August 20, 2019

Archives for May 9, 2011

Colorado Supreme Court: County Court’s Indication of Inclination to Vacate Guilty Plea as Unconstitutional During Hearing Put Prosecution on Notice

The Colorado Supreme Court issued its opinion in Sanchez-Martinez v. People on May 9, 2011.

Knowing, Voluntary, and Intelligent Guilty Plea—Crim.P. 11 and 35(c)—Post-conviction Relief.

In this post-conviction proceeding originating as a Crim.P. 35(c)(2)(V) motion for relief based on newly discovered evidence, the Supreme Court determined that the county court acted within its discretion when it addressed the constitutionality of defendant’s guilty plea. Because the prosecution elicited testimony from defendant about the circumstances surrounding his guilty plea, and the court clearly indicated its inclination to vacate the plea as unconstitutional during the hearing, the Court concluded that the prosecution was on notice that the constitutionality of the plea was at issue. The Court also held that the record supported the county court’s findings and conclusion that defendant’s guilty plea was unconstitutional.

Summary and full case available here.

Colorado Supreme Court: Driver Who Admittedly Anticipated Icy Roads Cannot Claim They Were Unexpected

The Colorado Supreme Court issued its opinion in Kendrick v. Pippin on May 9, 2011.

Automobile Accident—Sudden or Unexpected Occurrence—Jury Instruction—Doctrine of Res Ipsa Loquitur.

The Supreme Court reversed the court of appeals’ judgment, holding that defendant failed to present competent evidence that she was confronted with a sudden or unexpected occurrence not of her own making. Defendant’s testimony demonstrated that she anticipated the roads would be slick and icy the morning she lost control of her vehicle. Consequently, she failed to present competent evidence that encountering icy road conditions was a sudden or unexpected occurrence.

The Court also held that plaintiff was not entitled to an instruction on the doctrine of res ipsa loquitur, because she failed to introduce sufficient evidence to establish that this accident was of the kind that ordinarily does not occur in the absence of negligence. In addition, the Court held that it is not juror misconduct for jurors to use their professional and educational background to inform their deliberations, provided that no legal content or factual information learned from outside the record is introduced during jury deliberations.

Summary and full case available here.

Colorado Supreme Court: Initial Consultation with Attorney to Discuss Potential Civil Lawsuit Not Sufficient for Negligent Misrepresentation Claim

The Colorado Supreme Court issued its opinion in Allen v. Steele on May 9, 2011.

Negligent Misrepresentation—Prospective Client—Existence of Attorney–Client Relationship.

The Supreme Court held as a matter of law that an initial consultation with an attorney to discuss a potential civil lawsuit is not sufficient to meet the element of “guidance of others in their business transactions.” Because plaintiffs did not plead sufficient facts to demonstrate that an attorney provided them with false information as guidance in a business transaction, plaintiffs failed to state a claim of negligent misrepresentation for which relief can be granted.

The Court also held that a claim of negligent misrepresentation may not be founded on the requirement in Restatement (Third) of The Law Governing Lawyers, § 15(1)(c) that attorneys owe a duty of reasonable care to prospective clients. Accordingly, the Court reversed the court of appeals’ decision that plaintiffs stated a claim of negligent misrepresentation for which relief can be granted.

Summary and full case available here.

DORA Issues Emergency Regulation Prompted by New Child-Only Health Plans Law

As reported last week, Governor John Hickenlooper signed SB 11-128, which expands the amount child-only health insurance policies provided in Colorado.

Federal Healthcare Reform requires “insurers writing child-only policies to issue them without regard to the child’s health status or condition. As a result of this requirement, only two carriers in Colorado, Kaiser-Permanente and Rocky Mountain Health Plans, have been issuing child-only policies since fall of 2010.” The new Colorado law requires all insurance carriers selling individual health benefit plans in the state to provide at least one child-only health benefit plan for children.

As a result of the new law, DORA’s Division of Insurance has issued an Emergency Regulation, E-11-03: Mandatory Open Enrollment Periods for Carriers Issuing Child-Only Plans.

This year, the open enrollment period for child-only polices will begin August 1 and end August 31. The open enrollment periods for child-only policies in future years will occur in the months of January and July. Coverage obtained during an open enrollment period becomes effective thirty days after the end of the open enrollment period.

A child-only health policy means there is no adult on the individual policy. There can be many scenarios for this type of policy: the parents may be insured through an employer-sponsored plan which does not offer dependent coverage; or the family may not be able to afford coverage for all members, and is seeking coverage for the children only. Life events such as divorce or job loss may also affect insurance coverage.

Children who lose coverage due to a qualifying event can obtain child-only coverage by applying within 30 days of the event. Outside of a qualifying event, a child-only policy can be applied for only during an open enrollment period. Qualifying events include birth, adoption, marriage, dissolution of marriage, loss of employer-sponsored coverage, loss of Medicaid or Children’s Basic Health Plan coverage, entry of a court or administrative order mandating coverage, etc.

The Emergency Regulation can be found here.

For more information about child-only health policies, visit DORA’s information website.

Governor Hickenlooper Signs Many More Bills into Law

Last week, twenty-six more bills reached Governor John Hickenlooper’s desk and were signed into law. The bills comprised the sixteenth, seventeenth, and eighteenth groups of legislation to emerge from the 2011 General Assembly.

