Monthly Archives: October 2012

Renee Legro and Stephen Legro v. Samuel Robinson and Cheri Robinson, 2012COA182 (October 25, 2012)

A cyclist is attacked on federal land during a sponsored race by two “predator control dogs” whose owners had a permit to graze sheep in the area. The trial court granted summary judgment for the owners, finding that the Premises Liability Act (PLA) abrogated the cyclist’s common law tort claims, and a claim under the “dog bite statute” was excluded by the “predator control dogs” exception. The court of appeals disagreed in part. First, because the owners were grazing sheep pursuant to a Forest Service permit, they were “landowners” under the PLA, which abrogated common law tort claims. But, the owners were not in “control of” the land, so the predator control dog exception did not apply. The statutes did not conflict because the remedies under each are different. Finally, the court agreed that a settlement offer from the owners was successfully withdrawn and thus not enforceable.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1403-PD.pdf

Certiorari was granted in this case on “Whether the court of appeals erred in holding that the working dog exemption to  section 13-21-124, C.R.S. (2012), applies only when a bite occurs on a dog owner’s  property or property under his or her control, and that “control” of property exists only  if one has the right to exclude others from it.”

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Filed under Contracts, Personal Injury, Torts

Western Logistics, Inc., d/b/a Diligent Delivery Systems, v. Industrial Claim Appeals Office, 2012COA186 (October 25, 2012)

Delivery drivers being directed and controlled are not independent contractors. The Division of Employment and Training made a determination that 220 drivers working for a delivery business were employees for unemployment tax liability purposes, notwithstanding language in the drivers’ contracts stating they were independent contractors. The court of appeals upheld the administrative ruling based on the following facts: 1) the drivers were not customarily engaged in the delivery business, 2) they did not offer those services to others, 3) they were paid under their own names, 4) the business set prices, determined clients, and required compatible cell phones, among others, and 5) employer could terminate contracts without penalty, demonstrating a right to control the drivers. Thus, the drivers were employees for unemployment tax purposes under CRS 8-70-115(1)(b).

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2461-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8718&courtid=1

[Certiorari Granted]

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Filed under Administrative, Contracts, Government, Workers Compensation

Colorado Pool Systems, Inc. and Patrick Kitowski v. Scottsdale Insurance Company and Don Hansen, 2012COA178 (October 25, 2012)

“It’s not my fault—it was an accident!” In this case, a swimming pool had to be rebuilt. An adjuster told the insured the work would be covered, but the insurer later denied coverage under a general commercial liability insurance policy. Construing the policy, the court held: 1) “accident” is an ambiguous term that means any damage not intended; 2) an “occurrence” is damage to non-defective work, but not to defective work, because defective work is required to be repaired; and 3) the Construction Professional Commercial Liability Insurance Act is retroactive, but unconstitutional as applied. The insured also brought a negligent misrepresentation claim. The court held that because “accident” was ambiguous in the policy, the claim was actionable. It was also reasonable for the insured to rely upon the adjuster’s statements as if they were fact. Summary Judgment was reversed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA2638-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8710&courtid=1

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Filed under Constitutional, Contracts, Insurance, Torts

Parker Excavating, Inc. v. City of Denver, through its Board of Water Commissioners, 2012COA185 (October 25, 2012)

Always prepare for the unexpected, especially in construction contracts. In this case, a company that contracted with Denver Water to build a dam and reservoir encountered unanticipated wet muck that substantially increased the costs of excavation. Fortunately, the parties anticipated unexpected conditions and included an “equitable adjustment” provision in their contract. The issue was the amount of the adjustment. The trial court did not award the contractor legal damages or the full amount of the additional costs. Rather, it awarded an equitable amount based on a division of responsibility for the increased costs. The court of appeals, after finding the appeal was timely filed, agreed. It held that the contract itself provided for an equitable remedy. Thus, the trial court did not clearly err by awarding an additional but reduced amount to the contractor.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0785-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8712&courtid=1

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Filed under Appellate Review Challenged, Contracts, Government

Michael Young and Amy Larson et. al. v. Jefferson County Sherriff and Deputy Sheriff John E. Hodges, 2012COA185 (October 25, 2012)

Buckle up! It’s the Law. And that includes buckling up juveniles handcuffed in a sheriff’s transport van that gets into an accident. In this case, the van driver did not secure the handcuffed juveniles with seatbelts, who were tossed around the van during the accident. The juveniles sued for their injuries. The sheriff asserted immunity under the Colorado Governmental Immunity Act (CGIA) claiming that securing passengers was not an activity within the CGIA’s waiver of immunity for the “operation of a motor vehicle.” The court of appeals disagreed. A previous case held that immunity was waived for a passenger who slipped on ice within a public bus. Based on that case, the court found that immunity was waived because securing the juveniles was part of the “operation” of the transport van and failing to do so caused the injuries.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2193-PD.pdf

 

NOTE: On remand, the trial court denied immunity based on CRS 19-2-508. The Colorado Supreme Court reversed on appeal under CAR 21.

