Henn et al v. Fidelity National Title Insurance Company

MOTION to Alter Judgment re Judgment, 202 Order on Motion to Exclude,,, Order on Motion for Summary Judgment,,,,

D. Colo.June 20, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-03077-RM-KLM (Consolidated with Civil Action No. 13-cv-01217-RM-KLM) FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California Corporation, Plaintiff, v. PITKIN COUNTY TITLE, INC., Defendant. ______________________________________________________________________________ PITKIN COUNTY TITLE, INC.’S MOTION TO AMEND JUDGMENT PURSUANT TO FED. R. CIV. P. 59 ______________________________________________________________________________ Defendant Pitkin County Title, Inc. (“Pitkin”), by and through its attorneys, Oates, Knezevich, Gardenswartz, Kelly & Morrow, P.C., hereby files this Motion to Amend Judgment Pursuant to Fed. R. Civ. P. 59 (“Motion”). In support, Pitkin states as follows: D.C.COLO.LCivR 7.1(a) CONFERRAL CERTIFICATION Prior to the filing of this Motion, counsel for Pitkin conferred with counsel for Fidelity National Title Insurance Company (“Fidelity”). This Motion is opposed. Fed. R. Civ. P. 59(e) Rule 59(e) allows a party to file a motion to alter or amend a judgment no later than 28 days after the entry of the judgment. Fed. R. Civ. P. 59(e). The purpose of Rule 59(e) is to provide the district court with a means for correcting errors that may have “crept into the proceeding” while Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 1 of 14 2 the court still has jurisdiction over the case. Sosebee v. Astrue, 494 F.3d 583, 589 (7th Cir. 2007). Relief under Rule 59(e) should be granted where the Court misunderstood the facts, the party’s arguments, or the controlling law. Barber ex. rel. Barber v. Colo. Dept. of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). Relief should be granted to correct a clear legal error, to prevent manifest injustice, or where the court has failed to recognize controlling precedent. Servants of the Parclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Introduction A clear error appears to have crept into the proceedings due to Fidelity characterizing Pitkin’s breach of the Agency Agreement as “at best, negligent." [See eg., ECF No. 202 at 18] Although Fidelity made such rhetorical statements, it never argued that breach of duties created by the Agency Agreement could support a finding of negligence. On the contrary, Fidelity conceded that Colorado law on the economic loss doctrine bars tort claims for economic losses based on duties that are set forth in a contract between the parties. [ECF No. 166 at 17 (citing A Good Time Rental, LLC v. First. Am. Title Agency, Inc., 259 P.3d 534, 537 (Colo. App. 2011)(barring negligence and other tort claims for breaches of contractual duties)] The applicability of the economic loss doctrine is why Fidelity agreed to dismiss the negligence claim with prejudice years ago. [Id.] Summary of Argument Perhaps the error crept into the proceedings because the allegations of negligence were disposed of years ago without any Court involvement. At the outset of this case, Pitkin approached Fidelity regarding the negligence claim pursuant to the duty to confer set forth in D.C.Colo.LCivR Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 2 of 14 3 7.1(a). Pitkin alerted Fidelity that it was prepared to move for dismissal of the negligence claim based on both the statute of limitations1 and the economic loss doctrine. Fidelity agreed that the economic loss doctrine applied, and barred its claim for negligence. [See ECF No. 166 at 17] In a nutshell, the economic loss doctrine holds that negligence must be based on the breach of a duty outside of a contract. Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1262-64 (Colo. 2000)(en banc); Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269-71 (Colo. 2000)(en banc); BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71-72 (Colo. 2014); Stan Clauson Assoc. Inc. v. Coleman Bros. Constr., LLC, 297 P.3d 1042, 1045 (Colo. Ct. App. 2013); A Good Time Rental, LLC, 259 P.3d at 537-38. Under the economic loss doctrine, there is no recovery for economic losses for “negligent breach of contract.” Eg. Chellsen v. Pena, 857 P.2d 472, 477 (Colo. App. 1992) (cert. denied). A breach of contract that is alleged to be “unreasonable” is still just a breach of contract, not negligence. A Good Time Rental, LLC, 259 P.3d at 538-40 (economic loss rule barred claim that for negligence on theory that closing agent’s breach of the contract was unreasonable). The economic loss doctrine preserves the line between breach of contract and negligence by requiring that negligence claims be based on a duty not created by the parties’ contract and not set forth the parties’ contract. Town of Alma, 10 P.3d at 1262-64; Grynberg, 10 P.3d at 1269-71. Fidelity conceded that the economic loss doctrine barred any claim of negligence in this case. [ECF No. 166 at 17; ECF No. 187 at 4] After all, Fidelity’s complaint is that Pitkin breached a duty to obtain written underwriting approval prior to issuing an extended coverage policy, which is not a duty independent of the Agency Agreement. In the absence of any allegation that Pitkin breached some other common law duty outside of the contract, Fidelity could not establish 1 For further explanation of the statute of limitations problem, see infra footnote 4. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 3 of 14 4 negligence. Therefore, on February 7, 2014, Fidelity filed a Rule 41(a)(1)(A) dismissal with prejudice and withdrew its designation of Pitkin as a negligent non-party at fault. [See generally Exhibit A]. The “with prejudice” dismissal had legal implications that were binding on the Court. Dismissals with prejudice are dismissals on the merits against the plaintiff. See infra § A. The Court was bound by the prior dismissal, and did not have the power to re-open the issue of negligence. Id. Even Fidelity, since the dismissal, has consistently admitted that negligence is no longer before the Court. [ECF No. 154 at 7; ECF No. 187 at 2-5] On the motions for summary judgment, Fidelity did not even brief the issue of negligence – there was no reference to the elements of negligence, Fidelity cited no authority, and never asked the Court to decide whether there was a genuine issue of material fact on negligence. [ECF No. 156 at 13-15; ECF 166 at 14-18] The Court ventured into the merits of negligence on its own, issuing a manifestly unfair ruling on negligence in favor of a party that was not even claiming it. See infra § B. Further, the Court’s holding that Pitkin “negligently breached the contract” failed to recognize controlling Colorado precedent. See infra § C. Colorado law does not allow a finding of negligence for breach of a contractual duty that the Court found in the four corners of the Agency Agreement. Id.; see also cases cited supra at 3. The Court should correct these clear errors by deleting Section III(B)(2)(b) and (c) of the Order [ECF No. 202 at 18-20], modifying the Conclusion in the Order [ECF No. 202 at 20-21], and modifying the Final Judgment [ECF No. 203] to find that there is no genuine issue of material fact that Pitkin is not required to reimburse more than $5,000 of the Loss. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 4 of 14 5 A. The dismissal of the negligence claim “with prejudice” was an adjudication on the merits against Fidelity. The question before the Court on the allocation of loss provision was only what amount Pitkin had to contribute to a Loss if it was found to have breached the contract. Fidelity claimed that the contract required reimbursement of the whole Loss. [ECF No. 156 at 13-15; ECF 166 at 14-19] Pitkin claimed that the contract required reimbursement of only $5,000, because 6.B. was triggered only if there was negligence. [ECF No. 158 at 15-16; ECF No. 168 at 17-18] The arguments on this issue were directed at the proper interpretation of the contract, not the elements of negligence. [Id.] The Court held that the contract was unambiguous, and that Pitkin was not required to reimburse more than $5,000 unless its actions were negligent. [ECF No. 202 at 17-18] That finding should have been the end of the analysis. The merits of negligence were not before the Court on summary judgment because the prior dismissal with prejudice of the negligence claim was an adjudication on the merits against Fidelity. The phrase “dismissed with prejudice” has a well-recognized legal import. “The term is an adjudication of the merits that operates as res judicata, concludes the rights of the parties, terminates the right of action, [and] precludes subsequent litigation of the same cause of action, as if the action had been tried to final adjudication.” 