May 19, 2019

Archives for March 15, 2011

Douglas Griess: Set-offs, Subrogation, and the Collateral Source Rule

The Colorado Supreme Court clarified one of the applications of the collateral source rule in its recent ruling of Ferrellgas, Inc. v. Yeiser, Case No. 08SC997, (Colo. Feb. 28, 2011).

The collateral source rule is a hard to understand rule about when payments from a collateral source can, or cannot, be set-off from an award made to a plaintiff.  In civil actions, C.R.S. Section 13-21-111.6 applies.  In general, a court will reduce the amount of an award by the amount that the injured party received from a collateral source unless it is an amount paid as a benefit as a result of a contract entered into by the injured person.  For example, this would usually means that an award for damages for an injury would not be reduced by the amount of health insurance paid to the injured party.

Enter Subrogation Rights

While the collateral source rule usually prevents reduction of an award by the amount paid by insurance, a subrogation right changes this.

In the Ferrellgas matter, the injured party had received over $212,000 in insurance proceeds.  The insurer therefore obtained subrogation rights to recover the $212,000.  With its rights, the insurer settled the full $212,000 subrogation claim for around $172,000.  At trial, the jury awarded around $339,000 in damages and the question arose as to what should be set-off from the award because of the settlement of the subrogation claim.

The trial court concluded that the full $212,000 should be set-off from the award of $339,000.  The appeals court disagreed and held that only the $172,000 should be set-off from the award because that was all that was actually paid.  However, the Colorado Supreme Court held that the trial court had been correct—the full $212,000 should be set-off from the award because it was the full amount of the subrogation claim (the amount paid by the insurer) even if the amount paid to settle that subrogation claim had been less than the amount of the claim.

Statutory Offer and the Award of Costs

This analysis also affected the issue of whether the defendant could collect costs incurred after its statutory settlement offer.  Usually, the prevailing party is awarded their costs at the end of the case Colorado Rule of Civil Procedure 54(d).  Under CRS 13-17-202, a party can serve an offer of settlement on the other side, and if the award of damages at trial is less than what was offered, the party serving the statutory offer is entitled to recover their costs incurred after the offer.  The statute sets up the possibility that a party who would otherwise have to pay costs might be able to recover their own costs if they make a decent offer which is rejected before trial.

In Ferrellgas, Ferrellgas made an offer of $197,000.  While the award at trial was around $339,000, it was only an award of $127,000 after the subrogation amount was removed.  Since $127,000 is less than the $197,000 offered, Ferrellgas was entitled to its costs incurred after the offer.

Douglas Griess blogs on his law firm’s site and this post originally appeared there on March 9, 2011. Click here to read all posts by this author.

Click here for more Case Law Updates.

Don Quick on Sean May and the Memorial Run Created in May’s Honor

The Docket eFile is a new way to bring your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket, but here we hope to offer some extras so you can read, link, and interact with these stories. You’ll also still be able to read the full issue online at

Don Quick

Don Quick has served as the District Attorney for Adams and Broomfield counties since 2005. On August 28, 2008, Quick was sitting down to celebrate his birthday with a slice of cake when he received a phone call from Denver Police. That was when he found out that one of his chief deputy district attorneys, Sean May, had been shot to death in his backyard, coming home from work.

May’s murder remains unsolved. May 14 will mark the third year that attorneys and others in the community will participate in the Sean May Memorial Run/Walk at Barr Lake State Park. The run/walk honors May and benefits his family and the 17th Judicial District Access to Justice Committee. Funds from the race in part helped the committee open the Self-Help Resource Center at the Adams County Justice Center. It opened Jan. 5 and provides computers, information, and staff to help people with legal procedural questions.

Quick recently sat down with Sara Crocker to talk about Sean May and the memorial run created in May’s  honor. For more information about the run/walk, please visit

Tell us about Sean May.

