May 27, 2018

Colorado Supreme Court: Insurers Have Duty Not to Unreasonably Withhold or Delay Payments, Even Where Other Parts of Claim in Dispute

The Colorado Supreme Court issued its opinion in State Farm Mutual Automobile Insurance Co. v. Fisher on Monday, May 21, 2018.

Insurance—Underinsured Motorist Benefits—Unreasonable Delay/Denial of Payment.

The supreme court held that under C.R.S. § 10-3-1115 insurers have a duty not to unreasonably delay or deny payment of covered benefits, even though other components of an insured’s claim may still be reasonably in dispute. Here, an insurer issued multiple underinsured motorist insurance policies that covered a driver who was injured by an underinsured motorist. Though the insurer agreed that its policies covered the driver’s medical expenses, it refused to pay them because the insurer disputed other amounts (including lost wages) that the driver sought under the policies. A jury found that the insurer violated C.R.S. § 10-3-1115, which provides that an insurer “shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party [insured] claimant.” Because the court of appeals properly upheld the driver’s jury award, the court affirmed its judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Road Condition Did Not Create “Unreasonable Risk,” Therefore CGIA Applied

The Colorado Supreme Court issued its opinion in City & County of Denver v. Dennis on Monday, May 21, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

The supreme court considered whether the City and County of Denver waived its immunity under the Colorado Governmental Immunity Act (CGIA). After a motorcycle accident, plaintiff sued the City and County of Denver, and alleged that Denver had waived its immunity under the CGIA because the road on which plaintiff was traveling constituted a dangerous condition that physically interfered with the movement of traffic. To prove a dangerous condition, a plaintiff must prove four elements, one of which is that the road constituted an unreasonable risk to the health and safety of the public.

The court defined “unreasonable risk” in this context as a road condition that creates a chance of injury, damage, or loss that exceeds the bounds of reason. This determination will be fact specific, and in this case, the road did not create an unreasonable risk to the health and safety of the public. Nor did the condition of the road physically interfere with the movement of traffic.

The court reversed the court of appeals’ judgment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Plaintiff Not Allowed to Treat Denial of Liability as Denial of Coverage

The Colorado Court of Appeals issued its opinion in Pena v. American Family Mutual Insurance Co. on Thursday, April 19, 2018.

Uninsured Motorist—Denial of Liability—Denial of Coverage—CRCP 12(b)(5) Dismissal.

Peña was involved in a three-car collision. Both Peña and Garner, another driver involved in the accident, were insured by defendant American Family Mutual Insurance Company (American Family). Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. American Family denied Peña’s claim, asserting that Garner was not responsible for the damage to her vehicle and Garner had coverage at the time of the accident, so Peña’s uninsured motorist property damage (UMPD) provision would not apply.

Peña sued Garner and American Family in separate actions. In this action, she sued American Family under C.R.S. § 10-3-1115 for the unreasonable delay and denial of benefits due under the UMPD provisions of her policy. American Family moved to dismiss, arguing that Peña’s complaint failed, as a matter of law, to state a claim upon which relieve could be granted because Peña’s UMPD coverage applied only if American Family, as Garner’s insurer, denied coverage, rather than liability, for Garner in connection with the accident. The district court agreed with this interpretation of Peña’s policy and the distinction made between denial of coverage and denial of liability. But because American Family had only denied liability and the issue of liability had not yet been determined, the court concluded that Peña’s UMPD coverage did not apply at that point and the lawsuit was premature. The district court dismissed the case without prejudice.

On appeal, Peña contended that the district court erred in dismissing her case. She argued that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. Because American Family denied liability but not coverage, her policy’s UMPD provision was inapplicable, and there were no benefits that could have been delayed or denied. Peña had no claim as a matter of law. The district court’s determination that Peña’s lawsuit was premature was in error because Peña will never have a claim against American Family under her policy for unpaid UMPD benefits from the accident; Garner’s insurer has not denied coverage, which is the circumstance that would trigger Peña’s UMPD coverage. If Garner is ultimately found liable, Peña will have a claim against American Family under the liability provisions of his policy.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Prejudgment Interest is Form of Compensatory Damages and Is Confined to Policy Limits

The Colorado Court of Appeals issued its opinion in White v. Estate of Soto-Lerma on Thursday, March 8, 2018.

Probate—Prejudgment Interest Costs—Insurance Policy—Liability LimitsOffer of Settlement.

Plaintiff’s claim arose from a car accident that occurred about a year before decedent died from unrelated causes. More than two years after decedent’s death, plaintiff filed suit, asserting that decedent had been negligent. Decedent’s estate consisted solely of his automobile insurance policy, which had a policy limit of $50,000 per person injured. Defendant rejected plaintiff’s pretrial statutory offer of settlement for the insurance policy limit of $50,000. After trial, a jury awarded plaintiff $100,000 in damages. The court reduced the award to $50,000, but ultimately entered judgment for $79,218, which included $11,600 in costs and $17,618 in prejudgment interest.

