Tag Archives: Preserved on Appeal

Just In Case Business Lighthouse, LLC, v. Patrick Murray, 2013COA112 (July 18, 2013)

“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1261-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9033&courtid=1

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts, Evidence, Torts

Target Corp. v. Prestige Maintenance USA, 2013COA12 (January 31, 2013)

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.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0445-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8815&courtid=1

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Michelle Banning v. William Prester, 2012COA215 (December 27, 2012)

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.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1093-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8783&courtid=1

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Melanna Marcellot v. Exempla, Inc. d/b/a Exempla West Pines, 2012COA200 (November 8, 2012)

The treatment of mental health patients is, by all accounts, stressful. One source of stress can be the potential that a patient might become violent and harm others. For the provider, the threat of lawsuits arising from patient behavior could impose significant costs. To address this, the legislature generally granted mental health providers immunity from civil actions claiming a failure to ward or protect any person. In this case, a visiting psychiatric educator entered a facility with students and was told that no patients presented a special risk. She was then assaulted by a patient. She sued the provider. The trial court granted the hospital’s motion to dismiss under the immunity statute. The court of appeal affirmed, rejecting her arguments that the statute did not apply to her situation, or that it only applied to outpatients. The case was dismissed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA0750-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8739&courtid=1

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Filed under Appellate Review Challenged, Personal Injury, Torts

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.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA2638-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8710&courtid=1

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Filed under Constitutional, Contracts, Insurance, Torts