August 25, 2019

Archives for August 2010

Colorado Court of Appeals: “Disfigurement” of an Upper Extremity Includes the Partial Loss of Fingers

The Colorado Court of Appeals issued its opinion in Leffler v. Industrial Claim Appeals Office of the State of Colorado on August 19, 2010.

“Disfigurement” Within CRS § 8-42-108(2)(c).

Glen Leffler, doing business as Skyline Sod, and his insurer, Pinnacol Assurance, (collectively, employer) appealed an order of the Industrial Claim Appeals Office (Panel) awarding claimant $4,800 for additional compensation based on a disfigurement from his partial loss of two fingers. The order was affirmed.

Claimant sustained an admitted injury in 2008 when his right hand was caught in a sod harvesting machine. The administrative law judge (ALJ) found he had partially lost two of his fingers and concluded he was disfigured from the resulting “[s]tumps due to loss or partial loss of limbs.” The ALJ awarded $4,800 as additional compensation under CRS § 8-42-108(2)(c). The Panel affirmed, rejecting employer’s argument that the section is limited to upper extremity stumps resulting from amputations above the wrist.

On appeal, the sole issue was whether the stump of a partially amputated finger is a disfigurement that provides for a disfigurement award of up to $8,000 for “[s]tumps due to loss or partial loss of limbs.” The Court of Appeals looked to the definition of “arm,” “limb,” and “upper extremity” and found them to be virtually interchangeable. Webster’s Third New International Dictionary defines a “stump” as “the basal portion of a limb or other part of the body remaining after the rest of it is removed.” In applying these plain and ordinary definitions, the Court found it clear that fingers are the distal extension of the upper limb and that the stumps of fingers are “stumps” within the meaning of CRS § 8-42-108(2)(c). The order of the Panel was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Standing Cannot Be Determined Until Final Order Establishes Landowner or Qualified Elector Status

The Colorado Court of Appeals issued its opinion in Sensible Housing Co. v. Town of Minturn, Colorado on August 19, 2010.

C.R.C.P. 106—Annexation Jurisdiction—Standing.

Plaintiff Sensible Housing Company, Inc. (Sensible) appealed the district court’s order dismissing on jurisdictional grounds its complaint against defendant Town of Minturn (Minturn) for approving the annexation of nine parcels of land allegedly owned by defendants (collectively, Ginn Battle). The order was reversed and the case was remanded with directions.

In November 2005, Ginn Battle submitted to Minturn petitions for annexation of nine parcels of land in Eagle County (disputed properties). Prior to and during the annexation proceedings, Ginn Battle was litigating title to the disputed properties with Sensible in Eagle County District Court. At the commencement of the annexation proceedings, Sensible’s predecessors in interest sent Minturn letters alerting the town of the litigation and objecting to the annexation petitions. Following Minturn’s annexation of the disputed properties, Sensible filed this action in Eagle County District Court, alleging that Minturn exceeded its jurisdiction and abused its discretion by approving annexation when title to the disputed properties was being litigated.

On June 3, 2009, the district court granted partial summary judgment to Ginn Battle in the title proceeding. Sensible appealed the judgment. On July 21, 2009, the district court dismissed the present case for lack of subject matter jurisdiction. Relying solely on its June 3 order, the court concluded that under CRS § 31-12-116, “Sensible . . . has no standing, because it is neither a landowner nor a qualified elector.”

On appeal, Sensible argued it was error to find that it lacked standing based on the court’s decision in the title matter. The Court of Appeals agreed. Only a landowner or a qualified elector in the area proposed to be annexed has standing to request judicial review of a municipality’s annexation proceedings. The Court looked to the requirements for claim or issue preclusion to apply. Both require finality of a prior judgment. Finality necessitates an opportunity for review. Pronouncing a judgment final while it still is pending negates the finality requirement. Because Sensible had appealed the June 3 order, it was not a final order and it was error for the district court to rely on that order to determine that Sensible lacked standing. The order of dismissal was reversed and the case was remanded with directions to return the matter to Minturn to vacate those annexation ordinances related to the disputed properties and to stay annexation proceedings pending the outcome of the title litigation.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Court May Approve Settlement for the Benefit of a Trust when Just and Reasonable, Even over Objection by a Petitioner Beneficiary

The Colorado Court of Appeals issued its opinion in Saunders v. Muratori on August 19, 2010.

Mediation Agreement—Signature—Trust Beneficiaries.

