Monthly Archives: April 2012

Wal-Mart v. Cossgrove 2012CO31 (April 30, 2012)

How much should an injured plaintiff get paid because of an injury caused by a tortfeasor? In this case, a tort plaintiff is injured, sues, and a jury found the defendant liable for damages. The jury also awarded $50,000 in economic damages. Plaintiff’s healthcare provider billed about $250,000 for treatment; the health insurance company only paid $40,000, a fact presented to the jury. Collateral sources of payment, such as payments by health insurance, do not reduce a plaintiff’s damages, because to do so would reward a tortfeasor with someone else’s money; this is the collateral source rule. The Rule excludes pre-verdict evidence of collateral payments and also offsets the collateral payments post-verdict. Here, the Court ruled that under the common-law collateral source rule, the jury should not have heard evidence of the $40,000 payment.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC516.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8502&courtid=2

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Filed under Evidence, Personal Injury, Torts

In re Smith v. Jeppsen 2012CO32 (April 30,2012)

As the healthcare debate rages, a central question is over the actual cost of medical care. Courts also try to determine the reasonable value of medical services provided to an accident victim. That value is either justice for victims or double recovery, depending on your perspective. The collateral source rule, now a statute rather than a common-law doctrine, attempts to balance those competing interests by restricting the evidence considered before a damage award, and then subtracting actual payments after the award. But what evidence should be considered before the award? The amounts billed or the amounts actually paid, or both? A divided Court answered by looking to the collateral source statute, and held the Legislature answered by picking the amount billed, but not actually paid. In this case, the relatively new statute applied prospectively, but pre-verdict.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA51.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8503&courtid=2

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Filed under Evidence, Personal Injury, Torts

SW, a minor v. Towers Boat Club, Inc., 2012COA77 (April 26, 2012)

Children are fearless and sometimes get injured when playing on someone else’s property. Typically, there are three kinds of people injured on property: an invitee, a licensee, and a trespasser. An invitee is basically a store customer for whom a landlord owes a higher level of protection; a licensee is a social guest at a house and is entitled to moderate protection; and a trespasser is on property without consent and is owed only minimal protection. However, as the court of appeals held in this case, an otherwise trespassing child who enters property because of an attractive nuisance is “invited” by the nuisance, and owed the protection of an invitee. But the attractive nuisance doctrine only applies to trespassing children. So a child “licensee” cannot rely on the doctrine. The court found the scheme constitutional because it is rational to give children higher protection.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0935-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8497&courtid=1

[Certiorari Granted]  The Court of Appeals’ opinion reversed on appeal. A link to the Supreme Court’s decision is HERE.

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Filed under Personal Injury, Torts

Davis v. GuideOne Mutual Insurance Co., 2012COA70 (April 26, 2012)

Auto accidents hurt everyone. Wife became the named insured on an auto policy originally issued to her ex-husband. She got into an accident and obtained a sizable verdict against the insurer based on its failure to offer personal injury protection (PIP) options anew at the time she became insured. The core holding of the court of appeals was to uphold reformation of the policy to include the maximum PIP benefits that would have been offered had they been offered at the time the policy was issued to the ex-wife.  But two other holdings may have wider applicability. One, a motion for a new trial does not preserve an issue for appeal presented as an issue of law.  For that, a motion for “judgment notwithstanding verdict” is required. Second, a complaint may be amended to include punitive damages at the close of evidence if the defendant presented evidence contradicting the claim during trial.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA1625%20&%2010CA2514-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8490&courtid=1

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Filed under Insurance, Personal Injury

Gleason, Attorney Regulation Counsel v. Judicial Watch, Inc. 2012 COA 76 (April 26, 2012)

It is hard to peek behind the judicial curtains to watch the wizards work. In this case, the wizard is the Attorney Regulation Counsel, and the work is investigations of attorney misconduct.  Relying on the Colorado Open Records Act (CORA), the trial court permitted access to most of the regulation counsel’s records related to an investigation of a number of attorneys. The court of appeals reversed. Although mentioning the conflict between the interest of disclosure and the interest of maintaining confidential information, in the end it was a matter of statutory construction.  The court found that regulation counsel is part of the judicial branch, and CORA does not apply to the judicial branch.  Therefore, regulation counsel’s records are not subject to disclosure under CORA. The Court’s own rules on access to judicial records might have applied, but they were not raised as an issue.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0930-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8496&courtid=1

