1. FEBRUARY 2012
CASE LAW UPDATE;
CO. Supreme Court &
Court of Appeals
T H E C D L A
THE CDLA NEWSLETTER
HIGHLIGHTING IMPORTANT ISSUES FACING TODAYS DEFENSE ATTORNEYS
In Re Marriage of Brandt
Farm Deals v. CO. Dept. of Rev.
Roque v. Allstate Insurance Co.
ReaV. Corrections Corp. of America
Vaccaro v. American Family
TWTelecomV. Carolina Internet LTD
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 occur
(some before February 23) include:
(NEF) when your case is opened.
• Summons forms, if provided, will be issued through ECF.You will receive a NEF with the summons and the
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/
Forms.aspx), not the local form.
•The fee for filing an appeal may be paid on-line at the time of filing.
• A new event has been created for filing the corporate disclosure statement and entering corporate parents
2. CASE LAW:
COLORADO SUPREME COURT
IN RE MARRIAGE OF BRANDT
Supreme Court interprets “presently resides” term in Child Custody Act (SC 01/23/12) The Uniform Child Custody
Jurisdiction and Enforcement Act provides that the issuing state has exclusive continuing jurisdiction over its child
custody until it, or another state, makes a determination that the child and the child’s parents do not “presently
reside” 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 on
an inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to which
he 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
DEP’T OF REVENUE
(CA 01/05/12). Petitioners filed an appeal in the trial
court challenging determinations by the Colorado De-
partment of Revenue denying income tax credits for
conservation easements during the 2003 tax year. Pe-
titioners filed a motion requesting certification of the
order for an interlocutory appeal under CRS § 13-4-
102.1. Respondents opposed on numerous grounds,
including that it was not filed with fourteen days of
the Order being appealed from the date of the Order
being appealed, as required by C.A.R. 4.2(c). [C.A.R.
4.2 was promulgated by the Colorado Supreme Court
to establish procedures for applying the interlocutory
appeals statute, § 13-4-102.1]. Though the trial court
certified the Order, it, too, was not filed within the
deadline for filing with the court of appeals [fourteen
days after the date of the certification]. The Court of
Appeals found that the trial court had no authority to
extend the fourteen-day deadline for filing a motion
for certification of its Order. The Court also concluded
that petitioners failed to establish good cause for their
failure to meet the jurisdictional deadline of C.A.R.
4.2(d). While C.A.R. 26(b) authorizes extending the
deadline for good cause due to excusable neglect, the
Court held the justification for late filing here demon-
strated carelessness, not excusable neglect. l
3. 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 RichardTerlingen, 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
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 coverTerlingen
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
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. l
REA V. CORRECTIONS CORPORATION OF AMERICA
Dismissal 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 searched
his cell, seized documents about the unsolved murder of Jon Benet Ramsey, and started a rumor that Rea was
involved 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 case
manager. The sergeant and the CCA case manager were never served with process in this matter, and the district
court dismissed the claims against CCA. The Court of Appeals first concluded sua sponte that named but unserved
defendants are not litigants for purposes of determining the appealability of an order under the final judgment
rule. Rea alleged that, instead of dismissing the case against CCA, the court should have granted him a default
judgment against CCA. However, CCA filed a motion for extension of time to file a responsive pleading in state
court and timely filed an answer in federal court, which continued with the case after it was remanded to state
court. Therefore, Rea was not entitled to a default judgment. Finally, Rea asserted that the judgment should be
reversed because the district court was biased and prejudiced against him. However, Rea waived any appearance
of impropriety because he did not seek to disqualify the judge in the district court, and Rea did not allege any facts
to support a claim of actual bias. l
4. VACCARO V. AMERICAN FAMILY
Court of appeals finds “double damage” statue can ap-
ply to claims arising before statute’s enactment (CA
01/09/12). A negligent tortfeasor injured plaintiff in a
two-car accident in 2005. The tortfeasor had liability
insurance with policy limits of $25,000. Defendant’s
policy insuring plaintiff provided UIM coverage up
to $100,000. Plaintiff settled his claim against the at-
fault driver for the policy limit of $25,000. After de-
fendant received plaintiff’s IME report on September
22, 2008, which opined that extensive medical treat-
ment was necessary and causally related to the acci-
dent, defendant denied plaintiff’s claim for $75,000 in
UIM benefits. On appeal, defendant asserted that the
trial court’s submission of plaintiff’s statutory claim to
the jury was an unconstitutional retroactive applica-
tion of the statutes. The statutes, which took effect on
August 5, 2008, create a right of action separate from
the common law tort of bad faith breach of an insur-
ance contract. The COA held that although the stat-
utes may not operate retroactively, they may properly
apply to new acts of unreasonable denial or delay oc-
curring after their effective date, even where the un-
derlying insurance claim arose before their enactment.
