Case Law Updates

Editor: Jeff Ruebel, Esq., Ruebel & Quillen, LLC

2018

Preferred Professional Insurance Co. v. The Doctors Company - Excess carrier seeking subrogation against primary carrier must plead bad faith - 2018 COA 49 (CA 04/05/18)

Paradine v. Goei Wage claim against CEO was not barred as a matter of law under Wage Claim Act - 2018 COA 55 (4/19/18)

Peña v. American Family Mutual Insurance Co. - Court of Appeals holds that denial of liability does not trigger statutory bad faith provision; and also corrects trial court error on UMPD coverage - 2018 COA 56 (CA 4/19/18)

Franklin Drilling v. Lawrence Construction - Court of Appeals interprets Trust Fund Statute provisions, explaining necessary proof for statutory sections - 2018 COA 59 (CA 4/19/18)

Curry v. Zag Built LLC - Court of Appeals requires district court to provide notice to Plaintiff who does not serve complaint per rule - 18CA0018 (CA 5/3/18)

Hall v. Conoco - Tenth Circuit affirms exclusion of expert testimony and dismissal of case asserting chemical exposure caused cancer - Docket: 17-6086 (10th Cir. 4/10/18)

In Re Bailey v. Hermacinski - Supreme Court finds trial court erred in holding non-party medical providers were in consultation thereby waiving physician-patient privilege - 2018 CO 14 (SC 03/05/18)

Hernandez v. Ray Domenico Farms, Inc. - Supreme Court holds employee must bring wage claim within two years of failure to pay - 2018 CO 15 (03/05/18)

Love v. Klosky - At last, the end of the great tree case…. - 2018 CO 20 (Colo. 3/19/18)

White v. Estate of Soto-Lerma – Court of Appeals hold prejudgment interest is part of policy limit in claim against estate (CA 3/08/18)

Taylor v. Long - Rule 60(b) appeal must be analyzed under 3-part test - 2018COA29 (CA 3/08/18)

In re Marriage of Yates and Humphrey – Receiver must be licensed under marijuana code if appointed by court - 2018COA31 (CA 3/08/18)

Meardon v. Freedom Life Insurance - Court of Appeals invalidates insurance policy arbitration clause - 2018COA32 (CA 3/08/18)

Minshall v. Johnston – Court of Appeals analyzes substitute service rule (CA 3/22/18)

Felders v. Bairett – Rule 68 offer of settlement invalid until civil action actually filed Docket: 16-4173 (10th Cir. 3/9/18)

Auto-Owners Insurance Co. v. Summit Park Townhome Assoc. - 10th Circuit affirms sanctions entered against attorney who failed to comply with disclosure order - No. 16-1348 (10th Cir. 2018)

Auto-Owners v. Summit Park - 10th Circuit holds failure to select impartial appraiser compels vacatur of appraisal award - No. 16-1352 (10th Cir. 2018)

Burton v. Colorado Access & No. and Olivar v. Public Service - Supreme Court enters ruling on service of process on ERISA cases - 2018 CO 11 (2/12/18)

Oakwood Holdings, LLC v. Mortgage Investments Enterprises, LLC - Right to cure under §38-38-302 - 2018 CO 12 (2/12/18)

Romero v. Colo. Dep’t of Human Servs. - Court of Appeals holds that the adverse inference in an administrative hearing is a conclusion of fact - 2018COA2 (CA 01/11/18)

L.J. v. Carricato - Immunity Act bars claims for alleged violation of Child Protection Act - 2018COA3 (CA 01/11/18)

Airth v. Zurich Am. Ins. Co. - Court of Appeals holds enhanced UM/UIM need not be rejected in writing - 2018COA9 (CA 02/08/18)

Montoya v. ICAO - Claimant need not prove both medical incapacity and loss of wages to establish right to workers’ comp benefits - 2018COA19 (CA 02/08/18)

