January 19, 2018

Archives for March 20, 2013

William Herringer Appointed to Sixth Judicial District Court Bench

On Thursday, March 14, 2013, Governor John Hickenlooper appointed William Herringer to the bench of the Sixth Judicial District Court, effective March 11, 2013. He will replace Hon. David L. Dickinson, whose retirement was effective February 28, 2013.

Prior to his appointment, Herringer was an attorney in private practice at Greenberg & Herringer, LLC, in Durango. He primarily focused on criminal defense, but also handled personal injury cases and protection order hearings. He earned his law degree from University of Colorado Law School, and his undergraduate degree from Colorado College.

Judge Herringer’s appointment will be effective for two years, at which time he will face a retention election. If retained, he will remain on the bench for an additional six years.

Colorado Court of Appeals: Plain Language of Statute Requires Sex Offender Registration to Continue for 10 Years After Final Release

The Colorado Court of Appeals issued its opinion in People v. Sheth on Thursday, March 14, 2013.

Declaratory Judgment—Sex Offender Registration—CRS § 16-22-113.

In this declaratory judgment action, petitioner Parag Sheth appealed the district court’s judgment denying his request for equitable relief to discontinue the requirement that he register as a sex offender. The judgment was affirmed.

In 2008, petitioner pleaded guilty to criminal attempt to commit Internet sexual exploitation of a child, a class 5 felony. He was sentenced to thirty-six months’ probation, which included a number of conditions, such as undergoing sex offender treatment and refraining from all contact with minors. He also was required to register as a sex offender under the Colorado Sex Offender Registration Act (Act). In 2011, the district court reduced petitioner’s probationary sentence to two years, and his probation ended as a matter of law on that date.

Petitioner filed a CRCP 57 action seeking a declaratory judgment determining that his registration duties terminated when his probation terminated. The district court concluded that CRS § 16-22-113 was the relevant statutory section and that it requires a person to wait ten years after final release from the jurisdiction of the court for the offense triggering the registration duties before petitioning the court for termination of those duties.

On appeal, petitioner argued that the sentencing court has discretion to set the length of time that the petitioner is required to register, pursuant to its sentencing authority. The Court of Appeals disagreed, finding that the language of CRS § 16-22-113 is unambiguous and there are no exceptions to the waiting period.

Summary and full case available here.

Colorado Court of Appeals: Exclusive Remedy Provision of Workers’ Compensation Act Did Not Bar Plaintiff from Seeking Damages in Tort

The Colorado Court of Appeals issued its opinion in Krol v. CF&I Steel on Thursday, March 14, 2013.

Summary Judgment—Workers’ Compensation—CRS §§ 8-41-401 and -402—Statutory Employer—“On and To”—Summary Judgment Sua Sponte.

Plaintiff Stanislaw Krow appealed the trial court’s motion of summary judgment in favor of defendant CF&I Steel. The judgment was reversed and the case was remanded with directions.

CF&I owns a rail mill in Pueblo. It has several industrial cranes on the property, many of them inside buildings. In July 2002, CF&I and Alpine Crane entered into a contract obligating Alpine to maintain and inspect CF&I’s cranes. In January 2007, CF&I and SK’s Industrial Management, LLC (SKIM) entered into a contract obligating SKIM to train CF&I’s employees to maintain and inspect the cranes. That month, Krol, an employee of SKIM, went to the mill to provide inspection training. While he was standing on top of one of the cranes, training a CF&I employee how to inspect a crane, the crane moved and Krol was injured.

Krol received workers’ compensation benefits through SKIM’s workers’ compensation insurance. He sued CF&I, asserting several tort claims. CF&I moved for summary judgment pursuant to CRS § 8-41-402, contending that the undisputed facts established that Krol was on its property when he was injured. Therefore, CF&I argued, it was Krol’s “statutory employer” and he could not seek additional compensation from CF&I as a matter of law. Krol argued that CRS § 8-41-402 applies only when the injured person was doing work both “on and to” another’s property, and there was at least a genuine issue of fact as to whether he was doing work to CF&I’s property when he was injured.

The district court granted summary judgment in favor of CF&I, agreeing with its argument. It also found that summary judgment was appropriate under CRS § 8-41-401, because if CF&I did not contract out the training work, it would do the work itself, and because SKIM carried adequate workers’ compensation insurance.

CRS § 8-41-402 states that if a landowner is a statutory employer, and the contractor, subcontractor, or person hired to do the work carries workers’ compensation insurance covering the injured party’s injuries, the injured party is deemed an employee of that statutory employer, and the injured party may not seek damages from the statutory employer. The Court of Appeals found that, contrary to the district court’s finding and CF&I’s argument, an injured party does not only have to have been “on” the landowner’s property when performing work for the statute to apply, but the injured party also must have been doing work “to” the property for it to apply. This determination was based on the plain language of the statute. The Court further held that there was a factual question as to whether the work Krol was performing was to CF&I’s property. Therefore, the grant of summary judgment was in error.

