January 30, 2006 There are no case announcements today from the supreme court. The supreme court nominating commission will be interviewing applicants Tuesday and Wednesday for the vacancy on the supreme court. We'll know by the end of the week who the three finalists are. One of those three will be appointed by the 17th of February. I'll keep you posted. Again, I have a prediction on who will get the appointment, but I'm not sharing. I'll simply let you know whether I was right or not. January 27, 2006 Today's announcements from the court of appeals are here. The court issued three published decisions, summarized below. Trial court
erred in awarding costs under C.R.S. § 13-17-202 for psychiatric
expert who did not testify at trial and whose testimony was inadmissible.
While actual costs includes reasonable expert fees, the court of appeals
held that when an expert is hired to testify but does not because his
or her testimony is inadmissible, the expert’s services cannot
be characterized as reasonably necessary. Clayton
v. Snow In a health insurance coverage action concerning exclusions for preexisting conditions in individual health insurance policies, Plaintiff had disclosed in the application process a history of endometriosis. The form policy subsequently issued contained a general provision providing coverage for preexisting conditions after twelve months, but also stated, “This provision does not apply if the sickness or physical condition is explicitly excluded in writing from coverage under the policy.” The Declarations Page of the policy excluded treatments for “endometriosis or complications” for a minimum period of twenty-four months. Plaintiff later underwent treatment and surgery for endometriosis. In upholding the district court's grant of summary judgment in favor of the insurance company, the court of appeals concluded that C.R.S. § 10-16-118(1)(a)(II) applies only to the general category of preexisting conditions and does not prohibit the exclusion of a specifically identified condition, such as the the specific exclusion for treatments relating to “endometriosis or complications” in the policy at issue. Usick v. American Family Mutual Insurance Co. Court upholds CBI determination that individual convicted of the federal crime of knowing receipt (via the internet) of a visual depiction of a minor engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(2)) was statutorily obligated to register with the state sex offender registry because of that federal conviction. Plaintiff challenged that determination under C.R.C.P. 106 and via a declaratory judgment action. The court rejected that challenge, rejecting plaintiff's argument that since he was convicted only of knowingly receiving prohibited sexual material but acquitted of possessing such material, his federal convictions did not constitute the offense of possession or control of sexually exploitative material. The court held that a person convicted of violating 18 U.S.C. § 2252(a)(2) has engaged in conduct that, if committed in Colorado, would constitute sexual exploitation of a child in violation of C.R.S. § 18-6-403(3)(b.5) and is, therefore, subject to the registration requirement of C.R.S. § 16-22-103(1)(b). Fabiano v. Armstrong January 26, 2006 Here are today's court of appeals announcements. The court issued three published decisions, summarized below. Clayton v.
Snow January 25, 2006 The court of appeals will announce the following decisions tomorrow, including three published decisions. Due to my work schedule and some serious computer hardware issues at my firm, I may not be able to get the published decisions summarized and posted tomorrow. I will try to get them up by the end of the week. PUBLISHED OPINIONS No.: 04CA1942 Melody Clayton v. Matthew Snow UNPUBLISHED OPINIONS No.: 02CA0907 People v. William J. Garcia January 23, 2006 The court of appeals' oral argument calendar for March is here. Here are today's supreme court announcements. The court issued two decisions, summarized below. The court also granted cert. in two cases, and the issues in those cases are below the case summaries. In a case of a sexual assault on a child where the child did not testify at trial, the admission of the child’s statements to a doctor and the child’s statements to his father and his father’s friend did not deprive the defendant of his constitutional rights to confront the witnesses against him. The court concluded that the doctor’s questioning of the child during the course of a medical examination did not constitute the functional equivalent of police interrogation. The doctor was not a government official who produced the child’s statements with a purpose of developing testimony for trial, nor was the police officer involved in producing the statements with a purpose of developing testimony for trial. In addition, from the perspective of an objective witness in the child’s position, it would be reasonable to assume that the examination was only for the purpose of medical diagnosis, and not related to the criminal prosecution. Therefore, the statements were not testimonial under Crawford v. Washington. The court then analyzed the statements under Ohio v. Roberts and held that the statements were for purposes of medical diagnosis and treatment bore sufficient indicia of reliability. Their admission did not violate the defendant's confrontation rights. Finally, the court concluded that their admission did not violate the state constitution, under the test of People v. Dement. Turning to the child's statements to his father and his father's friend, the court concluded they were excited utterances, not testimonial, and therefore did not run afoul of the Confrontation Clause or People v. Dement. Next, the court
held that admission of a videotaped interview of the child by police
was not plain error because of the ample other evidence to support the
conviction. Finally, the court concluded that sexual assault on a child
is a general intent crime to which voluntary intoxication is not a defense.
