Plaintiffs often file complaints just barely within the time period allowed by law, often also without full knowledge of who the proper defendants are in any given case. Justice would dictate that a defendant who is only named in a complaint that is amended after the running of the applicable statute of limitation should be out of jeopardy and entitled to their repose. Unfortunately, this is not the case in Colorado. Before 2013 Colorado courts generally allowed such amendments and service on defendants to be effective months after the running of the statute of limitations.
Insurance—Bad Faith—Independent Medical Exams
No. 18SA135, Schultz v. GEICO Casualty Company, § 10-3-1115, C.R.S. (2018)
Plaintiff-petitioner Charissa Schultz was injured in a 2015 car accident when the other vehicle driver failed to stop at a stop sign. The other vehicle driver’s insurance company settled for its $25,000 policy limit, and Schultz made a demand on her own uninsured/underinsured motorist benefits under her GEICO policy, which also had a $25,000 limit.
When most people think of insurance, they think of the policies they use in their everyday life through an auto policy, homeowners/renters insurance or health insurance. More likely than not, they pay the premiums and do not read the fine print. Regardless, if the fine print is read, the policyholder feels the insurance provides peace of mind. It is the idea something bad may not happen now, but it will eventually. And when it does happen, I better be protected. To the “Average Joe”, the premium is a small price to pay for the idea of security.
When a person is injured in the workplace, generally speaking, the only compensation the employee is entitled to comes from his or her employer’s worker’ compensation insurance. To the chagrin of employees and plaintiffs’ attorneys, while a workers’ compensation claim can certainly result in money and benefits, both temporary and permanent disability payments are usually considered not adequate to compensate the employee. Further, typical forms of non-economic damages recoverable in civil actions are not available before a workers’ compensation board, such as pain and suffering and punitive damages seeking to punish an employer for dangerous work conditions or inadequate safety policies and procedures. However, conduct a state-by-state survey and one will find vastly different exclusivity statutes, providing for wide-ranging exceptions. So, knowing the scope of recovery under your state’s workers’ compensation is important.
Can a Colorado trial court in a personal injury trial instruct the jury to consider the effects on plaintiff’s injuries of alternative incidents (such as a second car accident) if the defendant fails to introduce evidence supporting such an instruction? In Herrera v. Lerma, 2018 COA 141 (September 20, 2018), the Colorado Court of Appeal answered the question in the negative and held such instruction would invite the jury to engage in “mere conjecture.”
It is axiomatic that hosting parties and welcoming friends, families and even strangers into our home, serving alcohol, food and other arrangements has become engrained in our social fabric. Commonly accepted, with little regard for legal consequences, we desire to host the perfect party, make our guest feel welcome and ensure everyone has fun. Often, we overlook indiscretions that could have legal consequences, such as, a minor sneaking alcohol or a guest having one too many. Social responsibility would suggest that as host we consider the safety of our guests and even people our guests may come into contact with after they leave the party. The law, however, does not always encourage what may seem as the most socially responsible course of action.
Hernandez v. City & County of Denver, 2018 WL 5074557
Stella Hernandez sued Deputy Sheriff Tracey Dodson and other Denver Detention Center employees for personal injuries she sustained while incarcerated. In her Complaint, Ms. Hernandez advances allegations of negligence, as well as willful and wanton conduct.
Can a non-client sue an attorney for malpractice or breach of contract absent a showing of fraud, malicious conduct, or negligent misrepresentation? In Bewley v. Semler, 2018 CO 79 (Sept. 24, 2018), the Colorado Supreme Court answered the question in the negative. Absent such claims of wrongdoing, the strict privity rule bars claims against attorneys by non-clients, because, as the court ruled, holding otherwise may force attorneys to place non-clients’ interests ahead of clients’ interests.
RIGHT TO A JURY TRIAL – CIVIL ACTIONS
Mason v. Farm Credit of Southern Colorado, 419 P.3d 975 (Col. Sup. Ct.)
