March 17, 2018

Colorado Court of Appeals: Defendant Must be Prosecuted Under Specific Statute for Theft of Food Stamps

The Colorado Court of Appeals issued its opinion in People v. Rojas on Thursday, February 22, 2018.

Criminal Law—Theft—Colorado Public Assistance Act—Food Stamps—Fraudulent Acts.

Rojas received food stamps. When requesting an extension of food stamp benefits, Rojas reported that she had no employment income, although she had been hired as a restaurant manager. While continuing to work as a restaurant manager, Rojas received $5,632 worth of food stamps to which she was not entitled. Rojas was found guilty of two counts under the general theft statute, CRS 18-4-401, and one count under CRS 26-2-305(1)(a), which criminalizes failing to report a change in financial circumstances that affects that participant’s eligibility for food stamps.

On appeal, Rojas challenged the trial court’s denial of her motion to dismiss the general theft counts. She argued that the trial court erred in finding that she could be prosecuted for theft of food stamps under the general theft statute. The prosecution is barred from prosecuting under a general criminal statute when the legislature evinces a clear intent to limit prosecution to a more specific statute. CRS 26-2-305(1)(a) creates a more specific criminal offense, theft of food stamps by a fraudulent act, than the general theft statute, and the General Assembly intended it to supplant the general theft statute.

The convictions under the general theft statute were vacated.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Workers’ Compensation Claimant Need Only Prove Either Wage Loss or Disability for TPD

The Colorado Court of Appeals issued its opinion in Montoya v. Industrial Claim Appeals Office on Thursday, February 2, 2018.

Workers’ Compensation—Medical Incapacity—Temporary Partial Disability.

Claimant worked as an interior designer for Ethan Allen Retail, Inc. Her pay was based entirely on commissions. Claimant suffered admitted work-related injuries. Although she was neither given work restrictions nor medically limited in her ability to work, her medical appointments caused her to be absent from the showroom floor and not be able to meet potential and current clients. Claimant sought temporary partial disability benefits (TPD) in a workers’ compensation action. She testified that the absences caused her to lose more than $20,000 in commission earnings. The administrative law judge (ALJ) awarded claimant TPD benefits to compensate her for the commissions she lost while attending medical appointments.

A panel of the Industrial Claim Appeals Office (Panel) set aside the award of TPD benefits, reasoning that disability benefits are only available if a claimant demonstrates both medical incapacity and temporary loss of wage earning capacity. Here, because the ALJ had found that claimant had no work restrictions and was able to perform her job duties, the Panel held she did not establish the requisite “medical incapacity” prong of disability and therefore, as a matter of law, was not entitled to receive TPD benefits.

On appeal, claimant contended that the Panel’s interpretation of “disability” was too narrow. The court of appeals concluded that although the concept of disability incorporates both “medical incapacity” and “loss of wage earnings,” a claimant need not prove both components to establish entitlement to disability benefits under the Workers’ Compensation Act. The court then found that the evidence presented amply supported the ALJ’s finding that claimant’s wage loss was attributable to her work-related injury. The Panel erred in setting aside the ALJ’s decision.

The Panel’s decision was set aside and the case was remanded with instructions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: City Had Power to Convey Park Not Dedicated to Public Use

The Colorado Court of Appeals issued its opinion in Save Cheyenne v. City of Colorado Springs on Thursday, February 2, 2018.

Land Exchange—Home Rule Cities.

The Colorado Springs City Council adopted a resolution approving a land exchange between the City, on the one hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak Railway Company; the COG Land & Development Company; and PF, LLC (collectively, the Broadmoor) on the other hand. As relevant here, a 189.5 acre parcel within Cheyenne Park known as “Strawberry Fields” was transferred to the Broadmoor for construction of a private equestrian center on an 8.5 acre building envelope within the parcel. As a condition of the transfer, the Broadmoor is required to allow continued public access to Strawberry Fields, with the exception of the land within the building envelope. In exchange, the Broadmoor transferred to the City more than 300 acres of land and trail easements to be added to the City’s park system.