Marso v. Homeowners Realty - Settlement with agent is a setoff against jury verdict against principal (2018COA15CA 02/08/18)

Danko v. Conyers - Court of Appeals holds subsequent malpractice in treating tort injuries is not superseding cause, but instead is governed by Restatement (CA 02/08/18)

Dorsey & Whitney LLP v. RegScan, Inc. - Out of state client hiring law firm in Colorado subjects itself to specific personal jurisdiction - 2018COA21 (CA 02/22/18)

Scott v. Scott - Court reviews dismissal of complaint of civil theft and other causes of action under Warne - 2018COA25 (02/22/18)

Texas Brine Co. v. Occidental Chem. Corp., Tenth Circuit dismisses appeal on discovery as premature - No. 17-6075 (10th Cir. 1/19/2018)

Menocal v. The GEO Group Docket - Tenth Circuit affirms class certification of immigration detainees - 17-1125 (2/9/18)

ACE American Insurance Company v. Dish Network - Tenth Circuit finds Colorado courts would hold that statutory damages under Telephone Consumer Protection Act were not covered - No. 17-1140 (10th Cir. 2018)

United States v. Colorado & Eastern Railroad Co - Tenth Circuit affirms dismissal of claim seeking to end run consent decree - No. 16-1374 (10th Cir. 2018)

Fernandez v. Clean House - Tenth Circuit reinstated FLSA claim alleging willfulness - No. 17-1230 (10th Cir. 3/2/18)

Old Republic Insurance Co. v. Continental Motors - Website access insufficient contact for specific jurisdiction - No. 16-1408 (10th Cir. 2017)

EEOC v. JetStream Ground Services - Tenth Circuit approves of district court’s rulings on sanctions - Docket: 17-1003 (10th Cir. 12/28/17)

United States v. Turley - Tenth Circuit affirms exercise of purchase option - Docket: 16-7090 (10th Cir. 12/28/17)

Van Steen v. Life Insurance Company N.A. - Tenth Circuit reverses ERISA administrator decision on termination - Docket: 16-1405 (10th Cir. 01/02/18)

Hoffman v. 21st Century North American, 209 So. 3d 702 (La. 10/2/15)

2017

Walker v. Ford Motor Company - 2017 CO 102- (SC 11/13/17)

Align v. Boustred - Supreme Court finds jurisdiction over foreign manufacturer under stream of commerce doctrine - 2017 CO 103 - (SC 11/13/17)

Miller v. Hancock - Court of Appeals upholds jury finding of no non-economic damages - 2017COA141 (CA 11/16/17)

Berthold v. ICAO - 2017COA145 (CA 11/16/17)

Elliot v. Ward - Tenth Circuit holds cancellation of stock in bankruptcy proceeding rendered shareholder derivative suit moot - Docket: 16-6014 (11/17/17)

City of Arvada v. Denver Health and 12 Hospital Authority— Statute does not create a private right of action to health provider (SC 10/10/17)

People v. Cockrell - Court of Appeals finds dying declaration statute is constitutional.

HCG Platinum v. Right Way Nutrition - Tenth Circuit reverses order precluding damages at trial as sanction for insufficient description and computation of damages - Docket: 15-4157 (10th Cir. 10/17/17)

Owings v. United of Omaha Life - Tenth Circuit reverses trial court’s ruling on disability benefits decision - Docket: 16-3128 (10th Cir. 10/17/17)

First Western Capital v. Malamed - Tenth Circuit rejects trial court waiver of irreparable harm requirement in trade secret injunction proceeding - Docket: 16-1434 (10th Cir. 10/30/17)

SCO Group v. IBM - Tenth Circuit affirms claims based on finding of no violation of independent duty - Docket: 16-4040 (10th Cir 10/30/17)

Ravenstar, LLC v. One Ski Hill Place, LLC - Contract with liquidated damages does not preclude claim for actual damages (SC 09/11/17)

People v. Clemens - (SC 09/11/17)