Between 2008 and 2011, Zachary Mason entered into several loan agreements with Farm Credit of Southern Colorado (“Farm Credit”) wherein he granted Farm Credit a perfected security interest in some of his crops, farm equipment, and other personal property. After he defaulted on the loans, Farm Credit filed a lawsuit, in 2012, on various claims based in contract and tort.
In 2014, Colorado became the first state in the nation to legalize recreational marijuana. Much attention has been devoted to the problems federal criminal laws pose for the marijuana industry operating within a state, which legalized it due to federal banking regulations. Less attention has been devoted to the problem of ensuring business entities have effective insurance coverage available to manage their risks.
Rooftop Restoration, Inc. v. American Family Mut. Ins. Co.
In this recent Colorado Supreme Court decision, the Court issued an opinion interpreting and applying C.R.S. §§ 10-3-1115/1116, the statutes that provide a private right of action against an insurer for unreasonable delay or denial of insurance benefits. The Court held claims under the statute are not subject to the one-year statute of limitations applicable to penalties and insureds are entitled to recover two times the covered insurance benefit in addition to the covered benefit, for a total of three times the covered benefit. In order to reach this conclusion, the Court looked at the language of the accrual statute associated with Colorado’s statutory scheme for statutes of limitation. The accrual statute states that a cause of action for penalties accrues when the determination of overpayment or delinquency is no longer subject to appeal. The Court reasoned that an action for unreasonable delay/denial never leads to a determination of overpayment or delinquency. Thus, the Court reasoned, if a cause of action for unreasonable delay/denial is a penalty subject to the one-year statute of limitations, it would never accrue and the clock to bring the claim would never start ticking. The Court concluded the “penalty” actions referred to in the statute of limitations cannot include unreasonable delay/denial actions. Accordingly, the Court held claims under C.R.S. §§ 10-3-1115/1116 are not governed by the one-year statute of limitations in C.R.S. § 13-80-103(1)(d).
Colorado has enacted a number of tort reform statutes. Typically, these statutes limit the amount of tort damages available to a plaintiff. For example, CRS § 13-21-102.5(3)(a) limits non-economic damages in a tort action to $468,010 (but this cap is increased to a maximum of $936,030 if the plaintiff can show by “clear and convincing” evidence that the higher cap is warranted).
State Farm Fire and Casualty Company v. Griggs (Colo. 2018) 419 P.3d 572
On June 4, 2018, the Colorado Supreme Court reversed a district court decision that held State Farm Fire and Casualty Company (“State Farm”) had waived attorney client-privilege by submitting an affidavit from its former attorney regarding their communications. The Supreme Court determined the district court erred in deciding State Farm had put its communications at issue by filing the affidavit in support of its opposition to a motion for sanctions filed by one of the defendants and respondent. The Court held State Farm’s opposition was using the affidavit to explain representations of fact. State Farm did not make an argument that relied upon legal advice provided by former counsel. On that basis, the Court held State Farm it did not put those communications at issue.
Does a party impliedly waive attorney-client privilege by submitting an affidavit from counsel to rebut factual allegations of discovery misconduct? According to the Colorado Supreme Court, in State Farm Fire & Cas. Co. v. Griggs (2018 CO 50), if the affidavit recites merely facts and does not discuss legal advice provided to the client or assert claims or defenses that rely on privileged communications, the privilege is not waived.
A look at Evanston Ins. Co. v. Law Office of Michael P. Medved, P.C.
890 F.3d 1195
United States Court of Appeals, Tenth Circuit
Overview of Case
Defendant, Michael Medved, is a Colorado attorney who handled foreclosures. When foreclosing on properties, he billed his attorney fees and costs to clients, which were lenders and investors. However, the attorney fees and costs were ultimately passed on to the property owners (or buyers, if the property was resold). In 2010, the Colorado Attorney General began investigating defendant and other foreclosure attorneys, questioning whether they had overbilled. When the investigation became public, property owners brought a class action against defendant and his firm for overbilling.