July 24, 2014

Colorado Supreme Court: Colorado’s Premises Liability Statute Does Not Apply Solely to Matters Related to the Land

The Colorado Supreme Court issued its opinion in Larrieu v. Best Buy Stores, L.P. on Monday, June 24, 2013.

CAR 21.1 Certified Question—Colorado Premises Liability Statute—Landowner Liability for Activities Conducted or Circumstances Existing on Real Property.

The Supreme Court considered a reformulated certified question from the U.S. Court of Appeals for the Tenth Circuit: whether Colorado’s premises liability statute, CRS § 13-21-115, applies as a matter of law only to those activities and circumstances that are directly or inherently related to the land. The Supreme Court held that the statute is not, as a matter of law, restricted solely to activities and circumstances that are directly or inherently related to the land. That restriction does not appear in the statutory language, and the Court declined to adopt it now. Instead, the Court held that the premises liability statute applies to conditions, activities, and circumstances on the property that the landowner is liable for in its legal capacity as a landowner. This inquiry necessitates a fact-specific, case-by-case inquiry into whether (1) the plaintiff’s alleged injury occurred while on the landowner’s real property, and (2) the alleged injury occurred by reason of the property’s condition or as a result of activities conducted or circumstances existing on the property.

Summary and full case available here.

Colorado Court of Appeals: Tenant Not in Control of Sidewalk and Therefore Not Considered Landowner Under Premises Liability Act

The Colorado Court of Appeals issued its opinion in Jordan v. Panorama Orthopedics & Spine Center on Thursday, June 6, 2013.

Premises Liability—Common Area—Landowner.

In this premises liability case, defendant Panorama Orthopedics & Spine Center, PC (Panorama) appealed the judgment entered in favor of plaintiff Barbara Jordan. The judgment was reversed.

Plaintiff tripped and fell on a common area sidewalk leading to the building in which Panorama leased office space. She successfully sued Panorama under the Premises Liability Act (Act).

Panorama contended on appeal that the district court erred by determining that it was a landowner under the Act. A party need not hold title to the property to be considered a landowner within the meaning of the Act. A tenant may, depending on the circumstances, be regarded as a landowner. However, Panorama was not a landowner within the meaning of the Act, because there was no evidence that it was in possession of the sidewalk or that it was responsible for creating a condition on the sidewalk or conducting an activity on the sidewalk that caused plaintiff’s injuries. Therefore, the district court’s judgment against Panorama was dismissed.

Summary and full case available here.

Colorado Court of Appeals: Exclusive Remedy Provision of Workers’ Compensation Act Did Not Bar Plaintiff from Seeking Damages in Tort

The Colorado Court of Appeals issued its opinion in Krol v. CF&I Steel on Thursday, March 14, 2013.

Summary Judgment—Workers’ Compensation—CRS §§ 8-41-401 and -402—Statutory Employer—“On and To”—Summary Judgment Sua Sponte.

Plaintiff Stanislaw Krow appealed the trial court’s motion of summary judgment in favor of defendant CF&I Steel. The judgment was reversed and the case was remanded with directions.

CF&I owns a rail mill in Pueblo. It has several industrial cranes on the property, many of them inside buildings. In July 2002, CF&I and Alpine Crane entered into a contract obligating Alpine to maintain and inspect CF&I’s cranes. In January 2007, CF&I and SK’s Industrial Management, LLC (SKIM) entered into a contract obligating SKIM to train CF&I’s employees to maintain and inspect the cranes. That month, Krol, an employee of SKIM, went to the mill to provide inspection training. While he was standing on top of one of the cranes, training a CF&I employee how to inspect a crane, the crane moved and Krol was injured.

Krol received workers’ compensation benefits through SKIM’s workers’ compensation insurance. He sued CF&I, asserting several tort claims. CF&I moved for summary judgment pursuant to CRS § 8-41-402, contending that the undisputed facts established that Krol was on its property when he was injured. Therefore, CF&I argued, it was Krol’s “statutory employer” and he could not seek additional compensation from CF&I as a matter of law. Krol argued that CRS § 8-41-402 applies only when the injured person was doing work both “on and to” another’s property, and there was at least a genuine issue of fact as to whether he was doing work to CF&I’s property when he was injured.

