Bailey v. Airgas–intermountain Inc.

Decision Date17 June 2010
Docket NumberNo. 09CA1125.,09CA1125.
Citation250 P.3d 746
PartiesJames BAILEY, Nancy Bailey, Rhonda Busch/Morgan, Ronald Morgan, Gary Galloway, Judith Galloway, John Gorton, Karla Gorton, Howard Dwight Sanders, and Linda Sanders, Plaintiffs–Appellants,v.AIRGAS–INTERMOUNTAIN, INC.; Dennis Schaefers, Airgas District Sales Manager; Glen Austin, Airgas General Sales Manager; Kathy Garner, Airgas Director of Safety; and Ted Naanes, Airgas Assistant Director of Safety, Defendants–Appellees.
CourtColorado Court of Appeals


Freeman & Freeman, P.C., Martin H. Freeman, Aspen, Colorado; Kathy Goudy, Carbondale, Colorado, for Plaintiffs–Appellants.Holland & Hart LLP, Scott S. Barker, Jonathan S. Bender, Denver, Colorado, for DefendantsAppellees.Opinion by Judge WEBB.

This case presents an issue of summary judgment practice unresolved in Colorado: when a trial court properly rejects a C.R.C.P. 56(f) affidavit, may the court simultaneously enter summary judgment, or must it first afford the nonmovant an opportunity to address the merits of the motion? We conclude that although a trial court may collapse its denial of C.R.C.P. 56(f) relief into entry of summary judgment, such action is reviewable for an abuse of discretion. On the particular facts presented, we further conclude that the trial court did not abuse its discretion in doing so.

Plaintiffs, James Bailey, Nancy Bailey, Rhonda Busch–Morgan, Ronald Morgan, Gary Galloway, Judith Galloway, John Gorton, Karla Gorton, Howard “Dwight” Sanders, and Linda Sanders (employee-plaintiffs), and their spouses appeal the trial court's entry of summary judgment in favor of defendants, Airgas–Intermountain, Inc., employee-plaintiffs' former employer, and four Airgas supervisors, Dennis Schaefers, Glen Austin, Kathy Garner, and Ted Naanes (collectively, Airgas). Judgment was entered on the basis of the exclusivity provision of the Workers' Compensation Act of Colorado, § 8–41–102, C.R.S.2009(WCA).


Airgas leases office space in a building that allegedly was contaminated by mold. The employee-plaintiffs assert that they became ill from exposure to mold while working for Airgas in this office. Their spouses allege loss of consortium associated with these injuries. Other defendants, who were owners or managers of the building, are not parties to this appeal, nor are the other plaintiffs, who also occupied the building but did not work for Airgas. 1

Sixty days after the complaint was filed and following two extensions, Airgas moved under C.R.C.P. 12(b)(5) for “partial dismissal,” asserting that WCA exclusivity barred all of plaintiffs' claims and that one claim did not comply with C.R.C.P. 9(b).2 The motion did not dispute the employee-plaintiffs' alleged injuries from purported mold contamination.

In their opposition, plaintiffs asserted that relief based on WCA exclusivity could be granted only under C.R.C.P. 56:

The Airgas Plaintiffs Group's affidavit of their counsel is attached hereto as Exhibit A, and incorporated herein. The affidavit demonstrates that depositions, interrogatories and requests for production are essential for this group of Plaintiffs to be able to fairly respond to the Airgas Defendants' Motion for Summary Judgment based on Workers' Compensation exclusivity.

Accordingly, based upon C.R.C.P. Rules 12(b) and 56(f), and the content in the affidavit of Martin H. Freeman (Exhibit 1), and the cases cited in the affidavit, the Airgas Plaintiffs respectfully request that the Airgas Defendants' Motion for Summary Judgment based on Workers' Compensation exclusivity be denied without prejudice, with leave to readdress the issue after discovery is completed.

As here relevant, the attached affidavit said:

4. Based on inquiry and investigation by me and my associate counsel, it appears that some or all of the Airgas Group of Plaintiffs may have had their rights to recover workers' compensation adversely impacted or refused by the conduct of some or all of the Airgas Defendants, such that, even if Workers' Compensation exclusivity might otherwise be available as a defense, it would not be under the circumstances of this case.

5. Depositions of the Airgas Defendants and others, and responses to interrogatories and requests for production to be propounded to the Airgas Defendants, are essential for the Airgas Plaintiffs to be able to determine the extent to which the Airgas Group of Plaintiffs may have had their rights to recover workers' compensation adversely impacted or refused by the conduct of some or all of the Airgas Defendants.


