Welcome to the Colorado Litigation Report

The Colorado Litigation Report is an online resource that tracks and summarizes Colorado appellate court decisions affecting civil and commercial law. Summaries answer three questions: what was the case about, what legal rules does it stand for, and how is it important? Each post answers all three questions in 750 characters or less. Posts are engaging, tell the story of the case, and summarize the legal result — in about 30 seconds. In a busy world, the CLR’s micro-summaries provide premium information and significant time-value to any practice or business.

When it comes to Colorado Supreme Court coverage, the CLR is the most comprehensive in the state. The CLR provides a single place to find original jurisdiction and certiorari grants. And the CLR is the only place to find which justice/s would have granted issues that were denied.

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In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)

Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA209.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9408&courtid=2

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Filed under Administrative, Commissions or Boards, Discovery, Government, Interlocutory Review

Scott Gessler, as Secretary of State v. Colorado Common Cause and Colorado Ethics Watch, 2014CO44 (June 16, 2014)

When the financial burden of state regulation of issue committees approaches or exceeds the value of the financial contributions to a political effort, such regulations may unconstitutionally burden freedom of association. Samson v. Buescher. Colorado’s Constitution art. XXVIII sec. 2(10)(a)(II) and CRS 1-45-108 establish a $200 threshold for registering issue committees and for reporting contributions and expenditures retro- and prospectively (Limits). Samson found the Limits to be unconstitutional as applied to a small-scale issue committee. To address the confusion caused by Samson, Gessler promulgated CCR 1505-6:4.27 (now Rule 4.1), setting the threshold at $5000, applied prospectively only. The Court set aside Rule 4.1 as contrary to the still-valid Limits, which could be constitutionally applied in cases dissimilar from Samson’s $2000 in contributions.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC783.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9396&courtid=2

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Filed under Administrative, Constitutional, Elections, Separation of Powers

Jason Kelly MD and Mauricio Waintrub MD v. Vasilios Haralampopoulos, 2014CO46 (June 16, 2014)

While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC889.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9398&courtid=2

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Filed under Evidence, Experts, Personal Injury

Nicole S. Hanlen, Lynn D. Ussery, James H. Joy, June Marie McNees, Kelly L. McNees, Karen Marquez, Meagan Gabaldon, and David J. Rodenbaugh, v. Scott Gessler as Colorado Secretary of State, and Karen Long, as Clerk and Recorder for Adams County; Jim F. Candelarie, as Clerk and Recorder for the City and County of Broomfield; and Frances E. Mullins, as Designated Election Official for Adams 12 Five Star School District, 2014CO24 (April 7, 2014)

“Employ every economy consistent with thoroughness, accuracy and reliability.” – Arthur C. Nielsen. An election official failed to notice a candidate was ineligible until after ballots were printed. The Secretary issued an emergency Rule of general applicability allowing election officials to declare the candidate ineligible and direct that votes are invalid and must not be counted. The Court held the Rule invalid. First, it conflicts it conflicts with a statute allowing votes for a disqualified candidate in a partisan election to be counted. Second, it usurps the court’s express authority to determine eligibility issues after the ballot is certified. The Court’s appellate jurisdiction was not based on the election code, however. Rather, the Court invoked CAR 21 sua sponte and it limited its decision to determining the validity of the Rule under the APA, not the validity of the election.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA306.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9312&courtid=2

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Today the Colorado Judicial Branch launches a Web site providing online educational resources about the judiciary and rule of law

The Colorado Supreme Court issued the following press release today launching an online resource center to increase the public’s understanding and access to Colorado’s Judicial System and the rule of law:

DENVER – The Colorado Judicial Branch today launched www.cjlc.org, a Web site dedicated to the Ralph L. Carr Colorado Judicial Learning Center and other online educational resources about the judiciary and rule of law. “I am very excited about the cjlc.org site and showcasing what I believe are some of the best educational resources available in any courthouse anywhere in the country,” said Colorado Supreme Court Chief Justice Nancy E. Rice. “I personally invite you, your family and friends to check out the site and then come visit the building and experience the Judicial Learning Center in person.”

The Web site features a video welcome message from the Chief Justice, as well as a virtual tour and description of the Judicial Learning Center’s 10 exhibits. The site also provides educators with downloadable lesson plans from the Colorado Department of Education and Supreme Court’s Courts in the Communityprogram.

Housed in the Ralph L. Carr Colorado Judicial Center (2 E. 14th Avenue, Denver, CO 80203), the 3,800-square-foot Judicial Learning Center is an innovative and engaging educational environment designed to provide visitors, young and old alike, with a better understanding of the laws and freedoms that govern our citizens, state and country. The Judicial Learning Center is open Monday-Friday 8 a.m. to 5 p.m. and admission is always free.

The Learning Center offers numerous interactive and standalone exhibits that teach the importance of the rule of law, how the state and federal court systems operate and even offers interactive role-playing opportunities. A group of judges, lawyers, educators and others spent more than 3 years designing and building the learning center.

Visitors to the Website may also book a guided tour of the Ralph L. Carr Colorado Judicial Center for groups of 15 or more. Guided tours include a visit to one or more of the courtrooms (as available), discussion about the Colorado court system and the Colorado Judicial Branch, a tour of the Ralph L. Carr Colorado Judicial Center and its public art, a visit to the Colorado Supreme Court Library, and time in the Colorado Judicial Learning Center.