Klein v. Tiburon Development LLC - Court of Appeals affirms attorney fee award (CA 08/10/17)

T.D. v. Wiseman - Court of Appeals finds abuse victim was not under a disability as defined by statute (CA 08/10/17)

EnCana Oil & Gas (USA), Inc. v. Miller - Court of Appeals holds district court retained jurisdiction over class settlement for purposes of enforcing terms (CA 08/10/17)

Ruybalid v. Board of County Commissioners - Court of Appeals affirms holding that rogue DA not entitled to attorney’s fees from county (CA 08/24/17)

People v. Stanley - Court of Appeals rules on interplay of liability recovery and restitution (CA 09/07/17)

Dahn v. Amedei - Docket: 16-1059 - (10th Cir. 8/14/17)

Becker v. Ute Indian Tribe - Court of Appeals rules on tribal-exhaustion rule Docket: 16-4175 (10th Cir. 8/25/17)

Ute Indian Tribe of the Uintah v. Lawrence - Tenth Circuit denies tribe claims of lack of jurisdiction in federal court Docket: 16-4154 (10th Cir. 8/25/17)

T.D. v. Patton - Tenth Circuit denies qualified immunity in danger creation custody case Docket: 16-1092 (10th Cir. 8/28/17)

Healy v. Cox Communications - Court holds set-top-cable boxes are not an illegal restraint of trade No. 15-6218 (10th Cir. 2017)

Oldham v. O.K. Farms - Tenth Circuit reverses trial court’s sua sponte summary judgment ruling Docket: 16-7069 (10th Cir. 9/25/17)

N.M. v. Trujillo— Lacking a special relationship, Supreme Court finds nonfeasance did not create a duty on dog owner (SC 06/26/17)

Mesa County Public Library District v. Industrial Claim Appeals Office - Unemployment administrative proceeding is not authorized to determine cause of claimant’s volitional act (SC 06/26/17)

Hutchison v. Industrial Claim Appeals Office - Court holds that facts of case did not support apportionment in worker’s compensation case. (CA 06/01/17)

Scott R. Larson, P.C. v. Grinnan - Court of Appeals defines ethical duty required of referring attorney to justify fee split (CA 6/15/17)

Sovde v. Scott, D.O. - Court affirms trial court decision to deny request to permit calling expert due to failure to cross-endorse (CA 6/29/17)

Pacitto, Jr. v. Prignano - Court of Appeals strictly enforces 90-day appeal deadline in Arbitration Act (CA 0727/17)

Owners Insurance Co. v. Dakota Station II Condominium Association, Inc. - Court of Appeals determines appraisal was impartial per policy terms despite evidence of improper conduct (CA 0727/17)

Varsity Tutors LLC v. Industrial Claim Appeals Office - Court of Appeals determines part-time tutors were independent contractors, not employees (CA 0727/17)

Ross v. University of Tulsa - Tenth Circuit affirms dismissal of Title IX complaint - No. 16-5053 (10th Cir. 6/20/17)

Parker Excavating v. LaFarge West - Tenth Circuit affirms summary judgement on 1981 claims Docket: 16-1225 (10th Cir. 07/18/17)

Foster v. Plock- Supreme Court holds mutuality required to prove claim and issue preclusion (SC 05/15/17)

In re Villas at Highland Park Homeowners Ass’n v. Villas at Highland Park, LLC - Court defines disqualification requirements under ethics rules (SC 05/22/17)

St. Vrain Valley School District RE-1J v. Loveland - Supreme Court holds zip-line on playground does not waive governmental immunity (SC 05/22/17)

England v. Amerigas Propane—Supreme Court holds future claims of injury can be re-opened under work compensation settlement release because of mutual mistake (SC 05/22/17)

State Farm Mutual Automobile Insurance Co. v. Johnson - Supreme Court holds one named insured can reject UM/UIM coverage for all insureds (SC 06/06/17)

Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc. - Developer can retain provisions in covenants requiring arbitration of construction defects (SC 06/06/17)

People v. Heisler - Court of Appeals affirms evidentiary authentication of text messages (CA 05/04/17)

Cox v. Sage Hospitality Resources, LLC - Court of Appeals reverses dismissal for forum non conveniens (CA 05/04/17)

Taylor Morrison of Colorado, Inc., f/k/a Morrison Homes of Colorado, Inc., Plaintiff-Appellant and Cross-Appellee, v. Terracon Consultants, Inc. - Court of Appeals holds how set-off and damage limitation calculation should be performed (CA 05/18/17)

Pueblo County v. Industrial Claim Appeals Office - Union official post-meeting slip and fall found compensable under worker’s compensation law (CA 05/18/17)

Sanchez v. Industrial Claim Appeals Office - Court of Appeals rejects constitutional challenges to worker’s compensation law (CA 05/18/17)

Tallman Gulch Metropolitan District v. Natureview Development, LLC. - Court of Appeals holds that GIA does not on its face prevent governmental entity claims against officers for breach of fiduciary duty (CA 05/18/17)

American Family Mutual Insurance Company v. Ashour - Court of Appeals holds UIM coverage available in case where injured party receives worker’s compensation benefits (CA 05/18/17)

Jacks v. CMH Homes - 10th Cir. denies motion to compel arbitration against non-signatory family members [Docket: 15-6197] (10th Cir. 05/17/17)

Public Service Company of NM v. Barboan - 10th Circuit affirms refusal to condemn tribal lands [Docket: 16-2050] (05/26/17)

JPMorgan Chase Bank N.A. v. McClure — Supreme Court finds membership in Colorado LLC is located in Colorado (SC 04/10/17)

Clean Energy Collective, LLC v. Borrego Solar Systems, Inc. - Supreme Court again discusses general and specific jurisdiction over a corporate entity (SC 04/17/17)

Forest City Stapleton Inc. v. Rogers - Privity is necessary for implied warranty claim (SC 04/17/17)

McShane v. Stirling Ranch Property Owners Association, Inc. — Court finds that exculpatory clause does not preclude claims against entity not designated in clause (SC 05/01/17)

People v. Valdez - Court of Appeals finds no abuse of discretion in permitting actual video replays during deliberation (CA 04/06/17)

Allison v. Engel - Court of Appeals finds no jurisdiction under Rule 54(b) (CA 04/06/17)

International Network, Inc. v. Woodard - Court affirms verdict against broker where seller acted improperly (CA 04/06/17)

In re Marriage of Roth - Death of arbitrator before conclusion of proceedings requires appointment of new arbitrator (CA 04/06/17)

Malpica-Cue v. Fangmeier - Jury mistake requires evidentiary hearing (CA 04/06/17)

Dolan v. Fire and Police Pension Ass’n - Challenge to regulations found time-barred (CA 04/13/17)

Cox v. Sage Hospitality Resources, LLC. - Trial court erred in dismissing suit for forum non-conveniens (CA 05/04/17)

Pompeo v. Board of Regents - 10th Circuit affirms right of college to restrict inflammatory speech Docket: 15-2179 (10th Cir. 03/28/17)

People for Ethical Treatment v. U.S. Fish & Wildlife - Tenth Circuit affirms regulation as proper in challenge from property owners - Docket: 14-4151 (10th Cir. 03/29/17)

In re Goodman v. Heritage Builders, Inc. - Supreme Court decides that 90-day provision of CDARA trumps all other statutory provisions (SC 02/27/17, modified 3/20/17)

Nibert v. Geico Casualty Co. - Court of Appeals vigorously applies 1116 in favor of insured. (CA 02/23/17)

Francis v. Aspen Mountain Condominium Ass’n, Inc. - CCIOA held not to apply retrospectively (CA 02/23/17)

Bermel v. BlueRadios, Inc. - Economic Loss rule does not apply to statutory civil theft claims (CA 02/23/17)

