August 22, 2019

Archives for October 15, 2014

Colorado Court of Appeals: Named Insured Means All Persons Named in Policy for UM Coverage Purposes

The Colorado Court of Appeals issued its opinion in Johnson v. State Farm Mutual Automobile Insurance Co, Inc. on Thursday, October 9, 2014.

Uninsured or Underinsured Motorist Coverage—Scope of Waiver.

Daphne Satriano helped her roommate, plaintiff, buy a car. When plaintiff’s insurance policy expired, Satriano called her insurance company (State Farm) to obtain a policy for the car. Plaintiff was not present during the call. Both plaintiff and Satriano were listed as “named insured” and Satriano signed a form waiving uninsured or underinsured motorist (UM/UIM) coverage. Plaintiff did not sign the form, nor was he aware of it. Satriano told plaintiff he was “fully covered.” The written policy, mailed to Satriano, did not state whether UM/UIM coverage had been waived.

Plaintiff was seriously injured in an accident. The at-fault driver was underinsured. State Farm paid the policy limits of the UM/UIM coverage from a second policy that Satriano had on her car, but refused to pay under the policy on plaintiff’s car. Plaintiff sued State Farm, and the trial court found that Satriano had acted as agent for plaintiff in waiving the UM/UIM coverage and the driver was bound by that waiver.

The Court of Appeals reversed, holding that State Farm did not show that plaintiff expressly waived UM/UIM coverage on his car’s policy. The general rule in Colorado is that automobile liability insurance policies must contain coverage for bodily injury damages caused by uninsured or underinsured motorists unless “the named insured” waives such coverage in writing. The Court found it was unambiguous that a “named insured” under the UM/UIM statutes means all persons listed in a policy. Even if the term were not unambiguous, the legislative history and policies for UM/UIM coverage support the conclusion that a waiver of UM/UIM coverage is effective only as to each named insured that has expressly waived it. The Court then examined common law agency principles and concluded that one named insured may not act as an agent for another in waiving UM/UIM coverage on the other’s behalf unless the agent acts with express actual authority from the other. The judgment was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error to Include Nurse in Physician Malpractice Instruction

The Colorado Court of Appeals issued its opinion in Gasteazoro v. Catholic Health Initiatives Colorado, Inc. on Thursday, October 9, 2014.

Medical Negligence—Including Nurses in Pattern Exercise of Judgment Instruction—Expert Testimony Objections.

Plaintiff arrived at the emergency room of the defendant hospital. Nurse Yeager was the first person to attend to her. Plaintiff complained of headache, nausea, dizziness, and neck pain. She had high blood pressure and low blood oxygen saturation. Defendant Dr. Overholt diagnosed a cervical sprain and ordered her discharged. Nurse Scolardi processed the discharge. Plaintiff’s blood pressure remained elevated.

Ten days later, plaintiff was found unresponsive in her home, following a hemorrhagic stroke resulting from a ruptured aneurysm in her brain. The stroke caused serious injuries.

Plaintiff alleged her treatment in the emergency room was below the standard of care in three ways: (1) Nurse Yeager did not properly triage her; (2) Dr. Overholt failed to recognize that her symptoms were consistent with an impending cerebral vascular incident (CVA) and did not order tests that would have detected a CVA or an aneurysm; and (3) given plaintiff’s unstable vital signs, Nurse Scolardi did not follow the hospital’s policies when processing her discharge. Following trial, a jury returned a verdict in favor of the hospital and Dr. Overholt.

On appeal, plaintiff argued it was error to include the words “or nurse” following every reference to “a physician” in the pattern instruction CJI-Civ. 15:4. The Court of Appeals dismissed plaintiff’s argument that a court may not depart from CJI, because CJI does not cover all possible legal principles that may be applicable in a case. In addition, the instruction at issue includes in its Notes on Use that it is “generally applicable to members of other healing arts.”

Plaintiff also argued that although no Colorado case has addressed whether a nurse should be included in a professional judgment instruction, decisions discussing why the instruction is proper for physicians weigh against giving the instruction as to nurses. The Court held that the trial court did not abuse its broad discretion by including nurses in the exercise-of-judgment instruction because: (1) the issue was unresolved in Colorado cases; (2) language in CJI-Civ. supports extending the instruction to healthcare professionals other than physicians; (3) one Colorado case and several statutes classify nurses as medical professionals; and (4) the hospital’s policy vesting nurses with the prerogative of challenging a physician’s order refers to “good clinical judgment” in carrying out “authorized physician orders.”

