October 21, 2018

Archives for April 27, 2018

Bills Signed Enacting Uniform Trust Code, Creating Civil Rape Shield Law, Helping Preserve Family Units with Parents with Disabilities, and More

On Wednesday, April 25, 2018, Governor Hickenlooper signed nine bills into law. On Thursday, April 26, 2018, he signed five bills into law. To date, he has signed 183 bills and sent one bill to the Secretary of State without a signature. The bills signed Wednesday and Thursday include a bill enacting the Colorado Uniform Trust Code, a bill enacting a civil rape shield statute, a bill amending family preservation safeguards for parents with disabilities, a bill requiring free-standing emergency rooms to post certain consumer notices, and more. The bills signed Wednesday and Thursday are summarized here.

  • SB 18-071 – “Concerning an Extension of the Repeal of the State Substance Abuse Trend and Response Task Force, and, in Connection Therewith, Making an Appropriation,” by Sens. Cheri Jahn & Larry Crowder and Rep. Daneya Esgar. The state substance abuse trend and response task force is scheduled to be repealed effective July 1, 2018. The bill extends the repeal for 10 years to September 1, 2028.
  • SB 18-146 – “Concerning a Requirement that a Freestanding Emergency Department Inform a Person who is Seeking Medical Treatment about the Health Care Options that are Available to the Person, and, in Connection Therewith, Making an Appropriation,” by Sens. John Kefalas & Jim Smallwood and Reps. Lang Sias & Jonathan Singer. The bill requires a freestanding emergency department (FSED), whether operated by a hospital at a separate, off-campus location or operating independently of a hospital system, to provide any individual that enters the FSED seeking treatment a written statement of patient information, which an FSED staff member or health care provider must explain orally.
  • SB 18-154 – “Concerning a Requirement for a Local Juvenile Services Planning Committee to Devise a Plan to Manage Dually Identified Crossover Youth,” by Sen. Rhonda Fields and Rep. Joseph Salazar. The bill requires local juvenile services planning committees to devise a plan to manage dually identified crossover youth. A dually identified crossover youth is a youth involved in both the juvenile justice system and the child welfare system. The plan must contain descriptions and processes.
  • SB 18-169 – “Concerning Offenses Against Witnesses in Noncriminal Proceedings,” by Sen. Bob Gardner and Rep. Terri Carver. The clarifies that the offenses of intimidating a witness or victim and retaliation against a witness or victim apply to witnesses in criminal, civil, and administrative proceedings.
  • SB 18-180 – “Concerning the Colorado Uniform Trust Code,” by Sen. Bob Gardner and Reps. Cole Wist & Matt Gray. The bill enacts the Colorado Uniform Trust Code and repeals many sections of the Colorado Probate Code.
  • SB 18-187 – “Concerning Transferring Marijuana Fibrous Waste for the Purpose of Producing Industrial Fiber Products,” by Sens. Vicki Marble & Jack Tate and Rep. Jeni James Arndt. The bill gives the state licensing authority rule-making authority to address conditions under which a medical or retail marijuana licensee is authorized to transfer marijuana fibrous waste to a person for the purpose of producing only industrial fiber products.
  • HB 18-1104 – “Concerning Family Preservation Safeguards for Parents with Disabilities,” by Rep. Jessie Danielson and Sens. Dominick Moreno & Kent Lambert. The bill establishes that family protection safeguards for a parent or prospective parent with a disability are critical to family preservation and the best interests of the children of Colorado. These safeguards include that a parent’s disability must not serve as a basis for denial or restriction of parenting time or parental responsibilities in a domestic law proceeding, that a parent’s disability must not serve as a basis for denial of participation in a public or private adoption, or for denial of foster care or guardianship, and that the benefits of providing supportive parenting services must be considered by a court when determining parental responsibilities, parenting time, adoption placements, foster care, and guardianship.
  • HB 18-1132 – “Concerning the Amount that the Department of Corrections is Required to Reimburse a County or City and County for the Confinement and Maintenance in a Local Jail of any Person who is Sentenced to a Term of Imprisonment in a Correctional Facility,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. Under current law, the General Assembly establishes in its annual general appropriations bill the amount that the Department of Corrections is required to reimburse any county or city and county for a portion of the expenses and costs incurred by that county or city and county for the confinement and maintenance in a local jail of any person who is sentenced to a term of imprisonment in a correctional facility. The bill states that, to assist the General Assembly in determining such rate of reimbursement, each county and each city and county shall report to the joint budget committee the average cost of confining and maintaining persons in a local jail for more than 72 hours after each such person has been sentenced to the custody of the department.
  • HB 18-1147 – “Concerning the Continuation of the Regulation of People who Modify the Weather, and, in Connection Therewith, Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies,” by Reps. Joann Ginal & Kim Ransom and Sen. Don Coram. The bill continues the regulation of people who modify the weather.
  • HB 18-1211 – “Concerning Controlling Medicaid Fraud,” by Reps. Cole Wist & Mike Foote and Sens. Irene Aguilar & Jim Smallwood. The bill establishes the medicaid fraud control unit in the department of law. The unit is responsible for investigation and prosecution of medicaid fraud and waste, as well as patient abuse, neglect, and exploitation. Prior to initiating a criminal prosecution, the unit must consult with the district attorney of the judicial district where the prosecution would be initiated.
  • HB 18-1237 – “Concerning the Continuation of the Requirements Regarding the Preparation of a Cost-Benefit Analysis as Administered by the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations Contained in the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Tracy Kraft-Tharp & Kevin Van Winkle and Sen. Tim Neville. The bill implements the recommendations of the Department of Regulatory Agencies’ sunset review and report on requirements and procedures regarding the preparation of a cost-benefit analysis.
  • HB 18-1243 – “Concerning Enactment of a Civil Rape Shield Law,” by Reps. Mike Foote & Cole Wist and Sens. Don Coram & Rhonda Fields. Under Colorado criminal law there is a rape shield law that presumes that evidence of a victim’s sexual conduct is irrelevant and not admissible except for evidence of the victim’s prior or subsequent sexual conduct with the defendant or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts were or were not committed by the defendant. The bill creates a similar presumption in a civil proceeding involving alleged sexual misconduct. If a party wants to introduce sexual conduct evidence, it must file a confidential motion with the court at least 63 days prior to trial. Prior to ruling on the motion, the court shall conduct an in camera hearing and allow the parties and alleged victim to attend and be heard.
  • HB 18-1275 – “Concerning the Repeal of the Craig Hospital License Plate Donation Requirement,” by Rep. Jeff Bridges and Sen. Daniel Kagan. Current law requires an applicant to make a donation to Craig Hospital in order to be issued a special Craig Hospital license plate. The bill repeals the $20 donation requirement.
  • HB 18-1282 – “Concerning a Requirement that a Health Care Provider Include Certain Identifying Information on all Claims for Reimbursement for Health Care Services,” by Reps. Susan Lontine & Lang Sias and Sens. Jim Smallwood & John Kefalas. The bill requires an off-campus location of a hospital to apply for, obtain, and use on claims for reimbursement for health care services provided at the off-campus location a unique national provider identifier, commonly referred to as NPI. The off-campus location’s NPI must be used on all claims related to health care services provided at that location, regardless of whether the claim is filed through the hospital’s central billing or claims department or through a health care clearinghouse. It also requires all medicaid providers that are entities to obtain and use a unique NPI for each site at which they deliver services and for each provider type that the department of health care policy and financing has specified.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Court of Appeals: Plaintiff Not Allowed to Treat Denial of Liability as Denial of Coverage

