IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02632-CMA-MEH

BARBARA CHURCH, Individually, and as Personal Representative

of the Estate of William Church,

Plaintiff,

v.

DANA KEPNER COMPANY, INC.,

Defendant.

ORDER DENYING DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on the Motion to Dismiss filed by Defendant Dana

Kepner Company, Inc. (Doc. # 15.) In this asbestos product liability action, Plaintiff

Barbara Church brings claims against Defendant for negligence, strict liability,

conspiracy, and wrongful death arising from the demise of her husband, William

Church (“Church”), who, after a career laying pipes, including asbestos cement pipes

that Defendant sold, died of asbestos-related mesothelioma. Subject-matter jurisdiction

is proper under 28 U.S.C. § 1332 (diversity jurisdiction). For the reasons discussed

below, Defendant’s motion is denied. 

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 Unless otherwise noted the following facts are taken from Church’s Amended Complaint. 

(See Doc. # 10.) Additional facts will be discussed when the Court addresses the claims to

which they pertain.

2

 Plaintiff responded on March 12, 2012 (Doc. # 18), and Defendant replied on March 29, 2012

(Doc. # 19).

2

I. BACKGROUND1

For several years in the 1970s and 1980s, Church worked with asbestos cement

pipes manufactured by Johns Manville. (Doc. # 10 at 3-4.) During those years, Church

received substantial and sustained exposure to asbestos dust, which ultimately caused

his death. (Id. at 5-6.) Defendant supplied roughly 90% of the asbestos piping Church

used, and all of that piping had been manufactured by the Johns Manville company. 

(Id. at 5.) After Church’s exposure to the asbestos, Johns Manville filed for bankruptcy

protection and, as part of the bankruptcy, future asbestos suits against Johns Manville

were enjoined. (Id. at 8.) On October 7, 2011, Plaintiff brought this suit in her personal

capacity and in her capacity as personal representative of Church’s estate. (Id. at 2.) 

Defendant’s motion is ripe for review.2

II. STANDARD OF REVIEW

The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim is to test “the sufficiency of the allegations within the four corners of the

complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint will

survive such a motion only if it contains “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For a

motion to dismiss, “[t]he question is whether, if the allegations are true, it is plausible

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and not merely possible that the plaintiff is entitled to relief under the relevant law.”

Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). 

“The plausibility standard is not akin to a probability requirement, but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quotation marks and citation omitted). 

In reviewing a Rule 12(b)(6) motion, a court Amust accept all the well-pleaded

allegations of the complaint as true and must construe them in the light most favorable

to the plaintiff.” Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless,

a complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “The

court=s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the

parties might present at trial, but to assess whether the plaintiff’s complaint alone is

legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz,

948 F.2d 1562, 1565 (10th Cir. 1991).

III. DISCUSSION

In its motion to dismiss, Defendant asserts two primary arguments. First,

Defendant argues that Plaintiff did not allege sufficient facts to establish jurisdiction over

Defendant under Colorado’s Innocent Seller Statute, Colo. Rev. Stat. § 13-21-402, and

that, therefore, all of Plaintiff’s claims should be dismissed. (Doc. # 15 at 4-11.) 

Second, Defendant asserts that, even if Plaintiff can bring suit against Defendant, she

failed to state a civil conspiracy claim under Colo. Rev. Stat. § 13-21-111.5(4) and, thus,

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that claim should be dismissed. (Doc. # 15 at 11-14.) The Court will address both of

these arguments, in turn, below. 

A. THE INNOCENT SELLER STATUTE

Under Colorado law, “[n]o product liability action shall be commenced against

any seller of a product unless said seller is also the manufacturer of said product . . . .” 

Colo. Rev. Stat. § 13-21-402(1). A “manufacturer” is defined as “a person or entity who

designs, assembles, fabricates, produces, constructs, or otherwise prepares a product

. . . prior to the sale of the product to a user or consumer,” but the term also includes

“any seller who has actual knowledge of a defect in a product.” Colo. Rev. Stat. § 13-

21-401(1). Additionally, Colorado law provides that “[i]f jurisdiction cannot be obtained

over a particular manufacturer of a product . . . alleged to be defective, then that

manufacturer’s principal distributor or seller over whom jurisdiction can be obtained

shall be deemed . . . the manufacturer of the product.” Colo. Rev. Stat. § 13-21-402(2). 

