Moore lawsuit dismissed in Colorado
Canadian Press
10/13/2005 4:48:58 PM
DENVER (AP) - Former Colorado Avalanche forward Steve Moore should consider Canada if he wants to take Vancouver's Todd Bertuzzi to court over an attack that left him with a broken neck, a judge ruled Thursday.
Denver district Judge Shelley Gilman dismissed Moore's lawsuit, agreeing with lawyers for Bertuzzi, the Canucks and others that because the hit happened in Canada and because Moore and all the defendants are Canadian citizens or businesses headquartered in Canada, any case would be better handled there.
"British Columbia bears the most significant relationship to Moore's claims," Gilman wrote. She also said a new state law prohibited her from allowing the case to continue.
Moore hasn't played since the March 8, 2004, game in which Bertuzzi grabbed him from behind, punched him in the head and drove his head into the ice. Moore, who suffered three fractured vertebrae in his neck, a concussion and other injuries, testified earlier this month that after months of physical therapy, he has begun training in hopes of rejoining the Avalanche.
He was seeking unspecified damages from the Canucks, team owner Orca Bay Hockey Limited Partnership, Bertuzzi, coach Marc Crawford, former general manager Brian Burke and former Canucks player Brad May, who now plays for the Avalanche.
"Steve was disappointed by the decision," Moore's lawyer, Tim Danson, told TSN. "He has instructed us to launch an appeal of the decision and we're confident that we will get a different disposition on appeal.
"Our position is that Denver, Colorado is still the appropriate jurisdiction for the trial to take place."
Moore's lawyers argued that he was a Colorado resident when he was injured and when he filed the lawsuit, giving him the right to seek damages in Colorado. They also said events leading up to Bertuzzi's hit started during a game in Denver on Feb. 16, 2004, when Moore hit Canucks captain Markus Naslund, leaving him with a concussion.
After the February game, Bertuzzi, May, Crawford and Burke met in Denver and planned Bertuzzi's hit as retaliation, according to Lee Foreman, Moore's lawyer. The lawsuit accused Bertuzzi and the other defendants of civil conspiracy, assault, battery and negligence.
Foreman argued that the formation of the alleged conspiracy in Denver, and the fact that Moore received medical treatment in Denver, was enough to allow Moore to pursue his lawsuit in Colorado. The judge disagreed.
"The statements allegedly made by the defendants in Colorado do not rise to the level of tortious or unlawful acts," which would be required to prove a conspiracy, she wrote.
Lawyer Mike O'Donnell, who represents the Canucks and Crawford, said the judge accepted all the arguments the defendants made.
"The team is pleased, and coach Crawford is pleased, that this case will go forward - if at all - in the Canadian courts," he said.
Gilman wrote that she was required to dismiss the case under a 2004 state law enacted in response to a large number of cases filed by non-residents. The law was designed to ensure Coloradans have access to the courts by limiting access by non-residents.
Factors she had to consider included Moore's residency and citizenship, the fact that he could file his case in Vancouver, the fact that the injury occurred in Canada and the fact that most witnesses are in Canada. She also had to consider whether Colorado law would apply to Moore's claims, and concluded that was highly unlikely for most or all the claims.
Burke's lawyer, Scott Barker, said his client was not in Denver when the alleged conspiracy was formed.
"The ruling doesn't address the merits of the claims," Barker said. "But even taking the allegations of the complaint as true, they don't establish a sufficient connection with the state of Colorado."
Bertuzzi's lawyer, Roger Tomasch, was out of the state and unavailable for comment, his receptionist said.
Bertuzzi faced up to 18 months in prison after Vancouver authorities charged him with assault. He pleaded guilty, and was then sentenced to probation and community service.
Bertuzzi was reinstated to the NHL in August after being indefinitely suspended and missing 13 regular-season games and the Stanley Cup playoffs in 2004, giving up about $502,000 in salary. He is due to earn about $5.2 million this season.
Moore is an unrestricted free agent, but he has said the Avalanche plan to sign him to a new contract once his doctors clear him to play again.
Cheers,
Aquaman