April 28, 2017

Archives for January 8, 2016

Frances Koncilja Appointed to Public Utilities Commission

On Tuesday, January 5, 2016, Governor Hickenlooper announced his appointment of Frances Koncilja to the Colorado Public Utilities Commission (PUC), effective January 12, 2016, and expiring in 2020. The PUC provides regulatory oversight of Colorado’s public utilities, including electricity, natural gas, heating utilities, drinking water, transportation, and telecommunications. The PUC consists of three commissioners who are appointed by the governor and confirmed by the Senate.

Ms. Koncilja is currently the principal of Koncilja Law Firm, P.C., where she represents both plaintiffs and defendants in commercial litigation. She also represents parties in class action disputes. She began her career as a public defender in 1972 and later served as an Assistant United States Attorney. She received her undergraduate degree from the University of Southern Colorado and her law degree from the University of Colorado.

For more information about the appointment, click here.

Colorado Court of Appeals: Christian-Themed Child Care Center Not Religious Organization for Purposes of CESA

The Colorado Court of Appeals issued its opinion in A Child’s Touch v. Industrial Claim Appeals Office on Thursday, December 31, 2015.

Child Care Center—Elementary School—Kindergarten—Unemployment Compensation Benefits—Religious Organization—Exemption.

A Child’s Touch is a state-licensed child care center providing infant and toddler day care, preschool, and kindergarten programs for children from 6 weeks to 6 years of age, and a summer camp for children ages 6 to 12 years. Christian-themed iconography, prayers, and devotions are incorporated into its daily curriculum. Claimant served as a maintenance worker at A Child’s Touch from approximately 1997 until his termination in September 2013, when his position was eliminated while he was on medical leave for double hip replacement surgery. A Child’s Touch denied claimant’s unemployment compensation claim, and the hearing officer upheld the denial. The Industrial Claim Appeals Office (Panel) set aside the hearing officer’s decision and awarded claimant benefits.

On appeal, A Child’s Touch argued that claimant was not in covered employment and that, as a religious organization, it was exempt from unemployment compensation taxes under the Colorado Employment Security Act (CESA). A Child’s Touch was not principally supported by a church or association of churches at the relevant period of time. Further, a child care facility that offers day care, preschool, and kindergarten, but does not teach any higher grades, is not an “elementary school” for purposes of a religious exemption from unemployment compensation taxes under CRS § 8-70-140(1)(a). Accordingly, the Panel correctly determined that A Child’s Touch is not entitled to a religious exemption from unemployment compensation taxes under CESA. Accordingly, the Panel’s order was affirmed, and the case was remanded to the Division of Unemployment Insurance to determine claimant’s entitlement to and eligibility for unemployment compensation benefits.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Person with Permission to Enter Property but Not Express Invitation is Licensee Under PLA

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, December 31, 2015.

Interlocutory Appeal—Premises Liability Act—Dog Bite Statute—Colorado Recreational Use Statute.

The Robinsons are sheep ranchers who hold a permit issued by the U.S. Forest Service (USFS) that allows them to graze sheep within the White River National Forest (subject land). Ms. Legro sustained serious injuries when two of the Robinsons’ predator control dogs attacked her on a road on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the District had permit authorization to access the road. The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

The Robinsons moved for summary judgment, arguing that the Colorado Premises Liability Act (PLA) preempted the Legros’ common law claims and they were not subject to liability under the dog bite statute because of the working dog exemption. The district court granted the motion. The Legros appealed, and a division of the Court of Appeals in Legro Iaffirmed that the Robinsons were landowners under the PLA, but concluded it was error to find the working dog exemption defeated the Legros’ strict liability claim. The Supreme Court granted certiorarito consider whether the Court in Legros Icorrectly interpreted the working dog exemption. The Supreme Court found it had been incorrect and that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property.

On remand, the Legros were granted leave to amend their complaint to add a claim for relief under the PLA. In a CRCP 56(h) motion, the Robinsons asked the district court to determine the duty they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS) applied, so Ms. Legro was a trespasser. Alternatively, they argued Ms. Legro was neither an invitee nor a licensee under the PLA.

The district court held that the CRUS did not apply to this case and that Ms. Legro was a trespasser as to the Robinsons under the PLA. Sua sponte, it also ruled that the working dog exemption barred the Legros’ strict liability claim because the Robinsons’ grazing permit created a sufficient property interest to satisfy the exemption.

The Legros argued it was error to find that Ms. Legro was a trespasser, and the Court of Appeals agreed. The grazing permit from the USFS provided a sufficient basis to infer that, by accepting the permit, the Robinsons consented to Ms. Legro’s entry on the property. The permit allows the USFS to determine who may enter the property, and therefore the Robinsons impliedly consented to entry on the property by anyone the USFS allowed. The Court then looked to whether Ms. Legro was affirmatively invited (invitee) or merely permitted (licensee). Because the USFS merely permitted Ms. Legro’s entry as part of the permit for the bike race, she was a licensee, not an invitee.

The Legros also argued it was error to hold that the working dog exemption applied so as to insulate the Robinsons from strict liability under the dog bite statute. The Court agreed, finding that the grazing permit did not confer a property interest in the subject land and therefore the exemption did not apply. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 1/7/2016

On Thursday, January 7, 2016, the Colorado Court of Appeals issued no published opinion and six unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 1/7/2016

On Thursday, January 7, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Davis

Preston v. CitiMortgage, Inc.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.