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Pertile v. General Motors, LLC

United States District Court, D. Colorado

June 13, 2017

GENERAL MOTORS, LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, KELSEY-HAYES COMPANY, a Delaware corporation, Defendants.


          William J. Martínez United States District Judge

         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.


         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). Whether 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 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 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 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 ...

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