June 25, 2019

Archives for May 30, 2014

Hon. Richard Gabriel Awarded Highest Honor from Denver Bar Association

This is Part 1 of a series of posts about the DBA Award winners. The article originally appeared in the May 2014 issue of The Docket.

GabrielLawyer. Judge. Trumpet Player. These are just a few of the words that describe Richard Gabriel—and none of them comes close to doing him justice. The two-dimension descriptions don’t catch what makes Judge Gabriel so unique—because he’s also the kid from Brooklyn with big dreams, an avid music lover, a grateful mentor, a social enthusiast, a proud family man, and most of all, a consummate professional.

“As a lawyer, you have your credibility and integrity. Once you lose that, you can’t get it back,” Gabriel says. “It’s critically important to take the high road regardless of what your opponent does.”

Gabriel is clearly the rare example of someone who lives by his words. He was the first generation in his family to attend college—at Yale, no less. After graduation, he went on to law school at the University of Pennsylvania. Gabriel spent more than 18 years at Holme Roberts & Owen before being appointed a judge on the Colorado Court of Appeals.

“I’ve been extremely fortunate to have people and opportunities that opened doors for me,” Gabriel says. “And that’s something, as a mentor, I’ve tried to do for others—it’s part of giving back.”

Citing Dan Hoffman as one of his great mentors, Gabriel says that he gave him the “case of a lifetime.” He worked with Hoffman on a Michael Jackson copyright case, in which a Denver woman claimed she had written Jackson’s hit “Dangerous.” This led to more opportunities for Gabriel to mix his two passions: the law and music. After working on another case for Sony years later, Gabriel was asked to be Local Counsel for Colorado, and later became the Lead National Counsel for the Recording Industry Association of America in its lawsuits against illegal file-sharers.

A strong sense of discipline makes Gabriel successful not only in the law, but also in music. He stills plays his trumpet an hour every day, and can often be found around town playing gigs with groups such as the Colorado Wind Ensemble.

Throughout his impressive career, Gabriel has been a consistent voice advocating for increased professionalism and civility. He explains: “On this side of the bench, I can confirm that Rambo lawyering doesn’t work. You just lose credibility.”

If you need proof that the highest levels of professionalism and civility build a lasting career, look no further than Award of Merit winner Judge Gabriel. He has impacted the legal community in countless ways, from his involvement in the bar association to his renowned work ethic and reputation.

“I’m very surprised and very touched,” Gabriel said of the honor.

Surprised, Judge Gabriel? We can’t think of anyone who is more deserving.

 

 

Nominees Selected for Sedgwick County Court Judgeship

On Thursday, May 29, 2014, the Colorado State Judicial Branch announced the selection of three nominees for appointment to the bench of the Sedgwick County Court in the Thirteenth Judicial District. The three finalists are Pamela Kler of Julesberg, Tara Neugebauer of Ovid, and Kelly Lowery of Omaha, Nebraska. The appointed nominee will fill a vacancy created by the resignation of Hon. Tawna Holmstedt, effective April 30, 2014.

The governor has 15 days from May 30 in which to appoint one of the nominees to the bench. Comments regarding any of the nominees may be submitted to the governor at gov_judicialappointments@state.co.us. Contact information for the nominees is available on the State Judicial website.

Colorado Supreme Court: Defendant Not in Custody When He Made Inculpatory Statements

The Colorado Supreme Court issued its opinion in People v. Begay on Tuesday, May 27, 2014.

Miranda Advisement—Custodial Interrogation—Suppression of Statements.

In this interlocutory appeal, the People challenged the trial court’s order suppressing statements defendant made while waiting for a “show-up” identification and before having received a Miranda advisement,. The trial court trial noted that whether a defendant is in custody is an objective assessment; however, under the totality of the circumstances, a reasonable person would not have believed that he or she was free to leave that situation.

The People conceded that defendant’s questioning constituted interrogation, but they contended that he was not in custody until he was formally arrested. They argued that the trial court erred by applying the wrong legal standard when it analyzed whether defendant felt “free to leave” instead of whether a reasonable person in defendant’s position would have believed himself to be deprived of his freedom to a degree associated with a formal arrest.