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Filed under Government, Personal Injury, Torts

In Re: Garcia v. Schneider Energy Services, Inc. and William R. Smith, 2012CO62 (October 22, 2012)

“Ooops, I sued the wrong person. My bad.” In this Rule 21 original proceeding, plaintiff, the estate of a worker killed on defendant’s property, sued defendant just within the 2 year statute of limitations period. After it passed, it turned out that another party was the proper defendant. Plaintiff moved to amend to include the correct defendant under CRCP 15(c), claiming the amended complaint related back to the timely-filed original complaint. The trial court dismissed because the new defendant was added 116 days after the filing of the original complaint and after the statute of limitations period had run. The Court reversed and held that amending a complaint and serving a new defendant within the time for regular service under CRCP 4(m), 120 days, was a reasonable amount of time. On remand, the trial court must determine if the delay in notice was otherwise unreasonable.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA219.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8705&courtid=2

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Filed under Personal Injury, Proceedure

Melat, Pressman & Higbie, LLP v. Hannon Law Firm, LLC, 2012CO61 (October 22, 2012)

No one likes to split winnings. But, in contingency fee agreements, if the client wins, the attorney gets some of the winnings. In this case, three firms agree to represent a client on a contingent basis. One firm leaves about halfway through. The client settles and the two remaining firms split the one-third fee. They cut the early-departing firm out of the fees. There is no contract among the firms regarding their split. The third firm brings a quantum meruit claim (unjust enrichment) seeking their third of the fees. The Court, upholding a court of appeals decision, held that even if an attorney has no right to claim quantum meruit from the client (because of the lack of due notice to the client), such claims can still be brought against co-counsel. Without deciding the statute of limitations period is 3 years, the Court held that a claim accrues at the time of settlement or judgment.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC265.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8706&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts

Arlene Abady, et. al. v. Certain Underwriters at Lloyd’s London, 2012COA173 (October 11, 2012)

Hard money lenders are private investment companies that offer shorter term loans secured by real property when traditional commercial real estate loans are not available from banking institutions. Here, a hard money lender, CCI, insured against its own losses for want of fidelity by CCI’s own officers, with a fidelity bond from Lloyds. CCI officers allegedly committed fraud in attracting investors to invest in CCI, which made hard money loans to commercial real estate borrowers. Following CCI’s bankruptcy, investors sued Lloyds on behalf of CCI, and CCI itself,  to recover losses. Lloyds claimed its policy did not cover the investors’ losses. The court of appeals agreed. Indirect losses to investors are protected by liability policies, not fidelity bonds. Because Lloyds issued a fidelity bond to protect CCI directly, it did not cover indirect losses by investors.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1870-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8698&courtid=1

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David Hiner and Deelila Quick v. Bruce Johnson M.D. and Michael King, M.D., 2012COA164 (October 11, 2012)

Attorneys’ fees, or the denial of them, can add insult to injury. In this case plaintiffs sue a hospital and doctors for a wrongful death during surgery. The hospital settles. The doctors win at trial, but do not assert counterclaims. The prevailing doctors are awarded statutory costs and attempt to secure payment of those costs from plaintiffs’ settlement proceeds by obtaining a writ of attachment. CRCP 102 controls such writs. The court of appeals held that the writ was improper because CRCP 102 does not authorize writs for non-counterclaiming defendants. If a writ is wrongfully issued to a plaintiff, a defendant is entitled to costs for defeating the writ. But, the Rule does not authorize costs to plaintiffs who defeat improper writs obtained by non-counterclaiming defendants. Plaintiffs’ request for fees and costs for defeating the writ was, therefore, properly denied.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA1846-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8689&courtid=1

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Filed under Torts

SDI, Inc. v. Pivotal Parker Commercial, LLC, 2012COA168 (October 11, 2012)

Real estate development companies, through the individuals that control them, can run the special tax districts they create. Colorado’s Special District Act, meant to encourage development of open land, permits developers to control such districts and to pledge taxes and fees collected by the district to themselves. But, no government can delegate legislative functions to a private party such as a developer. Here, a special district attempted to assign the fees it collected to a developer. The developer then charged landowners interest on the fees. The court of appeals held that: 1) the district did not have the statutory authority to “assign” development fees, 2) developer could not charge interest on development fees, and 3) the assignment did not give developer a lien. Rather, districts can only “pledge” payments to developers, which must be set and collected by the district.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0134-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8693&courtid=1

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Filed under Contracts, Corporations, Government