Monthly Archives: December 2012

Extreme Construction Co. v. RGC Glenwood, LLC and Mike Spradlin, 2012COA220 (December 27, 2012)

Ambiguity keeps lawyers employed. In this case, a construction contract had an ambiguous “Cost/Plus” price provision that “included, without limitation” “wages [of] construction workers directly employed.” Owner believed the price was limited to the actual cost of wages. Builder believed “costs” referred to fixed wage rates that included unemployment insurance, workers’ compensation, and other expenses. Owner did not object to Builder’s interpretation until after litigation arose. The court of appeals held that Owner was estopped from arguing his interpretation was correct because he had full knowledge of the facts, unreasonably delayed, and Builder detrimentally relied on Owner’s delay. This was the first time a Colorado court applied the equitable estoppel doctrine to the interpretation of an ambiguous contract. It was remanded to recalculate damages.


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Filed under Contracts

Michelle Banning v. William Prester, 2012COA215 (December 27, 2012)

Scene 1: “I just got rear-ended – I’m OK, just shaken.” Scene 2, days later: “My neck and back really hurt.” So starts a familiar drama in this personal injury case. The defense in this damages-only trial was how much of the medical bills the defendant should pay. The trial court instructed the jury to reduce damages if they found plaintiff had continued expensive treatment though it did not resolve her pain. The court of appeals reversed, finding zero support for the proposition that a plaintiff has an affirmative duty to end treatment if it is expensive and ineffective. Another instruction on the reasonableness and necessity of treatment, which was also given, sufficiently addressed the issue. Addressing evidentiary issues, the court cited Cosgrove for the collateral source rule, and approved admission of evidence of delayed recovery syndrome and previous domestic violence.

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Filed under Appellate Review Challenged, Evidence, Personal Injury, Torts

Ann Marie Damian and John M Taylor, Jr. v. Mountain Parks Electric, Inc., 2012COA217 (December 27, 2012)

“Why you wanna give me a run-around/ Is it a sure-fire way to speed things up/ When all it does is slow me down.” (Blues Traveler).  In this statute of limitations case, Plaintiff brought a lawsuit under the Consumer Protection Act (CPA) that later appeared to be about unreasonable electricity rates that the Public Utilities Commission should decide. It wasn’t, so the PUC dismissed it. Back in the trial court, Defendant claimed the action was filed after the three-year statute of limitations ended. The trial court agreed, and held that the doctrine of equitable tolling did not apply, nor did the one-year extension in the CPA itself. The court of appeals affirmed. Equitable tolling does not apply if it contradicts a statute. Here, it was inconsistent with the CPA. As Plaintiffs did not show the delay was due to Defendant’s misrepresentations, the one-year extension did not apply either.

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Filed under Torts

Carolyn Harner v. James Chapman, M.D., 2012COA218 (December 27, 2012)

Rarely do courts invite review of their opinions, but in this case the court of appeals urged the Supreme Court to review “the potential inconsistency” between CRE 301 and precedent holding that the res ipsa loquitur doctrine shifts the burden of proof to the defendant. This is a medical malpractice case in which the facts of what actually happened during an angiogram were hotly contested. In Weiss v. Axler, 137 Colo. 544 (1958) the Supreme Court expressly held that if the doctrine applies, the defendant must prove the absence of negligence. In 1979, CRE 301 was adopted, and expressly states that presumptions (such as a presumption of negligence) do not shift the burden of proof. The court of appeals held that Weiss remains good law, and the trial court erred by refusing to instruct the jury that the burden shifted to the defendant to show he was not negligent. A new trial was ordered.

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Filed under Appellate Review Challenged, Evidence, Personal Injury, Torts

Raptor Education Foundation, Inc., v. Colorado Department of Revenue, Division of Motor Vehicles, 2012COA219 (December 27, 2012)

The individual freedom to contract, enshrined in the US and Colorado Constitutions and known as the Contract Clause, can add another case to its storied history – specialty license plates. In 2000, the Raptor Education Foundation contracted with the Department of Revenue for the exclusive right to buy a specialty plate. In 2002, the Department was court-ordered to sell the plates only to members of the REF. In 2009, the Legislature amended the law (CRS 42-3-208) to allow non-REF members to buy the plates. The REF sued. The court of appeals, after finding that the constitutional challenge could be addressed even though it was not raised in a pleading, struck down the legislation as unconstitutional. The law violated the Contracts Clause because it was not directed at a general social problem and was an unforeseeable substantial impairment to the existing contractual relationship.

