May 31, 2007 Here are today's announcements from the court of appeals. The court issued 14 published decisions, summarized below. Defendant’s
evidence was legally insufficient to establish constitutionally significant
underrepresentation of African-Americans and Hispanics in jury panels
at the time of his trial in Arapahoe County. Therefore, the court of
appeals did not address the question whether any Defendants who
believe a challenge for cause should or should not be granted have an
obligation to make their positions known. Because C.R.S. § 16-10-103
provides the legal basis for challenges for cause, it is incumbent upon
the challenging party to clearly state on the record the particular
ground on which a challenge for cause is made. Only in this way can
the court and opposing counsel direct appropriate questions to the juror
to determine whether the challenge is well taken. Trial court
did not err in concluding that defendant was not prejudiced by any delay
in notification of detainer. Therefore, dismissal was neither mandated
nor warranted. The court further conclude that because the Interstate
Agreement on Detainers is statutory in nature and not founded on constitutional
rights, there is no requirement that a valid waiver of IAD rights be
“knowing and intelligent.” Defendant waived the anti-shuttling
provision of the IAD by requesting numerous and lengthy continuances
during which he either expressly requested or acquiesced in his return
to USP Florence. Initially, defendant delayed the proceedings to obtain
private counsel. Later, the trial was delayed several times because
defendant was not ready to proceed. Finally, the trial was delayed to
allow full briefing of defendant’s IAD arguments, following which
defendant requested a stay of the proceeding to seek relief in the supreme
court under C.A.R. 21. Defendant never argued that he was not timely
brought to trial under the IAD. People
v. Reyes In a dissolution
of marriage proceeding, the trial court abused its discretion in not
holding a hearing on wife's request for appointment of a guardian ad
litem necessitated by her mental illness. The court of appeals noted
a court should appoint a guardian ad litem for a litigant when The court of appeals granted a petition for rehearing and withdrew its April 19, 2007 decision (see my April 20, 2007 post below) in a Crim. P. 35(c) matter. The court of appeals concluded that the trial court correctly denied defendant’s claims of ineffective assistance of appellate counsel, finding defendant’s claims that counsel should have raised additional issues in the direct appeal were unavailing. People v. Trujillo In a Crim. P.
35(c) proceeding, the defendant contended his convictions and sentence
must In an action against a hospital asserting negligence in permitting an untrained physician to practice there, the court of appeals held that C.R.S. § 12-36.5-203 precludes the claim for damages. That statute provides that professional review bodies “shall not be liable for damages in any civil action,” and thus dictated that the hospital could not be liable for decisions made during the physician peer review process, which includes the granting of credentials. Kauntz v. HCA-HEALTHONE, LLC The court of appeals reversed summary judgment entered against Plaintiff Safeco Insurance Company and in favor of defendants, Horace Mann Insurance Company and Westport Insurance Corp., holding Safeco’s claim for pro rata contribution of insurance benefits time-barred because it did not demand mandatory arbitration within the applicable one-year statute of limitations under the No-Fault Act. The case arose from a 35-car accident on I-70. In reversing summary judgment, the court of appeals concluded the mandatory arbitration and one-year statute of limitations provisions of C.R.S. § 10-4-717 did not apply to Safeco's claim for pro rata contribution under C.R.S. § 10-4-707(3). Safeco Insurance Company v. Westport Insurance Corp. Issue of damages for the taking of the acquired property was actually and necessarily adjudicated in a prior condemnation proceeding where the condemnees had a full and fair opportunity to litigate. Accordingly, as the trial court correctly concluded that the doctrines of claim preclusion and issue preclusion apply, and the condemnees cannot now revisit the valuation of the property acquired. Wall v. City of Aurora Employee, who was not a party to the district court proceeding, lacked standing to appeal the district court’s entry of default and declaratory judgment. He had argued that he had standing to appeal the judgment because the judgment denied him his “‘right’ to a legal defense” under the employer's insurance policy. The court rejected his argument and dismissed his appeal. In dissent, Judge Vogt concluded that he did have standing, though she would have rejected his contentions on their merits. AMCO Insurance Company v. Sills In a dissolution of marriage case, because the permanent orders did not address attorney fees, they were not final for purposes of appeal. The court of appeals held that payment of attorney fees under C.R.S. § 14-10-119 is a substantive aspect of dissolving a marriage, and that permanent orders are not final until the court addresses attorney fees and determines the extent to which each party is responsible for their payment. Therefore, there was no final appealable order, and the appeal was dismissed without prejudice. In re Marriage of Hill In a workers’
compensation case involving a prosthetic device, the sole issue was
whether claimaint sustained a compensable injury. Claimant had a number
