August 20, 2019

Archives for May 11, 2010

Case Law: Tenth Circuit Opinions, 5/11/10

The Tenth Circuit issued no published opinions and five unpublished opinions on May 11, 2010.

Unpublished

United States v. Jim

United States v. Bucio

Cancemi v. McCormack (covered by Rocky Mountain Appellate Blog)

Beylik v.State of Colorado

Burke v. Garfield County Sheriff’s Department,

Legislation: Governor Signs HB 10-1242, Health Insurance Carrier Bill, into Law

Gov. Bill Ritter yesterday signed into law HB 10-1242 as part of the state’s health care reform initiative.

The bill requires all insurance carriers to use a uniform insurance application for applicants to complete when they apply for individual health insurance coverage. In the past, consumers completed a separate, and often lengthy and detailed, application for each insurance company whose coverage they hoped to obtain. With the passage of HB 10-1242, consumers will complete a single application that is accepted by all insurance carriers to whom they submit the form, thus drastically reducing the amount of paperwork that consumers must complete.

According to a press release from the governor’s office, Rep. Dennis Apuan (D-Colorado Springs) remarked:

This bill was created with the consumer in mind. By having one master application, we are helping consumers choose the best carrier for their needs by being able to easily compare prices and offerings. We are saving consumers’ time while promoting healthy competition among businesses. Are you tired of filling out multiple forms as you look for insurance? It is time for us to tell consumers that yes; there is finally an app for that!

HB 10-1242 was co-sponsored by Sen. Lois Tochtrop (D-Thornton). The standardized insurance applications will come into use on January 1, 2012.

For more details about the bill, see here.

Case Law: Pineda v. People, Evidence Discovered Pursuant to Valid Inventory Search of Vehicle

The Colorado Supreme Court issued its opinion in Pineda v. People on May 10, 2010.

Fourth Amendment—Inventory Searches—Searches Incident to Arrest.

The Supreme Court affirmed the court of appeals’ denial of defendant Pineda’s motion to suppress heroin evidence found in his vehicle when he was arrested. The trial court initially denied Pineda’s motion to suppress, determining that the evidence was discovered pursuant to a valid search incident to arrest. The court of appeals affirmed. However, after the court of appeals issued its decision, the U.S. Supreme Court decided Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710 (2009), which reformulated the application of the search-incident-to-arrest exception involving motor vehicles. The Court did not decide whether the search-incident-to-arrest exception continues to apply in this case post-Gant. Instead, the Court affirmed on alternate grounds, holding that the heroin evidence was admissible because it was discovered pursuant to a valid inventory search of the vehicle.

Summary and full case also available here.

Case Law: Perez v. People, Impact of Arizona v. Gant on Search and Seizure

The Colorado Supreme Court issued its opinion in Perez v. People on May 10, 2010.

Fourth Amendment—Impact of Arizona v. Gant on a Search and Seizure.

The Supreme Court held that, following the U.S. Supreme Court’s decision in Arizona v. Gant, __ U.S. __, 129 S.Ct. 1710 (2009), a search of a glove compartment in a car is unlawful where the driver was not within reaching distance of the vehicle’s passenger compartment and there was no indication that any evidence of the offense of arrest would be found in the car. Even if the driver disclaimed any possessory interest in the glove compartment, his possessory interest in the car itself prevents an officer from entering the vehicle to access the glove compartment. The Court further held that Perez’s presence at the unlawful search renders the confession resulting from that search inadmissible as evidence. The judgment of the court of appeals is reversed and the case is remanded with directions to return it to the district court for further action consistent with this opinion.

Summary, full case, and all May 10, 2010, opinions also available here.

Case Law: In re People v. Day, Pattern of Sexual Abuse Enhancement Provision

The Colorado Supreme Court issued its opinion in In re People v. Day on May 10, 2010.