Justice Bender, joined by Justice Martinez, concurred in part and dissented
in part, concluding that the doctor’s questioning did constitute
the functional equivalent of police In an interlocutory
appeal of a suppression order, the court affirmed the trial court’s
suppression of evidence seized from the defendant’s purse and statements
she made to the police, after The court granted cert. in the following cases: Rychel v. Certain Underwriters at Lloyds of London, No. 05SC590, on this question:
Whether the court of appeals erred in finding that a hockey player’s
injury was not a compensable accident under his professional athlete’s
disability insurance policy, on the basis that an injury sustained during
an on-ice fight could not be caused by a “sudden and unexpected
event” as a matter of law. McClaflin v.
ICAO, No. 05SC771, on this issue: Whether Petitioner satisfied the actively seeking work requirement of section 8-73-107(1)(g)(I), C.R.S. (2005), by attempting to obtain reinstatement from her prior employer where a labor agreement prohibited her from seeking alternative employment.
January 20, 2006 The supreme court will issue one decision on Monday, People v. Vigil, No. 04SC532, a case addressing Crawford v. Washington issues. January 19, 2006 The court of appeals' announcements for today are here. The court issued only unpublished decisions. January 18, 2006 The court of appeals will announce the following unpublished decisions tomorrow: UNPUBLISHED OPINIONS No.: 03CA1933 People v. Lavan Jackson, Sr. January 17, 2006 Today's supreme court announcements are here. The court issued one decision, summarized below. the court did not grant cert. in any cases. Addressing a conviction for harassment by stalking, the supreme court concluded that the “knowingly” mens rea in C.R.S. § 18-9-111(4)(b)(III) does not apply to the statutory phrase “in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Instead, a clear intent appears in the statute to limit the application of “knowingly” to the acts of a defendant who “[r]epeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with” the victim or another enumerated person. The court held that the legislature provided for an objective test by which to gauge whether a defendant’s acts would cause a reasonable person to suffer serious emotional distress, and further provided that the victim must actually suffer serious emotional distress. In doing so, the legislature recognized that the stalker in pursuing the victim may be oblivious to objective reality; he or she may not be aware that the repeated acts engaged in would cause a reasonable person to suffer severe emotional distress. The court reinstated the defendant's conviction where the evidence showed the defendant placed his victim under surveillance, approached her, and contacted her in a manner that would cause a reasonable person to suffer serious emotional distress, and she suffered such distress. People v. Cross January 13, 2006 The supreme court will issue one decision on Tuesday, People v. Cross, No. 05SC17, argued in December. January 12, 2006 The court of appeals case announcements for today are here. The court issued three published decisions summarized below. Law firm did not owe duty to third parties. The third parties were not clients of the law firm; they sued for damages based on the law firm's negligence and did not allege fraudulent or malicious conduct. They did not allege any negligent misrepresentation or allege that the law firm acted to induce them to purchase the property at issue. Therefore, the law firm could not be liable to the third parties. Turman v. Castle Law Firm, LLC District court correctly concluded that defendant in interpleader action had given value as required by C.R.S. § 4-9-203(b)(1) in order for her security interest to be enforceable. The court also determined that her agreement and other documents satisfied the condition set forth in § 4-9-203(b)(3)(A). Compass Bank v. Kone Where in his repopened case, claimant requested an IME so that he could contest the treating physician's findings regarding maximum medical improvement and the impairment rating, but did so outside the thirty-day time limit imposed by C.R.S. § 8-42-107.2(2)(b), the issue was closed and claimant could not challenge the fingins. The court rejected the claimant's view that § 8-42-107.2(2)(b) applies only when a party requests an IME in the first instance. Williams v. Industrial Claim Appeals Office January 11, 2006 The supreme court has these two new original proceedings at its original