June 25, 2019

Tenth Circuit: Opinions, 6/28/10

The Tenth Circuit on Monday issued five published opinions and five unpublished opinions.


In Glover v. Mabrey, the Court vacated the previous order and judgment and substituted a new order and judgment in its place. Petitioner’s claim of retaliation was affirmed by the Court, which rejected Respondents’ claims of qualified immunity. However, Petitioner’s claims under the First and Fourteenth Amendments were rejected.

In Cahill v. American Family Mutual Insurance Co., the Court affirmed the district court’s decision that Petitioner’s claims against his insurer were time barred. All but one of Petitioner’s claims were inadequately preserved or presented; the remaining claim addressed equitable tolling. However, the Court found that the statute of limitations period need not have been tolled until insurer informed Petitioner that it had not paid benefits required by law.

In United States v. Simpson, the Court affirmed the district court’s denial of a motion to suppress evidence of narcotics found in Petitioner’s vehicle. The Court determined that the continued detention beyond the scope of the initial traffic stop was reasonable under the circumstances; Petitioner’s “prior criminal conviction for drug trafficking, his extreme nervousness, and the fact that he provided inconsistent and evasive answers to queries about his travel plans together provided reasonable suspicion to justify extending a legitimate traffic stop to allow further questioning and a canine sniff of his automobile.”

In United States v. Martinez, the Court affirmed the district court’s conviction of Petitioner for conspiring to defraud the State of New Mexico, mail fraud in furtherance of that scheme, and the imposed restitution amount. Petitioner’s claim that his sentence is unreasonable was rejected by the Court; any disparities between Petitioner’s sentence and the sentences of his co-conspirators are explained by the differing plea agreements. Additionally, the amount of restitution owed need not be offset by the value of Petitioner’s property subject to criminal forfeiture or by the amount of federal and state income taxes paid on his share of fraudulent proceeds.

In United States v. Quaintance, the Court affirmed the district court’s denial of Petitioners’ motion to dismiss, upholding their conviction for conspiracy and possession with intent to distribute marijuana. Petitioners did not deny their involvement with the drug, “but countered that they are the founding members of the Church of Cognizance, which teaches that marijuana is a deity and sacrament;” any prosecution of Petitioners would therefore be precluded by the Religious Freedom Restoration Act (RFRA). The RFRA prevents the government from substantially burdening sincere religious exercises absent countervailing compelling government interest. However, the evidence and totality of the circumstances overwhelmingly suggested that no sincere religious belief existed and served only as a front to Petitioners’ commercial, secular drug business.


Parker v. Sirmons

United States v. Mendez

United States v. Rodriguez-Castenera

United States v. Akers

Russell v. Chase Investment Services Corp.

Case Law: Specialty Restaurants v. Nelson, Workers’ Comp Beneficiary Entitled to Additional Lump Sum Under 2007 Amendment

The Colorado Supreme Court issued its opinion in Specialty Restaurants Corp. v. Nelson on May 10, 2010.

Workers’ Compensation—Lump Sum Payments—CRS § 8-43-406—2007 Amendment Prospective—Procedural Versus Substantive Amendments—Prior Judicial Precedent.

The Supreme Court affirmed the judgment of the court of appeals that a beneficiary of a workers’ compensation award for permanent and total disability (PTD) is entitled to an additional lump sum payment up to the maximum aggregate available, pursuant to a 2007 amendment to CRS § 8-43-406. The Court held that the Colorado General Assembly’s amendment is procedural in nature and is prospectively applied.

Stephanie Nelson suffered an admitted work-related injury in 1990, was awarded PTD benefits in 2002, and subsequently received a lump sum payment in the amount of the statutory maximum aggregate available at the time of her injury. In 2007, the general assembly increased the maximum aggregate lump sum available, and Nelson requested an additional lump sum payment under the new statutory cap.

Nelson is entitled to the additional lump sum payment, because an employee’s election of a lump sum payment functions as an advance of an award of PTD benefits to which the employee already is entitled, thereby altering only the method of distribution of an existing award. A lump sum payment does not create, eliminate, or modify the parties’ existing rights or liabilities, which are determined as of the date of injury but vest only on entry of an award of benefits. Accordingly, the lump sum provision is procedural in nature and applies prospectively to requests for lump sum payments filed subsequent to the amendment’s date of enactment, irrespective of the date of the employee’s injury. Because the court of appeals’ opinion in Eight Thousand West Corp. v. Stewart, 546 P.2d 1281 (Colo.App. 1976), does not constitute a prior judicial interpretation of particular language that has remained unchanged throughout subsequent amendments, it is inapposite and overruled to the extent it is inconsistent with this opinion.

Summary, full case, and all May 10, 2010, opinions also available here.

CBA-CLE recently hosted the 2010 Spring Workers’ Compensation Law Update. Homestudies are available in three formats: MP3 download, video on-demand, and audio CD.

Case Law: Tenth Circuit Opinions, 5/6/10

The Tenth Circuit on Thursday issued one published opinion and no unpublished opinions.

In LaAsmar v. Phelps Dodge Corporation, the Court affirmed the district court’s decision overruling the defendant’s decision to deny the LaAsmars accidental death and dismemberment benefits after their son died in a one-car accident while intoxicated. A cross-appeal by the LaAsmars for attorney fees and pre-judgment interest was denied because they did not file a motion to amend the judgment with the district court.

Legislation: Governor Signs HB 10-1168, Regarding Insurance Payouts for Accident Victims

Yesterday, Governor Ritter signed HB 10-1168 (.pdf), which requires that an accident victim be “made whole” before a health insurance company that has paid benefits due to injury caused by the accident can be repaid.

The bill was introduced by Pat Steadman (Senate-D) and Claire Levy (House-D).