Monthly Archives: March 2013

Jillian Groh, individually and by and through her guardians and conservators, William and Janelle Groh v. Westin v. Westin Operator, LLC, 2013COA39 (March 28, 2013)

Fortunes change in the blink of an eye. A group of revelers, too large for their hotel room, were evicted. Although drunk, they drove and got into an accident. Plaintiff, who rented the room and was a passenger, sued the hotel for nonfeasance because it failed to prevent the accident. The trial court dismissed the claim. Reversing, the court of appeals held that because innkeepers have a special relationship with guests, if it evicts them, it must do so reasonably. It concluded: 1) injury to an evicted drunk guest into a cold night is foreseeable; 2) minimal effort could mitigate the risk; 3) the existence of countervailing duties was questionable; and 4) innkeepers are in a better position than drunk guests to avoid potential harm following eviction. Thus, judgment for the hotel was reversed. The dissent (formerly the majority) concluded the hotel owed no duty to the guest.

The Supreme Court affirmed HERE

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Sara L. Burnett v. State of Colorado, Department of Natural Resources, Division of Parks and Outdoor Recreation, 2013COA42 (March 28, 2013)

If a tree falls in the forest, will a court hear a claim in court? In this case, no. A tree branch falls on a camper; the tree was next to the official campsite. Here, the issue was whether the tree was a “public facility” and part of the campground. The Colorado Governmental Immunity Act grants immunity for injuries caused by natural conditions not on a public facility. The trial court, and the court of appeals held that a tree is not a public facility because it is not integral to the use and enjoyment of the campground “merely because they provide shade, protection, and aesthetic values…” Also, the tree, next to the campsite, was still in an “unimproved” area and was a natural condition; so, the state had no duty to maintain the tree. The dissent would have found the tree incorporated into the facility, and a dangerous condition for which the state was responsible. The state was immune.

NOTE: The Colorado Supreme Court granted Certiorari on November 12, 2103.


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United Airlines v. Industrial Claim Appeals Office of the State of Colorado and Angela Jones, 2013COA48 (March 28, 2013)

“It just so happens that your friend here is only MOSTLY dead. There’s a big difference between mostly dead and all dead.” Miracle Max – The Princess Bride. In the workers’ compensation context, it would be “temporary total disability” (TTD) and “permanent partial disability.” Here, claimant is injured and received TTD benefits in excess of the $75,000 cap under CRS 8-42-107.5. Employer sought to recover the excess. Those efforts were rejected. First, claimant was not overpaid under 8-40-201 because she received only benefits to which she was entitled, and she didn’t get permanent and temporary benefits. And, there is no provision for repayment of excess – the statute intends that employers continue paying benefits until a claimant reaches maximum medical improvement. Finally, the operation of CRS 8-42-105 in conjunction with CRS 8-42-107.5 did not violate equal protection.

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Northglenn Urban Renewal Authority v. Gil Reyes as Adams County Assessor and Board of County Commissioners of Adams County, 2013COA24 (February 28, 2013).

The technical task of taxing property under tax increment financing (TIF) plans is, well, technical. A TIF is used to fund the sale of municipal bonds for urban renewal. Under CRS 31-25-101 to 115, a TIF property is valued before it is included in the urban renewal plan (base value); subsequent increases in value, and the increased taxes therefrom, then finance the urban renewal authority (URA). Here, property was included in a TIF but later removed. The statute does not address how to calculate a TIF in this situation. The Assessor included the property in the base value, but not in the newly assessed value. This method, the court of appeals held, was erroneous because it created an imbalance in the URA’s TIF funding. But, the Assessor correctly measured the TIF’s 25-year termination date from the date the TIF was adopted, not after property was added. A new TIF calculation was ordered.

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Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

The government wants Plaintiff’s patient data. Plaintiff is a private, for-profit facility that provides treatment for patients with substance abuse and mental health disorders. Plaintiff claimed patient data was protected by CRS 13-90-107(1)(g), creating the psychotherapist-patient privilege, and 42 U.S.C. § 290dd-2, Federal Confidentiality Statutes (FCS). On review, the court of appeals agreed with the trial court, holding the data could be disclosed. First, CRS 13-90-107 is limited to the litigation context and did not apply. Second, under the FCS, patient data is disclosable to an agency with “direct administrative control,” which the state was not, or under an “audit and evaluation” exception, which did apply. Thus, the data could be required to be disclosed once the state, but only once the state implements a required data retention and destruction policy.

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Philip Jordan and Roberta Jordan v. Safeco Insurance Company of America, Inc., 2013COA47 (March 28, 2013)

Mind the gap. In this case, the gap is between a settlement less than the policy limits of an insured motorist who caused an accident, and the total amount of actual damages. Under a former version of CRS 10-4-609, underinsured motorist (UIM) coverage must cover the difference between any settlement and the total amount of damages – a reduction approach. But, the law changed, and now UIM policies must only cover the amount of total damages in excess of the policy limits of an insured motorist. Here, the UIM policy was excess and consistent with CRS 10-4-609. The court of appeals therefore held that UIM coverage was not available where, as here, the settlement was less than the policy limits of the available insurance. In light of the public policy reflected by the statute, the court was not free to reach a different result. Thus, there was no unreasonable denial of coverage.

