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Dowling v. General MotorS, LLC

United States District Court, D. Colorado

March 30, 2018

JAMIE LEE DOWLING, individually, as surviving mother of Landyn Scott Dowling, Plaintiff,
GENERAL MOTORS LLC, and KEY SAFETY SYSTEMS, INC., Defendants. SHAWN COOK, Plaintiff-Intervenor,


          Kristen L. Mix United States Magistrate Judge.


         This matter is before the Court on Plaintiff's Motion to Allocate Settlement Proceeds Re: Landyn Scott Dowling, Deceased [#19][1] (the “Motion”). The Court has reviewed the Motion [#19], Response [#26], Reply [#32], exhibits, transcript of the hearing [#56; #57], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#19] is GRANTED in part and DENIED in part.

         I. Background

         This wrongful death action arises from the tragic deaths of Jamie Lee Dowling's (“Plaintiff”) two young children in a car accident that occurred on March 9, 2013. Plaintiff filed the lawsuit in this Court on March 3, 2015. Compl. [#1]. The Complaint [#1] alleges that Plaintiff's car, a 2008 Chevrolet Cobalt, was defective in its design and manufacture, which resulted in loss of control and subsequent failure of the air bags to deploy. The matter was transferred to the Southern District of New York on March 16, 2015, see [#6], and thereafter was remanded to this Court on March 10, 2017, for purposes of approval and distribution of settlement proceeds. See [#8-2]. On April 27, 2017, all settlement proceeds with respect to Plaintiff's daughter, Raylee Kay Dowling (“Raylee”), were allocated to Plaintiff by the Court. Minute Order [#17].

         On August 10, 2017, Plaintiff filed a Motion to Allocate Settlement Proceeds [#19] with respect to her son, Landyn Scott Dowling (“Landyn”). Shawn Willis Cook (“Cook”), who is Landyn's biological father, was permitted to intervene in this case on November 3, 2017. He thereafter filed a Response [#26] and Exhibits [#27] seeking 50% of the settlement proceeds. The Court scheduled an evidentiary hearing, which was held on January 9-10, 2018. See [#49, #50]. At the hearing, the Court heard testimony from Plaintiff, Aaron Buettner (Plaintiff's husband), Dana Valderas (Plaintiff's mother), Calvin Dowling (Plaintiff's father), Christopher Michael Allen (Plaintiff's friend), and Jamie Perdue (Plaintiff's friend and former roommate) on behalf of Plaintiff. The Court also heard testimony from Mr. Cook, Janna Conn (Plaintiff's former friend and babysitter), Shirley Williams (pastor at Plaintiff's former church), and Amy Cook (Mr. Cook's mother) on behalf of Mr. Cook.

         The following is a summary of relevant testimony from the hearing. Plaintiff and Mr. Cook met and began dating in high school. They attended different schools. Plaintiff became pregnant while she was a junior in high school, after Mr. Cook had graduated from high school. Plaintiff testified that she rented a small house and lived with Mr. Cook while she was still pregnant. Mr. Cook testified that Plaintiff found the house and Mr. Cook rented it for the couple to live in together, but that Plaintiff never actually lived there. Landyn was born on November 2, 2007. Plaintiff testified that Mr. Cook did not see Landyn more than approximately a half-dozen times in his life, that Mr. Cook refused to sign the birth certificate, that Mr. Cook refused to ever help financially with Landyn's care, and that Landyn never stayed the night with Mr. Cook or his family. During Landyn's life of less than five and one-half years, Plaintiff lived in at least eleven different places and at one point moved approximately 500 miles away from where Landyn was born without notifying Mr. Cook. Plaintiff provided very little evidence regarding how she paid Landyn's expenses. She testified that she worked as a ranch hand, in medical offices and as a waitress, but that she was also attending school. She presented no testimony or documentary evidence about her earnings or Landyn's expenses during his life. It is also clear that Plaintiff had romantic relationships with several other men during Landyn's lifetime.

