May 27, 2015

Colorado Court of Appeals: No Requirement of Exhaustion of Tortfeasor’s Liability Policy Prior to Collecting UIM Benefits

The Colorado Court of Appeals issued its opinion in Tubbs v. Farmers Insurance Exchange on Thursday, May 21, 2015.

Uninsured/Underinsured Motorist Coverage—Exhaustion Clause.

Tubbs was involved in a car accident in California with another driver. The accident was the other driver’s fault, and Tubbs suffered damages. The other driver’s auto insurance had a $100,000 liability limit. Tubbs was insured by Farmers Insurance Exchange (Farmers), and his policy included uninsured/underinsured motorist (UIM)coverage with a limit of $500,000. Tubbs accepted a $30,000 settlement from the other driver. He then sought to recover under his Farmers policy’s UIM provision, claiming that his total damages exceeded $100,000. Farmers refused to pay benefits, stating that Tubbs did not meet the conditions of the UIM clause, which required him to exhaust the limits of the liable party’s policy before making a UIM claim. The trial court entered summary judgment in favor of Farmers.

On appeal, Tubbs argued that the exhaustion clause in the UIM policy was void and unenforceable. UIM policies are required to cover the difference between the damages the insured party suffered and the limit of any liable party’s legal liability coverage, regardless of whether the insured party’s recovery from the liable party exhausted that limit. As applied to the facts of this case, CRS § 10-4-609(1)(c) requires that Farmers cover Tubbs for damages he sustained in excess of $100,000 (the other driver’s legal liability limit), in an amount up to $500,000 (the limit of Tubbs’s UIM coverage), regardless of how much, if any, he actually recovered under the other driver’s legal liability coverage. Because the exhaustion clause imposes a condition precedent on coverage mandated by the statute, the clause was void and unenforceable. The summary judgment was reversed and the case was remanded for further proceedings.

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

Colorado Court of Appeals: Defendant Entitled to Crim. P. 35 Hearing on Justifiable Excuse or Excusable Neglect in Counsel’s Advice

The Colorado Court of Appeals issued its opinion in People v. Martinez-Huerta on Thursday, May 21, 2015.

Crim.P. 35(c)—Immigration—Ineffective Assistance of Counsel—Affirmative Advice—Justifiable Excuse—Justifiable Neglect.

In April 2007, defendant, a citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to vehicular eluding, a class 5 felony. At that time, he also admitted to violating the terms of his deferred judgment and sentence on an unrelated 2006 felony. In July 2007, the court sentenced him in both cases. In August 2013, defendant was placed into removal proceedings pursuant to § 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as a noncitizen who, after admission, was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. He was ordered removed from the United States in December 2013. In 2014, defendant filed a Crim.P. 35(c) motion seeking to withdraw his guilty plea, alleged ineffective assistance of plea counsel because his defense attorney assured him that a conviction would not have any immigration consequences. The trial court summarily denied his Crim.P. 35(c) motion as time barred. Defendant appealed.

When a defendant alleges that the untimely filing of a Crim.P. 35(c) motion resulted from a reasonable reliance on plea counsel’s affirmative but erroneous advice about the immigration consequences of the plea, causing the defendant to neglect to pursue timely collateral relief, the defendant is entitled to ahearing on the issue of justifiable excuse or excusable neglect. Therefore, the order was reversed and the case was remanded for a hearing on the merits of defendant’s Crim.P. 35(c) motion.

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

Colorado Court of Appeals: State Entitled to Attorney Fees for Successful Subpoena Enforcement Action

The Colorado Court of Appeals issued its opinion in State of Colorado v. Vaden Law Firm, LLC on Thursday, May 21, 2015.

Investigative Subpoena—Colorado Consumer Protection Act—Attorney Fees.

The State of Colorado served an investigative subpoena on respondent Vaden Law Firm LLC (Vaden) pursuant to CRS § 6-1-108(1) of the Colorado Consumer Protection Act. The State sought records pertaining to costs Vaden had tried to recover on behalf of lenders in foreclosure actions. Vaden refused to produce any records. The State filed an application to enforce the Vaden subpoena in Denver District Court pursuant to CRS § 6-1-109. The court ordered Vaden to produce the requested records but denied the State’s request for attorney fees.