Plaintiff, a local nonprofit corporation, filed suit, seeking a declaration that the resolution authorizing the land exchange was null and void, and injunctive relief preventing the land exchange. It also alleged a zoning violation. The City and the Broadmoor moved to dismiss under C.R.C.P. 12(b)(5), for failure to state any claims, and under C.R.C.P. 12(b)(1), arguing that the zoning challenge was unripe. The district court granted the motion.

The court of appeals first rejected defendants’ motion to dismiss plaintiff’s appeal based on mootness. Plaintiff argued that the resolution was an ultra vires act of the City Council because Cheyenne Park had previously been dedicated as a public park, and as a consequence, the City holds the park in trust for the public and cannot convey the park’s land. The Court concluded that no valid statutory dedication of Cheyenne Park occurred, and that any common law dedication was abrogated. The City Council had the power to convey Strawberry Fields when it authorized the land exchange.

Plaintiff next argued that under C.R.S. § 31-15-713(1)(a) no conveyance of the parkland could be made unless it was authorized by a vote in a public election. Colorado Springs is a home rule city and therefore in matters of local concern, a home-rule ordinance supersedes a conflicting state statute. The Colorado Springs City Code provides that land exchanges are to be reviewed by the City Council and approved by resolution. The Code provision applies, and the City was not required to hold an election before making the land transfer.

The court also rejected plaintiff’s argument that the resolution and land exchange violated article XI, section 2 of the Colorado Constitution, which prohibits transfers of city property without consideration. Here, the City received consideration for the parkland.

Plaintiff next contended that the City Council’s resolution approving the land exchange violates the City Charter. The Charter sections at issue only regulate granting franchises and leases on public property and city-owned parklands. The transaction here did not create a lease or franchise on City property, and these provisions do not apply to the conveyance.

Lastly, the court concluded that plaintiff’s claim of zoning violations is not yet ripe for review. The record does not demonstrate that a final zoning decision has been made regarding the permitted uses of Strawberry Fields. The district court properly dismissed this claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Airport Shuttle Drivers Are Not “Interstate Drivers” for Overtime Purposes

The Colorado Court of Appeals issued its opinion in Brunson v. Colorado Cab Co., LLC on Thursday, February 2, 2018.

Colorado Minimum Wage Act—Colorado Wage Claim Act—Colorado Wage Order 31—Summary Judgment—Interstate Drivers.

Brunson is a shuttle van driver who transports passengers to and from Denver International Airport but does not drive out of state. He claimed that Shamrock Charters, Inc. and Colorado Cab Company, LLC (collectively, Shamrock) failed to pay him overtime compensation in violation of the Colorado Minimum Wage Act and the Colorado Wage Claim Act. The Acts are implemented by Colorado Wage Order 31, which requires covered employers to pay overtime. As pertinent here, the Wage Order exempts “interstate drivers” from its provisions. Neither the Acts nor the Wage Order defines the term “interstate drivers.”

The district court granted summary judgment in favor of Shamrock. It found that the Wage Order’s language closely follows the federal Motor Carrier Act (MCA) exemption of the Fair Labor Standards Act (FLSA) and construed “interstate drivers” in accordance with federal interpretation. Thus, the district court concluded that “interstate drivers” includes drivers involved in interstate commerce even if their work is entirely within the state. The court further concluded that Brunson was an interstate driver and was, as a matter of law, exempt from the Wage Order’s overtime pay requirements.

On appeal, Brunson contended that the federal interpretation of the MCA exemption does not apply to his state claims. The court of appeals determined that federal and state overtime pay exemptions are not identical or substantially identical. Further, the Colorado Department of Labor has published clear persuasive evidence of its intent to provide greater protections than those under FLSA. Therefore, the court concluded that federal case law’s interpretation of “interstate drivers” does not apply to Brunson’s state claims. Having determined that federal case law is not persuasive authority as to the meaning of “interstate driver,” the court relied on the Department’s interpretation of its own regulation in its Advisory Bulletin and construed the term “interstate drivers” to apply only to drivers whose work takes them across state lines. Thus, Shamrock did not “plainly and unmistakably” demonstrate that Brunson fell within the Wage Order’s exemption.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: When Liability Based on Respondeat Superior, Settlement with Agent is Setoff Against Jury Verdict for Principal

The Colorado Court of Appeals issued its opinion in Marso v. Homeowners Realty on Thursday, February 8, 2018.

