April 25, 2015

Colorado Supreme Court: Colorado Governmental Immunity Act’s Waiver Provisions Are Not Mutually Exclusive

The Colorado Supreme Court issued its opinion in Young v. Brighton School District 27J on Monday, May 19, 2014.

Governmental Immunity—CRS § 24-10-106(1)(a)–(h).

In this tort case, the Supreme Court held that the Colorado Governmental Immunity Act’s waiver provisions, listed in CRS § 24-10-106(1)(a)–(h), are not mutually exclusive. Rather, each waiver provides an alternative avenue for exposing a public entity to possible tort liability. Thus, the court of appeals erred when it held that the waiver provisions were mutually exclusive and the Court reversed this aspect of the court of appeals’ holding.

The Court also interpreted the Colorado Governmental Immunity Act’s “recreation area waiver,” codified at CRS §24-10-106(1)(e). It held that an injury that occurred on a walkway adjacent to a public school’s playground does not trigger the application of the recreation area waiver, because the walkway at issue did not qualify as a “public facility.” Accordingly, the Court affirmed the court of appeals’ holding that the public school district did not waive its immunity.

Summary and full case available here.

Colorado Supreme Court: Entire Collection of Playground Equipment on School Property Qualifies as Public Facility for Purposes of CGIA

The Colorado Supreme Court issued its opinion in St. Vrain Valley School District RE-1J v. A.R.L. on Monday, May 19, 2014.

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

In this tort case, the Supreme Court interpreted the Colorado Governmental Immunity Act’s “recreation area waiver,” CRS § 24-10-106(1)(e). The Court held that a collection of public school playground equipment, considered in its entirety, qualifies as a “public facility” under the recreation area waiver. Accordingly, the court of appeals erred when it held that an individual piece of playground equipment, in and of itself, qualified as a “public facility.” The Court thus affirmed the court of appeals’ holding, albeit for different reasons.

Applying the three-step analysis from Daniel v. City of Colorado Springs, 2014 CO 34, ¶ 23, the Court also held that the public facility (the playground equipment) is “located in” the “recreation area” of the playground. It remanded the case to the trial court for further fact finding with regard to the remaining requirements of the recreation area waiver.

Summary and full case available here.

SB 14-213: Increasing Statutes of Limitations for Civil and Criminal Proceedings Against a Person Who Leaves Scene of Vehicular Homicide Accident

On April 24, 2014, Sen. Michael Johnston introduced SB 14-213 – Concerning Increasing the Statutes of Limitations for Commencing Proceedings Against a Person Who, After Committing a Vehicular Homicide, Leaves the Scene of the Accident, and, in Connection Therewith, Requiring a Post-enactment Review of the Implementation of this Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In current law, the statute of limitations for bringing a criminal proceeding against a person who commits vehicular homicide is five years. For offenders who also leave the scene of the accident, the bill changes this limit to 10 years.

In current law, the statute of limitations for bringing a civil suit for wrongful death is two years. The bill changes this limit to four years for a wrongful-death suit against a defendant who committed vehicular homicide and, as part of the same criminal episode, committed the offense of leaving the scene of an accident that resulted in the death of a person.

Five years after the bill becomes law, the legislative service agencies shall conduct a post-enactment review of the implementation of the bill and report their conclusions to the judiciary committees of the house of representatives and senate, or any successor committees.

On April 30 the Judiciary Committee approved the bill and sent it to the Appropriations Committee. The Appropriations Committee approved the bill on May 11. The bill cleared 2nd Reading in the Senate on Friday, May 2.

Since this summary, the bill passed the Senate on Third Reading with no amendments. It was introduced in the House, where it was assigned to the Judiciary Committee. The Judiciary Committee referred the bill, unamended, to the Appropriations Committee, which referred it, unamended to the House Committee of the Whole. The bill passed the House on Second and Third Readings with no amendments.

Colorado Supreme Court News: Pretrial Discovery Process Under Review

Stuart-StullerBy Stuart Stuller

On April 7, 2014, the Colorado Supreme Court agreed to review a case that will be watched closely by the legal community. The issue before the court does not concern how cases are to be decided, nor how cases will be tried, but the authority of a trial court to control the discovery process that precedes trial.

