August 20, 2019

Archives for July 10, 2012

Tenth Circuit: Couple May Purchase Qualifying Annuity Payable to Community Spouse in Addition to Retaining Medicaid Resource Allowance

The Tenth Circuit Court of Appeals published its opinion in Morris v. Oklahoma Dep’t of Human Services on Monday, July 9, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. Petitioners brought suit to challenge the Oklahoma Department of Human Services’ denial of their application for Medicaid benefits as inconsistent with federal law. “After calculating the couple’s resources and the [Community Spouse Resource Allowance], Respondents determined that [Petitioners] were ineligible for benefits. In an effort to ‘spend down’ their excess resources, [Petitioners] purchased an actuarially sound annuity payable to [the husband]. Despite this purchase,[Respondent] determined that [the wife] remained ineligible. It reasoned that [the wife] could not spend her share of the couple’s resources on an annuity payable to [her husband], or in the alternative, that [the wife] was subject to a transfer penalty for transferring to [her husband] a sum in addition to the CSRA. The district court granted summary judgment in favor of Respondents, upholding the agency’s application of the Medicaid statutes.”

The Tenth Circuit disagreed with the district court’s analysis. “As the federal agency charged with administering Medicaid has noted, a couple may convert joint resources—which may affect Medicaid eligibility—into income for the community spouse—which does not impact eligibility—by purchasing certain types of annuities. This result is not dependent on the CSRA provisions, which provide an independent basis for sheltering certain resources. In other words, a couple may purchase a qualifying annuity payable to the community spouse in addition to the community spouse’s retention of the CSRA.” Additionally, the Court held that the “limit on spousal transfers applies only after a state agency has declared the institutionalized spouse eligible for Medicaid benefits.” Although the Court noted the district court’s concerns regarding the exploitation of what can only be described as a loophole in the Medicaid statutes, it concluded that the problem can only be addressed by Congress.

Tenth Circuit: Unpublished Opinions, 7/9/12

On Monday, July 9, 2012, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Fresquez v. Baldwin

United States v. Guerrero-Castro

Ashfield v. Thomas

Taurus v. U.S. Dep’t of Social Security

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

Vacancy for Attorney on the Colorado Supreme Court Nominating Commission

On Tuesday, July 10, 2012, the Colorado Judicial Branch announced the opening of the application period for a vacancy on the Supreme Court Nominating Commission.

Applications for the volunteer position, which must be filled by an attorney residing in the Third Congressional District, will be accepted until August 3. There is no political party affiliation requirement for this vacancy.

Each judicial district in Colorado has a nominating commission that selects nominees for appointment by the Governor to county and district judgeships. The Supreme Court Nominating Commission selects nominees for seats on the Supreme Court and Court of Appeals.

Under the Colorado Constitution, the Supreme Court Nominating Commission must comprise eight non-attorneys appointed by the Governor and seven attorneys selected by joint action of the Governor, Attorney General, and Chief Justice. No more than eight members may be of the same political party, each congressional district must be represented by one attorney and one non-attorney, and there is one at-large position. All commissioners are appointed to six-year terms.

Click here for more information about the vacancy and application instructions.

Colorado Court of Appeals: Issue Preclusion Deemed Waived When Asserted for the First Time Two Days Into Trial and 19 Months After Pleas Entered

The Colorado Court of Appeals issued its opinion in Vanderpool v. Loftness on July 5, 2012.

Negligence and Battery—Nonmutual Offensive Issue Preclusion Waiver.

Plaintiff Adam Vanderpool appealed the district court’s judgment on jury verdicts in favor of defendant Jeremy Loftness on plaintiff’s negligence and battery claims. The Court of Appeals affirmed.

Vanderpool and Loftness, both students at Colorado State University, had a physical altercation near campus after attending a party. Loftness hit Vanderpool and claimed self-defense.

The District Attorney charged Loftness with second-degree assault. On September 8, 2009, Loftness pleaded guilty to added charges of attempted second-degree assault (a felony) and third-degree assault (a misdemeanor). His plea to the felony was subject to a stipulation for a deferred judgment. If he successfully fulfilled the conditions of the deferred judgment, in two years the guilty plea would be withdrawn and the charge dismissed with prejudice. His plea to the misdemeanor was unconditional.

Vanderpool filed this civil case against Loftness on August 19, 2009, asserting claims for negligence, assault, battery, and outrageous conduct. The jury found in Loftness’s favor on the negligence and battery claims.