Accordingly, as stated by Defendant, “the innocent seller statute precludes a product

liability action against the seller, unless the claimant can show (1) that she cannot

obtain jurisdiction over the manufacturer or (2) that the seller had ‘actual knowledge’ of

a product defect.” (Doc. # 15 at 5.) Because Plaintiff adequately alleges that Defendant

had actual knowledge of asbestos-related defects in the pipes it sold, Plaintiff’s action

has been properly commenced against Defendant and, therefore, the Court need not

address Defendant’s argument that it cannot be deemed the manufacturer of the

asbestos pipes because Plaintiff can still obtain jurisdiction over Johns Manville. 

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Among other factual allegations in her Amended Complaint, Plaintiff asserts that: 

By 1977, when William Church’s exposure to Johns Manville

asbestos cement pipe distributed by Dana Kepner began, Defendant

Dana Kepner already had actual knowledge that Johns Manville asbestos

cement pipe was unreasonably dangerous because of . . . defects in

design, manufacturing and/or marketing. Dana Kepner possessed actual

knowledge prior to 1977 because Johns Manville informed Dana Kepner

of these risks and the character of the Johns Manville asbestos cement

pipe Dana Kepner sold and distributed on Johns Manville’s behalf.

Upon information and belief, beginning in at least 1972 and

continuing thereafter until 1981, Johns Manville transmitted information

regarding the hazardous characteristics of asbestos cement pipe through

memorandum printed product information and other materials provided to

the distributors and sellers of Johns Manville asbestos cement pipe,

including Dana Kepner that gave Dana Kepner actual knowledge of the

unreasonably dangerous characteristics of Johns Manville asbestos

cement pipe. 

(Doc. # 10 at 10-11.) These allegations – that Defendant actually knew of design,

manufacturing, and/or marketing defects in the asbestos pipes it sold based on

information Johns Manville conveyed to it – easily satisfy Plaintiff’s burden of pleading

facts that, as a seller, Defendant “ha[d] actual knowledge of a defect in [the] product.” 

Colo. Rev. Stat. § 13-21-401(1). 

Defendant’s arguments do not lead to a contrary conclusion. For example,

Defendant argues that Plaintiff fails to state a claim because she did not plead “that

Dana Kepner had any role in the packing or labeling of the products [or] that Dana

Kepner had any part in selecting or specifying the asbestos cement pipe ordered by

LDB or Frontier [the companies for whom Church worked] . . . .” (Doc. # 15 at 9.) 

Whether Defendant had any role in packing, labeling, selecting, or specifying the

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asbestos pipes is irrelevant if, for other reasons (such as having been informed by

Johns Manville, as Plaintiff alleges), Defendant had actual knowledge of a defect in the

product it sold. Further, Defendant’s assertion that Plaintiff fails to plead “that Dana

Kepner received information regarding the particular defects alleged by Plaintiff prior to

selling the products to Defendant’s employers” (id.) is without merit, as the indented

quote above illustrates. Likewise, Defendant’s assertion that, even if Plaintiff’s

allegations were true, the information conveyed by Johns Manville “would only have

provided Dana Kepner with knowledge of the dangerous characteristics of asbestos

in a general sense” (id. at 10 (emphasis added)) is erroneous in light of Plaintiff’s

allegations that Johns Manville informed Defendant of the unreasonably dangerous

characteristics – including risks stemming from design, manufacturing, and/or marketing

defects – of the asbestos cement pipes it sold. 

Finally, and perhaps most problematic for Defendant, is its assertion – echoed in

similar statements, and citations to cases granting summary judgment for defendants

under the Innocent Seller Statute, elsewhere in its briefing – that “Plaintiff has not

demonstrated that Dana Kepner had actual knowledge of the defects that form the basis

of this lawsuit.” (Id. at 11.) At the motion to dismiss stage, Plaintiff is not required to

demonstrate, nor would it be feasible for her to do so in the absence of any discovery,

that Defendant actually knew of defects in the product it sold. Instead, as she has,

Plaintiff must only plead “enough facts to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570; see also, e.g., Breaux v. Am. Family Mut. Ins. Co.,

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 The Court rejects Defendant’s argument that “with regard to her negligence claim, Plaintiff

has not alleged a single fact . . . that would allow her to avoid the innocent seller statute [and]