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Filed under Appellate Review Challenged, Constitutional, Contracts, Government

In Re Stacy Warden and Chris Warden as representatives of Noah Warden, a minor child v. Exempla, Inc. d/b/a Exempla Healthcare, et. al., 2012CO74 (December 20, 2012)

As we have re-discovered, after a tragedy people look for a cause. In this medical malpractice case, a baby was born with brain damage after being deprived of oxygen. The parents claim the cause was failure to monitor the baby during birth; the hospital claims the damage preceded labor. Three of Plaintiff’s experts were excluded. The Court reversed the exclusions. The first expert was excluded because she did not respond to Defendants’ experts. The Court disagreed, as she might refute Defendants’ theory of causation which relied heavily on a study she critiqued. Two experts addressing the child’s life expectancy were excluded as an “ambush.” The testimony should have been initially disclosed, but the delay was harmless because: 1) the trial is months away, 2) the importance to Plaintiff’s claim, 3) Defendants’ own experts raised the defense, and 4) lack of evidence of bad faith.

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Filed under Evidence, Interlocutory Review, Personal Injury, Torts

Preview of the New Ralph Carr Judicial Center

Chief Justice Michael L. Bender and Attorney General John Suthers hosted a media tour of the Ralph Carr Judicial Center today, and the Colorado Litigation Report has posted a few photographs. For a sneak peak at the beautiful interior (though finishing touches are still being completed), click HERE.

Here is the Early Move-In Press Release with additional information about the building and its construction.

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Filed under Attorney Regulation, Commentary

BSLNI, Inc. v. Russ Diamonds, Inc, 2012COA214 (December 6, 2012)

Win the battle, lose the war. In this construction contract case, on the evening before trial and after a year of litigation, Defendant moved to dismiss Plaintiff’s tort claim on the grounds that it was barred by the economic loss rule. The trial court did so, ostensibly under CRCP 12(b), but allowed Plaintiff to add a breach of contract claim. Plaintiff won at trial. Defendant sought, but was denied, mandatory attorneys’ fees because the tort claim was dismissed. The court of appeals held that, because Defendant moved to dismiss after the answer was filed, it was a CRCP 12(c) motion, so fee awards are not mandatory. The court also held that when a construction contract provides its own standard by which work must be performed, the contract’s standard applies, not industry standards. And, if a lay person could apply that standard, expert testimony may not be, and was not required here.


Filed under Contracts, Evidence, Torts

New Contact Information for the Supreme Court, Court of Appeals, Library, and Court Administrator

[From today’s Supreme Court press release]

The new address for the Supreme Court, Court of Appeals and Supreme Court Library will be 2 East 14th Avenue, Denver, CO 80203. The new phone number for the Supreme Court and Court of Appeals clerk’s office will be 720-625-5150. The phone number for the Supreme Court Library will be 720-625-5100. To contact any chambers in the Supreme Court or Court of Appeals dial 720-625-5000. The new address for the Office of the State Court Administrator will be 1300 Broadway, Ste. 1200, Denver, CO 80203. The new telephone number for the Office of the State Court Administrator will be 720-625-5000. All court and administration phone numbers will be changing and will be updated on the Judicial Branch Website.

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Filed under Commentary

The Supreme Court, Court of Appeals, Library, and Court Administrator Are Moving!

The Supreme Court issued a press release explaining the move into the new Ralph Carr Colorado Judicial Center and its effect on the courts’ business. A few deadlines are important: 1) no records will be available to check out from December 7th to the 21st; 2) both courts will close at 4pm on December 14th and reopen on December 19th–ALL FILING DEADLINES that fall within that time-frame are automatically extended to December 19th; 3) Emergency pleadings will be accepted by the clerks office (at the old location) on December 17th and 18th; 4) the Library will be closed from November 23rd to December 19th; and 5) the State Court Administrator will close over the weekend from December 14th to December 17th. A media tour is planned for December 11th.

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