August 19, 2019

Archives for June 4, 2013

Criminal Omnibus Bill, Workers’ Compensation IME Bill, and More Signed by Governor

As the final days of the 2013 Legislative Session wind down, Governor Hickenlooper continues to sign bills into law. To date, he has signed over 350 bills over several areas of law.

On Friday, May 24, 2013, the governor signed 5 bills into law. These included a bill about staffing for corrections officers (SB 13-210) and a bill creating an economic gardening pilot project in the Office of Economic Development (HB 13-1003).

The governor signed 26 bills into law on Saturday, May 25, 2013. Five of them are summarized here.

  • SB 13-137 – Concerning System Improvements to Prevent Fraud in the Medicaid Program and, In Connection Therewith, Employing Advanced Data Analytics, by Sen. Ellen Roberts and Rep. Clarice Navarro. The bill directs the Department of Health Care Policy and Financing to solicit requests for information regarding the use of predictive analytics in the Medicaid program.
  • SB 13-229 – Concerning Changes to Statutory Provisions Related to Criminal Proceedings, by Sen. Lucia Guzman and Rep. Elena Kagan. The bill addresses several areas of law related to criminal proceedings.
  • SB 13-246 – Concerning Creation of a Task Force to Study Discovery Costs in Criminal Cases, by the Joint Budget Committee. The bill creates the Discovery Task Force to study the feasability of conducting discovery electronically in criminal cases.
  • SB 13-248 – Concerning the Authority of the Attorney General or a District Attorney to Enforce Subpoenas for Consumer Protection Violations Against Persons Located Outside Colorado, by Sen. Irene Aguilar and Rep. Kevin Priola. The bill clarifies the authority of the District Attorney and Attorney General in issuing and enforcing subpoenas against out-of-state parties for certain financial violations.
  • SB 13-249 – Concerning Procedures Regarding Independent Medical Examiners’ Reports in Workers’ Compensation Cases, by Sen. Lois Tochtrop and Rep. Angela Williams. The bill requires the Division of Workers’ Compensation to review IME reports within 5 days, notify parties of the report, and request correction of any deficiencies.

Governor Hickenlooper was busy on Tuesday, May 28, 2013, when he signed 73 bills into law. Although they cannot all be summarized here, there are several bills of interest to environmental, criminal, real estate, and marijuana law attorneys in Colorado briefly summarized here.

  • Environmental – Several bills, including SB 13-219 regarding meth lab remediation and SB 13-223 regarding the sunset of the noxious weeds advisory committee, will be of interest to environmental law practitioners.
  • Criminal – Many of the bills signed into law this legislative session dealt with specific provisions of criminal law. SB 13-007 eliminates the repeal of the Colorado Commission on Criminal and Juvenile Justice. SB 13-227 prevents victims of rape who are impregnated by their rapist from having to have contact with their baby’s father. HB 13-1210 provides criminal defendants with a right to counsel during plea negotiations.
  • Real Estate – Bills regarding homeowners’ associations were prolific this legislative session. Some of the HOA bills signed on May 28 include HB 13-1276 regarding debt collections and HB 13-1277 regarding licensing of common interest community managers.
  • Marijuana – The legislature scurried to implement regulations in order to legalize marijuana pursuant to Amendment 64. Several bills were signed regarding marijuana regulations, including SB 13-283 to implement the Amendment 64 consensus regulations and HB 13-1317 to implement the Amendment 64 majority recommendations.

For a complete list of the governor’s 2013 legislative decisions, click here.

Tenth Circuit: Unpublished Opinions, 6/3/13

On Monday, June 3, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Penry

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

Colorado Court of Appeals: Dismissal for Failure to Prosecute Inappropriate Where Party Awaited Judgment

The Colorado Court of Appeals issued its opinion in Hudak v. Medical Lien Management, Inc. on Thursday, May 23, 2013.

Failure to Prosecute.

Defendant Medical Lien Management (MLM) appealed the district court’s judgment dismissing with prejudice its counterclaims against plaintiff Tammy Hudak for failure to prosecute. The Court of Appeals reversed the judgment and the case was remanded with directions.

In 2006, Hudak was injured in an automobile accident. Because she was unable to pay for her medical treatment, she entered into “lien” agreements with various medical providers to obtain that treatment. Pursuant to those agreements, she received medical care in exchange for the providers’ right to place liens on any settlement or judgment funds she might obtain in a personal injury action against the alleged tortfeasor, and collect from her any amounts owed above that recovered in a settlement or judgment.

