August 30, 2015

Colorado Court of Appeals: Witness’s Failure to File Tax Returns for Several Years Probative of Character for Truthfulness

The Colorado Court of Appeals issued its opinion in Leaf v. Beihoffer on Thursday, September 11, 2014.

Negligence—Driving Under the Influence of Drugs—Impeachment—Evidence—Tax Returns—CRE 608(b)—Guilty Plea—Jury Instructions.

Defendant Beihoffer’s car rear-ended plaintiff Leaf’s taxicab on an icy road. Beihoffer ultimately pleaded guilty to a misdemeanor charge of driving under the influence of drugs (DUI). Leaf sued Beihoffer for negligence, and the court entered judgment in Beihoffer’s favor.

On appeal, Leaf contended that the district court committed reversible error by allowing impeachment evidence that he had failed to file income tax returns for several years, because that evidence was not probative of his truthfulness and was unfairly prejudicial. Evidence of a witness’s failure to file income tax returns for several years is probative of the witness’s character for truthfulness and therefore admissible under CRE 608(b) to impeach the witness’s credibility. Therefore, the court did not err in admitting such evidence.

Leaf also contended that the district court erred by not giving preclusive effect to Beihoffer’s DUI guilty plea and by excluding evidence of the plea offered for impeachment. However, evidence of Beihoffer’s DUI guilty plea had no preclusive effect in this case. The court also did not err in excluding evidence of the guilty plea for impeachment, because there was sufficient cumulative evidence presented to the jury on this undisputed issue.

Finally, because Leaf did not allege a negligence per se claim in this case, the district court did not abuse its discretion in rejecting Leaf’s proposed definitional instruction of DUI. The judgment was affirmed.

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

Tenth Circuit: Opinion Amended Upon Request for Rehearing

The Tenth Circuit Court of Appeals released its amended opinion in Bayless v. United States on Friday, September 12, 2014. In this case, the United States filed a petition for panel rehearing, which was granted in part. Modifications were made to pages 2 and 23 of the published opinion. The request for rehearing was otherwise denied. To read the summary of the original opinion, click here.

Colorado Court of Appeals: Substantial Compliance with Notice Provisions Sufficient for Hospital to Enforce Lien

The Colorado Court of Appeals issued its opinion in Wainscott v. Centura Health Corporation on Thursday, August 14, 2014.

Auto Accident—Hospital Lien Statute—Notice—Substantial Compliance—Colorado Consumer Protection Act—Fraudulent Concealment.

Donald Wainscott was injured in an auto accident caused by third parties (tortfeasors). He received treatment at St. Anthony Central Hospital, which is managed and operated by Centura Health Corporation. To secure payment of these medical expenses, Centura asserted a statutory hospital lien against any settlement or judgment that Donald Wainscott might receive as a result of the accident. The trial court declared that Centura’s failure to strictly comply with the hospital lien statute rendered its lien unenforceable.

On appeal, Centura argued that it substantially complied with the hospital lien statute and that the trial court erred in finding the lien was unenforceable. Because minor filing and notice deficiencies should not invalidate an otherwise valid hospital lien, substantial compliance may be sufficient to satisfy the filing and notice provisions of Colorado’s hospital lien statute. A lienholder substantially complies when it satisfies the statute’s purposes through timely actual notice of the lien to those against whom the lienholder attempts to enforce the lien. Because Centura did identify and serve the tortfeasors’ insurer and Donald Wainscott, Centura substantially complied with the hospital lien statute and the trial court erred in finding the lien was not enforceable.

On cross-appeal, the Wainscotts contended that the district court erroneously dismissed their Colorado Consumer Protection Act (CCPA) and fraudulent concealment claims under CRCP 12(b)(5) for failure to state a claim on which relief can be granted. The basis of the Wainscotts’ CCPA claim was an injury resulting from Centura’s failure to bill Medicare. However, during the period of time in question, Centura was required to refrain from billing Medicare and to seek payment from the tortfeasors’ liability insurer. Thereafter, it had the option of billing Medicare. Centura’s failure to advise the Wainscotts that it was obeying the law did not constitute a deceptive or unfair trade practice. Further, Centura did not have a duty to disclose that it planned to pursue payment from the tortfeasors or their insurer.Accordingly, the district court properly dismissed the CCPA and fraudulent concealment claims.