of previous nonindustrial left hip replacements. While exiting his company
truck in June 2005, he fell after he felt a pop in his left hip. He
was diagnosed with a left hip prosthetic shift and underwent prosthetic
hip replacement In a condemnation action arising from an urban renewal project, respondents asserted that petitioner deprived them of an opportunity to develop their own property, contrary to statute and the urban renewal plan, because it did no more than allow them to participate in the developer selection process; the project was not based on the proper public purpose of eliminating blight but on an improper purpose of increasing tax revenues; and petitioner did not negotiate in good faith to purchase their property before initiating condemnation proceedings. The court of appeals agreed only to the extent that additional findings were required concerning public purpose. Therefore, the court vacated that part of the order and remanded it for further proceedings. Sheridan Redevelopment Agency v. Knightsbridge Land Company May 30, 2007 Sorry for the delay in posting. I had to get a new computer yesterday, and have just now regained my posting capabilities. Today's post includes yesterday's supreme court announcements and the list of tomorrow's court of appeals decisions. (The preceding sentence is likely the first time I've ever written today, tomorrow, and yesterday in the same sentence, and all in the possessive form. Mark that in the book of achievements. Or maybe not.) Tomorrow the court of appeals will release the following decisions, including 14 published ones: Published Opinions No.: 03CA1895 People v. Trevon Deon Washington, a/k/a Venda Johnson
Jr. Unpublished Opinions No.: 04CA1432 People v. Mark Jason Seibel Tuesday's supreme court announcements are here. The court issued five decisions, summarized below. The court also granted cert. in two cases. The questions presented in those cases appear below the summaries. The supreme court reversed the court of appeals' sua sponte determination, made by the appellate court on the basis of the defendant's trial testimony, that the defendant lacked standing to challenge his search. The court held that an appeals court may only properly consider evidence presented at the suppression hearing when reviewing a trial court's suppression ruling. The court concluded that while an appellate court may address issues of standing sua sponte, it should not do so when the factual record at trial is undeveloped and cannot be supplemented with reliable testimony upon remand, given the passage of time. Moody v. People The supreme court held that because plaintiff's affidavit plausibly explained that her deposition testimony was premised on a typographical error concerning the date she discovered the defendant's alleged negligence, the district court erred in refusing to consider it. The district court had disregarded plaintiff's contradictory affidavit as a sham and, relied instead on her earlier deposition testimony, and found there to be no genuine dispute that she failed to bring her action within the statutory limitations period. The supreme court concluded that the determination of whether an affidavit was a sham affidavit is a question of law reviewed de novo. The court said that the determination cannot realistically be limited to any single factor or set of factors. Rather, it must include consideration of the totality of the circumstances surrounding both statements. The court noted that the plausibility of a party's explanation for contradicting prior deposition testimony goes directly to the genuineness of an asserted dispute of fact, and therefore to the question whether the non-moving party proposes to offer evidence from which a reasonable jury could resolve the dispute in his favor. In this case, the plaintiff's explanation for the contradictory statements was plausible and therefore the affidavit should have been considered in ruling on defendant's summary judgment motion. Andersen v. Lindenbaum In an eminent
domain case arising from the construction of a light rail line as part
of the T-REX expansion of I-25, the supreme court held that motorists'
visibility of property owned and occupied by the Happy Church is not
a compensable right under the Colorado Constitution. A small portion
of the Happy Church property was condemned and CDOT and RTD constructed
a concrete retaining wall on the condemned property to support an overpass
of the light rail line over Orchard Road. Church access to Orchard Road
was not impaired. The Happy Church claimed that the retaining wall obscures
passing motorists' views of its remaining property, which includes a
substantial church complex. CDOT and RTD did not dispute that the retaining
wall obscures 1-25 motorists' views of the church. The court held that
the owner of remainder property resulting from a partial taking alongside
a transit corridor may not seek compensation for the loss of passing
motorists' views of the remainder property caused by a wall built on
the condemned portion of land. Because a landowner has no continued
right to traffic passing its property, the landowner likewise has no
right in the continued motorist visibility of its property from a transit
corridor. In an original
proceeding considering an arbitration clause in an apartment lease,
the plaintiffs-lessees argued that the lease was the product of fraudulent
inducement and therefore they In another original
proceeding involving an arbitration provision, the plaintiff alleged
that it was fraudulently induced into agreeing to arbitrate (as opposed
to being fraudulently induced into entering the agreement as a whole).