The case, Antero Resources Corp., et al v. Strudley, case no. 13SC576, will address whether the Colorado Rules of Civil Procedure permit trial courts to issue so-called Lone Pine orders that are sometimes used in large and complex personal injury cases often involving environmental contamination where there is some doubt that the plaintiffs can prove contamination and causation.

The case involves claims by a family alleging that nearby natural gas operations contaminated their well water, causing them medical harm. Prior to full-blown discovery, the phase of litigation in which parties demand records, conduct depositions and inspections, and otherwise gather information, the trial court required the family to submit evidence showing that their well was contaminated by pollutants from the defendants’ operations, that scientific research links the alleged contaminants to the maladies suffered by the family, and that the contaminants did cause such harm to the family.

After the family responded, the defendants argued that the materials submitted by the family did not meet the threshold showing required by the court’s order. The court agreed and dismissed the case. The Colorado Court of Appeals reversed, holding that the trial court’s order was inconsistent with the Colorado Rules of Civil Procedure.

Questions related to pretrial discovery are enormously significant within the legal community because the cost of conducting discovery can be substantial. Defendants, such as the companies here, contend that the prospect of large discovery costs is often used as leverage to settle cases that are not meritorious. Conversely, plaintiffs and the Colorado Court of Appeals contend that the ordinary rules of civil procedure are sufficient to prevent such scenarios. Trial courts, charged with managing cases in a manner that protects the integrity of the judicial process, are caught in the middle.

The Colorado Defense Lawyers Association, the Colorado Civil Justice League and the American Petroleum Institute filed amicus curiae (friend of the court) briefs urging the Colorado Supreme Court to review the court of appeals’ decision. Now that the court has agreed to address the issue, organizations on both sides of the issue are expected to participate.

Stuart Stuller focuses on appellate practice, litigation, constitutional law, employment discrimination and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at sstuller@celaw.com.

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

Colorado Court of Appeals: Sovereign Immunity Not Waived by Negligent Supervision

The Colorado Court of Appeals issued its opinion in Robinson v. Ignacio School District, 11JT on Thursday, April 14, 2014.

Colorado Governmental Immunity Act (CGIA)—Operation of a Motor Vehicle Waiver—Injuries—Negligent Supervision.

Plaintiff Christie Robinson, individually and as parent and next of friend of her son, C.R., sued defendant, Ignacio School District, 11JT, for injuries C.R. sustained on a school bus. The district moved to dismiss the case for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The trial court partially denied the motion. Robinson’s individual claim and respondeat superior claim for the bus driver’s alleged willful and wanton negligence were dismissed, but Robinson’s negligence claim was allowed to stand.

On appeal, the district contended that the trial court erred in applying the “operation of a motor vehicle” waiver of governmental immunity to a claim for injuries resulting from a school bus driver’s alleged failure to supervise students on a school bus. However, “operation of a motor vehicle” does not extend to a bus driver’s failure to supervise passengers on a bus, because supervision does not require a physical manifestation of operation of a motor vehicle. Negligent supervision does not implicate operation of a motor vehicle, so the district did not waive its sovereign immunity under CRS § 24-10-106(1)(a). Thus, the trial court erred in denying the district’s motion to dismiss for lack of subject matter jurisdiction. The judgment was reversed in part and the case was remanded to the district court to dismiss the complaint.

 Summary and full case available here.

Tenth Circuit: Employer Not Liable for Underinsured Motorist Benefits Because Utah Workers’ Compensation Act Provides Exclusive Remedy

The Tenth Circuit Court of Appeals issued its opinion in Christofferson v. United Parcel Service, Inc. on Wednesday, April 2, 2014.

Mr. Alan Christoffersen drove a truck for United Parcel Service (UPS) until he was struck and killed by an underinsured motorist. After the accident, Mr. Christoffersen’s heirs sued UPS and its automobile insurer (Liberty Mutual Insurance Group), asserting claims for underinsured motorist (UIM) benefits. All parties moved for summary judgment. The district court granted UPS’s motion on the ground that Utah’s Worker’s Compensation Act provided the exclusive remedy. On the claim against Liberty Mutual, the court granted judgment to the heirs for $10,000. Through this judgment, the court effectively awarded partial summary judgment to both sides, holding that: (1) UPS did not validly reject UIM coverage under its 2008 policy, (2) the policy was a “new” policy for purposes of determining UIM coverage, and (3) the heirs were entitled to recover UIM benefits in the amount of $10,000. The heirs and Liberty Mutual appealed.

