April 24, 2019

Archives for February 4, 2019

Colorado Court of Appeals: Colorado Court Must Recognize and Give Effect to South Carolina Liquidation Order

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

Interlocutory Appeal—Uniform Insurers Liquidation Act—Federal Liability Risk Retention Act—Enforcement of South Carolina Order.

The Garrous sued Shovelton, among others, for medical malpractice. Shovelton’s malpractice insurer is Oceanus, a South Carolina industrial insured captive corporation formed as a risk retention group. In 2017, a South Carolina court issued an order commencing liquidation proceedings against Oceanus that, among other things, imposed an injunction and an automatic stay of proceedings against the insurer, its assets, and its policyholders. Shovelton moved to stay the proceedings based on the South Carolina order. The district court denied the motion, and Shovelton moved for C.A.R. 4.2 certification of the court’s order denying the stay.

On appeal, Shovelton contended that the district court erroneously denied his motion for stay because Colorado and South Carolina are reciprocal states under the Uniform Insurers Liquidation Act (UILA), so Colorado must give full faith and credit to any injunction order in a liquidation proceeding. Because Colorado and South Carolina are reciprocal states under the UILA, Colorado must recognize South Carolina’s order. In addition, the Federal Liability Risk Retention Act of 1986 governs risk retention groups and requires Colorado to honor the South Carolina order. South Carolina has jurisdiction over Oceanus and its policyholders, including Shovelton. The district court erred in denying the motion for stay as to Shovelton.

The order was reversed and the case was remanded with directions to stay the proceedings as to Shovelton and to enter any further orders deemed necessary and appropriate as to the remaining parties.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Electronically Stored Photograph Qualifies as “Physical Evidence” for Purposes of Tampering Statute

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

Order of Dismissal—Tampering with Physical Evidence—Electronic Documents are Physical Evidence.

Rieger had been charged in a separate case with numerous offenses in connection with an alleged assault on his girlfriend. While in jail, Rieger corresponded with his girlfriend through Telmate, an electronic messaging system that allows detainees to communicate with people outside the jail. Through Telmate, the girlfriend forwarded a picture to Rieger of bruises on her arms that he had allegedly caused during the assault. Rieger asked her to remove the picture because it could incriminate him. She removed the picture from the Telmate account.

A District Attorney’s investigator reviewed the Telmate account, which led to a charge in this separate case of solicitation to commit tampering with physical evidence. After a preliminary hearing, the district court dismissed the case, finding that the definition of physical evidence did not apply to the electronic record under C.R.S. § 8-8-610.

On appeal, the People contended that the district court improperly dismissed the case because it erred in interpreting the definition of “physical evidence” to exclude electronic documents. C.R.S. § 18-8-610(2) defines physical evidence as including articles, objects, documents, records, or other things of physical substance. The court of appeals concluded it is clear that electronically stored documents or information fall within the ambit of “physical evidence.” Further, electronically stored, digital images qualify as physical evidence for purposes of the tampering with physical evidence statute. It was therefore error to dismiss on the grounds that electronically stored images are not physical evidence.

Rieger argued that even if the photo was physical evidence, the dismissal should be affirmed because the electronic duplicate uploaded to Telmate is not physical evidence. The court perceived no reason why a duplicate of a photograph is not physical evidence for purposes of the tampering statute.

Rieger further argued that the removal of the image does not evince a specific intent to make the image unavailable at trial. Here, Rieger asked the girlfriend to remove the photograph because it could incriminate him. In addition, this evidence was being reviewed in relation to a probable cause determination after a preliminary hearing, which is a low standard to meet. The evidence was sufficient to induce a person of ordinary prudence and caution to entertain a reasonable belief that Rieger intended to deprive the prosecution of the ability to use the picture. Probable cause supported the charge of tampering with physical evidence. Therefore, the case should not have been dismissed.

The order of dismissal was reversed and the matter was remanded with directions to reinstate the case.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Maintenance Payor’s Good Faith Decision to Retire Does Not Automatically Require Grant of Motion to Modify

The Colorado Court of Appeals issued its opinion in In re Marriage of Thorstad on Thursday, January 24, 2019.

Post-Dissolution Action—C.R.S. § 14-10-122(2)—Modification of Maintenance upon Retirement—Rebuttable Presumption—C.R.S. § 14-10-114.

The parties were divorced in 2002. They had a separation agreement that required husband to pay wife maintenance and reserved jurisdiction for the court to modify maintenance. Husband retired from his job, in part due to health problems. He requested termination of his maintenance obligation based on C.R.S. § 14-10-122(2)(a), (b), and (c), which establish a rebuttable presumption that a decision to retire was made in good faith when certain conditions are met. These subsections did not exist in their present form when the parties entered into their separation agreement. The magistrate granted the request. Wife sought review in the district court, which denied her petition.

On appeal, wife argued that the trial court erred when it relied on C.R.S. § 14-10-122 instead of C.R.S. § 14-10-114 when granting husband’s motion. C.R.S. § 14-10-122 was the correct statute for the trial court to use. However, if a payor satisfies the retirement provisions in subsections -122(2)(b) and (c) that the decision to retire was made in good faith, the payor’s good faith retirement becomes one of the factors for the court to consider in analyzing whether under subsection -122(1)(a) the payor can show a substantial and continuing change of circumstances that makes the existing maintenance order unfair. In doing so, the court must also consider the factors listed in the 2001 version of C.R.S. § 14-10-114(3) and (4) (the new version of C.R.S. § 14-10-114 is applicable to petitions filed on or after January 1, 2014). Here, the trial court erred because it treated husband’s good faith decision to retire as conclusive in resolving his motion; the order failed to address whether husband’s retirement and declining health were continuing and changed circumstances that rendered his obligation unfair; and the trial court did not consider husband’s and wife’s needs and abilities as required by the 2001 version of C.R.S. § 14-10-114(3) and (4). Further, the separation agreement did not reserve jurisdiction over the question of what effect husband’s retirement would have on his maintenance obligation. Thus, the separation agreement did not require the trial court to use C.R.S. § 14-10-114 to resolve husband’s motion instead of C.R.S. § 14-10-122(1)(a), (2)(a), (2)(b), and (2)(c).

The order was reversed and the case was remanded for the court to (1) determine whether husband’s circumstances have changed in such a substantial and continuing way as to make the existing terms of the maintenance obligation unfair, and (2) consider wife’s request for appellate attorney fees under C.R.S. § 14-10-119.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/1/2019

On Friday, February 1, 2019, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Amaya

Cowan v. Hunter

United States v. Simion

Staples v. United States

Vallejo v. Commissioner, SSA

United States v. McCoy

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