Colorado Case Law Update

Author: Michael McDonald

Guest Editor: Salayha K. Ghoury

June 4, 2019 8:23am

Scholle v. Delta Air Lines, Inc. (May 23, 2019) P.3d, 2019 COA 81, 2019 WL 2219704; Colorado Court of Appeals, Division VI

Overview

Under the Collateral Source Rule in Colorado, generally, payments a plaintiff’s insurer makes to their insured in relation to injuries sustained are not admissible evidence to show the cost of plaintiff’s medical expenses. Instead, Colorado law allows a plaintiff to present as evidence of his or her damages the higher amount the medical provider billed.

Statute of Limitations Considerations in Colorado: Has Plaintiff Started the Party Too Late?

Author: Michael D. Drews

Guest Editor: Salayha K. Ghoury

June 3, 2019 4:56pm

We are all familiar with the notion of statutes of limitations, with the legal terms having found its way into the average law person’s lexicon.  However, what appears to be a relatively simple legal theory can actually give rise to a multitude of considerations.  This article is intended as a survey of the commonly encountered ones, as well as a guide to evaluating a potential violations of an applicable statute of limitations.

Has a Plaintiff Really Exhausted His or Her Administrative Remedies in Discrimination-based Employment Lawsuits? A Tenth Circuit Prospective

Author: Michael D. Drews

Guest Editor: Kris Darrough

May 6, 2019 1:08pm

The United States Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing Title VII of the Civil Rights Act of 1964 (“Title VII”), the Pregnancy Discrimination Act, the Equal Pay Act of 1963 (“EPA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), Title I of the Americans with Disabilities Act of 1990 (“ADA”), Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

Colorado and the Seat Belt Defense

Author: Doug Baier

Guest Editor: Kris Darrough

May 6, 2019 1:00pm

What was the intent of the Colorado Legislature?

Colorado Revised Statute Section 42.4.237(7) provides that evidence of seat belt non-use “shall be admissible to mitigate pain and suffering damages with respect to any person who was involved in a motor accident and who seeks any subsequent litigation to recover damages for injuries resulting from the accident.”[1] The Supreme Court of Colorado has held the use of the world “shall” signifies the legislature intended for seat belt non-use to be admissible, if the non-use is supported by competent, sufficient evidence.[2] The General Assembly of Colorado enacted the Mandatory Seat Belt Act to promote seat belt use.[3] In the Act, the amount of pain and suffering damages[4] is decreased in proportion to injuries attributable to seat belt non-use.[5] Thus, the legislature’s intent is clear and the non-use of a seat belt is an affirmative defense and is admissible.[6]

Colorado Case Law Update

Author: Danielle Vukovich

Guest Editor: Chandra Roam

May 6, 2019 12:24pm

The Colorado Court of Appeals, Divisions I and V have both recently issued rulings in the last month with holdings that may affect civil litigants, particularly insurance carriers.  In Lorenzen v. Pinnacol Assurance, the Colorado Court of Appeals, Division I, addressed the issue of what constitutes a viable theory of causation and the requirements for adequately pleading a claim for noneconomic injuries unrelated to physical impairment. Additionally, in Houchin v. Denver Health and Hospital Authority, the Court of Appeals, Division V, addressed whether claims brought under the Colorado Anti-Discrimination Act against a state hospital operator are subject to the Colorado Governmental Immunity Act.

Let’s go DE-FENSE! Let’s go! Let’s go DE-FENSE! Let’s go! Applying A Basketball Full-Court Press Defense: Defending Preclusion in Colorado

Author: Brittany Boiko, Pamela Palpallatoc

April 1, 2019 1:38pm

In basketball, a full-court press is an all-out defensive effort on the entire length (both halves) of the court. This article provides an overview of claim and issue preclusion, and then provides an overview of defending a less common strategy used by plaintiffs, offensive preclusion.  Addressing the potential for offensive preclusion early in the defense of a matter is arguably equivalent to a full-court press defensive effort.

Colorado Bar Fights: Who is Liable? A Landlord, a Tavern Owner or Both?

Author: Michael D. Drews

Guest Editor: Christopher Schon

April 1, 2019 12:31pm

“Mean Streets,” “Roadhouse,” “Boondock Saints,” and “A Bronx Tale” all have epic bar fight scenes.  The common denominator is a tavern frequented by, let us just say, a rough crowd and a tavern owner who is presumably looking the other way.  Of course, it is just Hollywood.  Or is it?  What about our neighborhood watering holes?  Those establishments are not immune from the occasional or sometimes frequent disagreements among patrons devolving into fisticuffs or worse.