The Tenth Circuit concluded that Liberty Mutual did not incur liability because UPS validly rejected UIM coverage; thus, on the claim against Liberty Mutual, the judgment of $10,000 for the heirs was reversed and the claim was remanded with instructions to grant summary judgment to Liberty Mutual on the entire claim.The award of summary judgment to UPS was affirmed because UPS was not considered a “self insurer” for purposes of Utah’s UIM statute.

Colorado Court of Appeals: CGIA Does Not Provide for Interlocutory Appeal of Denial of Employee’s Motion for Qualified Immunity

The Colorado Court of Appeals issued its opinion in Estate of Bleck v. Martinez on Thursday, March 27, 2014.

Motion to Dismiss—Qualified Immunity—Interlocutory Appeal.

Steven Bleck sued Officer Martinez and the City of Alamosa Police Department, alleging he was injured as the result of Officer Martinez’s willful and wanton conduct. Officer Martinez moved to dismiss under CRCP 12(b)(1) and (5), claiming qualified immunity under CRS §24-10-118(2). The motion was denied and an appeal was filed. However, the Colorado Governmental Immunity Act (CGIA) does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity. Martinez argued there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and dismissed for lack of subject matter jurisdiction.

If a well-pleaded complaint alleges a public employee’s conduct was willful and wanton, the defendant is entitled to qualified immunity under CRS §24-10-118(2). The terms of this subsection provide for “immun[ity] from liability” rather than a bar to suit. It is a defense that can be defeated at trial if it is proven that the conduct was willful or wanton. A trial court’s determination of a CRCP 12(b) motion challenging whether an employee’s conduct was willful or wanton is not subject to interlocutory appeal.

Summary and full case available here.

SB 14-138: Providing Limited Immunity for Volunteer Firefighters

On Monday, January 27, 2014, Sen. John Kefalas introduced SB 14-138 – Concerning Civil Immunity for Community Volunteers Assisting at an Emergency. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law provides limited immunity for volunteer firefighters who provide services at the scene of an emergency. As amended in the Senate, the bill extends the immunity to volunteers performing services for nonprofit corporations and nonprofit organizations.

The bill passed out of the Senate on February 17; on that same day, the bill was introduced in the House and assigned to the Local Government Committee.

Colorado Court of Appeals: Claim for Destruction of Property Could Lie in Tort and Therefore is Likely Barred by CGIA

The Colorado Court of Appeals issued its opinion in Foster v. Board of Governors of Colorado State University System on Thursday, February 27, 2014.

Breach of Oral Bailment Contract—Tort—Colorado Governmental Immunity Act.

This case arose from a fire at Colorado State University’s Equine Reproduction Laboratory (Lab) that destroyed plaintiff Heather Foster’s property. Foster sued the Lab, asserting a claim for breach of an oral contract for bailment. Defendant, the Board of Governors of the Colorado State University System (CSU) filed a motion to dismiss Foster’s claim for breach of an oral bailment contract based on immunity under the Colorado Governmental Immunity Act (CGIA), which the trial court denied.

The sole issue on appeal was whether Foster’s claim for damages for the destruction of her bailed property lies in tort or could lie in tort for purposes of the CGIA. The bailee’s liability will depend on whether the bailor establishes that the bailee acted negligently regardless of whether such a claim is pleaded in contract or in tort. Here, the allegations in Foster’s complaint sound in tort or could support a tort claim.

First, though Foster has phrased her claim as one for breach of contract, CSU’s liability for damage to the bailed goods would depend on proof of negligence. Second, the duty CSU allegedly breached is one implied by law—a duty to act with reasonable care—not one that arises from promises made between the parties. Third, an action against a bailee for damage to or destruction of bailed property can be pleaded alternatively in contract or in tort. Therefore, because Foster’s claim for the destruction of her bailed property lies in tort or could lie in tort, it is barred by the CGIA, unless an exception to immunity applies. The district court’s order was reversed and the case was remanded to consider and rule on Foster’s assertion that the exception to immunity applies.

Summary and full case available here.

Tenth Circuit: Order for Co-Insurer to Pay Half Defense Costs Affirmed; Denial of Prejudgment Interest Affirmed

The Tenth Circuit Court of Appeals published its opinion in Yousuf v. Cohlmia on Tuesday, January 21, 2014.