The district court also erred in alternatively granting summary judgment under CRS § 8-41-401, which provides immunity when the work contracted out by the entity sought to be held liable is part of that entity’s regular business, as defined by its total business operation. The Court held that although summary judgment may be granted for a reason not raised by a moving party, the court should not do so without first giving the parties notice and reasonable opportunity to argue the issue and present evidence. Thus, it was error for the district court to grant summary judgment on grounds not raised by CF&I and of which Krol had no notice to argue.

Summary and full case available here.

Tenth Circuit: In Death of a Child, Summary Judgment in Favor of Social Worker on Qualified Immunity Grounds Inappropriate

The Tenth Circuit published its opinion in Estate of B.I.C. v. Gillen on Tuesday, March 19, 2012. Because this is an amended opinion after panel rehearing was granted in part with no change to the outcome, no summary is provided here. The reader is directed to the summary provided when the opinion originally issued in December 2012.

Tenth Circuit: Unpublished Opinions, 3/19/13

On Tuesday, March 19, 2013, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Galindo v. Lampela

Mellott v. MSN Commc’ns

Ortega v. Qwest Corp.

United States v. Soto-Lopez

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

 

 

HB 13-1193: Creation of the Advanced Industries Export Acceleration Program

On February 1, 2013, Rep. Tracy Kraft-Tharp and Sen. Cheri Jahn introduced HB 13-1193 – Concerning the Creation of the Advanced Industries Export Acceleration ProgramThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the advanced industries export acceleration program to be administered by the Colorado international trade office (office). The program, which lasts for five years, is for the benefit of the advanced industries. The advanced industries are advanced manufacturing, aerospace, bioscience, electronics, energy and natural resources, infrastructure engineering, and information technology. The program consists of international export development expense reimbursement, export training, and global network consultation.

Under the first part of the program, the office may reimburse a qualifying business for up to one-half of its international export development expenses. The maximum amount that a business may be reimbursed is $15,000. The office may conditionally approve an expense prior to the business incurring it and it may also establish conditions based on export sales under which the office receives payments from a business that received a reimbursement.

As part of the export training, the office is required to provide export training for businesses in the advanced industries to learn the fundamentals of exporting. The office may collaborate with private trade organizations and federal export assistance organizations to conduct the training. Examples of the types of training the office may offer are conferences, seminars, and workshops on trade-related topics. The office is permitted to charge reasonable fees for a business to attend a training session.

The global network consultation component of the program requires the office to develop a global network of trade consultants in key international markets to assist the office in accelerating advanced industries exports. The office may work with the consultants to increase its knowledge about the market and make the consultants available for Colorado businesses to access. The office may pay for these services on behalf of a business, and if so, recoup some of the fee from the business.

The bill also creates the advanced industries export acceleration cash fund. Contingent on the passage of another bill introduced in the 2013 legislative session, the state treasurer will annually transfer $300,000 to the fund over the next five years. Moneys in the fund are continuously appropriated to the office for the administration of the program. The office is required to annually report to legislative committees about the program. On Feb. 14, the Business, Labor, Economic, & Workforce Development Committee approved the unamended bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

HB 13-1183: Imposing a Cap on the Amount of Tax Exemption that May Be Claimed for Donations of Conservation Easements

On January 31, 2013, Rep. Claire Levy and Sen. Kent Lambert introduced HB 13-1183 – Concerning the Imposition of a Cap of 45 Million Dollars on the Total Amount of State Income Tax Credits that May Be Claimed by All Taxpayers Each Year for the Donation of a Conservation Easement in GrossThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Taxpayers are allowed to claim a state income tax credit for donating a conservation easement. Current law caps the total amount of credits that may be claimed by all taxpayers each year for a three-year period. The amount of the cap is $22 million for 2011 and 2012 and $34 million for 2013. Credits that exceed the amount allowed for each year are placed on a wait list for a future year.

The bill extends the cap for 2014 and later years and increases the annual amount of the cap for these years to $45 million. Clarifying amendments on the process of administering the cap are made. On March 15, the House approved the bill on 2nd Reading; the bill is scheduled for 3rd and final Reading in the House on Monday, March 18.

Since this summary, the bill passed the 3rd Reading in the House.

HB 13-1166: Repealing the Crime of Promoting Sexual Immorality or Adultery

On January 30, 2013, Rep. Dan Kagan and Sen. Pat Steadman introduced HB 13-1166 – Concerning the Repeal of Certain Crimes that Include Marital Status as an Element of the CrimeThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the crime of promoting sexual immorality and adultery. The bill makes conforming amendments. The bill has cleared both houses and was sent to Gov. John Hickenlooper for action on March 15.