August 23, 2019

Archives for February 1, 2019

Colorado Court of Appeals: Presumption of Regularity Applied to 20-Year-Old Default Judgment; Error to Place Burden on Plaintiff to Prove Valid Service

The Colorado Court of Appeals issued its opinion in Tallman v. Aune on Thursday, January 24, 2019.

Default Judgment—Presumption of Regularity—Lost or Destroyed Records—C.R.C.P. 60(b)(3).

In 1996, Tallman obtained a default judgment against Aune. About 15 years after the judgment entered, the district court destroyed the case file under its records retention policy. In 2016, Tallman filed writs of garnishment to enforce the judgment and the writs issued. Shortly after, Aune filed a motion to vacate the default judgment and quash the writ of garnishment, asserting that he had not been aware that a judgment had been entered against him and he had not been served. In response, Tallman admitted he could not produce the affidavit of service, but he attached copies of the default motion and default judgment and cited the register of actions entry noting service had been made. The district court granted Aune’s motion to vacate, finding that Tallman failed to establish by clear and convincing evidence that Aune was properly served. It also denied Tallman’s motion to revive the default judgment as moot. Tallman moved for reconsideration, arguing that the presumption of regularity must apply. The district court dismissed the case.

On appeal, Tallman argued that the district court erred in vacating the default judgment and it should have applied the presumption of regularity to presume the default judgment was entered with jurisdiction. Here, though the return of service is no longer available, the register of actions, the limited record, and the 1996 default judgment show service was effectuated, so the presumption of regularity applies. The district court erred in declining to apply the presumption of regularity to the default judgment when it granted the motion to vacate. Further, the burden remained on Aune to overcome the presumption as to the default judgment. At most, Aune provided the district court with an unsworn assertion that he had not been served two decades ago. These inferences do not constitute sufficient evidence to overcome the presumption of regularity. For the same reason, Aune didn’t satisfy his burden of proof to present clear and convincing evidence to set aside the default judgment

Tallman also requested the court of appeals to direct the district court to “grant a nunc pro tunc order for revival of judgment,” arguing he complied with the procedural requirements to revive the default judgment. Because the default judgment must be reinstated, the motion to revive is not moot.

The judgment was reversed and the case was remanded to reinstate it and to consider Tallman’s request to revive the default judment.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Insurer’s Notice of Cancellation Must Be Accurate or It Is Ineffective

The Colorado Court of Appeals issued its opinion in Brown v. American Standard Ins. Co. of Wisconsin on Thursday, January 31, 2019.

Automobile Insurance Coverage Cancellation Requirements—Accuracy of Reason for Cancellation.

In March 2014, Brown purchased motorcycle insurance from American Standard Insurance Co. (American Standard). In August 2014 American Standard mailed Brown a notice that it was cancelling his policy for lack of a driver’s license. In September 2014, Brown was involved in a motorcycle accident. He made a claim against the American Standard uninsured/underinsured motorist coverage. American Standard denied coverage for the accident, and Brown sued. American Standard moved for summary judgment. Brown filed a response to the motion supported by an affidavit attesting that he had a valid Colorado driver’s license both at the time of cancellation and on the date of the accident. The trial court concluded there were no issues of material fact and granted the motion.

Brown appealed the summary judgment. Colorado law requires insurers to strictly comply with statutory and contractual requirements when canceling an automobile policy. A cancellation notice, other than one for nonpayment, must include either a reason for cancellation or a statement that a reason will be provided upon request. It is implicit in these requirements that the stated reason for cancellation be factually accurate. The court of appeals held, as a matter of first impression, that when an insurer provides a reason for cancellation the reason given must be accurate or the notice of cancellation is ineffective. Here, there is a disputed issue of material fact as to whether Brown had a valid driver’s license at the time of cancellation, and the trial court erred in treating the cancellation notice as dispositive on summary judgment.

American Standard contended that its policy cancellation was effective regardless of whether the cancellation reason was inaccurate because Brown didn’t contest the cancellation until well after the accident and not before filing suit. The fact that Brown did not challenge the cancellation before bringing suit on the policy did not constitute a waiver of his right to sue under the policy or a ratification of the allegedly improper cancellation.

The summary judgment was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 1/31/2019

On Thursday, January 31, 2019, the Colorado Court of Appeals issued no published opinions and 20 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, 1/31/2019

On Thursday, January 31, 2019, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Claycomb

Giles v. Alto Partners

Todorova v. Commissioner, SSA

United States v. Ramirez-Plata

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