July 20, 2017

Tenth Circuit: Discretionary Function Exemption Applies to All Activities of Prosecutors

The Tenth Circuit Court of Appeals issued its opinion in Estate of James D. Redd, M.D. v. United States on Tuesday, February 14, 2017.

The facts of the case stemmed from the case of Estate of James D. Redd, M.D. v. Love, in which the estate of Dr. Redd alleged that Mr. Love, a special agent with the Bureau of Land Management, violated Dr. Redd’s Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights when officers searched the Redds’ home as a part of an investigation that targeted persons in possession and trafficking in Native American artifacts that had been taken illegally from the Four Corners region of the United States. The day after agents searched the Redds’ property and arrested him, Dr. Redd committed suicide.

At the beginning of the trial of the lawsuit against Agent Love, the court dismissed all claims against Agent Love except one alleging excessive force. The court later dismissed the excessive force claim as well. In this appeal, the Tenth Circuit was evaluating one of the early claims under the Federal Tort Claims Act (FTCA) that had been dismissed by the district court in the first case: that the value of a “bird effigy pendant” was, as alleged by the estate, overstated in order to support a felony charge against Dr. Redd.

At the request of the parties to the case, the court decided the case on the briefs without oral argument. The court reviewed the claim de novo that the value of the pendant was inflated, and that prosecutors were aware of the inflation. The court stated, “determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” The court agreed with the district court’s finding that the allegation that a cooperating witness intentionally over-valued the pendant is implausible and not well pleaded. The court then noted that the district court was correct in stating that, “absent the implausible allegation of fraudulent valuation of the pendant, the discretionary function exception applies to all identified activities of the prosecutors barring the Estate’s FTCA claim.”

The Tenth Circuit affirmed the district court’s dismissal of all the Estate’s FTCA claims based on the discretionary-function exemption.

Tenth Circuit: Commerce Clause Authorizes Regulation of Take of Utah Prairie Dog

The Tenth Circuit Court of Appeals published its opinion in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service on Wednesday, March 29, 2017.

People for the Ethical Treatment of Property Owners (PETPO), representing over 200 property owners and entities, challenged a regulation promulgated by the Fish and Wildlife Service (FWS) pursuant to the Endangered Species Act (ESA). The challenged regulation restricts, but does not prohibit, the take of Utah prairie dogs, a listed threatened species, on non-federal land. The U.S. District Court of Utah granted PETPO’s request for summary judgment on the basis that neither the Commerce Clause nor the Necessary and Proper Clauses authorizes Congress to regulate the take. The FWS and Friends of Animals (FoA), as intervenors, appealed. Together they argue, that PETPO lacks standing and the challenged regulation is Constitutional. The Tenth Circuit agreed with the district court on the issue of standing, but concluded that the district court erred in its conclusion that the regulation was not authorized by the Commerce Clause. The court did not address whether the regulation was not authorized by Necessary and Proper Clause.

The Tenth Circuit first considered the issue of standing de novo. The parties disagreed whether the PETPO had sufficient standing for the summary judgment stage. The parties agreed that PETPO suffered an injury in fact that was traceable to the actions of defendant, but disagreed about whether PETPO’s injury would be redressable. PETPO claimed that the regulation was unduly burdensome and requested declaratory and injunctive relief, which “pertain to any federal prohibition on the take of Utah prairie dogs on nonfederal land.” The Tenth Circuit found that PETPO had standing, since the Necessary and Proper and Commerce clauses allow Congress to regulate the take.

The Tenth Circuit found that the district court erred in holding that the challenged regulation was not permissible under the Commerce Clause. The court held that “[R]egulation on nonfederal land of take of a purely intrastate species, like the Utah prairie dog, under the ESA is a constitutional exercise of congressional authority under the Commerce Clause.” The court applied the framework established by the Supreme Court in Gonzales v. Raich and found (1) the ESA to be a comprehensive regulatory scheme substantially affecting commerce; and (2) Congress had a rational basis to believe that the regulation at issue is an essential part of that scheme.