On appeal, the State contended that the district court’s denial of attorney fees was contrary to the plain language of CRS § 6-1-113(4). Subsection 113(4) requires an award of attorney fees and costs in all actions in which the Attorney General “successfully enforces this article.” This includes an award of attorney fees and costs in favor of the State when the State successfully enforces an investigative subpoena pursuant to the procedure dictated by CRS § 6-1-109. Accordingly, the district court’s order was vacated and the case was remanded for a determination of the State’s reasonable attorney fees and costs to be awarded against Vaden.

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

Colorado Court of Appeals: Waiver of Governmental Immunity Requires Showing of Excessive Speed and Endangering Life or Property

The Colorado Court of Appeals issued its opinion in Dempsey v. Denver Police Department on Thursday, May 21, 2015.

Personal Injury—Interlocutory Appeal—CRS § 24-10-108—Automobile Accident—Police Officer—Colorado Governmental Immunity Act.

Plaintiffs were struck by a police vehicle driven by Officer Jossi, who was en route to a possible robbery and traveling at a high rate of speed. Plaintiffs brought this action against Officer Jossi, along with the Denver Police Department and the City and County of Denver (collectively, Denver), seeking compensation for the injuries they sustained in the accident.Denver moved to dismiss the claims against it on the basis that the trial court lacked subject matter jurisdiction under theColorado Governmental Immunity Act (CGIA). The trial court denied the motion, and Denver appealed.

To find a waiver of immunity, the trial court was required to find that Officer Jossi both exceeded the lawful speed limit, taking into consideration any traffic conditions that would qualify as a “special hazard” to require a lower speed, and endangered life and property. The record does not clearly demonstrate that the trial court made a finding as to whether Officer Jossi was exceeding the lawful speed limit at the relevant time. Therefore, the order was vacated and the case was remanded for further findings.

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

Colorado Court of Appeals: Announcement Sheet, 5/21/2015

On Thursday, May 21, 2015, the Colorado Court of Appeals issued four published opinions and 30 unpublished opinions.

Dempsey v. Denver Police Department

State of Colorado v. Vaden Law Firm, LLC

People v. Martinez-Huerta

Tubbs v. Farmers Insurance Exchange

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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

Colorado Court of Appeals: Announcement Sheet, 5/14/2015

On Thursday, May 14, 2015, the Colorado Court of Appeals issued no published opinion and 41 unpublished opinions.

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

Colorado Court of Appeals: Secretary of State Breached Public Trust by Using Public Funds for Private Purposes

The Colorado Court of Appeals issued its opinion in Gessler v. Grossman on Thursday, May 7, 2015.

Breach of the Public Trust—Discretionary Fund Statute.

In August 2012, Colorado Secretary of StateGessler traveled to Florida to attend and present at a two-day program sponsored by the Republican National Lawyers Association (RNLA). The RNLA seminar ended during the day on August 25, and Gessler stayed an additional night at an increased hotel rate and at the state of Colorado’s expense. The next day, he traveled to a different Florida city to attend the Republican National Convention (RNC).

Gessler used his statutorily provided discretionary fund to pay the $1,278.90 in documented travel and meal expenses incurred at the RNLA seminar. In addition, he requested reimbursement of “any remaining discretionary funds” in his discretionary account. He did not provide any documentation, but ultimately received $117.99 as the result of the request.

Colorado Ethics Watch filed a complaint with the Independent Ethics Commission (IEC). It alleged that Gessler had made false statements on travel expense reimbursement requests and misappropriated funds for personal or political uses. The IEC found that Gessler spent $1,278.90 of his discretionary account primarily for partisan—and therefore personal—purposes, in violation of the discretionary fund statute’s requirement that the fund be used in pursuit of official business. Gessler similarly violated the statute by requesting and receiving the balance in his discretionary fund without any documentation. Together, these constituted a breach of the public trust for private gain, in violation of the public trust statute, CRS § 24-18-103. Gessler sought judicial review of the IEC’s findings based on several assertions, each of which the district court rejected in a thorough written opinion.

On appeal, Gessler argued that Colo. Const. art. XXIX, § 5 applies only to gifts, influence peddling, and standards of conduct and reporting requirements that expressly delegate enforcement to the IEC. The Court of Appeals disagreed, noting that § 5 gives the IEC authority “under any other standards of conduct and reporting requirements as provided by law.”