Petitioner appealed the district court’s order approving a settlement stipulation between three of the beneficiaries of the McNulty Ranch Trust. The judgment was affirmed.

Petitioner argued that the district court erred in approving the mediation agreement because he did not agree to it or sign it. He participated in the mediation by telephone, and his attorney signed the agreement on his behalf.

When trust beneficiaries bring suit for the benefit of a trust, a court may properly approve the settlement of such an action, even over the objection of one of the petitioner beneficiaries, if the settlement is just and reasonable. Because the evidence in the records supports the district court’s finding that the settlement was just and reasonable, the court did not abuse its discretion in approving the settlement stipulation over petitioner’s objections. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Insurance Company Has No Duty to Defend Claims Concerning Premises Not Listed as Insured in Policy

The Colorado Court of Appeals issued its opinion in Sachs v. American Family Mutual Ins. Co. on August 19, 2010.

Insurance Coverage—Homeowners—Duty to Defend—Negligent Misrepresentation—Premises Owned Exclusion.

In this insurance coverage dispute, plaintiffs Robert and Moira Sachs appealed the summary judgment entered in favor of defendant American Family Mutual Insurance Company (American Family). The judgment was affirmed.

On or about October 15, 2004, Stanford and Susan Stevens (buyers) purchased plaintiffs’ Colorado Springs residence. After the sale, the basement floor of the residence sank by four inches. The buyers subsequently sued plaintiffs for breach of contract, fraudulent misrepresentation, and negligent misrepresentation.

On appeal, plaintiffs argued that the district court erred in concluding that American Family had no duty to defend plaintiffs from claims in a lawsuit brought against them by the buyers of their former Colorado Springs residence. The Court of Appeals disagreed. The “premises-owned” exclusion in the policy unambiguously applied to both presently owned and formerly owned premises, which were owned premises not listed on the policy as an “insured premises.” Because it is undisputed that plaintiffs owned the Colorado Springs property at the time of their alleged negligent misrepresentation and it was not listed on the policy as an insured premises, the district court correctly ruled that the premises-owned exclusion applied and that American Family had no duty to defend plaintiffs on that claim. Further, the broad language of the premises owned exclusion in plaintiffs’ policy applied, regardless of whether the negligent misrepresentation claim was characterized as a premises liability or personal tort claim.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Courts Need Not First Find Fee Agreements to be Invalid to Find Them Unreasonable and Excessive

The Colorado Court of Appeals issued its opinion in Berra v. Springer and Steinberg, P.C. on August 19, 2010.

Contingency Fee Agreement—Reasonableness—Quantum Meruit.

In this attorney fees dispute, defendants Springer and Steinberg, P.C. and Jeffrey Springer (collectively, S&S) appealed the trial court’s judgment refunding to plaintiff Cathy Berra a portion of a previously paid contingent fee. The judgment was affirmed.

After being injured in an automobile accident with George Wilkinson, Berra hired an attorney (attorney #1) on a contingent fee basis to represent her in a civil action against Wilkinson. Berra thereafter hired S&S to represent her in collecting the judgment and in contesting the attorney’s lien filed by attorney #1. S&S failed to revive the first lien and filed a new judgment lien. As a result, Berra lost her earlier lien priority. Wilkinson later sold his real property and Berra received the full amount of her judgment plus interest. S&S received a fee of $353,250.07, which represented 30 percent of the recovery of the judgment and interest. Berra later sued S&S for its excessive fee. The trial court found the actual fee received by S&S was unreasonable and excessive.

On appeal, S&S contended that the trial court erred in determining the reasonable value of its services under a quantum meruit analysis without first finding that the contingent fee agreement was invalid and unenforceable. However, the circumstances of this case, including the trial court finding that the actual fee received by S&S was unreasonable and excessive, leads to an interpretation that the contingent fee agreement was invalid and unenforceable. Therefore, a quantum meruit analysis was appropriate.

S&S also contended that the trial court erred in evaluating the enforceability of the fee agreement when it considered factors relating to risk and difficulty of work in retrospect, rather than as they appeared at the outset of the case. The Court of Appeals disagreed. It was appropriate for the court to consider whether the services to be performed were reasonably worth the amount stated in the agreement by considering the amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney. Therefore, the trial court did not err in taking into consideration events that occurred before and after the parties entered into the fee agreement—such as the complexity of the case, the amount involved, and the results obtained by S&S’s efforts—to determine the enforceability of the agreement. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Search Warrant Not Invalid when Veracity Solely Rebutted by Hearsay

The Colorado Court of Appeals issued its opinion in People v. Warner on August 19, 2010.