On appeal, Vanderpool argued four points of error: (1) denying his motion for a directed verdict on the battery claim; (2) allowing one of Loftness’s medical expert witnesses to testify; (3) improperly instructing the jury on the elements of the battery claim; and (4) denying his motion for judgment notwithstanding the verdict on the battery claim. The Court rejected all these arguments.

On the second day of trial, Vanderpool’s attorney prematurely moved for a directed verdict on the battery claim on the ground that issue preclusion barred Loftness from denying that he had committed battery on Vanderpool and from claiming self-defense. This is offensive issue preclusion and, because it was asserted by a nonparty to the criminal case, it is “nonmutual.” This requires consideration not just of the four foundational requirements for issue preclusion but also consideration as to (1) whether the party seeking to assert preclusion could have joined the first action; (2) the extent to which the party sought to be stopped had incentive to litigate vigorously the prior case; (3) whether the decision sought to be relied on is inconsistent with another decision involving the party sought to be estopped; and (4) whether the second case affords the party sought to be estopped procedural protections that were unavailable in the first case.

Issue preclusion may be waived. Courts have held that a party waives offensive issue preclusion unless it is timely raised. Here, Vanderpool’s counsel was aware of Loftness’s guilty pleas, but did not assert issue preclusion until the second day of trial, eighteen months after filing the complaint and seventeen months after the guilty pleas. Given that time frame and the lack of any indication that the issue would be raised, the Court found that the trial court did not abuse its discretion in ruling that Vanderpool had waived issue preclusion.

Vanderpool argued it was error for the trial court to not rule on his motion to compel production of documents from one of Loftness’s expert witnesses, Dr. Ramos, or on his motion to prohibit him from testifying. Vanderpool did not preserve this issue for appellate review. He filed motions, but never requested rulings on them before or during trial.

Vanderpool argued that the instruction on battery that the jury had to find “harmful” physical contact should have been “harmful or offensive” physical contact. The Court did not address this argument because Vanderpool’s counsel tendered an elemental instruction on battery substantially identical to the one the court ultimately gave the jury and expressly stipulated to the court’s instruction. In addition, there was no objection to the instruction. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Plain Language of Statute Grants Immunity from Suit to Provider of Services for Developmentally Disabled Adult

The Colorado Court of Appeals issued its opinion in McLaughlin v. Oxley on July 5, 2012.

Negligence—CRS § 13-21-117.5—Immunity.

Defendants Christopher Oxley, Ricardo Sison, and Ability Specialists, Inc. (Ability) appealed the trial court’s holding that they were not immune from the suit brought by plaintiffs Brandon McLaughlin, Michael McLaughlin, and Selena McLaughlin. The Court of Appeals reversed the trial court’s order and the case was remanded with directions.

Michael and Selena McLaughlin retained Ability to provide services to assist in the care of their developmentally disabled son, Brandon, who at the time was 21 years old. As part of the services, Oxley, an employee of Ability, was supervising Brandon at Oxley’s home, while Oxley’s own 7-year-old son, B.O., was present. Brandon and B.O. were left unattended together, during which time Brandon put B.O. in a “spanking position,” pulled down B.O.’s pants, and kissed him. Oxley informed his superiors, who called the police to investigate. The police charged Brandon with sexual assault on a child. The criminal case was dismissed after Brandon was found incompetent to proceed.

Plaintiffs later sued defendants, alleging negligence against Oxley and Ability. Defendants moved for summary judgment on all claims, arguing they were immune from liability under CRS §§ 13-21-117.5(4) and (6). The trial court denied the motion and defendants appealed.

CRS § 13-21-117.5 was enacted to “mitigate the risk of liability to providers to the developmentally disabled to the extent that such mitigation is reasonable and possible.” The Court agreed with defendants that the trial court erred in finding that § 13-21-117.5(6) did not apply. The trial court reasoned that the section applied only to immunize a provider against civil actions initiated by a victim of a developmentally disabled person’s assaultive behavior and not, as here, to a suit regarding harm to the developmentally disabled person. The Court found no support for such an interpretation of the statute. The order was reversed and the case was remanded for entry of summary judgment in favor of defendants.

Summary and full case available here.

Colorado Court of Appeals: Hospital’s Immunity Waived Under Governmental Immunity Act, But Not for Willful and Wanton Conduct; Claims Against Doctor Should Have Been Allowed

The Colorado Court of Appeals issued its opinion in Gray v. University of Colorado Hospital Authority on July 5, 2012.

Public Entity Immunity—Public Employee Immunity—Willful and Wanton Actions.