Gessler also argued that the public trust statute does not fall within the ambit of § 5 because it is “hortatory” only and does not provide a specific standard of conduct. The Court disagreed. It found that the statute sets forth specific standards of conduct. It also noted that Colo. Const. art. XXIX, § 6 provides an express remedy for violations of the public trust for private gain.

Gessler contended that the discretionary fund statute does not fall within the ambit of § 5. The Court rejected Gessler’s premise that Article XXIX excludes standards of conduct related to compensation. It also noted that even if compensation were excluded from the IEC’s jurisdiction, the discretionary fund statute does not constitute compensation. Discretionary funds are not received in return for services rendered but may only be used “in pursuance of official business.” It also rejected Gessler’s argument that he had unfettered discretion over the use of discretionary funds as leading to an absurd result, as well as rejecting Gessler’s claim that there is no specific standard of conduct for expenditure of the funds. The Court pointed to the requirement that those funds be used “in pursuance of official business.”

Gessler also argued that the IEC had construed its jurisdiction so broadly as to render § 5 vague and overbroad. The Court rejected this contention by noting it had construed § 5 so as to recognize the applicable limits to the IEC’s jurisdiction.

Gessler contended that if the IEC had jurisdiction, then its decision was arbitrary or capricious. The Court disagreed, finding substantial evidence in the record to support the IEC’s determination that Gessler improperly used his discretionary fund to attend the RNLA seminar and the RNC.

Finally, the Court rejected Gessler’s argument that he was denied procedural due process because he was not given advance and adequate notice of the standards of conduct he was accused of having violated. The Court found that Gessler had received ample notice of the claims asserted against him and, in any event, there was no support for any claim of prejudice to Gessler as a result of the notice he received. The judgment was affirmed.

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

Colorado Court of Appeals: No Abuse of Discretion to Admit Video Deposition of Adverse Witness

The Colorado Court of Appeals issued its opinion in Winkler v. Shaffer on Thursday, May 7, 2015.

Motion to Strike Video Deposition—Negligence Per Se Jury Instruction.

Plaintiffs were injured in a multi-vehicle accident during a snowstorm on an icy highway. Defendant lost control of a semitrailer after he was struck by two vehicles and came to a stop blocking the highway. Plaintiffs’ vehicle hit defendant’s truck in the ensuing pileup. Plaintiffs sued defendant and a number of other co-defendants not parties to this appeal.

At trial, defendants submitted a video deposition of Sergeant Gates, who, as the first law enforcement officer to respond to the accident, had witnessed part of it. Gates concluded that defendant drove reasonably, given the weather and road conditions.

Following trial, the jury concluded that some defendants were negligent and had caused 100% of plaintiffs’ injuries. It also concluded that defendant and several other co-defendants were not negligent and had not caused plaintiffs’ injuries.

On appeal, plaintiffs asserted that the trial court erred in denying their motion to strike Sergeant Gates’s deposition. Plaintiffs argued that Gates’s deposition exceeded the expert disclosure’s scope and that they did not have adequate time before trial to respond to the opinions expressed. The Court of Appeals disagreed. Plaintiffs failed to establish any prejudice or harm associated with this alleged error. They made no offer of proof of what they would have done or shown had they had additional time to respond to the deposition. They never requested a continuance after the deposition, which was taken ten days before trial. Moreover, their expert’s testimony provided rebuttal to the opinions expressed in the deposition, so any error was harmless.

Plaintiffs argued that the trial court erred in refusing to give a negligence per se instruction. The Court disagreed. The instructions given described the standard for common law negligence. Because the statutory standard under CRS §§ 42-4-1008 and -1101 codify common law negligence, any additional negligence per se standard would have been redundant. To find a statutory violation needed to establish negligence per se, a jury first has to find negligence, so giving the added instruction is not necessary. The judgment was affirmed.

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

Colorado Court of Appeals: Complaint Filed Two Years and One Day After Accrual Date Untimely

The Colorado Court of Appeals issued its opinion in Williams v. Crop Production Services, Inc. on Thursday, May 7, 2015.

Tort Statute of Limitations—CRCP 6(a)(1) Not Applicable to Statutory Time Periods—CRS § 13-80-102(1)(a).