Motion to Suppress Evidence—Veracity Hearing—Possession of Controlled Substances—Drug Paraphernalia—Firearms—Special Offender—Search Warrant.

Defendant appealed his multiple convictions for possession of controlled substances, drug paraphernalia, and firearms. He also appealed his conviction and enhanced sentence as a special offender. The judgment and sentence were affirmed.

Pursuant to a warrant, police searched a residence identified as defendant’s home and found various items of contraband. Defendant asserted at trial that he did not live at the residence on the date it was searched and that the items seized belonged to an alternate suspect that he alleged was the sole tenant of the residence.

On appeal, defendant contended that the trial court improperly denied his motion to suppress evidence seized pursuant to a search warrant based on allegedly false statements made by a first-time informant. However, during the veracity hearing, defendant offered no evidence, other than hearsay, to support his claim that the search warrant affidavit was based on false information. Therefore, the trial court properly based its decision on the only substantive evidence before it: the testimony of the police officer who had obtained the warrant. Further, the detailed facts contained in the search warrant affidavit created a substantial basis for concluding that probable cause existed to search defendant’s residence.

Defendant contended that the trial court erred by admitting a videotape seized during the search that showed him apparently smoking drugs at the residence one week before the search. However, the videotape was properly used to rebut defendant’s claim that he was not in possession of the residence at the time it was searched.

The Court of Appeals also rejected defendant’s contention that the evidence presented at trial was insufficient to support the jury verdicts against him. The evidence supporting an inference that defendant knowingly possessed the drugs found at the residence included the videotape showing defendant smoking drugs at the residence, the informant’s testimony, and defendant’s admissions about his use of the residence. Additionally, the informant’s testimony that defendant exercised control over the residence and gun found within the residence was sufficient to support his convictions for possession of a weapon by a previous offender and possession of a defaced firearm. Further, the evidence that police found drugs and guns in various places throughout the residence was sufficient to support his conviction as a special offender under CRS § 18-18-407(1)(f). The judgment and sentence were affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Colorado Court of Appeals: Prosecution’s Misstatements of Law Not Plain Error

The Colorado Court of Appeals issued its opinion in People v. Strock on August 19, 2010.

Vehicular Homicide—Driving Under the Influence—Prosecutorial Misconduct—Habitual Criminal—Extended Proportionality Review.

Defendant Richard Strock appealed the judgment of conviction entered on jury verdicts finding him guilty of vehicular homicide while driving under the influence, driving under the influence, and driving under the influence per se. He also appealed his sentence of forty-eight years in the Department of Corrections (DOC). The judgment and sentence were affirmed.

In 2005, Strock’s wife was killed after the vehicle he and his wife were traveling in collided with a guardrail and cement barrier on Interstate 70 in Denver. After Strock was found guilty by the jury, the trial court found Strock to be a habitual criminal based on two prior felony drug convictions and two prior felony convictions for driving after revocation prohibited.

On appeal, Strock contended that his conviction should be reversed because of prosecutorial misconduct. However, the trial court did not abuse its discretion in ruling that the prosecutor may use metaphors in his closing argument. The prosecutor’s statements were a reasonable inference from the evidence in the record.

Strock argued that the prosecutor twice misstated the law during closing argument. Although the prosecutor’s statements were erroneous because they did not require the jury to find that Strock’s driving while intoxicated caused the victim’s death, the statements did not rise to the level of plain error, because the jury was given the correct information through closing arguments and the jury instructions. Further, the prosecutor’s comments on the lack of evidence to support Strock’s defense theory that he was not driving at the time of the accident did not improperly shift the burden of proof to Strock.

Strock contended that the prosecutor failed to prove beyond a reasonable doubt that he was a habitual criminal. However, Strock failed to show that he was prejudiced by the information’s failure to specify the felony offenses in counts five and eight, and that he did not have adequate notice of the underlying offenses to enable him to prepare a defense.

Strock further contended that the trial court erred by declining to conduct an extended proportionality review of his sentence, because his conviction for vehicular homicide while driving under the influence was not grave and serious. However, the offense of vehicular homicide while driving under the influence is grave and serious per se. Therefore, the court did not err in declining to conduct an extended proportionality review.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on August 19, 2010, can be found here.

