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Sequence of deaths under scrutiny in Aspen case

Rick CarrollThe Aspen TimesAspen, CO Colorado
Aspen Times photoThe house at 10 Popcorn Lane, near Aspen, where a family of four died of carbon monoxide poisoning in 2008.
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ASPEN – Efforts are under way by defense lawyers to dismiss a wrongful death lawsuit connected to the carbon monoxide poisoning deaths of a Denver family of four on Thanksgiving 2008.Court documents introduced in December by lawyers for Black Diamond Land Corp. and Jonathan Thomas suggest that the plaintiffs in the case might not have legal standing to sue for wrongful death because of the time sequence in which the four victims died.”The conclusion that the alleged wrongful deaths of a married couple and their two children in a single incident could result in no wrongful death claim may strike the layperson as questionable, even wrong-headed, given the profoundness of that loss,” contends a motion filed in the U.S. District Court in Denver. The motion was filed by Denver attorney James Goldfarb, who represents Thomas and Black Diamond Development Corp., which owned the Popcorn Lane house at the time the family of four died in it. “However, the strict requirement of the Wrongful Death Statute points this case toward that conclusion.”The lawsuit was filed in August by Massachusetts resident Dr. Frederick Feuerbach, the father of Caroline Lofgren; Oregon resident Jean Rittenour, the mother of Parker Lofgren and grandmother of the two children; and Massachusetts resident Hildy Feuerbach, who is the sister of Caroline Lofgren and the representative of the deceased husband and wife’s estate.The suit came after the Nov. 27, 2008, carbon monoxide poisoning deaths of Caroline Lofgren, 42, her husband, Parker, 39, and their two children, Owen, 10, and Sophie, 8. The family was staying at the home at 10 Popcorn Lane, about 3 1/2 miles east of Aspen. They had won a stay at the home, which did not have a carbon monoxide detector at the time of their deaths, at an auction held at their school.Named in the suit are three defendants who were also indicted on criminal charges by a Pitkin County grand jury earlier in July 2010: Marlin Brown, owner of Roaring Fork Plumbing & Heating Co., retired city of Aspen building inspector Erik Peltonen, and Brian Pawl, a building inspector for Pitkin County.Other defendants include the Pitkin County Community Development Department, the Pitkin County government, Basalt-based Integrity Construction Management Group and its project manager, John Wheeler; Carbondale-based Eagle Air Systems Inc.; Basalt-based Proguard Protection Services Inc.; Heat Transfer Products Inc. of Massachusetts; Thomas and Black Diamond Development Corp.While the defendants have yet to file a motion to dismiss – a fairly routine procedure in civil actions – Goldfarb’s arguments were revealed in a motion to delay the proceedings until the criminal case plays out. U.S. Magistrate Judge Kathleen M. Tafoya, on Dec. 20, issued an order staying the civil case until further notice.”Depending on the order of death, none of the Plaintiffs may have standing to assert a wrongful death claim,” Goldfarb contends, adding that could be a key matter in the lawsuit.The motion continues: “Determining whether Ms. Rittenour or Mr. Feuerbach have standing to bring claims for the deaths of Parker and Caroline Lofgren depends on whether children Sophie or Owen Lofgren survived both their parents on November 27, 2008 … Consequently, if children Owen or Sophie Lofgren, or either of them, was still alive by the time that both parents Parker and Caroline Lofgren had died, then the wrongful death claim would have accrued and belonged to Owen and Sophie, or either of them. The claim would not have belonged to Ms. Rittenour or Mr. Feuerbach, because Parker and Caroline Lofgren would have had at least one surviving lineal descendant. When both Owen and Sophie died, any wrongful death claim for the deaths of Parker and Caroline Lofgren passed on with them.”Originally filed in state district court, the suit was transferred to the federal court. It claims the combined failures and negligence of contractors, property owners and Pitkin County building inspectors led to the carbon monoxide poisoning deaths.The suit makes eight claims for damages, but does not specify how much money is being sought.rcarroll@aspentimes.com


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