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Drafting an Unchallengeable Designation of Nonparties at Fault

Author: Bradley Damm

Guest Editor: Danielle Vukovich

September 3, 2019 10:00am

Colorado imposes a comparative negligence standard on damages.  In particular, the Colorado legislature has declared that no defendant shall be liable for an amount greater than the defendant’s percentage of negligence or fault.[1]  However, if a defendant believes a nonparty is liable for the plaintiff’s damages, the defendant must take specific steps to protect itself and explicitly designate the nonparty at fault.  Plaintiffs frequently move to strike designations of nonparties at fault.  Here are a few tips to avoid this scenario.

Designating a Nonparty at Fault

A defendant may designate a nonparty at fault by filing a pleading that includes the nonparty’s name and last known address (or the best identification the defendant can obtain under circumstances) and “a brief statement of the basis for believing such nonparty to be at fault.”[2]  On its face, the statute appears straightforward.  However, plaintiffs often object or move to strike designations of nonparties at fault based on the alleged inadequacy of the “brief statement of the basis for believing such nonparty to be at fault.”  Thus, defendants must ensure their “brief statement” includes much more information than what the statute otherwise appears to require.

Drafting a Complete Designation of Nonparty at Fault

The Colorado Supreme Court in Redden v. SCI Colo. Funeral Serv., Inc., 38 P.3d 75 (Colo. 2001), provided a guide for defendants designating nonparties at fault.  The court held it should construe designations of nonparties at fault strictly.[3]  In particular, the court stated a designation of nonparty at fault, which only describes causation is insufficient.[4]  The court also stated the designation need not prove a claim, but must go beyond bald allegations.[5]

So what are some general rules that can be obtained from Redden and other cases interpreting Redden?  First, each element of a claim should be stated.  Thus, for a designation of nonparty at fault based on negligence, the designation should include a description of the duty, breach, causation, and damages supporting the designation.[6]  Second, if the nonparty is a professional or otherwise subject to a heightened standard of care, the designation must state what the standard of care is.[7]  For example, a designation of nonparty at fault based on a nonparty’s professional negligence must include a description of how the nonparty fell below the profession’s standard of care.  A defendant may need to attach to its designation an expert opinion or a certificate of review under C.R.S. section 13-20-602.  Finally, to avoid unnecessary pleading practice, a defendant should use key words to show the court the designation is adequate.

Our office recently faced this issue when a plaintiff recently moved to strike our designation of a nonparty at fault.  The plaintiff argued our designation did not contain the words “duty” and “breach,” despite an explicit description of how the designated nonparty breached its duty to plaintiff.  To preempt a plaintiff from making a similar argument and ensure a defendant’s designation of nonparty at fault is unchallengeable, defendants should take the following steps.

Step 1: Defendants should start their “brief statement of the basis for believing such nonparty to be at fault” with a list of the elements required to satisfy the claim.  For example, defendants can explicitly state at the beginning of the “brief statement” that the nonparty owed a duty to plaintiff, breached its duty to plaintiff, and the breach caused plaintiff’s injuries and damages.

Step 2: Once this has been stated, the defendant should describe in more detail each element and basis for the nonparty’s liability.

Takeaway

Plaintiffs often move to strike designations of nonparties at fault if they know they cannot recover from the nonparty (i.e. nonparty bankruptcy or signed liability waiver).  Thus, it is important to ensure your designation of nonparty meets the requirements under Colorado law, which according to the Colorado Supreme Court in Redden, goes far beyond a mere “brief statement.”

 

Bradley Damm is an Associate at TYSON & MENDES, LLP, and his practice primarily focuses on personal injury, premises liability, construction defect, professional malpractice defense litigation, and commercial litigation.

 

[1] C.R.S. § 13-21-111.5(1).

[2] C.R.S. § 13-21-111.5(3)(b).

[3] Redden v. SCI Colo. Funeral Serv., Inc., 38 P.3d 75, 80 (Colo. 2001).

[4] Id.

[5] Id. at 81.

[6] Id.

[7] Id.; Stone v. Satriana, 41 P.3d 705, 712-13 (Colo. 2002); Anstine v. Alexander, 128 P.3d 249, 258-59 (Colo. App. 2005) (rev’d).

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