The district court granted summary judgment in favor of CF&I, agreeing with its argument. It also found that summary judgment was appropriate under CRS § 8-41-401, because if CF&I did not contract out the training work, it would do the work itself, and because SKIM carried adequate workers’ compensation insurance.

CRS § 8-41-402 states that if a landowner is a statutory employer, and the contractor, subcontractor, or person hired to do the work carries workers’ compensation insurance covering the injured party’s injuries, the injured party is deemed an employee of that statutory employer, and the injured party may not seek damages from the statutory employer. The Court of Appeals found that, contrary to the district court’s finding and CF&I’s argument, an injured party does not only have to have been “on” the landowner’s property when performing work for the statute to apply, but the injured party also must have been doing work “to” the property for it to apply. This determination was based on the plain language of the statute. The Court further held that there was a factual question as to whether the work Krol was performing was to CF&I’s property. Therefore, the grant of summary judgment was in error.

The district court also erred in alternatively granting summary judgment under CRS § 8-41-401, which provides immunity when the work contracted out by the entity sought to be held liable is part of that entity’s regular business, as defined by its total business operation. The Court held that although summary judgment may be granted for a reason not raised by a moving party, the court should not do so without first giving the parties notice and reasonable opportunity to argue the issue and present evidence. Thus, it was error for the district court to grant summary judgment on grounds not raised by CF&I and of which Krol had no notice to argue.

Summary and full case available here.

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

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

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

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

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

The bill further provides that the increased damages amounts are:

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

The bill is assigned to the Judiciary Committee.

Colorado Court of Appeals: In Interlocutory Appeal, Immunity Found Not Waived Under CGIA and Trial Court’s Order Reversed

The Colorado Court of Appeals issued its opinion in Daniel v. City of Colorado Springs on Thursday, October 11, 2012.

Governmental Immunity—CRS § 24-10-106(1)(e)—Public Parking Lots.

Defendant, the City of Colorado Springs (City), brought this interlocutory appeal of the district court’s order denying its motion to dismiss, on governmental immunity grounds, the complaint filed by plaintiff Marilyn Daniel. The order was reversed and the case was remanded.

Plaintiff alleged she was injured when she fell after stepping into a hole in a parking lot for the public Valley Hi Golf Course, which was owned and maintained by the City. She asserted the City knew or should have known about the dangerous condition of the parking lot.

The City moved to dismiss pursuant to CRCP 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Plaintiff argued that immunity had been waived, under CRS § 24-10-106(1)(e), for a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. The City responded that the phrase “in any park or recreation area” includes only places and areas within a golf course, but not the parking lot. The trial court denied the City’s motion to dismiss and the City brought an interlocutory appeal.

On appeal, the Court of Appeals emphasized that waiver was for a dangerous condition located in any park or recreation area. It also noted that before the 1986 amendments to the CGIA, the statute had excepted immunity for a “public parking facility” and that this section was deleted by the amendments. The Court followed other decisions that found this deletion was intended to remove the exclusion from governmental immunity to such areas. It therefore was error to find that the City’s immunity was waived. The order was reversed and the case was remanded with directions to dismiss the complaint against the City.

Summary and full case available here.

Colorado Court of Appeals: Landowner May Consent to Entry of Neighbor by Actions Absent Express Verbal Consent

The Colorado Court of Appeals issued its opinion in Corder v. Folds, Jr.  on Thursday, October 11, 2012.

Premises Liability—Summary Judgment—Express and Implied Consent.

In this premises liability case, plaintiff Gerald Corder (neighbor) appealed from the summary judgment dismissing his complaint against defendant William Folds, Jr. (landowner). The judgment was reversed and the case was remanded for further proceedings.

Neighbor and landowner were next-door neighbors. In August 2008, neighbor entered landowner’s backyard to return a propane tank he had borrowed from him. He walked up the stairs leading to landowner’s deck, and left the tank on the deck. On his way down the stairs, the stairs collapsed and he was injured. Landowner was not home at the time.

Neighbor sued landowner under the premises liability act (Act), alleging he was either an invitee or licensee at the time of his injury and that landowner failed to exercise reasonable care with respect to a dangerous condition on his property. Landowner filed a motion for determination of law, asserting neighbor was a “trespasser,” as that term is used in CRS § 13-21-115(5)(c). The trial court agreed and entered summary judgment in favor of the landowner because there was no evidence suggesting he had injured the neighbor willfully or deliberately. Neighbor appealed.