9. The discovery described in paragraphs 5 and 8 is necessary to afford the Airgas Plaintiffs fair opportunity to fully respond to the motion for summary judgment of the Airgas Defendants based upon Workers' Compensation exclusivity.

10. The motion for summary judgment of the Airgas Defendants based upon Workers' Compensation exclusivity should therefore be denied without prejudice to readdress the issue following the completion of discovery.

The employee-plaintiffs did not dispute their employment relationship with Airgas or the nexus between the alleged injuries and the scope of that employment, nor do they do so on appeal.3 They responded to the merits of the C.R.C.P. 9(b) argument.

In its reply, Airgas did not challenge plaintiffs' assertion that the motion to dismiss must be converted to a motion for summary judgment. However, it argued that the affidavit did not satisfy C.R.C.P. 56(f) and that it was not in control of evidence relevant to the contention that any right of the employee-plaintiffs to recover workers' compensation benefits had been compromised.

After the motion had been pending for nine months, the case was reassigned to a different judge. Two months later, the trial court issued a single order denying the 56(f) request and granting the motion for summary judgment based on WCA exclusivity, without addressing the C.R.C.P. 9(b) issue. The court concluded that the C.R.C.P. 56(f) affidavit did not warrant either a continuance or a denial of summary judgment because:

22. There is no affidavit indicating that any Airgas plaintiff ever applied for workers['] compensation.

23. There is no affidavit indicating that any Airgas plaintiff was denied workers['] compensation.

24. There is no affidavit indicating any Airgas plaintiff had his or her right to workers['] compensation adversely affected.

25. The Airgas plaintiffs would be in possession of such information.

26. The attorney for the Airgas plaintiffs has given no hint of what evidence there might be to suggest that the Airgas plaintiffs' rights to recover workers ['] compensation “may” have been adversely impacted or denied. The attorney's affidavit does not state reasons essential to justify its opposition.

Plaintiffs moved for reconsideration, reiterating that their response to the motion for summary judgment “had sought deferral of the ruling pursuant to C.R.C.P. Rule 56(f).” They further explained that:

6. The Airgas Plaintiffs are in possession of some [ ] information, but not all, due in part to the nature of mold illness (loss of memory) and the active role of Airgas employees to chill the plaintiffs['] access to workers ['] compensation.

8. Because the Plaintiffs' claims involved fraud, discovery is, and was, essential before the Plaintiffs may fairly respond to the Defendant Airgas motion for dismissal. As shown in the attached affidavits from the Airgas Plaintiffs, Airgas employees failed to help the plaintiffs with workers ['] compensation claim forms, and in at least two cases, specifically forbade the filing of a claim.

Affidavits of the five employee-plaintiffs were attached to the motion. Three of these affiants stated or implied that a workers' compensation claim had not been filed because of acts or omissions of Airgas.

The trial court denied reconsideration. It agreed that WCA exclusivity “does not apply if the employer prevented the employee from receiving the benefits of the Act,” but explained that:

26. .... Counsel provided nothing as to why he believed [an estoppel defense] was available to the Airgas Plaintiffs, other than his own, and an associate's, investigation. Counsel, however, did not give a hint as to what he or his associate did to investigate, or what, if anything, the investigation revealed. More pointedly, there was no statement from any Airgas Plaintiff that he or she had any basis whatever to believe that his or her right to workers['] compensation had been adversely affected by the conduct of an Airgas Defendant.

27. The affidavit of counsel was conclusory and without any statement of facts. It wholly lacked any particularity as to facts plaintiffs expected to discover and how these facts could create a genuine issue of material fact. It simply stated that a possible defense to the Workers['] Compensation Act bar “may” exist.

The court further held that the affidavits could not be considered. Later, it certified the summary judgment as final under C.R.C.P. 54(b), which is the basis for this appeal.

II. The Trial Court Did Not Abuse Its Discretion in Denying Plaintiffs' Request for C.R.C.P. 56(f) Relief

C.R.C.P. 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the opposing party cannot for reasons stated present by affidavit facts essential to justify its opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The trial court did not explicitly deny plaintiffs' request in the order entering summary judgment. However, because the order addressed deficiencies in the request, it was presumptively denied when the summary judgment motion was granted. See Henisse v. First Transit, Inc., 220 P.3d 980, 990 (Colo.App.2009) ( cert. granted Dec. 14, 2009) (“The court did not rule on that request before...

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