Heather Salg recently defended a two day jury trial in the District Court in and for the City and County of Denver in which plaintiffs claimed they sustained severe disabilities after a rear end accident with minor property damage. Initially, plaintiffs were represented by attorneys and at that time they alleged almost $300,000 in accident related medical expenses. After the plaintiffs’ depositions, plaintiff’s counsel withdrew. The case was then tried by the plaintiffs pro se. Judgment entered for the defendant as the jury felt plaintiffs had failed to prove they sustained injury in the subject accident.
Heather Salg obtained summary judgment for a client who had done repair work to sprinkler system pipes at a property, and was later sued when the pipes froze and burst. This case involved the application of Colorado’s economic loss rule and third party beneficiary status to contract.
There have been recent changes to the Rules of Civil Procedure regarding disclosure obligations and discovery requests. Requests for disclosure or discovery must be narrowly tailored and proportional to the needs of the case. In light of these changes, Frank Patterson recently obtained a favorable Order for his client in a bad faith case precluding extensive discovery of what has come to be thought of as “institutional discovery.” The Order can be reviewed here.
In a declaratory relief action filed by the insurer for failure to cooperate after the insured entered into a Nunn Agreement, Frank Patterson and Lindsay Dunn obtained an order denying the defendants’ motion to dismiss. The defendants argued that Nunn Agreements are allowed under Colorado law and therefore, cannot be a failure to cooperate. The trial court denied the motion holding that the case law does not automatically allow for such agreements and that an insured may enter into such an agreement when the insurer has acted unreasonably or in the face of a colorable bad faith claim. This case will have significant ramifications for insurers’ ability to challenge Nunn Agreements.
Karl Chambers obtained a defense verdict in the case of Shaun Olguin v. Louis Chacon dba Louie’s Barber Shop in Boulder County. The plaintiff claimed that he was injured while receiving a haircut at Louie’s Barber Shop and developed a staph infection that required medical treatment, including surgery. Karl defended Mr. Chacon on the theory that the plaintiff was never in the barber shop on the date that he claimed, but even if he was, the staph infection was not caused by conditions at the barber shop, but rather was due to a pre-existing medical condition that plaintiff had. The jury returned a defense verdict in favor of Mr. Chacon finding that the plaintiff’s alleged injuries were not caused by any negligence of Mr. Chacon or Louie’s Barber Shop.
We are pleased to announce that Todd Dieterich has been named a Non-Equity Partner. Todd has been with the firm for over five years and has met with success as a trial lawyer and developing solid relationships in the community. Congratulations, Todd!
Hillary Patterson obtained summary judgment for a client that paid work loss PIP benefits to its insured following a motor vehicle accident that occurred in Michigan (State Farm Mut. Auto. Ins. Co. v. Timika Thomas, 16CV30578). The insured subsequently recovered duplicate Social Security Disability Insurance benefits, but refused to reimburse the insurer pursuant to Michigan law. This case involved the application of Colorado’s choice of law principles, Michigan insurance law, and Michigan law governing breach of contract.
This case stemmed out of a motor vehicle accident on March 20, 2010, when Plaintiff and several companions were returning to their California college from New Orleans. A drunk driver going the wrong way on a California highway hit them head-on. The drunk driver fled the scene on foot but was later caught. Plaintiff was in the back seat sleeping, but was seat-belted. The force of the collision caused significant internal injuries. The injuries were immediately life-threatening and he developed a hematoma at the sight of the abdominal wall rupture that grew from softball to watermelon size. Emergency surgery included pulling his abdominal contents out and searching inch by inch for tears or no-viable tissue. The surgeons removed large sections of the upper and lower intestines and bowels.
Plaintiff settled his claim against the drunk driver for policy limits of $100,000 and then made a demand for underinsured motorist (UIM) insurance benefits under an insurance policy issued by State Farm to his parents. That policy had $1,000,000 in limits. A demand for policy limits was made 3 months before the Statute of Limitations expired. State Farm requested additional information which was not provided prior to suit. The information was provided within 90 days after filing suit. State Farm evaluated and offered $113,000 to resolve the claim. After a failed mediation, State Farm advanced the $113,000. State Farm informed the jury it had evaluated the claim in the range of $113,000-160,000 in addition to the BI limits previously received.