On appeal, defendant contended that the trial court erred in awarding plaintiff prejudgment interest. C.R.S. § 15-12-803(1)(a) bars all claims against a decedent’s estate that arose before the decedent’s death and were not presented within the statutory time frame. It was undisputed that plaintiff’s claim was not timely presented. C.R.S. § 15-12-803(3)(b) states that nothing prevents a proceeding to establish decedent’s liability to the limits of his insurance protection. This statute conflicts with C.R.S. § 13-21-101(1), which requires a court to award prejudgment interest. The court of appeals concluded that prejudgment interest is part of the underlying liability claim against an estate and is therefore subject to the insurance policy limits and the C.R.S. § 15-12-803(3)(b) bar on claims above that limit. C.R.S. § 15-12-803 bars an award of prejudgment interest above defendant’s $50,000 policy limit.

Plaintiff cross-appealed the judgment, arguing that the court should have entered judgment for the jury’s $100,000 damages award plus corresponding costs and prejudgment interest. Plaintiff contended that regardless of whether she could collect the jury award from defendant’s insurance company, judgment in excess of the policy limits was proper to leave open the possibility that plaintiff could be assigned the right to bring a bad faith claim against defendant’s insurer. The statutory language is clear that any untimely liability claim in excess of policy limits is barred.

Defendant also argued it was error to award costs in the final judgment, because such an award ignores the bar on claims in excess of insurance policy limits. Plaintiff argued for costs only under C.R.S. § 13-17-202, which provides that a plaintiff must be awarded costs only if the final judgment exceeds the settlement offer. Given that the final judgment did not and could not exceed the policy limit, which was also the amount of the settlement offer, plaintiff was not entitled to costs under C.R.S. § 13-17-202 and the trial court erred in entering a costs judgment above the policy limit.

The judgment was reversed and the case was remanded for entry of judgment for plaintiff in the amount of $50,000.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Abused its Discretion by Failing to Apply Three-Part Test for Excusable Neglect

The Colorado Court of Appeals issued its opinion in Taylor v. HCA-HealthONE, LLC on Thursday, March 8, 2018.

Medical Malpractice—Service—C.R.C.P. 4(m)—C.R.C.P. 60(b)—Excusable Neglect.

Plaintiff filed a medical malpractice action but failed to serve defendants within the C.R.C.P. 4(m) deadline. The district court dismissed the action without prejudice, and because the statute of limitations had run, plaintiff could not refile the lawsuit. She moved to set aside the judgment under C.R.C.P. 60(b) based on excusable neglect. Without holding a hearing, the district court concluded that counsel’s docketing errors did not amount to excusable neglect and denied the motion.

On appeal, plaintiff first argued that the district court’s dismissal order was invalid under C.R.C.P. 4(m) because the delay reduction order was premature. Although the rule requires notice before dismissal, it does not require notice after expiration of the service deadline. Thus, plaintiff was not entitled to additional notice beyond the delay reduction order and the district court’s order of dismissal was valid.

Plaintiff also argued that the court erred in failing to apply the three-factor test in Craig v. Rider, 651 P.2d 397 (Colo. 1982), in evaluating her Rule 60(b) motion to set aside the order of dismissal. That test requires the district court to consider not just whether the neglect that resulted in the order of dismissal was excusable, but also whether the plaintiff has alleged a meritorious claim and whether relief from the order would be consistent with equitable considerations. The district court abused its discretion in failing to analyze the Rule 60(b) motion under the three-part Craig test.

The order was vacated and the case was remanded to the district court to apply the Craig test.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Physician-Patient Privilege Bars Defendants from Consulting Ex Parte with Non-Party Witnesses

The Colorado Supreme Court issued its opinion in In re Bailey v. Hermacinski on Monday, March 5, 2018.

Physician-Patient Privilege—Implied Waiver.

In this original proceeding, the supreme court considered the scope of the physician-patient privilege in a medical malpractice action. Contrary to the conclusion of the trial court, the court held that plaintiffs’ non-party medical providers were not in consultation with defendants such that the typically privileged information held by those non-party medical providers was no longer protected by the physician-patient privilege. Therefore, the trial court abused its discretion when it granted defendants’ request to hold ex parte interviews with those non-party medical providers on consultation grounds. However, the court remanded the case to the trial court for consideration of whether plaintiffs impliedly waived the protection of the physician-patient privilege such that ex parte interviews may still be permitted.

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: 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.