Here, the “[R]egulation of take of endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity.” This is because Congress intended the ESA to conserve species, restrict commerce, and thereby promote long-term commerce. Further, the Commerce Clause authorizes Congress to regulate commerce, which includes “the power to prohibit commerce.”

Remaining was the question of whether regulation of a purely intrastate species, such as the Utah prairie dog, is authorized within the Raich framework. Here, the court reasoned that the majority of species protected by the ESA are intrastate. If this particular regulation is viewed in isolation as PETPO proposed, the “[p]iecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes.” Further, this approach was foreclosed by Raich because it “[w]ould lead to just such a lingering death for the ESA—and likely for other regulatory schemes—insofar as every individual regulation passed within a larger regulatory scheme would be subject to a narrowly applied substantial effects test.” Therefore, “[C]ongress had a rational basis to conclude that providing for the protection of purely intrastate species is essential to the ESA’s comprehensive regulatory scheme.”

The court REVERSED and REMANDED with instructions to enter judgment in favor FWS and FoA.

Adoption Instruction Forms, Change of Name Instructions Amended in July

The Colorado State Judicial Branch released five JDF forms with a July 2017 revision date. The forms amended in July are four instruction forms in the adoption category and one instruction form for a change of name for a minor. These forms are available in PDF format here or in Word format on the State Judicial website. Additionally, one form was amended in June and several were amended in May. They are also available here.

ADOPTION

  • JDF 495 – “Instructions for Second Parent Adoption (Without Civil Union)” (Revised 7/17)
  • JDF 497 – “Instructions for Validation of Foreign Adoption” (Revised 5/17)
  • JDF 498 – “Instructions for Kinship Adoption” (Revised 7/17)
  • JDF 499 – “Instructions for Custodial Adoption” (Revised 7/17)
  • JDF 500 – “Instructions for Stepparent Adoption” (Revised 7/17)

DOMESTIC RELATIONS

  • JDF 1413I – “Instructions for Allocation of Parental Responsibilities” (Revised 6/17)

GENERAL/MISCELLANEOUS

  • JDF 76 – “General Motion” (Revised 5/17)
  • JDF 88 – “Notice of Change of Address or New Name” (Revised 5/17)
  • JDF 97 – “Notice to Quit” (Revised 5/17)

NAME CHANGE

  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (Revised 7/17)
  • JDF 424 – “Request to Publish Notice to Non-custodial Parent of Change of Minor’s Name and Publication Order” (Revised 5/17)
  • JDF 425 – “Notice to Non-custodial Parent by Publication” (Revised 5/17)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: Balancing Test Enunciated when One Party Calls Other Party’s “May Call” Witness

The Colorado Court of Appeals issued its opinion in Sovde v. Scott, D.O. on Thursday, June 29, 2017.

Medical MalpracticeMisdiagnosisExpert WitnessesTimely EndorsementHearsay.

Sovde, a child, sued doctors Scott and Sarka by and through his mother. The lawsuit claimed that defendants had negligently misdiagnosed lesions on the child’s head as something benign instead of manifestations of the herpes simplex virus, and if defendants had timely and properly diagnosed the lesions as products of less harmful skin, eyes, and mucous membrane disease, they could have treated the child with antibiotics, which could have prevented the onset of the more harmful central nervous system disease. The jury found in defendants’ favor.

On appeal, plaintiff argued that the trial court erred when it denied his requests to use the testimony of defendants’ previously endorsed expert witnesses whom defendants had withdrawn. The trial court did not abuse its discretion when it permitted defendants to withdraw Dr. Reiley and Dr. Molteni as expert witnesses and not make them available at trial because they had previously been listed as “may call,” not “will call,” witnesses. Further, because plaintiff did not timely endorse these witnesses or timely inform the court and defendants that he would use their depositions at trial, and the record supports the trial court’s implicit decision that the testimony and depositions would have been cumulative or would have had little probative value, the trial court did not err in denying his requests. For the same reasons, the trial court properly rejected plaintiff’s motion for a new trial.

