Jennifer White and Debra DeRee won summary judgment as to all of Plaintiff’s claims with regard to the matter entitled Ronald Lindsey v. State Farm Mutual Automobile Insurance Co. a/k/a State Farm Insurance Co. in Las Animas County, case number 2017CV30075. The case involved the alleged theft of Plaintiff’s 2013 Chrysler 300, which was insured by State Farm, in Las Vegas, Nevada. The undisputed evidence showed that (1) the title presented with the vehicle for sale on the same date that Plaintiff claimed it was stolen lists Plaintiff as the seller and contained a signature using Plaintiff’s nickname; (2) a law enforcement investigator determined that the vehicle had not been stolen; (3) Plaintiff had reported two vehicles stolen prior to the alleged loss; (4) the vehicle was operated with a properly coded key fob at the time of the alleged theft; (5) despite Plaintiff claiming that one of the two key fobs issued to him at the time of the vehicle purchase was destroyed down a garbage disposal, Plaintiff was able to produce one key fob to State Farm and the other was found with the current owner of the vehicle (thus accounting for both original key fobs); and (6) a handwriting expert determined that it was “highly probable” that Plaintiff had signed the title on the date that he claimed it was stolen. Plaintiff’s Complaint alleged claims for: (1) Breach of Contract; (2) Bad Faith Breach of Insurance Contract; (3) Unreasonable Conduct or Position; and (4) Statutory Violations of the Unfair Settlement Claim Practices Act (claiming delay-denial statute damages). State Farm denied such allegations, asserting that the vehicle was not stolen and, instead, had been sold by Plaintiff and sought summary judgment on all issues. The trial court agreed with State Farm and specifically found that: (1) it was reasonable for State Farm to challenge Plaintiff’s claim and that their handling and denial of Plaintiff’s claims was reasonable as a matter of law, including noting their compliance with Division of Insurance Amended Regulation 5-1-14; and (2) Plaintiff made material misrepresentations to the insurance company as to the key fobs and this, in combination with the fact that it was “highly probable” that Plaintiff had signed the title as seller, made it clear to the trial court that reasonable minds could not differ that the vehicle was not stolen without any involvement on Plaintiff’s part. The trial court found that Plaintiff’s misrepresentations voided the policy and granted summary judgment in favor of the insurance company on all claims, finding that, as a matter of law, a reasonable jury could not return a verdict for Plaintiff.
State Farm denied coverage in connection with an automobile accident based on the plain language of a step down clause in an Ohio-issued policy. Plaintiff (represented by Franklin D. Azar & Associates) sued State Farm on the basis that the step down clause was invalid under Colorado law. Plaintiff filed a motion for a determination of law on this issue. The Court found in State Farm’s favor, ruling that the plain language of State Farm’s policy was enforceable and there was no coverage.
Frank Patterson successfully defeated a bad faith set-up case in the trial of Lloyd Sidley vs Roshan Dulal and State Farm Mutual Automobile Ins Co. Trial was before Judge Frederick Martinez in Arapahoe County. Plaintiff was severely injured in a motorcycle accident, with medical expenses in excess of $1 Million. The defendant had only $25,000 in liability coverage. Plaintiff’s attorney sent a letter to State Farm saying plaintiff would accept the limits in settlement of the claim if State Farm satisfied 3 conditions – 1) supply proof of the liability limits; 2) perform due diligence in determining whether there was any other liability insurance; and 3) provide an affidavit, which he provided, signed by the insured which indicated the defendant’s assets. State Farm did all three and offered its limits. Plaintiff filed suit against State Farm’s insured, arguing that State Farm failed to satisfactorily complete the three conditions, thus exposing the insured to a large excess verdict and making State Farm liable for the excess. The trial court allowed State Farm to intervene and bifurcated the trial to determine first whether a settlement had been reached. The jury quickly returned a verdict that State Farm had properly completed the conditions and that there was indeed a settlement for $25,000.
