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Colorado’s Approach to Resolve a Conflict of Laws

Author: Michael D. Drews

Guest Editors: Jeremy Freedman, Ashley Kaye

November 30, 2020 4:30pm

Have you ever been faced with a situation where an insurance policy was issued in one state, but a motor vehicle accident involving the covered auto occurs in another? Of course, the first step is to consult the policy and locate the choice of law provision, but what do you do when there is not one contained in the policy?

One Way a Plaintiff May Try to Get Around Colorado’s Noneconomic Cap in a Wrongful Death Case: Claim a Felonious Killing

Author: Michael D. Drews

Guest Editor: David Kahn

October 5, 2020 1:35pm

The Colorado wrongful death statute specifies who may file a wrongful death claim, including time limits to each potential plaintiff’s ability to commence an action. The surviving spouse of decedent is the only person who may file a wrongful death claim in the first year after death. During the second year after death, both the surviving spouse and the surviving children of decedent are allowed to file a claim. If the decedent left no surviving spouse and no surviving children, then decedent’s parents may file a wrongful death claim.

“No Helmet, No Problem,” but Defendants Pay for It: Colorado’s Lack of a Helmet Law

Author: Michael D. Drews

Guest Editor: David Kahn

September 1, 2020 8:30am

Us Generation Xer’s will be the last generation who can recall a life in a world without internet, computer dependency, cellphones, safe playgrounds, and, the subject of this article, wearing helmets while riding our bicycles (we are also the last generation to recall what really good music sounds like, but I digress).  As apathetic Gen Xers retired their flannel and baggy clothes in favor of becoming responsible parents, it would be unthinkable to not outfit our children with a helmet.  Statistics support the use of a helmet…

Colorado’s Seatbelt Law and the Effect on a Plaintiff’s Damages for Not Buckling Up

Author: Michael D. Drews

Guest Editor: Raymond K. Wilson Jr.

July 8, 2020 12:00pm

Everyone is aware of the “Click It or Ticket” national campaign to ensure drivers and passengers buckle up to reduce traffic related injuries and deaths on our highways. Of course, that campaign is aimed toward the traffic infraction/moving violation punitive side of the justice system, not civil matters. So, what happens in Colorado when a plaintiff commences a civil suit for injuries and damages sustained in a motor vehicle accident, but he or she failed to use a seatbelt?

Colorado’s Premises Liability Act: History, Definitions, Defenses, and Practical Considerations

Author: Michael D. Drews

Guest Editor: Ashley Kaye

June 1, 2020 9:00am

The Colorado Supreme Court said it best: “the law of premises liability in Colorado has had something of a checkered history.” In 1971, the Court overruled the common-law distinctions between trespassers, licensees, and invitees in determining the standard of care owed by the occupier of land towards those who come upon the land, because those principles occasioned harsh…

So Plaintiff Filed in the Wrong Colorado Venue Against an Insured Foreign Business Entity: Now What?

Author: Michael D. Drews

Guest Editor: Christopher Schon

May 6, 2020 7:26pm

We tend to see plaintiffs filing in the wrong venue when the insured is a foreign business entity.  Reason being, foreign business entities are, by their very definition, organized under the laws of another state, so the appropriate venue is not always so clear.  When plaintiffs do it wrong in Colorado, they typically have filed the lawsuit in Boulder or Denver County.  Why?  Because those two jurisdictions tend to be the most liberal, plaintiff friendly…

Serving Parties in Colorado in the Age of COVID-19

Author: Bradley Damm

Guest Editor: Raymond K. Wilson Jr.

April 6, 2020 2:55pm

Tyson & Mendes’ Colorado office often represents developers and general contractors in construction defect cases.  We typically need to bring third party claims against the design professionals and subcontractors to obtain their participation in the case.  However, due to the coronavirus outbreak and resulting restrictions on personal contact, serving these Third Party Defendants is nearly impossible.  Instead of waiting out…

Update: Colorado’s Damages Caps Have Officially Increased for the First Time in 12 Years

Author: Michael D. Drews

Guest Editor: Cinnamon J. Carr

March 4, 2020 10:00am

In July 2019, we explained in an article, entitled: “Colorado’s Damages Caps will Increase for the First Time in 12 Years on January 1, 2020,” Senate Bill 19-109 had been signed into law, which would raise the caps on noneconomic damages, derivative noneconomic damages, wrongful death, solatium, and dram shop/social host statutes for inflation.[1]  However, at the time of writing the article, the new cap amounts going into…

Colorado Legislator Seeks to Extend Construction Defect Limitations Period To a Decade and Beyond

Author: Bradley Damm

Guest Editor: Wendy Skillman

March 4, 2020 10:00am

In 2017, the Colorado Supreme Court and Colorado Legislature each took action many developers and contractors credit for spurring multifamily development.  The decision in Vallagio clarified that developers could retain a right of consent to certain amendments to the homeowners’ association’s declaration.  House Bill 1279 imposed notice and voting requirements that increased the difficulty for homeowners’ associations to bring construction defect…

Supreme Court’s Guidance to Developers in the Vallagio Case

Author: Bradley Damm

Guest Editor: Robert Bernstein

February 11, 2020 3:14pm

In 2017, the Colorado Supreme Court handed developers a victory in the ongoing saga of construction defect law in Colorado. In Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., 395 P.3d 788 (Colo. 2017), the Colorado Supreme Court held that the Colorado Common Interest Ownership Act (“CCIOA”) does not prohibit developers from retaining a right of consent to certain amendments to the HOA’s…

Colorado Legislature Attempts to Propel Condominium Development

Author: Bradley Damm

Guest Editor: Terra Davenport

January 8, 2020 11:00am

Colorado has consistently ranked near the top for population growth over the past decade.  Despite substantial annual increases in the population, condominium and other multifamily constructions remained stagnant. Now, numerous real estate professionals are crediting the legislature for helping spur condominium development.

