December 11, 2017

Archives for March 3, 2017

Fare Thee Well: Gary Abrams Retires from CBA-CLE

On February 1, 1997, a fresh-faced young whippersnapper from the Badger State became the Executive Director of Colorado Bar Association CLE. Almost exactly 20 years later, Gary Abrams retired after a distinguished tenure.

Gary’s vision was to make CBA-CLE Colorado’s biggest and best provider of continuing legal education. Under Gary’s leadership, CBA-CLE grew from a small business with a four-person staff to Colorado’s biggest CLE provider with over 20 full time employees. Lisa Travis Fischer, CBA-CLE’s Publications Director, remarked that “Gary’s passion, dedication, and leadership changed CBA-CLE forever. He has left behind a legacy that will be cherished.”

Mark Masters and Gary Abrams at Hanging Your Shingle 2012

Working together with the faculty was arguably Gary’s favorite part of leading CBA-CLE. He started a tradition of wine tasting networking events, which quickly became everyone’s favorite social events at annual institutes such as the Family Law Institute, Trust & Estate Retreat, Real Estate Symposium, IP Institute, and others.

Laurie Hunter receiving the Richard N. Doyle Award of Excellence in 2012

The wine tasting also became a staple of CLE’s annual Faculty & Author Reception, a holiday event in which our volunteer authors and speakers are honored and winners of the Richard N. Doyle Award of Excellence are announced.

Gary and the author at a staff Secret Santa gift and cookie exchange

Gary loves to be the life of the party. At the annual CBA-CLE staff Secret Santa gift exchange and cookie extravaganza, Gary always enjoys playing “Hanaukkah Harry” and passing out the gifts.

Gary always has a ready smile

One of Gary’s favorite places to be is at the lectern, introducing speakers for CLE programs. When he’s not at the office, though, he can frequently be found on the ski slopes, playing golf, fishing, and sailing. He enjoys Colorado’s great outdoors, and is looking forward to spending more time sailing during his retirement.

Gary and Mark Fogg

Vince O’Brien, CBA-CLE’s new Executive Director, has known Gary for many years, including “his ready smile and CLE wisdom.” Vince remarked that for the past few weeks, “Gary has been like one of Dickens’ ghosts as he brings me up to speed on CBA-CLE. I’d like to think his spirit will be here for quite a while after he retires. Gary has been a friend and guide to Colorado lawyers for a long and important time. Many thanks and bon voyage!”

At the IP Institute in 2012

 

Gary at the 2016 Elder Law Retreat with Nena and Oscar

 

Daniel Deasy and Gary Abrams at the 2013 Family Law Institute

 

Gary and Marc Painter at the 2016 Faculty & Author Reception

 

What a long, strange trip it’s been. Thank you, Gary, for your excellent leadership. Enjoy your retirement – you deserve it.

Colorado Court of Appeals: Penalty of Two Times Covered Benefit for Insurance Bad Faith Upheld

The Colorado Court of Appeals issued its opinion in Nibert v. Geico Casualty Co. on Thursday, February 23, 2017.

Bad Faith—C.R.S. § 10-3-1116—Jury Instructions—Statutory Delay—Attorney Fees.

Nibert and her husband were injured when a car collided with their motorcycle. As relevant to this appeal, Nibert had an underinsured motorist (UIM) policy through Geico Casualty Co. (Geico) with a $25,000 coverage limit. Geico offered Nibert $1,500 to settle her claim.

Nibert sued Geico for breach of contract, common law bad faith, and statutory delay under C.R.S. § 10-3-1116. After discovery and before trial, Geico paid Nibert the $25,000 UIM coverage limit to settle the breach of contract claim.

A jury returned verdicts awarding Nibert $33,250 in noneconomic damages on her bad faith claim and $25,000 for her statutory delay claim. The trial court entered judgment on the jury’s verdict for the bad faith claim and judgment of $50,000 for damages on the statutory delay claim. It also granted Nibert’s motion for attorney fees in the amount of $118,875.30.

On appeal, Geico argued that the trial court failed to adequately instruct the jury on its theory of defense that challenges to debatable claims are reasonable. The trial court relied on the Colorado pattern jury instructions governing common law bad faith and first-party statutory claims. While it did not accept Geico’s tendered instructions on these issues, it allowed Geico to present expert testimony regarding the “fairly debatable” issue and to argue its theory of defense to the jury. The Colorado Court of Appeals concluded that the instructions, as given, adequately instructed the jury on the applicable law and the parties were afforded ample opportunity to present their case theories to the jury. The trial court’s ruling was neither manifestly arbitrary, unreasonable, or unfair, nor a misapplication of the law.

Geico then argued that the trial court erred in awarding Nibert recovery of two times her UIM benefit as a penalty. C.R.S. § 10-3-1116(1) provides a first-party claimant the right to bring an action for “two times the covered benefit.” Geico argued that the trial court should have allowed a setoff of the ultimate statutory damages award in the amount of $25,000 previously paid to Nibert on her UIM claim. The court agreed with other divisions that have concluded that a statutory damages award of two times a delayed benefit—even when that benefit has already been paid, resulting in an effective payment of three times the contracted benefit—is contemplated by the plain meaning of C.R.S. § 10-3-1116.

