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Colorado Court of Appeals: Summary Judgment That Resolves All Issues Does Not Terminate Accepted Settlement Agreement

May 2, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Rose v. Atkinson on April 26, 2012.

Enforcement of Settlement Agreement—Summary Judgment Does Not Terminate Settlement Offer.

Defendant Lynn Atkinson appealed the trial court’s order enforcing the settlement agreement she entered into with plaintiff Kristine Rost on her minor daughter’s behalf. The order was affirmed.

Plaintiff sued defendant for injuries her daughter sustained on defendant’s property. Defendant served plaintiff with a statutory settlement offer. The next day, the court issued an order granting summary judgment for defendant, resolving all issues in the case. Plaintiff accepted the settlement offer after receiving notice of the summary judgment order. Later that same day, defendant e-mailed plaintiff’s counsel and withdrew the settlement offer. The court rejected defendant’s argument that the summary judgment order terminated the settlement offer and entered an order enforcing the settlement agreement.

Defendant contended that the court erred in enforcing the settlement agreement because the entry of summary judgment in her favor nullified the settlement offer before she accepted it. A summary judgment order resolving all issues in a case does not terminate a valid statutory settlement offer. Only two conditions terminate a valid settlement offer under CRS §13-17-202(1)(a): (1) the offer’s withdrawal, or (2) expiration of the fourteen-day period. Here, neither condition occurred before plaintiff’s acceptance, and the offer therefore became a binding settlement agreement once plaintiff accepted it. Accordingly, the court did not err in enforcing such an agreement.

Summary and full case available here.

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Colorado Court of Appeals: Attractive Nuisance Doctrine Applies Only to Children Who Trespass and Not to Licensees

May 2, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in SW v. Towers Boat Club, Inc. on April 26, 2012.

Attractive Nuisance Doctrine—Child Licensee—Not Trespassing Child Enticed Onto Property.

Plaintiffs SW, David Wacker, and Rhonda Wacker appealed the trial court’s summary judgment in favor of defendant Towers Boat Club, Inc. (landowner). The judgment was affirmed.

On August 2, 2008, SW, who was 11 years old, attended a social gathering at Poudre Reservoir Number 6. While he was playing on an inflatable structure rented by landowner for the gathering, wind lifted the structure into the air and SW fell to the ground, sustaining severe injuries. Plaintiffs asserted claims against the landowner, including a claim for attractive nuisance.

Plaintiffs contended that the trial court erred in granting landowner’s motion for summary judgment and dismissing their attractive nuisance claim against landowner. As an issue of first impression, the Court of Appeals held that under the premises liability statute, a child licensee may not assert a claim based on the attractive nuisance doctrine. The doctrine unequivocally applies only to children enticed by an attractive nuisance to trespass on another’s property. Because SW was not a trespassing child who was enticed onto the property by an attractive nuisance, he could not assert a claim for attractive nuisance.

Summary and full case available here.

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Colorado Supreme Court: Statute Codifies Common Law Pre-Verdict Component of Collateral Source Rule Prohibiting Admission of Amount Paid by Tort Plaintiff’s Insurance

April 30, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in In re Smith v. Jeppsen on April 30, 2012.

Insurance—Collateral Source—Evidence—Statutory Interpretation.

The Supreme Court held that CRS § 10-1-135(10)(a) codifies the common law pre-verdict component of the collateral source rule prohibiting the admission at trial of evidence of the amount paid by a tort plaintiff’s insurance company pursuant to the plaintiff’s medical expense coverage. The trial court correctly applied CRS § 10-1-135(10)(a) prospectively in this action to exclude from trial evidence of the amount paid by a collateral source. The Court therefore discharged the rule to show cause.

Summary and full case available here.

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Colorado Supreme Court: Common Law Pre-Verdict Evidentiary Component of Collateral Source Doctrine Prohibits Admission of Amount of Tort Plaintiff’s Medical Expenses

April 30, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Wal-Mart Stores, Inc. v. Crossgrove on April 30, 2012.

Insurance—Collateral Source—Evidence.

The Supreme Court affirmed the court of appeals’ decision to reverse the trial court’s admission of evidence of the amount paid by a collateral source for a tort plaintiff’s medical expenses. The Court held that the common law pre-verdict evidentiary component of the collateral source doctrine prohibits the admission.

Summary and full case available here.

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Colorado Supreme Court: Liability Assessments and Fault Evaluations in Underinsured Motorist Action Are Not Reasonably Calculated to Lead to Admissible Evidence

April 30, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Sunahara, Jr. v. State Farm Mutual Automobile Ins. Co. on April 30, 2012.

Uninsured/Underinsured Motorist Coverage—Collateral Source—Evidence—Discovery.