Colorado’s Made Whole Doctrine and Its Effect on Subrogation Claims

Author: Michael D. Drews

Guest Editor: Raymond K. Wilson Jr.

December 2, 2019 10:00am

Colorado’s Made Whole Doctrine first appeared in 1989, in the case of Kral v. American Hardware Mut. Ins. Co.  However, the Colorado Supreme Court’s decision was limited to whether the enforcement of agreements reducing an insured’s liability for uninsured motorist coverage was proper when such enforcement would leave an insured less than fully compensated for loss caused by the negligent conduct of a financially irresponsible motorist.

Colorado Court Calls Into Question Ability of Insurers to Intervene When Insureds Fail to Defend Themselves

Author: Cinnamon J. Carr

Guest Editor: Raymond K. Wilson Jr.

December 2, 2019 10:00am

Picture this situation:  The insurance carrier agrees to defend an insured under a reservation of rights.  During the course of litigation, the insured fails to adequately defend itself for any number of reasons: it is a suspended corporation; it knowingly enters into a settlement agreement wherein the insured agrees not to present a defense; it simply refuses to cooperate.  As a result, the insurance carrier wants to intervene in the litigation to protect its…

In Colorado, Defendants May Seek the Discovery and Admissibility of Medical Lien Companies’ Amounts Paid Versus Amounts Billed

Author: Michael D. Drews

November 5, 2019 8:00am

An ever-increasing number of plaintiff’s firms in Colorado are sending their clients to medical lien companies, sometimes referred to as medical healthcare funding companies or medical bill factoring companies.  These companies partner with plaintiffs’ attorneys and work with physicians to: (1) elicit inflated bills from a healthcare provider; (2) pay the provider a discounted amount to satisfy the bills; and (3) assert a lien for the inflated…

Limiting Damages in Colorado Motor Vehicle Accident Cases When a Driver is “Under the Influence” of Marijuana

Author: Cinnamon J. Carr

Guest Editor: Robert Bernstein

November 5, 2019 8:00am

As many states pass regulations that permit the medical and recreational use of marijuana, the implications of such usage have not been fully realized in the context of litigation in motor vehicle accidents. While plaintiffs are quick to associate defendant’s legal use of marijuana as the cause of the accident, defendants also need to be aware that plaintiff’s use can also be a contributing factor. Establishing it as such can, however, be a challenge.

Preserving Your Right to Arbitrate

Author: Bradley Damm

Guest Editor: Ashley Kaye

September 30, 2019 10:00am

At what point does a defendant waive its contractual arbitration rights?  Courts in Colorado favor enforcement of arbitration agreements and disfavor waiver.  However, the courts have identified limits as to how much a party may take advantage of court resources before the court finds the party has waived its right to arbitration.

Drafting an Unchallengeable Designation of Nonparties at Fault

Author: Bradley Damm

September 3, 2019 10:00am

Colorado imposes a comparative negligence standard on damages.  In particular, the Colorado legislature has declared that no defendant shall be liable for an amount greater than the defendant’s percentage of negligence or fault. However, if a defendant believes a nonparty is liable for the plaintiff’s damages, the defendant must take specific steps to protect itself and explicitly designate the nonparty at fault.  Plaintiffs frequently move to strike…

Colorado Case Law Update

Author: Rachel Donnelly

August 7, 2019 10:00am

William Scholle v. Delta Air Line, Inc. (March 25, 2016, JVR No. 1605310035)
Kent Ryser v. Shelter Mutual Insurance Company (June 13, 2019)

Obtaining Probate Court Approval of a Settlement with a Pro Se Minor or Disabled Person

Author: Bradley Damm

August 7, 2019 10:00am

On August 31, 2018, the Colorado State Judicial Branch released the revised Colorado Rules of Probate Procedure.  The procedure for seeking Court approval of a personal injury settlement with a minor or disabled person is now governed by C.R.P.P. 62.  Although Rule 62 provides very detailed instruction on how to obtain Court approval of a settlement with a minor or disabled person, defense counsel must still walk a fine ethical…

Colorado Disclosure of Insurance Liability Coverage Law: Which Disclosures are Required, and When?

Author: Law Clerk

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

On May 22, 2019, Governor of Colorado Jared Polis signed HSB 19-1283 into law, which goes into effect on January 1, 2020. Once the new law goes into effect, claimants may be able to obtain substantially more information regarding policy limits prior to filing a suit. Insurance providers should be aware of the new law, and should be aware of the increased need to obtain defense council early in a case to avoid unnecessary litigation…

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