The Act provides the exclusive remedy against a landowner for injuries sustained on the landowner’s property. A landowner’s standard of care is determined by the classification of the injured party.

Landowner maintained that neighbor was a trespasser because he was not given express consent to enter the property at the time of the injury. Neighbor countered that he had implied consent because: (1) landowner gave him a key to his home to perform maintenance projects and care for landowner’s home when he was away (2) landowner and neighbor were close friends who had a long history of entering each other’s property without express permission; and (3) the loan of the propane tank gives rise to a logical inference that neighbor was permitted to return it without contemporaneous, express permission.

The Court of Appeals held that a landowner may consent to entry, absent express words, by his or her course of conduct. Therefore, “consent” in the Act may include implied consent. Accordingly, the summary judgment was reversed and the case was remanded.

Summary and full case available here.

Colorado Court of Appeals: Court Upheld Exclusion of Vehicle Under Liability Coverage of Policy from Underinsured Motorist Benefits

The Colorado Court of Appeals issued its opinion in Rivera v. American Family Insurance Group  on Thursday, October 11, 2012.

Automobile Insurance—CRCP 56(h)—Uninsured/Underinsured Coverage—CRS § 10-4-609.

In this automobile insurance case, plaintiff Anita Rivera appealed the district court’s order granting the CRCP 56(h) motion for a determination of law in favor of defendant American Family Insurance Group (American Family). The order was affirmed.

Rivera, while a passenger in an automobile, was seriously injured in a one-car accident when the driver lost control of the automobile. Rivera made a claim against the driver’s insurer, American Family. The declarations page provided that $100,000 was the policy limit for bodily injury under the liability coverage section and $100,000 was the limit for a bodily injury caused by an underinsured motorist.

American Family paid Rivera $100,000, the policy limit of the liability section, but declined coverage under the uninsured/underinsured (UI/UIM) coverage section. Rivera then sued American Family under CRCP 57(a), seeking a declaration that she was covered under the UM/UIM section of the driver’s policy. In turn, American Family filed a motion under CRCP 56(h), seeking a determination of law upholding its denial of Rivera’s claim for coverage under the UM/UIM section.

On appeal, Rivera conceded that the policy was unambiguous when it stated that the insured vehicle exclusion eliminates from the definition of “underinsured vehicle” a vehicle “insured under the liability coverage of this policy.” This bars Rivera from recovering UM/UIM coverage benefits under the policy if she recovers the policy’s liability coverage benefits. She argued this exclusion violates CRS § 10-4-609 and the Court of Appeals disagreed.

The Court found the Supreme Court’s reasoning in Terranova v. State Farm Mutual Insurance Company, 800 P.2d 55, 59 (Colo. 1990),to be dispositive of the issue. The insured vehicle exclusion in Terranova was virtually identical to that at issue in this case, and the Supreme Court held it was enforceable. The Court further held that the amendments to CRS § 10-4-609, made subsequent to Terranova, did not change the basis for the Terranovaholding.

Rivera also argued that the insured vehicle exclusion contravened the public policy of Colorado that tort victims injured by uninsured or underinsured motorists receive full compensation for their injuries. The Court disagreed. It noted that the legislative intent behind the statute was to compensate insureds for losses subject to the limits of their insurance contract. In addition, the Supreme Court in Terranova observed that a “majority, and the better reasoned cases, have upheld the exclusion of a vehicle under the liability coverage of the policy from uninsured motorist benefits.” The order was affirmed.

Summary and full case available here.

Colorado Court of Appeals: No UIM Coverage Exists When Specifically Excluded by Policy Language From Claims Against Insured Vehicle Under Same Policy

The Colorado Court of Appeals issued its opinion in Jacox v. American Family Mutual Insurance Co. on Thursday, October 11, 2012.

Underinsured Motorist—CRS § 10-4-609.

In this underinsured motorist (UIM) coverage action, plaintiff Annabell Jacox appealed the district court’s order granting a motion filed by defendant American Family Mutual Insurance Company (American Family) and determining that Jacox was not legally entitled to UIM benefits. The order was affirmed.

Jacox was a passenger in Winferd Loper’s vehicle when Loper fell asleep at the wheel, resulting in a one-car accident in which Jacox suffered injuries. Jacox filed a civil action against Loper and ultimately settled her suit against him, collecting the liability policy limit for bodily injuries. She also sought UIM coverage under Loper’s American Family policy. The request was denied and Jacox sued. The district court granted American Family’s motion to dismiss, ruling that Jacox was not entitled to UIM benefits under Loper’s policy.