The court held that the plaintiff's fraudulent inducement allegations
must be resolved by the trial court, not the arbitrator, under the current
version of the Colorado Uniform Arbitration Act, C.R.S. §§
13-22-101 to -130 (2006) applicable to the arbitration provision in
this case. The current version of the Act distinguishes between allegations
of fraudulent inducement directed specifically to an arbitration provision
in a contract and allegations of fraudulent inducement directed more
broadly to the contract as a whole. The former must be decided by the
trial court, but the latter must be decided by the arbitrator. Since
the plaintiff alleged that the arbitration agreement itself is the result
of fraudulent inducement, and since it was unclear whether the trial
court considered the plaintiff's fraudulent inducement challenge, the
supreme court made its rule to show cause absolute and remanded the
case for the trial court to resolve the issue. The supreme court also
held § 13-22-207(1)(b) requires a trial court to "proceed
summarily to decide" a fraudulent inducement challenge directed
specifically to the arbitration agreement. Such a summary proceeding
is an expedited process that begins with the trial court considering
whether material issues of fact necessary to determine the issue are
disputed. If they are not, then the trial court can resolve the challenge
on the record before it. But if the material The court granted cert. in the following cases: BP America Production
Co.
v. Patterson, No. 06SC330, on this issue: Sigala v. Atencio's
Market, No. 07SC73, on this question: May 24, 2007 Here are today's court of appeals announcements. The court issued only unpublished decisions. I will be out of the office tomorrow, so if the supreme court announces decisions it will release on Tuesday, May 29, I won't be able to post that info until Tuesday. Have a happy and safe holiday weekend. If you're driving, don't drink. And if you're drinking, don't drive. May 23, 2007 The supreme court's oral argument calendar for June is here. The court will hold arguments June 12, 13, and 14. It's the court's last argument session until September. The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA0316 People v. Toney Lamar Brown No.: 06CA695 People v. Justin Anthony Manzanares May 22, 2007 I'm back. I filed a brief in a criminal appeal today, so now I can resume my blogging. This post includes this week's supreme court decisions and cert. grants as well as last week's court of appeals decisions. Thanks for your patience. Yesterday's supreme court announcements are here. The court issued 3 cases and granted cert. in 3 cases. Case summaries and questions presented are below. The district
court should not have appointed an attorney to an indigent criminal
defendant in Admission of previous out-of-court statements of deceased victim was error because some of those statements were testimonial in nature and under Crawford v. Washington, defendant was entitled to cross-examination on those statements. The court concluded, however, that the admission of those statements was harmless beyond a reasonable doubt and therefore affirmed the defendant's convictions. Artega-Lanwsaw v. People The admission
of expert testimony regarding a defendant’s intellectual disability
is “mental condition” evidence subject to the procedural requirements
of C.R.S. § 16-8-107(3)(b): notice and a court-ordered evaluation.
