Monthly Archives: August 2012

Progressive Casualty Insurance v. Moore, 2012COA145 (August 30, 2012)

If you don’t pay your premiums on personal auto policies, the policy expires. Plaintiff gets into a car accident and pleads that Progressive did not provide proper notice that his premiums were unilaterally increased. There is a statute that provides that policies are automatically renewed if proper notice of an increase is not provided, but, as the court of appeals held, it only applies to commercial auto policies. Thus, plaintiff had no policy at the time of his accident.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1976-PD.pdf

http://www.cobar.org/opinions/opinion.?opinionid=8645&courtid=1

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John Stulp, Commissioner of Agriculture, v. Dean Schuman and Schuman Cattle, LLC, 2012COA144 (August, 30, 2012)

The Constitution does not protect a right to own cattle if the evidence overwhelmingly shows that animals under his care were subjected to severe abuse and neglect. Here, a court entered a permanent injunction in a civil action preventing a rancher from even owning cattle. The rancher had already been convicted of 14 counts of cruelty to animals. In this case, the rancher argued a total ban was too broad and it violated his Constitutionally protected property rights. The court of appeals, comparing his actions to parental neglect, and noting the lack of any remorse or willingness to change, found the remedy of a complete ownership ban appropriate. The determination that the rancher was unfit to own livestock was upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1825-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8644&courtid=1

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Filed under Administrative, Constitutional, Government

Colorado Off-Highway Vehicle Coalition, et. al. v. Colorado Board of Parks and Outdoor Recreation 2012COA146 (August 30, 2012)

Gone is the age of back office deals between government officials—mostly. Colorado’s Open Meetings Law (OLM) protects the participation of citizens in the legislative decision making process. So, meetings between government officials, held by Email or telephone, in which any public business is discussed, violate the OML. In this case, the Colorado Parks and Wildlife Board admittedly violated the OML three times by holding Email, telephone and in-person meetings. It held a subsequent properly noticed and open public meeting, where the public provided input, and the Board engaged in “renewed deliberations” of the wrongly discussed issues. For the first time, the court of appeals squarely held that OML violations can be “cured” at later meetings that comply with the OML, if genuine discussion occurs, and the meeting is not merely to “rubber stamp” a decision already made.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1988-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8646&courtid=1

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Communications Workers of America, Local 7750 v. Industrial Claim Appeals Office 2012COA148 (August 30, 2012)

Unions are employers too, and, in this case, contested an award of unemployment compensation to a former employee – its president. Claimant worked for both Quest and as the union president, but was only paid by one or the other for the time spent on each job respectively. When the union merged and restructured, he lost his employment as union president. He filed for unemployment benefits from the union, which were granted. On appeal, the union argued that it only replaced Quest’s wages not that it paid “wages” itself. The union did not argue that it was not an employer or that it did not provide employment to Claimant. The court of appeals upheld the grant of benefits for two main reasons: 1) he received payment for required services on behalf of the union and, 2) failure to consider payments as wages could result in lost unemployment benefits from Quest too, by reducing available benefits.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0062-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8648&courtid=1

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Colorado Common Cause and Colorado Ethics Watch v. Gessler, Secretary of State 2012COA147 (August 30, 2012)

“Committee: n. A body that keeps minutes and wastes hours.” (Paul Ogden). The Colorado Constitution and related legislation, subjects an “issue committee” to registration and disclosure requirements once it receives $200. The Secretary of State, Scott Gessler, issued a rule that said that the “issue committee” regulations were not triggered until the group received $5000. At the center of this case is a 10th Circuit opinion holding that the “issue committee” registration requirements, as applied to a group of neighbors distributing fliers in opposition to the annexation of their neighborhood, unconstitutionally infringed on their First Amendment rights. That opinion did not, however, invalidate the law. So, the new rule, intended to address some uncertainty from the 10th Circuit opinion, contravened the law, and therefore the Secretary exceeded his authority to issue it.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2405-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8647&courtid=1

Certiorari GRANTED

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In Re Proposed Changes To Borders Between State Senate And House Districts Due To Mapping Errors 2012SA251 (August 24, 2012)

Voting twice could be an option for some residents. Apparently, certain State Senate and House District boundaries ran through the middle of some people’s property, so they were in two districts. On August 24, 2012, the Colorado Supreme Court issued a Briefing Order with respect to a request from Secretary of State Scott Gessler to make minor corrections in those boundaries to conform to property boundaries. Any interested member of the public may file simultaneous briefs in support or in opposition to the Petition to Alter Boundaries between Multiple State Senate and House Districts on or before August 31, 2012. Pursuant to C.A. R. 31(b) parties must file the original and 10 copies of their briefs. In most cases the net change in the number of voters in each district is less than 20, although one change would affect 235 voters in Mesa County.