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Rost v. Atkinson, 2012COA74 (April 26, 2012)

Timing is everything, especially when making settlement offers with a motion for summary judgment pending.  The facts of this case present a twist on the old “mail box rule.” Defendant sent a statutory settlement offer to plaintiff.  The next day, the trial court ruled in favor of defendant, granting summary judgment in full. Plaintiff then accepted the offer before defendant received actual notice of the ruling, because defendant did not opt for e-file notices. Defendant then attempted, unsuccessfully, to withdraw her offer.  Defendant argued that the ruling extinguished the offer as a matter of law.  The court disagreed; only two events terminate a statutory offer of settlement: withdrawal before acceptance or the end of the 14 day period.  The result was not inequitable because defendant did not condition the offer to expire upon a ruling, and did not receive e-file notices.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0727-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8494&courtid=1

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Willhite v. Rodriguez-Cera, 2012CO29 (April 23, 2012)

Suing a foreigner in Colorado can mean serving the complaint on a defendant in another country. The UN Convention on Service Abroad, through CRCP 4(d), offers one method for international service. But it is not the only one. In this original proceeding under Rule 21, the Supreme Court offers a rare interpretation of the relationship between international service under CRCP 4(d), and substitute service under CRCP 4(f). The trial court permitted substitute service on the defendant, who lived in Mexico, via his sister, who lived in Colorado, under CRCP 4(f). The defendant claimed that he must be served personally in Mexico under CRCP 4(d) and the Convention. The Court held those methods apply only when documents are “transmitted abroad.” None were because the defendant was served locally via his sister. Accordingly, service under CRCP 4(f) was sufficient and Constitutional.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA250.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8485&courtid=2

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Reynolds v. Cotten 2012CO27 (April 16, 2012)

No do-overs. When it comes to legal issues, courts call the no do-over rule the doctrine of collateral estoppel, or issue preclusion. It applies when there is an old order on an issue and someone wants a new order on that same issue. To prevent a court from re-visiting a decision on an old order, the opposing party must show all the following conditions: 1) the issues must be identical, and the new issue must have been actually or “necessarily” decided by the old one, 2) the parties must be identical (or nearly so), 3) a final judgment on the old issue, and 4) a full and fair opportunity to have litigated the old issue. This case examines, in the context of a water court order, if an old, but final issue “necessarily” decided the new one. Here, the Court found the old issue could have been decided on grounds different from the new one, so the new issue was not “necessarily” decided.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SA393.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8479&courtid=2

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Reyher v. State Farm Insurance, 2012COA58 (April 12, 2012)

Everyone looks for a loophole to the American Rule that parties bear their own costs and fees. One is CRCP 54(b), allowing cost awards to the “prevailing party.” Here, defendant successfully opposed class certification. The plaintiffs’ own claims are still pending. The trial court awarded defendant fees and costs, related to class certification, under CRCP 54(b). This appeal, the third so far, addressed that award. Though the case is still ongoing, the appeals court held it had jurisdiction to decide the costs issue, because the class certification issues were finally decided, and the cost award being appealed related only to the class certification claims. The court then reversed the award of costs because defendant’s procedural victory, which did not dispose of either the plaintiffs’ substantive claims, or even those of the putative class, did not make it a prevailing party.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/09CA1890-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8468&courtid=1

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Great Plains National Bank v. Mount and Cattle Consultants LLC, 2012COA66 (April 12, 2012)

This case could be the perfect bar exam question on secured transactions.  It has it all: perfection of security interests, purchase-money secured interests (PMSI), priority disputes, and 206 head of cattle. Smith, from OK, borrows money from Great Plains, secured by Smith’s cattle. Great Plains files a UCC statement in OK. Smith sells 206 cattle to Mount, a CO rancher financed by Cattle Consultants, who file a UCC statement against the cattle in CO. Everyone claims an interest the 206 cattle, but Great Plains wins. Its interest, perfected in OK, had priority because that is where the cattle were “produced” under the Federal Food Security Act.  So, Mount purchased subject to Great Plains’ lien. Consultants had a PMSI in the cattle, but it did not have priority because Consultants did not meet the requirements for a superior PMSI in livestock.  So, Great Plains had priority over Consultants.

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