This case is a good example of a situation with large damages and little insurance, where the plaintiff’s attorney was trying to set-up the insurance company to be on the hook for all the damages. It was clear that counsel never had any real intent to settle. He was going to argue that the insurer failed to satisfy the conditions no matter what it had done. We were fortunate in this case that our insurance client was allowed to intervene in the underlying injury suit rather than having to wait until a sizable judgment was entered against its insured and then fight it in separate litigation.
Kevin G. Ripplinger tried the case of Craig Cypher v. Mountain Man Welding and Fabrication, Inc., and James Fedje in an 8-day trial in Adams County. This case arises from an auto accident involving employee and claims under Federal Motor Carrier Safety Act. Kevin Ripplinger represented the employer under claim for respondeat superior. Defense verdict obtained for both defendants.
Karl Chambers tried the case of Grace Stean and Adam Stevens v. Margaret Molloy in a four day trial in Arapahoe District Court.
This action arose out of a motor vehicle accident involving plaintiff’s wife, Grace Stean, and our client, Margaret Molloy. Ms. Stean claimed that she was injured in the accident, including an alleged mild traumatic brain injury and a cervical facet injury. Plaintiff, Adam Stevens, was not involved in the accident, but claimed that he suffered a loss of consortium due to his wife’s injuries. We admitted that defendant negligently caused the accident, but challenged the injuries and damages claimed by Ms. Stean and her husband. Ms. Stean settled her claim prior to trial and Mr. Stevens elected to litigate his loss of consortium claim. Our defense was that he did not suffer a loss of consortium. The jury agreed and returned a defense verdict finding that Mr. Stevens did not suffer a loss of consortium.
Frank & Hillary Patterson obtained a Defense Verdict in an October trial over UIM benefits. The case is Velvet Entz v. State Farm Mutual Automobile Insurance Company, Pueblo County District Court, 2016CV030960. Plaintiff claimed the accident caused serious cervical injuries including a herniated disc, with past medical expenses of $160,000 and an anticipated future cervical surgery at a cost of $140,644.00 – $244,430. The liability carrier had previously paid its $100,000 in limits. Plaintiff demanded the full UIM policy limits of $500,000. The last and lowest offer to settle by Plaintiff was $350,000.
Frank and Hillary disputed causation. In the trial they admitted plaintiff may have had a slight exacerbation of some pre-accident complaints but denied that the disc herniation or subsequent surgeries were the result of the accident. They argued that plaintiff had a pre-existing degenerative condition in her cervical spine for which she sought periodic chiropractic treatment in the years preceding the accident and that her post-accident treatment was not consistent with a herniation caused by the accident. Instead, they argued that the significant herniation at C5-6 occurred 8 months after the accident and it was not related to the accident.
The jury agreed, finding that Plaintiff’s total damages from the accident were $4,300. Since she had already recovered the liability limits far in excess of that, State Farm owed no UIM payment.
Plaintiff’s treating doctors who testified were Dr. Lloyd Mobley, Dr. Roger Sung, Dr. John Warner, DC and Dr. William Anderson, DC. The defense expert who testified was Dr. Henry Roth.
Karl Chambers gave oral arguments in the case Bailey v. State Farm Mutual Automobile Insurance Company. The Colorado Court of Appeals affirmed the judgment of the trial court in favor of our client, State Farm. The plaintiff sued the party that caused the accident along with State Farm seeking underinsured motorist benefits from State Farm claiming that his damages exceeded the liability policy limits of the at-fault party. Shortly before trial the liability insurer for the at-fault party agreed to pay the judgment regardless of the amount. The jury returned a verdict for an amount greater than the at-fault party’s policy limits and his insurer paid the full amount of the judgment. Notwithstanding the fact that the full amount of the judgment was paid by the liability insurer the plaintiff argued that he was still entitled to $100,000 in UIM coverage. We argued that there was no UIM coverage because the entire judgment had been paid by the liability insurer. The trial court agreed with us and entered a judgment only against the at-fault party. Plaintiff filed an appeal of the trial court’s judgment and the Court of Appeals also agreed with us that no UIM benefits were owed because the entire judgment was paid by the liability insurer.