The Supreme Court agreed, finding that defendant was not in custody for the purposes of Miranda until he was formally arrested and read his Miranda rights. The trial court erred by suppressing the statements after applying the standard governing seizure under the Fourth Amendment instead of custody under the Fifth Amendment. Accordingly, the trial court’s suppression order was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Insurer May Offset Amount of Uninsured Motorist Benefits by MedPay Benefits Already Paid

The Colorado Court of Appeals issued its opinion in Calderon v. American Family Mutual Insurance Co. on Thursday, May 22, 2014.

Setting Off Uninsured/Underinsured Motorist Benefits—“Coverage” Versus “Benefit.”

Calderon sustained multiple injuries in an automobile accident with an uninsured driver, requiring him to seek medical treatment and miss work. Calderon was insured by American Family Mutual Insurance Co. (American Family) under an insurance policy providing a total of $300,000 in uninsured/underinsured motorist (UM/UIM) coverage and $5,000 in medical payment (MedPay) coverage.

After the accident, American Family paid Calderon $5,000 under the policy’s MedPay provision. Calderon filed a claim under the UM/UIM provision, but the parties could not agree on the benefit amount due. Calderon sued for breach of contract, violation of CRS § 10-3-115, and breach of the duty of good faith and fair dealing.

A jury returned a verdict of $68,338.97 in favor of Calderon, including $34,394.65 for past medical expenses. The trial court reduced the amount awarded by $5,000 to set off the medical payments Calderon had already received. After adding prejudgment interest, judgment was entered against American Family in the amount of $77,459.

On appeal, Calderon argued he was entitled to the full amount awarded by the jury because CRS §§ 10-4-609(1)(c) and -635(3)(b)(II) prohibited the trial court from setting off his UM/UIM benefits by the amount of MedPay benefits he received. The Court of Appeals disagreed.

The Court noted that setoff is not allowed where the benefits are impaired, but it is allowed to prevent a double recovery. Calderon argued that the statutory sections expressed a legislative intent to prevent insurance companies from using a MedPay setoff to reduce UM/UIM benefits. The Court found that Calderon was incorrectly equating the term “coverage” with the term “benefit.” The sections prohibit a reduction in coverage by a setoff from another coverage but not a benefit. “Coverage” refers to the upper limit for which an insurer may be liable; “benefit” refers to the actual payments made under the policy. Here, Calderon’s UM/UIM coverage was not reduced (he was awarded $68,338.97 with coverage limits of $300,000), but the amount he was awarded was properly reduced by the $5,000 he had already received.

Calderon also argued that the setoff provision was void as against public policy. The Court found that the insurance policy did not dilute, condition, or limit his statutorily mandated coverage and therefore was not void as against public policy. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Inmate Correctly Charged with Possessing Contraband Under Language of Code of Penal Discipline

The Colorado Court of Appeals issued its opinion in Dawson v. Executive Director of the Colorado Department of Corrections on Thursday, May 22, 2014.

Prison Disciplinary Conviction.

In September 2012, Dawson was assisting another inmate with a legal matter. On his way back to the living area, Dawson was carrying the other inmate’s legal papers, but was not accompanied by the inmate. Prison officials charged Dawson with unauthorized possession, a class 2 violation of the Code of Penal Discipline (Code).

The hearing officer determined that the legal papers became contraband when Dawson possessed them outside the presence of the inmate to whom the papers belonged. He was found guilty of unauthorized possession, and the conviction was upheld on administrative review.

Dawson challenged his disciplinary conviction in district court under CRCP 106(a)(4). The district court affirmed. On appeal, Dawson argued that his conduct did not violate the Code. The Court of Appeals disagreed.

Review was limited to whether prison officials exceeded their jurisdiction or abused their discretion. A disciplinary decision must be upheld if there is some evidence to support it.

The Code defines “contraband” as any item that an offender is not specifically authorized to have in his or her possession. The regulation clearly covers possessing another inmate’s legal documents outside the presence of the owner. Because the evidence supported that Dawson possessed contraband in violation of the Code, Dawson was guilty of unauthorized possession and the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Announcement Sheet, 5/29/2014

On Thursday, May 29, 2014, the Colorado Court of Appeals issued no published opinion and 43 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 5/29/2014

On Thursday, May 29, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Bellman v. i3Carbon, LLC

Romero v. Colvin

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.