After obtaining a $47,000 settlement in her personal injury action, Hudak filed a motion for declaratory and interpleador relief, naming MLM as an interpleader defendant. MLM, which had accumulated or been assigned a lien balance of $40,430.70, filed a breach of contract, unjust enrichment, and account-stated counterclaims against Hudak for any amount owed after distribution of the interpleaded funds.

MLM filed a motion for summary judgment, claiming priority over other interpleador defendants to the interpleaded funds, and a right to judgment on its counterclaims. The trial court determined that because MLM had second priority, it was entitled to recover only $20,353.75 of the interpleaded funds. The district court never ruled on the part of MLM’s summary judgment motion relating to its counterclaims and, without notice to MLM, entered an order closing the case.

Thirteen months later, MLM filed a renewed motion for summary judgment with respect to its counterclaims. The district court, acting through a different judge, dismissed the counterclaims for failure to prosecute. On appeal, MLM argued this was error, and the Court agreed.

To reverse a decision to dismiss for failure to prosecute, the Court must find that the trial court’s decision was manifestly arbitrary, unreasonable, or unfair. Here, the case was inactive for thirteen months. MLM argued that it was awaiting a ruling by the district court on its pending motion for summary judgment and this was a mitigating circumstance or reasonable excuse for delay. The Court agreed that the burden of following up on motions generally is on the party filing them. However, MLM had done all that was necessary to put its dispositive summary judgment before the court and was not obliged to renew the motion or remind the court that it needed to be ruled on. Under these circumstances, it was error for the trial court to exercise its discretion to dismiss MLM’s case. The judgment was reversed and the case was remanded for reinstatement and further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Loans to Personal Injury Plaintiffs During Pendency of Lawsuit Violated UCCC

The Colorado Court of Appeals issued its opinion in Oasis Legal Finance Group, LLC v. Suthers, Colorado Attorney General on Thursday, May 23, 2013.

Declaratory Judgment—Partial Summary Judgment—“Loans” Under the Colorado Uniform Consumer Credit Code.

In this declaratory judgment action, plaintiffs Oasis Legal Finance Group, LLC, Oasis Legal Finance, LLC, and Oasis Legal Finance Operating Company, LLC (collectively, Oasis), and plaintiff Funding Holding, Inc., doing business as LawCash, appealed the district court’s grant of partial summary judgment to defendants John W. Suthers, in his capacity as Attorney General of the State of Colorado, and Laura E. Udis, in her capacity as the Administrator of the Uniform Consumer Credit Code (collectively, Administrator). The Court of Appeals affirmed the judgment.

Oasis and LawCash contracted with people who had pending personal injury claims against third-parties (tort plaintiffs) to pay them money to assist them while their cases were pending. In exchange, the tort plaintiffs agreed that, once their personal injury claims resulted in a settlement or judgment, they would pay certain sums to Oasis or LawCash from the net litigation proceeds.

In the Oasis contractual payment schedule, the amount due increased over time. If the amount due couldn’t be covered from the net litigation proceeds, then the tort plaintiffs had to pay Oasis only the net proceeds received, if any. If nothing was recovered, then Oasis recovered nothing.

In the LawCash contracts, once the tort plaintiffs received the net litigation proceeds, they were required to repay LawCash the funded amount plus a “monthly user fee” of 3.5% of the funded amount, compounded monthly. LawCash also received a lien and security interest in the proceeds of their lawsuits. As with Oasis, the tort plaintiffs didn’t have to pay more than the net litigation proceeds and, if nothing was recovered, LawCash received nothing.

In 2010, the Administrator advised Oasis and LawCash that these types of transactions were loans made in violation of the Uniform Consumer Credit Code (UCCC). Oasis and LawCash filed this action, seeking a declaration that they had purchased contingent rights to receive a portion of the proceeds of personal injury lawsuits and did not make loans or create debt and thus were not subject to the UCCC. The Administrator moved for and was granted partial summary judgment that the transactions were loans governed by the UCCC.

On appeal, Oasis and LawCash argued that the transactions were purchases of litigation proceeds and not loans under the UCCC. The Court was not persuaded. The UCCC definition of “loan” includes “[t]he creation of debt by the lender’s payment of or agreement to pay money to [a] consumer.” The Colorado Supreme Court has endorsed a broad reading of the UCCC’s definition of “loan.” A debt would include a contingent debt under such a broad reading. It was undisputed that the funds paid by Oasis and LawCash to tort plaintiffs created contingent debt. Therefore, they were loans within the meaning of the UCCC. The judgment was affirmed.

Summary and full case available here.