Respondeat Superior—Agent—Amendment of Answer—Affirmative Defense—Setoff—Settlement—Statutory Prejudgment Interest.

Dilbeck was employed by or associated with Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners Realty, Inc. (Coldwell) and acted as the Marsos’ agent in their purchase of a house. Two years after the purchase, the Marsos discovered that uranium tailings had been used as fill material, creating a potential health hazard. The Marsos filed a complaint against Dilbeck and Coldwell alleging negligence against Dilbeck and respondeat superior liability against Coldwell. Before the scheduled trial date, the Marsos settled with Dilbeck for $150,000, inclusive of interest. The jury was instructed to determine the total amount of damages sustained by the Marsos and was not informed of the amount of the settlement with Dilbeck. The jury returned a verdict of $120,000 against Coldwell. In post-trial proceedings, the trial court set off the settlement payment of $150,000 against the $120,000 jury verdict, resulting in a zero recovery for the Marsos. Because the settlement payment exceeded the jury verdict, the court entered judgment in favor of Coldwell and later entered a cost award against the Marsos of approximately $30,000.

On appeal, the Marsos contended that the court abused its discretion in allowing Coldwell to amend its answer to assert the affirmative defense of setoff over the Marsos’ timeliness objection. Because Coldwell did not obtain the settlement agreement until shortly before trial and the Marsos had no right to rely on the absence of a setoff, the amendment did not result in legal prejudice to the Marsos. Under these circumstances, the court did not abuse its discretion in allowing Coldwell to pursue its setoff defense.

The Marsos next argued that the trial court erred when it set off the settlement payment against the jury verdict. When a party’s liability is based entirely on respondeat superior, a settlement with the agent is setoff against the jury verdict entered against the principal. Therefore, the trial court did not err in this regard.

The Marsos also contended that the trial court erred when it set off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Statutory prejudgment interest accrues on the jury verdict before the setoff. Here, the court must calculate the interest that accrued on the jury’s verdict from the date of the Marsos’ injury to the date of Dilbeck’s settlement payment and add it to the jury verdict

The judgment and cost award in Coldwell’s favor was reversed, and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Nonparty at Fault Statute Does Not Preclude Evidence of Subsequent Providers’ Negligence

The Colorado Court of Appeals issued its opinion in Danko v. Conyers, M.D. on Thursday, February 8, 2018.

Torts—Medical Malpractice—Evidence—Pro Rata Liability—Non-Party Fault—Costs.

Dr. Conyers performed carpal tunnel surgery on Danko. He did not order a post-operative biopsy to detect possible infection and ultimately released Danko from further care. Danko sought a second opinion from Dr. Scott, who performed a minor procedure on Danko’s wrist and later diagnosed her with an infection. Subsequently, Danko saw Dr. Savelli, who recommended a regimen of antibiotics and periodic surgical debridement of infected tissue. Two weeks later, Danko consulted Dr. Lindeque, who amputated Danko’s forearm. Danko filed a complaint alleging that Dr. Conyers negligently failed to detect an infection resulting from the surgery, which led to amputation of her forearm. The jury found Dr. Conyers liable and awarded damages of $1.5 million.

On appeal, Dr. Conyers challenged the trial court’s exclusion of his evidence that physicians who treated Danko after the surgery were at fault for the amputation. Dr. Conyers did not seek to apportion fault between himself and the other providers. Instead, he sought to admit evidence of their negligence as a superseding cause of Danko’s amputation. Such evidence is admissible under C.R.S. § 13-21-111.5 (the nonparty at fault statute) even if a nonparty at fault has not been designated. Thus, the part of the trial court’s ruling excluding evidence that was based on C.R.S. § 13-21-111.5(b)(3) was incorrect. But the trial court also based its ruling on Restatement (Second) of Torts § 457, which provides an exception to the liability of initial physicians for harm from subsequent physicians’ extraordinary misconduct, a superseding cause. Here, the trial court acted within its discretion in excluding evidence of the other providers’ fault, under both Restatement § 457 and CRE 403, because Dr. Conyers had not presented evidence sufficient to invoke the extraordinary misconduct exception. Further, the trial court did not err in instructing the jury consistent with this ruling.