proceedings link: No. 05SA370 Adams County District Court Case No. 04CV1073 (Judge Thomas R. Ensor) In re: Plaintiff: RUTH E. JESSEE v. Defendants: FARMERS INSURANCE EXCHANGE and FARMERS GROUP, INC. Synopsis: Petitioner Ruth Jessee seeks relief from a pretrial protective order entered by the district court requiring Ms. Jessee to identify any documents in her possession relating to the subject matter of her suit against Respondent Farmers and permitting Respondent to designate as “confidential” any of the identified documents it so chooses, including those Petitioner obtained in the public domain. Petitioner contends that the order violates the First Amendment and C.R.C.P. 26(c), and she asks the Supreme Court to overturn the district court’s order. On January 5, 2006, the Court entered an order to show cause why the requested relief should not be granted. Respondents Farmers Insurance Exchange and Farmers Group, Inc. are directed to provide a written answer on or before January 25, 2006 why the relief requested in the petition should not be granted. Petitioner Jessee has twenty days from receipt of the answer within which to reply.
United States Court of Appeals for the Tenth Circuit Case No. 05-1215 In re: Plaintiff-Counter-Defendant-Appellant: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, v. Defendant: PROGRESSIVE MUTUAL INSURANCE COMPANY, an Ohio corporation, Defendant-Counter-Claimant-Appellee: VICKI L. LEE
The Tenth Circuit requested that the Colorado Supreme Court accept, pursuant to 10th Cir. R. 27.1 and C.A.R. 21.1, the following certified questions of law: Which statute, Colo. R. Stat. § 10-4-609(2) or Section 10-4-609(4)(a),
should be used in the first instance to determine whether a tortfeasor’s
motor vehicle is underinsured? The court of appeals will issue the following decisions tomorrow, including 3 published decisions (the court's going easy on me so far this year): PUBLISHED OPINIONS No.: 04CA1364 Robert Lloyd Turman and Revealers Enterprises, Inc. v.
Castle Law Firm, LLC UNPUBLISHED OPINIONS No.: 03CA1920 Jean Morgan v. Bradley T. Yohe January 9, 2006 The case summaries for today's supreme court decisions are now are now posted below. Judge Alito's confirmation hearings have begun. I don't intend to say much about the process, as I think the media, regardless of the particular medium used, have it well-covered. But I did like this quotation from Judge Alito's opening remarks: "A judge can't have any agenda, a judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client." Amen. The supreme court's case announcements for today are here. The court issued 3 decisions, which I will summarize below sometime this week. I'm preparing for an argument in the Tenth Circuit, so my blogging time is limited until after that. I have posted links to the decisions. Also, the court granted cert. in three cases, one of which was remanded for reconsideration in light of a new decision. The questions presented in the other two cases can be found below. An unsecured, unlocked locker that does not have the appearance of bieng employed for the safekeeping of valuables is not “vault” or “other apparatus or equipment” under Colorado’s third degree burglary statute, C.R.S. § 18-4-204(1). For an item to be included within the class of items enumerated by the statute, it must share the same essential characteristics of those items, including having the design and appearance for the safekeeping of money or valuables. Winter v. People Attorneys may be held liable for violations of the Colorado Consumer Protection Act. The court holds that a private claim for relief under the CCPA against an attorney must allege that the attorney or law firm knowingly engaged in a deceptive trade practice, which occurred in the course of the attorney or firm’s business, vocation, or occupation, significantly impacting the public as actual or potential consumers of legal services, and causing injury in fact to a legally protected interest of the plaintiff. Crowe v. Tull Subsection (1)(a)
of the Judicial Performance Commission Statute, C.R.S. § 13-5.5-102,
creates a regimen of fixed, four-year terms, which begin and end in
even-numbered years, for each commissioner. Each commissioner’s
term begins on December 1 of an election year and ends in the election
year four years later on November 30. The court also holds that subsection
(1)(b) of the Judicial Performance Commission Statute directs that when
a Commission vacancy occurs, if the appointing authority fails to appoint
a new commissioner within forty-five days of this vacancy, then that
