October 21, 2018

Archives for February 14, 2018

Colorado Court of Appeals: Workers’ Compensation Claimant Need Only Prove Either Wage Loss or Disability for TPD

The Colorado Court of Appeals issued its opinion in Montoya v. Industrial Claim Appeals Office on Thursday, February 2, 2018.

Workers’ Compensation—Medical Incapacity—Temporary Partial Disability.

Claimant worked as an interior designer for Ethan Allen Retail, Inc. Her pay was based entirely on commissions. Claimant suffered admitted work-related injuries. Although she was neither given work restrictions nor medically limited in her ability to work, her medical appointments caused her to be absent from the showroom floor and not be able to meet potential and current clients. Claimant sought temporary partial disability benefits (TPD) in a workers’ compensation action. She testified that the absences caused her to lose more than $20,000 in commission earnings. The administrative law judge (ALJ) awarded claimant TPD benefits to compensate her for the commissions she lost while attending medical appointments.

A panel of the Industrial Claim Appeals Office (Panel) set aside the award of TPD benefits, reasoning that disability benefits are only available if a claimant demonstrates both medical incapacity and temporary loss of wage earning capacity. Here, because the ALJ had found that claimant had no work restrictions and was able to perform her job duties, the Panel held she did not establish the requisite “medical incapacity” prong of disability and therefore, as a matter of law, was not entitled to receive TPD benefits.

On appeal, claimant contended that the Panel’s interpretation of “disability” was too narrow. The court of appeals concluded that although the concept of disability incorporates both “medical incapacity” and “loss of wage earnings,” a claimant need not prove both components to establish entitlement to disability benefits under the Workers’ Compensation Act. The court then found that the evidence presented amply supported the ALJ’s finding that claimant’s wage loss was attributable to her work-related injury. The Panel erred in setting aside the ALJ’s decision.

The Panel’s decision was set aside and the case was remanded with instructions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: City Had Power to Convey Park Not Dedicated to Public Use

The Colorado Court of Appeals issued its opinion in Save Cheyenne v. City of Colorado Springs on Thursday, February 2, 2018.

Land Exchange—Home Rule Cities.

The Colorado Springs City Council adopted a resolution approving a land exchange between the City, on the one hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak Railway Company; the COG Land & Development Company; and PF, LLC (collectively, the Broadmoor) on the other hand. As relevant here, a 189.5 acre parcel within Cheyenne Park known as “Strawberry Fields” was transferred to the Broadmoor for construction of a private equestrian center on an 8.5 acre building envelope within the parcel. As a condition of the transfer, the Broadmoor is required to allow continued public access to Strawberry Fields, with the exception of the land within the building envelope. In exchange, the Broadmoor transferred to the City more than 300 acres of land and trail easements to be added to the City’s park system.

Plaintiff, a local nonprofit corporation, filed suit, seeking a declaration that the resolution authorizing the land exchange was null and void, and injunctive relief preventing the land exchange. It also alleged a zoning violation. The City and the Broadmoor moved to dismiss under C.R.C.P. 12(b)(5), for failure to state any claims, and under C.R.C.P. 12(b)(1), arguing that the zoning challenge was unripe. The district court granted the motion.

The court of appeals first rejected defendants’ motion to dismiss plaintiff’s appeal based on mootness. Plaintiff argued that the resolution was an ultra vires act of the City Council because Cheyenne Park had previously been dedicated as a public park, and as a consequence, the City holds the park in trust for the public and cannot convey the park’s land. The Court concluded that no valid statutory dedication of Cheyenne Park occurred, and that any common law dedication was abrogated. The City Council had the power to convey Strawberry Fields when it authorized the land exchange.

Plaintiff next argued that under C.R.S. § 31-15-713(1)(a) no conveyance of the parkland could be made unless it was authorized by a vote in a public election. Colorado Springs is a home rule city and therefore in matters of local concern, a home-rule ordinance supersedes a conflicting state statute. The Colorado Springs City Code provides that land exchanges are to be reviewed by the City Council and approved by resolution. The Code provision applies, and the City was not required to hold an election before making the land transfer.

The court also rejected plaintiff’s argument that the resolution and land exchange violated article XI, section 2 of the Colorado Constitution, which prohibits transfers of city property without consideration. Here, the City received consideration for the parkland.

Plaintiff next contended that the City Council’s resolution approving the land exchange violates the City Charter. The Charter sections at issue only regulate granting franchises and leases on public property and city-owned parklands. The transaction here did not create a lease or franchise on City property, and these provisions do not apply to the conveyance.

Lastly, the court concluded that plaintiff’s claim of zoning violations is not yet ripe for review. The record does not demonstrate that a final zoning decision has been made regarding the permitted uses of Strawberry Fields. The district court properly dismissed this claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Airport Shuttle Drivers Are Not “Interstate Drivers” for Overtime Purposes

The Colorado Court of Appeals issued its opinion in Brunson v. Colorado Cab Co., LLC on Thursday, February 2, 2018.