The district court’s dismissal of the Wainscotts’ CCPA and fraudulent concealment claims was affirmed. The summary judgment as to the Wainscotts’ declaratory action to determine the validity of Centura’s hospital lien was reversed. The case was remanded for further proceedings to determine whether the amount of Centura’s asserted lien represents “reasonable and necessary charges” under CRS § 38-27-101.

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

Tenth Circuit: Nurse’s Refusal to Assess Inmate’s Severe Abdominal Pain Violated Prisoner’s Eighth Amendment Rights

The Tenth Circuit Court of Appeals issued its opinion in Al-Turki v. Robinson on Tuesday, August 12, 2014.

Homaidan Al-Turki was a prisoner with Type II diabetes and other health conditions. On the night of October 5, 2008, he suddenly experienced severe abdominal pain. The pain was so severe he collapsed, vomited, and believed he was dying. He used his cell’s intercom to contact a correctional officer and request to go to the prison’s medical center. The officer called the medical center, where nurse Mary Robinson was the only medical staff person on duty. Robinson refused to see Al-Turki, despite knowing that severe abdominal pain can be a symptom of several life-threatening conditions and knowing that Al-Turki’s Type II diabetes made him susceptible to certain serious illnesses of which severe abdominal pain is an early symptom. Robinson also refused to allow him to be transported to a medical facility, claiming he was a flight risk.

Al-Turki reported his severe pain to a second correctional officer two more times that night, and the officer called Robinson both times. Robinson refused to see Al-Turki and advised the officer that he should file a written request for medical care the following morning. At some point in the night, Al-Turki either fell asleep or lost consciousness. When he awoke at 4 a.m., the pain was slightly better, and at 6 a.m. he was no longer experiencing pain. At a previously scheduled medical appointment at 10 a.m., he passed two kidney stones.

Al-Turki filed suit under 42 U.S.C. § 1983 against several prison officials, including Robinson, based on the officials’ failure to provide him medical assistance or treatment during the several hours he was in extreme pain while passing a kidney stone. The district court granted qualified immunity to all prison officials except Robinson, who filed an interlocutory appeal with the Tenth Circuit. The district court concluded Al-Turki could prove a claim of deliberate indifference to his medical needs in violation of the Eighth Amendment. The district court also concluded the law is clearly established that a medical professional who knows of and appreciates an inmate’s risk of serious medical harm must make a good faith effort to assess the individual.

The Tenth Circuit addressed Robinson’s two issues: (1) whether the evidence was sufficient to satisfy the objective prong of the Eighth Amendment extreme indifference test, and (2) whether her actions violated clearly established state law. As to the first claim, Robinson claimed that Al-Turki’s pain could not satisfy the objective prong because kidney stones are a relatively benign, albeit painful, condition and he was only in pain for a few hours. The Tenth Circuit stoutly rejected her argument, noting that Al-Turki was in so much pain he vomited and believed he was dying. He demonstrated significant suffering and was provided neither medical treatment to ease his suffering nor medical diagnosis to ease his fear of death. The Tenth Circuit similarly rejected her qualified immunity arguments based on Al-Turki’s relatively short period of suffering and benign diagnosis, since the facts concerning duration and diagnosis were not known at the time and he could have been suffering from any of a number of life-threatening conditions.

As to Robinson’s second claim, the Tenth Circuit ruled that Robinson violated clearly established law by choosing to ignore Al-Turki’s complaints. The denial of qualified immunity was affirmed.

Tenth Circuit: Statements in Articles, When Read in Context, Revealed Nasty Employment Dispute but Did Not Constitute Defamation

The Tenth Circuit Court of Appeals issued its opinion in Hogan v. Winder on Tuesday, August 5, 2014.