Sean May

Sean May had been with our office for about seven years. He had great credentials; he could have done whatever he wanted and did. He went to Stanford undergraduate and U.Va. [University of Virginia] Law School. He was at law firm downtown and then decided that he wanted to both get into public service and in the courtroom, so he started at the DA’s office. He had just been promoted to a chief deputy, which are our section heads. His particular section was the New Lawyers. He really loved teaching and training new lawyers. He had just been in that job about two and a half months at the time that he was murdered. [He was] just a very optimistic, very positive young man. [His wife] was six months pregnant at the time of his murder, expecting their first child.

Sean was kind of the smart nerd growing up, had kind of a quirky sense of humor, and was very self-effacing for someone as smart as he was. He didn’t take himself too seriously and could laugh at himself pretty well, which is good because other people in a DA’s office will laugh at you, so it’s good trait to be able to laugh at yourself and keeps you with the crowd and not being lonely.

[He was a] very good trial lawyer; I’ve given him some important cases to prosecute and he had always done well with them. He had just finished a murder case six months to a year before [his death], which was a very challenging and difficult case and he had done great on it.

He was very bright; could have done whatever he wanted to in law and did, and chose to go into public service.

How has your office been doing since Sean’s death?

Obviously the first year was very, very rough.  We deal with homicide on a regular basis—right now we have 20 pending murder case prosecutions going on—still no matter how much experience you have, it’s still different when it’s one of your own.

During the first year, everybody was obviously very concerned for Sean’s wife and the baby. There’s some people that were good friends of theirs and they’ve kind of been the liaison between our office and Sean’s wife. It’s never really gone and we don’t want it to be. It’s a hole that we don’t want everybody to think it’s ever going to be filled. So, one group has put together the Sean May Run, another group put together our training room. We’ve got our terrific training facility up there –[it seats]  80 persons, drop-down screens, and everything – and we renamed it the Sean May Training Room in his honor because that was such a focus of his life, training the new lawyers.

We obviously have implemented some new security measures to try to keep people as safe as possible, but at the end of the day, we’re walking across the parking lot to the courthouse, we’re leaving the office, sometimes on weekends, and there’s nothing you can do to make yourself completely safe. But, we’re a little more vigilant.

What I found really supportive, for me anyway, was the fact that no one left the office for nine or 10 months. With a government office, you have some turnover because of salary being lower and those kinds of things, but for almost the first year after Sean’s murder no one left the office and I think that shows the people’s support for each other and the support for the team that they have. I couldn’t have been more proud of the office over the last three years, but especially the year following Sean’s death.

Why was the run/walk created as a way to remember and honor Sean?

It really has two purposes. The first purpose is to make sure other people remember Sean’s legacy as much as we do. For those that know him, even the new deputies that don’t know him, every day they walk into the training room and they get a chance to remember and ask questions about Sean. But also, it’s good for the community to remember Sean May. The proceeds help Sean’s family, so it’s one of those things that we know we’ll never forget, and we’re hoping that the law enforcement and legal communities don’t forget either.

Have you run in the race before? What did you enjoy most about it?

I’ve done it every year. I’m not sure at this pace whether I run it or jog anymore. For folks that don’t know and have not been to Barr Lake, Barr Lake is a hidden treasure in the metro area. People don’t realize that 20 minutes northeast of downtown there is a dirt path that goes around a lake that has a bald eagle reserve, it has cottonwoods; last time I ran there were deer across the canal. It’s just a beautiful spot. The only reason I have any reservations about letting people know more about it is that when we have time at lunch, we’ll sneak over there and go for warm runs. It’s so un-crowded that I almost hate to get the publicity out. I can’t imagine – and I’ve done a lot of runs in the metro area – that there are runs that have the landscape that Barr Lake does. Plus, the majority of the run is all on a dirt trail and when you have 50-year-old knees, it’s good to have a run on the dirt. It’s for a good cause, but it’s also an amazing venue.

How has the legal community responded to Sean’s death and to the race?

