July 20, 2019

Tenth Circuit: Failure to Request Special Verdicts for Factual Contentions Waived Right to Challenge Sufficiency of the Evidence

The Tenth Circuit Court of Appeals published its opinion in Pratt v. Petelin on Monday, August 19, 2013.

Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. He had operated on Pratt and allegedly removed her entire thyroid and cancerous mass but ignored her post-operative complaints of still feeling a mass in her neck and other symptoms. He refused to order a scan for her so she arranged one on her own and a different surgeon removed her cancerous lymph nodes and thyroid mass. The district court submitted four factual theories of negligence to the jury in one instruction, which returned a general verdict against Dr. Petelin in the amount of $153,000.

Dr. Petelin appealed, claiming three of the four factual contentions submitted to the jury were unsupported by sufficient evidence. Dr. Petelin did not object to the first factual contention, that he failed to remove all thyroid tissue, including a cancerous mass. The Tenth Circuit distinguished this appeal from cases cited by Petelin where a new trial was ordered because a jury may have relied on an incorrect or unsupported legal theory. Here, the jury was given one correct legal theory — medical negligence — and given four possible bases for finding Petelin liable. Because Petelin did not request a special verdict form for each factual contention, he waived his right to challenge the sufficiency of the evidence. The burden is on the appellant to request a special verdict where insufficiency of the evidence is asserted regarding some, but not all, of the factual theories in a jury instruction. To hold otherwise would be unfair to plaintiffs as a new trial could have been avoided by the defendant requesting special verdicts. The court affirmed.

Colorado Court of Appeals: Travelers Property Casualty Company of America v. Farmers Insurance Exchange

The Colorado Court of Appeals issued its opinion in Travelers Property Casualty Company of America v. Farmers Insurance Exchange on June 10, 2010.

Summary Judgment—Additional Insured Coverage for Liability that Arises out of a Commercial Tenant’s Use of Leased Premises.

This case involved a provision in a commercial liability insurance policy that provides for “additional insured” coverage for liability “arising out of” a commercial tenant’s use of leased premises. The Court of Appeals concluded there was no coverage provided to the landlord or its property manager and therefore affirmed the trial court’s order granting summary judgment to defendant (Farmers) and against plaintiff (Travelers).

Cherry Knolls 99, LLC (Cherry Knolls) owned a shopping center. It entered into a commercial lease agreement to lease suite 290 to a lessee. The lease was signed by Cherry Knolls’s property manager, ACF Property Management (ACF). The original lessee later assigned its interest to another entity (tenant), which operated a restaurant there.

Tenant obtained a commercial liability insurance policy from Farmers that covered the leased premises, and named “Cherry Knolls c/o ACF Property Management, Inc.” as an additional insured. Cherry Knolls and ACF also obtained their own commercial liability insurance policy issued by Travelers.

A customer of tenant went to eat at the restaurant and parked her car in the shopping center’s parking lot. After eating, while walking in the parking lot to her car, customer slipped on ice, fell, and was injured. She sued Cherry Knolls and ACF.

Travelers accepted defense and tendered a request for defense and indemnity to Farmers. After Farmers declined to defend or indemnify, Travelers settled with customer. Travelers then brought this action for contribution against Farmers. Both parties moved for summary judgment. The trial court ruled there was no coverage for customer’s injuries under Farmers’ policy and granted Farmers’ motion. Travelers appealed and the Court affirmed.

Farmers’ policy listed Cherry Knolls and ACF as additional insureds, but Farmers’ policy insured only the leased premises (suite 290), not the common areas such as the parking lot. The Court determined that there was no duty to defend or indemnify, because the customer’s injury did not arise “out of the ownership, maintenance or use” of the restaurant. The customer needed to show that the use of the restaurant was integrally related to her activities and the injury at the time of the accident. The Court held that customer’s patronage of the restaurant was not integrally related to her injury at the time she slipped and fell in the parking lot. She could have had the identical injury without visiting the restaurant.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

Tenth Circuit: Opinions, 6/2/10

The Tenth Circuit on Wednesday issued two published opinions and eight unpublished opinions.


In Dobbs v. Wyeth Pharmaceuticals, the Court vacated the district court’s grant of partial summary judgment to Respondent Wyeth, who Petitioner Dobbs alleged failed to warn of a suicide risk on the label of antidepressant Effexor. “After the district court’s decision, the Supreme Court established a new standard for a federal preemption defense against a failure to warn claim,” necessitating the district court to 1) afford the parties an opportunity to submit additional evidence on remand, and 2) reconsider the preemption issue in light of the new standard. See Wyeth v. Levine, 129 S. Ct. 1187, 1198 (2009), for new the standard.

In Wilkerson v. Shinseki, the Court affirmed the district court’s grant of summary judgment as to Petitioner Wilkerson’s claim of discrimination under the Rehabilitation Act; Petitioner was “deemed not ‘otherwise qualified'” for the position due to his obesity and diabetes and the VA could have made no reasonable accommodation to allow him to continue in the position. Additionally, the Court affirmed the district court’s grant of summary judgment as to Petitioner’s age discrimination claim under the ADEA due to the VA’s non-discriminatory, non-pretextual reason for Petitioner’s reassignment. Lastly, the Court affirmed the district court’s denial of Petitioner’s motion for leave to amend his complaint to allege a Privacy Act violation; the disclosure of medical records by the VA, while having an adverse effect on Petitioner, was not intentional or willful.


United States v. Moran

Miller v. Smithkline Beacham Corporation

Gobert v. Province

McBride v. Market Street Mortgage

United States v. Larsen

DeWitt v. Astrue

Ahmed v. Holder, Jr.

Duron-Amador v. Holder, Jr.

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).