Defendant did not comply with these statutory requirements in attempting
to offer expert testimony that his intellectual disability made him
highly suggestible under police interrogation for the purpose of attacking
the reliability and credibility of his confession in front of the jury.
Because defendant did not comply with the statute, the court held his
proposed expert testimony was properly excluded by the trial court.
People
v. Flippo The court granted cert in these cases: Morris v. Goodwin, No. 06SC558, on this issue: Where a jury’s verdict in a medical malpractice case was reduced due to the statutory cap on noneconomic damages, whether the court of appeals erred in holding that the defendant owes prejudgment interest on the gross amount of the verdict, including the uncollectible amount exceeding the cap. Matoush v. Lovingood, No. 06SC823, on this question: Whether an express easement can be extinguished by the owner of the
servient estate by adverse possession, and if so, what circumstances
commence the prescriptive period. Freestyle Sports Marketing, Inc. v. Metro Fixtures Contractors, Inc. No. 07SC26, on this issue: Whether, under C.R.S. sections 4-1-201(20) and 4-3-302, a person can be a “holder” of a negotiable instrument entitled to “holder in due course” status under a theory of constructive possession of a negotiable instrument. The court of appeals announcements from May 17 are here. The court issued 9 published decisions, summarized below. C.R.S. §
18-3-402(1)(b0 provides that one who knowingly inflicts sexual intrusion
or penetration on a victim commits sexual assault if "The actor
knows that the victim is incapable of appraising the nature of the victim's
conduct." The defendant argued that the statute requires proof
that the victim “suffered from a mental disease or defect such
that her mind was unsound, weak, or feeble.” The court disagreed.
The court concluded that the coexistence of subsections (b) and (h)
(which addresses the physical helplessness of the victim) of §
18-3-402(1) represents a reasoned legislative determination that, depending
on the facts of a particular case, a victim who is partially On post-conviction
motion, defendant claimed the trial court had admitted hearsay testimony
in violation of the rules of evidence and in derogation of his constitutional
right to confront adverse witnesses. He also claimed his trial lawyer
had failed to provide effective assistance of counsel. In a restitution proceeding, the trial court erred in concluding that defendant's waiver of his right to appear waived his right to challenge through counsel the amount of the restitution award. People v. Martinez Trial court's
exclusion of evidence under rape shield statute was error. The evidence
fell into an exception listed in the statute. The evidence concerned
the alleged victim’s romantic – and, indeed, sexual –
relationship with a friend was relevant to a material issue in the case,
namely, the victim’s motive to lie. Defendant’s theory was
that (1) the alleged victim had an intimate relationship with the friend;
(2) because the friend interrupted the sexual encounter between the
victim and the defendant, the friend had good reason to suspect the
victim was unfaithful to him; and (3) the alleged victim was emotionally
upset by the friend’s discovery of her actions. Under these circumstances,
the court of appeals concluded that the nature of the romantic and sexual
relationship with the friend was relevant and potentially highly probative
of the victim’s motive to lie. Therefore, it violated defendant's
confrontation rights to exclude it. Judge Russel specially concurred,
concluding that the court's remand order was too broad: "defendant
theorized that the alleged victim was motivated by a desire to preserve
her relationship with her boyfriend. Because OPEX Communications
is a non-facilities based reseller of long distance telephone services.
