May 18, 2013

You are here: Home / Archives for damages

Colorado Court of Appeals: Trial Court’s Imposition of Fine in Excess of Damages Upheld

May 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in In re Estate of Hossack: Robinson v. Hossack on Thursday, April 25, 2013.

Contempt—Fine as Remedial Sanction for Contempt.

Gladys Robinson appealed the trial court’s order denying her motion to set aside a judgment in favor of decedent’s children and against Robinson in the sum of $231,300. The order was affirmed.

Robinson lived with the decedent, Charles Erroll Hossack, at the time of his death. Following the settlement of his estate, the court ordered her to return specified items of personal property to Lori and Kirk Hossack, decedent’s children. Robinson did not comply.

In a written order issued November 14, 2007, made effective nunc pro tunc August 21, 2007, the court found Robinson in contempt because she did not return the property. Robinson did not timely appeal the contempt order and did not comply with its terms. The fines that were imposed ($100 per day and later $1,000 per day) eventually accumulated to a sum of $231,300.

The decedent’s children moved to reduce this amount to judgment in March 2008. This motion was granted in January 2010, with interest accruing at 8% annually.

Robinson moved under CRCP 60(b)(3) to set aside the judgment. She argued that the amount of the fine should have been limited to any damages the decedent’s children may have suffered. The trial court denied the motion, and Robinson appealed.

CRCP 60(b)(3) allows a court to grant a party relief from a void judgment. Robinson based her argument on cases and language in CRCP 107(d) that limited the amount of a remedial fine to the damages the adverse party suffered. Due to amendments to the rule, effective April 1, 1995, the rule now defines remedial sanctions for contempt to be “[s]anctions imposed to force compliance with a lawful order or to compel performance of an act within the person’s power or present ability to perform.” It also empowers the court to continue to fine a contemnor until an act ordered to be performed is performed.

Robinson also argued that any fine could only be payable to the court and not to decedent’s children. The Court found no authority for this argument. Accordingly, the order was affirmed.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , , ,

Colorado Court of Appeals: Bashor-type Agreement Upheld as Permissible; Summary Judgment Reversed

February 19, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in DC-10 Entertainment, LLC v. Manor Insurance Agency, Inc. on Thursday, February 14, 2013.

Insurance Coverage—Broker—Damages—Assignment of Claims—Assault and Battery Exclusion—Negligent Misrepresentation.

DC-10 Entertainment, LLC (DC-10) appealed the trial court’s summary judgment in favor of Manor Insurance Agency, Inc. (Manor). The judgment was reversed and the case was remanded for further proceedings.

DC-10, a nightclub and lounge, obtained insurance coverage through Manor, an independent insurance broker that services multiple insurance companies. Through Manor, DC-10 procured a commercial general liability policy with Penn-Star Insurance Company (Penn-Star) and a liquor liability policy with Founders Insurance Company (Founders).

Heaven Henderson suffered injuries when she was physically assaulted by an unknown assailant on DC-10’s premises. Henderson sued DC-10. DC-10 then submitted claims to Penn-Star and Founders for defense and indemnity coverage. Both companies denied the claim because the policies contained an assault and battery exclusion. DC-10 settled with Henderson and then sued Manor, asserting claims of negligence and negligent misrepresentation. The court granted Manor’s motion for summary judgment.

DC-10 contended the trial court erred in determining that the settlement agreement was insufficient to establish that DC-10 incurred damages. Because the agreement does not contain a pretrial stipulated damages award, DC-10 did not bear the burden of proving the reasonableness of the judgment. Instead, the burden shifted to Manor to prove that the damages award, as determined by the arbitration judge, was unreasonable. In challenging the reasonableness of the damages award, Manor also may raise the affirmative defense of collusion or fraud. Because these are factual issues, the trial court erred in granting summary judgment.

