At the heart of contract law is a principle of risk management and allocation. This case involves Prestige indemnifying Target for injuries caused by a Prestige employee. Target sued Prestige after its employee fell and claimed workers’ compensation. The trial court found for Target and awarded damages for past and future damages. Prestige appealed the award of future damages. The court of appeals held: 1) future damages are a substantive issue, not one of judicial administration, so MN law applied as stated in the contract. But, CO law applied to matters regarding the conduct of the litigation: whether an issue was preserved for appeal and the standard of review; 2) the issue was preserved because future damages were addressed during closing and by the court; 3) the award was supported by evidence that the damages were reasonably likely to occur as estimated by an expert. Affirmed.
Tag Archives: Damages
Time is money, especially to a judgment creditor. Here, a jury found for Plaintiff in a slip-and-fall case. But the trial court vacated the judgment and ordered a new trial. Plaintiff appealed to the Supreme Court, which reinstated judgment. The trial court awarded damages and post-judgment interest at the statutory rate of 9%. On appeal again, Defendant argued that the correct post-judgment interest rate should be the market-based rate, currently at 3%, used if a judgment debtor appeals. The court of appeals disagreed, holding that CRS 13-21-101’s appealing-judgment-debtor market rate does not apply to a judgment creditor who appealed after judgment was vacated, because a favorable judgment had been entered. Separately, though Defendant’s challenge to the sufficiency of the evidence was unsuccessful; it was not groundless or frivolous, so attorney fees were not awarded.
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.
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.
General Steel Domestic Sales, LLC, d/b/a General Steel Corp. et. al., v. Harold Bacheller, III, 2012CO68 (November 27, 2012)
The First Amendment does not protect purely private arbitration from abuse of process claims when arbitration is not an activity involving the government. In this case, a former Employee wins a binding arbitration against an Employer who brought a claim for violation of an employment contract. Employee sued for abuse of process, malicious prosecution, and civil conspiracy. The trial court did not instruct the jury on the heightened burden on plaintiffs to show that the arbitration lacked a reasonable factual basis on all three claims. The jury found for the Employee and the court awarded treble exemplary damages. The Supreme Court upheld both the decision not to apply the heightened standards to purely private arbitration and its discretionary decision to treble exemplary damages based on in-house counsels’ willful and wanton abuse of litigation and discovery procedures.
“Are we there yet?” “Are we there yet?” In this case, addressing the finality of a trial court judgment, the court of appeals said “No!” Plaintiff brought a first-party claim against her insurance company under CRS 10-3-1116 for unreasonable delay or denial of payment and for bad faith breach of an insurance contract. The jury found for plaintiff and awarded damages on both counts. The statute, however, provides for two kinds of damages: 1) attorneys’ fees and costs, and 2) two times the covered benefit. Thus, attorneys’ fees are a component of damages. Until a final order on damages issues, no final judgment has entered. Without final judgment, the court of appeals lacks jurisdiction. The insurance company appealed judgment on liability before all claims had been resolved and before attorney fee damages had been ordered. Thus, the court dismissed the appeal.
Admit it if you are wrong, fix it, and move on. The trial court did that here. In this Colorado Wage Claim Act case, the dispute was whether the employer would be liable for unpaid wages under the statute. The jury said yes, but failed to add statutory penalties. To correct that error, the court had the jury revisit its verdict; it then found for the employer. That was error. Damages are not facts for a jury to decide if, as in this case, a statute provides for mandatory penalties that can be mechanically determined by applying the statute. But, post-verdict, the trial court realized its mistake, reconsidered, found for the employee, and awarded mandatory penalties. The court of appeals agreed that the trial court erred by having the jury revisit its initial findings, and held that, though the error was avoidable, the trial court properly reconsidered its first ruling and fixed the problem.
A cyclist is attacked on federal land during a sponsored race by two “predator control dogs” whose owners had a permit to graze sheep in the area. The trial court granted summary judgment for the owners, finding that the Premises Liability Act (PLA) abrogated the cyclist’s common law tort claims, and a claim under the “dog bite statute” was excluded by the “predator control dogs” exception. The court of appeals disagreed in part. First, because the owners were grazing sheep pursuant to a Forest Service permit, they were “landowners” under the PLA, which abrogated common law tort claims. But, the owners were not in “control of” the land, so the predator control dog exception did not apply. The statutes did not conflict because the remedies under each are different. Finally, the court agreed that a settlement offer from the owners was successfully withdrawn and thus not enforceable.
Certiorari was granted in this case on “Whether the court of appeals erred in holding that the working dog exemption to section 13-21-124, C.R.S. (2012), applies only when a bite occurs on a dog owner’s property or property under his or her control, and that “control” of property exists only if one has the right to exclude others from it.”
Colorado Pool Systems, Inc. and Patrick Kitowski v. Scottsdale Insurance Company and Don Hansen, 2012COA178 (October 25, 2012)
“It’s not my fault—it was an accident!” In this case, a swimming pool had to be rebuilt. An adjuster told the insured the work would be covered, but the insurer later denied coverage under a general commercial liability insurance policy. Construing the policy, the court held: 1) “accident” is an ambiguous term that means any damage not intended; 2) an “occurrence” is damage to non-defective work, but not to defective work, because defective work is required to be repaired; and 3) the Construction Professional Commercial Liability Insurance Act is retroactive, but unconstitutional as applied. The insured also brought a negligent misrepresentation claim. The court held that because “accident” was ambiguous in the policy, the claim was actionable. It was also reasonable for the insured to rely upon the adjuster’s statements as if they were fact. Summary Judgment was reversed.
Parker Excavating, Inc. v. City of Denver, through its Board of Water Commissioners, 2012COA185 (October 25, 2012)
Always prepare for the unexpected, especially in construction contracts. In this case, a company that contracted with Denver Water to build a dam and reservoir encountered unanticipated wet muck that substantially increased the costs of excavation. Fortunately, the parties anticipated unexpected conditions and included an “equitable adjustment” provision in their contract. The issue was the amount of the adjustment. The trial court did not award the contractor legal damages or the full amount of the additional costs. Rather, it awarded an equitable amount based on a division of responsibility for the increased costs. The court of appeals, after finding the appeal was timely filed, agreed. It held that the contract itself provided for an equitable remedy. Thus, the trial court did not clearly err by awarding an additional but reduced amount to the contractor.