Beginning in 2008, Chris Hogan worked for the Utah Telecommunications Open Infrastructure Agency (UTOPIA), a state agency charged with upgrading high-speed internet access, as a consultant under a professional services agreement. In 2011, Hogan suspected that UTOPIA’s executive director unfairly favored a bid for services from a company where the director’s brother worked. Hogan discussed his suspicions with the plant manager overseeing the contractor selection process, the plant manager discussed that conversation with the executive director, and the executive director terminated Hogan’s employment.

The day after the termination, the mayor of West Valley City, Utah, Michael Winder, requested an interview with Hogan. At that meeting, Hogan began to suspect that Winder was associated with UTOPIA. Hogan then hired an attorney who sent UTOPIA a draft complaint, alleging wrongful discharge and several contract claims. The attorney also sent UTOPIA a letter that Hogan would be amenable to settling the dispute. The attorney sent UTOPIA another letter a few days later, raising four demands for settlement and suggesting that the public scrutiny from Hogan’s lawsuit could destroy the company. UTOPIA’s attorney responded with a letter saying that the common terms for Hogan’s attorney’s demands were “extortion” and “blackmail.” Shortly after these exchanges, both parties filed suit. UTOPIA requested the state court to seal the record. Hogan filed suit in federal court and, after the Salt Lake Tribune wrote a story about the lawsuit, UTOPIA moved to seal the record in the federal suit as well. The state court denied the motion to seal, and UTOPIA voluntarily dismissed its case and its motions to seal. Five days later, an online media outlet published a story titled “Former UTOPIA contractor accused of extortion.” It was later revealed that Winder pseudonymously wrote the article. Other news outlets published condensed versions of Winder’s article. Hogan sued UTOPIA, Winder, the city, and a number of other persons he believed to be involved in the publication of the articles, alleging defamation, false invasion of privacy, intentional infliction of emotional distress, and § 1983 violations.  The district court dismissed all his claims and Hogan appealed to the Tenth Circuit.

The Tenth Circuit affirmed the district court’s dismissal, examining each claim in turn. The Tenth Circuit noted that the potentially defamatory statements were explained by the articles’ context. Examined in context, the Tenth Circuit found that any reasonable reader would realize the parties were embroiled in a nasty employment dispute and would not take the statements at face value. Likewise, Hogan’s arguments that the statements portrayed him in a false light fail, because taken in context, any reasonable reader would recognize that the statements were made during a nasty employment dispute. As to Hogan’s claims regarding intentional infliction of emotional distress, the statements do not meet Utah’s high standard requiring outrageousness, and these claims fail as well. Finally, the Tenth Circuit addressed Hogan’s § 1983 civil rights claims. The district court concluded that Hogan failed to show the officials were acting under the color of state law while publishing the articles, and the Tenth Circuit agreed.

The judgment of the district court was affirmed.

Colorado Court of Appeals: Attorney Fee Award Erroneous when Underlying Claim Was to Recover Judgment

The Colorado Court of Appeals issued its opinion in Castro v. Lintz on Thursday, July 17, 2014.

Workers’ Compensation—Tort—Piercing the Corporate Veil—Enforcement of Judgment—Breach of Duty to Creditor—Dismissal—Attorney Fees—CRS § 13-17-201.

In 2010, Castro was employed by Lintz Construction, Inc. He was injured during the course of his employment when he fell from the roof of a building while shoveling snow. Castro filed a workers’ compensation claim against both Lintz Construction and Jonathan Lintz personally. The administrative law judge (ALJ) ordered Lintz Construction to pay Castro benefits in the amount of $4,536.76. The district court later granted Lintz’s motion to dismiss Castro’s claims to enforce the judgment against Lintz on the ground that the claims were barred by the doctrine of claim preclusion, awarding attorney fees to Lintz. The Colorado Court of Appeals reversed the district court’s order.

On appeal, Castro contended that the district court erred as a matter of law in awarding Lintz attorney fees under CRS § 13-17-201. An award of attorney fees under § 13-17-201 is mandatory when a trial court dismisses a tort action under CRCP 12(b). Castro’s claims for disregarding the corporate form (piercing the corporate veil) to recover the money he had already been awarded in the workers’ compensation claim and enforcement of his judgment against Lintz Construction do not sound in tort. Although Castro’s breach of duty to creditor was a tort, the essence of this claim did not sound in tort because Castro sought to recover only the benefits he was awarded. Therefore, the district court erred in awarding Lintz his attorney fees under CRS § 13-17-201.

