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GENERAL39461
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Last modified
8/24/2016 7:58:54 PM
Creation date
11/23/2007 10:11:13 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981037
IBM Index Class Name
General Documents
Doc Date
10/23/1989
Doc Name
BOARDS REPLY BRIEF CONCERNING ITS MOTION FOR SUMMARY JUDGMENT
Permit Index Doc Type
GENERAL CORRESPONDENCE
Media Type
D
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No
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order pursuant to C.R.C.P. 56(d} directing that further proceed- <br />ings be limited solely to this issue. <br />III. <br />THE BOARD HAS NOT FAILED TO MITIGATE ITS <br />DAMAGES. <br />GEC also asserts that the Board has failed to mitigate its <br />damages because it did not secure payment in full from GEC's <br />surety. GEC's claim on this point presents a simple question of <br />law that can be resolved on the pleadings, briefs, and motions. <br />in presenting this affirmative defense, GEC has confused <br />the doctrine of mitigation of damages with the law governing <br />joint obligations. The doctrine of mitigation of damages relates <br />to the failure of a claimant to take reasonable steps to avoid <br />the consequences of some wrongdoing. 22 Am. Jur. 2d, Damages, <br />~ 493 (1988}. The doctrine does not apply to circumstances in <br />which a creditor elects to pursue one debtor rather than another. <br />Obviously the rule advocated by GEC would give joint debtors the <br />opportunity to defeat a creditor's claim because each would claim <br />that the creditor should mitigate his damages by pursuing the <br />other debtor instead. <br />The correct rules for analyzing GEC's obligation as the <br />principle on a debt after the creditor has received some payment <br />from the surety are set forth at $§ 13-50-102 and 103, C.R.S. <br />-4- <br />
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