It does not own, operate, or maintain any telephone network or switching
equipment. OPEX has contracts in Colorado with two nationwide network
providers, Qwest Communications and Global Crossing, to provide toll
access, but such contracts do not provide for the leasing or management
of equipment or for the bulk purchase of services. Although OPEX does
not own or control any tangible or real property within Colorado, over
4,000 Colorado residential and business customers Prison psychologist claimed his demotion was an improper retaliation for his disclosures of information covered by the whistleblower statute, C.R.S. § 24-50.5-101. Defendants moved to dismiss for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), asserting the Colorado Governmental Immunity Act barred the claims. The trial court held an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo. 1993), and granted defendants’ motion. The trial court concluded that neither that the memorandum nor the letter plaintiff sent to the chief of mental health constituted “disclosure[s] of information” protected under the whistleblower statute because they did not touch upon matters of “public concern.” The court of appeals affirmed. Ferrel v. Colorado Department of Corrections Though employment discrimination plaintiff made out a prima facie case, she failed to provide evidence sufficient that the defendant's proffered reason for her termination was a pretext for discrimination. Therefore, summary judgment was proper. St. Croix v. University of Colorado Health Sciences Center In landlord-tenant dispute, the court of appeals determined that C.R.S. § 38-12-104 is not the exclusive remedy available to tenants when a hazardous condition of a gas appliance is reported. Therefore, tenants were entitled to move out under the doctrine of constructive eviction. The court concluded that § 38-12-104 did not abrogate the common law remedy of constructive eviction under the circumstances of the case. Copeland v. Lincoln The court of appeals affirmed the dismissal for lack of subject matter jurisdiction of federal inmate's complaint seeking mandamus relief against a federal prison official. The state court had no authority to issue a writ of mandamus against a federal officer. Hansen v. Long May 16, 2007 Tomorrow the court of appeals will issue the following decisions, including nine published decisions. Due to work commitments, I likely won't be able to get the cases summarized until next week: Published Opinions No.: 04CA1889 People v. Bruce Platt Unpublished Opinions Nos.: 04CA0719, 04CA1137 & 04CA1140 People v. Benjamin M. Velarde May 14, 2007 The court of appeals' oral argument calendar for July is here. The supreme court's announcements for today are here. The court issued three cases summarized below. The court also granted cert in three cases, and the questions in those cases appear below the summaries. In Nathan Dunlap's appeal of the denial of his 35(c) motion, the supreme court affirmed the denial. On cross-appeal, the court concluded that trial counsel's performance was not deficient in the two areas the trial court had concluded the performance was deficient. The opinion clocks in at 115 pages and there are a plethora of issues. Rather than summarize all of them, I'll leave it to brave readers to plow through it. The bottom line is Dunlap's death sentence stands. The deicison was unanimous, with Justice Eid not participating. Presumably, Dunlap will now petition the U.S. Supreme Court, and if unsuccessful, move on to federal post-conviction proceedings. Dunlap v. People The supreme
court reversed the grant of a suppression order. The court concluded
that the The supreme
court affirmed the court of appeals’ judgment that Pitkin County
had the authority to adopt a temporary moratorium, confirmed by a public
hearing, on land use application reviews pursuant to the Local Government
Land Use Control Enabling Act, C.R.S. §§ 29-20-101 to 107. The court granted cert. in these cases: Bourgeron v. City and County of Denver, No. 06SC692, on this issue:
Whether the Denver Career Service Board exercises a quasi-judicial function when it applies preexisting legal standards to present and past facts in a manner which adversely affects the rights and duties of an employee of an independent city agency. Town of Marble v. Darien, No. 07SC1, on this issue:
Whether the court of appeals erred in its interpretation of C.R.S. section 24-6-402(2)(c) when it determined that the Town of Marble violated the Open Meetings Law (“OML”) in making a decision at its January 8, 2004 meeting. Al-Yousif v. People, No. 07SC36, on this question: Whether it violated due process for the court of appeals to conclude that C.R.C.P. 47(m) permitted the jury to have unfettered and unintended access to transcripts of interviews of defendant and his brother, where the court failed to consider the admonition that evidence not be “so selected, nor used in such a manner, that there is a substantial likelihood of it being given undue weight or emphasis by the jury,” Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972).. May 11, 2007 The supreme court will issue the following decisions on Monday, including the appeal of the 35(c) motion of Nathan Dunlap (who was convicted of the infamous "Chuck