Criminal Law—Sexual Assault—Sexual Assault Pattern of Abuse Sentence Enhancer—CRS §§ 18-3-405, -405.3, and -401—Statutory Construction—Attempted Sexual Assault not a Basis for Pattern of Abuse Conviction or Sentencing—Trial Judge Instructions—Jury Verdict Forms—Original Proceeding—C.A.R. 21.

In this original proceeding, defendant Day challenged the trial court’s indeterminate ten-year-to-life sentence after applying the pattern of sexual abuse enhancement provision, CRS § 18-3-405(2)(d). Day was convicted of attempted sexual assault on a child, in violation of CRS § 18-3-405(1), and attempted sexual assault on a child by one in a position of trust, in violation of CRS § 18-3-405.3(1) and (2)(a). When sentencing Day, the trial court applied the pattern of sexual abuse sentence enhancer, pursuant to CRS § 18-3-405(2)(d).

The Supreme Court held that the trial court erred as a matter of law in applying the pattern of sexual abuse sentence enhancer to Day’s judgment of conviction, because the jury found Day guilty only of attempted sexual assault. Accordingly, the Court returned this case to the trial court for resentencing based on the two attempted sexual assault on a child convictions.

Summary, full case, and all May 10, 2010, opinions also available here.

Case Law: Specialty Restaurants v. Nelson, Workers’ Comp Beneficiary Entitled to Additional Lump Sum Under 2007 Amendment

The Colorado Supreme Court issued its opinion in Specialty Restaurants Corp. v. Nelson on May 10, 2010.

Workers’ Compensation—Lump Sum Payments—CRS § 8-43-406—2007 Amendment Prospective—Procedural Versus Substantive Amendments—Prior Judicial Precedent.

The Supreme Court affirmed the judgment of the court of appeals that a beneficiary of a workers’ compensation award for permanent and total disability (PTD) is entitled to an additional lump sum payment up to the maximum aggregate available, pursuant to a 2007 amendment to CRS § 8-43-406. The Court held that the Colorado General Assembly’s amendment is procedural in nature and is prospectively applied.

Stephanie Nelson suffered an admitted work-related injury in 1990, was awarded PTD benefits in 2002, and subsequently received a lump sum payment in the amount of the statutory maximum aggregate available at the time of her injury. In 2007, the general assembly increased the maximum aggregate lump sum available, and Nelson requested an additional lump sum payment under the new statutory cap.

Nelson is entitled to the additional lump sum payment, because an employee’s election of a lump sum payment functions as an advance of an award of PTD benefits to which the employee already is entitled, thereby altering only the method of distribution of an existing award. A lump sum payment does not create, eliminate, or modify the parties’ existing rights or liabilities, which are determined as of the date of injury but vest only on entry of an award of benefits. Accordingly, the lump sum provision is procedural in nature and applies prospectively to requests for lump sum payments filed subsequent to the amendment’s date of enactment, irrespective of the date of the employee’s injury. Because the court of appeals’ opinion in Eight Thousand West Corp. v. Stewart, 546 P.2d 1281 (Colo.App. 1976), does not constitute a prior judicial interpretation of particular language that has remained unchanged throughout subsequent amendments, it is inapposite and overruled to the extent it is inconsistent with this opinion.

Summary, full case, and all May 10, 2010, opinions also available here.

CBA-CLE recently hosted the 2010 Spring Workers’ Compensation Law Update. Homestudies are available in three formats: MP3 download, video on-demand, and audio CD.

Case Law: SCOTUS Opinions, Week of May 3, 2010

The United States Supreme Court issued two opinions last week.

In Hui v. Castaneda, the Court resolved the question as to whether Bivens actions are barred and the Federal Tort Claims Act is the sole remedy in medical claims involving treatment by public health service personnel.

In Renico v. Lett, the Court reversed a Sixth Circuit decision granting habeas relief because a trial judge’s sua sponte declaration of a mistrial was not an “unreasonable application of” “clearly established federal law” under the Antiterrorism and Effective Death Penalty Act (AEDPA).

See SCOTUSblog and SCOTUSwiki for more details and analysis of these, and all recent U.S. Supreme Court, cases.

