United States District Court, D. Colorado
ORDER ON MOTION FOR SUMMARY JUDGMENT
Michael E. Hegarty, United States Magistrate Judge.
Bellco Credit Union (“Bellco”) and Jonathan T.
Downey (“Downey”) seek summary judgment arguing
that the claim brought by Plaintiff Gary Simmons
(“Simmons”) alleging that Downey was negligent in
notarizing a purportedly forged document is barred by the
applicable statute of limitations. In the alternative,
Defendants contend Simmons has no evidence that Downey
deviated from the standard of care required of Colorado
notaries, and that any purportedly fraudulent conduct by
Simmons' wife was an intervening cause relieving
Defendants from liability. Simmons responded to the motion,
then filed a motion to supplement his response with
additional evidence. The Court concludes that Simmons
demonstrates both good cause and excusable neglect to permit
him to supplement his response, but Defendants fail to
demonstrate a lack of disputed material facts or the
existence of undisputed material facts on the present record
and, thus, the Court grants Simmons' motion to supplement
and denies Defendants' motion for summary judgment.
Court makes the following findings of fact viewed in the
light most favorable to Simmons, who is the non-moving party
in this matter.
at least 2008 onward, Simmons and his wife, Terry Simmons,
held a joint checking and savings account with
Simmons had an ATM card with Bellco and was a signatory to
the joint checking account with Mrs. Simmons.
Simmons had access to both the joint checking and savings
accounts with Bellco, including account details, and was able
to access the same via Bellco's online banking services.
Simmons was employed by Qwest Communications International,
Inc. (“Qwest”) and its predecessor entities for
over 40 years.
Simmons participated in a pension plan sponsored by Qwest
Simmons has not been employed since 2008, and his only income
since then has been social security, as well as two years of
of 2009, apart from social security benefits, Mrs.
Simmons' pension benefits were the only anticipated
source of retirement income for both Simmons and Mrs.
Given that Mrs. Simmons' pension would be his primary
source of income, Simmons was concerned about his retirement
future as early as 2009.
light of these concerns, Mrs. Simmons discussed the details
of her Qwest pension with Simmons as early as 2009.
Specifically, they discussed the amount of savings in the
pension, and Mrs. Simmons showed Simmons printouts from
Qwest's pension website where she could predict monthly
payment amounts depending on when she retired.
Simmons also was able to see the website itself and the
information within it when Mrs. Simmons printed out
pension-related information for him in 2009.
Simmons was aware that Mrs. Simmons could potentially elect
either a lump sum payment, a single life annuity option, or a
joint and survivor annuity option. They discussed these
options at that time and surmised that they would elect to
receive a joint and survivor annuity after Mrs. Simmons
April 2010, Mrs. Simmons learned that Qwest would be
purchased by CenturyLink, Inc. within the following year.
Accordingly, she accelerated her retirement in order to
retire under the Qwest banner, preserve her existing
benefits, and receive one year's severance pay.
part of her anticipated retirement, and in light of
Qwest's transition to CenturyLink, Mrs. Simmons again
discussed her pension options with Simmons in early 2011.
Specifically, Mrs. Simmons stated that their options were
either a lump sum payout, joint and survivor annuity
payments, or a single life annuity option.
2011, prior to retiring, Mrs. Simmons represented to Simmons
that she would elect the joint and survivor annuity option
for pension benefit payments.
March 22, 2011, Mrs. Simmons submitted her Qwest Pension Plan
Benefit Option Election Form (the “Election
Form”) to Qwest, and chose to receive the single life
annuity option. This option provided for pre-tax payments of
$5, 420.98 per month for Mrs. Simmons' lifetime, with no
survivor benefits payable to Simmons after her death.
Pretrial Order, 4.IV., ECF No. 37.
Election Form specifically provided that if Mrs. Simmons did
not select a joint and survivor annuity option, then she
would have to submit a completed and notarized Spousal
Consent to Waive the Joint and Survivor Annuity section of
the Election Form.
Mrs. Simmons submitted a signed, notarized Spousal Consent to
Waive the Joint and Survivor Annuity form (the “Spousal
Consent Form”), dated March 22, 2011.
Spousal Consent Form contains specific waiver language in
which the signer expressly waives joint and survivor annuity
benefits that he or she would otherwise be entitled to by
Spousal Consent Form contains what purports to be
Simmons' name, social security number, and signature.
Spousal Consent Form was notarized by Downey, an employee of
Defendants did not produce Downey's notary log in their
Fed.R.Civ.P. 26(a)(1) disclosures.
Simmons has no personal knowledge of Downey and is unaware of
Downey's pattern and practice of notarizing forms while
employed by Bellco.
Simmons was and is aware of a notary's obligation to act
honestly and to notarize a document only upon proof that the
person signing the document is who that person represents
himself to be but is unaware of the actual facts and
circumstances behind Mrs. Simmons' submission of the
Spousal Consent Form.
Simmons took no steps in 2011 to view the actual pension
documents Mrs. Simmons submitted at that time-either before
or after Mrs. Simmons submitted the same to Qwest. Deposition
of Gary W. Simmons, September 26, 2018 (“Simmons
dep.”), 47: 8-15; see also Defs. Ex. L, ECF
No. 33-2 (form referenced in Simmons' testimony that was
signed and dated January 17, 2010).
Despite knowing that Mrs. Simmons had online access to
pension-related information, Simmons never asked Mrs. Simmons
for access to online pension information or for any pension
materials kept online by Qwest and/or CenturyLink at any time
Simmons trusted Mrs. Simmons when she told him that she had
elected the joint and survivor annuity option. Simmons dep.
49: 9-15; 88: 23-25, 89: 1-5.
Mrs. Simmons retired from Qwest on April 18, 2011.
Mrs. Simmons' monthly pension payments were $4, 771.91
From May 2011 to October 2016, Simmons was aware of and spent
these funds (for his and his family's benefit), which
were deposited into his joint checking account at Bellco by
the CenturyLink Combined Qwest Pension Fund (the
“Fund”)-the payor of Mrs. Simmons' pension
retirement benefits during that time frame.
Simmons was aware of the income that he and Mrs. Simmons
would receive pursuant to her pension as he stated, “we
planned on $50, 000 to $60, 000 annually from the Qwest
pension.” He agreed that he had an obligation to be
aware of the income he was receiving and how that money was
being spent during the time he was married to Mrs. Simmons.
Simmons dep. 89: 9-13.
net monthly payments deposited into the Simmons' checking
account exceeded the gross monthly payments set forth under
the 100% survivorship annuity benefit ...