April 19, 2018

Archives for February 15, 2017

Application Period Open for Vacancy on El Paso County Court

On Monday, February 13, 2017, the Colorado State Judicial Branch announced a vacancy on the El Paso County Court in the Fourth Judicial District. The vacancy will be created by the retirement of Hon. Jonathan Walker, effective February 15, 2017.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of El Paso County and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website, or from the ex officio chair of the Fourth Judicial District Nominating Commission, Justice William Hood, III. Applications must be received no later than February 27, 2017. Anyone wishing to nominate another must do so no later than February 21, 2017.

For more information about the vacancy and application process, click here.

Colorado Court of Appeals: Hail in Window Wells Retained Character as Surface Water for Insurance Purposes

The Colorado Court of Appeals issued its opinion in Martinez v. American Family Mutual Insurance Co. on Thursday, February 9, 2017.

Michael Martinez owned a home in Erie, Colorado. On August 3, 2013, a heavy rain and hail storm caused hail to collect in the window wells for his basement windows, and eventually the rain and hail overflowed into his basement windows, causing extensive damage. Martinez filed a claim with American Family, but the insurance company denied his claim after investigation, finding that the damage was caused by “flooding” or “surface water,” both of which were excluded under the insurance policy.

Martinez filed suit, seeking a declaratory judgment on the issue of coverage and asserting claims for contractual and extra-contractual damages. American Family moved for summary judgment on the issue of coverage, arguing that the insurance policy’s water damage exclusions for “flood” and “surface water” applied as a matter of law. The district court granted American Family’s motion, and Martinez appealed.

On appeal, Martinez raised two contentions: (1) the damage to his basement was not caused by “surface water” because the water that collected on his roof and melted hail did not fit the definition of surface water; and (2) even if the water was surface water, it lost that characteristic when it entered his window wells. The court of appeals disagreed on both counts. The court of appeals first evaluated the Colorado Supreme Court opinion in Heller v. Fire Insurance Exchange, 800 P.2d 1006 (Colo. 1990). The court found that the supreme court’s definition of surface water in Heller fit squarely with the issues raised by Martinez, although the facts in Heller differed significantly from those alleged by Martinez.

The court of appeals determined that the water on Martinez’s roof was unquestionably surface water, noting that dwellings were reasonably considered extensions of the earth’s surface. Likewise, melted hail was well within the definition of surface water. The court next evaluated Martinez’s claim that the water in his window wells lost its characteristic as surface water, and disagreed. The window wells were designed to retain the surrounding soil and allow water to drain, therefore they were reasonably considered extensions of the surface and did not transform the collected water into a different type of body of water.

The court of appeals affirmed the trial court’s entry of summary judgment in favor of American Family.

HB 17-1156: Prohibiting “Conversion Therapy” by Licensed Mental Health Care Providers

On February 6, 2017, Rep. Paul Rosenthal and Sen. Stephen Fenberg introduced HB 17-1156, “Concerning a Prohibition on Conversion Therapy by a Licensed Mental Health Care Provider.”

The bill prohibits a licensed physician specializing in psychiatry or a licensed or registered mental health care provider from engaging in conversion therapy with a patient under 18 years of age. A licensee who engages in these efforts is subject to disciplinary action by the appropriate licensing board. ‘Conversion therapy’ means efforts that seek to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

The bill was introduced in the House and assigned to the Public Health Care & Human Services Committee.

HB 17-1162: Repealing Drivers’ License Penalties for Unpaid Court Judgment

On February 6, 2017, Rep. Matt Gray introduced HB 17-1162, “Concerning Action that Can be Taken Against an Individual Based on the Individual’s Failure to Pay for a Traffic Violation.”

Under current law, an individual who is cited for certain traffic infractions must either pay the penalty assessment or appear in court for a hearing. If the individual neither pays the infraction nor appears for a hearing, the court must issue a judgment against the individual. An individual who has an outstanding judgment:

  • May have their driver’s license canceled;
  • May not receive a new driver’s license; and
  • May not renew a current driver’s license.

The bill repeals these penalties and provides courts with the option of withholding a driver’s state income tax refund in order to satisfy the outstanding judgment.

The bill was introduced in the House and assigned to the Judiciary Committee.

Tenth Circuit: Unpublished Opinions, 2/14/2017

On Tuesday, February 14, 2017, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Taylor v. Berryhill

Chaney v. Wal-Mart Stores, Inc.

Hamburger v. Allbaugh

Jones v. Dalrymple

Estate of James D. Redd v. United States

Sanchez v. Brennan

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