Just prior to the expiration of the Statute of Limitations, Plaintiff filed suit for UIM benefits, and alleging unreasonable delay, bad faith and (later) punitive damages.
State Farm admitted Plaintiff sustained serious, life-threatening injuries, but claimed he had made a remarkable recovery and had not sought treatment for anything since August, 2011. In fact, he traveled to South America, living and working there for 6 months in 2011-12. He had worked two lengthy stints in the backcountry for national parks in the Northwest, creating/restoring trails and removing invasive species, which work involved heavy manual labor. Further, he completed a 1,500 mile bike trip from Oregon to Mexico. State Farm denied he had ongoing or future medical expenses or income loss.
As to the extra-contractual claims, State Farm alleged any delays were caused by plaintiff, through his lawyer-agents. State Farm alleged that coverage for additional damages was voided due to failure to cooperate, and material misrepresentations made in correspondence about plaintiff’s ongoing treatment. Plaintiff, through his lawyer-agents, failed over 3 years to return a signed medical authorization as requested under the policy, and failed to respond to requests for related medical information. (Plaintiff claimed the other records were minor compared to the uncontested injuries, for which plaintiff counsel supplied the records.) In addition, State Farm asserted material misrepresentations voided coverage because plaintiff counsel asserted that plaintiff had treatment in 2012 when treatment had actually ended in 2011.
DIRECTED VERDICTS: Defendant’s Motion for Directed Verdict was granted on plaintiff’s claims for future income loss ($660,000) and future medical expense ($440,000).
Plaintiff called Dave Torres as a Claims Handling expert. Following voir dire, the court determined Mr. Torres lacked qualifications to provide an expert opinion.
The jury returned a verdict for Defendant State Farm on Verdict Form A – Plaintiff failed to cooperate, voiding any additional coverage. As a result, the jury did not address the remaining claims of UIM damages, unreasonable delay, bad faith or punitive damages.
Hillary Patterson obtained an order for dismissal for a pro se plaintiff’s failure to prosecute and for discovery violations (Brenda Senna v. Leah Flink, 2016CV115). In retaliation for a separate eviction proceeding, Plaintiff brought personal injury claims on behalf of her children and herself against defendant landlord arising out of a water heater fire where plaintiff alleges she and her children were exposed to carbon monoxide. Plaintiff demanded several millions of dollars in damages, but failed to make any disclosures and failed to appear at two separate depositions. By obtaining dismissal, extensive and unnecessary litigation costs were avoided in defending frivolous and meritless claims.
In Court of Appeals news, Frank Patterson and Brian Kennedy had a recent victory after briefing and presenting oral arguments before the Colorado Court of Appeals in the case of State Farm Mutual Automobile Insurance Company v. Mabel Garcia, 15CA1771. In an opinion issued on October 27, 2016, the Colorado Court of Appeals affirmed the trial court’s ruling on State Farm’s summary judgment motion that a second household automobile policy covering a vehicle that was not involved in the accident did not provide additional liability coverage (See below for an excerpt of the court’s recitation of the background of the case).
On October 18, 2016, Mr. Patterson presented oral arguments in this case before the Colorado Court of Appeals at Fairview High School. This case and its attorneys were selected for this special session of the Court of Appeals as part of the Judicial Branch’s Courts in the Community program. Counsel presented arguments in front of a large audience of students and community members and answered questions from the audience following their arguments.
This case involves the interpretation of an auto liability policy. In 2012, Garcia was injured in a collision with State Farm’s insured, Susan Leavitt. Garcia sued Leavitt, seeking compensation for her injuries sustained in the accident. On the date of the accident, Leavitt was insured by two separate State Farm automobile insurance policies. Policy 1 insured Leavitt’s Volvo XC70 for liability up to $100,000. Policy 2 insured a Ford Explorer owned by Leavitt and her husband for liability up to $500,000. At the time of the accident, Leavitt was driving her Volvo XC70. Garcia asserts that Policy 2 provides coverage for the collision between Leavitt’s Volvo and Garcia. State Farm disagrees. . . . The district court entered summary judgment for State Farm, concluding that Policy 2 does not provide coverage for the collision because Leavitt is not an “insured” within the terms of the policy definition.