         Mr. Cook testified that he has a learning disability and seizure disorder. He stated that he visited Landyn at the hospital when he was born, that he and Plaintiff completed a DNA test which confirmed Mr. Cook's paternity, and that he provided money to Plaintiff for Landyn's support approximately every week or every other week for the first several years of Landyn's life. Mr. Cook testified that he knew that a father could enforce legal rights, but that he was stymied by the fact that his name was not on Landyn's birth certificate. He testified that when he visited Plaintiff and Landyn at the hospital after Landyn's birth, he asked Plaintiff if he needed to sign the birth certificate and she responded in the negative. Mr. Cook further testified that he wanted to see Landyn more, and that in 2011, he met with an attorney who drew up “some paperwork” to establish Mr. Cook's parental rights and obligations. Mr. Cook's mother and then-girlfriend went to Plaintiff's house to get Plaintiff's signature on the document, entitled “Application for a New Birth Certificate Based on Parentage.” Plaintiff refused to sign it, became angry and violent, and then called Mr. Cook to tell him that he would never see his son again.

         Plaintiff moved to Colorado, assisted by her “friend” Michael Wilson, in March 2013. On March 9, 2013, Plaintiff had a car accident and both Landyn and Raylee died. Mr. Cook testified that at Landyn's funeral, Plaintiff arranged to have it announced that Michael Wilson, not Mr. Cook, was the father of both children.

         II. Legal Standard

         Pursuant to the Colorado Wrongful Death Act, the mother and father of a deceased minor child without descendants “shall have an equal interest in the judgment” related to the wrongful death of the child. Colo. Rev. Stat. § 13-21-201(1)(c). However, “[f]or cases in which the father and mother are divorced, separated, or living apart, a motion may be filed by either the father or the mother . . . requesting the court to apportion fairly any judgment awarded in the case.” Colo. Rev. Stat. § 13-21-201(1)(c)(II). The parties do not argue that the statute's use of the term “judgment” precludes its application to settlement proceeds, the funds at issue in this case, and precedent appears to interpret the term “judgment” as non-exclusive. See Campbell v. Shankle, 680 P.2d 1352, 1353-54 (Colo.App. 1984) (addressing the settlement proceeds recovered by a plaintiff in a wrongful death action and explaining that “the proper method for distribution of monies recovered in connection with a wrongful death action must be derived exclusively from the terms of the wrongful death statute”); see also Klancke v. Smith, 829 P.2d 464, 466 (Colo.App. 1991) (same). After holding a hearing, the court must determine the percentage of the proceeds to be awarded to each parent. Colo. Rev. Stat. § 13-21-201(1)(c)(III). “In making such a determination, the court shall consider each parent's relationship with the deceased, including custody, control, support, parental responsibility, and any other factors the court deems pertinent.” Id.

         III. Analysis

         As an initial matter, the Court finds that Plaintiff's testimony lacks credibility overall, and specifically as to the nature of Mr. Cook's relationship with their son.[2] More specifically, the Court finds that her contentions that Mr. Cook was physically abusive towards her, Tr. [#56] at 109, that he was not interested in a relationship with Landyn and never provided financial support, Tr. [#56] at 115-17, and that Mr. Cook saw Landyn less than a half-dozen times during Landyn's life, Tr. [#56] at 27-28, were squarely contradicted by testimony of Mr. Cook and his mother, whose testimony was credible. The Court further notes that many of Plaintiff's most outrageous written assertions against Mr. Cook in her affidavit in support of the Motion [#19-2] were not repeated in her oral testimony, thereby creating further doubts about her credibility.[3] Indeed, the Court has difficulty believing Plaintiff's unsupported testimony because much of it appears to be fabricated.[4]

         The Court finds credible Mr. Cook's testimony that he tattooed Landyn's name (correctly spelled) on his arm when his son was born, Tr. [#57] at 6-8, that Plaintiff found and then Mr. Cook rented a house for Plaintiff and himself to reside in during her pregnancy with Landyn, Tr. [#56] at 194-95, that he and Plaintiff had a photograph taken at Wal-Mart of Landyn when the baby was about one week old, Tr. [#56] at 197-98, that Mr. Cook and his mother regularly provided money to Plaintiff to assist with Landyn's care before Plaintiff moved away, Tr. [#56] at 198-99, that Plaintiff refused to permit ...

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