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The Tenth Circuit on Friday issued one published opinion and three unpublished opinions.
Published
In Hafed v. Federal Bureau of Prisons, the Court withdrew its published order from December 28, 2010, and substituted an amended order. The Court granted Petitioner’s motion for an extension of time to pay the filing fee, but denied all other motions for reconsideration of previous orders, for protective orders, and to “allow appellant to contact his foreign consuls.”
Unpublished
The Colorado Court of Appeals issued its opinion in Vulcan Power Company v. Munson; Munson v. Vulcan Power Company on February 3, 2011.
Employment Contract—Arbitration—Board of Directors—Removal.
Counterclaim defendants Vulcan Power Company (Vulcan), Scott Mackin, and Todd Bright (collectively, defendants) appealed the district court’s order refusing (1) to give preclusive effect to an Oregon court’s order granting a motion to compel arbitration; and (2) to compel arbitration based on the employment contract of counterclaimant Stephen M. Munson, Vulcan’s former President and Chief Executive Officer (CEO). The appeal was dismissed in part and the order was affirmed in part.
After institutional investors obtained control of Vulcan’s board of directors, the board terminated Munson for cause as President and CEO. In response, Munson and certain Vulcan shareholders, acting in their individual capacities, sued Vulcan and the institutional investor directors in Oregon circuit court. The Oregon court dismissed all claims and granted a motion to compel arbitration of the claims that it had dismissed. While the Oregon action was pending, Vulcan filed the current Colorado action to remove Munson as a member of the board of directors. The Colorado trial court denied Vulcan’s motion to dismiss based on issue preclusion, and refused to otherwise compel arbitration. Defendants brought this interlocutory appeal pursuant to CRS §13-22-228(1)(a) of the Uniform Arbitration Act (UAA).
The Court of Appeals determined that it lacked jurisdiction pursuant to the UAA to hear that portion of defendants’ appeal concerning the district court’s rejection of their issue preclusion argument. The portion of defendants’ appeal challenging the district court’s refusal to give preclusive effect to the Oregon court’s order was dismissed
Defendants argued that the district court erred in refusing to compel arbitration based on Munson’s employment contract. Pursuant to the choice of law provision in Munson’s employment contract, the Court applied Oregon law to this case. Under Oregon law, courts must consider “whether the parties intended their arbitration agreement to include the present controversy by examining the text and context of the provision.” Munson’s employment agreement provided that if he “contests any termination hereunder, such contest shall be resolved by binding arbitration.” Here, Munson was not seeking damages for any wrongful termination; rather, he and certain other Vulcan shareholders were seeking to remove directors pursuant to a statute, and his termination constituted only one factual allegation among many supporting this claim. For these reasons, the district court correctly rejected defendants’ contention that Munson’s employment contract required arbitration of the counterclaim’s allegations relating to his termination.
This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on February 3, 2011, can be found here.
The Colorado Court of Appeals issued its opinion in Levy v. American Family Mutual Ins. Co. on February 3, 2011.
Arbitration Award—Automobile Accident—Insurance—Medical Payments—Underinsured Motorist Coverage—Subrogation—Collateral Source Rule.
Plaintiff Susan Levy appealed the district court’s order holding that American Family Mutual Insurance Company (American Family), the insurer of a vehicle in which she was a passenger, was entitled to deduct the amount of medical payments previously paid on her behalf from an arbitration award for damages under the insurance policy. American Family cross-appealed the court’s orders granting prejudgment interest and costs in favor of Levy. The order was affirmed in part and reversed in part, and the case was remanded.
In 2004, Levy was a passenger in a vehicle owned by Constance Gouge-Richardson, who was insured by American Family, when she was injured in an automobile accident caused by Jessica Fink, who was insured by USAA. Pursuant to the medical payment coverage of the insurance policy, American Family paid $18,838 of Levy’s medical expenses. American Family waived its rights of subrogation against USAA and Fink, and Levy received $23,763.77 from her settlement with USAA and Fink. Levy then filed a complaint in the district court seeking money damages from American Family under the uninsured/underinsured motorist coverage of the policy and exercised her right under the policy to seek binding arbitration. The arbitration panel determined that Levy’s damages totaled $77,500, which included $25,000 in medical expenses. The trial court approved American Family’s request to offset the award by $23,763.77, the settlement amount received from USAA, and $18,838, the amount previously paid by American Family to Levy’s medical providers.