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Erin A. Young, individually and on behalf of and as next friend of C.Y.; and C.Y., a minor, through his parent Erin A. Young, v. Brighton School District 27J, 2014CO 32 (May 19, 2014)

“When sidewalks are not available, pedestrians are forced to share the street with motorists, access to public transportation is restricted, and children might not have safe play areas.” – US DOT.  Here, a child slipped on a puddle in a walkway running between a public school and its playground. Examining the CGIA, the Court rejected the argument that the “icy walkway waiver” was mutually exclusive of the “recreation waiver.” Rather, each waiver provides a potential avenue for waiver of tort liability, any one of which might suffice. Next it held that, unlike a playground or a parking lot, the walkway is not a “public facility” because: 1) it lacked an intrinsic recreational connection with the playground; 2) it did not broadly promote the purpose of the playground; and 3) excluding walkways like this one was consistent with the legislature’s intent. The school was immune from suit.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC543.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9360&courtid=2

 

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Filed under Defenses, Government, Immunity, Personal Injury, Schools, Torts

Marilyn Daniel v. City of Colorado Springs, 2014CO34 (May 19, 2014).

“My dream is to have the park system privatized, and run entirely for profit by corporations. Like Chuck E. Cheese.” – Ron Swanson, Parks and Recreation. People can sue governments for injuries occurring at a 1) “public” 2) “facility” 3) “located in” a 4) “recreation area.” The Court defined those 4 terms as follows: 1) accessible and benefiting the public; 2) includes parking lots; 3) promotes recreation; and 4) an area whose primary purpose is recreation. Here, a parking lot next to a public golf course met the criteria. The parking lot was accessible to the public, allowed golfers to conveniently access the course, and golfing was the primary recreational purpose promoted by the lot. The city was not immune from plaintiff’s suit arising from her injury in the parking lot. Two justices would arrive at the same conclusion, but by allowing the city’s designation to drive the analysis.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC908.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9362&courtid=2

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Filed under Defenses, Government, Immunity, Personal Injury, Torts

St. Vrain Valley School District RE-1J and Cathy O’Donnell v. A.R.L. a minor; Randy Loveland; and Mary Nicole Loveland, 2014CO33 (May 19, 2014)

A playground through a lawyers eye: “Although the individual pieces of equipment each promote specific play activities (e.g., swinging or playing in the sand), they nevertheless collectively promote the common purpose of play and together make a playground a ‘facility’ by virtue of the strong relationship between the individual components.” – Opinion. In this case, applying and expanding on the analysis set forth in Daniel v. Colorado Springs, the Court concluded that a public school playground and its collection of equipment is a “public facility” “located in” a “recreation area.” The case focused on what a “public facility” is: 1) relatively permanent or affixed to land; 2) man-made; 3) accessible to the public; and 4) maintained by a public entity for a common public purpose. The zip line that injured the plaintiff was merely a “dangerous condition,” not itself a “facility.”

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC631.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9361&courtid=2

 

 

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Filed under Defenses, Government, Immunity, Personal Injury, Schools, Torts

Colorado Civil Access Pilot Project Preliminary Analysis Released

The Institute for the Advancement of the American Legal System, has released a report detailing their Preliminary Analysis of the CAPP process.  From the IAALS blog, here is a partial summary of their findings:

Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules. For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.

The CAPP Rules were implemented by the Colorado Supreme Court to test whether “adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions, and . . . the use of modified rules of Civil Procedure concerning the pleading, discovery and trial management of certain cases” would improve the civil litigation process.  As noted by the IAALS:

[T]he CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution.

All civil litigators in Colorado should be carefully following the progress of this Pilot Project.  The Colorado Supreme Court has already issued opinions requiring judges to actively intervene early in the discovery process.  In DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013) the Court noted that:

The overriding purpose of the Colorado Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” C.R.C.P. 1. To this end, our rules reflect a growing effort to require active judicial management of pretrial matters to reduce delay and the increased costs associated with it. “Delay devalues judgments, creates anxiety in litigants and uncertainty for lawyers, results in loss or deterioration of evidence, [and] wastes court resources.” . . . Delay also increases costs. The increased costs associated with protracted litigation may force a party into an unwarranted settlement or may deter a party from bringing a viable claim. Active judicial management is necessary to address these problems, and our rules have evolved to stress this principle.

Regardless of form, active case management in civil cases is now the rule and not the exception.

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Milton Michael Trujillo, Insurance Producer with Bail Bond Authority, License No. 60267 v. Colorado Division of Insurance, 2014CO17 (March 17, 2014)

“We firmly believe that under the law every person is considered innocent until proven unable to pay us back.”  Skip Hunter, Bail Bondsman. Bail bondsman accepted money to post bond, but did not post the bond or return the money. CRS 10-2-704 imposes fiduciary duties on “insurance producers” such as bail bondsmen. At common law, suretyship law controlled bail bondsmen, which the Court relied on for this Opinion. There are three parties to a suretyship: principle (criminal defendant), surety (bail bondsman), and the creditor (the court). A creditor is akin to an insured under the insurance statutes, and the fiduciary duty is owed to the insured. Thus, the bail bondsman did not owe any fiduciary duties to the criminal defendant. The case was remanded because it was not clear that the Insurance Commission would have reached the same result using the correct interpretation of the law.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC672.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9287&courtid=2

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Filed under Administrative, Commissions or Boards, Government, Insurance, Torts