Go north: Judge tosses Moore's suit against Bertuzzi
Moore's claims would be better handled in Canada because that's where the hit happened and all the defendants are based there, Denver District Judge Shelley Gilman said. Her ruling was in agreement with attorneys for Bertuzzi, the Canucks and others.
"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.
Moore has the right to ask the judge to reconsider or to appeal her ruling. Neither Moore's attorneys nor his agent returned calls seeking comment.
Moore's attorneys 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 Nasland, leaving him with a concussion.
After the February game, Bertuzzi, May -- who signed with the Avalanche this summer -- Crawford and Burke met in Denver and planned Bertuzzi's hit as retaliation, according to Lee Foreman, Moore's attorney. 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.
Attorney 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 nonresidents. The law was designed to ensure Coloradans have access to the courts by limiting access by nonresidents.
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 attorney, 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 attorney, 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.
Copyright 2005 by The Associated Press
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