February 8, 2016

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

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

Uninsured/Underinsured Motorist Coverage—Exhaustion Clause.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Colorado Court of Appeals: Insurer Not Entitled to Directed Verdict Because Medical Benefit Payment Unreasonably Delayed

The Colorado Court of Appeals issued its opinion in Fisher v. State Farm Mutual Automobile Insurance Co. on Thursday, May 7, 2015.

Underinsured Motorist Coverage—Delayed Payment—Directed Verdict—Exclusion of Expert’s Testimony.

In February 2010, Fisher was injured in a collision between the vehicle he was driving and another vehicle. The other vehicle’s driver carried $25,000 in automobile liability insurance. Fisher was insured under several automobile insurance policies with defendant (State Farm) that had a combined underinsured motorist (UIM) coverage limit of $400,000. The trial court found in favor of Fisher in his claims against State Farm for unreasonably delaying and denying payment of UIM benefits.

On appeal, State Farm argued that the trial court erred in denying its motion for a directed verdict on Fisher’s statutory claim. State Farm contended that Fisher’s medical expenses were not, as a matter of law, benefits owed to Fisher at the time he initiated the lawsuit, and therefore, it could not have unreasonably delayed payment of owed UIM benefits. CRS § 10-3-1115(2) provides that “an insurer’s delay or denial was unreasonable if the insurer delayed or denied authorizing payment of a covered benefit without a reasonable basis for that action” (emphasis added). State Farm was precluded from relying on any policy language that purports to prevent Fisher from establishing a claim under CRS § 10-3-1115 until the amount of compensatory damages to which he is legally entitled to collect from the underinsured motorist has been determined. Accordingly, under the plain language of § 1115, State Farm had a duty to not unreasonably delay or deny payment of Fisher’s medical expenses. Fisher offered evidence that he had presented medical bills to State Farm totaling $61,125 at the end of September 2010, and State Farm had not paid any of those bills by the time the lawsuit was filed in July 2011. Therefore, there was sufficient evidence introduced at trial to support the jury’s verdict that State Farm unreasonably delayed paying Fisher’s medical expenses.

State Farm also argued that the trial court abused its discretion in excluding the testimony of its insurance industry standard expert. CRS § 10-3-1115(2) defines “unreasonableness” for the purpose of a claim under §§ 1115 or 1116, and State Farm was not harmed by excluding testimony contrary to Colorado law. The judgment was therefore affirmed.

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

Tenth Circuit: FTCA Claims Subject to Jurisdictional Time Limitations

The Tenth Circuit Court of Appeals issued its opinion in Barnes v. United States on Wednesday, January 21, 2015.

Larry Barnes was indicted in Oklahoma federal court for two crimes related to possession and distribution of methamphetamine. He was convicted and sentenced to two concurrent 66-month sentences. Barnes appealed. While his appeal was pending, the government acquired evidence that testimony of an ATF agent, a Tulsa police officer, and a confidential informant had been fabricated, and asked the court to vacate Barnes’ conviction and immediately release him from prison. The court granted that motion on July 2, 2009.

Seeking redress, Barnes filed administrative tort claims with the BATF on May 20, 2010. Receiving no response from the BATF, Barnes filed a civil lawsuit in Oklahoma state court on May 13, 2011, which the government removed to federal court. On September 23, 2011, the BATF filed a motion to dismiss for lack of subject matter jurisdiction, arguing that since the FTCA vests exclusive jurisdiction over federal tort claims in the federal district court, and removal jurisdiction requires a colorable state court claim, and plaintiffs had no jurisdiction in state court, the federal court therefore lacked jurisdiction as well. On October 25, 2011, while its motion to dismiss was pending, the BATF notified Barnes via certified mail of its formal denial of the administrative claims. The letter specifically advised that any appeal must be filed within six months of the date of  mailing of the letter, or by April 25, 2011.

On March 23, 2012, the federal district court granted the BATF’s motion to dismiss, and dismissed the case without prejudice. On August 22, 2012, Barnes filed a second lawsuit in federal district court. The BATF again moved to dismiss, this time for lack of jurisdiction under F.R.C.P. 12(b)(1) due to the lawsuit being time-barred. The district court granted the motion to dismiss and Barnes appealed.