47 Am Jur. 2d Judgments § 547 (2d ed. 2017). A dismissal with prejudice is a judgment on the merits “as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after trial, and this is true whether the dismissal is voluntary or involuntary.” 21A Fed. Proc., L. Ed. § 51:248 (2017); Schmier v. McDonalds, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009)(a voluntary dismissal with prejudice operates as a final adjudication on the merits). Fidelity’s stipulation to dismiss the negligence claim with prejudice was a decision on the merits against Fidelity on the issue of negligence. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 5 of 14 6 The Court was not free to make its own finding on the merits of negligence. Once there has been a voluntary dismissal with prejudice, the Court has no jurisdiction to enter any further orders on the merits. De Leon v. Marcos, 659 F.3d 1276, 1283 (10th Cir. 2011) (citing Jannssen v. Harris, 321 F.3d 998, 1000 (10th Cir. 2003)). The dismissal brings the action on the merits to an end, and terminates jurisdiction over the action. Smith v. Phillips, 881 F.2d 902, 904 (10th Cir. 1989)(granting writ of mandamus against court order issued after stipulation to dismiss with prejudice).2 In fact, the Court’s Order on the merits of negligence [ECF No. 202 at 18-20] was without jurisdiction and void. In De Leon, as here, the parties filed a Rule 41(a)(1)(A)(ii) dismissal. Id. at 1278. The dismissal, by its terms, was initially without prejudice, but became with prejudice on the effective date if the plaintiff did not withdraw it. Id. Thereafter, the district court issued a ruling on the merits of a pending motion to dismiss. Id. at 1279. The Tenth Circuit held that the order granting the motion to dismiss on the merits was “void” because it was issued after the stipulation “and therefore in the absence of jurisdiction.” Id. at 1284 (citing Smith, 881 F.2d at 904 (“once the stipulation is filed, the action on the merits is at an end.”)) In this case, as in De Leon, the Rule 41 stipulation to dismiss was a decision on the merits of negligence against the plaintiff. The Court’s Order on the merits of negligence [ECF No. 202 at 18-20] was void because it was entered after the dismissal was filed. 2 A dismissal with prejudice operates as a final judgment. Like other final judgments, a dismissal with prejudice under Rule 41(a)(1)(A) can be set aside or modified, but only under Fed. R. Civ. P. 60(b). Schmier v. McDonalds, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009); Smith v. Phillips, 881 F.2d at 904. The Court could not set aside the dismissal without a motion pending. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 6 of 14 7 B. The Court did not have jurisdiction to find Pitkin negligent because Fidelity is not claiming that Pitkin was negligent. None of Fidelity’s pleadings gave any notice that negligence might still be at issue. Although Fidelity described the breach of contract as “negligent at best,” Fidelity dismissed its claim against Pitkin for negligence on the merits, has not alleged negligence since, and has consistently denied that negligence is at issue. Fidelity stated in its Motion to Exclude Certain Testimony of Defendant Pitkin’s Expert William Reed that: There is no negligence claim in this case. The sole claim is a claim for breach of contract. If [the witness] is permitted to testify at trial about whether Pitkin County Title was negligent in issuing the Henn title policy, it will waste time and confuse the issues because there is no issue as to negligence for the jury to resolve. [ECF 154 at 7] (Emphasis added). Fidelity even conceded on the