[t]hus, Dana Kepner is a seller for purposes of this [negligence] claim and should be dismissed

pursuant to the innocent seller statute.” (Doc. # 15 at 9 n.7.) While Defendant is correct that

Plaintiff does not incorporate her allegations regarding the Innocent Seller Statute into her first

(negligence) claim for relief, she incorporates her first claim into her second claim, where she

sets forth those allegations. (See Doc. # 10 at 7.) Defendant cites no authority, nor is the Court

aware of any, requiring subsequent claims to be incorporated into previous ones. To the

contrary, and for obvious reasons, incorporating previous claims into later ones is the prevailing

practice, at least in this Court’s experience. In any event, the Court finds that Plaintiff’s incorporation of her first claim for relief into her second claim allows her Innocent Seller Statute

arguments to be applied to her negligence claim with as much force as they are to her other

claims. Any other result would be inconsistent with the principles of notice pleading discussed

in the text above. 

Further, because Defendant has failed to persuade the Court to dismiss Plaintiff’s first

or second claims, for negligence and strict liability, respectively, the Court necessarily rejects

Defendant’s lone argument regarding Plaintiff’s wrongful death claim – i.e., that it “likewise fails

as a matter of law” because it “is premised on the success of [Plaintiff’s] negligence and

products liability claims.” (Doc. # 15 at 14.)

7

554 F.3d 854, 862 (10th Cir. 2009) (quoting Fed. R. Civ. P. 8(a)(2) for the familiar

proposition that “[a] pleading that states a claim for relief must contain . . . a short and

plain statement of the claim showing that the pleader is entitled to relief”). To require

otherwise – by demanding that Plaintiff prove or “demonstrate” her claims at this point in

the litigation – would be to move up the trial to the pleadings stage which, it should go

without saying, the law does not permit. See, e.g., Qwest Corp. v. Colorado Div. of

Property Taxation, --- P.3d ---, 2011 WL 3332876, at *7 (Colo. App. Aug. 4, 2011)

(“dismissal for failure to state a claim affords no opportunity to present evidence

necessary to meet this burden, and pleading at this level of detail would be contrary to

the principle of notice pleading”), cert. granted, No. 11SC669, 2012 WL 1940812, at *1

(Colo. May 29, 2012) (unpublished). Accordingly, under Colo. Rev. Stat. § 13-21-

401(1), Plaintiff has adequately alleged that Defendant had actual knowledge of a

defect in the asbestos pipes it sold.3

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 Defendant does not assert that Plaintiff fails to allege the first or fifth elements of a conspiracy

claim. As such the Court will not address those elements here.

8

B. CONSPIRACY CLAIM

Under Colo. Rev. Stat. § 13-21-111.5(4), “[j]oint liability shall be imposed on two

or more persons who consciously conspire and deliberately pursue a common plan or

design to commit a tortious act.” However, “section 13-21-111.5(4) does not set forth

every element of the tort of civil conspiracy.” Zielger v. Inabata of Am., Inc., 316

F. Supp. 2d 908, 918 (D. Colo. 2004). Instead, and as recognized by both parties,

“to establish a civil conspiracy in Colorado, a plaintiff must show: (1) two or more

persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or

course of action; (4) an unlawful overt act; and (5) damages as to the proximate result.” 

Nelson v. Elway, 908 P.2d 102, 106 (Colo. 1995) (citing Jet Courier Serv., Inc. v. Mulei,

771 P.2d 486, 502 (Colo. 1989)). (See Docs. ## 15 at 11 (citing Elway) and 18 at 12

(citing Mulei).)4

Under § 13-21-111.5(4), “evidence of an express agreement is unnecessary.” 

Loughride v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175, 1186 (D. Colo. 2002)

(citing United States v. Fox, 902 F.2d 1508, 1515 (10th Cir. 1990), for the proposition

that “by their very nature conspiracies are often provable only by circumstantial

evidence”). Rather, the evidence must reveal only “some indicia of an agreement

sufficient to prove that the defendants consciously conspired and deliberately pursued

a common plan or design that resulted in a tortious act.” Resolution Trust Corp. v.

Heiserman, 898 P.2d 1049, 1057 (Colo. 1995). Further, “both negligent and intentional

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acts are sufficient to give rise to joint liability for purposes of section 13-21-111.5(4).” 

Id.; see also, e.g., Schneider v. Midtown Motor Co., 854 P.2d 1322, 1327 (Colo. App.