The Supreme Court reversed the court of appeals’ decision to affirm the trial court’s admission of evidence of the amount paid by a collateral source for a tort plaintiff’s medical expenses. The Court held that the common law pre-verdict evidentiary component of the collateral source doctrine prohibits the admission.

The Court upheld the court of appeals’ decision to affirm the trial court’s exclusion of respondent’s un-redacted claim file from discovery pursuant to Silva v. Basin Western Inc., 47 P.2d 1184, 1193 (Colo. 2002). The Court held that the liability assessments and fault evaluations underlying an insurance company’s reserves and settlement authority in an underinsured motorist action are not reasonably calculated to lead to admissible evidence as required by C.R.C.P. 26(b)(1).

Summary and full case available here.

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e-Legislative Report: Week Fourteen, April 16, 2012

April 18, 2012 by Leave a Comment

In this week’s Legislative Video Update, Michael Valdez talks about the budget bill that recently passed through the House and why the “Sunshine in Litigation Act” was laid to rest. Also in this episode, the Senate Judiciary Committee granted preliminary approval of appointments to the Colorado Commission on Judicial Discipline – find out who!

From the CBA Legislative Policy Committee

The Legislative Policy Committee did not meet on Friday, April 13.

From the Capitol

The Budget took center stage at the Capitol for the week of April 9. The House approved the slightly-amended, almost $20 Billion budget on an unprecedented vote of 64-1. The previous high marks for support for the budget bill in the House lingered around 52-13 so this was an unusual vote – there had to have been a temptation to check the electronic voting machine that the House utilizes on 3rd Reading to make sure that it hadn’t been tampered with by the members of the Joint Budget Committee.

At the halfway point in the budget process, it looks very promising for the Judicial Branch; the budget priorities for the Branch have been approved by the House. Those priorities include:

  • The remaining two judges from the 2007 judge bill;
  • Additional staff to oversee protective proceedings in the probate courts,
  • Pro se or self-represented case managers,
  • Additional probation officers to monitor sex offenders,
  • Modest pay increases for the lowest paid court clerks,
  • And more.

The Senate will take their turn with the budget bill starting on Monday when the Joint Budget Committee briefs committees of reference in 45 minute round-robin sessions. Both parties are expected to caucus on the Long Bill on Tuesday and the bill will “run” on 2nds on Wednesday. The final vote in the Senate is expected on Thursday.

Now everyone who follows the budget expects the Senate version of the bill to differ from the adopted House version – it always does. When that happens a conference committee – which is comprised of the folks who put the bill together – will be asked to work out the differences between the two versions. The Budget Bill should complete its legislative journey by the end of next week. We’ll bring you an update.

In other news:

At the request of the sponsor, the Judiciary Committee put SB 12-153 – Concerning the creation of the “Sunshine in Litigation Act” to rest on Monday, April 9 without testimony or argument. The sponsor told the Judiciary Committee that the fiscal impact of the bill was such that he could not move the bill forward.

The bill would have created a rebuttable presumption that information concerning a public hazard must be disclosed in a court action. If a party objected to the disclosure they could seek a protective order to limit disclosure if the court were to find, by clear and convincing evidence, that certain factors had been met. In any event the bill has been pulled and those folks who have been following the bill are now in sadness or are celebrating.

On Wednesday of last week, the Senate Judiciary Committee gave preliminary approval of appointments to the Colorado Commission on Judicial Discipline:

For a term expiring on June 30, 2015

  • Albus Brooks of Denver, Colorado, to serve as a non attorney, appointed.
  • David Kenney of Denver, Colorado, to serve as a non attorney, reappointed.
  • Federico C. Alvarez of Denver, Colorado, to serve as an attorney, reappointed.

For a term effective October 14, 2011 and set to expire June 30, 2015:

  • David Lee Dill of Pueblo, Colorado, to serve as a non attorney.

The full Senate is expected to confirm these nominations when their confirmation is heard on the Senate floor.

Also on Wednesday, the Senate Judiciary Committee defeated HB 12-1130 – Concerning offenses against an unborn child. The bill had been held for 10 days to allow the sponsor the opportunity to find language that a majority of the members of the Judiciary Committee could live with. The sponsor was unable to come up with language to satisfy a majority of the Committee so the bill was voted down by the committee on a 5-2 vote. The CBA LPC voted to oppose the legislation at the request of the Civil Rights Committee.

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Colorado Court of Appeals: Insurance Company Had No Duty to Provide Coverage to Third Party Under Lapsed Commercial General Liability Policy

April 17, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in TCD, Inc. v. American Family Mutual Insurance Co. on April 12, 2012.

Summary Judgment—Duty to Defend.

Plaintiff TCD, Inc. appealed the district court’s summary judgment in favor of defendant American Family Mutual Insurance Company (American Family), on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy. The judgment was affirmed.