On cross-appeal, Danko challenged the trial court’s denial of certain costs, including jury consulting expenses. Danko made a settlement offer under C.R.S. § 13-17-202(1)(a)(I), which Dr. Conyers did not accept. The verdict exceeded the amount of the offer. A party may recover jury consulting expenses when that party made a statutory settlement offer that was rejected, and did better than the offer at trial. Here, the trial court improperly denied costs for jury consulting and related travel expenses.

The judgment was affirmed. The costs award was affirmed in part and reversed in part, and the case was remanded to increase Danko’s costs award.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prosecutor’s Use of Partially Completed Puzzle to Illustrate Reasonable Doubt was Misconduct

The Colorado Court of Appeals issued its opinion in People v. Van Meter on Thursday, February 8, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Reasonable Doubt—Mistrial—Prosecutorial Misconduct—Jury Instruction—Possession—Evidence.

Van Meter pleaded guilty to multiple crimes and served time in the Department of Corrections’ custody. After Van Meter was released on parole, his employer told Van Meter’s parole officer that Van Meter had a gun in his car and was possibly using heroin and stealing from customers. When Van Meter arrived at work he was arrested, and officers found a loaded semi-automatic handgun inside a toolbox in the trunk of his car. A jury found Van Meter guilty of possession of a weapon by a previous offender (POWPO).

On appeal, Van Meter argued that the trial court reversibly erred in failing to declare a mistrial after a prospective juror stated in front of the panel that he was aware of the underlying case because he was a deputy sheriff and had transported Van Meter to court. The record supports the trial court’s determination that the challenged comments did not taint the entire panel because they did not necessarily imply that the deputy sheriff transported Van Meter to court for the underlying case rather than a previous case, and the POWPO charge required the jury to learn that Van Meter had a prior felony conviction. The trial court did not abuse its discretion in declining to declare a mistrial.

Van Meter next asserted that the trial court reversibly erred by allowing the prosecutor to show the jury a picture of a partially completed puzzle of an iconic and easily recognizable space shuttle image to explain the concept of reasonable doubt. There was no contemporaneous objection. The challenged behavior constituted prosecutorial misconduct. However, because all the elements of the POWPO charge were clearly proven, and the error was neither obvious nor substantial, the trial court did not plainly err in allowing the prosecutor’s improper conduct.

Van Meter also argued that the trial court erroneously instructed the jury on the definition of “possession” in the context of the POWPO charge. The trial court gave the definition of “possession” from the new criminal jury instructions, and defense counsel affirmatively declined to object to the challenged instruction three times. The challenged instruction was not incorrect or otherwise confusing to the extent that it constituted plain error.

Van Meter next contended that the trial court reversibly erred in allowing evidence that the gun found in his vehicle was stolen and that Van Meter was allegedly using illicit drugs. Here, defense counsel offered no contemporaneous objections and strategically chose to elicit CRE 404(b) evidence, and there was overwhelming evidence of Van Meter’s guilt. Any error in allowing the challenged evidence did not rise to the level of plain error.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sentence of Indeterminate Term of Probation Permitted by Statute

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, February 8, 2018.

Criminal Law—Foreclosure—Theft—Criminal Mischief—Sentencing—Jury Instructions—Evidence—Motive—Prosecutorial Misconduct—Probation—Indeterminate Sentence—Costs.  

Trujillo took out a construction loan from the victim, a bank, for home construction. After construction was completed on the house, Trujillo stopped making his monthly loan payments, and the bank subsequently initiated foreclosure proceedings. Before the foreclosure sale, Trujillo removed or destroyed property in the house, which resulted in a decrease in the home’s value from $320,000 to $150,000. A jury found him guilty of theft and criminal mischief.

On appeal, Trujillo contended that he should have benefited from an amendment to the theft statute reclassifying theft between $20,000 and $100,000 as a class 4 felony. Before the amendment, theft over $20,000 constituted a class 3 felony. Trujillo was charged with theft before the statute was amended but was not convicted or sentenced until after the General Assembly lowered the classification for theft between $20,000 and $100,000. Thus, Trujillo was entitled to the benefit of the amendment.