Here, a reasonable jury could find that defendant en-
gaged in new acts of unreasonable denial and delay af-
ter August 5, 2008, sufficient to impose liability under
the statutes. Defendant also contended that there was
insufficient evidence of unreasonableness to support
plaintiff’s statutory claim. Plaintiff provided evidence
at trial beyond a merely subjective opinion on whether
defendant acted reasonably, particularly that defendant
requested—and then ignored—the IME report. It said
that a reasonable jury could have found that defendant
refused to consider evidence showing plaintiff was en-
titled to additional compensation. Defendant further
contended that the trial court erroneously ordered it
to pay an additional $40,539 in prejudgment interest
because the jury awarded plaintiff the policy limit of
$75,000 in contract damages. Because it is part of the
compensation awarded for bodily injury, prejudgment
interest is within the bodily injury coverage of an in-
surance policy and is subject to those policy limits.
Therefore, defendant was not liable for prejudgment
interest beyond the $75,000 awarded on plaintiff’s con-
tract claim. l
TW TELECOM HOLDINGS INC. V.
CAROLINA INTERNET LTD.
TW Telecom Holdings Inc. v. Carolina Internet Ltd.
Tenth Circuit overrules precedent and applies auto-
matic stay to appeals. (10th Cir. 11/15/2011) (D.Colo.)
(Gorsuch). Defendant appealed a judgment against
it entered in favor of plaintiff. While the appeal was
pending, defendant filed for Chapter 11 bankruptcy
protection. Prior precedent held that an appeal taken
by a bankruptcy debtor is not subject to the automatic
stay in bankruptcy. Joining several other circuit courts
holding to the contrary, the Tenth Circuit overruled
its precedent and announced that from this date for-
ward, the automatic stay applies to stay all appeals in
proceedings that were originally brought against the
debtor, regardless of whether the debtor is the appel-
lant or appellee. l
COURT OF APPEALS cont.
10th CIRCUIT COURT OF APPEALS cont.
5. CDLA DIRECTORS
Brendan O. Powers, Esq.
Spies, Powers & Robinson
Teresa W. Seymour, Esq.
Jones, Waters, Geislinger & Seymour
Dawn R. Kubik, Esq.
2012 Conference Chair
Jones, Waters, Geislinger & Seymour
Rob Jones, Esq.
2013 Conference Chair
Paul Edwards & Associates
Jeffrey C. Ruebel, Esq.
Ruebel & Quillen
Caitlin S. Quander, Esq.
Harris, Karstaedt, Jamison & Powers
John R. Chase, Esq.
Trial Academy Chair
Montgomery, Kolodny, Amatuzio & Dusbabek
David M. McLain, Esq.
Higgins, Hopkins, McLain & Roswell, LLC
Jody Haskins, Esq.
Young Lawyer Co-Chair
White & Steele
Jeff Garcia, Esq.
Young Lawyer Co-Chair
Patterson Nuss & Seymour
Heather A. Salg, Esq.
Ex-Officio /Communications Director
Harris, Karstaedt, Jamison & Powers
Bo Donegan, CPA
5761 South Elm St
Greenwood Village, Co 80121