The Tenth Circuit analyzed the provisions of 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b), and found the two sections acted like “book-ends” for the time limit to file an FTCA claim. Barnes argued that his second lawsuit was timely because he was filing under § 2675(a)’s “deemed denial” provision, but the Tenth Circuit found that the BATF’s October 25, 2011 letter explicitly triggered § 2401(b)’s six-month limitations period. The Tenth Circuit found that the court lacked jurisdiction due to the time-bar.

The Tenth Circuit also analyzed Supreme Court precedent in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990), regarding jurisdictional bars and equitable estoppel. After a lengthy analysis, the Tenth Circuit concluded it was bound by previous circuit precedent to apply a jurisdictional bar to FTCA claims. Even analyzing Barnes’ claims under equitable estoppel principles, though, the Tenth Circuit still found no relief for Barnes, because he could not show “affirmative misconduct” by the BATF.

The Tenth Circuit found that the district court correctly dismissed the claims, but incorrectly did so with prejudice. Claims subject to a jurisdictional bar are properly dismissed without prejudice. The Tenth Circuit affirmed the judgment of the district court but remanded for correction of the dismissal as without prejudice.

Colorado Court of Appeals: Snowplow is Motor Vehicle so Immunity Under CGIA Waived

The Colorado Court of Appeals issued its opinion in Roper v. Carneal on Thursday, February 12, 2015.

Motion to Dismiss for Lack of Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort Claims— “Motor Vehicle” Versus “Special Mobile Machinery.”

Carneal, an El Paso County employee, was driving a county-owned snowplow when he allegedly failed to stop at a stop sign. Plaintiff, Roper, drove off the road to avoid Carneal and crashed, suffering personal injuries and damage to her car. She filed this action against Carneal and the Board of County Commissioners of El Paso County (County Board), alleging claims of negligence per se, negligence, respondeat superior, and property damage/loss of use.

Defendants moved to dismiss for lack of subject matter jurisdiction, arguing they were immune from suit under the Colorado Governmental Immunity Act (CGIA). The CGIA generally bars tort-related claims against public entities and employees, but waives immunity for a public employee’s operation of a motor vehicle under certain circumstances. Defendants argued the snowplow was “special mobile machinery” rather than a “motor vehicle,” and therefore the motor vehicle waiver of immunity did not apply.

The district court denied the motion to dismiss based on the nature of the vehicle (a modified dump truck with seats for two but generally driven by one operator and used exclusively on county roads to remove snow and ice). Defendants filed this interlocutory appeal.

The Court of Appeals reviewed the statutory definitions of “motor vehicle” and “special mobile machinery” and concluded the snowplow in this instance was a “motor vehicle”; therefore, governmental immunity was waived. The Court noted that a “motor vehicle” under CRS §42-1-102(58) must be designed primarily for travel on the public highways and generally and commonly used to transport persons and property over the public highways. The undisputed evidence was that the snowplow was a dump truck designed to remove snow and ice from the public highways by traveling on them. The Court found that a vehicle need only transport persons or property, despite the use of “and” in the statute, because requiring transport of both persons and property would be “absurd and unreasonable.” It further held that carrying sand and salt constituted transporting property.

The Court also held that the definition of “special mobile machinery” requires a finding that the vehicle is “only incidentally operated or moved over public highways.” Because it was exclusively driven over the public highways, the snowplow did not meet this requirement. The order was affirmed and the case was remanded for further proceedings.

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

Tenth Circuit: Contract Conflict of Laws Rules Govern Claims for Benefits Under Insurance Policies

The Tenth Circuit Court of Appeals issued its opinion in Kipling v. State Farm Mutual Automobile Insurance Co. on Monday, December 29, 2014.

