
both the initial burden of production on a motion for summary judgment and the burden
of establishing that summary judgment is appropriate as a matter of law.” Id.
III. ANALYSIS
A.

Did the Pertiles Have a Valid Common Law Marriage?

“Colorado is . . . one of several states, along with the District of Columbia, that
still recognize common law marriages.” In re Marriage of J.M.H. & Rouse, 143 P.3d
1116, 1117 (Colo. App. 2006) (“J.M.H.”) “[I]n a common law marriage, two persons
create a valid marital relationship without the benefit of a legal marriage ceremony
performed according to statutory requirements.” J.M.H., 143 P.3d at 1118. In
Colorado, “[a] common law marriage is established by [1] the mutual consent or
agreement of the parties to be husband and wife, followed by [2] a mutual and open

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assumption of a marital relationship.” People v. Lucero, 747 P.2d 660, 663 (Colo.
1987). Courts require that the parties’ mutual consent must “be manifested by conduct
that gives evidence of the mutual understanding of the parties,” and “such conduct in a
form of mutual public acknowledgment of the marital relationship is not only important
evidence of the existence of mutual agreement but is essential to the establishment of
a common law marriage.” Id.
Disputes over the existence of a common law marriage often present problems
of proof or evidence. See Lucero, 747 P.2d at 664. However, it is well established that
“the agreement need not have been in words,” and that “if the agreement is denied or
cannot be shown, its existence may be inferred from evidence of cohabitation and
general repute.” Id. Parties seeking to prove the existence of a common law marriage
may rely on “any form of evidence” that manifests their intent to be married:
Our formulations of the requirement of conduct manifesting
or confirming the parties’ understanding or agreement have
taken many forms. * * * The two factors that most clearly
show an intention to be married are cohabitation and a
general understanding or reputation among persons in the
community in which the couple lives that the parties hold
themselves out as husband and wife. Specific behavior that
may be considered includes maintenance of joint banking
and credit accounts; purchase and joint ownership of
property; the use of the man’s surname by the woman; the
use of the man’s surname by children born to the parties;
and the filing of joint tax returns. However, there is no single
form that any such evidence must take. Rather, any form of
evidence that openly manifests the intention of the parties
that their relationship is that of husband and wife will provide
the requisite proof from which the existence of their mutual
understanding can be inferred.
Lucero, 747 P. 2d at 665 (citations omitted). Moreover, “whether a common law

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marriage exists turns on issues of fact and credibility.” Id.; accord Brenda L. Storey,
Defending Against A Common Law Marriage Claim, Colorado Lawyer, March 2005, at
69 (“Storey”) (“Common law marriage claims are fact-driven, and no single set of facts
is required to prove or defend against such a claim.”).
Here, GM’s Motion initially asserted that the Pertiles were not married at the time
of the accident. In reliance, they cited the Pertiles’ own deposition testimony offered in
response to questions (largely leading questions) from GM’s counsel regarding when
they were engaged and married.1

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The relevant testimony relied upon by GM is as follows:
Q.
You were married shortly after your crash; is that right?
A.
Yes.
Q.
Tell me how that came to be[?] * * * You hadn’t originally
intended to get married at that time; is that true?
A.
No, we didn’t intend to get married then.
Q.
Did you have plans to get married at all?
A.
I was engaged to her, yes, but . . .
Q.
So you had become engaged. Did you have a date in
mind?
A.
Didn’t have a date set, no.
Q.
So how did it come that you and Ginger decided to marry
while you were in the hospital in February of 2013 or March or
whenever it was?
A.
It just seemed right.

(ECF No. 154-1 at 4 (Daniel Pertile).) And:
Q.
What was your date of marriage?
A.
March 1, 2013.
Q.
So you were married shortly after the crash at issue; is
that true?
A.
That is correct.
Q.
So at what point had you become engaged?
A.
That summer, fall before we became engaged and I was
planning a wedding.

Q.

***
You were living together at that time [of the accident],

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The Pertiles respond by arguing that although their “formal civil marriage
ceremony” occurred after the accident, they had a valid common law marriage at the
time of the accident. They submitted affidavits reciting various facts that tend to prove
this assertion. Several of these are types of proof which the Colorado Supreme Court
explicitly endorsed in Lucero. For instance, the Pertiles had been living together for
approximately seven to eight years before the accident; they had maintained a joint
banking account for several years; they also had a son before the accident, who shares
Daniel Pertile’s last name. (See ECF No.165-1 ¶¶ 3–5.) These are all types of proof
expressly permitted by Lucero. 747 P.2d at 665. In addition, prior to the accident, the
Pertiles shared a joint auto insurance policy, Ginger Pertile was covered under Daniel
Pertile’s employer-based health insurance, and she was named as the beneficiary of
his life insurance. (ECF No. 165-1 ¶¶ 6–8.) The Court finds these facts also fairly
qualify as “any form of evidence that openly manifests the intention of the parties that
their relationship is that of husband and wife.” Id. at 665. Accordingly, the Court finds
that this factual record demonstrates, at the least, a genuine dispute of fact as to
whether the Pertiles had a valid common law marriage at the time of the accident.

A.
Q.
A.
Q.
A.

though, not yet married; is that right?
Yes.
***
Was that the planned date [March 1, 2013] that you had
set up for the wedding, or did you move it in some way?
I moved it.
Why was that?
I had planned a wedding for the summer [of 2013] and had
realized that we were going to be living in hospitals and
hotels, and we decided that we just wanted to be married
and we could deal with the wedding at a later time.

(Id. at 6; ECF No. 162-3 at 4, 12 (Ginger Pertile).)