Trujillo also asserted that the trial court erred in rejecting various jury instructions regarding his theory of the case. Throughout trial, the defense’s theory of the case was that Trujillo lacked the requisite intent to commit the charged offenses because he believed that the property he removed from the house belonged to him. Here, the trial court instructed the jury on Trujillo’s theory of the case in an instruction that clearly stated that Trujillo believed the property he took from the house was “his sole property.” The trial court did not abuse its discretion in drafting a theory of defense instruction that encompassed the defense’s tendered instructions.

Trujillo next asserted that the trial court erred in allowing the People to introduce evidence that another property of his had been foreclosed. However, the evidence was directly relevant to Trujillo’s intent and motive. Therefore, the trial court did not err in admitting it.

Trujillo further argued that the prosecutor improperly commented on the district attorney’s screening process for bringing charges and Trujillo’s decision to not testify, and improperly denigrated defense counsel and the defense’s theory of the case. Although the prosecutor improperly denigrated defense counsel and the defense’s theory of the case, viewing the record as a whole there was not a reasonable probability that the remarks contributed to Trujillo’s convictions. There was no basis for reversal.

Trujillo also contended that the trial court exceeded its statutory authority in sentencing him to indeterminate probation. The statute, however, does not prohibit such sentencing, and based on the substantial amount of restitution Trujillo owed, the trial court did not abuse its discretion in sentencing him to an indefinite probation sentence.

Lastly, the court of appeals agreed with Trujillo’s assertion that the trial court erred in awarding the full costs of prosecution requested by the People without making a finding on whether any portion of the costs was attributable to the acquitted charge.

The judgment of conviction was affirmed. The sentence was affirmed in part and vacated in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 2/8/2018

On Thursday, February 8, 2018, the Colorado Court of Appeals issued eight published opinions and 19 unpublished opinions.

People v. Trujillo

People v. Van Meter

Danko v. Conyers, M.D.

Marso v. Homeowners Realty, Inc.

Campaign Integrity Watchdog, LLC v. Colorado Citizens Protecting Our Constitution

Brunson v. Colorado Cab Co., LLC

Save Cheyenne v. City of Colorado Springs

Montoya v. Industrial Claim Appeals Office

Summaries of these cases are forthcoming.

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: Written Advisement Form Does Not Satisfy ICWA Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of J.L. on Thursday, January 25, 2018.

Dependency and Neglect—Indian Child Welfare Act—Tribal Notification Requirements.

In this dependency and neglect proceeding, the trial court first inquired about the applicability of the Indian Child Welfare Act (ICWA) at the termination hearing after orally ordering termination of parental rights. When the inquiry was made, mother responded that both she and the father had Native American blood and she and her family had been “kicked off the tribe.” At a subsequent hearing, mother indicated she had Indian heritage through her biological family and named several tribes. She stated she was an adoptee, but her biological mother would know of her tribal affiliation. The Alamosa County Department of Human Services (Department) stated it did not believe the ICWA applied, but failed to describe the efforts it had made to determine whether any of the children was an Indian child, and the record contained no evidence that the Department sent notice to the tribes named. Mother appealed the judgment terminating her parent–child legal relationship with her children.

C.R.S. § 19-1-126(1)(a) requires the petitioning party to make continuing inquiries to determine whether the child subject to the proceeding is an Indian child. The petitioning party must also disclose in the commencing pleading whether the child is an Indian child and the identity of the child’s tribe, or what efforts the petitioner made to determine whether the child is an Indian child. The Bureau of Indian Affairs regulations and guidelines also contain notice and inquiry provisions for trial courts and require trial courts to ask participants in emergency or voluntary or involuntary child-custody proceedings whether they know or have reason to know that the child is an Indian child. This inquiry is made at the commencement of the proceeding, and all responses should be on the record. Departments must directly notify each concerned tribe by registered mail with return receipt of the pending proceedings and its right to intervene.