Kathryn Kipling and her husband, Christopher, were Colorado residents involved in a motor vehicle accident in Colorado in July 2009 in which Christoper was killed and Kathryn was severely injured. At the time of the accident, the Kiplings were in a 2005 Chevrolet Suburban owned by Quicksilver for Christopher’s business and personal use. The other driver was solely at fault for the accident, but was underinsured, so Kathryn Kipling filed an underinsured motorist claim against State Farm, Quicksilver’s insurer. State Farm tendered policy limits on the Suburban and on one other vehicle insured to Quicksilver in Colorado. Kipling sought additional compensation from UIM benefits for four vehicles owned by Quicksilver and insured in Minnesota, but State Farm denied coverage.

Kipling filed a diversity action in the U.S. District Court for the District of Colorado, seeking payment of the UIM benefits. State Farm moved for summary judgment, arguing that Minnesota law applied and prohibited stacking of coverage. The district court denied summary judgment and agreed with Kipling that Colorado law applied. After a jury trial to determine damages, the district court entered judgment on the verdict. State Farm filed an F.R.C.P. 59(e) motion to alter or amend the verdict, arguing that even under Colorado law it would not have to pay UIM benefits because Colorado law did not prohibit the policy from tying UIM coverage to occupancy of the insured vehicle. The district court denied the motion as an improper attempt to advance a new argument. State Farm appealed, raising two arguments: (1) the same argument raised in its F.R.C.P. 59(e) motion regarding tying UIM coverage to vehicle occupancy, and (2) the district court erred in applying tort conflicts-of-laws principles in resolving which state’s substantive law governed the claim.

The Tenth Circuit rejected State Farm’s first argument because it was not timely raised in the district court. The Tenth Circuit found no abuse of discretion in the district court’s denial of State Farm’s motion as untimely. And, after reviewing the record below, the Tenth Circuit agreed with the district court that the argument had not been made previously. The district court’s judgment on this point was affirmed. As to the conflict of laws argument, the Tenth Circuit examined the Restatement provisions concerning tort conflict of laws and contract conflict of laws. The district court applied tort conflict of laws principles, but the Tenth Circuit found that an insurance policy is more akin to a contract, and the correct analysis would have been under contract conflict of laws. The Tenth Circuit remanded to the district court to determine whether Colorado or Minnesota law applied under a conflict of laws analysis for contracts.

Frederick Skillern: Real Estate Case Law — Contracts, Purchase and Sale, Transactions (4)

Editor’s note: This is Part 7 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Taylor Morrison of Colorado, Inc. v. Bemas Construction
Colorado Court Appeals, January 30, 2013
2014 COA 10

Construction defects statute; willful and wanton breach of contract required to overcome liability limitation provisions in contract.

Taylor Morrison of Colorado, Inc. was the developer of a residential subdivision known as Homestead Hills. Pursuant to written contracts with Taylor, Terracon Consultants, Inc. performed geotechnical engineering and construction material testing services at the construction site. Bemas Construction performed site grading.

After many of the homes were constructed, Taylor began receiving complaints about cracks in the drywall of homes. Taylor remedied the defective conditions, and then sued Terracon and Bemas for breach of contract and negligence and other claims.

Taylor also moved for determination as to whether the Homeowner Protection Act of 2007 (HPA) invalidated the limitation of liability clauses in the contracts with Terracon. The trial court denied the motion on the ground that the HPA applies to residential property owners but not to commercial entities.

Terracon moved for leave to deposit into the court’s registry $550,000, representing the maximum amount that Taylor could recover from Terracon under the contractual limitation of liability clauses and the court order. It also requested that upon acceptance of such deposit, the court should declare Taylor’s claims against Terracon moot and dismiss them with prejudice. The trial court ruled in favor of Terracon. The money was deposited and the claims were dismissed with prejudice.

Taylor then went to trial against Bemas. The jury returned a verdict in Bemas’ favor on all of Taylor’s claims. Taylor appeals.

Taylor argued that it was error to rule that the HPA did not invalidate the limitation of liability clauses in Taylor’s contracts with Terracon. The court of appeals panel affirms the trial court’s judgment, but for different reasons. The court holds that regardless of whether the HPA applies to commercial entities, retroactive application of the HPA to these facts would be unconstitutionally retrospective. The Court concludes, however, that further proceedings are necessary to determine whether Taylor should have been permitted to introduce evidence of Terracon’s willful and wanton conduct to attempt to overcome Terracon’s assertion of the limitation of liability clauses.