Summary and full case available here.

Tenth Circuit: Insurance Exclusion for Intentional Acts Must Include Intent to Harm

The Tenth Circuit Court of Appeals issued its opinion in Mid-Continent Casualty Co. v. Circle S Feed Store, LLC on Tuesday, June 17, 2014.

I&W, Inc. owned a solution mining operation in Carlsbad, NM, and was insured by Mid-Continent Casualty Co, who provided CGL and umbrella policies to I&W. Solution mining is a process where fresh water is injected into underground salt formations, which creates brine water. The brine water is then extracted and sold for use in the oil and gas industries, creating an underground cavern. I&W’s mining operations created a cavern so dangerously large that they infringed upon the subsurface property of neighboring Circle S Feed Store and caused damage to the surface property. Circle S filed suit against I&W in state court, where it prevailed and was awarded $703,000 in compensatory damages and $300,000 in punitive damages. I&W subsequently declared bankruptcy.

During the pendency of the state court action, Mid-Continent sought a declaratory judgment in federal court that it owed I&W no duty of indemnification under the insurance policies. Both Mid-Continent and Circle S filed motions for summary judgment. The district court determined that (1) the damages were caused by an “occurrence” within the meaning of the policy; (2) the policy’s “intentional injury” exclusion did not apply; (3) the state court did not award judgment for diminution in value; and (4) nonetheless, indemnification was precluded by an exclusion in one of the umbrella policies for subsurface mining operations. The district court granted summary judgment for Mid-Continent based on the fourth point.

Circle S filed a motion to alter or amend the final judgment, arguing that the district court erred in holding the exclusion applied to the primary insurance policies and seeking clarification. The district court declined to revise its opinion but declared that it would have found coverage but for the exclusion. Circle S then appealed to the Tenth Circuit.

The Tenth Circuit examined the language of the policies and exclusions and determined that the district court had erroneously broadened the scope of the exclusion. The exclusion unambiguously applied to the umbrella policies but it was error to also apply it to the primary policies, since umbrella policies are separate and distinct from primary policies and serve different purposes. The Tenth Circuit then turned its focus to the district court’s resolution of the remaining issues. The district court had stated that but for the exclusion it would have found coverage based on three criteria: “(1) the subsidence I&W caused was an ‘occurrence’ within the
meaning of the policies; (2) the policies’ ‘intentional injury’ exclusion did not apply to exclude coverage; and (3) the damages awarded to Circle S were for a ‘physical injury to tangible property,’ which is covered, rather than for pure diminution in value, which is not.” The Tenth Circuit examined each prong.

Although Mid-Continent argued that the subsurface mining operations were not an “occurrence” under the policy language because I&W knew that its mining operations would create a cavern, the Tenth Circuit disagreed, noting that I&W did not know that the underground cavern had grown dangerously large or was infringing on the neighboring property. This also disposed of the “intentional injury” question, as I&W did not intend to create a dangerous cavern. Finally, the Tenth Circuit assessed whether the awarded damages were for physical injury to tangible property or pure diminution in value, and determined that the diminution in value suffered by Circle S was caused by the tangible injury of the subsurface cavern.

The district court’s judgment was affirmed regarding the application of the exclusion to the umbrella policies, but reversed as to the primary policies and remanded for further proceedings consistent with the Tenth Circuit’s holding.

Colorado Supreme Court: Results of Warrantless Blood Draw Properly Suppressed

The Colorado Supreme Court issued its opinion in People v. Schaufele on Monday, June 2, 2014.

Warrantless Blood Draw—Suppression of Evidence.

Defendant was involved in a motor vehicle accident that resulted in injuries to himself and others. Approximately one hour later, while defendant lay unresponsive at the hospital, a police officer told a nurse to draw his blood for alcohol analysis. It is undisputed that the officer and her co-workers never considered applying for a search warrant. The People later sought to use evidence from that blood draw in prosecuting defendant for vehicular assault, driving under the influence, driving under the influence per se, and careless driving.

