May 21, 2019

Archives for May 18, 2011

Colorado Court of Appeals: Filing Application for Hearing Concerning the Propriety of the DIME Selection Process Automatically Stays DIME Proceedings

The Colorado Court of Appeals issued its opinion in Munoz v. Industrial Claim Appeals Office on May 12, 2011.

Workers’ Compensation—Division-Sponsored Independent Medical Examination—Automatic Stay.

In this workers’ compensation proceeding brought against JBS Swift & Company and its insurer, Zurich American Insurance Company, (collectively, employer), claimant sought review of a final order of the Industrial Claim Appeals Office (Panel). The order was affirmed in part and reversed in part, and the case was remanded.

The Panel affirmed the order of the administrative law judge (ALJ), which concluded that claimant waived his right to a division-sponsored independent medical examination (DIME) and dismissed his claim for penalties against the DIME Unit for the Division of Workers’ Compensation.

On appeal, claimant contended that the ALJ erroneously concluded that (1) the filing of an application for hearing concerning the propriety of the DIME selection process did not automatically stay the DIME proceedings; and (2) claimant waived his right to a DIME. Imposition of a stay under Rule 11-3(O) requires “a motion involving a pending IME proceeding.” An application for a hearing serves the same function as a motion. Here, claimant’s application for hearing on the DIME selection issue sufficed as a “motion” for purposes of Rule 11-3(O). Once that application was filed and the DIME Unit was copied, the DIME process was automatically stayed. The ALJ erred in concluding otherwise. Further, because the DIME process was stayed, the finding of waiver was not supported and must be set aside. Claimant could not knowingly waive the DIME when the DIME process was stayed. Employer’s request for attorney fees was denied and the case was remanded for the ALJ’s reconsideration of the DIME issue in claimant’s first application for hearing.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Limitations Period Not Tolled During Case That Did Not Consider Damages Claims

The Colorado Court of Appeals issued its opinion in Jackson v. American Family Mutual Ins. Co. on May 12, 2011.

Breach of Contract—Personal Injury Protection—Statute of Limitations—Tolling—Claim Preclusion—Class Action—Judgment Notwithstanding the Verdict.

Plaintiff Rebecca Jackson appealed the trial court’s judgment notwithstanding the verdict (JNOV) in favor of defendant American Family Mutual Insurance Company (American Family) on her breach of contract claim. The judgment was affirmed.

In March 2002, Jackson was seriously injured in a car accident. At the time, she was insured under an American Family automobile policy that provided basic personal injury protection (PIP) benefits. The policy did not, however, provide (as was then required by law) an option to purchase extended PIP coverage. Jackson filed suit against the claims analyst employed by American Family and added American Family itself as a party. After a trial, a jury returned verdicts awarding Jackson $61,300 on her breach of contract claim and $300,000 on some of her tort claims. American Family moved for a JNOV on the ground that Jackson’s claims were barred by the statute of limitations. The trial court ultimately granted the motion on only Jackson’s breach of contract claim. Jackson appealed only the JNOV entered on her contract claim.

Jackson contended that American Family was barred, under the doctrine of claim preclusion, from relitigating a statute of limitations issue that was or could have been resolved in Hicks v. American Family Mutual Insurance Co. (Boulder County Dist. Ct. No. 04CV879), whichwas filed in June 2004 and sought reformation of insurance policies on behalf of a class that included Jackson. She also contended that the trial court erred in its application of the statute of limitations. Because the Hicks court excluded from its judgment any consideration of damages claims (or defenses thereto), Jackson’s damages claim was not a matter that either was or could have been adjudicated in Hicks. Consequently, the judgment rendered in Hicks could not, under the doctrine of claim preclusion, bar either Jackson’s action or American Family’s assertion of a statute of limitations defense thereto.

Jackson’s claim accrued on March 28, 2002, when Jackson was informed by American Family of the limits of her PIP benefits, and the statute of limitations period expired no later than three years after that date. Jackson did not file her lawsuit until April 2008. Because Jackson also was a putative member of the class in French v. American Family Mutual Insurance Co. (El Paso County Dist. Ct. No. 00CV3162) regarding this same issue, and her claim accrued prior to French, she was entitled to have her limitations period tolled during French but not during Hicks. Because the limitations period was not tolled during the pendency of the Hicks case, Jackson’s contract claim was untimely filed and, consequently, the trial court properly entered JNOV on that claim. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Colorado Securities Act’s Anti-Waiver Provision Ensures Investors Must Be Permitted to Bring Claims in Colorado When Their Rights May Not Be Enforceable in Another Jurisdiction

The Colorado Court of Appeals issued its opinion in Mathers Family Trust v. Cagle on May 12, 2011.

Investments—Colorado Securities Act—Anti-waiver Provision—Forum Selection Clause.

Plaintiffs, purchasers of investments sold by HEI Resources, Inc. (HEI), appealed the dismissal of their claims against defendants, HEI and others involved in the investments, based on the forum selection clauses in the parties’ agreements requiring litigation in Texas. The order was reversed and the case was remanded.