Patrice Fujisaki Sauter v. State Farm Fire & Casualty Company
On August 1, 2018, attorneys Frank Patterson and Hillary Patterson obtained a directed verdict for the defendant in the case of Patrice Fujisaki Sauter. v. State Farm Fire & Casualty Company (Denver County District Court, 2017CV33275).
Plaintiff Patrice Fujisaki Sauter is the daughter of the deceased homeowner and State Farm insured, Rose Fujisaki. Plaintiff alleged a hail and wind storm caused damage to Rose Fujisaki’s home and lightweight concrete tile roof. State Farm determined the concrete tile roof was not damaged in the hail/wind event, but had sustained unrelated damage from improper installation and footfall. State Farm issued payment to Rose Fujisaki for other damage to the property caused by hail/wind. Plaintiff lived in the home, but did not own the home, was not the named insured on the State Farm policy, and was not the personal representative of the Estate of Rose Fujisaki. Plaintiff brought a first-party claim in her own right alleging breach of contract, common law bad faith, and unreasonable delay and denial pursuant to C.R.S. §§ 10-3-1115 and 10-3-1116.
Plaintiff’s claims of breach of contract and common law bad faith were dismissed on summary judgment because Plaintiff was not the homeowner or policyholder, and therefore had no standing to pursue those claims. The Court denied summary judgment on the claim of unreasonable delay/denial, ruling a fact question remained as to whether Plaintiff had authority to assert the claim on behalf of the Estate of Rose Fujisaki. Plaintiff never moved to amend the pleadings and presented no other timely evidence of her standing to assert claims on behalf of the Estate of Rose Fujisaki.
At trial, The Honorable Judge Martin F. Egelhoff ruled on State Farm’s oral motion for directed verdict after Plaintiff rested her case-in-chief. Judge Egelhoff held that, viewing the evidence in the light most favorable to the nonmoving party, Plaintiff had not presented any evidence that she had legal authority to pursue a claim of unreasonable delay/denial under C.R.S. §§ 10-3-1115 and 10-3-1116 on behalf of the Estate of Rose Fujisaki. Therefore, Plaintiff lacked standing and her remaining claim was dismissed pursuant to C.R.C.P. 50.
On July 23, 2018, Kevin G. Ripplinger and Brian D. Kennedy tried the case of Julie Weber v. Keyan Pesaran, Nahid Pesaran, and Ahmad Pesaran in Boulder County District Court in front of the Honorable Thomas F. Mulvahill.
Alan C. Shafner
Allie D. Shafner
Law Office of Alan C. Shafner, P.C.
5350 South Roslyn Street, Ste. 460
Greenwood Village, CO 80111
Sean T. Olson
Olson Law Firm, L.L.C.
2701 Lawrence Street, Suite 117
Denver, CO 80205
Kevin G. Ripplinger, Esq.
Brian D. Kennedy, Esq.
Frank Patterson & Associates, P.C.
5613 DTC Parkway, Suite 400
Greenwood Village, CO 80111
Andrew A. Scott, Esq.
White and Steele, P.C.
Dominion Towers, North Tower
600 17th Street, Suite 600N
Denver, CO 80202-5406
TYPE OF CLAIMS: Wrongful Death (Negligence) claim against Defendant Keyan Pesaran, Family Car Doctrine claim against Defendants Nahid Pesaran and Ahmad Pesaran.
DATE, TIME AND PLACE OF ACCIDENT OR OCCURRENCE: December 6, 2015, near mile marker 123 on Colorado Highway 40 in Routt County, Colorado.
DESCRIPTION OF CASE: Plaintiff’s daughter, Nicole Weber, Keyan Pesaran and a mutual friend, Shannon Cook, were returning to Boulder from Steamboat, Colorado. Nicole Weber was a passenger in a Jeep Grand Cherokee being driven by Keyan Pesaran. The previous night (and early morning), Nicole Weber, Shannon Cook and Keyan Pesaran had attended a party. Keyan Pesaran used drugs and alcohol during or after the party. The morning after the party, Keyan Pesaran also took Adderall or Vyvanse. During the drive back to Boulder, Keyan Pesaran fell asleep or lost consciousness, and the Jeep left the road, rolling several times. Keyan Pesaran and Shannon Cook were injured in the accident, and Nicole Weber was killed.
