Monthly Archives: February 2013

Shelter Mutual Insurance v. Steven Vaughn and Alvin Miller, 2013COA25 (February 28, 2013)

“Keep your friends close, and your enemies closer.” ­ Machiavelli. At a YMCA basketball game, Vaughn, the father of a player, hit Miller, a referee, and injured him. Miller sues and Vaughn’s insurer, Shelter, defends under a reservation of rights because its policy excludes coverage for intentional acts. Vaughn is found negligent. Vaughn then assigned his rights in his insurance coverage to Miller, in a Bashor Agreement. Shelter brought a declaratory judgment action denying coverage and wins. Vaughn and Miller argued that Shelter was precluded from disclaiming coverage because Vaughn was found to have acted negligently, not intentionally. The court disagreed, affirming judgment for Shelter. Shelter was not collaterally estopped, because 1) Vaughn’s and Shelter’s interests conflicted and 2) Shelter could not have argued Vaughn acted intentionally while defending him.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0654-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8851&courtid=1

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In Re: The Marriage of Sarah Joanne Rivera v. Ryan Lee Rivera

When it comes to kids and divorce, alternative dispute resolution is an option, but courts are ultimately responsible for protecting the best interests of children. CRS 14-10-128.5 authorizes court review of a dissolution of marriage arbitration award pursuant to the Arbitration Act, CRS 13-22-222, which favors confirmation of such awards. But, the trial court may review issues related to children de novo if a timely request is made. Here, an arbitrator issued a final award that included parenting time. Wife moved to confirm, but at a later hearing indicated she did not believe the award was in the best interest of the child. That request was made 42 days after the award, not 30 (as then required). The court of appeals held that the trial court lacked the authority to conduct a de novo review because the request was not timely. Thus, the trial court should have confirmed the entire award.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1886-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8847&courtid=1

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Taxpayers for Public Education and Cindra Barnard, et. al. v. Douglas County School District; Douglas County Board of Education; Colorado State Board of Education; and Colorado Department of Education, and Florence and Derrick Doyel, et. al. Intervenors, 2012COA20 (February 28, 2013)

Money merely represents value; but it has come to symbolize so much more. Here, the Douglas County Public School District created a voucher system that gives taxpayer money to private and/or religious schools. The trial court held it was unconstitutional. The court of appeals reversed based on 4 conclusions: 1) courts may not inquire into the extent of religious instruction, 2) religious institutions are not directly benefited, 3) parents directed the funds, and 4) the system gave parents neutral funding choices that maintained the free educational system. The court also held Plaintiffs lacked standing to enforce a statute. It avoided deciding whether Colorado’s constitutional religion provisions were coextensive with the First Amendment. The dissent concluded the system was a pipeline of public money to religious schools, thus violating Colorado’s Constitution.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1856-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8846&courtid=1

CERTIORARI GRANTED

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Filed under Appellate Review Challenged, Constitutional, Government

William P. Settle and Corinna Settle v. Janet M. Basinger, M.D. and Rio Grande Hospital, 2013COA18 (February 28, 2013)

“O Captain! my Captain! our fearful [intubation] is done” – Walt Whitman. Two nurses and a doctor made a number of failed attempts to intubate a Patient prior to an Air Life transport. The attempts injured Patient’s throat who sued, among others, the ER doctor and hospital who handed him off to Air Life staff. Plaintiff appealed partial summary judgment in favor of hospital and ER doctor on issues of vicarious liability and certain evidentiary rulings at trial. The court of appeals held: 1) the “captain of the ship” doctrine does not apply to ER doctors and 2) negligent supervision cannot be brought under vicarious liability doctrines. The court also upheld the exclusion of facts plaintiff sought to use for impeachment, including the medical history of the ER doctor and that both the defendant and an expert witness were insured by the same carrier. Trial court’s rulings were affirmed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1342-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8844&courtid=1

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Filed under Evidence, Personal Injury, Torts

Vista Ridge Master Homeowners Association, Inc., v. Arcadia Holdings at Vista Ridge, LLC, 2013COA26 (February 28, 2013)

Denial – it’s not just another common interest community. It is what happens when a developer tries to withdraw a portion of property from a community after other portions have been sold. Vista Ridge was established by a recorded Declaration under the Colorado Common Interest Ownership Act (CCIOA), which permitted a “portion” of lots within the community to withdraw so long as no lot within the “portion” had been sold. 94 lots were added to Vista Ridge and 8 were sold. Arcadia owned 70, and attempted to withdraw them. The HOA sued; the trial court denied Arcadia’s attempt. The court of appeals affirmed, holding the word “portion” in CCIOA CRS 38-33.3-210(4), unambiguously refers to property described within a recorded declaration. The 94 lots were described; Arcadia’s lots were not, and couldn’t be withdrawn. The HOA was awarded attorneys’ fees plus the 18% interest on assessments.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0967-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8852&courtid=1

