Monthly Archives: March 2014

Milton Michael Trujillo, Insurance Producer with Bail Bond Authority, License No. 60267 v. Colorado Division of Insurance, 2014CO17 (March 17, 2014)

“We firmly believe that under the law every person is considered innocent until proven unable to pay us back.”  Skip Hunter, Bail Bondsman. Bail bondsman accepted money to post bond, but did not post the bond or return the money. CRS 10-2-704 imposes fiduciary duties on “insurance producers” such as bail bondsmen. At common law, suretyship law controlled bail bondsmen, which the Court relied on for this Opinion. There are three parties to a suretyship: principle (criminal defendant), surety (bail bondsman), and the creditor (the court). A creditor is akin to an insured under the insurance statutes, and the fiduciary duty is owed to the insured. Thus, the bail bondsman did not owe any fiduciary duties to the criminal defendant. The case was remanded because it was not clear that the Insurance Commission would have reached the same result using the correct interpretation of the law.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC672.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9287&courtid=2

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Filed under Administrative, Government, Insurance, Torts

New C.R.E. 803(10), effective February 18, 2014.

Here is the revised Colorado Rule of Evidence 803(10). No other changes were made to the rule. This conforms Colorado’s Rule to the Federal Rule

RULE CHANGE 2014(3)

Colorado Rules of Evidence

Rule 803.  Hearsay Exceptions: Availability of Declarant Immaterial

 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

 (1) through (9) [NO CHANGE]

(10)   Absence of public Record. Testimony – or a certification under  Rule 902 – that a diligent  search   failed to disclose   a public  record  or  statement  if:

(A) the testimony   or certification  is admitted   to prove  that

        (i) the record or statement does not exist; or

        (ii) a matter  did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

 (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or objection.

 The Committee recommended adoption of this amended version of C.R. E. 803( 10) to follow the identical amendment to F.R.E. 803(10) which took effect on December l, 2013.

( 11) through (18) [NO CHANGE]

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Filed under Commentary, Evidence

Alex J. Martinez, as Manager of Safety for the City and County of Denver, v. Denver Firefighters Local No. 858, IAFF, AFL-CIO, 2014CO15 (March 3, 2014)

“[D]iscipline exists outside the ambit of collective bargaining.” Opinion. Firefighters Union sued Denver, claiming new disciplinary rules violated its 1971 collective bargaining agreement (CBA) by altering the terms and conditions of employment. Denver argued the City Charter vested the city with the unilateral right to draft disciplinary rules. The trial court issued injunction, preventing enforcement of the new rules, and the Court of Appeals affirmed, finding the rules to be a term and condition of employment, subject to the agreement. Deciding an issue of first impression, the Colorado Supreme Court held the plain language of the City Charter expressly granted Denver the unilateral right to draft and implement disciplinary rules, and that the rules were not included in the CBA as a term or condition of employment, subject to collective bargaining.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC736.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9266&courtid=2

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Filed under Administrative, Government

Atlantic Richfield Company v. Whiting Oil and Gas Corporation, f/k/a Equity Oil Company, 2014CO16 (March 3, 2014)

“A non-vested property interest is void unless it is certain to vest, if at all, within 21 years after the death of a life in being at the time the interest was created.” Common-law Rule Against Perpetuities (RAP). This case involves a nondonative commercial transaction dating back to 1968, amended in 1983 to include a non-exclusive revocable option. When the plaintiff sought to exercise the option in 2006, defendant claimed the RAP voided the option. The trial court, affirmed by the court of appeals, held that the option was enforceable as reformed under the Statutory RAP (USRAP). The Court affirmed on different grounds, holding that the RAP does not apply in commercial transactions; the rule against unreasonable restraint on alienation does. By holding that the RAP does not apply to revocable options, USRAP reformation was inapplicable. Plaintiff could exercise its option.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC688.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9267&courtid=2

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Filed under Contracts, Property