Plaintiff also argued that the trial court erred in excluding father’s telephone conversation with a licensed medical assistant in a pediatrician’s office, contending that the testimony was admissible under CRE 803(4) as statements made for purposes of medical diagnosis or treatment. Although some of father’s statements fell within the ambit of CRE 803(4) because he provided them to the medical assistant to obtain a diagnosis of and treatment for the child’s condition, plaintiff failed to show that excluding this testimony substantially influenced the basic fairness of the trial. Further, the trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial on these grounds.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Brand Inspection Division is Entitled to Eleventh Amendment Immunity

The Tenth Circuit Court of Appeals issued its opinion in Colby v. Herrick on March 1, 2017.

This case stemmed from a battle between Ms. Colby and her mother over the ownership of a horse. The mother complained to the Colorado Department of Agriculture, which sent someone from the Brand Inspection Division (Division) to investigate the situation. After investigating, the inspector seized the horse. Ms. Colby and her mother settled the ownership dispute in court and after three years, Ms. Colby prevailed and received the horse back. Ms. Colby and her husband then sued the Division and two of its officers. The district court dismissed the action.

The Tenth Circuit first addressed the Division as a defendant in the suit. It held that the Division was entitled to Eleventh Amendment immunity as an arm of the state and therefore could not be sued in federal court. Further, the Tenth Circuit held that because the Division was an arm of the state entitled to Eleventh Amendment immunity, the Colbys could not sue the two officers in their official capacity.

The Tenth Circuit reviewed the Eleventh Amendment immunity issue de novo. The Eleventh Amendment extends to governmental entities that are considered arms of the state. When determining if the Division was an arm of the state, the Tenth Circuit laid out five factors that it considered: (1) how the Division is characterized under Colorado law; (2) how much guidance and control the state of Colorado exercises over the Division; (3) how much funding the Division receives from the State; (4) whether the Division enjoys the ability to issue bonds and levy taxes; and (5) whether the state of Colorado bears legal liability to pay judgments against the Division.

The Tenth Circuit held that the first factor weighed in favor of regarding the Division as an arm of the state. This was due to the fact that Colorado law treats the Division as part of the state government. Additionally, the Division participates in state government as a state agency and the agency’s inspectors are Colorado law enforcement officers with the power to make arrests for violations of state law.

The Tenth Circuit held that the second factor also weighed in favor of regarding the Division as an arm of the state. This was because the Division is considered part of the state Department of Agriculture and is therefore subject to control by state officials.

With regard to the third factor, the Division is entirely self-funded. Additionally, with regard to the fourth factor, the State Board of Stock Commissioners is entitled to issue bonds worth up to $10 million to pay the Division’s expenses. The Tenth Circuit held that these two factors by themselves would cut against Eleventh Amendment immunity. However, the Tenth Circuit held that because the Division is entitled to participate in the Colorado risk management fund, which obtains money from state appropriations, that use of state money supports consideration of the Division as an arm of the state.

The Tenth Circuit held that it was unclear whether the State bears legal liability to pay a judgment of the Division.

Therefore, because the first and second factors clearly support characterization as an arm of the state, and the third and fourth could go both ways, the Tenth Circuit held that the balancing of all of the factors led it to regard the Division as an arm of the state. Therefore, the Division was entitled to Eleventh Amendment immunity. The Tenth Circuit held that the district court did not err in dismissing the claims against the division. However, it did hold that the dismissal with prejudice was a mistake. Because Eleventh Amendment immunity is jurisdictional, the Tenth Circuit held that the dismissal should have been without prejudice.