Tenth Circuit: Opinions, 8/20/10

Tenth Circuit: Opinions, 8/19/10

Nominees Selected for Colorado Court of Appeals Vacancy

The Supreme Court Nominating Commission has nominated three candidates to fill the vacancy on the Colorado Court of Appeals left by the Hon. Sean Connelly, who will not stand for retention. The vacancy will occur on January 11, 2011.

Under the Colorado Constitution, Governor Ritter has fifteen days from August 17, 2010, to appoint one of the candidates to the position on the court. Comments regarding the the nominees may be sent via email to the governor.

As reported by Law Week Colorado, the three nominees are:

  • Maria Teresa “Terry” Fox, an attorney in the civil division of the U.S. attorney’s office. Fox was appointed last year to the Colorado School of Mines Board of Trustees by Governor Ritter.

M. Terry Fox of Wheat Ridge is currently an Assistant U.S. Attorney in the United States Attorney’s Office for the District of Colorado, where she has been since August 2004. Ms. Fox serves as trial counsel to federal agencies and employees, and her caseload consists of environmental issues (30%); tort litigation (30%); constitutional claims (10%); administrative, habeas, and other civil actions (10%); and affirmative civil enforcement actions (20%). Prior to this position, Ms. Fox was an attorney with the Colorado Attorney General’s Office (1999-2004), an associate with Holland & Hart LLP (1994-1999), and a clerk for Justice Craig Enoch on the Texas Supreme Court (1993-1994). Ms. Fox’s community involvement includes serving on the Colorado School of Mines Board of Trustees (2009-present), the Colorado Supreme Court’s Attorney Regulation Committee (2005-present), and serving as an American Marshall Memorial Fellow (2003). Ms. Fox earned a B.S. from the Colorado School of Mines (1989) and a J.D. from South Texas College of Law (1993).

  • Blain David Myhre, of Isaacson Rosenbaum. Myhre has been previously considered twice for the position on the court in 2008.

Blain David Myhre of Centennial has been of shareholder of Issacson Rosenbaum P.C. since 2001, and he was an associate at the firm from 1996 to 2000. In his current practice he is an appellate litigator in state (80%) and federal (20%) appellate courts. Mr. Myhre’s appellate practice involves criminal and civil appeals. His non-appellate practice consists of civil litigation, including commercial, constitutional, civil rights, election law, real estate, and land use litigation. Mr. Myhre’s previous experience has included practice in the following areas: employment, administrative, special districts, land use, probate, landlord/tenant, criminal defense, and post-conviction proceedings. Mr. Myhre’s community involvement includes: City of Centennial Board of Adjustments; Colorado Lawyer’s Committee, Children’s Task Force; Health Care Reform Task Force; Denver Bar Association Muscular Dystrophy Association Lock-Up; Kaps for Kendall; 81 Squares; Race For The Cure; and Colfax Community Action Network. Mr. Myhre received his B.A. from the University of Virginia (1987) and his J.D. from the University of Colorado School of Law (1993).

  • Patrick T. O’Rourke, general counsel for the University of Colorado. O’Rourke led the university’s legal efforts to fire controversial professor Ward Churchill and was considered for a position on the court in 2008.

Patrick Terrence O’Rourke of Highlands Ranch currently works as the Managing Associate University Counsel for the University of Colorado, where he has been since October 2005. In this position, he is responsible for conducting and coordinating all of the litigation commenced against the University of Colorado in state and federal courts. Prior to this, Mr. O’Rourke worked for the law firm of Montgomery Little & McGrew, P.C. in Greenwood Village (1995-2005). Mr. O’Rourke is currently a member of the Colorado Defense Lawyers Association and the National Association of College and University Attorneys. He has also served as a member of the Colorado Bar Association Ethics Committee (2001-2004). Mr. O’Rourke received his B.A. from Creighton University (1992) and his J.D. from Georgetown University (1995).

The Colorado Judicial Branch press release can be found here.

Tenth Circuit: Opinions, 8/18/10

The Tenth Circuit on Wednesday issued four published opinions and one unpublished opinion.

Published

In In re: Grand Jury Proceedings, the Court affirmed the district court’s decision in a redacted opinion. Appellant’s claims of prosecutorial misconduct before the grand jury were denied for lack of jurisdiction, as well as Appellant’s requests for pre-indictment remedies. Additionally, “Appellant’s challenge to the district court’s order directing [an attorney] to produce billing records for in camera review” was dismissed as premature. Lastly, the Court affirmed the district court’s decision to order the attorneys to answer questions before the grand jury, as it would not violate attorney-client privilege.