Case Law: Tenth Circuit Opinions, 5/10/10

The Tenth Circuit on Monday issued one published opinion and two unpublished opinions.

Published

In United States v. Campbell, the Defendant appealed the trial court’s denial of his motion to suppress and his request for  hearing. The Court affirmed the district court’s decision.

Unpublished

United States v. Chanthadara

Shabestari v. Utah Non-Profit Housing

Case Law: People v. McCarty, Drug Suppression Affirmed

The Colorado Supreme Court issued its decision in People v. McCarty on May 10, 2010.

Vehicle Searches Incident to Arrest—Good Faith Exception to the Exclusionary Rule.

The People brought an interlocutory appeal to the Supreme Court, as authorized by CRS § 16-12-102(2) and C.A.R. 4.1, challenging the district court’s suppression of drugs seized from a vehicle driven by defendant. After being followed from an import store that was the object of police surveillance and being stopped for a traffic infraction, defendant conceded buying a “pot pipe” at the store, took the wrapped pipe from his pocket, and turned it over to the police. The district court found that these circumstances did not provide the officers with probable cause to search defendant’s vehicle or justify a search of the vehicle incident to defendant’s arrest.

The Court held that, under the circumstances as determined by the district court, the arresting officers lacked probable cause to support a warrantless search of defendant’s vehicle or justification for a search incident to his arrest, as that doctrine was subsequently clarified in Arizona v. Gant, __ U.S.__, 129 S.Ct. 1710 (2009). The Court also held that the officers’ search did not fall within any recognized good-faith exception to the Fourth Amendment exclusionary rule. The Court therefore affirmed the district court’s order suppressing the drugs seized from defendant’s vehicle and remanded for further proceedings consistent with its opinion.

Summary, full case, and all May 10, 2010, opinions also available here.

Case Law: People v. Chamberlain, Court Affirms Drug Suppression Order

The Colorado Supreme Court issued its opinion in People v. Chamberlain on May 10, 2010.

Vehicle Searches Incident to Arrest.

The People brought an interlocutory appeal to the Supreme Court pursuant to CRS § 16-12-102(2) and C.A.R. 4.1, challenging the district court’s suppression of drugs and drug paraphernalia seized from defendant’s vehicle during a search incident to her arrest. Although the district court initially denied the motion, it entertained a motion for reconsideration and reversed its earlier ruling following the release of Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009). Because it was undisputed that defendant had already been arrested, handcuffed, and placed in a patrol car at the time of the search and because it would not have been reasonable for the officers to believe that defendant’s vehicle might contain evidence relevant to false reporting, the crime for which she was arrested, the Court affirmed the suppression order and remanded the case for further proceedings consistent with its opinion.

Summary, full case, and all May 10, 2010, opinions also available here.

Case Law: Smith v. Executive Custom Homes, Statute of Limitations and the Construction Defect Action Reform Act

The Colorado Supreme Court issued its decision in Smith v. Executive Custom Homes on May 10, 2010.

Construction Defect Action Reform Act—Personal Injury Claims—Claim Accrual—Statute of Limitations—Statutory Interpretation—Repair Doctrine—Equitable Tolling.

In this appeal from a grant of summary judgment, the Supreme Court held that claims for personal injury under the Construction Defect Action Reform Act begin to accrue for purposes of the two-year statute of limitations at the time the claimant first discovers, or in the exercise of reasonable diligence should have discovered, the physical manifestations of the defect that ultimately causes the injury. The Court further held that the statute’s notice of claim and tolling provisions preclude equitable tolling under the repair doctrine.

The Court reverses the ruling of the court of appeals. The case is remanded with instructions to affirm the ruling of the trial court.

The Rocky Mountain Appellate Blog covered the case in more depth yesterday.

Summary and full case also available here.

CBA-CLE publishes the Practitioner’s Guide to Colorado Construction Law–the definitive desktop guide for Colorado construction law attorneys.