State Farm Mut. Auto. Ins. Co. v. Garcia, 15CA1771, slip op. at 1-2 (Colo. App. Oct. 27, 2016).
Todd Dieterich tried and won the case of Aaron Phillips v. Kyle Smoker, et. al. in a 5 day trial in Denver County District Court. This case stemmed from a multi-vehicle accident on the ramp exiting I-25 North onto I-70 East. As both parties rounded that turn approaching I-70 East, they encountered a pickup truck who had spun out and was sitting parallel to oncoming vehicles blocking traffic. Both parties were behind a third vehicle who braked to avoid the stopped vehicle. Plaintiff alleges that the Defendant was tailgating that vehicle, had insufficient time to stop, and swerved into his lane, striking him and causing him to lose traction and strike the parallel vehicle, strike the cement median and ultimately come to rest in the I-25 South on-ramp where he was struck by an oncoming eighteen wheeler. Defendant alleges that he did change lanes to avoid the vehicle in front of him, but he did so in a safe and prudent manner, and it was the Plaintiff’s excessive speed that caused him to strike the Defendant and the resulting collisions. Plaintiff made claims for neck, back, and shoulder injuries. These injuries allegedly required rhizotomy and facet injections for an indefinite period of time resulting in $1,953,00 in future treatment. The jury returned a verdict in favor of the defendant.
On July 13, 2016, attorneys Frank Patterson and Hillary Patterson obtained a directed verdict for the defendant in the case of My Roofer, Inc. v. State Farm Fire & Casualty Company (Weld County District Court, 2015CV30425).
Plaintiff was a roofing company. State Farm’s insureds suffered roof damages as a result of a hail/wind event. State Farm determined decking was not damaged in the event, and damage to decking was excluded as wear, tear, and deterioration. The insureds and the roofer argued State Farm should cover replacement cost of decking under OL coverage (Ordinance or Law) because code required replacement before new shingles were applied. State Farm contended excluded damages for wear, tear, and deterioration are not restored under OL coverage.
The roofer replaced the decking and took an assignment from the owners for a breach of contract claim. The roofer brought a first-party claim in its own right alleging unreasonable delay and denial pursuant to C.R.S. §§ 10-3-1115 and 10-3-1116.
The Honorable Judge Todd L. Taylor ruled on State Farm’s oral motion for directed verdict after Plaintiff rested its case-in-chief that. Judge Taylor held that, viewing the evidence in the light most favorable to the nonmoving party, Plaintiff had not met its evidentiary burden on the breach of contract claim. The evidence was overwhelmingly clear beyond doubt that the damage to decking was caused by wear, tear, or deterioration, and that the State Farm policy did not provide coverage for the loss. All of Plaintiff’s claims were dismissed pursuant to C.R.C.P. 50.
On July 18th Heather A. Salg obtained a defense verdict in the case of Tower Ridge II Townhome Homeowners Association, Inc. v. Holyoke Mutual Insurance Company in Salem, Inc. (14CV33306) in Arapahoe District Court.
Plaintiff HOA claimed damages from hail and windstorms in early June, 2012. In August of 2013, Plaintiff made a claim for benefits under an “all risk” policy issued by Defendant. After inspection, Defendant determined that there was no storm damage present, but rather damage due to improper installation and manufacture. Subsequent to the inspection defendant learned Plaintiff had made a prior construction defect claim regarding roof shingles that were not adhered properly. Defendant denied Plaintiff’s claim.
Plaintiff sued for breach of contract and statutory unreasonable denial. During litigation, and after two significant storms in 2014, Plaintiff’s expert, Joe Novotny, inspected the property. The last time he had seen the property was in 2010 during a construction defect case. He believed the roof showed significantly different wind damage than what he originally saw in 2010. Defendant obtained summary judgment on Plaintiff’s statutory claim which was barred by the statute of limitations. At trial, Plaintiff claimed $2.6 million in damages for roof replacement.
The jury found that the wind damage only occurred because of pre-existing construction defects, wear and tear, and/or failure to maintain and returned a verdict in favor of the defendant.