Plaintiff further argued that the trial court erred in overruling plaintiff’s objections to expert testimony from a neurosurgeon as violating a stipulation or improperly opining on the standard of care for a specialist in emergency medicine. The Court found that the neurosurgeon properly analyzed plaintiff’s presentation and history as they related to his specialty and offered opinions within that specialty. Therefore, the trial court did not abuse its discretion. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer

Colorado Court of Appeals: Treasurer Did Not Undertake Diligent Inquiry as to Actual Residence for Notice

The Colorado Court of Appeals issued its opinion in Cordell v. Klingsheim on Thursday, October 9, 2014.

Tax Lien—Deed—Treasurer—Diligent Inquiry—Notice—Jurisdictional.

Plaintiffs Carl and Wanda Cordell were record owners of a tract of land in La Plata County (Tract 1). Carl Cordell was also the record owner of an adjoining tract (Tract 2). The Cordells failed to pay the taxes owed on the properties, and Brenda Heller purchased the tax liens on the properties. Heller assigned the tax liens to Klingsheim, who later requested and received deeds from the La Plata County Treasurer to the two properties after the Treasurer sent notice to the Cordells. Upon learning of the Treasurer’s deeds, the Cordells filed the present action seeking, as relevant here, a declaratory judgment that the Treasurer’s deeds are void, which the trial court granted.

On appeal, Klingsheim contended that the trial court erred in concluding that the Treasurer had failed to undertake diligent inquiry in attempting to determine Carl’s and Wanda’s residences. The Treasurer sent the notices, by certified mail, to 705 N. Vine, Farmington, New Mexico, which was the address listed for them in the county tax rolls. The return receipts from the mailings, however, indicated that the notices were not delivered to plaintiffs, nor were they delivered to 705 N. Vine. Rather, the receipts indicated that the notices were delivered to Cleo Cordell at 703 N. Vine, and the box for “agent” on the return receipts had not been checked. Despite this discrepancy, the Treasurer conducted no further inquiry to determine whether 705 N. Vine was indeed plaintiffs’ residence.

Such inaction after learning that the notices were not delivered either to plaintiffs or to a person claiming to be their agent does not constitute “diligent inquiry” in attempting to determine their residences. Because a treasurer’s “full compliance” with the requirements of CRS §39-11-128 is jurisdictional, the trial court properly set aside the deeds as void.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Identification of Drugs On Website Insufficient as Proof Under CRE 803(17)

The Colorado Court of Appeals issued its opinion in People v. Hard on Thursday, October 9, 2014.

Hearsay Testimony—CRE 803(17)—Illegal Sentence.

State Trooper Blake Hancey pulled over defendant’s car after seeing that defendant was speeding and not wearing a seat belt. Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. A jury found defendant guilty of possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam), failure to present proof of insurance, and speeding.

On appeal, defendant contended that the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com. Before taking defendant to the police station, Hancey accessed the website Drugs.com to identify the pills found on defendant. Information from Drugs.com does not meet the requisite criteria of necessity and reliability to be admissible under CRE 803(17). Another available and more reliable method for identifying the pills would have been to submit them to the Colorado Bureau of Investigation for chemical testing, which was not done in this case. The district court therefore erred in admitting the hearsay evidence obtained from that website.

Because Drugs.com was insufficient to prove identity of some of the pills as oxycodone beyond a reasonable doubt and there was no other evidence to identify these pills, the conviction for possession of a schedule II controlled substance was vacated and the People cannot retry defendant on that charge. However, because defendant told Hancey that she had taken Xanax (alprazolam) earlier that day and that she had prescriptions for the pills he had found in her pockets, a rational fact-finder could have found beyond a reasonable doubt that defendant possessed alprazolam. Therefore, defendant was subject to retrial on the charge for possession of that substance.

On cross-appeal, the People contended that the district court imposed an illegal sentence by suspending half of the mandatory minimum fine for defendant’s conviction for failure to present proof of insurance. The sentencing statute permits a court to suspend half of the $500 mandatory minimum fine for failure to present proof of insurance if the defendant shows that he or she has obtained insurance. Here, at the sentencing hearing, defendant told the court that her car had been auctioned off and that she was no longer driving. Nothing in the plain language of the statute provides an exception where a defendant represents that she has relinquished ownership of her car or is not currently driving. The sentence was therefore illegal.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 10/14/2014

On Tuesday, October 14, 2014, the Colorado Supreme Court issued two published opinions.

In re Simpson v. Cedar Springs Hospital

People v. Sotelo

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

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