The parties agreed that this wrongful discharge action sounded in tort, was subject to the two-year statute of limitations in CRS § 13-80-102(1)(a), and accrued on the date of termination by defendant. The parties disagreed on the manner of calculating the deadline for filing the complaint. Plaintiff claimed he had until October 8, 2013, or two years and one day after the accrual date. Defendant countered that the complaint had to be filed no later than the second anniversary of the accrual date, October 7, 2013. The Court of Appeals agreed with defendant.

Plaintiff relied on CRCP 6(a)(1) to calculate the accrual date, arguing that “the day of the act, event or default from which the designated period of time begins to run shall not be included.” Therefore, the date of defendant’s termination was not to be included and he had until two years after October 8, 2011 to file his complaint.

The Court rejected the application of the CRCP 6(a)(1) counting method for determining the deadline for filing an action under CRS § 13-80-102(a), instead looking to the Colorado statutes. CRS § 13-80-102(1) provides that tort actions “must be commenced within two years after the cause of action accrues, and not thereafter.” Pursuant to CRS § 2-4-107, the word “year” means a calendar year, so days need not be counted. Here, the cause of action accrued on the date of termination and therefore had to be filed no later than the second anniversary of that date—that is, by October 7, 2013. The district court was therefore correct in dismissing the action as untimely filed.

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

Colorado Court of Appeals: Homeowners’ Association’s Removal of Arbitration Provision Invalid Against Builders

The Colorado Court of Appeals issued its opinion in Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. on Thursday, May 7, 2015.

Motion to Compel Arbitration—Construction Defect Action.

Plaintiff association (Vallagio) brought this action against defendants, alleging construction defects in the Vallagio residential development project (Project). The Project was organized as a common interest community under the Colorado Common Interest Ownership Act (CCIOA). Defendant Metro Inverness, LLC (Metro) was the Project’s developer and declarant. Defendant Metropolitan Homes, Inc. was Metro’s manager and the Project’s general contractor. Defendants Krause and Kudla were declarant-appointed members of Vallagio’s board before control of the Vallagio was transferred to unit owners.

The declaration contained a general provision allowing unit owners to amend the declaration by a 67% vote and a consenting vote of the declarant. The right of declarant consent expired after the last unit was sold to an owner other than declarant. There was a mandatory arbitration provision specifically for construction defect claims, which provided that it could never be amended without the written consent of declarant, without regard to whether declarant owned any portion of the Project at the time of the amendment.

In September 2013, after the declarant had turned over control of Vallagio and no longer owned any units, at least 67% of the unit owners voted to amend the declaration to remove the arbitration provision in its entirety. Metro’s consent was not obtained.

Vallagio then filed suit against defendants. Defendants moved to compel arbitration, relying on the original declaration provision, arguing that the amendment removing it was invalid because declarant had not consented. The district court denied the motion to compel arbitration, finding that the declaration had been effectively amended to remove the arbitration provision. This interlocutory appeal followed.

Defendants first argued that it was error to conclude that the declaration’s amendment provisions were ambiguous and to construe that ambiguity against declarant. The Court of Appeals agreed. Based on the plain language of the declaration, the Court held that amendments to the arbitration provision required Metro’s consent. Because that consent was not obtained, the motion to compel arbitration as to Metro should have been granted. The Court also agreed that it was error to conclude that the declarant consent requirement for amendments of the arbitration agreement violated CCIOA and was void and unenforceable.

The district court had found that CCIOA § 38-33.3-302(2) prohibited the consent requirement. This section prohibits restrictions on an association’s power that are “unique to the declarant.” Under this declaration, the unit owners have the power to amend the declaration, and under this section of CCIOA the declarant consent requirement does not impose any limitation on the “power of the association.”

The district court had also found that the declarant consent requirement violated CCIOA § 38-33.3-217 because it effectively required more than a 67% vote of unit owners to amend the declaration. The Court disagreed, finding nothing in that statutory provision prohibiting declarant consent for an amendment, but merely requirements for unit owners’ voting percentages. The Court also found that the consent requirement did not allow control of unit owners’ votes, because 67% of the unit owners had to vote favorably to amend the declaration and that requirement was not altered by the declarant consent provision. The Court also rejected Vallagio’s argument that the consent requirement violated CCIOA § 38-33.3-303(5) by allowing Metro Inverness to control Vallagio after the declarant control period expired. CCIOA provisions regarding declarant consent to an association’s actions were not relevant to the issue here presented.