Manor challenged the enforceability of an assignment of proceeds of negligence claims against an insurance broker. Manor owed a duty to DC-10 to obtain the insurance coverage that DC-10 requested. An assignment of claims against an insurance broker, where the claim arises from a commercial transaction and the insured has the same expectations of the insurance broker that he or she would have of the insurer, is not prohibited. Accordingly, DC-10’s assignment of the proceeds from its negligence and negligent misrepresentation claims against Manor to Henderson, the injured third party, was enforceable.

Finally, Manor contended that DC-10’s negligence and negligent misrepresentations claims failed as a matter of law because DC-10 did not present evidence that assault and battery coverage, if obtained, would have covered the alleged patron-on-patron assault in the underlying lawsuit. Because the availability of coverage sought by DC-10 remained a disputed factual question, Manor did not meet its burden of proof on this issue on its motion for summary judgment.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , , ,

Colorado Court of Appeals: Sufficient Evidence Existed to Support Future Damages Award Under Minnesota Law

February 4, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Target Corp. v. Prestige Maintenance USA, Ltd. on Thursday, January 31, 2013.

Damages—Contract—Choice of Law—Injuries—Preservation for Appellate Review—Standard of Review.

Defendant Prestige Maintenance USA, Ltd. (Prestige) appealed the trial court’s judgment awarding future damages to plaintiff Target Corporation (Target). The judgment was affirmed.

Prestige had contracted with Target to provide cleaning services at Target stores. The contract provided that Prestige would indemnify Target for, among other things, all injuries or damages relating to or arising out of Prestige’s performance of its services. While using a vacuum cleaner, a Prestige employee caused Johanna Cleveland, a Target employee, to fall and injure her right knee while working in a Colorado Target store. Target filed a breach of contract action against Prestige, seeking indemnification for Cleveland’s injuries and damages. The court ruled in favor of Target.

On appeal, Prestige contended that the trial court erred in awarding Target future damages in three categories: (1) future medical treatment; (2) future disability payments; and (3) future medical management costs. The parties’ cleaning contract contained a choice of law provision stating that Minnesota law shall “govern all matters arising out of or related to this Agreement, including its interpretation, construction, performance or enforcement.” Therefore, the court applied Minnesota law to determine the substantive issue of damages in this matter. Pursuant to Minnesota law, there was sufficient evidence to support the damages award for future medical treatment, future disability benefits, and future medical management, because it was more likely than not that Cleveland would incur these damages. The remaining two issues—the legal standards governing preservation for appellate review and the standard of review—were matters of judicial administration. Therefore, Colorado law was applied.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , ,

SB 13-023: Increasing the Limits on Damages that May be Recovered Under the Colorado Governmental Immunity Act

January 31, 2013 by Leave a Comment

On Wednesday, January 9, 2013, Sen. Bill Cadman introduced SB 13-023 – Concerning an Increase in the Limitation on the Amount of Damages that May be Recovered by an Injured Party Under the “Colorado Governmental Immunity Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the “Colorado Governmental Immunity Act” (Act) sets as a maximum amount that may be recovered by a person suing a public entity or public employee for loss or injury caused by the entity or employee in any single occurrence, whether from one or more public entities and public employees:

  • For any injury to one person in any single occurrence, the sum of $150,000; and
  • For an injury to two or more persons in any single occurrence, the sum of $600,000, and, in such circumstances, the act prohibits any single person from recovering in excess of $150,000.

To ensure these limitations on damages reflect the effects of inflation since the specific limitations were last increased by the general assembly, the bill increases the damages limitation for any injury to one person in any single occurrence to $478,000. For an injury to two or more persons in any single occurrence, the bill increases the damages limitation to $990,000 and further specifies that, in such circumstances, a single person is precluded from recovering in excess of $478,000.

The bill further provides that the increased damages amounts are:

  • Exclusive of interest awarded; and
  • Adjusted for inflation every four years. The bill requires the attorney general to make this required adjustment on an every four-year basis commencing Jan. 1, 2018, to certify the amount of the adjustment, and to publish the amount of the adjustment on the attorney general’s web site.