motion for summary judgment that the economic loss doctrine applied. [ECF No. 166 at 17; ECF No. 187 at 4; ECF No. 202 at 6] Fidelity could not have been clearer that it was claiming breach of only contractual duties, and that it was not asking the Court or the jury to decide the issue of negligence. [ECF No. 202 at 6 and 10-11] Nothing in the Pretrial Order re-opened the merits of negligence. On the contrary, Fidelity affirmed throughout the Pretrial Order that it was claiming only breach of contractual duties. Fidelity conceded to the Court that its “negligence claim against Pitkin County Title was dismissed by stipulation on February 7, 2014 as a function of Colorado’s economic loss rule.” [ECF No. 187 at 4] Fidelity’s statement of claims and defenses refers only to breaches of terms of the contract. [Id. at 2-5] For damages, Fidelity sought “all damages incurred as a result of Pitkin County Title’s breach of contract.” [Id. at 5] There was no request for negligence damages. [Id.] Nothing in the Pretrial Order gave notice that Fidelity would assert a claim for negligence at trial. Indeed, had Fidelity wanted to re-open the merits of negligence, it would have needed to file a Rule 60 motion Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 7 of 14 8 for relief from the prior dismissal. Schmier v. McDonalds, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009); Smith v. Phillips, 881 F.2d at 904. Fidelity made no such request. The Court should observe that Fidelity did not think it needed to prove negligence to get full reimbursement of a “Loss” from Pitkin. Fidelity contended that the unambiguous terms of Paragraph 6.C. of the Agency Agreement required Pitkin to reimburse the entire Loss. [ECF No. 156 at 13-15; ECF 166 at 14-18] Fidelity did not need to argue negligence, because it was irrelevant to Fidelity’s reading of the contract. The Court disagreed with Fidelity’s interpretation, finding that the obligation to reimburse the entire Loss in Paragraph 6.B. was only triggered if there was negligence. [ECF No. 202 at 16-18] Review of the motions for summary judgment demonstrate that it was not Fidelity that raised the claim of negligence, it was the Court. [Compare ECF No. 156 at 13-15; ECF 166 at 14- 18 with ECF No. 202 at 18] Fidelity made no effort whatsoever to argue that it was entitled to a finding of negligence as a matter of law. [ECF No. 156 at 13-15; ECF 166 at 14-18] Nowhere in the briefs does Fidelity refer to the elements of negligence, which are: (1) the existence of a legal duty to the plaintiff outside of the contract; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach of duty caused the injury. Raleigh v. Performance Plumbing and Heating, 130 P.3d 1011, 1015 (Colo. 2006); Grynberg, 10 P.3d at 1269-71. Fidelity did not argue these elements and did not even request a finding of negligence. It argued only that the entire Loss should be paid under 6.C. of the Agency Agreement. For the Court to re-examine the merits of negligence where Fidelity had already conceded, and to find that Pitkin was negligent where Fidelity was making no such claim was manifestly unjust. The Court must always construe the pleadings so as to do justice. See Zokari, 561 F.3d at 1084-88. Pleadings cannot be construed so broadly that they deny a party fair notice of a claim. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 8 of 14 9 Zokari v. Gates, 561 F.3d 1076, 1084-88 (10th Cir. 2009). The Court should not grant a pleader a type of relief not fairly demanded, especially where to do so will cause prejudice. See Seven Worlds LLC v. Network Solutions, 260 F.3d 1089, 1098 (9th Cir. 2001)(where damages claim was made years into the litigation, after various representations that only declaratory and injunctive relief was sought, court declines to read a damages claim in to complaint). The Court unfairly prejudiced Pitkin by re-opening Fidelity’s negligence claim where Fidelity had not even asked the Court to do so, and by entering a judgment in Fidelity’s favor on negligence even though Fidelity did not request it. C. The economic loss doctrine prohibited the Court from finding Pitkin