E. Cheese" murders, and sentenced to death for them): 07SA41 People v. Castro (no orals) 04SA218 Dunlap v. People 05SC823 Droste v. Board of County Commissioners of Pitkin The issues in Dunlap take up 6 pages on the court's oral argument calendar, so I imagine the opinion is going to be very, very long. May 10, 2007 Here are today's court of appeals announcements. The court issued the following unpublished decisions (no published opinions today): No.: 04CA0077 Marriage of Elise W. Johnson and Irving G. Johnson May 8, 2007 The supreme court's announcements for yesterday are here. The court did not issue any new decisions and did not grant cert. in any cases. The court's oral argument dates for fall 2007-spring 2008 are Tuesday, September 11, 2007 Tuesday, October 23, 2007 Tuesday, December 4, 2007 Tuesday, January 22, 2008 Tuesday, March 4, 2008 Monday, April 28, 2008 Tuesday, June 10, 2008 May 4, 2007 I have added the rest of the summaries of yesterday's court of appeals published decisions to the May 3 post. May 3, 2007 Here are today's court of appeals announcements. The court issued 14 published opinions, which will be summarized below. Eventually. Probably in groups. So check back for additional summaries. Convictions should be reversed because defendant deprived of his due process right to a meaningful and speedy appeal. Defendant demonstrated that as a result of appellate delay, he could not present a potentially meritorious substantive contention. An adequate record could not be reconstructed, so the court of appeals could not determine whether the trial court committed constitutional error by answering a jury's question without consulting defense counsel. Nor could the court determine whether the error, if it occurred was harmless beyond a reasonable doubt. The court therefore reversed and remanded for a new trial. People v. McGlotten Plaintiffs lacked standing to pursue appeal of attorney fees award because fees were awarded only against plaintiffs' attorneys, but the attorneys did not appeal in their own name. The plaintiffs thus were not the real parties in interest and therefore had no standing. Anglum v. USAA Cas. Ins. Co. Reversal of sexual assault on a child convictions was required because the trial court placed a physicial barrier between the defendant and his accuser during her testimony at trial. The barrier precluded defendant from seeing here while she testified. The court of appeals held that the barrier violated the defendant's confrontation rights. People v. Mosley Trial court
erred by admitting statements defendant made during the course of plea
negotiations. At trial, the prosecutor introduced statements defendant
made during a polygraph test through the testimony of the polygraph
examiner. The court of appeals concluded the statements were not admissible
under CRE 410, and reversed and remanded for a new trial. People
v. Garcia Trial court
erred in granting defendant’s initial motion for judgment of acquittal
because the prosecution’s evidence was sufficient to support a
conclusion that defendant was guilty beyond Crim. P. 35(c)(3)(IV) states in part, "[t]he court shall complete its review within sixty days of filing [of the Crim. P. 35(c) motion] or set a new date for completing its review and notify the parties of that date." The sixty-day provision of Crim. P. 35(c)(3)(IV) should be categorized as directory, rather than jurisdictional. Therefore, the trial court had the authority to summarily deny the defendant's 35(c) motion even though it did not rule within 60 days. People v. Osorio If defendant's
sentence imposed a mandatory parole term, it was illegal because the
crime to which defendant pled guilty called for discretionary parole.
The court further concluded that successive postconviction motions under
Crim. P. 35(a) should be subject to the law of the case doctrine, rather
than an absolute bar, because the doctrine best balances jurisdictional
considerations unique to motions raising illegal sentence claims against
the problem of postconviction proceedings becoming a cycle of "perpetual
review." On the facts of the case, the court concluded that barring
defendant's second motion as successive, where defendant did not In a state Personnel
Board action challenging her termination, Petitioner filed a designation
of record listing the need for several documents "in connection
with her appeal in this case." Petitioner's notice of appeal to
the Board, which was filed one day late, read that petitioner through
her attorneys, "appeals from the Initial Decision of the administrative
law judge." Neither of these documents fulfilled the function of
filing exceptions. The designation of record did not list any specific
allegations of error or reasons why the Board should modify its Initial
Decision. In addition, the designation of record serves a different
purpose than a list of exceptions. The notice of appeal did not point
out specific errors in, or objections to, the Initial Decision. Although
the designation of record and notice of appeal may have, individually
or in combination, indicated an intention to appeal, they did not satisfy
the purpose of exceptions, because they did not notify the agency of
what errors needed to be corrected in order to avoid judicial review.