The bill is assigned to the Judiciary Committee.

Filed Under: Legislation Tagged With: , , , , ,

Colorado Court of Appeals: Personal Injury Plaintiff Should Receive Statutory Interest on Damages, Not Market Rate Interest

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Averyt v. Wal-Mart Stores, Inc. on Thursday, January 17, 2013.

Post-Judgment Interest Rate Personal Injury Tort Case.

In general, if a plaintiff obtains a money judgment in a personal injury tort case, CRS § 13-21-101(1) requires the trial court to add post-judgment interest to the amount of damages the jury awards, at the rate of 9%, compounded annually. However, if the judgment debtor appeals the money judgment, then the court must calculate post-judgment interest at a market-determined rate. This appeal raised the question of whether the exception applies when the judgment creditor—here, the plaintiff—appeals after (1) the jury has awarded the plaintiff money damages; (2) the trial court enters judgment in plaintiff’s favor; (3) the judgment debtor—here, the defendant—files a motion for a new trial; and (4) the trial court grants the defendant’s motion for a new trial and vacates the judgment. In this case, the applicability of the exception is particularly meaningful because the post-judgment interest rate established by the general rule is much higher than the market determined rate (9% versus 3%). The Court of Appeals held that the exception did not apply and affirmed the trial court’s judgment.

Holly Averyt drove a commercial truck. She slipped and fell on grease-coated ice on a loading dock when she was making a delivery to Wal-Mart Stores, Inc. (Wal-Mart). The fall ruptured a disc in her spine and injured her shoulder and neck, rendering her unable to do her job and unable to control her bladder or bowel.

Averyt sued Wal-Mart for negligence and premises liability. The jury returned a verdict in her favor, assessing total damages at $15 million. In December 2010, the trial court entered judgment and reduced the damages to $9,866,250 to reflect the statutory cap on noneconomic damages. Wal-Mart moved for a new trial based on an evidentiary issue, and the motion was granted. Averyt sought relief in the Supreme Court under CAR 21. The Supreme Court reversed the trial court’s order granting Wal-Mart a new trial.

In February 2012, the trial court entered judgment for the driver in the amount of $9,866,250, pre-judgment interest in the amount of $2,794,788.47, and costs of roughly $45,000. It also awarded post-judgment interest at the statutory rate of 9%, accruing from December 1, 2010 and compounding annually until the judgment was satisfied. Wal-Mart appealed.

Wal-Mart argued that the premises liability verdict was not supported by sufficient evidence. However, the Court found sufficient facts in the record to support the verdict.

Wal-Mart also argued that the market-based interest rate of 3% should apply. It contended that the trial court should have treated Averyt’s CAR 21 original proceeding after the trial court vacated the judgment (an appeal by the judgment creditor) like an appeal by a judgment debtor for the purposes of determining the rate of post-judgment interest. The Court disagreed. CRS § 13-21-101(1) refers only to judgment debtors, not to judgment creditors. The 9% rate was affirmed.

Averyt contended that she should be awarded attorney fees because Wal-Mart’s appeal was frivolous. The Court disagreed. The appeal was not frivolous because there was a basis for Wal-Mart’s argument.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , , ,

Colorado Court of Appeals: In Breach of Contract Case, Three-Part Test to Determine Equitable Estoppel Was Satisfied

January 8, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Extreme Construction Co. v. RCG Glenwood, LLC  on Thursday, December 27, 2012.

Construction Contract—Equitable Estoppel in a Contract Action.

In this action concerning the interpretation of a payment provision in a construction contract, plaintiff Extreme Construction Co. (Extreme) appealed the amount of the monetary judgment that it obtained against defendant RCG Glenwood, LLC (RCG) and the judgment entered in favor of defendant Mike Spradlin. RCG cross-appealed the trial court’s award of attorney fees, costs, and certain prejudgment interest to Extreme, as well as the court’s denial of RCG’s request for fees and costs. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.

