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FEBRUARY 2012 INSIDE CASE LAW UPDATE; CO. Supreme Court & Court of Appeals Update THE CDLA THE CDLA NEWSLETTER HIGHLIGHTING IMPORTANT ISSUES FACING TODAYS DEFENSE ATTORNEYS Announcement The US District Court announced that commencing February 23, 2012 attorneys will be required to open civil cases in the District of Colorado via ECF and provide payment via pay.gov. Other changes that will occurQUICK LINKS; (some before February 23) include: • The clerk’s office will no longer return your filed complaint via email. You will receive a Notice of Electronic Filing (NEF) when your case is opened.In Re Marriage of Brandt • Summons forms, if provided, will be issued through ECF. You will receive a NEF with the summons and theFarm Deals v. CO. Dept. of Rev. magistrate consent form. A new event has been created for filing the civil summons called “Summons Request.” Please note you should use the national summons form (http://www.cod.uscourts.gov/Roque v. Allstate Insurance Co. Forms.aspx), not the local form. • The fee for filing an appeal may be paid on-line at the time of filing.Rea V. Corrections Corp. of America • A new event has been created for filing the corporate disclosure statement and entering corporate parentsVaccaro v. American Family in CM/ECF.TW Telecom V. Carolina Internet LTD More Information and Instructions for opening a new case will be posted at: http://www.cod.uscourts.gov/CMECF/CMECF.aspx Training for attorneys and staff: http://www.cod.uscourts.gov/CMECF/CMECF_TrnReg.aspx. The ECF Help Desk can be reached at: 866.365.6381 or 303.335.2050
CASE LAW: COLORADO SUPREME COURTIN RE MARRIAGE OF BRANDTSupreme Court interprets “presently resides” term in Child Custody Act (SC 01/23/12) The Uniform Child CustodyJurisdiction and Enforcement Act provides that the issuing state has exclusive continuing jurisdiction over its childcustody until it, or another state, makes a determination that the child and the child’s parents do not “presentlyreside” in the issuing state. The Supreme Court held that the statutory term “presently reside” is not equivalent to“currently reside” or “physical presence,” the two notions on which the trial court based its order assuming juris-diction to modify Maryland’s child custody decree. Instead, it held that a court’s determination should be based onan inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to whichhe or she intends to return to and remain and goes on to enumerate a laundry list of factors. l COURT OF APPEALS FARM DEALS, LLLP V. COLORADO to establish procedures for applying the interlocutory appeals statute, § 13-4-102.1]. Though the trial court DEP’T OF REVENUE certified the Order, it, too, was not filed within the (CA 01/05/12). Petitioners filed an appeal in the trial deadline for filing with the court of appeals [fourteen court challenging determinations by the Colorado De- days after the date of the certification]. The Court of partment of Revenue denying income tax credits for Appeals found that the trial court had no authority to conservation easements during the 2003 tax year. Pe- extend the fourteen-day deadline for filing a motion titioners filed a motion requesting certification of the for certification of its Order. The Court also concluded order for an interlocutory appeal under CRS § 13-4- that petitioners failed to establish good cause for their 102.1. Respondents opposed on numerous grounds, failure to meet the jurisdictional deadline of C.A.R. including that it was not filed with fourteen days of 4.2(d). While C.A.R. 26(b) authorizes extending the the Order being appealed from the date of the Order deadline for good cause due to excusable neglect, the being appealed, as required by C.A.R. 4.2(c). [C.A.R. Court held the justification for late filing here demon- 4.2 was promulgated by the Colorado Supreme Court strated carelessness, not excusable neglect. l
COURT OF APPEALS cont. ROQUE V. ALLSTATE INSURANCE CO. Court of Appeals finds “road rage” incident does not trigger UM coverage (CA 01/09/12). Plaintiffs, in one car, and Richard Terlingen, in his car, ex- changed verbal hostilities while driving next to each other. When plain- tiffs turned into a McDonald’s parking lot, Terlingen followed. He parked directly behind plaintiffs’ car, preventing them from leaving the parking lot. After all three of them exited their vehicles, Terlingen pulled a golf club from the trunk of his car and struck plaintiffs with it, causing injuries. Terlingen had home, umbrella, and automobile insurance policies with American Family Mutual Insurance Company, which obtained a declara- tory judgment in federal court that it was not required to cover Terlingen for the injuries that he had intentionally caused. The trial court then found that the uninsured motorist coverage in the Allstate policy covering the plaintiffs’ vehicle did not cover the injuries that Terlingen had intention- ally caused. On appeal, plaintiffs argued that their injuries arose out of Terlingen’s use of his vehicle because, but for the road rage incident, the altercation would not have occurred, and by parking closely behind them to prevent them from driving out of the parking lot, Terlingen used his vehicle to facilitate the assault. Allstate’s policy covers damages caused by the owner or operator of an uninsured vehicle “aris[ing] out of the owner- ship, maintenance, or use of an uninsured auto.” Here, exiting the car and then engaging in intentional misconduct broke the requisite causal chain between use of the vehicle and the injuries. Accordingly, because plain- tiffs’ injuries did not result from use of a vehicle, they were not entitled to UM coverage. lREA V. CORRECTIONS CORPORATION OF AMERICADismissal of