Colorado Case Law Update

Author: Jenny Silverstein

Guest Editor: Christopher Schon

April 1, 2019 12:24pm

An Appellate Brief Needs to State More Than Just the Court’s Order and a Recitation Of The Facts

Kent Vu Phan v. National Jewish Health, et al. (January 30, 2019, 2019 WL 386912)

Plaintiff Phan is an owner of a condominium and claims to have been damaged when he found standing water in his condo’s crawlspace. While Mr. Phan’s insurance agency denied his claims, Mr. Phan alleged his property and his health had been harmed as a result of the “contaminated” standing water. After his claim was denied, he filed a lawsuit against the homeowners association, which dismissed his claim because Mr. Phan could not find a doctor who would affirm that Mr. Phan’s health had declined due to the standing water. Plaintiff decided to represent himself and filed an amended complaint which cited the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, conspiracy, discrimination based on his race and various Colorado state laws.

Colorado Case Law Update

Author: Kelly Ryan

Guest Editor: Alla Policastro

March 5, 2019 8:58am

Brown v. American Standard Insurance Company of Wisconsin (January 24, 2019 WL 302838)

Cancellation of issued insurance policies must be based on accurate information.

Background

Plaintiff Michael Brown purchased a motorcycle insurance policy from American Standard. Soon after, American Standard mailed a notice to Mr. Brown canceling the policy because he did not have a valid driver’s license.  Mr. Brown did not dispute the cancellation. He was then in a motorcycle accident and sustained serious injuries.  When Mr. Brown made a claim for benefits pursuant to the American Standard uninsured/underinsured motorist coverage, American Standard denied the claim due to lack of coverage.

Colorado’s Construction Defect Action Reform Act: “If You Build It, [Lawsuits] Will Come”

Author: Michael D. Drews

March 4, 2019 9:00am

The U.S. Census Bureau estimates Colorado’s population increased 13.2 percent between April 1, 2010 and July 1, 2018.[i]  In the last full calendar year alone, Colorado added almost 80,000 people, making it the seventh fastest-growing state in the country.  Naturally, these new residents, in addition to the natives, need places to live, learn, shop, play, and get health care.  So it should be no surprise Colorado has experienced a building boom paralleling its population increase.

Colorado Case Law Update

Author: Rachel Donnelly

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 2:50pm

In re: Kayla Fox v. William Alfini, Jr. D.C. and Brady Chiropractic Group. P.C. (December 3, 2018, 2018 WL 6441601)

Background

Kayla Fox who was in her early thirties suffered a stroke immediately after receiving chiropractic treatment and survived. Fox and her parents later contacted an attorney to discuss a possible malpractice action against the chiropractor. The attorney recorded a portion of this initial consultation.

The Future of Health Care in Colorado

Author: Jillian Stanley

Guest Editor: Raymond K. Wilson Jr.

February 4, 2019 12:39pm

The debate over health care and what policies states should implement is not unique to Colorado. Across the country the debate rages as to the function of the government in relation to health care.  In Colorado, the November midterm election resulted in a Democratic sweep: the state house, state senate, and governor are now all members of the Democratic party. As a result, there are already several proposed bills that would drastically change the landscape of health care in Colorado.

Colorado Case Law Update

Author: Terra Davenport

January 7, 2019 9:00am

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.

Snap Decisions: The Dangers of Bad Faith Litigation in Colorado

Author: Jenny Silverstein

December 3, 2018 9:00am

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.

Injured on the Job? Want to Sue Your Employer? Not So Fast

Author: Michael D. Drews

December 3, 2018 9:00am

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.

Colorado Court of Appeals Rules Jury Instruction on Aggravation or Alternative Causation of Plaintiff’s Injuries Improper Absent Affirmative Evidence Presented by Defendant

Author: Issa Mikel

November 5, 2018 9:00am

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.”

Excuse Me – Can I Please See Your I.D.? Social Host Liability for Minors in Colorado

Author: Jeremy Freedman

Guest Editor: Tiffany LeMelle

November 5, 2018 9:00am

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.

Colorado Case Law Updates

Author: Emily Straub

November 5, 2018 9:00am

Hernandez v. City & County of Denver, 2018 WL 5074557

Facts

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.

Colorado Supreme Court Rules Strict Privity Required for Non-Clients to Sue Attorneys, Absent Fraud, Malicious Conduct, or Negligent Misrepresentation

Author: Issa Mikel

October 1, 2018 10:00am

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.

Colorado Case Law Update

Author: Nathan Berkeley

September 5, 2018 9:00am

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.

Colorado Case Law Updates

Author: Emily Berman

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

Rooftop Restoration, Inc. v. American Family Mut. Ins. Co.[1]

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).

Dram Shop Wrongful Death Damage: Which Damages Cap Prevails?

Author: Jacob Felderman

Guest Editor: Jessica Heppenstall

August 6, 2018 9:00am

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).

The Preservation of Attorney Client Privilege in State Farm v. Griggs

Author: Mark Bolin

Guest Editor: Natasha K. Zaslove

August 6, 2018 9:00am

State Farm Fire and Casualty Company v. Griggs (Colo. 2018) 419 P.3d 572

Introduction

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.

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