Here, the trial court’s inquiry should have been made at the first hearing after the petition in dependency and neglect was filed and again at the start of the termination proceeding. Mother’s disclosures gave the trial court reason to believe the children were Indian children. The Department did not comply with the ICWA’s notice requirements.

The Department contended that mother’s signing of a written advisement of her rights, which included a question about the ICWA, served as the court’s initial inquiry. The inquiry should be made on the record. Regardless, the Court of Appeals found that the Department failed to send notice to the appropriate tribes when mother identified a reason to believe the children were Indian children.

The case was remanded with instructions for the limited purpose of directing the Department to send appropriate notice to the Kiowa Indian Tribe of Oklahoma and the Pueblo of Taos.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Order Dismissing Dependency and Neglect Proceeding Not Final, Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.R.M. on Thursday, January 25, 2018.

Dependency and Neglect—Final and Appealable Order—Lack of Jurisdiction.

The Garfield County Department of Human Services (Department) filed a petition in dependency and neglect, naming mother and M.M. (father of two children and stepfather to the third, M.A.M.) as respondents. The children were initially placed with their maternal grandmother, but then M.M. moved from Florida to Colorado and sought custody of all three children. The children were placed with him under the protective supervision of the Department. The court adjudicated the three children dependent and neglected with respect to mother. The court adopted treatment plans for mother and M.M., but shortly thereafter he moved to modify the order under which he shared custody of the children with mother and to dismiss the dependency and neglect case. M.M. shared custody of the two older children with mother under a domestic relations order and asserted he should have custody of M.A.M. as her psychological parent. The juvenile court entered an order allocating parental responsibilities for the children between M.M. and mother (the APR order). The court concluded it had jurisdiction to allocate parental responsibilities as to M.A.M. pursuant to C.R.S. 14-10-123(1)(d), which provides that a proceeding concerning allocation of parental responsibilities may be commenced by someone other than a parent who has been allocated parental responsibilities through a juvenile court order. Approximately two weeks later, the court entered an order terminating its jurisdiction and closing the case, from which order mother appealed.

The Colorado Court of Appeals requested supplemental briefs addressing whether mother’s appeal was timely and determined that the appealable order was the APR order. C.R.S. § 19-1-104(6) provides that entry of an order allocating parental responsibilities for a child who is the subject of a dependency and neglect proceeding requested by a party to the case, once filed in the county where the child will permanently reside, will be treated as any other decree in a proceeding allocating parental responsibilities. This action ends the dependency and neglect proceeding and transfers jurisdiction over the child to the district court. Such an order is final and appealable, and a party who wishes to appeal must file a notice of appeal within 21 days of entry of the order. Here, the juvenile court entered an APR order and ordered that it be certified into an existing custody proceeding in the district court as to M.M.’s children, and certified into a new domestic relations case as to M.A.M. Mother did not appeal from that order but rather appealed from the order purportedly terminating its jurisdiction and closing the dependency and neglect case. Mother’s appeal was untimely, and the court lacked jurisdiction to hear it.

However, mother argued the APR order wasn’t a final, appealable order because the juvenile court didn’t have jurisdiction to make the findings needed to grant APR to a nonparent. She contended that because the court did not adjudicate M.A.M. dependent and neglected with respect to her biological father, and the adjudication of the two older children with respect to father M.M. was still in “deferred” status, the APR order was invalid. The court rejected this argument, reasoning that the question was not whether the court had jurisdiction to enter the order, but whether it was final and appealable. The APR order here was final and appealable

Similarly, because mother failed to timely appeal the APR order, the court rejected mother’s argument that because the court failed to commence a paternity action it did not have independent jurisdiction under the Uniform Parentage Act (UPA) to enter an order allocating parental responsibilities.

Finally, mother argued the APR order was not a final, appealable order because it did not fully resolve the right and liabilities of the parties as to paternity, support, and parental responsibilities with respect to M.A.M. Analyzing the issue under the UPA, the court concluded there was no need for a paternity proceeding as to M.A.M. The court rejected mother’s argument that the APR order did not fully resolve the rights and liabilities of the parties because it didn’t find anything else that needed to be resolved; the order addressed visitation, parenting time, and other matters relevant to the allocation or parental responsibilities between mother and M.M.