We’ve been really pleased that each year [the run] seems to get more and more involvement from outside Adams and Broomfield counties. We’re glad the Colorado Bar Association is making it a focus to inform more people and publicize the event. We’ve been really surprised with the level of support we’ve had in the community, and if people are interested either individually or put together teams of runners from law firms or law offices, then I think that would just further add more enjoyment to the run.  Not that trial lawyers are competitive, it’s always been an experience that I’ve had that a certain percentage are, so if you add a level of competition to it, between law firms or between offices, that’s great.

Governor Hickenlooper Signs Ten More Bills into Law

At the end of last week, Governor John Hickenlooper signed ten bills into law. The bills were the third group to emerge from the 2011 General Assembly.

  • HB 11-1011
    • Sponsored by Rep. Peniston and Sen. Giron. Participation of additional individuals in proceedings pending before the Board of Assessment Appeals.
  • HB 11-1018
    • Sponsored by Rep. Tyler and Sen. S. King. Regulating the conditions under which court documents may be transferred electronically.
  • HB 11-1021
    • Sponsored by Rep. Todd and Sen. Steadman. Approval for the fiscal year of the Colorado Channel Authority.
  • HB 11-1028
    • Sponsored by Rep. Liston and Sens. Johnston and Newell. Voluntary contribution designation benefitting the Alzheimer’s Association Fund to appear on individual income tax return forms.
  • HB 11-1041
    • Sponsored by Rep. Reisberg and Sen. Harvey. Updating Colorado Guaranty Insurance Association Policies.
  • HB 11-1051
    • Sponsored by Rep. Swerdfeger and Sen. S. King. DNA sample expungement is never available for a felony convict.
  • HB 11-1087
    • Sponsored by Rep. Vigil and Sen. Giron. Reimbursement to county governments for charges incurred in pest control operations.
  • HB 11-1110
    • Sponsored by Rep. Acree and Sen. Harvey. Rights of members of Nonprofit Corporations in which residency is qualification for membership.
  • HB 11-1113
    • Sponsored by Rep. Holbert and Sen. Foster. Provision of information pertaining to impact fees imposed by local governments.
  • SB 11-028
    • Sponsored by Sen. Schwartz and Rep. Coram. Approving the addition and total number of judges for District Seven.

For a complete list of Governor Hickenlooper’s 2011 legislation decisions click here.

Tenth Circuit: Opinions, 3/14/11

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


In Richison v. Ernest Group, Inc., the Court affirmed the district court’s decision. Petitioner filed suit in 2009, alleging that his former coworkers tricked him into giving up his shares in the small software company where he used to work; the shares were taken from him in 2000. The Court agreed with the district court that, whether or not the shares were taken wrongly, the suit is now filed well beyond the applicable statute of limitations. Additionally, Petitioner’s new legal theory, not raised in the lower court, also fails because he has not alleged that the district court committed plain error.

In Padilla-Caldera v. Holder, Jr., the Court affirmed the Board of Immigration Appeals’ (BIA) decision. In its first appearance before the Court, the case was remanded to the immigration judge who provided the Petitioner an adjustment of status, but the BIA reversed in the remanded proceedings relying on an intervening published BIA opinion. The BIA’s determination in In re Briones, 24 I.&N. Dec. 355 (BIA 2007), “that an alien who is inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I) is ineligible for an adjustment of status under 8 U.S.C. § 1255(i), is a reasonable interpretation of ambiguous statutory provisions” to which the Court owes Chevron deference. “As such, the BIA’s interpretation of the statute, not [the Court’s] interpretation in the remanded case, is the authoritative interpretation. The BIA issued its decision in Briones while proceedings in this case were pending on remand. In light of this intervening contrary controlling authority, the BIA was justified in departing from the law of the case and [the Court’s] mandate on remand to follow the law established in Briones. And in accordance with Briones, the BIA properly concluded that petitioner could not adjust his status to that of a lawful permanent resident . . . .”