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[Re-post] In Re the Marriage of Jane Doe v. Charles B. Bruce, Jr., 2013COA43 (March 28, 2013)

“I’m an excellent housekeeper. Every time I get a divorce, I keep the house.” – Zsa Zsa Gabor. In this divorce case, Husband is ordered to make monthly payments of $5,000 in child support and $12,000 in maintenance (Obligations). He fails to pay, accumulates $101,486 in arrearages and has his law license suspended. The trial court permits Wife to collect from his retirement account pursuant to a qualified domestic relations order (QDRO) under 29 U.S.C. 1056 (ERISA). A QDRO allows a former spouse to obtain benefits owed to a participant in a retirement plan, and can be used to enforce payment of support and maintenance obligations. Under CRS 13-54-102, however, a retirement plan is not subject to such orders. The court of appeals held that Colorado’s law conflicts with ERISA, a Federal law, and is preempted. Husband’s retirement contributions could be taken to meet his Obligations.

[Please see comments regarding links]

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Adolescent and Family Institute of Colorado, Inc. v. Colorado Department of Human Services, Division of Behavioral Health, f/k/a Alcohol and Drug Abuse Division, 2013COA44 (March 28, 2013)

Pop quiz: are medical records “confidential,” “privileged,” or both? Answer: yes. Here, Defendant, a state agency, required licensed drug and alcohol treatment programs to submit forms with confidential patient information. In the trial court, Plaintiff claimed the forms violated state and federal statutes. The court of appeals first held the doctor-patient “privilege” under CRS 13-90-107 only protects testimonial witnesses. Federal law protects the “confidentiality” of medical records (42 U.S.C. § 290dd-2; 42 C.F.R. §§ 2.1, 2.2), except for entities with “direct administrative control” over a program. The court held the agency lacked that control, but the forms could be required for an audit or evaluation if there were a data retention and destruction policy. Here, there was no evidence of a data policy; until there was, Plaintiff was not required to submit the forms.

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Bachelor Gulch Operating Company, LLC v. Board of County Commissioners of Eagle County, and Board of Assessment Appeals, 2013COA46 (March 28, 2013)

“Little else is requisite to carry a state to the highest degree of opulence from the lowest barbarism but peace, easy taxes, and a tolerable administration of justice…” Adam Smith. In 2007, after Assessor valued the Ritz-Carlton’s property in Beaver Creek (Ritz), but before the next assessment, the Ritz turned 50 rooms into condos. The assessor then apportioned the taxes between the Ritz and the condos based on the 2007 value. The Ritz objected, arguing Assessor should have determined its actual value, treating the condos as omitted properties under CRS 39-5-125. Finding the condos were not “omitted,” and because no other statute applied, the court of appeals upheld the apportionment procedure as consistent with the Assessor’s Reference Library (ARL). Last, Constitutional property valuation provisions only apply at the time of assessment, not here, between assessments.

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Filed under Administrative, Appellate Review Challenged, Constitutional, Government, Property

March Supreme Court Certiorari Grants and Issues Justices Would Have Granted

Here is a short summary of the Court’s certiorari Orders from March.  See the Certiorari page and the pages for each individual Justice for more detailed information.  You can also follow the links to the CLR summaries or the underlying Court of Appeals opinions provided below.

On March 18, 2012, the Colorado Supreme Court granted certiorari in one case, and denied a petition that Justice Coats would have granted.

In City of Brighton and CIRSA, v. Helen M. Rodriquez, (Court of Appeals Case No. 11CA1868), the Court granted certiorari to address issues under the Workers’ Compensation Act, CRS 8-41-301 and 8-43-201, arising from a fall that occurred during the course of an employee’s employment, but whose exact cause/mechanism was unknown, and whether the employer, who initially admitted liability for the injuries of its employee, met its burden to prove that the employee’s injuries did not arise out of the employee’s employment.

Justice Coats would have granted certiorari in McLaughlin, et. al. v. Oxley, et. al. (Court of Appeals Case No. 11CA1136) to review the district court’s denial of summary judgment under CRS 13-21-117.5.

On March 25, 2013, the Colorado Supreme Court granted certiorari in three cases, and denied a petition that Justice Eid would have granted.

In Hickerson v. Vessels (Court of Appeals Case No. 11CA317), the Court granted certiorari to address the availability of the defense of laches against a timely filed claim for collection of a promissory note, where the statute of limitations period was extended by the partial payment doctrine.

In two related cases, the Court granted certiorari to address issues arising from the determination as to whether a worker is an employee or an independent contractor when they do not provide similar services to others at the same time they are working for a putative employer:  Industrial Claim Appeals Office v.  Softrock Geological Services, Inc., and Colorado Division of Unemployment Insurance (Court of Appeals Case No. 11CA2331) and  Western Logistics, Inc., d/b/a Diligent Delivery Systems v. Industrial Claim Appeals Office, et. al. (Court of Appeals Case No. 11CA2461).  In Western Logistics, the Court also agreed to address whether the delivery drivers were subject to petitioner’s control and direction.

Justice Eid would have granted certiorari in BNSF Railway Company v. McLaughlin (Court of Appeals Case No. 11CA751) to address giving a jury instruction on apportionment of damages when the plaintiff’s preexisting condition was asymptomatic at the time of the incident.

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