The Colorado Court of Appeals issued its opinion in Pena v. American Family Mutual Insurance Co. on Thursday, April 19, 2018.

Uninsured Motorist—Denial of Liability—Denial of Coverage—CRCP 12(b)(5) Dismissal.

Peña was involved in a three-car collision. Both Peña and Garner, another driver involved in the accident, were insured by defendant American Family Mutual Insurance Company (American Family). Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. American Family denied Peña’s claim, asserting that Garner was not responsible for the damage to her vehicle and Garner had coverage at the time of the accident, so Peña’s uninsured motorist property damage (UMPD) provision would not apply.

Peña sued Garner and American Family in separate actions. In this action, she sued American Family under C.R.S. § 10-3-1115 for the unreasonable delay and denial of benefits due under the UMPD provisions of her policy. American Family moved to dismiss, arguing that Peña’s complaint failed, as a matter of law, to state a claim upon which relieve could be granted because Peña’s UMPD coverage applied only if American Family, as Garner’s insurer, denied coverage, rather than liability, for Garner in connection with the accident. The district court agreed with this interpretation of Peña’s policy and the distinction made between denial of coverage and denial of liability. But because American Family had only denied liability and the issue of liability had not yet been determined, the court concluded that Peña’s UMPD coverage did not apply at that point and the lawsuit was premature. The district court dismissed the case without prejudice.

On appeal, Peña contended that the district court erred in dismissing her case. She argued that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. Because American Family denied liability but not coverage, her policy’s UMPD provision was inapplicable, and there were no benefits that could have been delayed or denied. Peña had no claim as a matter of law. The district court’s determination that Peña’s lawsuit was premature was in error because Peña will never have a claim against American Family under her policy for unpaid UMPD benefits from the accident; Garner’s insurer has not denied coverage, which is the circumstance that would trigger Peña’s UMPD coverage. If Garner is ultimately found liable, Peña will have a claim against American Family under the liability provisions of his policy.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Colorado Wage Claim Act Does Not Categorically Bar Plaintiff from Piercing Corporate Veil

The Colorado Court of Appeals issued its opinion in Paradine v. Goei on Thursday, April 19, 2018.

Wage Claim Act—Corporations—Piercing the Corporate Veil.

Plaintiff served as the chief financial officer and vice president of administration for Aspect Technologies, Inc. (Aspect), a corporation. Defendant Goei was the chief executive officer. Plaintiff sued Goei and Aspect, raising a claim under the Colorado Wage Claim Act (the Act), for fraud, and for breach of contract. He alleged that defendants owed him unpaid wages. The trial court granted Goei’s motion for judgment on the pleadings and dismissed the three claims against him individually with prejudice.

On appeal, plaintiff asserted that he was not barred from piercing the corporate veil and holding Goei personally liable under the Act. The Act does not categorically bar a plaintiff from piercing the corporate veil to hold an individual liable for unpaid wages. Plaintiff’s fraud claim made allegations in support of his request that the trial court pierce the corporate veil to impose liability on Goei, and plaintiff’s breach of contract claim incorporated the allegations in the fraud claim. Because plaintiff pleaded sufficient facts to establish a plausible claim that plaintiff could pierce the corporate veil, the trial court erred when it granted Goei’s motion to dismiss on the pleadings.

The judgment was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 4/26/2018

On Thursday, April 26, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Pittman v. Berryhill

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