The Tenth Circuit next addressed the Eleventh Amendment immunity issue with regards to the Divisions’ two officers on the official-capacity claims for damages. The Tenth Circuit held that the officers were entitled to immunity in their official capacitates on behalf of the Division being an arm of the state. Therefore, The Tenth Circuit held that the officers were entitled to dismissal on the official-capacity claims for damages. However, just as with the Divisions Eleventh Amendment claim, because Eleventh Amendment immunity is jurisdictional, the district court should have dismissed the claim without prejudice.

The Tenth Circuit finally addressed the federal personal-capacity claims against the officers for damages. The district court had dismissed these claims based on timeliness. The Tenth Circuit stated that the Colbys claims had a two year statute of limitations. Further, the Tenth Circuit determined that the suffered damage accrued when the horse was seized on July 22, 2011. That action triggered the statute of limitations period. Because the Colbys did not sue until nearly three years later, the Tenth Circuit held that the claims were time-barred.

The Tenth Circuit addressed the Colbys’ argument that the statute of limitations should not have started until they were denied a timely post-deprivation hearing. The Tenth Circuit held that, even if this claim was accurate, that would only have moved the statute of limitations period six weeks in the future, which would still have resulted in the statute of limitations running out before the suit was filed.

Finally, the Tenth Circuit held that the continued violation doctrine did not apply to this case because the complaint does not base the claim on any acts taking place after July 22, 2011. Though the Colbys did not have their horse for three years, and therefore damages continued that entire period, the wrongful acts occurred only on July 22, 2011. Therefore, the Colbys’ claims against the officers in their individual capacity were time-barred.

In sum, the Tenth Circuit held that the Division and the officers in their official capacities were entitled to Eleventh Amendment immunity. However, because the district court dismissed these claims with prejudice, the Tenth Circuit remanded them for the limited purpose of directing the district court to make the dismissals without prejudice. Additionally, the remaining federal claims against the officers were properly dismissed based on the expiration of the statute of limitations.

Colorado Court of Appeals: Plaintiff Need Only Demonstrate Prima Facie Showing of Personal Jurisdiction to Defeat Rule 12(b) Motion to Dismiss

The Colorado Court of Appeals issued its opinion in Rome v. Reyes on Thursday, June 15, 2017.

Ponzi Scheme—Investments—Insurance—Fraud—Personal Jurisdiction—Long Arm Statute—Colorado Securities Act—C.R.C.P. 12(b)(2)—C.R.C.P. 9(b).

This case arises out of a Ponzi scheme that defrauded at least 255 investors out of $15.25 million dollars. To implement the scheme, Schnorenberg formed KJS Marketing, Inc. in Colorado to obtain funds for investment in insurance and financial products sales companies. Schnorenberg hired Reyes, a California resident, and Kahler, a Wyoming resident, to solicit investor funds on behalf of KJS and its successor company, James Marketing. Rome, the Securities Commissioner for the State of Colorado, brought claims against Schnorenberg, Reyes, and Kahler for securities fraud, offer and sale of unregistered securities, and unlicensed sales representative activity. The Commissioner also sought a constructive trust or equitable lien against Schnorenberg’s mother (among others), who resides in Wyoming, as a “relief defendant,” based on allegations that she received some of the improperly invested funds. Reyes, Kahler, and Schnorenberg’s mother moved to dismiss all claims against them under C.R.C.P. 12(b)(2) for lack of jurisdiction. Reyes and Kahler also sought dismissal of the securities fraud claim on the ground that it failed to meet the C.R.C.P. 9(b) particularity requirements. (Neither Schnorenberg nor KJS is a party to this appeal.) The district court granted all of these motions without conducting an evidentiary hearing. In written orders, the court concluded that it lacked personal jurisdiction over each of the nonresident defendants, and that the Commissioner’s securities fraud claim failed to “link any particular factual allegations to actual false representations” made by Reyes or Kahler.