RCG, through Spradlin, its owner, negotiated for Extreme to remodel a portion of a building. Extreme provided a budget that estimated the total price and included amounts for superintendence and labor, which were calculated at $68.50 per hour and $38.50 per hour, respectively. The contract that was entered into did not include these hourly rates. Instead, it was a Guaranteed Maximum Price contract that provided for payment of wages of construction workers employed by Extreme, as well as “Builder’s overhead and construction management fee of 5.5%, and Builder’s profit of 5.5%, for a total of 11%.”

Extreme mailed monthly bills reflecting the hourly wage charges noted above. These invoices were paid without objection, but some of RCG’s checks bounced. Each time Extreme discussed the bounced checks with Spradlin, no issues regarding the hourly rates were raised. Notwithstanding the failure of RCG to pay its bills, Extreme completed the project on time, to Spradlin’s satisfaction, and for about $45,000 less than the Guaranteed Maximum Price.

RCG failed to pay in full, and Spradlin proposed a payment schedule and “a promissory note, personally guaranteed.” Based on his request, Extreme did not file a lien and prepared a promissory note, which was never signed.

Extreme sued, claiming breach of contract against RCG and that Spradlin had breached his personal guarantee. RCG and Spradlin asserted Extreme had overbilled RCG, claiming Extreme was not permitted to bill for superintendence and labor on an hourly basis. Extreme replied that the contract was ambiguous and that extrinsic evidence, including the pre-contractual budget, favored its interpretation. In addition, Extreme claimed RCG was estopped from contesting Extreme’s interpretation of the contract.

The trial court found that the contract was ambiguous but that the extrinsic evidence supported RCG and Spradlin’s argument. It rejected the estoppel argument. The court entered judgment in favor of Extreme and against RCG in the amount of $18,523.65. Because this was significantly less than the amount Extreme had sought at trial, RCG argued it was the prevailing party under a fee-shifting provision in the contract. Also, because the amount of the judgment was less than the offer of settlement made under CRS § 13-17-202, any interest awarded to Extreme had to be abated as of the date of the offer, and RCG was entitled to an award of costs. The trial court rejected all of these arguments. Both parties appealed.

Extreme contended that RCG was equitably estopped from contesting Extreme’s interpretation of the contract, and the Court of Appeals agreed. The Court held, as a matter of first impression, that the equitable estoppel doctrine applies to disputes over contract interpretation, at least in cases involving the construction of an ambiguous contractual provision unrelated to insurance coverage.

The Court also agreed with the trial court that the contractual provision regarding wages was ambiguous. For equitable estoppel to apply, the party asserting the doctrine must establish that (1) the other party had full knowledge of the facts, (2) the other party unreasonably delayed in asserting an available remedy, and (3) the party asserting the doctrine relied on the other party’s delay to its detriment.

The trial court found, and the record supported, that the first element was satisfied. The trial court found the second element was not met because if RCG had sought redress, it would have halted the project. The Court found this was error. It is unreasonable for a contracting party who knows of, but secretly disagrees with, the other side’s contract interpretation to delay challenging the interpretation until the other side has completed its performance. This is even more the case where, as here, RCG’s silence induced Extreme’s continued performance. The trial court also erred in finding the third element wasn’t met, because the facts clearly demonstrated that Extreme relied on RCG’s failure to contest its invoices to its detriment. The award of damages was vacated and the case was remanded to the trial court to recalculate the damages.

Extreme argued it was error for the trial court to determine that Extreme never accepted Spradlin’s offer of a personal guarantee. The Court was not persuaded. It agreed with the trial court that although an offer was made by Spradlin, no action was taken that indicated an acceptance by Extreme.

RCG argued it was error to find that under the fee-shifting provision in the contract, Extreme, and not RCG, was the prevailing party. The Court disagreed. RCG was held liable for breach of the contract; therefore, it was the prevailing party for purposes of awarding attorney fees.