Geico also contended it was error to award attorney fees incurred to prosecute the common law bad faith and statutory delay claims, both before and after the date when payment of the UIM benefit was delayed. They argued the attorney fees should be limited to the period from the date the benefit was first delayed to the date the benefit was actually paid. The court found no support for Geico’s argument that the section does not contemplate an award of attorney fees incurred litigating anything other than a contractual claim or incurred for the time before and after a delayed benefit accrues and is paid.

The court also granted Nibert’s request for an award of her appellate attorney fees.

The judgment and order were affirmed, and the case was remanded for a determination of the amount of reasonable attorney fees and costs.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: County Assessor Complied with Urban Renewal Law by Immediately Assessing Base Tax

The Colorado Court of Appeals issued its opinion in City of Aurora v. Arapahoe County Assessor on Thursday, February 23, 2017.

Urban Renewal Law—Delay in Start Date of Tax Increment Financing Period.

Colorado’s Urban Renewal Law (URL) authorizes the use of tax increment financing (TIF) to fund renewal projects for redeveloping blighted or slum areas. TIF uses recently assessed property values in an urban renewal area to establish a base tax value. As property values increase above the base value, increased tax revenues are allocated to the financing of the renewal project to pay down the debt against the project. The statute places a 25-year limit on TIF allocations to a renewal fund that runs from “the effective date of such a [TIF] provision.”

The City of Aurora (City) approved two urban renewal plans (the Plans) with multiple phases of redevelopment. The Fitzsimons Plan included four development phases and stated that TIF would begin immediately for the first two phases but be delayed for the second two phases. The Iliff Plan included two phases and provided for TIF to begin immediately for phase one and be delayed for phase two.

After the City approved the plans, the Arapahoe County assessor (Assessor) immediately calculated the base tax value for all development phases. The City and the Aurora Urban Renewal Authority (collectively, Aurora) filed a complaint against the Assessor, asking the court to order him to delay allocating TIF. The Assessor argued that he was complying with the URL, which does not permit a city to delay the start of TIF allocations. On cross-motions for determination of law, the district court entered an order in favor of the Assessor.

On appeal, Aurora first argued that the doctrines of waiver, preclusion, and estoppel barred the Assessor’s defense because the Assessor did not submit the issue to arbitration or appeal the Plans’ approval via a C.R.C.P. 106(a)(4) action. The court of appeals found that the URL’s statutory arbitration procedure does not apply to this dispute, thus the Assessor did not waive his right to assert his defense. The court did not consider Aurora’s Rule 106(a)(4) argument because it was not raised in the district court. The court determined that claim and issue preclusion were inapplicable to this case. Finally, because neither the Assessor nor the county were part of the URL’s public approval process, there was no merit in the argument that the Assessor’s defense was equitably estopped.

On the merits, the court found that the URL does not permit a municipality to alter or evade the 25-year time limit on a TIF provision by denominating parts of a plan “effective” after the plan is approved. The statute is clear that TIF cannot exceed 25 years from the date the provision is adopted, and a city cannot extend that time limit by denominating certain provisions “effective” on a date after they are actually approved.

The City also argued that adopting the urban renewal plans involved legislative acts within its home-rule powers. Adopting an urban renewal plan is not a legislative act. Even if approving an urban renewal plan was a legislative act, approving these plans would be beyond the City’s power because the plans conflict with the URL’s TIF timeline. Thus, even if the City’s acts were legislative, they would be invalid.

Aurora further argued that the Assessor and the court could not rely on or be bound by informal guidance from the Colorado Property Tax Administrator (Administrator). The Court did not give the Administrator’s guidance even persuasive weight.

The order and judgment were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Insured Not Entitled to Prejudgment Interest when Settlement Reached Prior to Filing Suit

The Colorado Court of Appeals issued its opinion in Munoz v. American Family Mutual Insurance Co. on Thursday, February 23, 2017.

Prejudgment Interest under C.R.S. § 13-21-101(1).

Munoz was injured in a collision with an uninsured motorist (UM). Munoz opened a UM claim with his insurer, American Family Mutual Insurance Co. (American Family). American Family made settlement offers to Munoz but maintained it was not required to pay prejudgment interest because it was only required to do so after a judgment had been entered by a court. Munoz accepted American Family’s final offer, understanding that it did not include interest.

Munoz then sued American Family and the UM. Munoz moved under C.R.C.P. 56(h) for a determination whether American Family was required to include prejudgment interest as part of its UM claim settlement. The trial court ruled, as a matter of law, that the insured is entitled to such interest only when a judgment has been entered and interest is awarded as a component of damages assessed by the jury’s verdict or the court.

On appeal, Munoz argued that the trial court erred because prejudgment interest is a necessary element of compensatory damages that makes an injured party whole. American Family countered that the plain language of C.R.S. § 13-21-101 states that prejudgment interest can only be awarded after a judgment, based on a damages award determined by a trier of fact, has been entered. The Colorado Court of Appeals determined the plain language of the statute requires, prior to prejudgment interest being awarded, that (1) an action must be brought; (2) the plaintiff must claim damages in the complaint; (3) there must be a finding of damages by a jury or the court; and (4) judgment is entered.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies) are ethanol manufacturing plants that are sources of air pollution in northeastern Colorado. They are required to operate in accordance with air permits issued by the Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 days of the effective date of the Commission’s final order, even if that party first filed a motion to reconsider, and the Commission declined to reconsider its order. The plain language of the APPCA, the APA, and the Commission’s procedural rules required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/2/2017

On Thursday, March 2, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Medina-Velasquez v. Sessions

Bowers v. Wells Fargo Bank, N.A.

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