negligent where the only duties breached were “in the four corners” of the contract. Even if the Court had the power to make findings on the merits of negligence (which it did not), Colorado law on the economic loss doctrine would have required the Court to rule against Fidelity. The duties allegedly breached were a duty to seek written underwriter approval prior to issuing a policy providing extended coverage and a duty not to modify a form provided by Fidelity. [ECF No. 202 at 9-10 and 15-16] Fidelity maintained that the duties were unambiguously set forth in paragraphs 2.B.4 and 2.B.5 of the Agency Agreement, and the Court agreed. [ECF No. 202 at 15-16] The Court even refused to consider affidavits and deposition testimony, finding the duties within “the four corners of the Agreement.” [Id.] A cause of action for negligence cannot be based on breach of a duty that is memorialized in a contract. Town of Alma, 10 P.3d at 1263-64 (negligence claim must be based on breach of a duty that exists independent of the contract); Grynberg, 10 P.3d at 1269-71 (duties of care set forth in a contract are not regarded as independent duties even if they exist at common law outside of a contract); BRW, Inc., 99 P.3d at 74 (if the parties memorialize a common law duty in their contract then there is no independent duty upon Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 9 of 14 10 which a tort claim could be based). Having found the duty within the four corners of the contract, the Court could not then find that Pitkin was negligent.3 Whether the Court thought Pitkin’s actions were unreasonable could not change the outcome. “[T]he duty to perform a contract with reasonable care is not independent of the contract and therefore, a tort claim based on that duty is barred by the economic loss rule.” A Good Time Rental, LLC, 259 P.3d at 539. In other words, any “unreasonable” breach of a contractual duty in this case was still just a breach of contract, not negligence. See id. Ironically, even Fidelity agrees. A Good Time Rental is the one case cited by Fidelity that touches upon negligence, and the case instructs that the Court’s should not have found Pitkin negligent for “unreasonable” breach of contractual duties. See id. The Court erred when it held that Pitkin’s acted unreasonably and negligently breached the Agency Agreement. In Section III(B)(2)(b) of the Order, the Court says that Pitkin “negligently failed to comply with the terms and conditions of the Agreement” and was “negligent in its breach of the Agreement.” [ECF No. 202 at 18] These findings are contrary to controlling Colorado precedent, and cannot stand. The damages Fidelity sought were purely economic damages. Once the Court found that the duties breached were in the “four corners” of the contract, Colorado law prohibited the Court from declaring such breaches “negligent.” 4 It makes no difference whether a reasonably 3 Alternatively, if negligence was still at issue, the Court erred by disregarding all of Pitkin’s affidavits, which were sufficient to raise an issue of fact as to what a reasonably careful title agent would do under the circumstances. [See generally Affidavits of Dean Hubbel and William M. Reed, ECF Nos. 168-2 and 168-3] 4 Any claim of negligence would also have been barred by Colorado’s two-year statute of limitations for negligence, C.R.S. § 13-80-102(a). The undisputed facts are as follows. The Henns’ submitted a claim for insurance coverage on May 25, 2010. [ECF No. 179-1 ¶ 2] Fidelity completed its review of the Henns’ claim, Pitkin’s files, and the policy, and issued its coverage decision on November 24, 2010. [ECF No. 179-1 ¶ 5] By that date, Fidelity knew or should have known that Pitkin’s file did not contain any record of written underwriter approval for the extended Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 10 of 14 11 careful person would have done something different. The Court could not find that Pitkin was negligent and should have ruled in Pitkin’s favor on the allocation of loss question, once it found that Pitkin had breached duties in paragraphs 2.B.4 and 2.B.5 of the Agency Agreement. D. The purpose