The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD subcontracted with Petra Roofing and Remodeling Company (Petra) to install the roof. The subcontract required Petra to “indemnify, hold harmless, and defend” TCD against claims arising out of or resulting from the performance of Petra’s work on the project. Petra also was to name TCD as an additional insured on its CGL policy. American Family issued a CGL policy to Petra, with TCD as an additional insured. The policy was cancelled on June 10, 2007 for nonpayment of the premium.

TCD sued Gateway, seeking payment on the project. Gateway counterclaimed for breach of contract, negligence, and violation of the Consumer Protection Act. This action proceeded to arbitration and resulted in a binding award. As an additional insured under the CGL policy, TCD demanded that American Family defend and indemnify it in the underlying action, but American Family denied coverage.

TCD sued Petra and American Family, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negligence. The district court entered a default judgment against Petra and granted summary judgment in favor of American Family.

On appeal, TCD argued that Gateway’s counterclaims were sufficient to raise a genuine issue as to whether American Family had a duty to defend it against those counterclaims. Alternatively, TCD argued it was entitled to have the Court of Appeals consider evidence not contained in the counterclaims that purportedly shows the insurance company had a duty to defend. Finally, TCD argued that CRS § 13-20-808, enacted three years after the CGL policy was cancelled, requires reversal. The Court rejected all three arguments.

TCD argued that Gateway’s claims constituted “property damage” covered by the CGL policy. The Court stated that defense and liability coverage in CGL policies issued to subcontractors generally is limited to property damage caused by an “occurrence.” In this policy, an “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In analyzing the counterclaims made by Gateway, the Court found no alleged “accident,” but found that Petra improperly installed the roof, resulting in defects that caused TCD to breach its contract with Gateway.

TCD argued that it should be allowed to go outside the “four corners” of the counterclaims and offer other evidence. The Court found the argument unpersuasive.

In May 2010, the legislature enacted HB 10-1394, codified as CRS § 13-20-808. The Court held that the statute was not retroactive, and therefore was inapplicable. The judgment was affirmed.

Summary and full case available here.

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Colorado Supreme Court: Trial Court Must Decide Before Trial if Party Is Immune from Suit Pursuant to Aviation and Transportation Security Act

March 21, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Air Wisconsin Airlines Corp. v. Hoeper on March 19, 2012.

Defamation—Statutory Immunity—Actual Malice.

The Supreme Court affirmed the court of appeals’ judgment and held that a trial court must decide before trial if a party is immune from suit pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941. The Court held that (1) Air Wisconsin Airlines Corporation was not immune from suit for defamation under the ATSA; (2) the record showed clear and convincing evidence to support a finding of actual malice; (3) Air Wisconsin’s statements were not protected as opinion; and (4) the evidence was sufficient to support the jury’s determination that the statements were false.

Summary and full case available here.

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Colorado Court of Appeals: Remand to Trial Court to Determine Whether Exclusion Proper Under Homeowners’ Insurance Policy

March 20, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in National Farmers Union Property and Casualty Company v. Garfinkel on March 15, 2012.

Insurance—Property Damage—Injuries—Business Pursuits Exclusion—Owned Premises Exclusion.

Plaintiff National Farmers Union Property and Casualty Company (NFU) appealed the trial court’s summary judgment in favor of defendants Larry Garfinkel; Kane Real Estate & Development, LLLP; Daniel B. Willie; Dessa S. Willie; Moore P. Huffman, Jr.; General Property Mortgage, Inc.; Great Northern Insurance Company; and Ranch at Roaring Fork Homeowners Association, Inc. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

In 2008, a wildfire in Garfield County injured Garfinkel and damaged the property of the other defendants. In two lawsuits (underlying lawsuits), defendants sued Larry Gerbaz and 100 Road Cattle Company LLC (the LLC), alleging that (1) Gerbaz was acting individually and as an agent of the LLC when he burned slash piles on the LLC’s property (farm property); (2) he was negligent in leaving the fires unattended; and (3) his negligence caused their losses. At the time of the fire, NFU had in effect a farm liability insurance policy covering the farm property where the slash-burning took place. The LLC was the named insured. NFU also had in effect a homeowners insurance policy insuring the residence of Gerbaz, which was adjacent to the farm property. Gerbaz was the named insured, and Molly Gerbaz, his wife, also qualified as an insured under the policy.

NFU contended that, because the farm property was being leased to third parties for haying and pasturing at the time of the April 2008 wildfire, coverage for defendants’ losses specifically was excluded by the business pursuits exclusion in the homeowners policy, and the trial court erred in ruling to the contrary. When an activity evinces “continuity” and “profit motive,” it is a business pursuit within the meaning of the business pursuits exclusion. Because issues of material fact remained as to whether the continuity and profit motive elements of the business pursuits test were present here, the case was remanded for these issues to be decided by the finder of fact.