On appeal, Jacox argued she was entitled to UIM benefits pursuant to the amended UIM statute, CRS § 10-4-609. Loper’s policy contained a UIM exclusion applicable to vehicles “insured under the liability coverage of this policy.” Jacox contended that the 2008 amendments to the UIM statute overruled the Supreme Court’s ruling in Terranova v. State Farm Mutual Insurance Company, 800 P.2d 55, 59 (Colo. 1990), which held that the identical exclusion does not violate public policy. The Court of Appeals found that the amendments did not invalidate Terranova and, therefore, the UIM exclusion was valid.

Jacox also argued that the UIM exclusion in Loper’s policy was inconsistent with the “limits of liability” policy provision, because the provision provided that bodily injury liability payments would be offset against the UIM coverage. The Court disagreed that they were inconsistent because, per the exclusion, there was no UIM coverage and therefore there was no limit of liability for a nonexistent UIM coverage. The order of dismissal was affirmed.

Summary and full case available here.

Tenth Circuit: Courts Must Accept Executive Branch’s Determination of Foreign Heads of State’s Immunity

The Tenth Circuit Court of Appeals issued its opinion in Habyarimana v. Kagame on Wednesday, October 10, 2012.

The widows of the former presidents of Rwanda and Burundi allege current Rwandan President Paul Kagame is responsible for their husbands’ deaths. The former presidents were killed when the plane they were in was shot down. This incident sparked the Rwandan genocide in 1994. The widows filed suit in Oklahoma federal court seeking to hold Kagame liable under the Alien Tort Claims Act, 28 U.S.C. § 1350, the Torture Act, 18 U.S.C. § 2340A, the Racketeeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962, and several other state and international laws. The executive branch of the United States filed a “Suggestion of Immunity” on behalf of President Kagame as a sitting foreign head of state. The district court dismissed the case based on this immunity. In affirming the district court, the Tenth Circuit held that a “determination by the Executive Branch that a foreign head of state is immune from suit is conclusive and a court must accept such a determination without reference to the underlying claims of a plaintiff.” This is so even though the acts complained of occurred before Kagame was head of state.

Colorado Court of Appeals: Street Sweeper was Mobile Machinery, Not Motor Vehicle, so City Immune Under CGIA

The Colorado Court of Appeals issued its opinion in Henderson v. City and County of Denver on September 13, 2012.

Colorado Governmental Immunity Act—Motor Vehicle—Mobile Machinery.

The City and County of Denver (City) appealed from an order denying their motion to dismiss a complaint filed by plaintiff. The order was reversed and the case was remanded.

A street sweeper operated by an employee of the City collided with a car driven by plaintiff. The driver sued the City. She alleged that the City’s immunity was waived under the Colorado Governmental Immunity Act (CGIA) because the street sweeper was a “motor vehicle” within the meaning of CRS § 24-10-106(1)(a). The City moved to dismiss the driver’s claim, arguing that the street sweeper was “mobile machinery” rather than a “motor vehicle,” and thusthe City had immunity under the CGIA. The trial court denied the motion, and the City appealed.

CRS § 42-1-102(58) defines “motor vehicle” as (1) any self-propelled vehicle (2) that is designed primarily for travel on public highways and (3) that is generally and commonly usedto transport persons or property over public highways. CRS § 42-1-102(54) defines “mobile machinery” to be (1) a self-propelled vehicle (2) that is not primarily designed for the transportation of persons or cargo over the public highways, (3) including, but not limited to, wheeled vehicles that are commonly usedin the maintenance of roadways. The evidence in the record supports the conclusion that under the CGIA, the street sweeper is mobile machinery and not a motor vehicle; therefore, the trial court erred when it concluded otherwise and the order was reversed.

A party that successfully defends an appeal of an action that was dismissed on a pretrial motion to dismiss under the CGIA is entitled to recover its reasonable appellate attorney fees under § 13-17-201. The case was remanded to determine the award of attorney fees to the City.

Summary and full case available here.

Tenth Circuit: Hospital Immune Under Health Care Quality Improvement Act from Physician’s Claims; Record Insufficient to Support Physician’s Antitrust and Tort Claims

The Tenth Circuit Court of Appeals published its opinion in Cohlmia v. St. John Medical Center on Friday, September 7, 2012.