Dami Hospitality, LLC v. Industrial Claim Appeals Office - Fine under worker’s compensation found unconstitutionally applied (CA 02/23/17)

Munoz v. American Family Mutual Insurance Co. - Court of Appeals holds UM civil action must be brought to receive prejudgment interest (CA 02/23/17)

Sterling Ethanol, LLC v. Colorado Air Quality Control Commission - Court of Appeals reverses trial court and dismisses untimely filing (CA 02/23/17)

Pressey ex rel. Pressey v. Children’s Hospital Colorado - The Court reviews significant damages issues in medical malpractice case (CA 03/09/17)

City of Lakewood v. Safety National Casualty Corp. - Court of Appeals finds no coverage for §1983 claims under GL policy (CA 03/09/17)

Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co. - Court of Appeals gives owner more time to file complaint than it asked for in its contract (CA 03/09/17)

Gallegos v. LeHouillier - Court of Appeals attorney in malpractice action must prove that judgment in underlying case would have been uncollectible. (CA 03/23/17)

Tancrede v. Freund - Court of Appeals holds that only tort claim available on private property, including auto accident, is PLA (CA 03/23/17)

Philadelphia Indemnity Ins. Co. v. Lexington Ins. Co. - Declaratory action between carriers to determine indemnity of shared loss made by Court (10th Cir. 01/19/17)

Gerald H. Phipps, Inc. v. Travelers Property Casualty Company - Tenth Circuit affirms no coverage under builder’s risk policy since there was no claim of loss to covered property (10th Cir. 2/16/17) No. 16-1039 [Note this is a Rule 32.1 case]

Flores-Molina v. Sessions - Giving false information found to be crime of moral turpitude permitting removal of immigrant - Docket: 16-9516 (3/07/17)

Romero v. Top-Tier Colorado - Court held that trial court must initially make determination whether tips were wages in determining wage claim - Docket: 16-1057 (10th Cir. 3/07/17)

Stanley v. Gallegos - Tenth Circuit defines inquiry trial court is to make in determining qualified immunity - Docket: 15-2156 (10th Cir. 03/17/17)

In re Marriage of Gromicko— Supreme Court instructs trial court as to managing discovery (SC 01/09/17)

Kovac v. Farmers Insurance Exchange - Court of Appeals holds ‘received payment’ statutory language means date of release of claims (CA 01/12/17)

Smith v. State Farm Mutual Automobile Insurance Co. - Court of Appeals finds tractor is motor vehicle under UIM policy (CA 01/12/17)

Begley v. Ireson - Court of Appeals reverses dismissal of tortious interference with contract case (CA 01/12/17)

Steven Fritzler, v. Cheryl Mitchell - Court of Appeals holds award of video deposition and privately hired court reporters for trial are discretionary (CA 01/12/17)

Lewis v. Taylor - Innocent investor in Ponzi scheme maybe entitled to keep some of the funds exceeding the principal (CA 02/09/17)

Active Release Techniques, LLC v. Xtomic, LLC - Court of Appeals reverses abuse of process verdict in trade secret case (CA 02/09/17)

Martinez v. American Family Mutual Insurance Co. - Court of Appeals holds precipitation that falls and flows into window wells is surface water (CA 02/09/17)

In re: Hayes Family Trust - Payment of appraisal before entering judgment is settlement and no judgment should enter. Docket: 15-6164 (10th Cir. 01/04/17)

Belnap v. Iasis Healthcare - Tenth Circuit enforces arbitration agreement, albeit reluctantly Docket: 15-4010 (10th Cir. 01/05/17)

DeWitt v. Southwestern Bell Telephone - Docket: 14-3192 (10th Cir. 01/18/17)

Perez v. El Tequila, LLC - Don’t mess with the Division of Labor - Docket: 16-5002 (10th Cir. 02/07/17)

Colorado Rules of Civil Procedure Amended in First Rule Change of 2017

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