NFU also contended that the trial court erred in finding that the owned premises exclusion does not preclude coverage in this case. This exclusion applies only where the insured is the title owner of the property. It does not apply to a situation where title to the property is held by an entity in which an insured has an interest, even a controlling interest. Here, it is undisputed that the LLC held title to the farm property where the slash burning occurred. Although Molly Gerbaz was an owner of the LLC, the LLC remained a separate legal entity. Therefore, the NFU policy exclusion barring coverage for injuries and damage arising out of uninsured premises owned by an insured does not apply.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

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SB 12-153: Creation of “Sunshine in Litigation Act”; Rebuttable Presumption Created that Information Must Be Disclosed in Court Action

March 19, 2012 by Leave a Comment

On February 24, 2012, Sen. John Morse introduced SB 12-153 – Concerning the Creation of the “Sunshine in Litigation Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a rebuttable presumption that information concerning a public hazard must be disclosed in a court action. The bill defines “public hazard” as any device, instrument, or product, or any condition of a device, instrument, or product that has caused injury to a person or his or her property and may foreseeably cause injury to one or more other persons in the future. A party objecting to the disclosure can seek a protective order to limit disclosure if the court finds, by clear and convincing evidence, that certain factors have been met, including that the information is not relevant to the public hazard and is not useful to members of the public in protecting themselves from injury resulting from the public hazard. The bill is assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

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Are You Up to Date? Torts: 2011 Annual Survey of Colorado Law

March 2, 2012 by Leave a Comment

A lot happened in 2011 in the area of Tort Law, especially in the appellate courts. Are you familiar with all the case law and developments?

CBA-CLE is offering a number of one-hour CLE classes covering major updates from the past year in a number of practice areas, as well as publishing a full 2011 Annual Survey book for practitioners. Our upcoming Torts program will cover updates in numerous areas of tort law that should interest almost any civil litigator, including:

  • The Dram Shop Statute
  • The Colorado Governmental Immunity Act
  • The Civil Theft Statute
  • The Punitive Damages Statute
  • Res ipsa loquitur doctrine and sudden-emergency instruction
  • Medical malpractice
  • Legal malpractice and negligent misrepresentation
  • Constitutionality of significant punitive-damages award
  • Burden of proof
  • Certification of class actions
  • Proof necessary for but-for causation
  • Recreational-liability claims
  • Negligent infliction of emotional distress
  • Trade-secret status of proprietary computer databases

Also, take a look below at this segment of the Torts: 2011 Annual Survey of Colorado Law chapter by the presenter of the program, John Grund, Esq.

Torts: 2011 Annual Survey of Colorado Law

CLE Program: Torts – 2011 Annual Survey of Colorado Law

This CLE presentation will take place on Tuesday, March 6. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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Tenth Circuit: Alleged Hospital Conduct Resulting in Decedent’s Death Was Neither Private Nor Violent; State-Created Danger Theory of Constitutional Liability Not Proper Resolution

February 28, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Gray v. University of Colorado Hospital Authority on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Decedent  sought treatment for epilepsy at Respondent hospital.  “In the course of his withdrawal from medication, hospital staff left decedent unattended and he died after suffering a seizure. [Petitioners], decedent’s estate and family members, filed this civil rights suit” and in their complaint they alleged “that [Respondent] hospital, and affiliated doctors, nurses, and staff acting in their capacity as ‘employees and/or agents’ of the hospital, deprived decedent of life without due process of law in violation of the Fourteenth Amendment. The district court granted [Respondents]‘ motion to dismiss the complaint . . . for failure to state a constitutional claim,”and Petitioners appealed.

The Court concluded that “[t]he Due Process Clause of the Fourteenth Amendment by its plain language applies only to state action: ‘[N]or shall any State deprive any person of life, liberty, or property, without due process of law.’ . . . The state-created danger theory indulges the legal fiction that an act of private violence may deprive the victim of this constitutional guarantee. Before the fiction may operate, however, a state actor must create the danger or render the victim more vulnerable to the danger that occasions the deprivation of life, liberty, or property. The danger that the state actor creates or enhances must be differentiated from the harm that the private party inflicts. . . . Courts simply need not indulge this legal fiction where a state actor, rather than a private individual, is directly responsible for causing the harm. This is because the state actor directly responsible for the deprivation of life, liberty, or property may be held personally liable under § 1983. . . . But not just any private act will suffice. The private act must be a violent one. . . . [D]ue process guarantees historically have applied only to ‘deliberate decisions.’”

“The conduct Petitioners allege to be directly responsible for decedent’s death is neither private nor violent. Accordingly, because the state-created danger theory of constitutional liability has no role to play in a proper resolution of Plaintiffs’ grievance,” the Court affirmed the district court’s decision.

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