Dr. Ashard Yousuf sued Dr. George Cohlmia and Cardiovascular Surgical Specialists Corporation (CVSS) in Oklahoma state court for defamation, tortious interference with business relations/contract, intentional infliction of emotional distress/outrage, negligence, and breach of contract. Dr. Yousuf alleged that Dr. Cohlmia made a series of false statements to local media disparaging Dr. Yousuf’s professional reputation. Dr. Cohlmia denied that the statements he made were false.

CVSS held a professional liability policy with Physicians Liability Insurance Company (PLICO) and two identical general commercial liability policies with American National Property and Casualty Company (ANPAC) (one for each business location), each of which covered Dr. Cohlmia as an additional insured. Dr. Cohlmia demanded that both insurers provide for his defense, pursuant to their respective policies. PLICO agreed to defend the lawsuit under a reservation of rights and requested ANPAC to share in the defense. ANPAC refused, contending its policy did not cover the alleged wrongdoing and that it owed no duty to defend. ANPAC further claimed that even if it erred in refusing to defend Dr. Cohlmia, PLICO had no right to indemnification or contribution for the defense costs it incurred.

After various state proceedings, PLICO sought to recover its defense costs in federal district court. The court concluded the defense costs should be evenly divided between the insurers and granted summary judgment for PLICO. Once summary judgment for PLICO was granted, PLICO and ANPAC negotiated an agreement, stipulating that ANPAC’s portion was $206,698.78. PLICO then moved for prejudgment interest in the amount of $149,110.57, contending that the district court was required to include prejudgment interest of fifteen percent per year from the date of the judgment pursuant to title 36, section 3629(B) of the Oklahoma Statutes. The court denied prejudgment interest.

ANPAC appealed from the district court’s grant of summary judgment in favor of PLICO. PLICO cross-appealed the district court’s denial of its motion for prejudgment interest. The Tenth Circuit applied Oklahoma law in interpreting the insurance policies at issue and concluding ANPAC breached its duty to defend Dr. Cohlmia.

The court concluded that the provision in ANPAC’s policy providing coverage for “personal injury” resulting from “the publication or utterances of a libel or slander or of other defamatory or disparaging material” was broad enough to encompass the tort of intentional interference with business relations. It rejected ANPAC’s contention that such an interpretation is against public policy because it extends coverage to include intentional wrongdoing.

The court affirmed the district court’s grant of summary judgment requiring ANPAC to reimburse PLICO for one-half of its defense costs.

In response to PLICO’s cross-appeal on the district court’s failure to award prejudgment interest, ANPAC argued the district court was correct in concluding that prejudgment interest was barred under the Tenth Circuit’s decision in Regional Air because PLICO prevailed on a summary judgment rather than a jury verdict, and also because prejudgment interest is unavailable in Oklahoma where the damages are not certain, liquidated, or reasonably ascertainable. The Tenth Circuit overruled Regional Air on its interpretation of the Oklahoma statute providing for prejudgment interest. It held that PLICO’s claim for prejudgment interest was not defeated simply because the judgment was entered pursuant to summary judgment rather than a jury verdict. It did affirm the district court’s denial because the attorney fees were not liquidated under Oklahoma law as they were subject to a reasonableness determination.

Tenth Circuit: Amended Maliscious Prosecution Decision

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Wednesday, January 8, 2013.

The court denied the appellee’s Petition for Panel Rehearing but sua sponte amended its December 20, 2013 decision, nunc  pro tunc, by removing a footnote sentence. The former decision was summarized here.

Colorado Supreme Court: Attractive Nuisance Doctrine Applies to All Children, Not Just Trespassing Children

The Colorado Supreme Court issued its opinion in S.W. v. Towers Boat Club, Inc. on Monday, December 23, 2013.

Attractive Nuisance—CRS § 13-21-115.

The Supreme Court considered whether, under Colorado’s premises liability statute, CRS § 13-21-115, the attractive nuisance doctrine applies to both trespassing children and licensees or invitees. The Court held that the doctrine permits all children, regardless of their classification, to bring a claim for attractive nuisance. The Court therefore reversed the judgment of the court of appeals, which had found that the doctrine only protects trespassing children.

Summary and full case available here.