Monthly Archives: February 2015

Proposed revisions to CRCP – Public Hearing April 30, 2015

[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]

Dear Colleagues:

There are, pending before the Colorado Supreme Court, proposed changes to the Colorado Rules of Civil Procedure. Significant changes to Rules 16, 26, 34, 37 and 54 are proposed which raise lots of questions. Do you understand the meaning of “proportionality” as defined in proposed new Rule 26(b)(1)? Can you depose an expert in 3 hours as limited by proposed new Rule 26(b)(4)(A)? Do you agree with the limitations on discovery relative to an expert’s opinion as provided in proposed Rule 26(b)(4)(D)?

The public hearing concerning the proposed rule changes which will be held on April 30, 2015. The Supreme Court is presently seeking public comment about the proposed rules in advance of that hearing. April 17, 2015 is deadline for submission of written public comments.

The Litigation Section Council is working toward formulating comments on behalf of the Litigation Section membership to be submitted to the Supreme Court. If you have comments concerning the proposed rule changes that you would like to have considered by the Council, please submit your comments to Greg Martin the Section’s CBA staff liaison at gmartin@cobar.org no later than March 5, 2015.

A redlined version of the proposed revisions can be found as a link in the Winter, 2015 CBA Litigation Section Newsletter on the CBA website, and are attached to this e-mail. Thank you.

Peter R. Black
Chairperson, CBA Litigation Section Council

2015 proposed rule changes CRCP – redline

Advertisements

1 Comment

Filed under Administrative, Proceedure

Dean Craft v. Philadelphia Indemnity Insurance Co, 2015CO11 (Feb. 17, 2015)

“Know the Gaps” – Farmer’s Insurance ad. The Colorado Supreme Court granted review of, and answered in the negative the following certified question from the Tenth Circuit Court of Appeals: “whether the notice-prejudice rule applies to the date-certain notice requirement of claims-made policies.” The notice-prejudice rule (set forth in Friedland v Travelers) allows insureds to avoid the consequence of late notice of a claim under a “prompt-notice” provision if the insurer is not prejudiced. A “claims-made” policy, different from an “occurrence” policy, typically requires that notice of an occurrence be given by a date-certain as a condition precedent to coverage. The date-certain provision is, therefore, a material condition of coverage. Applying the notice-prejudice rule would alter the parties’ agreed allocation of risk, something the Court declined to do.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA43.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9669&courtid=2

To read the 10th Circuit’s order following this opinion, click HERE.

Leave a comment

Filed under Contracts, Insurance, Interlocutory Review

S K Peightal Engineers, LTD, a Colorado corporation; Hepworth-Pawlak Geotechnical, Inc., a Colorado corporation; Steve Pawlak; and Daniel E. Hardin v. Mid Valley Real Estate Solutions V, LLC, 2015CO7 (February 9, 2015)

“Before the home reached the market, the Great Recession struck.” – Opinion.  Here, a series of loan contracts for the construction of a home and a later default resulted in a Deed in Lieu of foreclosure. The home was transferred to a corporate subsidiary of the lender. Lender later sued contractor for negligent construction. The lower courts declined to apply the economic loss rule (ELR) to bar the tort claims. The Court reversed, clarifying that the ELR applies to parties with contract remedies, including third-party beneficiaries who are not subsequent purchasers. Here, the subsidiary was a third-party beneficiary to a contract between the contractor and lender and thus not a “subsequent purchaser.” But, the Court remanded for further fact finding regarding the interrelatedness of the contracts and the scope of the contractual duties to determine if the ELR applies.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC728.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9655&courtid=2

Leave a comment

Filed under Contracts