inmate’s suit affirmed by Court of Appeals (CA 01/09/12). CCA operates a private prison under con-tract with the Colorado Department of Corrections. According to Rea’s allegations, a CCA sergeant searchedhis cell, seized documents about the unsolved murder of Jon Benet Ramsey, and started a rumor that Rea wasinvolved in that murder. Rea instituted the present action, alleging claims of defamation, failure to provide pro-tection, discrimination, and tampering with legal mail and witnesses against CCA, the sergeant, and a CCA casemanager. The sergeant and the CCA case manager were never served with process in this matter, and the districtcourt dismissed the claims against CCA. The Court of Appeals first concluded sua sponte that named but unserveddefendants are not litigants for purposes of determining the appealability of an order under the final judgmentrule. Rea alleged that, instead of dismissing the case against CCA, the court should have granted him a defaultjudgment against CCA. However, CCA filed a motion for extension of time to file a responsive pleading in statecourt and timely filed an answer in federal court, which continued with the case after it was remanded to statecourt. Therefore, Rea was not entitled to a default judgment. Finally, Rea asserted that the judgment should bereversed because the district court was biased and prejudiced against him. However, Rea waived any appearanceof impropriety because he did not seek to disqualify the judge in the district court, and Rea did not allege any factsto support a claim of actual bias. l
COURT OF APPEALS cont.VACCARO V. AMERICAN FAMILY curring after their effective date, even where the un- derlying insurance claim arose before their enactment.INSURANCE GROUP. Here, a reasonable jury could find that defendant en-Court of appeals finds “double damage” statue can ap- gaged in new acts of unreasonable denial and delay af-ply to claims arising before statute’s enactment (CA ter August 5, 2008, sufficient to impose liability under01/09/12). A negligent tortfeasor injured plaintiff in a the statutes. Defendant also contended that there wastwo-car accident in 2005. The tortfeasor had liability insufficient evidence of unreasonableness to supportinsurance with policy limits of $25,000. Defendant’s plaintiff ’s statutory claim. Plaintiff provided evidencepolicy insuring plaintiff provided UIM coverage up at trial beyond a merely subjective opinion on whetherto $100,000. Plaintiff settled his claim against the at- defendant acted reasonably, particularly that defendantfault driver for the policy limit of $25,000. After de- requested—and then ignored—the IME report. It saidfendant received plaintiff ’s IME report on September that a reasonable jury could have found that defendant22, 2008, which opined that extensive medical treat- refused to consider evidence showing plaintiff was en-ment was necessary and causally related to the acci- titled to additional compensation. Defendant furtherdent, defendant denied plaintiff ’s claim for $75,000 in contended that the trial court erroneously ordered itUIM benefits. On appeal, defendant asserted that the to pay an additional $40,539 in prejudgment interesttrial court’s submission of plaintiff ’s statutory claim to because the jury awarded plaintiff the policy limit ofthe jury was an unconstitutional retroactive applica- $75,000 in contract damages. Because it is part of thetion of the statutes. The statutes, which took effect on compensation awarded for bodily injury, prejudgmentAugust 5, 2008, create a right of action separate from interest is within the bodily injury coverage of an in-the common law tort of bad faith breach of an insur- surance policy and is subject to those policy limits.ance contract. The COA held that although the stat- Therefore, defendant was not liable for prejudgmentutes may not operate retroactively, they may properly interest beyond the $75,000 awarded on plaintiff ’s con-apply to new acts of unreasonable denial or delay oc- tract claim. l 10th CIRCUIT COURT OF APPEALS cont.TW TELECOM HOLDINGS INC. V. protection. Prior precedent held that an appeal taken by a bankruptcy debtor is not subject to the automaticCAROLINA INTERNET LTD. stay in bankruptcy. Joining several other circuit courtsTW Telecom Holdings Inc. v. Carolina Internet Ltd. holding to the contrary, the Tenth Circuit overruledTenth Circuit overrules precedent and applies auto- its precedent and announced that from this date for-matic stay to appeals. (10th Cir. 11/15/2011) (D.Colo.) ward, the automatic stay applies to stay all appeals in(Gorsuch). Defendant appealed a judgment against proceedings that were originally brought against theit entered in favor of plaintiff. While the appeal was debtor, regardless of whether the debtor is the appel-pending, defendant filed for Chapter 11 bankruptcy lant or appellee. l
CDLA DIRECTORSBrendan O. Powers, Esq.PresidentSpies, Powers & RobinsonTeresa W. Seymour, Esq.Vice PresidentJones, Waters, Geislinger & SeymourDawn R. Kubik, Esq.Treasurer2012 Conference ChairJones, Waters, Geislinger & SeymourRob Jones, Esq.Secretary2013 Conference ChairPaul Edwards & AssociatesJeffrey C. Ruebel, Esq.Ex-OfficioRuebel & QuillenCaitlin S. Quander, Esq.Legislative DirectorHarris, Karstaedt, Jamison & PowersJohn R. Chase, Esq.At-Large DirectorTrial Academy ChairMontgomery, Kolodny, Amatuzio & DusbabekDavid M. McLain, Esq.At-Large DirectorHiggins, Hopkins, McLain & Roswell, LLCJody Haskins, Esq.Young Lawyer Co-ChairWhite & SteeleJeff Garcia, Esq.Young Lawyer Co-ChairDiversity ChairPatterson Nuss & SeymourHeather A. Salg, Esq.Ex-Officio /Communications DirectorHarris, Karstaedt, Jamison & PowersBo Donegan, CPAExecutive Director5761 South Elm StGreenwood Village, Co 80121303-263-6466