The judgment is affirmed and the case is remanded to the trial court to determine whether Taylor should have been permitted to introduce evidence of Terracon’s willful and wanton conduct for the sole purpose of attempting to overcome Terracon’s assertion of the limitation of liability clauses at issue.


Jehly v. Brown
Colorado Court of Appeals, March 27, 2014
2014 COA 39

Fraudulent Concealment; Imputed Knowledge.

“Actual knowledge,” in the context of a fraudulent concealment claim, cannot be imputed to a principal through knowledge of its agent. Defendant Brown owned real property in Teller County and hired a general contractor to build a house on it. Before commencing, the contractor discovered that part of the property was located in a floodplain. Brown was not told of this fact.

Plaintiffs David and Peggy Jehly entered into a contact to purchase the house from Brown. Brown filled out a Seller’s Property Disclosure form by writing “New Construction” diagonally across every page and not checking any of the boxes. Before buying the house, the Jehlys were never informed that part of the property was located in a floodplain.

Approximately five years after the home purchase, heavy rains caused severe flooding and damage to the basement of the house. The Jehlys sued Brown, alleging he fraudulently concealed knowledge of the floodplain to induce plaintiffs to buy the house. During a bench trial, defendant denied having any personal knowledge of the floodplain at the time of the sale and denied that his general contractor or any subcontractors had so informed him. The trial court found as a matter of fact that he had no knowledge, and found in favor of defendant.

On appeal, plaintiffs asserts that it was error not to impute the general contractor’s knowledge that part of the property was in a floodplain to Brown. The court of appeals disagrees, and affirms. To prevail on a claim of fraudulent concealment, a plaintiff must show that a defendant actually knew of a material fact that was not disclosed. It is not enough that defendant should have or might have known the fact, and knowledge of his agent cannot be imputed for the purpose of this particular tort claim. Plaintiffs did not contest on appeal the trial court’s factual finding that defendant had no active or conscious belief or awareness of the existence of the floodplain. The trial court did not apply the wrong legal standard, because defendant did not have the requisite actual knowledge of the information allegedly concealed.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Testimony of Treating Physician About Preexisting Condition Properly Admitted in Personal Injury Case

The Colorado Court of Appeals issued its opinion in Gonzales v. Windlan on Wednesday, December 31, 2014.

Personal Injuries—Expert Testimony—Non-retained Expert—Noneconomic Damages—Costs—Prevailing Party.

This case arose from a car accident in which Windlan drove through an intersection without the right-of-way and struck a car driven by Gonzales. The jury found Windlan 60% at fault and Gonzales 40% at fault for the accident. The trial court found Windlan to be the prevailing party and awarded costs to her in the amount of $15,637.77.

On appeal, Gonzales contended that the trial court abused its discretion in admitting Dr. Sayed’s expert testimony about a radiologist’s MRI report from October 2009. Dr. Sayed was Gonzales’s primary care physician, treated Gonzales after the accident, reviewed the MRI report from another specialist at the time, and opined that the MRI report showed a degenerative condition that was probably present before Gonzales’s accident and did not indicate an acute injury as claimed by Gonzales. Although he was not a radiologist, Dr. Sayed had the knowledge and experience to testify about MRI reports because he regularly reviewed and relied on them in the course of his medical practice. Therefore, Dr. Sayed was qualified to give expert testimony about the 2009 MRI report, and such testimony was properly admitted as non-retained expert testimony.

Gonzales also contended that the jury award of zero noneconomic damages was contrary to the evidence and inconsistent with the jury award of $640 for economic damages. There was ample evidence, however, to support the jury’s finding that Gonzales’s injuries were minor and did not result in compensable noneconomic damages.

Gonzales also contended that the trial court abused its discretion in finding that Windlan was the prevailing party and granting Windlan’s motion for costs under CRCP 54(d). The jury’s verdict generally aligned with Windlan’s position on each contested issue. It found Gonzales 40% at fault for the accident (Gonzales claimed that Windlan was fully at fault); awarded damages in an amount equal to an amount billed by the doctor who diagnosed Gonzales with a temporary muscle strain (Gonzales sought $212,000 in economic damages); and awarded no damages for noneconomic losses or physical impairment (Gonzales’s counsel requested noneconomic damages between $25,000 and $2 million). Therefore, the trial court did not abuse its discretion in finding Windlan to be the prevailing party and awarding costs to Windlan. The judgment was affirmed.