Colorado Court of Appeals: CGIA Bars Father’s Claims that City Breached a Duty of Care to Prevent Son’s Death

The Colorado Court of Appeals issued its opinion in L.J. v. Carracito on Thursday, January 11, 2018.

Wrongful Death—Child Protection Act of 1987—Colorado Governmental Immunity Act—Police Officer—Failure to Report Child Abuse—Public Entity—Vicarious Liability—Tort—Willful and Wanton—Exemplary Damages.

D.J.M., age 2, died after suffering a beating by his mother’s boyfriend. D.J.M.’s father brought an action against the City of Colorado Springs (City) and Officer Carricato, individually and in his capacity as an officer with the City of Colorado Springs Police Department, for failing to report child abuse that father complained about to them multiple times. The complaint alleged violation of the Child Protection Act of 1987 (CPA); negligence (wrongful death) by the City and Officer Carricato; negligence per se by the City and Officer Carricato; violation of 42 U.S.C. § 1983 by the City and Officer Carricato; vicarious liability against the City; and an entitlement to exemplary damages under C.R.S. § 24-10-118(1)(c) against Officer Carricato. The district court determined that while the negligence claims for wrongful death and negligence per se were barred by the Colorado Governmental Immunity Act (CGIA), the claim for violation of the CPA was not barred because it was not a claim based in tort. The district court allowed the claim for vicarious liability to stand insofar as it related to the violation of the CPA and found, without conducting a hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, that the complaint alleged a sufficient factual basis to support a claim of willful and wanton behavior.

On appeal, the City and Officer Carricato argued that the district court erred because the CGIA bars the claim for violation of the CPA and father’s complaint does not allege specific facts sufficient to support a finding that Officer Carricato’s conduct was willful and wanton. The City is undisputedly a “public entity.” The exceptions to sovereign immunity are not applicable here because (1) the enumerated statutory exceptions are not at issue; (2) the CPA does not fit within any of the statutory exceptions; and (3) father is not requesting equitable, remedial, or non-compensatory remedies. Here, the essence of father’s claim is that the City breached a duty of care owed to D.J.M., which caused his death. Because father’s claim lies or could lie in tort, the CGIA bars the claim against the City for alleged violation of the CPA. Thus, the district court improperly denied that part of the motion to dismiss. Similarly, the vicarious liability claims are claims that lie in tort or could lie in tort and are thus barred by the CGIA.

Furthermore, public employees are immune from liability for tort claims unless their act or omission was willful and wanton. The district court must determine whether the conduct was in fact willful or wanton. Here, the district court failed to hold a Trinity hearing on this issue.

Finally, Officer Carricato argued that the claim for exemplary damages cannot stand because it was improperly pleaded and that exemplary damages cannot be awarded against a police officer. The CGIA allows a claim for exemplary damages against public employees only if their conduct was willful and wanton. The claim for exemplary damages against the police officer was prematurely pled.

The portions of the judgment on the claims against the City, the vicarious liability claim, and the exemplary damages claim were reversed. The portion of the judgment relating to the claims against Officer Carricato was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Treatment with Approved Physician Did Not Terminate Previous Physician’s Authorized Treatment Provider Status

The Colorado Court of Appeals issued its opinion in Berthold v. Industrial Claim Appeals Office on Thursday, November 16, 2017.

Workers’ Compensation—Change of Authorized Treating Physician—Maximum Medical Improvement—Final Admission of Liability.

Claimant sustained work injuries and received medical care from Sharma, an authorized treating physician (ATP). Several months later she requested and received permission, under C.R.S. § 8-43-404(5)(a)(VI)(A), to begin treatment with another physician, Miller. Notwithstanding the agreed-upon change of doctor, claimant’s employer periodically sent her to the see Sharma. After Miller assumed her care, Sharma reported that claimant reached maximum medical improvement (MMI). Miller disagreed. Despite this disagreement, claimant’s employer filed a final admission of liability (FAL) based on Sharma’s conclusion. Claimant challenged the FAL, and an administrative law judge found that Sharma’s status as claimant’s ATP terminated when Miller began treating her, pursuant to C.R.S. § 8-43-404(5)(a)(IV)(C), the automatic termination provision. A panel of the Industrial Claim Appeals Office (Panel) disagreed, concluding that C.R.S. § 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under C.R.S. § 8-43-404(5)(a)(III). The Panel further held that the termination provision in C.R.S. § 8-43-404(5)(a)(VI)(B), which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP, did not apply either because it was not in effect when claimant changed physicians.