Colorado Minimum Wage Act—Colorado Wage Claim Act—Colorado Wage Order 31—Summary Judgment—Interstate Drivers.

Brunson is a shuttle van driver who transports passengers to and from Denver International Airport but does not drive out of state. He claimed that Shamrock Charters, Inc. and Colorado Cab Company, LLC (collectively, Shamrock) failed to pay him overtime compensation in violation of the Colorado Minimum Wage Act and the Colorado Wage Claim Act. The Acts are implemented by Colorado Wage Order 31, which requires covered employers to pay overtime. As pertinent here, the Wage Order exempts “interstate drivers” from its provisions. Neither the Acts nor the Wage Order defines the term “interstate drivers.”

The district court granted summary judgment in favor of Shamrock. It found that the Wage Order’s language closely follows the federal Motor Carrier Act (MCA) exemption of the Fair Labor Standards Act (FLSA) and construed “interstate drivers” in accordance with federal interpretation. Thus, the district court concluded that “interstate drivers” includes drivers involved in interstate commerce even if their work is entirely within the state. The court further concluded that Brunson was an interstate driver and was, as a matter of law, exempt from the Wage Order’s overtime pay requirements.

On appeal, Brunson contended that the federal interpretation of the MCA exemption does not apply to his state claims. The court of appeals determined that federal and state overtime pay exemptions are not identical or substantially identical. Further, the Colorado Department of Labor has published clear persuasive evidence of its intent to provide greater protections than those under FLSA. Therefore, the court concluded that federal case law’s interpretation of “interstate drivers” does not apply to Brunson’s state claims. Having determined that federal case law is not persuasive authority as to the meaning of “interstate driver,” the court relied on the Department’s interpretation of its own regulation in its Advisory Bulletin and construed the term “interstate drivers” to apply only to drivers whose work takes them across state lines. Thus, Shamrock did not “plainly and unmistakably” demonstrate that Brunson fell within the Wage Order’s exemption.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/14/2018

On Wednesday, February 14, 2018, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Medical Lien Management, Inc. v. Dampier

Aronstein v. Thompson Creek Metals Co., Inc.

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

Colorado Court of Appeals: When Liability Based on Respondeat Superior, Settlement with Agent is Setoff Against Jury Verdict for Principal

The Colorado Court of Appeals issued its opinion in Marso v. Homeowners Realty on Thursday, February 8, 2018.

Respondeat Superior—Agent—Amendment of Answer—Affirmative Defense—Setoff—Settlement—Statutory Prejudgment Interest.

Dilbeck was employed by or associated with Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners Realty, Inc. (Coldwell) and acted as the Marsos’ agent in their purchase of a house. Two years after the purchase, the Marsos discovered that uranium tailings had been used as fill material, creating a potential health hazard. The Marsos filed a complaint against Dilbeck and Coldwell alleging negligence against Dilbeck and respondeat superior liability against Coldwell. Before the scheduled trial date, the Marsos settled with Dilbeck for $150,000, inclusive of interest. The jury was instructed to determine the total amount of damages sustained by the Marsos and was not informed of the amount of the settlement with Dilbeck. The jury returned a verdict of $120,000 against Coldwell. In post-trial proceedings, the trial court set off the settlement payment of $150,000 against the $120,000 jury verdict, resulting in a zero recovery for the Marsos. Because the settlement payment exceeded the jury verdict, the court entered judgment in favor of Coldwell and later entered a cost award against the Marsos of approximately $30,000.

On appeal, the Marsos contended that the court abused its discretion in allowing Coldwell to amend its answer to assert the affirmative defense of setoff over the Marsos’ timeliness objection. Because Coldwell did not obtain the settlement agreement until shortly before trial and the Marsos had no right to rely on the absence of a setoff, the amendment did not result in legal prejudice to the Marsos. Under these circumstances, the court did not abuse its discretion in allowing Coldwell to pursue its setoff defense.

The Marsos next argued that the trial court erred when it set off the settlement payment against the jury verdict. When a party’s liability is based entirely on respondeat superior, a settlement with the agent is setoff against the jury verdict entered against the principal. Therefore, the trial court did not err in this regard.

The Marsos also contended that the trial court erred when it set off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Statutory prejudgment interest accrues on the jury verdict before the setoff. Here, the court must calculate the interest that accrued on the jury’s verdict from the date of the Marsos’ injury to the date of Dilbeck’s settlement payment and add it to the jury verdict

The judgment and cost award in Coldwell’s favor was reversed, and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: ALJ Properly Applied “Major Purpose” Test to Determine Whether Organization was Political Party

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Colorado Citizens Protecting Our Constitution on Thursday, February 2, 2018.

Election Law—Campaign Finance—Major Purpose Test for Political Committee.