RCG also contended it was error for the trial court to reject its assertion that under CRS § 13-17-202, the interest awarded to Extreme should have abated as of the time of the offer of settlement. The Court disagreed, finding that RCG did not address in its briefs the trial court’s finding that RCG did not make a qualifying offer of settlement.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , ,

Colorado Court of Appeals: Plaintiff in Personal Injury Action Has No Affirmative Duty to Mitigate Medical Expenses when Pain is Unresolved

January 3, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Banning v. Prester on Thursday, December 27, 2012.

Automobile Accident—Injuries—Jury Instructions—Mitigation of Damages—Collateral Source Rule—Testimony.

In this automobile accident case, plaintiff Michelle Banning appealed the judgment awarding her damages following a jury verdict against defendant William Prester. The judgments were reversed and the case was remanded for a new trial.

Prester negligently drove his vehicle, causing a low-speed rear-end collision with Banning’s vehicle. Banning sought medical attention for neck and back pain. Her billed medical expenses eventually reached approximately $140,000.

On appeal, Banning asserted that the trial court erred in instructing the jury concerning Prester’s mitigation of damages defense by allowing the jury to find she failed to mitigate if she “continued to undergo expensive treatment when it was not resolving her pain.” Plaintiffs do not have an affirmative duty to cease medical treatment when it is “expensive” and “fails to resolve a complaint of pain.” Therefore, the court erred in so instructing the jury, and the erroneous instruction was prejudicial to Banning. Accordingly, the case was remanded for a new trial on damages.

Banning also contended that the trial court erred in admitting evidence of amounts her health insurer paid to her medical providers. On remand, the trial court should apply the collateral source rule to this evidence.

Banning further asserted that the trial court erred when it allowed Dr. Lambden, Prester’s expert witness, to provide testimony about the “delta forces” involved in the accident, as well as testimony concerning Banning’s history of being subjected to domestic abuse. Contrary to Banning’s assertion, however, Dr. Lambden did not mention delta forces again after Banning’s objection to this testimony was sustained by the court. Further, the reference to Banning’s history of domestic abuse was relevant to Banning’s claim of depression after the accident and Prester’s assertion that Banning suffered from delayed recovery syndrome. Therefore, the court did not err in this regard.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , ,

Colorado Supreme Court: Amended Opinion – General Steel Domestic Sales LLC v. Bacheller III

December 23, 2012 by Leave a Comment

The Colorado Supreme Court amended its opinion in General Steel Domestic Sales LLC v. Bacheller III on Thursday, December 20, 2012.

First Amendment—Right to Petition—Trebled Exemplary Damages.

The Supreme Court held that Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) (POME), is inapplicable where, as here, the underlying alleged petitioning activity was the filing of an arbitration complaint that led to a purely private dispute. Under POME, a plaintiff must meet a “heightened standard” when suing a defendant for the “alleged misuse or abuse of the administrative or judicial processes of government.” Here, Bacheller sued General Steel Domestic Sales, LLC (General Steel), Discount Steel Buildings, LLC (Discount Steel), and the presidents of both companies for abuse of process, malicious prosecution, and civil conspiracy, based on their filing an arbitration complaint against him. The trial court denied defendants’ request to include additional elements reflecting POME’s heightened standard in the malicious prosecution jury instruction. Because POME is inapplicable here, the Court affirmed the trial court’s ruling.

The Court also held that the trial court did not abuse its discretion by trebling the exemplary damages award against General Steel and Discount Steel. After the jury returned verdicts in Bacheller’s favor on several claims and awarded actual and exemplary damages, the trial court granted Bacheller’s motion to treble the exemplary damages award but only against General Steel and Discount Steel. Because the record supports the trial court’s finding that defendants acted willfully and wantonly during the pendency of the action and further aggravated Bacheller’s damages, the Court affirmed the trial court’s ruling.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , ,

New IAALS Study Asks and Answers “What Has Happened with Rule 16.1 in Colorado?”