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Mountain States Mutual Casualty Co. v. Christopher Roinestad and Gerald Fitz-Gerald, and Tim Kirkpatrick, d/b/a Hog’s Breath Saloon & Restaurant, 2013CO14 (February 25, 2013)

Hydrogen sulfide gas – breath so bad its uninsurable. The Hog’s Breath Saloon poured enough grease into the La Junta sewer system it created a 5-8 foot obstruction causing a toxic gas buildup that injured 2 workers clearing it up. They sued. The Saloon had an insurance policy with a pollution exclusion. The trial court applied the exclusion and denied coverage. The court of appeals reversed, concerned that calling cooking grease a pollutant could lead to absurd results. The Court disagreed. It held that dumping enough cooking grease to create a huge clog, violating a city ordinance, and causing a toxic gas buildup is a pollutant. The “Reasonable Expectations Doctrine” didn’t apply because reasonable insureds would not be deceived into believing that injuries caused by dumping that much grease into a sewer were insured. The insurance didn’t cover the workers’ injuries.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC853.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8836&courtid=2

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A.M. by and through his Guardian ad Litem, and L.H. and R.H. v. A.C., and the People in the Interests of A.M. v. N.M., 2012CO16M (February 25, 2013; Modified March 18)

As family structures change, so do the way in which we determine what may be in the best interests of a child. In dependency and neglect (D&N) proceedings, which can lead to the termination of parental rights, courts consider many factors and take evidence from many sources. With this opinion, the Court holds that foster parents of a child in the middle of a D&N proceeding can fully participate in such hearings, so long as they meet the requirements for intervention in CRS 19-3-507. A parent’s due process rights at a hearing are preserved by ensuring notice and using higher evidentiary standards. Full foster parent participation still provides the parental protections in Mathews v. Eldridge. Here, foster parents properly gave opening and closing statements, cross-examined witnesses, raised objections, and fully participated in the termination hearing without limitation.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC53.pdf [Opinion modified, and as modified, Petition for Rehearing DENIED (March 18, 2013).]

http://www.cobar.org/opinions/opinion.cfm?opinionid=8837&courtid=2

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DC-10 Entertainment, n/k/a LLMJ, v. Manor Insurance Agency, 2013COA14 (February 14, 2013)

Owning a nightclub is so full of drama there is a reality TV show about it. This case starts with a bar fight, but ends with a lawsuit against an insurance broker. A Bar’s Patron is injured during a fight and sues. Bar’s insurance policy had an assault and battery exclusion and denied coverage. Bar didn’t think its policy had the exclusion, so Bar sued Broker. Bar settles with Patron and executes a “Bashor” agreement, assigning any proceeds from Bar’s claims. But the claims against Broker are dismissed because of the assignment. The court of appeals held: 1) Broker must show the settlement was unreasonable, 2) Bar could still claim assigned damages, 3) Broker’s failure to obtain the insurance requested gave rise to a negligence claim, and 4) that claim was assignable because it was a commercial, not personal transaction. Summary Judgment for Broker reversed and the case was reinstated.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2637-PD.pdf

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Curtis Vagneur and Jeffrey Evans v. City of Aspen et. al., 2013CO13 (February 11, 2013)

“If angels were to govern men, neither external nor internal controls on government would be necessary.” Federalist Papers #51. This seemingly modest case raises complicated questions about the separation of powers. At issue were two citizen-initiated proposed ordinances in Aspen and whether they were “legislative” or “executive.” Only legislative acts are proper subjects of voter initiatives. Administrative acts, which are executive in nature, are not permissible initiatives. Legislative acts establish generally applicable rules that weigh broad policy considerations. Executive acts are case-specific, discretionary and typically require specialized knowledge. The Court held, over two dissents, that the initiatives here were impermissible because they were specific proposals on the location, design and construction of a road, and thus, administrative.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2009/09SC1022.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8826&courtid=2

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Northstar Project Management, Inc. v. DLR Group, Inc., 2013CO12 (February 11, 2013)

You don’t know what you don’t know; that is why an appeals court must have a complete record before it to render a decision. Here, the court of appeals believed it had a sufficient record; the Court disagreed. CAR 10(b) requires the appellant to submit a record with all evidence relevant to the issue on appeal. Relevance is defined by CRE 401 and conversely by CRE 402 — which excludes irrelevant evidence. It follows, therefore, that all evidence admitted at trial on a claim was relevant; otherwise it would have been excluded. Thus, the record on appeal must include everything in the record related to the issue on appeal. Because CAR 10(b) puts the burden on the appellant, the consequences for failing to designate a complete record fall on the appellant. Here, the appellant won in the court of appeals. But for violating CAR 10(b), the Court dismissed the appeal entirely, with prejudice.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC494.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8828&courtid=2

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Filed under Appellate Review Challenged, Contracts, Evidence