On appeal, claimant contended that her employer erred in relying on Sharma’s MMI finding when issuing the FAL because Sharma was no longer an ATP when he made the MMI finding. She argued that (1) her treating relationship with Sharma was automatically terminated by C.R.S. § 8-43-404(5)(a)(IV) because it applies to all changes of physicians, and (2) even if this section does not apply, her relationship with Sharma was terminated by recently amended C.R.S. § 8-43-404(5)(a)(VI). The Colorado Court of Appeals held that the C.R.S. § 8-43-404(5)(a)(VI)(B) termination provision only applies to requests to change a treating physician made after the effective date of the provision. Second, C.R.S. § 8-43-404(5)(a)(IV) is limited to changes made under C.R.S. § 8-43-404(5)(a)(III) “within ninety days after the date of the injury.” Because claimant’s request in this case to change her physician predated C.R.S. § 8-43-404(5)(a)(VI)(B), and because it was not granted under C.R.S. § 8-43-404(5)(a)(III), her treatment with Miller did not automatically terminate Sharma’s status as an ATP.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Jury Award of Zero Noneconomic Damages Appropriate Where Injuries were De Minimis

The Colorado Court of Appeals issued its opinion in Miller v. Hancock on Thursday, November 16, 2017.

Non-economic Damages—Jury Award—De Minimis—Pre-Offer Costs—Pretrial Offer of Settlement.

Plaintiff Miller was involved in an automobile accident with defendants, Aragon and Hancock. Miller sued Aragon and Hancock to recover economic and noneconomic damages that he suffered as a result of that accident. Before trial, both Aragon and Hancock made statutory offers of settlement to Miller pursuant to C.R.S. § 13-17-202. The jury awarded Miller only economic damages. Miller filed a motion for new trial on damages, which the trial court denied. Each of the parties also moved to recover their costs, Miller as the prevailing party, and Aragon and Hancock pursuant to C.R.S. § 13-17-202, arguing that the final judgment Miller recovered did not exceed their respective pretrial settlement offers. The court did not award Miller costs against Hancock, but awarded Hancock the entire amount of her claimed costs that accrued after her first offer. The court awarded costs in favor of Miller and against Aragon and denied Aragon’s request for costs.

On appeal, Miller contended that the trial court erred by denying his motion for new trial on damages. He argued that a jury’s failure to award noneconomic damages is impermissible as a matter of law when the jury returns a verdict awarding economic damages. Miller contended that it was undisputed that his injuries were more than de minimis; however, his characterizations of the relevant facts and evidence lack record support. The jury could have reasonably concluded that Miller’s injuries from the accident were de minimis. Thus, the record here was sufficient to support the jury’s award of zero noneconomic damages.

Miller also argued that the trial court should have included his pre-offer costs when determining whether Hancock’s pretrial offers of settlement exceeded the amount Miller recovered from Hancock at trial. Whether a statutory offer includes pre-offer costs depends on the language of the offer. Hancock’s offers unambiguously included costs, so Miller was entitled to have his pre-offer costs included in his final judgment for the purpose of determining whether either of Hancock’s offers entitled her to recover her post-offer costs pursuant to C.R.S. § 13-17-202. Thus, the trial court erred by interpreting Hancock’s offers to exclude costs.

Miller next argued that the trial court erroneously reduced the costs he was entitled to recover, yet awarded Hancock the entire amount of her claimed costs without subjecting her costs to similar scrutiny. Here, the trial court abused its discretion when it reduced the amount of Miller’s recoverable costs without making adequate findings as to whether those costs were reasonable and necessary.

The order denying Miller’s motion for a new trial on damages was affirmed. The awards of costs to Hancock and Miller were reversed and the case was remanded for further proceedings to determine Miller’s costs and whether, after determining Miller’s costs, Hancock made a settlement offer pursuant to C.R.S. § 13-17-202 that exceeds the amount of Miller’s final judgment, inclusive of pre-offer costs and interest.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Risk-Benefit Test is Proper Test in Products Liability Action

The Colorado Supreme Court issued its opinion in Walker v. Ford Motor Co. on Monday, November 13, 2017.

In this case, the supreme court considered whether a trial court erred when it gave a jury instruction that allowed the jury to apply either the consumer expectation test or the risk-benefit test to determine whether a driver’s car seat was unreasonably dangerous due to a design defect. The court concluded that the risk-benefit test is the appropriate test to assess whether a product was unreasonably dangerous due to a design defect when, as here, the dangerousness of the design is “defined primarily by technical, scientific information.” Ortho Pharm. Corp. v. Heath, 722 P.2d 410, 414 (Colo. 1986), overruled on other grounds by Armentrout v. FMC Corp., 842 P.2d 175, 183 (Colo. 1992). The court further concluded that the jury’s separate finding of negligence did not render the instructional error harmless in this case.

Summary provided courtesy of Colorado Lawyer.