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

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

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

Colorado Court of Appeals: Failure to Exhaust Administrative Remedies Deprived Trial Court of Jurisdiction

The Colorado Court of Appeals issued its opinion in Liberty Bankers Life Insurance Co. v. First Citizens Bank & Trust Co. on Thursday, November 6, 2014.

Subject Matter Jurisdiction—Financial Institutions Reform, Recovery and Enforcement Act—Receiver—Proof of Claim—Doctrine of Administrative Exhaustion—Attorney Fees.

The underlying claims in this case relate to appellant’s (Liberty) participation in two loans with Colorado Capital Bank (CCB) for the purpose of funding the development of a townhome project. CCB was closed by the Colorado Division of Banking on July 8, 2011, and the Federal Deposit Insurance Corporation (FDIC) was named its receiver (FDIC-R). On the same day, First Citizens Bank & Trust Co. (FCBT) purchased the assets and assumed the liabilities of CCB in a purchase and assumption agreement. The FDIC later denied Liberty’s proof of claim, and Liberty thereafter filed suit against FCBT and the FDIC-R in federal court. In the state court proceedings, Liberty filed twelve counterclaims against FCBT, which were dismissed by the court.

On appeal, Liberty argued that the district court incorrectly dismissed its counts 1 through 3 for lack of subject matter jurisdiction. However, Liberty did not properly plead the claims found in its counterclaims in its original proof of claim. Therefore, the district court correctly dismissed those claims for lack of subject matter jurisdiction.

Liberty further argued that the doctrine of administrative exhaustion did not apply in this case. Liberty’s futility argument was based on (1) the transfer of assets and liabilities to FCBT and (2) the FDIC-R’s motion to dismiss in the federal litigation. The jurisdictional bar extends to successors in interest of the failed bank. Further, by failing to properly plead its claims in the proof of claim, Liberty had already failed to exhaust the process provided to it. FDIC-R’s actions in filing a motion to dismiss, therefore, had no bearing on futility. Accordingly, Liberty’s pursuit of relief is not futile “beyond a reasonable doubt,” and does not excuse its failure to exhaust its claims. The district court correctly dismissed those claims for lack of subject matter jurisdiction.

FCBT claimed that it was entitled to reasonable attorney fees incurred on appeal under CRS § 13-17-201. Although Liberty’s counterclaims facially alleged a tort claim of gross negligence and willful misconduct, the overall action was more accurately characterized as a contract action, because all of the counterclaims were based on acts or omissions relating to the alleged breach of the two participation agreements. The essence of Liberty’s action did not sound in tort, so FCBT was not entitled to attorney fees incurred on appeal under CRS § 13-17-201.

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

Colorado Court of Appeals: Jurors Should Have Been Polled Regarding Exposure to News Report Prejudicial to Defense

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, November 6, 2014.

Poll the Jury—Media—Prejudice.

A jury convicted Jacobson of vehicular homicide, driving under the influence (DUI), and other related charges, all arising from a collision between her truck and a taxi cab. Two passengers in the taxi were killed.

During trial, defense counsel told the court that a report about the case had appeared the preceding night on Channel 4 newscast and the local television station’s website. Defense counsel requested to poll the jury concerning exposure to mid-trial publicity that included inadmissible, prejudicial information. The court denied the request.

On appeal, Jacobson argued that the court abused its discretion when it declined to poll the jury. The news report referred to Jacobson’s prior DUI conviction and prior accidents involving injury, alleged that she was driving without a license, and included an interview with someone involved in her previous accident. Due to the nature of this content, the court abused its discretion in failing to determine whether this information was inherently prejudicial and thereafter declining to poll the jury. Because this error was not harmless beyond a reasonable doubt, Jacobson’s convictions were reversed and the case was remanded for a new trial on all charges.

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