On appeal, the Commissioner contended that the district court erred in dismissing the claims against Reyes, Kahler, and Schnorenberg’s mother for lack of personal jurisdiction. Here, the Commissioner sufficiently alleged that Reyes and Kahler violated the Colorado Securities Act (CSA) because the transactions at issue pertained to securities that originated in Colorado. Taking the allegations together, the activities of Reyes and Kahler made it reasonably foreseeable that they could be haled into a Colorado court to answer the allegations. Further, the exercise of jurisdiction over them does not offend due process principles. Schnorenberg’s mother received funds from her son that had been transferred from Colorado accounts, and she knew or should have known that the money came from investors in her son’s “Colorado-based investment scheme.” The Commissioner’s action against Schnorenberg’s mother arises from her activities’ consequences in Colorado, and it is reasonable to exercise jurisdiction over her, despite the somewhat limited nature of her direct contacts with Colorado.

The Commissioner also argued that the district court erred in dismissing the claims against Reyes and Kahler under the CSA on the ground that the Commissioner failed to meet his pleading burden under Rule 9(b). The Commissioner’s complaint provided sufficient particularity to give Reyes and Kahler fair notice of the claim for securities fraud and the main facts or incidents upon which it is based.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Attorney Must Assume Financial and Ethical Responsibility in Order to Share Fees

The Colorado Court of Appeals issued its opinion in Scott R. Larson, P.C. v. Grinnan on Thursday, June 15, 2017.

Attorney Fee Dispute—Referral Fees—Division of Fees.

Grinnan is a general practitioner with limited experience in personal injury cases. Grinnan’s friend Kelley asked Grinnan to represent him in a personal injury case. Grinnan obtained Kelley’s approval to involve Scott Larson., P.C. in the case, and Larson entered into a contingency fee agreement with the Kelley family. As relevant here, the agreement identified Grinnan as “associated counsel,” stated that Grinnan would be paid a percentage of Larson’s fee “not to exceed 100%,” and provided that Larson was responsible for paying case expenses. Grinnan was not a signatory to the agreement.

Larson brought claims against various entities and settled with one early in the case. From Larson’s $333,333 fee on this settlement, he sent Grinnan a check for $50,000. After three years of litigation, the case settled. Based on the settlements, the contingent fee agreement entitled Larson to a fee of $3,216,666.67. Larson had incurred about $300,000 in costs.

Larson and Grinnan couldn’t agree on how to divide the contingent fee. Grinnan entered his appearance, and the court granted his request that all attorney fees paid to Larson be placed in a restricted interest bearing account. Following a hearing, the trial court entered a detailed written order allocating the attorney fees. The trial court declined to divide the fees in proportion to services and found that Grinnan had assumed joint responsibility for the litigation. The court divided the fees by awarding Grinnan 20% of the $333,333.34 from the first settlement and 12.5% of the $2,883,333.33 fee from the other two settlements. The court also awarded Grinnan prejudgment interest at the rate of 8% from the date the settlement checks were issued until final judgment entered on the fees allocated to him. It also awarded Larson interest on the fees placed in the restricted account less the fees awarded to Grinnan (as a wrongful withholding). The court declined to award costs, finding that neither lawyer was the prevailing party.

On appeal, Larson asserted that Grinnan never assumed joint responsibility because he did not assume responsibility for the representation as a whole. The court of appeals found that Grinnan had assumed one of the two components of joint responsibility—financial responsibility for the case—because of Grinnan’s exposure to liability for any malpractice of Larson. A remand was necessary to determine whether he also assumed ethical responsibility, the second component, on which the court had made no findings.

As guidance to the trial court on remand, the court analyzed the ethical responsibility issue. It concluded that a referring lawyer must: actively monitor the progress of the case; make reasonable efforts to ensure that the firm of the lawyer to whom the case was referred has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct; and remain available to the client to discuss the case and provide independent judgment as to any concerns the client may have that the lawyer to whom the case was referred is acting in conformity with the Rules of Professional Conduct.