  • HB 11-1156
    • Sponsored by Rep. Becker and Sen. Hodge. Extension of the Conservation Grant Funding with Severance Tax Revenues.
  • HB 11-1004
    • Sponsored by Rep. Baumgardner and Sen. Harvey. Registration of a Vehicle used for Agricultural Production.
  • HB 11-1258
    • Sponsored by Rep. Baumgardner and Sen. Newell. Guidelines for Autopsy Practices.
  • HB 11-1042
    • Sponsored by Rep. Levy and Sen. Nicholson. Concerning the Classification of Residential Land when the Residential Improvement is Temporarily Removed.
  • HB 11-1201
    • Sponsored by Rep. Hamner and Sens. Nicholson and White. Concerning Measures to Facilitate the Issuance of Educator Licenses.
  • HB 11-1097
    • Sponsored by Rep. Barker and Sen. Guzman. Voluntary Contribution Designation Benefitting the Goodwill Industries Fund that Appears on the Individual State Income Tax Form.
  • HB 11-1234
    • Sponsored by Rep. Vaad and Sens. Spence and S. Williams. Creation of a Taxicab License Plate for Vehicles Authorized to Provide Taxicab Services.
  • HB 11-1160
    • Sponsored by Rep. Gerou and Sen. Jahn. Concerning the Establishment of a Green Building Incentive Pilot Program Administered by the Governor’s Energy Office to Incentivize the Making of Energy Efficiency Improvements to Existing Residences with Current Ratings Below Minimum Standards.
  • HB 11-1251
    • Sponsored by Rep. Conti and Sen. Tochtrop. Exemption from the Restrictions on Window Tinting for Public Safety Vehicles.
  • HB 11-1286
    • Sponsored by Reps. Sonnenberg and Becker and Sen. Schwartz. State Engineer’s Rule-Making Authority in the Case of Dewatering of Geologic Formations by Withdrawing Nontributary Ground Water to Facilitate the Mining of Minerals.
  • HB 11-1291
    • Sponsored by Rep. McNulty and Sen. Morse. Legislative Approval of Regional Haze Element of the State Implementation Plan.
  • SB 11-209 (the FY 2011-12 Long Bill)
  • HB 11-1200
    • Sponsored by Rep. Baker and Sen. Roberts. Conducting a Substance Abuse Assessment at Probation Intake when the Presentence Report is Waived.
  • SB 11-211
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Concerning the Use of the Tobacco Tax for Health-Related Purposes During a State Fiscal Emergency.
  • SB 11-212
    • Sponsored by Sen. Hodge and Rep. Gerou. Additional Permissible Uses for the Hospital Provider Fee Cash Fund for State Medicaid Expenditures to Offset State General Fund Expenditures for the Next Two Fiscal Years.
  • SB 11-214
    • Sponsored by Sen. Hodge and Rep. Becker. Decommission Fort Lyons Prison.
  • SB 11-215
    • Sponsored by Sen. Hodge and Rep. Becker. Reduction in the General Fund Portion of Per Diem Rates Paid to Nursing Care Facilities in 2011-12 Fiscal Year.
  • SB 11-216
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Reduction in the General Fund Appropriations for the Children’s Basic Health Plan by Reallocating Tobacco-Related Revenue Streams.
  • SB 11-217
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Reduction in the Juvenile Detention Bed Caps.
  • SB 11-218
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Transfer of Money from Certain Cash Funds to State Education Fund.
  • SB 11-221
    • Sponsored by Sen. Hodge and Rep. Becker. Contributions to Pay the Unfunded Accrued Liability of Old Hire Pension Plans that are Affiliated with the Fire and Police Pension Association.
  • SB 11-222
    • Sponsored by Sen. Hodge and Rep. Gerou. Concerning Transfers of Money Related to Capitol Construction.
  • SB 11-223
    • Sponsored by Sen. Hodge and Rep. Gerou. State Sales Tax Revenues Retained by the Vendor as Compensation for Expenses Incurred by the Vendor for Collection and Remittance of such Revenues to the State.
  • SB 11-224
    • Sponsored by Sen. Hodge and Rep. Ferrandino. Suspension of Annual Increases in the Percentage of Tobacco Litigation Settlement Moneys Received by the State that are Allocated to the Nurse Home Visitor Program.
  • SB 11-228
    • Sponsored by Sen. Steadman and Rep. Gerou. The Formula by which Moneys Shall be Advanced to the County from the County Tax Base Relief Fund in the Event that Appropriations are Insufficient.
  • SB 11-229
    • Sponsored by Sen. Steadman and Rep. Ferrandino. Increasing the Statutory Cap on Administrative Expenses for the School Counselor Corps Grant Program.

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

Tenth Circuit: Court Advises ALJ that Sporadic Performance of Household Tasks Does Not Establish an Ability to Engage in Substantial Gainful Activity

The Tenth Circuit Court of Appeals issued its opinion in Krauser v. Astrue on Friday, May 6, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. The Administrative Law Judge (ALJ) denied benefits to Petitioner at the last step of the five-step sequential process for determining disability, by finding that, “considering his age, education, transferable work skills, and RFC, [Petitioner] can perform other occupations, identified by a vocational expert (VE), that exist in significant numbers in the regional and national economy, such as delivery driver, hand packager, janitor, laundry sorter, cleaner, clerical mailer, and order clerk.” Petitioner alleges that the ALJ’s determination of non-disability must be reversed, because it rests on a failure to properly consider all of his impairments, which effected the VE’s inquiry. The Court found that when “considered at a more detailed realistic level, [Petitioner]’s activities are more consistent with his claims of significant physical limitation than with the ALJ’s conclusion that he is capable of full-time work at the medium exertional level.” When revisiting the case on remand, the the Court instructs the ALJ to keep in mind that “sporadic performance of household tasks or work does not establish that a person is capable of engaging in substantial gainful activity.”

Tenth Circuit: Unpublished Opinions, 5/6/11

On Friday, May 6, 2011, the Tenth Circuit Court of Appeals issued three unpublished opinions in addition to one published opinion.

Unpublished

United States v. Powell

Carter v. Kirk

Carter v. Wands

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.