On appeal, Levy contended that the district court erred in concluding that American Family was entitled to reduce the arbitration award by the amount it previously paid for her medical expenses. The parties reserved the issue for the district court to modify the arbitration award. American Family’s policy contained a subrogation clause, and the waiver as to USAA and Fink did not affect its right to avoid duplicative payments to Levy. Levy was not entitled to double recovery from her own insurer, and neither the collateral source rule nor the contract exception dictated a contrary result. Therefore, the judgment was affirmed.
On cross-appeal, American Family argued that the district court impermissibly modified the arbitration award by adding pre-judgment interest and costs in favor of Levy. The arbitrator’s order was silent as to the issue of pre-judgment interest and costs, and nothing in the record indicated that the issue was reserved by the parties for determination by the district court at a later date. Therefore, the district court’s subsequent order granting pre-judgment interest and costs in favor of Levy was an impermissible modification of the arbitration award. Post-judgment interest on an arbitration award, however, is proper, and the case was remanded to determine that amount.
This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on February 3, 2011, can be found here.
The Colorado Court of Appeals issued its opinion in Cardenas v. Financial Indemnity Co. on February 3, 2011.
No-Fault Act—Personal Injury Protection—Enhanced Benefits—Reformation.
In this action for reformation of an automobile insurance policy, plaintiff Robert Cardenas appealed the trial court judgment entered on a jury verdict against him and in favor of defendant Financial Indemnity Company (FIC). The judgment was reversed and the case was remanded with directions.
In April 2003, Cardenas was injured in an automobile accident while riding as a passenger in a car driven by a relative’s friend, Bobby Suazo, who was insured by FIC. Before the accident, Suazo had purchased a policy that included basic personal injury protection (PIP) benefits in the minimum amount required by the by the former Colorado Auto Accident Reparations Act (No-Fault Act). Following the accident, FIC paid Cardenas those basic PIP benefits. Suazo’s policy also included enhanced PIP coverage; however, those benefits only applied to the named insured, his or her spouse, and any family member living in the insured’s household. Cardenas filed a motion seeking to reform the policy to include him as a beneficiary of the enhanced PIP benefits. The trial court denied the motion, concluding that despite the deficiency in the policy language, a reasonable fact finder could determine that FIC’s offer of enhanced PIP coverage complied with the No-Fault Act.
On appeal, Cardenas contended that the trial court erred in denying his motion for judgment notwithstanding the verdict, asserting that he was entitled to reformation of the policy as a matter of law because FIC failed to properly offer enhanced PIP benefits as required by the No-Fault Act. The No-Fault Act required that a complying policy provide certain mandatory minimum PIP benefits. This coverage had to extend to four categories of people: (1) the named insured; (2) resident relatives of the named insured; (3) passengers in the vehicle of the named insured; and (4) pedestrians who are injured by the covered vehicle. The No-Fault Act also required an insurer to offer optional enhanced PIP coverage, which had to extend to the same four groups of people as required for basic PIP coverage. Because FIC’s policy did not extend coverage of enhanced PIP benefits to passengers and pedestrians, it failed to comply with the No-Fault Act; therefore, such coverage was deemed incorporated into the policy as a matter of law. The judgment was reversed and the case was remanded for the court to reform the policy to include it.
This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on February 3, 2011, can be found here.
The Twentieth Judicial District Nominating Commission will meet Tuesday, March 15, 2011, at the Boulder County Combined Court to interview and select nominees for appointment by the governor to the office of district court judge for the Twentieth Judicial District, which serves Boulder County. The vacancy will be created by the retirement of the Honorable Carol Glowinsky on April 29, 2011.
Eligible applicants for appointment to fill the vacancy must be a qualified elector of the Twentieth Judicial District and must have been admitted to the practice of law in Colorado for five years. The application deadline is February 22, 2011. The appointed judge will serve an initial provisional term of two years before facing a retention election. Retained judges serve six-year terms.
CBA CLE Legal Connection is published by Colorado Bar Association CLE (also known as CLE in Colorado, Inc.). It is focused on delivering timely resources, updates and continuing legal education to … [Read More...]
Solo Tip Tuesday: Change the Outlook Background Color
I use categories in Outlook for a number of reasons. One thing categories allow me to do is look at my calendar and easily tell the difference between a meeting I have to attend, a presentation I’m scheduled to make, and a meeting I need to track but won’t attend. Here’s how to change the background in Outlook. Click here to read more.