On remand, if the court finds that Grinnan assumed ethical responsibility, the court’s fee award will stand, subject to appeal by Larson. If the court finds that Grinnan did not assume ethical responsibility, he is only entitled to fees in proportion to the services he performed, with the referral fees to be reallocated to Larson, subject to appeal by Grinnan.

The court concluded that Grinnan failed to preserve issues he raised on cross-appeal.

Grinnan also contended that the trial court erred in finding a wrongful withholding.  The court found no error in the trial court’s award of prejudgment interest to Larson based on Grinnan’s wrongful withholding.

The court also noted that on remand the trial court could reconsider its decision not to award costs based on its findings on ethical responsibility.

The attorney fee award was vacated, the cross-appealed rulings were affirmed, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: District Court Correctly Characterized Water Storage Plan as Frustrated Plan in Condemnation Action

The Colorado Court of Appeals issued its opinion in Board of County Commissioners of County of Weld v. DPG Farms on Thursday, June 15, 2017.

Condemnation—Highest and Best Use—Lost Income—Costs.

The Board of County Commissioners of Weld County (the County) filed a petition in condemnation to extend a public road over 19 acres of DPG Farms, LLC’s 760-acre property (the property). When condemnation proceedings were initiated, the property was used primarily for agricultural and recreational purposes. The parties stipulated to the County’s immediate possession of the 19 acres and proceeded to a valuation trial. The dispute centered on the highest and best use of 280 acres that contained gravel deposits. DPG’s experts testified about the highest and best use of the property. The district court determined, as a matter of law, that the evidence was too speculative to support a finding that water storage was the highest and best use of the relevant area (Cell C); instead, it determined that the highest and best use of those acres was gravel mining, but not water storage as well. The jury awarded DPG $183,795 in damages for the condemned property and nothing for the residue. DPG then requested costs. The district court rejected a substantial portion of the costs on grounds that they were disproportionate to DPG’s success and that certain expert evidence had been excluded.

On appeal, DPG contended that the district court erred in rejecting water storage as the highest and best use of certain portions of the property. The Court of Appeals reviewed the evidence that the district court’s determination was based on and concluded that the district court did not err in determining, as a matter of law, that the evidence was too speculative to support a jury finding that water storage was the highest and best use of Cell C.

DPG also argued that the trial court erred in excluding evidence of lost income, arguing that it was admissible pursuant to an income capitalization approach to valuing the property. DPG’s evidence of a potential income stream was admissible not as the measure of its damages but rather as a factor that could inform the fair market value of the property. And both the appraiser and the mining expert testified that the potential income stream from mining informed their fair market valuations. Because the lost income evidence, on its own, did not reflect the proper measure of damages, the district court correctly excluded it.

Finally, because the income valuation evidence presented by DPG’s experts was properly excluded, the district court did not abuse its discretion in limiting DPG’s award of costs on this basis.

The judgment and cost order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Dog Owner Owes No Duty of Care to Child who was Scared by Dogs and Ran Into Street

The Colorado Supreme Court issued its opinion in N.M. v. Trujillo on Monday, June 26, 2017.

Negligence—Duty of Care—Nonfeasance—Special Relationships—C.R.C.P. 12(b)(5).

This case required the supreme court to determine whether respondent, a dog owner, owed a duty of care to petitioner, a child who became frightened when respondent’s dogs rushed at respondent’s front yard fence and who, although not touched by the fenced-in dogs, ran into the street and was struck and injured by a passing van. Because petitioner’s negligence claim against respondent was predicated on alleged nonfeasance, or failure to act, and because the case is distinguishable from cases in which a dangerous or vicious animal attacks and directly injures someone, petitioner was required to plead a special relationship between himself and respondent to establish the duty of care necessary to support his negligence claim. Petitioner did not, however, plead such a special relationship. Accordingly, the court concluded that, as a matter of law, respondent owed no duty of care to petitioner and thus the district court properly dismissed petitioner’s negligence claim against respondent. The court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Agent May Exercise Apparent or Implied Authority to Reject UM/UIM Insurance Coverage

The Colorado Supreme Court issued its opinion in State Farm Mutual Automobile Ins. Co. v. Johnson on Monday, June 5, 2017.