In In re: Grand Jury Proceedings, the Court reversed the district court’s decision to review evidence in camera and to allow for redaction of other evidence. In determining the relevancy of evidence, “the district court committed a legal error by redefining the categories of material sought by the Government in order to assess relevancy and further engaging in a document-by-document and line-by-line assessment of relevancy.” Relevancy should be calculated in a more “relaxed, categorical,” and broad approach, as opposed to the district court’s “much more exacting assessment.”

In Mountain Highlands, LLC v. Hendricks, the Court affirmed the district court’s grant of summary judgment for Respondents. Petitioner, forced into reorganization and bankruptcy due to a lengthy title dispute, alleged that Respondents breached the covenant of good faith and fair dealing as well as interfered with a prospective economic advantage. However, the Court found that there was no contractual relationship between the parties to give rise to such a covenant and duty, and that Respondents did not intend to interfere with Petitioner’s negotiations, nor even knew of them.

In American Atheists v. Duncan, the Court reversed the district court’s grant of summary judgment to Respondents. Beginning in 1998, the Utah Highway Patrol Association began erecting a number of twelve-foot high crosses on public land to memorialize fallen troopers. The crosses bear the Utah Highway Patrol official symbol. The Court found that the memorials “have the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion” in violation of the Establishment Clause.

Unpublished

Rizzuto v. Wilner

New PTSD Regulations Expedite Benefits to More Veterans

In July, the Department of Veterans Affairs (VA) released new regulations on Post Traumatic Stress Disorder (PTSD) claims.

The changes arose, at least in part, due to the often seemingly-endless appeals processes for PTSD claims, which average 4.4 years according to Veteran Journal. The VA is also the subject of a class action lawsuit, which asserts that the extensive time to process claims, upwards of fifteen years in some cases, violates Veterans’ constitutional rights. With evidence that “nearly 3,000 soldiers die a year while waiting for their appeals to the VA for mental health benefits,” and with over 85,000 Veterans on a waiting list to claim mental health benefits (2009), it is unsurprising that President Obama hailed the new regulations:

I don’t think our troops on the battlefield should have to keep notes just in case they need to apply for a claim. And I’ve met enough veterans to know that you don’t have to engage in a firefight to endure the trauma of war. So, we’re changing the way things are done.

The new rule applies to Veterans of any era and to all new claims and appeals received on or after July 13, 2010, as well as all pending yet undecided claims and appeals filed before July 13, 2010.

The fundamental change in the rule, implemented to expedite decisions, is to allow for a Veteran to “establish the occurrence of an in-service stressor though his or her own testimony;” prior to the rule change, the VA was required to verify the stressor accounts through extensive record analysis, a “very involved an protracted process.”

The Veteran’s stressor testimony must be in conjunction with several other elements: 1) the Veteran must be diagnosed with PTSD, 2) a VA psychiatrist must confirm that the claimed stressor is adequate to support the diagnosis, 3) the Veteran’s symptoms are related to the claimed stressor, and 4) the claimed stressor is consistent with the “places types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.”

The new regulations also allow for PTSD claims to be processed where the Veteran’s stated stressor is not directly related to combat or POW service. The stressor need only be related to a “fear of hostile military or terrorist activity . . . consistent with the places, types, and circumstances of the Veteran’s service.” VA adjudicators determine whether or not the claimed stressor is consistent with the Veteran’s service.

The rule change will be especially beneficial to those Veterans “whose military records have been damaged or destroyed,” providing no definitive evidence of combat action that could result in PTSD, despite reasonable Veteran testimony to the contrary. Additionally, women Veterans, whose roles in the military “placed them at risk of hostile military or terrorist activity,” will see a great benefit from the rule change.

While the changes seemingly make it easier for claims to be processed, and therefore increase the risk of fraud, James Dwyer, chief of PTSD services for the VA of Greater Los Angeles, believes that gains to the system outweigh any such risk. Dwyer states that “every large system has to deal with” such concerns and “anyone who puts on the uniform, signs the papers, goes over, serves, should have the benefit of the doubt.” Additionally, as Veteran Journal contends, fraudulent claims are unlikely “due to the fact that a veteran must first be diagnosed with PTSD and if that veteran shows improvements their benefits can be cut back over time to reduce costs.”

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