Plaintiff, Dr. George Cohlmia, a surgeon, performed two surgeries at St. John Medical Center (SJMC or hospital). One surgery resulted in death, the other in permanent disfigurement. After hospital review and formal hearing, SJMC suspended and ultimately terminated Dr. Cohlmia’s privileges. Before his initial suspension, Dr. Cohlmia explored opening a specialty heart hospital. The specialty heart hospital failed to attract any investors.

Dr. Cohlmia filed a complaint alleging violations of federal antitrust laws, violation of the Oklahoma state antitrust law, and tortious interference with a contract.

After discovery, SJMC moved for summary judgment on all claims, as well as its affirmative defense of immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The district court granted all motions for summary judgment. Dr. Cohlmia appealed.

On appeal, Dr. Cohlmia challenged the district court’s grant of HCQIA immunity.  HCQIA provides immunity to hospitals or doctors who perform peer reviews or challenges to professional conduct where patient care is at issue. The entity or persons that undertake the professional review are immune as long as they substantially comply with a list of objective standards set forth in the Act. A professional review action is presumed to have met the standards for HCQIA immunity unless the presumption of regularity is rebutted by a preponderance of the evidence. The district court concluded that no reasonable jury could find that Dr. Cohlmia had overcome the presumption. The Tenth Circuit agreed.

Having found that the hospital’s actions fell within the grant of immunity by HCQIA, the Tenth Circuit next determined the scope of that immunity. HCQIA grants immunity only against a monetary damage award. In his complaint, the doctor also sought injunctive relief and reinstatement of his staff privileges. Therefore, the Tenth Circuit was required to review the merits of the doctor’s federal and state claims.

Federal Claims

First, the doctor claimed that his exclusion from the marketplace resulted in an antitrust injury. The Tenth Circuit agreed with the district court’s assessment of the record that there was no credible evidence from which to infer an antitrust injury.

Second, the doctor argued the hospital had a sufficient market share to show monopoly power in violation of federal antitrust laws. The Tenth Circuit agreed that the hospital’s market share of less than 20% was woefully short under any metric from which to infer market power.

Dr. Cohlmia’s final federal claim alleged the hospital conspired to block his specialty heart hospital.  The Tenth Circuit found the doctor’s claims speculative at best, and agreed with the district court that granting summary judgment to the hospital was proper on this claim.

State Claims

Under the Oklahoma Antitrust Reform Act, it is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce in a relevant market.  Because the record did not support that the hospital had monopoly power, the doctor’s state law claim failed for the same reason his federal antitrust claim failed.

The doctor further argued the district court erred in dismissing his tortious interference with contract claims: patient contracts and insurance contracts. Since the relationship between physician and patient is at-will, there is no contract, so that claim failed. As to insurance contracts, Dr. Cohlmia failed to provide evidence of economic damages with Blue Cross/Blue Shield.  Accordingly, this claim failed as well.

Dr. Cohlmia’s finally claimed that the hospital wrongfully interfered with his medical practice. Because Dr. Cohlmia’s expert report relied on economic projections that were speculative at best, the district court did not err in concluding that state law required more evidence to support a damage award.

Based on the foregoing, the Tenth Circuit AFFIRMED the district court’s grants of summary judgment.

Colorado Court of Appeals: C.R.S. § 10-4-110.5 Only Mandates Automatic Renewal of Commercial Automobile Insurance Policies

The Colorado Court of Appeals issued its opinion in Progressive Casualty Insurance Co. v. Moore on August 30, 2012.

Denial of Benefits—Statutory Notice Requirements—Commercial Versus Personal Policies.

In this declaratory judgment action, S. Bryan Moore appealed the judgment entered in favor of Progressive Casualty Insurance Company. The judgment was affirmed.

Moore was involved in a car accident. Progressive Casualty Insurance Co. (Progressive) denied his claim for insurance benefits because his automobile insurance policy had expired months earlier.

Moore contended that the trial court misapprehended the applicability of CRS § 10-4-110.5. Specifically, Moore argued that the policy had renewed automatically because Progressive had failed to comply with the statutory notice requirements. However, § 10-4-110.5 applies only to commercial automobile insurance policies, and Moore’s policy was not commercial. Therefore, the trial court’s ruling was affirmed.

Summary and full case available here.