Vallagio argued that even if Metro could enforce the arbitration provision, the other defendants lacked standing to do so because they were not parties to the declaration. The district court did not address this argument, so the Court remanded for resolution of these issues, in particular, whether the other defendants were third-party beneficiaries to the declaration’s arbitration provision.

Defendants argued that they could rely on the arbitration provisions in individual unit owners’ purchase agreements. Because this issue might arise on remand if the district court finds that the other defendants lack standing to enforce the declaration’s arbitration provision, the Court addressed it. The Court agreed with the ruling that Vallagio was not bound by those individual purchase agreements.

The Court rejected Vallagio’s claims that its Colorado Consumer Protection Act (CCPA) claims are non-arbitrable. The right to a civil action under CCPA § 6-1-113 was not made non-waivable under the statute.

The order was reversed in part and affirmed in part. The case was remanded for an order compelling arbitration of Vallagio’s claims against Metro, and for further proceedings to determine whether the claims against the other defendants must be arbitrated.

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

Colorado Court of Appeals: Pro Se Plaintiff Practiced Law by Attempting to Litigate Minor Child’s Claims

The Colorado Court of Appeals issued its opinion in Cikraji v. Snowberger on Thursday, May 7, 2015.

Summary Judgment—Colorado Governmental Immunity Act—Unauthorized Practice of Law.

Plaintiff’s son C.C. was a member of the Durango High School cross-country team, and he agreed to be bound by the Colorado High School Activities Association (CHSAA) bylaws. Plaintiff requested permission to remove C.C. from school to go on a trip to Ohio. While in Ohio, C.C. competed in the U.S. Air Force 10k and won. After the trip, defendant Perrin (DHS’s athletic director) informed plaintiff that C.C. would be disciplined for violating the CHSAA Outside Competition Rule because C.C. had not received permission to compete in the 10k. C.C. was suspended from a single cross-country meet.

Plaintiff e-mailed various defendants about the suspension. He also attended a Durango Board of Education meeting, where he argued that the behavior of defendant McMillian (C.C.’s cross-country coach) was bullying.

Plaintiff thereafter filed a pro se complaint alleging that defendants violated his and C.C.’s “rights.” Defendants filed motions to dismiss and plaintiff filed a motion for summary judgment. The district court denied plaintiff’s requested summary judgment and entered judgment in favor of defendants. In pertinent part, the court concluded that plaintiff failed to establish that he followed the notice provisions of the Colorado Governmental Immunity Act (CGIA), and therefore, the court was without jurisdiction to consider his claims.

The Court of Appeals noted many deficiencies in plaintiff’s pro se brief, but nonetheless considered his arguments. Plaintiff was the only named plaintiff, but his claims were almost exclusively belonging to his son and, by representing and acting on his son’s behalf, he was engaging in the practice of law. Because plaintiff is not a licensed attorney in Colorado, he cannot represent his son in court proceedings. The Court dismissed those portions of plaintiff’s appeal representing his son with prejudice. To the extent plaintiff’s claims addressed injuries to himself, the Court affirmed the summary judgment in favor of defendants, because plaintiff failed to comply with the jurisdictional notice requirements of the CGIA. Those portions of the appeal plaintiff filed on behalf of C.C were dismissed with prejudice, and the judgment was otherwise affirmed.

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

Finalists Selected for Vacancy on Colorado Court of Appeals

On Wednesday, May 13, 2015, the Colorado State Judicial Branch announced the Colorado Supreme Court Nominating Commission’s selection of three candidates for the forthcoming vacancy on the Colorado Court of Appeals. The vacancy will occur with the retirement of Hon. James S. Casebolt, effective July 1, 2015.

The three candidates for the vacancy are Robert T. Fishman, Elizabeth L. Harris and Ted C. Tow, III. Robert T. Fishman is Of Counsel with Ridley McGreevey & Winocur P.C. in Denver, where his practice focuses on appellate representation and litigation. Elizabeth L. Harris is a solo practitioner focusing on business litigation and appellate law. Ted C. Tow, III, is currently a district court judge in the Seventeenth Judicial District, where he presides over a predominantly domestic relations docket.

Under the Colorado Constitution, Governor Hickenlooper has 15 days from May 13 in which to select one of the nominees for appointment. Comments regarding any of the nominees may be sent to the governor at gov_judicialappointments@state.co.us. For more information, click here.