of the economic loss doctrine is to enforce the bargain of the parties when they allocate their losses. There is nothing unfair about limiting Pitkin’s contribution to $5,000 in the absence of negligence. The economic loss rule was designed precisely to protect parties, like Pitkin, who bargained in advance for the allocation of risks and remedies for nonperformance of the contract. In the allocation of loss section of the Agency Agreement, Pitkin agreed to contribute $5000 to every “Loss” under a title insurance policy it issued with Fidelity. This means that, regardless of fault, Pitkin would pay Fidelity the first $5000 of any Loss. [ECF No. 202 at 17] Even if Pitkin did everything correctly, it would pay the first portion of the Loss. [Id.] In exchange for the negotiated contribution, Fidelity agreed that Pitkin would not have to reimburse the entire Loss unless it was also negligent. [Id. at 18] “When sophisticated parties have bargained for the allocation of risks and remedies for nonperformance, [the economic loss rule] prevents unanticipated tort liability from undermining their reliance on their bargain.” Grynberg v. Agri Tech, Inc., 985 P.2d 59, 62 (Colo. App. 1999) (Grynberg I), aff’d, 10 P.3d 1267 (Colo. 2000) (Grynberg II). To allow negligence damages for a purely contractual breach would unfairly “permit a party to avoid the contractual limitation of coverage policy. The statute of limitations for negligence would have expired by November 24, 2012, but Fidelity did not sue Pitkin until May 21, 2013. To be clear, the issue of whether the negligence claim was barred by the statute of limitations is not before the Court, because the negligence claim has long since been resolved against Fidelity. The Court does not have jurisdiction to issue a ruling on the statute of limitations or the merits of negligence. However, this footnote further illustrates why Fidelity decide to concede to the adverse ruling on negligence. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 11 of 14 12 remedy.” Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1301, 1304 (Colo. App. 1988). The economic loss doctrine must be enforced to preserve the bargained-for allocation of losses in the Agency Agreement. Conclusion The allocation of loss provisions of the Agency Agreement required Pitkin to contribute $5,000 to every “Loss” under a policy, regardless of whether Pitkin was at fault for issuing the policy. In exchange for an agreement to participate in every Loss, Fidelity agreed that Pitkin would not have to reimburse the entire Loss unless Pitkin had been negligent, willful or reckless. [ECF No. 202 at 16-18] None of the duties allegedly breached by Pitkin in this case were duties independent of the Agency Agreement, so there was no negligence. Fidelity conceded this point long ago and agreed to dismiss its negligence claim with prejudice. That dismissal was a merits determination, and the Court could not re-open it or re-visit it. The Court had no jurisdiction to enter a finding of negligence in favor of a party who was not asking for it. To do so was manifestly unfair and prejudicial. The Court should correct these clear errors by deleting Section III(B)(2)(b) and (c) of the Order [ECF No. 202 at 18-20], modifying the Conclusion in the Order [ECF No. 202 at 20-21], and modifying the Final Judgment [ECF No. 203] to find that there is no genuine issue of material fact that Pitkin is not required to reimburse more than $5,000 of the Loss. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 12 of 14 13 OATES, KNEZEVICH, GARDENSWARTZ, KELLY & MORROW, P.C. By: /s/ Maria Morrow Maria Morrow Oates, Knezevich, Gardenswartz, Kelly & Morrow, P.C. 533 E. Hopkins Avenue, Third Floor Aspen, CO 81611 Tel: 970-920-1741 Email: maria@okglaw.com Attorneys for Defendant Pitkin County Title, Inc. Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on this 20th day of June, 2017, I filed a true and correct copy of the foregoing PITKIN COUNTY TITLE, INC.’S MOTION TO AMEND JUDGMENT PURSUANT TO FED. R. CIV. P. 59 with the Clerk of the Court using the ECF system, which will serve notification of this filing on the following: Mary A. Wells, Esq. Drew Lavin, Esq. Wells, Anderson & Race, LLC 1700 Broadway, Suite 1020 Denver, CO 82090 Attorneys for Plaintiff /s/ Maria Morrow Maria Morrow Case 1:12-cv-03077-RM-KLM Document 212 Filed 06/20/17 USDC Colorado Page 14 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-03077-RM-KLM (Consolidated with Civil Action No. 13-CV-01217-PAB-BNB) PRESTON B. HENN and BETTY D. HENN, individually, Plaintiffs, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California Corporation, Defendant and Third-Party Plaintiff, v. PITKIN COUNTY TITLE, INC., Third-Party Defendant. STIPULATION TO DISMISS WITH PREJUDICE THE NEGLIGENCE CLAIMS AGAINST PITKIN COUNTY TITLE, INC. AND TO WITHDRAW DESIGNATION OF PITKIN COUNTY TITLE, INC. AS A NEGLIGENT NON-PARTY AT FAULT Defendant/Third-Party Plaintiff Fidelity National Title Insurance Company (“Fidelity”) and Third-Party Defendant Pitkin County Title, Inc. (“PCT”), through undersigned counsel, hereby stipulate: A) To dismissal with prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) of Fidelity’s negligence claim against Pitkin County Title, Inc. in Civil Action No. 12-cv-03077-RM-KLM, which claim is Fidelity’s First Claim for Relief in its Corrected Third-Party Complaint [Doc. No. 34]. Each party will bear its own attorneys’ fees and costs as to this claim. Case 1:12-cv-03077-RM-KLM Document 83 Filed 02/07/14 USDC Colorado Page 1 of 4Case 1: 2-cv-0307 -RM-KLM Document 212-1 Filed 06/20/17 USDC C lorado Page 1 of 4 2 B) To withdrawal of Fidelity’s designation of Pitkin County Title, Inc. as a negligent non-party at fault in Civil Action No. 12-cv-03077-RM-KLM in Fidelity’s Corrected Designation of Non-Parties at Fault Pursuant to Colo. Rev. Stat. § 13-21-111.5(3) [Doc. No. 20 ¶3]. Fidelity will submit an amended designation of non-party at fault within 30 days of the date of this Stipulation. C) To dismissal with prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) of Fidelity’s negligence claim against Pitkin County Title, Inc. in Civil Action No. 13-CV-01217-PAB-BNB, consolidated into this action by order of the Court dated December 17, 2013 [Doc. No. 24], which claim is Fidelity’s First Claim for Relief in its Complaint [Doc. No. 1]. Each party will bear its own attorneys’ fees and costs as to this claim. SO STIPULATED: This 7th day of February 2014. Respectfully submitted, By: /s/ Maria Morrow Maria Morrow, Esq. (maria@okglaw.com) OATES KNEZEVICH GARDENSWARTZ KELLY & MORROW, P.C. 533 East Hopkins Avenue, 3rd Floor Aspen, Colorado 81611 Attorney for Third-Party Defendant Pitkin County Title, Inc. Case 1:12-cv-03077-RM-KLM Document 83 Filed 02/07/14 USDC Colorado Page 2 of 4Case 1: 2-cv-0307 -RM-KLM Document 212-1 Filed 06/20/17 USDC C lorado Page 2 of 4 3 By: /s/ Rachel Ollar Entrican Mary A. Wells, Esq. (mwells@warllc.com) Rachel Ollar Entrican, Esq. (rentrican@warllc.com) WELLS, ANDERSON & RACE, LLC 1700 Broadway, Suite 1020 Denver, Colorado 80290 Attorneys for Defendant/Third-Party Plaintiff Fidelity National Title Insurance Company Case 1:12-cv-03077-RM-KLM Document 83 Filed 02/07/14 USDC Colorado Page 3 of 4Case 1: 2-cv-0307 -RM-KLM Document 212-1 Filed 06/20/17 USDC C lorado Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that I have this 6th day of February 2014, filed the foregoing STIPULATION TO DISMISS WITH PREJUDICE THE NEGLIGENCE CLAIMS AGAINST PITKIN COUNTY TITLE, INC. AND TO WITHDRAW DESIGNATION OF PITKIN COUNTY TITLE, INC. AS A NEGLIGENT NON-PARTY AT FAULT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Robert C. Podoll, Esq. (rob@podoll.net) Robert A. Kitsmiller, Esq. (bob@podoll.net) Podoll & Podoll, P.C. 5619 DTC Parkway, Suite 1100 Greenwood Village, CO 80111 Attorneys for Plaintiffs Mary A. Wells, Esq. (mwells@warllc.com) Rachel Ollar Entrican, Esq. (rentrican@warllc.com) 1700 Broadway, Suite 1020 Denver, Colorado 80290 Attorneys for Defendant/Third-Party Plaintiff Fidelity National Title Insurance Company ___________/s/ Marisa Hutter ___________ Case 1:12-cv-03077-RM-KLM Document 83 Filed 02/07/14 USDC Colorado Page 4 of 4Case 1: 2-cv-0307 -RM-KLM Document 212-1 Filed 06/20/17 USDC C lorado Page 4 of 4