appointing authority loses its power of appointment for the vacant seat
and the appointment power devolves to the Commission, itself, to fill
the vacancy. However, the initial The court granted cert. in these two cases: Moody v. People, No. 05SC479, on this issue:
Whether the court of appeals erred in ruling that petitioner lacked standing to challenge the search when the district court ruling assumes that he had standing and the State did not make this claim below; and whether the court of appeals erred in making this conclusion based on trial testimony. Melina v. People, No. 05SC500, on this question:
Whether the unit of prosecution for the crime of solicitation permits a single conviction based on evidence that the defendant independently solicited two different people for the same crime? The court also granted cert. in No. 05SC372, Moody v. People, but remanded to the Denver District Court for reconsideration in light of People v. Vanrees, announced December 19, 2005.
January 6, 2006 The supreme court will issue these three decisions on Monday (including two in original proceedings): No. 04SC654 Winter
v. People (oral
argument) The court has
also posted its argument
calendar for January. The court will hear arguments on January 24-26. January 5, 2006 The court of appeals' announcements for today are here. Also, the Colorado Bar Association's Ethics Committee recently released Formal Ethics Opinion 113, addressing the ethical duty of lawyers to disclose errors to clients. The ethics opinion can be found here. January 4, 2006 The court of appeals will issue the following unpublished decisions tomorrow. For information on getting copies of unpublished decisions go to this link. No.: 03CA0467 People v. George C. Barela January 3, 2006 Happy New Year! I'm back from my family vacation to Disney World, a thoroughly-enjoyable but exhausting trip. Luckily, the courts were not too active in my absence, so the updating is not too bad. The supreme court did not issue case announcements the past two weeks, so there is no news to report there. As a reminder, applications for the vacancy created by Justice Kourlis's resignation are due this Friday, January 6. The court of appeals announcements for December 29 are here. The court issued five published decisions summarized below. The trial court erred in ruling that an insured’s failure to timely file suit against the insurer was the result of mistaken identity so that the lawsuit filed against the insurer could relate back to a time before the deadline under the applicable statute of limitation. The court of appeals concluded that the insured's action against the insurer was not timely because the claim was not brought within the statute of limitations period. Trigg v. State Farm Criminal impersonation, C.R.S. § 18-5-113(1)(e), is a continuing offense. The plain language of that section implies that the offense may occur over a period of time rather than at a specific moment. People v. Pérez In car accident
case brought by a passenger against driver, the trial court did not
err in instructing the jury that it was not to consider the passenger's
failure to wear a seat belt as it related to his damages claims for
loss of quality of life, inconvenience, and emotional distress. In so
holding, the court of appeals concluded that , as set forth in C.R.S.
§ 13-21-102.5(2)(b), the General Assembly Where the hearing
officer found there “was no written document signed by the employer
and the workers establishing an independent contractor relationship,”
and the parties' later contract did not contain all the disclosures
required under C.R.S. § 8-70-115(2), the record supported the hearing
officer’s findings that employer was not entitled to the rebuttable
presumption of an independent contractor relationship. Speedy
Messenger & Delivery Service v. ICAO Mother's right to counsel in an action to award custody of her children to her parents, but not terminate mother's parental rights, was a statutory right only. Therefore, in determining whether mother waived her right to counsel the court did not need to consider whether the waiver was knowing, voluntary and intelligent as required under Johnson v. Zerbst for the waiver of a constitutional right. Instead, the only inquiry was whether the trial court's finding of voluntary waiver was supported by the record. Since the record supported that conclusion, the mother's waiver of her statutory right to counsel was valid. People in the Interest of M.G.
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