The following counties’ Senate Districts will be affected: Adams – 21, 24, 25; Boulder – 16, 18; El Paso – 2, 9, 11, 12; Jefferson – 16, 20, 23; Larimer – 15, 23; Pueblo – 3, 35.

The following counties’ House Districts will be affected: Adams – 30, 31, 32, 34, 35, 56; Delta – 54, 61; Denver – 9, 41; Douglas – 39, 44; El Paso – 14, 16, 19, 20, 21; Jefferson – 24, 25, 27; Mesa – 54, 55; Pueblo – 46, 47, 62.

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Filed under Government

Proposed Change to CRCP 45

The Colorado Supreme Court has proposed changes to rule CRCP 45. A copy of the proposed Rule and revised Subpoena Form may be found here: http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/Proposed/CRCP45.pdf

Please also see the CLR post on In re the Marriage of Wiggins, which directly addressed the application of Rule 45, and held that obtaining documents prior to providing all parties with notice and opportunity to object is a violation of the Rule and may subject violating attorneys to sanctions.

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PFW, Inc. v. Residences at Little Nell Development 2010COA137 (August 16, 2012)

Get off my land! That command, enforcing the exclusive use and possession of property, is a fundamental cornerstone of private property. It is also a basic requirement for determining whether an interest in property is a lot, which in turn affects whether a development project is subject to the Interstate Land Sale Full Disclosure Act (ILSFDA). ILSFDA applies to developments of 100 lots or more. In this case, the owner of a fractional interest in a condominium project sought to rescind its purchase contract because it violated ILSFDA. It did not. The court affirmed dismissal, holding the statute did not apply because the fractional interest was not a “lot.” Unlike a timeshare, which permits exclusive use of a particular unit, a fractional share in some unit does not constitute exclusive use of a specific unit, and is not a “lot.” Lacking sufficient lots, ILSFDA did not apply.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1656-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8632&courtid=1

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Neuromonitoring Associates v. Centura Health Corp. 2012COA136 (August 16, 2012)

“Time keeps on slipping into the future.” (Steve Miller). But if it slips too far, say three years, the statute of limitations for a contract claim ends. In this case, a smaller company entered into a contract with a big company, who provided nearly all its revenue. The smaller company found out the big company was breaching the contract, but, not wanting the big company to cancel the contract, made a decision to protest but wait to bring a claim.  It waited too long, hoping the six year statute of limitations applied instead. The court of appeals held that because the damages were not liquidated or easily determined, the limitations period was three years. The decision not to pursue the claim kept the clock ticking.  But, if a contract contains a continuing duty to perform, each breach is a new claim. So, multiple, successive breaches within three years were timely and could proceed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1391-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8631&courtid=1

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Old Republic National Title Insurance v. Kornegay 2012COA140 (August 16, 2012)

“Fool me once, shame on you, fool me twice shame on me.” In this case, a title insurance company (Title) took this advice to heart. Fearing an alleged money-laundering fraudster (Kornegay) would hide or transfer his assets once served with a complaint, Title obtained a prejudgment attachment of assets. Kornegay allegedly caused Title to pay its insured. The court of appeals rejected numerous objections raised by Kornegay challenging compliance with CRCP 102 (which authorizes prejudgment writs of attachment): 1) although Title was not domiciled or a citizen of Colorado, it was a “resident” for purposes of CRCP 102; 2) the trial court could set bond at $0; 3) a private server may serve notice of levy and execute writs; 3) a traverse cannot be a denial on information and belief; and 4) a vague statement of intent to occupy a home in the future does not support a homestead exemption claim.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2248-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8626&courtid=1

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