In this interlocutory appeal, the Supreme Court considered whether the trial court applied the proper legal test when it suppressed evidence stemming from the blood draw. The People also asked the Court to adopt a new approach in evaluating whether exigent circumstances justify a warrantless blood draw of a suspected drunk driver, an approach based solely on the length of time required to secure a search warrant.

The Court affirmed the trial court’s suppression order. The Court held that the trial court properly adhered to Missouri v. McNeely, 133 S.Ct. 1552 (2013), in suppressing evidence of defendant’s blood draw.  The Court rejected the People’s invitation to disregard the majority opinion in McNeely, which instructs a trial court to consider the totality of the circumstances and to instead adopt Chief Justice Roberts’s concurring and dissenting opinion that “a warrantless blood draw may ensue” if “an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant.”

Summary and full case available here.

Colorado Court of Appeals: Insurer May Offset Amount of Uninsured Motorist Benefits by MedPay Benefits Already Paid

The Colorado Court of Appeals issued its opinion in Calderon v. American Family Mutual Insurance Co. on Thursday, May 22, 2014.

Setting Off Uninsured/Underinsured Motorist Benefits—“Coverage” Versus “Benefit.”

Calderon sustained multiple injuries in an automobile accident with an uninsured driver, requiring him to seek medical treatment and miss work. Calderon was insured by American Family Mutual Insurance Co. (American Family) under an insurance policy providing a total of $300,000 in uninsured/underinsured motorist (UM/UIM) coverage and $5,000 in medical payment (MedPay) coverage.

After the accident, American Family paid Calderon $5,000 under the policy’s MedPay provision. Calderon filed a claim under the UM/UIM provision, but the parties could not agree on the benefit amount due. Calderon sued for breach of contract, violation of CRS § 10-3-115, and breach of the duty of good faith and fair dealing.

A jury returned a verdict of $68,338.97 in favor of Calderon, including $34,394.65 for past medical expenses. The trial court reduced the amount awarded by $5,000 to set off the medical payments Calderon had already received. After adding prejudgment interest, judgment was entered against American Family in the amount of $77,459.

On appeal, Calderon argued he was entitled to the full amount awarded by the jury because CRS §§ 10-4-609(1)(c) and -635(3)(b)(II) prohibited the trial court from setting off his UM/UIM benefits by the amount of MedPay benefits he received. The Court of Appeals disagreed.

The Court noted that setoff is not allowed where the benefits are impaired, but it is allowed to prevent a double recovery. Calderon argued that the statutory sections expressed a legislative intent to prevent insurance companies from using a MedPay setoff to reduce UM/UIM benefits. The Court found that Calderon was incorrectly equating the term “coverage” with the term “benefit.” The sections prohibit a reduction in coverage by a setoff from another coverage but not a benefit. “Coverage” refers to the upper limit for which an insurer may be liable; “benefit” refers to the actual payments made under the policy. Here, Calderon’s UM/UIM coverage was not reduced (he was awarded $68,338.97 with coverage limits of $300,000), but the amount he was awarded was properly reduced by the $5,000 he had already received.

Calderon also argued that the setoff provision was void as against public policy. The Court found that the insurance policy did not dilute, condition, or limit his statutorily mandated coverage and therefore was not void as against public policy. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Dog, Not Property, Should Be Under Control of Owner for Exemption from Liability for Dog Bite

The Colorado Supreme Court issued its opinion in Robinson v. Legro on Tuesday, May 27, 2014.

Civil Actions Against Dog Owners—Working Dog Exemption—Statutory Interpretation.