1992) (“the tort of negligent entrustment can constitute the predicate ‘tortious act’

required to establish joint liability pursuant to § 13-21-111.5(4)”). 

In the instant case, Plaintiff alleges that “Johns Manville, Defendant Dana

Kepner[,] and other co-conspirators, individually and as agents of one another and as

co-conspirators . . . agreed and conspired among themselves . . . to deliberately and

recklessly conceal from persons such as William Church the health risks of inhaling

dangerous and toxic asbestos fibers . . . .” (Doc. # 10 at 15-16.) Plaintiff further alleges

that Defendant participated in the conspiracy by “distributing Johns Manville asbestos

cement pipe without adequate warnings to end users of the unreasonably dangerous

characteristics of the product and the propensity for respirable asbestos fibers to cause

cancer. Dana Kepner benefitted and profited from the goal of the common scheme and

plan in that it distributed and sold Johns Manville asbestos cement pipe for a profit, a

principal goal of the common scheme and plan.” (Id. at 28.) 

These allegations, as well as others in Plaintiff’s extensive factual narrative (Doc.

# 10 at 15-31), are sufficient, even under the heightened pleading standards of Fed. R.

Civ. P. 9(b), to state a civil conspiracy claim. Plaintiff pleads an “object to be accomplished” and “an unlawful overt act” by alleging that Defendant sought to conceal the

health risks of asbestos, and in fact did so, by selling and distributing asbestos pipes

without adequate warnings despite having had actual knowledge of the unreasonably

dangerous characteristics of the pipes. Moreover, Plaintiff has alleged facts giving rise

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 Defendant asserts that Plaintiff has not presented “actual evidence” to support her allegations

regarding Defendant’s agreement with other alleged coconspirators. (See Doc. # 15 at 13-14.) 

However, for reasons already discussed, Plaintiff cannot be expected to have, let alone put on,

evidence at this stage of the proceedings. Determining whether Plaintiff can support her

allegations with evidence must await the summary judgment stage or trial – that is, some

point in the proceedings after discovery has occurred. 

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to at least “some indicia of an agreement” between Defendant and other alleged

coconspirators, especially Johns Manville, by asserting that Defendant entered into and

maintained distribution agreements with Johns Manville to distribute and sell asbestos

pipes without adequate warnings, notwithstanding information that Johns Manville had

conveyed to it regarding defects in the pipes. See, e.g., Schneider, 854 P.2d at 1327

(denying defendant dealership’s summary judgment motion and finding its “actions of

repeatedly selling cars to [an] unlicensed motorist” even though it believed him to be a

“crazy driver” presented a genuine dispute of material fact as to whether dealership and

its agents maintained tacit agreement for purposes of civil conspiracy liability).5 

The Court again finds Defendant’s arguments to the contrary unpersuasive. 

Defendant asserts that, according to Plaintiff’s allegations, Defendant “[a]t most . . .

breached a duty to Decedent and/or Plaintiff by unknowingly passing along Johns

Manville’s defective product warnings.” (Doc. # 15 at 12-13.) As already indicated,

however, Plaintiff pled facts to support its allegation that Defendant’s actions occurred

despite actual knowledge it possessed regarding asbestos-related defects in the pipes

it sold. For the same reason, the Court rejects Defendant’s assertion that “the most

Plaintiff has alleged was that Dana Kepner sold asbestos cement pipe.” (Doc. # 19

at 10.) Finally, although Defendant cites authority to support its position that “Plaintiff

must allege facts that show that Dana Kepner agreed to do something in furtherance of

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the conspiracy, knowing of its improper purpose” (Doc. # 15 at 11, citing Powell Prods.,

Inc. v. Marks, 948 F. Supp. 1469, 1480 (D. Colo. 1996)), the Court agrees with Plaintiff’s

assessment that conduct beyond mere negligence – including, perhaps, “fraudulent

concealment, willful and wanton conduct, and recklessness” (Doc. # 10 at 28) – will be

implicated if Plaintiff can prove her claims. Accordingly, Plaintiff has successfully stated

a civil conspiracy claim under Colo. Rev. Stat. § 13-21-111.5(4).

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. # 15) is

DENIED.

DATED: September 16 , 2012

BY THE COURT:

_______________________________

CHRISTINE M. ARGUELLO

United States District Judge

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