Nahid and Ahmad Pesaran are Keyan Pesaran’s parents. They purchased the Jeep for Keyan Pesaran several years before the accident. Nahid Pesaran was the registered owner of the Jeep, and Nahid and Ahmad Pesaran covered most of Keyan Pesaran’s expenses. Keyan Pesaran was a college student at the time of the collision and had an apartment separate from his parents’ home.
Plaintiff asserted a wrongful death claim against Keyan Pesaran and a family car claim against Nahid and Ahmad Pesaran.
INJURIES AND/OR DAMAGES ALLEGED: Plaintiffs adult daughter, Nicole Weber, was killed in a car accident. Plaintiff claimed emotional distress, suffering, inconvenience and loss of quality of life as the result of the death of her daughter.
FINAL DEMAND BEFORE TRIAL: $930,000
FINAL OFFER BEFORE TRIAL: $300,000 from all defendants jointly.
PLAINTIFF’S EXPERT WITNESSES: Daniel Anderson, Colorado Bureau of Investigation Forensic Services Division, as to blood test results concerning Keyan Pesaran. Ken Kulig, M.D., toxicologist, as to effects of substances consumed by Keyan Pesaran.
DEFENDANT’S EXPERT WITNESSES: None.
VERDICT: For the plaintiff and against Defendant Pesaran on the Wrongful Death (negligence) claim. The jury determined that Plaintiff’s damages were $1,500,000. For Defendants Nahid Pesaran and Ahmad Pesaran and against the plaintiff on the Family Car claim.
OTHER COMMENTS: Plaintiff petitioned the court for a determination that the death of Nicole Weber constitutes a felonious killing and the court granted that motion.
On April 30, 2018, Brian D. Kennedy tried and won case number 2017CV30697 in front of the Honorable Martin F. Egelhoff, in a three day (although scheduled for four) jury trial in Denver District Court.
Plaintiff alleged that Defendant attacked him without warning or provocation while he was walking down Larimer Street near a nightclub called the Retro Room, punching Plaintiff in the back of the head and tackling him. Defendant denied Plaintiff’s allegations and claimed that Plaintiff came up behind Defendant’s wife and groped her buttocks. When Defendant approached Plaintiff and began speaking to him about the incident, Defendant alleged that Plaintiff charged him and that, in the ensuing scuffle, Plaintiff fell to the ground, injuring himself.
PLAINTIFF’S ATTORNEY: Michael L. Glaser, Law Office of Michael L. Glaser, LLC
TYPE OF CLAIMS: Assault, Battery, and Outrageous Conduct.
DIRECTED VERDICTS: The Court directed verdicts in favor of the Defendant on Plaintiff’s claim of assault and on all of Plaintiff’s claims for economic damages.
INJURIES AND/OR DAMAGES ALLEGED: Facial bruising, abrasions and laceration, corneal abrasion, concussion, post-concussive syndrome, depression, anxiety, PTSD, headaches, tinnitus, panic attacks, and ED. Plaintiff also claimed to have wage loss from missed work as well as diminished earning capacity because of his inability to continue a career in the Air force.
SPECIALS: $24,000 in medical expenses, $1,700 in past wage loss and an estimated $750,000 in future income loss.
FINAL DEMAND BEFORE TRIAL: $395,000
FINAL OFFER BEFORE TRIAL: Statutory offer of $65,000.01
PLAINTIFF’S EXPERT WITNESSES: Laur M. Birlea, M.D.
DEFENDANT’S EXPERT WITNESSES: None.
VERDICT: For the defendant on the Plaintiff’s claims of battery and outrageous conduct.
OTHER COMMENTS: The Court excluded evidence of diagnoseable mental health conditions and treatment, as well as evidence of diminished earning capacity as a sanction for discovery violations. The Court also limited the testimony of Plaintiff’s physicians based upon inadequate disclosures. Defendant is seeking costs, as well as an award of attorney’s fees for discovery violations.