The Supreme Court interpreted for the first time the phrase “on the property of or under the control of the dog’s owner” within the working dog exemption of Colorado’s civil dog bite statute, CRS § 13-21-124(5)(f). The Court held that the working dog exemption applies when a bite occurs on the dog owner’s property or when the dog is working under the control of the dog owner. Therefore, the court of appeals erred in interpreting CRS § 13-21-124(5)(f) to mean that the property, rather than the dog, must be under the dog owner’s control for purposes of exemption from strict liability. Although the court of appeals erred in interpreting the statute, it correctly reversed the district court’s summary judgment order as to respondents’ claim under the dog bite statute. Accordingly, the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: No Error in Delay Between Request and Delivery of Records

The Colorado Court of Appeals issued its opinion in Madrigal v. City of Aurora on Thursday, May 22, 2014.

Colorado Criminal Justice Records Act.

In July 2011, an Aurora Police Department (APD) officer shot and killed plaintiffs’ husband and father, Juan Contreras, in a parking lot. Pursuant to the Colorado Criminal Justice Records Act (CCJRA), plaintiffs requested from the City of Aurora (City) various records pertaining to this incident. The City initially denied inspection of the records and failed to respond to plaintiffs’ subsequent request for a written statement of the grounds for the denial. On plaintiffs’ application, the district court issued an order directing the City to show cause why it should not permit inspection. The City ultimately disclosed almost all of the records requested. The court determined that the City did not abuse its discretion either in delaying release of the records disclosed or in denying release of the records not disclosed until after the conclusion of the criminal investigation.

On appeal, plaintiffs contended that the district court erred in determining that the City did not abuse its discretion in handling their records request. The City (or, more precisely, the official custodian of the records) did not abuse its discretion in delaying the release of the records for ten months, pending the completion of the criminal investigation into Contreras’s death. Furthermore, the plain language of the statute did not authorize the district court to order the custodian to pay court costs, attorney fees, or penalties. Therefore, the court did not err in denying plaintiffs request for sanctions.

Summary and full case available here.

Tenth Circuit: No Evidence that Physician’s Performance Fell Below Accepted Standard of Care

The Tenth Circuit Court of Appeals issued its opinion in Gallardo v. United States on Monday, May 19, 2014.

Ms. Gallardo brought suit against the United States under the Federal Tort Claims Act, alleging that the performance of her obstetrician, Dr. McCutcheon, fell below the standard of care during the delivery of her daughter, D.R.G., who was born with cerebral palsy.

In February 2007, Ms. Gallardo went to Memorial Hospital in Colorado Springs after complaining of reduced fetal movement and was evaluated with an electronic fetal monitor (EFM). Dr. McCutcheon, clinical director of the federally-operated Women’s Care Center at Peak Vista Community Health Center, admitted her and induced labor. The EFM readouts were used by Dr. McCutcheon to evaluate the health of the baby and determine continued course of treatment. These EFM readouts were “non-reassuring,” indicating potential fetal distress, but Ms. Gallardo ultimately delivered the baby vaginally. Ms. Gallardo asserted that Dr. McCutcheon’s actions during the labor and delivery fell below the applicable standard of care. She exhausted all administrative remedies against the Department of Health and Human Services and filed suit against the United States. The case was tried in the district court and ultimately decided in favor of the United States. Ms. Gallardo timely appealed to the Tenth Circuit on several points of error.

Ms. Gallardo asserted that the district court applied the wrong standard of care when determining that Dr. McCutcheon’s decisions were reasonable, and that the court disregarded the opinions of her two medical expert witnesses in finding for Dr. McCutcheon. However, the testimony of the four physicians described a widely variable standard of care for situations like Ms. Gallardo’s, and the district court not only relied on physician testimony but also relied heavily on guidelines issued by the American College of Obstetrics and Gynecology. Ms. Gallardo also asserted that the district court did not give enough significance to the EFM readouts, but for this claim too the district court relied on both expert testimony and the guidelines in forming its opinion.

Ms. Gallardo also argued that the district court failed to address the most significant criticisms of Dr. McCutcheon, but the record refutes her claims. Finally, Ms. Gallardo argued that the district court erred in allowing testimony regarding nomenclature adopted subsequent to D.R.G.’s birth. However, this testimony was not used in determining Dr. McCutcheon’s effectiveness, but rather to clarify language used by obstetricians regarding EFM strips.

The district court’s judgment was affirmed on all counts.