Accordingly, petitioner failed to comply with the requirements of C.R.S.
§ 24-4-105(a)(II), because she did not file exceptions. By her
failing to do so, the Initial Decision became the Board's final order
as a matter of law, and she thereby waived her right to judicial review
of the Initial Decision by not filing exceptions. Lanphier
v. Department of Public Health and Environment Town claimed ownership to real property by operation of the Railroad Right of Way Abandonment Act, 43 U.S.C. § 912, which provides that after a court order decrees abandonment of a railroad grant, title to property located within a municipality automatically vests in that municipality. The court of appeals held that under the express language of § 912, upon the federal district court’s decree of abandonment in 1980, title to the land vested in the Town. Calhan Chamber of Commerce v. Town of Calhan A Uninsured Motorist claim is based in tort, not contract. Therefore, the trial court properly awarded interest at 9 percent (the tort rate) rather than 8 percent (the contract rate). The court held that C.R.S. § 13-21-101 applies to judgments based on claims for UIM benefits resulting from personal injuries. Parker v. USAA Colorado Insurance Guaranty Association sought to enforce its statutory right under C.R.S. § 10-4-512(1) of the Colorado Insurance Guaranty Association Act to reduce an amount payable on a covered claim to the extent it is duplicative of a recovery under insured's UM/UIM insurance policy. The court of appeals concluded that the Act provided CIGA with a cause of action to enforce its rights under that provision. Although the language of that section does not expressly provide CIGA with a cause of action, the court held it did so implicitly. The court then concluded that the claim should not have been dismissed under C.R.C.P. 12(b)(5). Judge Loeb, joined by Judge Terry, wrote the majority opinion. Judge Webb concurred in part and dissented in part, concluding tthat the majority's interpretation was reasonable because unlike other provisions of the Act, § 10-4-512(1) created no exception for workers’ compensation claims. But he further said that without any guidance from Colorado legislative history, he would hold that CIGA's complaint seeking setoff under § 10-4-512(1) against the insured's UM/UIM settlement proceeds failed to state a claim because CIGA stands in the shoes of the insolvent carrier under § 10-4-508( 1)(b), and the insolvent carrier could not have reached those proceeds. I would imagine this case is a good candidate for cert. Colorado Insurance Guaranty Association v. Menor In pro se prisoner discipline case under C.R.C.P. 106(a)(4), the DOC was an indispensable party to this action and thus a final decision could not be rendered without its presence. Therefore, the trial court’s judgment dismissing plaintiff's complaint was vacated to allow plaintiff an opportunity to name the DOC as a defendant and for further proceedings as necessary. Frazier v. Carter In another pro se prisoner discipline case under C.R.C.P. 106(a)(4), Plaintiff contended that the trial court erred in denying his motion for costs, as he achieved some success in the action. The court of appeals disagreed, concluding that C.R.S. § 13-16-111 does not require an award of costs if a plaintiff achieves mixed success in a C.R.C.P. 106(a)(4) action involving multiple claims or issues. Such a reading, the court said, would require it to ignore §§ 13-16-108 and 13-16-109, both of which vest trial courts with discretion to award costs if a party achieves some success when several counts or matters are pleaded. Phillips v. Watkins Workers' comp. claimant contended the evidence he presented supported his contention that his employer unreasonably delayed or denied his request for preauthorization of medical treatment. He argued that the evidence created disputed issues of material fact that precluded summary judgment, and that the Panel therefore erred in affirming the summary judgment in employer’s favor. The court of appeals agreed and remanded for further agency proceedings. Fera v. Industrial Claim Appeals Office May 2, 2007 The court of appeals will issue the following decisions tomorrow, including 14 published opinions: Published Opinions No.: 02CA1014 People v. Hassan McGlotten Unpublished Opinions No.: 04CA0990 People v. Jesse Lee Miller
|
|||||||||||||||||||||||||