December 11, 2012 by Leave a Comment

IAALS has just released a Rule One Initiative research report entitled Measuring Rule 16.1: Colorado’s Simplified Procedure Experiment. In 2004, the Colorado Supreme Court put in place Rule 16.1, a voluntary pretrial process for smaller dollar-volume civil cases, with the hope of providing a more efficient path to resolution. This new report sets forth the results of an empirical study of Rule 16.1, including its role and impact. With growing interest in streamlined pretrial procedures, case differentiation, and optional processes, we felt it was important to examine one such rule that has existed for some time. Through this study, IAALS attempts to answer the question: What has happened with Rule 16.1 in Colorado?

Rule 16.1 is the default pretrial procedure in Colorado district court for typical types of civil actions with less than $100,000 in controversy between any two parties, although any party may “opt out” and elect to use the standard pretrial process instead. This “simplified” procedure generally replaces discovery with mandated disclosures, along with assurances of a faster route to trial. Recovery under Rule 16.1, including attorney fees but excluding costs, cannot exceed the $100,000 limit.

The study documented the highest rate of Rule 16.1 cases in consumer credit collection actions (95%) and other straightforward contract actions in which damages are fixed or liquidated. In 70% of cases proceeding under Rule 16.1, there is no appearance by any defendant, and more than half resolve by entry of default judgment. Overall, the perception among interviewed attorneys and judges is that the cap on damages and inflexible limits on discovery have discouraged attorneys from using the procedure. In other words, given the choice of opting out, many attorneys do just that.

In the 30% of Rule 16.1 cases that were contested and therefore invoked the provisions of the procedure, there is mixed evidence on the rule’s impact. With respect to time to disposition, the county in which the case is filed appears to play a larger role than Rule 16.1. In addition, Rule 16.1 cases have not been shown to have a higher trial rate. However, Rule 16.1 is associated with a decrease in the number of motions filed. It is not possible to know whether the results would have been different if the rule was more frequently applied in actively litigated cases.

Colorado’s experience may contain insight for other jurisdictions as they experiment with formulating sets of rules to more effectively secure the “just, speedy, and inexpensive” resolution of civil cases. Click here to read the full report.

Corina Gerety is Manager of Research for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on November 28, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Filed Under: Practice Management Tagged With: , , , , , , ,

Colorado Court of Appeals: Premises Liability Statute Specifically Provides Immunity to Mental Health Providers for Violent Behavior of Patients

November 14, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Marcellot v. Exempla, Inc. on Thursday, November 8, 2012.

Personal Injury—CRCP 12(b)(5) Dismissal—CRS § 13-21-117 Immunity.

In this personal injury action, plaintiff Melanna Marcellot appealed the judgment of dismissal in favor of defendant Exempla, Inc., doing business as Exempla West Pines (Exempla), a mental health hospital. The judgment was affirmed.

Marcellot, a psychiatric nursing educator, visited Exempla with three of her students. Before entering the Psychiatric Intensive Care Unit, she asked the nursing staff whether there were any patients who presented a safety risk to her or her students. She was told there were none. However, shortly after entering the unit, a patient assaulted her. Exempla knew that the patient presented a special risk.

Marcellot sued Exempla, alleging it had been negligent in failing to take reasonable steps to prevent the patient from harming her and in failing to provide adequate staffing. She also asserted a claim under the Premises Liability Act. Exempla moved to dismiss the general negligence claims, contending that the premises liability statute provided the exclusive remedy for Marcellot. The court granted the motion and that determination was not appealed.

Exempla then moved to dismiss the premises liability claim, asserting immunity under CRS §13-21-117. The trial court agreed and dismissed the claim. Marcellot appealed. She argued that §13-21-117 covers affirmative duties to act, but does not protect a mental health care provider from liability where incorrect information is provided in response to a direct question. The Court of Appeals disagreed. The statute specifically states that a mental health hospital “shall not be liable for damages in any civil action for failure to warn or protect any person against a mental health patient’s violent behavior,” unless there has been a specific threat against that third party. The Court found this plain language broad and all-encompassing. It precludes liability for failure to warn, as well as failure to protect any person.