In Howards v. McLaughlin, the Court reversed in part and affirmed in part the district court’s decision. Petitioner claims that Respondent Secret Service Agents unlawfully arrested him for assaulting Vice President Cheney in violation of his First and Fourth Amendment rights; Respondents had arrested Petitioner after Petitioner spoke to Cheney in a public place about the Iraq war and touched his shoulder. Respondents moved for summary judgment on the basis that they were immune from suit. Under a qualified immunity analysis, “[petitioner] must demonstrate on the facts alleged (1) that the [respondents] violated his constitutional or statutory rights, and (2) that the constitutional right was clearly established at the time of the alleged unlawful activity.” The Court determined that because the arrest and search were not in violation of the Fourth Amendment, Petitioner is unable to satisfy the first prong of the qualified immunity analysis. However, Petitioner’s First Amendment claim was upheld against two of the officers for retaliatory arrest for the comments he made to Cheney.

In Tiscareno v. Anderson, the Court reversed and remanded the district court’s decision. Petitioner, the former director of the Utah Division of Child and Family Services (DCFS), claims that the district court erred by failing to dismiss the civil rights suit brought against him by Respondents. Respondents claimed that Petitioner “was bound to comply with Brady v. Maryland, 373 U.S. 83 (1963), and to create policies ensuring that doctors working with DCFS properly revealed exculpatory evidence to prosecutors.” However, the Court found that no such obligation was clearly established, and Petitioner was entitled to qualified immunity.


Springer v. Comm’r of Internal Revenue

Colorado Supreme Court: Defendant’s Right of Confrontation Waived when Attorney Fails to Make Timely Request for the Technician who Prepared a Forensic Report to Testify In Person at Trial

The Colorado Supreme Court issued its opinion in Cropper v. People on March 14, 2011.

Criminal Trials—Confrontation—Forensic Reports.

The Supreme Court affirmed the court of appeals’ judgment that CRS § 16-3-309(5) was constitutional as applied to petitioner David Lee Cropper. The Court held that when a defendant’s attorney fails to comply with the requirements of § 16-3-309(5) and does not make a timely request for the technician who prepared a forensic report to testify in person at trial, the defendant waives his or her right of confrontation [Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007)]. A defendant waives his or her right of confrontation regardless of why the attorney failed to comply with § 16-3-309(5). Here, because Cropper’s attorney did not make a timely request for the technician who prepared the shoe-print analysis to testify, Cropper waived his right of confrontation.

Summary and full case available here.

Colorado Supreme Court: Failure to Raise Sufficient Challenge to Contested Expert or the Expert’s Opinions Regarding Medical Child Abuse

The Colorado Supreme Court issued its opinion in People v. Rector on March 14, 2011.

Criminal Law—Admission of Expert Testimony.

The Supreme Court reversed the court of appeals’ judgment, finding that because defendant failed to raise a sufficient challenge to the contested expert or to the opinions the expert offered regarding medical child abuse, the trial court did not abuse its discretion when it declined to hold a hearing in accordance with People v. Shreck, 22 P.3d 68 (Colo. 2001). The Court further held that the issue of whether the expert testimony usurped the role of the jury was not properly before the court of appeals, and admission of the expert testimony did not amount to plain error.

Summary and full case available here.

Colorado Supreme Court: Publication of Résumé Gave Notice to Holders of Water Rights on Stream, Including Tribe

The Colorado Supreme Court issued its opinion in In the Matter of the Application for Water Rights of the King Consolidated Ditch Company: Southern Ute Indian Tribe v. King Consolidated Ditch Company on March 14, 2011.

CRS § 37-92-302—Determination of a Water Right—Résumé Notice—Amendment to Application—Relation Back—Intervention.

The Supreme Court affirmed the water court’s ruling that the application in this case, which was filed to determine whether an adjudicated priority decreed in a prior case encompasses wintertime stockwater use, qualifies as a determination of a water right under CRS § 37-92-302(1)(a) and was properly published via the résumé notice procedures of CRS § 37-92-302(3). Publication of the résumé gave notice of the application to the Southern Ute Tribe, along with the holders of all other water rights on the stream. The late-filed verification of the application related back to the date of the original application pursuant to C.R.C.P. 15(c), and the water court did not abuse its discretion in disallowing the Tribe’s untimely statement of opposition and denying the Tribe’s motion to intervene.

Summary and full case available here.