Charles Gray died while a patient of the University of Colorado Hospital and the University of Colorado Hospital Authority (collectively, the hospital). His family brought a medical malpractice suit against the hospital and some of its employees. Defendants moved to dismiss under the Colorado Governmental Immunity Act (Act), and the trial court granted the motion. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

It was undisputed that Gray suffered from epilepsy and checked into the epilepsy monitoring unit in October 2007 so that the nature and extent of his seizures could be monitored while he was weaned from his anti-seizure medications. This required Gray to stay in the hospital for several nights. Members of his family were assured that Gray would be monitored around the clock by hospital personnel during this process. The hospital later admitted this assurance was false. On the fifth night of the patient’s stay, he was left unattended for about an hour. The patient suffered a seizure, stopped breathing, and died.

The Act provides immunity to all public entities from suit for all actions that lie in tort or that could lie in tort, unless an enumerated exception applies. One exception is applicable in this case: injuries resulting from the “operation of any public hospital.” When immunity is waived, a plaintiff’s recovery is limited to $150,000 per occurrence from one or more public entities. The hospital deposited $150,000 in the court registry and the trial court declared the claim moot.

The Court held that the statute and case law clearly provide that the hospital is immune from suit for its own willful and wanton acts or omissions, or for the willful and wanton acts or omissions of its employees. However, the hospital and the Court recognized that its sovereign immunity was nonetheless waived under the statute. That liability is capped at $150,000 and the claim against the hospital was rendered moot when it deposited that amount into the court registry to be distributed to the patient’s family.

The patient’s family also made numerous allegations against various hospital employees. The Court affirmed the dismissal by the trial court of all those claims except for the claim against Dr. Mark Spitz. Public employees have qualified immunity, not sovereign immunity. Public employees are immune from liability for “injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” The $150,000 cap does not apply to limit a public employee’s liability if his or her acts or omissions were willful and wanton. In this case, the facts alleged support a reasonable inference that Dr. Spitz was aware that his acts or omissions created danger or risk to the patient’s safety and that the doctor acted, or failed to act, without regard to the danger or risk. The dismissal therefore was in error and the case was remanded for proceedings against the doctor.

The Court did not find the conduct of any of the other defendants as alleged in the complaint were of sufficient specificity to support a reasonable inference that they were willful and wanton. Accordingly, the Court affirmed their dismissal.

Summary and full case available here.

Colorado Court of Appeals: Playground Equipment at a Public School Considered “Public Facility” for Purposes of Waiver of Colorado Governmental Immunity Act

The Colorado Court of Appeals issued its opinion in Loveland v. St. Vrain Valley School District RE-1J on July 5, 2012.

Governmental Immunity—Subject Matter Jurisdiction—Injuries on School Playground.

During lunch recess on November 21, 2008, a 9-year-old minor child (the minor) suffered a compound fracture of her left arm when she fell from a playground apparatus. The minor, through her parents and next friends, sued defendants St. Vrain Valley School District RE-1J (school district) and Cathy O’Donnell, alleging claims of premises liability and negligent supervision. The trial court dismissed all claims against defendants. The Court of Appeals affirmed in part and reversed in part, and the case was remanded with directions.

The common law doctrine of sovereign immunity was abrogated by the Colorado Supreme Court in a 1971 trilogy of cases. The General Assembly responded by enacting the Colorado Governmental Immunity Act (Act), which includes an immunity waiver for a “dangerous condition of any public hospital, jail, public facility located in any park or recreation area maintained by a public entity. . . .” Defendants filed a CRCP 12(b)(1) motion, arguing lack of subject matter jurisdiction. The trial court granted the motion, holding that the playground apparatus did not constitute a “public facility” under the Act.

On appeal, plaintiffs argued it was error to conclude the apparatus is not a “public facility” under the Act, and the Court agreed. The Court found the phrase “public facility” ambiguous and therefore looked to rules of statutory construction and legislative history to ascertain intent. The Court found that the apparatus clearly was “public,” given its availability to all, and that it was a “facility,” because it was a man-made, mechanical device installed on a playground for the purpose of providing recreation. The legislative history supported this conclusion. The trial court decision was reversed and remanded on this issue.

Plaintiffs also argued that it was error to conclude that the tort of negligent supervision is not a recognized exception to sovereign immunity under the Act. The Court disagreed and affirmed on this issue. The Court noted that all parties agreed that injuries resulting from negligent supervision were not among the tortious injuries for which sovereign immunity has been expressly waived. Plaintiffs’ arguments for an implied waiver are of no avail because the case law is clear that, absent specific language unambiguously waiving sovereign immunity, implied waiver is disallowed by the Act.

Summary and full case available here.