The Court also rejected Marcellot’s contention that §13-21-117 does not apply to inpatients. If that were the case, the General Assembly could have so stated. The judgment was affirmed.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , ,

Colorado Court of Appeals: Trial Court Erred in Requiring Jury to Determine Penalties but Error was Corrected in Trial Court and Therefore There Was No Harm

November 7, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Graham v. Zurich American Insurance Co. on Thursday, November 1, 2012.

Employment—Colorado Wage Claim Act—Penalties—Jury—Attorney Fees.

Zurich American Insurance Company appealed from the trial court’s final judgment in favor of Michael Graham. The judgment was affirmed and the case was remanded.

After being terminated from his job at Zurich, Graham brought an action to recover certain bonuses that, in his view, constituted unpaid wages under the Colorado Wage Claim Act. The jury found in Graham’s favor and awarded $28,326.98 in damages, but it failed to add certain penalties that are mandatory under the Wage Claim Act. After the court gave the jury additional instructions, the jury entered a verdict in favor of Graham that included penalties. The court entered judgment on the first verdict in the amount of $28,326.98, plus penalties and interest.

Zurich contended that the court erred in granting judgment for Graham. It is the jury’s responsibility to make the necessary factual findings as to whether the employee made a written demand for payment, whether the employer paid the employee within fourteen days, and whether the employer’s failure to pay was willful. After receiving the jury’s factual findings, the court is then responsible for determining the penalties as a matter of law. Here, the court erred in requiring further deliberations after it received the first verdict. The court should have recognized that the first verdict contained all the necessary factual findings, and it should have corrected the jury’s determination of penalties as a matter of law. Therefore, although the court erred in further instructing the jury to determine penalties, it corrected its error by entering judgment on the first verdict and determining penalties based on the jury’s factual findings. The judgment was affirmed and the case was remanded to the court to determine, in its discretion, whether Graham should be awarded the reasonable attorney fees he incurred in defending this appeal.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , ,

Colorado Court of Appeals: Equitable Relief, Not Legal Damages, Appropriate Where Contract Provided for Equitable Adjustment for Unanticipated Costs

October 31, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Parker Excavating, Inc. v. City & County of Denver on Thursday, October 25, 2012.

Contract Dispute—Equitable Relief.

In this government contracts case, plaintiff Parker Excavating, Inc. (Parker) appealed the trial court’s judgment awarding it $1.65 million under an equitable adjustment provision of Parker’s contract with the City and County of Denver’s Board of Water Commissioners (Denver Water). The judgment was affirmed.

This case arose out of a contract dispute between Parker and Denver Water over responsibility for increased costs associated with constructing a dam and reservoir at a sand and gravel pit. The trial court found that Parker’s costs increased by $2,373,679, but “as an equitable matter . . . both parties share some responsibility for the unanticipated muck.” The court concluded that Denver Water was more responsible than Parker. It then awarded Parker $1.65 million.

On appeal, Parker argued that the trial court erred in awarding Parker equitable relief rather than legal damages. The contract contained an equitable adjustment provision, entitling either party to seek an equitable adjustment for increased or decreased costs caused by unanticipated site conditions. Further, the contract excluded compensation for excavation costs. Therefore, from the plain language of the contract, the parties would have reasonably expected an equitable adjustment to be a remedy in equity. Further, the trial court did not clearly err in reducing the measure of equitable adjustment to account for Parker’s relative responsibility in not determining the extent of the muck. The trial court’s findings are, therefore, supported by evidence in the record that certain costs were attributable to Parker, and those findings were not disturbed on appeal.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , , ,
«Older Posts
Protected

2013-05-18 11:31:26