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GM argues that the Pertiles’ deposition testimony shows they did not “hold
themselves out as married” prior to 2013, thus disproving their claim of a common law
marriage as a matter of law. (See ECF No. 167 at 3.) The Court disagrees. GM cites
only Lucero, but reads too much into its language requiring a “mutual understanding,” of
a marriage. The Pertiles need not have had an express agreement “in words.” Lucero,
747 P.2d at 664. Rather, their mutual understanding may have been “only tacitly
expressed,” and may be “inferred from evidence of cohabitation and general repute.”
Id. What is required is proof of “conduct that gives evidence of the mutual
understanding of the parties,” including showing “such conduct in a form of mutual
public acknowledgment of the marital relationship.” Id. at 663. As detailed above, the
Pertiles have plainly raised such proof, including as to facts expressly contemplated by
Lucero. See id. at 663.
Moreover, the deposition excerpts on which GM relies constitute a few isolated,
cherry-picked questions. Viewing the evidence in the light most favorable to the
Pertiles, these could be understood as inquiring only into the facts surrounding their
2013 civil marriage ceremony. The Court finds this testimony far too limited and indirect
to carry GM’s burden in seeking judgment as a matter of law. See Pelt, 539 F.3d at
1280; compare supra, note 1 (isolated deposition questions at least arguably directed
only towards civil marriage ceremony) with Storey at 69, 73 (proposing a “checklist” of
over 20 topics for lawyers to address “to ensure detailed discussion at the deposition”
when defending against a claim of common law marriage).
Finally, the affidavits filed by the Pertiles expressly state that each considered

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the other to be their spouse “for many years prior to and including” the date of the
accident. (ECF No. 165-1 ¶ 11; ECF No. 165-2 ¶ 10.) T hey further explain that when
answering the questions posed at their depositions they “assumed we were discussing
the formal civil marriage ceremony,” and it was not their intent to suggest they did not
have a common law marriage before that time. (ECF No. 165-1 ¶ 10; ECF No. 165-2
¶ 9.)
GM argues that these constitute “sham affidavits” and should be disregarded. In
ruling on summary judgment, the Court will not automatically exclude a witness’s
affidavit that conflicts with earlier deposition testimony. Burns v. Bd. of Cnty. Comm’rs
of Jackson Cnty., 330 F.3d 1275, 1281–82 (10th Cir. 2003). T he Court will only
disregard such affidavits “when [they] constitut[e] an attempt to create a sham fact
issue.” Id. (internal quotation marks omitted). “Factors to be considered in determining
whether an affidavit presents a sham issue include . . . whether the earlier testimony
reflects confusion which the affidavit attempts to explain.” Id. Here, drawing the
reasonable inferences in the Pertiles’ favor, the Court credits their explanation that the
present affidavits are offered to explain confusion in their deposition testimony. Cf. In
re Marriage of Cargill and Rollins, 843 P.2d 1335, 1338, 1339 (Colo. 1993)
(recognizing, in statutory interpretation, ambiguity in the meaning “remarriage,” as
potentially referring either to the “act or instance” or “the state of being”). Accordingly,
the Court does not disregard these submissions as sham affidavits.
In sum, GM has failed to show that there is no genuine dispute on the question
of whether the Pertiles had a valid common law marriage on the date of the accident,

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and summary judgment is therefore not warranted on this issue.

B.

Whether a Common Law Spouse Can Bring a Loss of Consortium Claim?
As a general statement, “Colorado law does not differentiate between a

nonceremonial common law marriage and a ceremonial marriage.” Cargill and Rollins,
843 P.2d at 1339. In addition, “common law marriages are valid, notwithstanding
statutes that require ceremonial marriages to be solemnized by a minister or a
magistrate, if no specific provision to the contrary exists.” J.M.H., 143 P.3d at 1118
(citing Meister v. Moore, 96 U.S. 76 (1877)). Accordingly, to the extent the Pertiles can
prove they had a valid common law marriage, Ginger Pertile may pursue a loss of
consortium claim on that basis, just as if they had been civilly married.
C.

Whether Ginger Pertile Can Pursue Loss of Consortium Absent a Common
Law Marriage
Finally, as an alternative argument against summary judgment, the Pertiles

suggest that Ginger Pertile could pursue a loss of consortium claim even if the Pertiles
were not married at the time of the accident.
To the extent the Pertiles argue only that “a formal, civil marriage is not an
absolute prerequisite to asserting a loss of consortium claim” (ECF No. 162 at 6), the
Court agrees. See supra, Part III.B.; accord Mattison v. Kirk, 497 So. 2d 120, 122 (Ala.
1986) (“[A] ceremonial marriage is not a prerequisite to maintaining an action for loss of
consortium. A common law marriage will support a consortium claim.”), overruled on
other grounds by Carbon Hill Mfg., Inc. v. Moore, 602 So. 2d 354 (Ala. 1992).
But, to the extent the Pertiles argue that Ginger Pertile might prevail on a loss of
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consortium claim even without proving they had a valid common law marriage, the
Court declines to reach this issue. Given the analysis above, it is unnecessary to
resolve this alternative grounds to resolve GM’s present Motion. Moreover, Plaintiffs
cite no Colorado authority supporting this argument, and the Court finds the issue is not
sufficiently developed to warrant a definitive legal ruling at this juncture of the
proceedings. (See ECF No. 162 at 6.)
IV. CONCLUSION
For the reasons set forth above, Defendant General Motors LLC’s Motion for
Partial Summary Judgment (ECF No. 154), as joined by Defendants TRW Vehicle
Safety Systems, Inc. and Kelsey-Hayes Company (ECF No. 161), is DENIED.
Dated this 13th day of June, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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