Plaintiffs are out-of-state investors who purchased joint venture interests sold by HEI, a Colorado corporation headquartered in Colorado Springs. Defendant Martin Harper was the accountant and Joel Held was the attorney for each of the joint ventures in which plaintiffs invested; the other defendants are persons or entities closely related to HEI. The “Application Agreement” and “Joint Venture Agreement” both contained a forum selection clause providing that the courts in Texas have exclusive jurisdiction to hear any claims. After losing substantial sums of money on the ventures, plaintiffs filed suit in Colorado. The district court dismissed all of plaintiffs’ claims based on the forum selection clauses.

On appeal, plaintiffs contended that the forum selection clauses were void because they conflict with the public policy behind the Colorado Securities Act (CSA) and its anti-waiver provision. The CSA’s anti-waiver provision protects investors against the possibility that a different forum might not enforce their rights; thus, agreements that would prevent enforcing the CSA in Colorado courts are void. For the anti-waiver provision of the CSA to adequately protect investors’ rights under the act, when those rights may not be enforceable in a different jurisdiction, investors must be permitted to bring their claims in Colorado. Therefore, the district court’s order dismissing plaintiffs’ claims was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Nonparent Has Standing to Request Parental Responsibilities, but Court Must Apply Clear and Convincing Evidence Standard to Justify Allocation of Parental Responsibilities

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of E.S. and Concerning Lauzon on May 12, 2011.

Dissolution of Marriage—Parental Responsibilities—Nonparent—Standing—Clear and Convincing Evidence.

In this post-dissolution of marriage matter concerning parental responsibilities for E.S., who is the child of Auriel Lauzon and Timothy Smith, Smith appealed from the order allocating primary parenting time to Laura Silvernail, a nonparent. The portion of the order finding that Silvernail has standing was affirmed. The remainder of the order was vacated and the case was remanded for further findings.

Smith and Lauzon’s marriage was dissolved in 2006, and Lauzon was allocated majority parenting time with E.S. In 2008, Lauzon moved to relocate out of state. Smith objected, contending that E.S. should remain in Colorado. Silvernail, who is the adoptive parent of two other children of Smith and Lauzon, moved to intervene, contending that E.S. spent substantial time with her and with E.S.’s siblings, and that she was concerned that the proposed relocation would prevent E.S. from continuing to do so in the future. The trial court ordered that (1) Silvernail has standing to request parental responsibilities for E.S.; and (2) it was in E.S.’s best interests for Silvernail to be her primary residential custodian, with limited parenting time for Smith and Lauzon. Smith’s appeal followed.

Smith contended that the trial court erred by concluding that Silvernail has standing to request parental responsibilities for E.S. It is undisputed that E.S. was living with Silvernail, and not with either parent, when Silvernail sought parental responsibilities for her. It also is undisputed that Smith requested that Silvernail take E.S. into her home and assume physical care of E.S. under temporary guardianship. Accordingly, Silvernail had standing under CRS § 14-10-123(1)(b).

Smith also contended that the trial court erred by allocating primary parental responsibilities to Silvernail, over his objections, without recognizing his constitutional preference as the child’s parent and without finding by clear and convincing evidence that doing so was in the child’s best interests. The court’s order does not indicate that the court used a clear and convincing evidence standard of proof or found special factors to justify its allocation of parental responsibilities. Accordingly, that part of the order was vacated and the case was remanded for further findings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

Colorado Court of Appeals: Judicial Economy Not Served by Allowing Late Filing of Notice of Appeal of Restitution Order

The Colorado Court of Appeals issued its opinion in People v. Hill on May 12, 2011.

Restitution—Appeal—Timeliness.

Defendant Kevin Hill appealed the trial court’s order granting restitution. The appeal was denied.

On May 9, 2008, the trial court sentenced Hill to six years in the custody of the Department of Corrections (DOC), plus three years of mandatory parole, on his plea of guilty to second-degree assault, serious bodily injury. The sentence included restitution, but the court gave Hill thirty days to object to the amount. He did so. He also moved to withdraw his guilty plea and vacate the sentence, which the court denied. Hill appealed this order on June 23, 2008, before the court had addressed the restitution dispute. The court entered a restitution order on November 24, 2009. On February 9, 2011, Hill moved for leave to file an amended notice of appeal “to include issues relating to the restitution order,” which was denied. Hill appealed the denial of his motion to file the amended notice of appeal.

Hill argued that he had good cause for filing a late notice of appeal of the restitution order, and the trial court erred in denying his request. Although the People will not suffer any prejudice from the late filing, judicial economy will not be served by allowing the late filing. In addition, Hill may otherwise pursue his claims by filing a Crim.P. 35(a) or (c) motion. Therefore, Hill has not shown good cause for his failure to timely file an amended notice of appeal of the restitution order. Hill’s motion for leave to file an amended notice of appeal was denied.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.