Brian D. Kennedy received a successful ruling from the Court of Appeals in case numbers 18CA1108 & 18CA1717 (ann’d 9/26/19). Brian previously obtained a defense verdict in the underlying trial court (2017CV30697). The case involved an altercation on Larimer Street near a nightclub called the Retro Room. Plaintiff asserted claims of battery and outrageous conduct. Plaintiff and Defendant had conflicting versions of the cause of the altercation and who was the initial aggressor.
The Plaintiff appealed arguing the trial court erred by 1.) refusing to admit portions of a police report at trial that included statements of an off-duty officer who witnessed the incident but did not testify at trial; 2.) excluding from evidence (as a discovery sanction) any reference to Plaintiff’s anticipated future career as a pilot in the United States Air Force, the central premise of his damage claims; and 3.) for denying Plaintiff’s motion to stay execution of the cost award against Plaintiff. In an unpublished opinion, the Court of Appeals concluded that the trial court did not abuse its discretion on any of these issues and affirmed the judgment in favor of Defendant/Appellee.
Frank Patterson and Karl Chambers received a successful ruling from the Court of Appeals in Donna Roulston v State Farm (18CA1600, ann’d 2/13/20) on issues that arise frequently in bad faith/unreasonable delay cases. The great majority of these cases are nothing more than disagreements over the value of the claimants injuries and damages. The unreasonable delay statute, C.R.S. 10-3-1115, creates a tremendous incentive for claimants and their attorneys to create value disputes and to file suit alleging unreasonable delay. Following the Supreme Court’s ruling in Schultz v Geico, many claimants argue in litigation that the insurance carrier’s decisions are frozen in time as of its pre-suit evaluation. They argue the carrier is forbidden from obtaining post-suit medical examinations and that it is precluded from introducing any evidence it did not explicitly rely upon prior to suit. Fortunately, the Court of Appeals in Roulston recognized that when a contract claim is unresolved at the time suit is filed, the carrier continues investigating and evaluating it. The carrier is allowed to continue its investigation and to introduce evidence at time of trial as to its ongoing evaluation. The Court also recognized that the act of evaluating a claim is not a one-time event, that it occurs over time as information is received. Unfortunately, the Court’s opinion was not selected for official publication. If anyone wants a copy, we would be happy to provide one.
Frank and Karl note there are a couple of caveats to keep in mind in similar situations. First, Colorado law is still that the insurance company’s actions or decisions must be judged by the information known to the company at the time of the act or decision. A claimant can still ask the jury to consider what the insurer actually knew at an earlier time and ask the jury to conclude the insurer lacked the information it should have had. They can also argue the insurance company was trying to back-fill information after suit was filed.
Karl Chambers gave oral arguments in the case Bailey v. State Farm Mutual Automobile Insurance Company. In a published opinion, 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.
On September 14, 2017, The Colorado Court of Appeals affirmed the directed verdict for the defendant obtained by attorneys Frank Patterson and Hillary Patterson in the case of My Roofer, Inc. v. State Farm Fire & Casualty Company (16CA1478; Weld County District Court, 2015CV30425). In an unpublished opinion, the court of appeals ruled that decking damaged by the separate, nonfortuitous loss of ‘wear, tear, and deterioration’ was not covered by the OL (Ordinance and Law) endorsement of the State Farm policy. The court also ruled the pre-existing damaged decking did not constitute ‘undamaged’ property under the terms of the policy for purposes of coverage under the OL endorsement. Finally, the court ruled that My Roofer failed to preserve the issue of whether the Loss Settlement section of the policy required coverage for the decking under a theory that decking is an inseparable component of a roof assembly or a roof system. The court declined to rule on the unpreserved issue as the new legal theory was not unequivocally correct. Oral arguments were presented on September 6, 2017.
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).