Uninsured/Underinsured Motorist Insurance—Agency—Implied Authority.

This case presented two questions for the supreme court’s consideration. First, does the uninsured/underinsured motorist (UM/UIM) statute, C.R.S. § 10-4-609, require each named insured to reject UM/UIM coverage, or is one named insured’s rejection binding on all? And second, did the legislature, by enacting C.R.S. § 10-4-609, abrogate the common law agency principles of implied authority and apparent authority? The court started with the second question and concluded that nothing in the language of C.R.S. § 10-4-609 precludes an agent from exercising either apparent or implied authority to reject UM/UIM coverage on behalf of a principal. Turning to the facts of this case, the court concluded that the evidence presented at trial established that respondent Johnson delegated to his friend the task of purchasing insurance for their jointly owned car and that, in undertaking this task, the friend had implied authority to reject, and did in fact reject, UM/UIM coverage on Johnson’s behalf. Based on this conclusion, the court found it unnecessary to address the first question presented. The court thus reversed the court of appeals’ judgment and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Motion to Disqualify Under Colo. RPC 1.9(a) Rarely Raises “Identical” Issue to Other Case

The Colorado Supreme Court issued its opinion in In re Villas at Highland Park Homeowners Association, Inc. v. Villas at Highland Park, LLC on Monday, May 22, 2017.

Issue Preclusion—Attorney Disqualification—Colo. RPC 1.9.

In this original proceeding under C.A.R. 21, the supreme court reviewed a district court’s order applying the doctrine of issue preclusion to deny defendants’ motion to disqualify one of the plaintiff’s attorneys under Colo. RPC 1.9 and to disqualify her law firm by imputation of the attorney’s conflict under Colo. RPC 1.10. The disqualification inquiry under Colo. RPC 1.9(a) asks whether an attorney’s prior representation and current representation are “substantially related.” This inquiry under Colo. RPC 1.9(a) is specific to the particular matter for which disqualification is sought. The supreme court therefore concludes that a motion to disqualify under Colo. RPC 1.9(a) will rarely, if ever, raise an “identical” issue to a disqualification motion in another case for purposes of issue preclusion. Here, the court held that the trial court abused its discretion by relying on the doctrine of issue preclusion to deny the disqualification motion instead of conducting the requisite analysis under Colo. RPC 1.9(a). The court therefore made the rule to show cause absolute, vacated the trial court’s order, and remanded the case for the trial court to address the merits of the motion to disqualify under Colo. RPC 1.9(a).

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Non-negligently Constructed and Maintained Playground Equipment Cannot be “Dangerous Condition” for CGIA Waiver Purposes

The Colorado Supreme Court issued its opinion in St. Vrain Valley School District RE-1J v. Loveland on Monday, May 22, 2017.

Governmental Immunity—Waiver of Governmental Immunity—Dangerous Condition.

In this case, the supreme court considered the Colorado Governmental Immunity Act’s “recreation-area waiver,” which deprives a public entity of immunity in an action for injuries resulting from a dangerous condition of a public facility located in a recreation area. Specifically, the court examined the meaning of “dangerous condition” under the recreation-area waiver. The court held that a non-negligently constructed and maintained piece of playground equipment cannot be a “dangerous condition” under the waiver. Given this holding, the facts respondents alleged cannot show that a “dangerous condition” existed in this case. The court therefore concluded that the recreation-area waiver did not apply and petitioner retained its immunity from suit. The court reversed the judgment of the court of appeals and remanded to that court to reinstate the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.