Mother also argued that the APR order was not final because it was subject to revision. Once it was entered and certified to the district court, jurisdiction to modify it was transferred to the district court, leaving nothing for the juvenile court to do. The court further noted that all orders concerning parenting time and decision-making responsibility may be modified when circumstances warrant a change.

Mother also raised an issue about noncompliance with the Indian Child Welfare Act. The court declined to address this because it lacked jurisdiction due to the untimeliness of the appeal.

The appeal was dismissed with prejudice for lack of an appealable order.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Written Rejection of Enhanced UM/UIM Coverage Not Required

The Colorado Court of Appeals issued its opinion in Airth v. Zurich American Insurance Co. on Thursday, January 25, 2018.

Motor Vehicle Insurance—Uninsured/Underinsured—Summary Judgment.

Airth was seriously injured in an accident while operating a semi truck owned by his employer, Sole Transport LLC, d/b/a Solar Transport Company (Solar). He was struck by a negligent, uninsured driver. Solar had uninsured/underinsured motorist (UM/UIM) insurance coverage of $50,000 for its employees through a policy issued by Zurich American Insurance Co. Airth brought a claim for declaratory relief, seeking to reform Solar’s policy to provide UM/UIM coverage of $1 million. He alleged he was entitled to the higher amount because Zurich had failed, as required by C.R.S. § 10-4-609, to (1) offer Solar UM/UIM coverage in an amount equal to its bodily injury liability coverage ($1 million), and (2) produce a written rejection by Solar of such an offer. On cross-motions for summary judgment, the district court entered judgment for Zurich ruling, as a matter of law, that (1) Zurich’s documents adequately offered Solar UM/UIM coverage in an amount equal to the bodily injury liability limits of the policy, and (2) there is no requirement that the rejection of UM/UIM limits in an amount equal to liability limits be in writing.

On appeal, Airth contended that both of the district court’s rulings were incorrect and the court therefore erred in granting Zurich’s summary judgment motion and denying Airth’s cross-motion. C.R.S. § 10-4-609(1)(a) prohibits an insurer from issuing an automobile liability policy unless a minimum amount of UM/UIM coverage is included in the policy, except where the named insured rejects UM/UIM coverage in writing. C.R.S. § 10-4-609(2) requires an insurer, before a policy is issued or renewed, to offer the insured the right to obtain UM/UIM coverage in an amount equal to the insured’s bodily injury liability limits. The facts here were undisputed. Before renewing Solar’s policy, Zurich sent a package of documents pertaining to Solar’s rights related to UM/UIM coverage and Solar’s counsel affirmed that he had read all the documents. This included an opportunity to reject UM/UIM coverage or to select a higher than minimum level of UM/UIM coverage. Airth argued that none of this constituted an “offer” of the ability to obtain higher UM/UIM coverage, because the documents did not contain a premium quote or a way to estimate the premium for purchasing UM/UIM coverage commensurate with a bodily injury liability limit of $1 million. The Colorado Court of Appeals agreed that this would be the case if it were applying the meaning of the term “offer” as used in contract law. But the Colorado Supreme Court has attributed a different meaning to “offer” as it is used in C.R.S. § 10-4-609; the dispositive question is whether, under the totality of the circumstances, the insured was adequately informed that higher UM/UIM coverage was available. Here, that standard was met by the documents Zurich provided to Solar.

Airth also argued that Zurich was not entitled to summary judgment because there was no evidence that anyone from Solar read or understood the document. This argument overlooks that attestation of Solar’s counsel.

Airth further argued that reversal is required because the documents were signed and dated a month after the policy went into effect. The operative question is whether the insurer gave the insured the opportunity to purchase statutorily-compliant coverage before the insured needed it. The record reflects that Solar had received and responded to the notification and offer before the accident that injured Airth.

Airth also contended that the district court erred in determining that the statute only requires a written rejection with respect to the minimum UM/UIM coverage available and not to the additional coverage available. The court agreed with the district court’s conclusion that a written rejection is required only if the insured declines the minimum amount of UM/UIM coverage, which was not the case here.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.