Colorado Citizens Protecting our Constitution (Colorado Citizens) paid for a radio advertisement that supported a candidate for state senate. Campaign Integrity Watchdog, LLC (Campaign Integrity) filed a complaint with the Colorado Secretary of State (Secretary) alleging that Colorado Citizens had not registered as a political committee as required by article XXVIII of the Colorado Constitution and the Fair Campaign Practices Act. Colorado Citizens and the Secretary moved for summary judgment before the administrative law judge (ALJ). Colorado Citizens argued it was not a political committee because it did not have the “major purpose” of supporting or opposing candidates. The Secretary added that it could not be a political committee because it did not make or receive contributions. The motions were denied.

Following a hearing on the merits, the ALJ found that Colorado Citizens’ spending on political candidates only accounted for little more than one-third of its total spending, while the majority of its spending involved political issues. He concluded it was not a political committee because it did not have the major purpose of nominating or electing political candidates.

On appeal, Campaign Integrity argued that the ALJ misapplied the major purpose test and erred in holding that Colorado Citizens was not a political committee.  The court of appeals first reaffirmed that the “major purpose” test was the correct test to be applied. To determine an organization’s major purpose, a court can (1) examine its central organizational purpose, or (2) examine the organization’s spending to determine whether the preponderance of expenditures are for express advocacy or candidate contributions. The court agreed with the ALJ that Colorado Citizens’ statement of its organizational purpose was unhelpful and that analyzing Colorado Citizens’ spending activity was the appropriate method. The court determined that the record supported the ALJ’s determination that the organization was not a political committee because, based on the amount of its spending on political advocacy for candidates, it did not have the major purpose of nominating or electing candidates.

Campaign Integrity also argued that when applying the major purpose test, the ALJ should have considered Colorado Citizens’ spending in a calendar year, instead of a consecutive 12-month period. The records the judge examined were those subpoenaed by Campaign Integrity. It was up to Campaign Integrity to provide the additional records if it had wanted the judge to consider them. In addition, there is no legal authority requiring a calendar year analysis.

Campaign Integrity further argued that the ALJ improperly excluded evidence from his analysis that Colorado Citizens had made $76,000 in candidate contributions during March and April of 2015. The Court found the judge did not err because there was no evidence regarding other expenditures made during that time period, so the record was incomplete as to Colorado Citizens’ total spending in those months. Moreover, even if the $76,000 were included, the total candidate spending would still have constituted less than 50% of Colorado Citizens’ overall candidate-related expenditures, or less than what would constitute the central purpose for which Colorado Citizens was created.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Nonparty at Fault Statute Does Not Preclude Evidence of Subsequent Providers’ Negligence

The Colorado Court of Appeals issued its opinion in Danko v. Conyers, M.D. on Thursday, February 8, 2018.

Torts—Medical Malpractice—Evidence—Pro Rata Liability—Non-Party Fault—Costs.

Dr. Conyers performed carpal tunnel surgery on Danko. He did not order a post-operative biopsy to detect possible infection and ultimately released Danko from further care. Danko sought a second opinion from Dr. Scott, who performed a minor procedure on Danko’s wrist and later diagnosed her with an infection. Subsequently, Danko saw Dr. Savelli, who recommended a regimen of antibiotics and periodic surgical debridement of infected tissue. Two weeks later, Danko consulted Dr. Lindeque, who amputated Danko’s forearm. Danko filed a complaint alleging that Dr. Conyers negligently failed to detect an infection resulting from the surgery, which led to amputation of her forearm. The jury found Dr. Conyers liable and awarded damages of $1.5 million.

On appeal, Dr. Conyers challenged the trial court’s exclusion of his evidence that physicians who treated Danko after the surgery were at fault for the amputation. Dr. Conyers did not seek to apportion fault between himself and the other providers. Instead, he sought to admit evidence of their negligence as a superseding cause of Danko’s amputation. Such evidence is admissible under C.R.S. § 13-21-111.5 (the nonparty at fault statute) even if a nonparty at fault has not been designated. Thus, the part of the trial court’s ruling excluding evidence that was based on C.R.S. § 13-21-111.5(b)(3) was incorrect. But the trial court also based its ruling on Restatement (Second) of Torts § 457, which provides an exception to the liability of initial physicians for harm from subsequent physicians’ extraordinary misconduct, a superseding cause. Here, the trial court acted within its discretion in excluding evidence of the other providers’ fault, under both Restatement § 457 and CRE 403, because Dr. Conyers had not presented evidence sufficient to invoke the extraordinary misconduct exception. Further, the trial court did not err in instructing the jury consistent with this ruling.

On cross-appeal, Danko challenged the trial court’s denial of certain costs, including jury consulting expenses. Danko made a settlement offer under C.R.S. § 13-17-202(1)(a)(I), which Dr. Conyers did not accept. The verdict exceeded the amount of the offer. A party may recover jury consulting expenses when that party made a statutory settlement offer that was rejected, and did better than the offer at trial. Here, the trial court improperly denied costs for jury consulting and related travel expenses.

The judgment was affirmed. The costs award was affirmed in part and reversed in part, and the case was remanded to increase Danko’s costs award.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/13/2018

On Tuesday, February 13, 2018, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Gatewood v. VA Government Compensation

United States v. Rodriguez

Campos v. Mantech International Corp.

Woesler v. Utah Valley University

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