Opinion by Judge RICHMAN. Pursuant to section 24-4-106(9), C.R.S. 2010, plaintiff, Ruth Koehler, seeks judicial review of the district court's judgment upholding the decision of the Colorado Department of Health Care Policy and Financing (the Department) to terminate Koehler's benefits under Medicaid Home- and Community-Based Services for the Elderly, Blind and Disabled (HCBS). Because the termination was based on a Department regulatory definition that is inconsistent with the purpose of the...
Opinion by Judge GRAHAM. These two cases present identical issues on appeal and are therefore amenable to resolution in a single opinion. In the first case, plaintiffs, Randy Crosby, Robert Espinoza, Jamie Marquez, Mary James, Joy Sholts, Rochelle Duran, Juan Gonzales, Sandra Lesher-Thomas, Teresa Hill, and Robert J. Steele (collectively, Denver County plaintiffs), appeal the Denver district court's summary judgment in favor of defendants, American Family Mutual Insurance Company and American...
Opinion by Judge ROY. In this consolidated appeal, the Sarah D'Ann Haskett Educational Trust (the trust) appeals from a summary judgment quieting title to a parcel of real property (the property) in Keegan L. Meyer (purchaser). Phillip David Haskett (debtor) appeals from the entry of default judgment. In addition, the trust and debtor both appeal the orders denying their respective motions to vacate the judgments. We affirm. I. Background A stipulated judgment, in the amount of $81,126.69,...
Opinion by Judge CONNELLY. Plaintiff, Taylor Wycoff, was seriously injured at a winter event held by defendant, Grace Community Church (Grace). Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer), sued Grace and another defendant. Claims against that other defendant are addressed in Wycoff v. Seventh Day Adventist Ass'n, 251 P.3d 1258 (Colo.App.2010). The jury returned verdicts against Grace totaling more than $4 million. The court reduced the...
Opinion by Chief Judge DAVIDSON. In this action for breach of the duty of good faith and fair dealing, plaintiffs, Michael Dunn and Alissa Dunn, individually and as parents and natural guardians of Tanner Dunn and Gage Dunn, appeal from the summary judgment entered in favor of defendant, American Family Insurance. The primary issue on appeal is whether the court erred in its determination that plaintiffs' bad faith claims did not fall within the duties owed to them by defendant. We affirm...
Opinion by Judge GRAHAM. We are called upon to resolve questions concerning whether a university and its regents should be immune from a civil suit. Professor Ward Churchill appeals the trial court's judgment (1) directing a verdict in favor of the University of Colorado and its Board of Regents and dismissing his 42 U.S.C. 1983 claim that the University's investigation of his academic works constituted an adverse employment action; (2) holding as a matter of law that the University was...
Opinion by Judge CONNELLY. This appeal involves a derivative lawsuit by limited partners challenging the sale of partnership property to a general partner at a price allegedly far below fair market value. Derivative lawsuits, whether filed by limited partners (as here) or by corporate shareholders, are two suits in one: the first against controlling officials to assert the entity's rights and the second on behalf of the entity. The entity may try to defeat the first suit and avoid the second...
Opinion by Judge RICHMAN. Defendant, Aaron Samuel Trujillo, appeals the order revoking his probation and sentence of indeterminate Sex Offender Intensive Supervision (SOISP), and consequent imposition of an indeterminate sentence of incarceration of a minimum of seven years to life in the Department of Corrections (DOC). He argues that the court lacked jurisdiction to revoke SOISP because he had not yet begun to serve that sentence at the time he committed the alleged violations. We disagree...
Opinion by Judge GABRIEL. Plaintiff, Leonard Sanderson, appeals the district court's grant of summary judgment in favor of defendant, American Family Mutual Insurance Company (AFI), on his claim for bad faith breach of an underinsured motorist (UIM) policy. He also appeals the denial of leave to amend his complaint to assert a claim for exemplary damages based on the purported breach. Because we conclude that (1) Sanderson has failed to show a genuine issue of material fact and (2) on the...
Opinion by Judge J. JONES. Does section 8-4-110(1), C.R.S.2010, of the Colorado Wage Claim Act, sections 8-4-101 to -123, C.R.S.2010 (the Wage Act), allow a court to award attorney fees to an employer that prevailed on an employee's Wage Act claim only if the employee's claim was frivolous We hold that it does not: the court may make such an award in its discretion even if the claim was not frivolous. Therefore, we affirm the district court's order directing plaintiff, Philip Carruthers, to...
Opinion by Judge CASEBOLT. This is a declaratory judgment action concerning underinsured motorist (UIM) insurance coverage. It arises out of an auto-pedestrian accident in which Chris Naeve (Naeve), an employee of Statewide Traffic Control, Inc. (Statewide), was killed when he was struck by an underinsured vehicle while working on a state highway. Jeffrey Anderson, as natural maternal grandfather and co-conservator of Cole Naeve; Tamara Anderson, as natural aunt and co-conservator of Cole...
Opinion by Judge GABRIEL. In this case, we must determine whether a pollution exclusion clause in an insurance policy issued by defendant Mountain States Mutual Casualty Company (insurer) to Tim Kirkpatrick, doing business as Hog's Breath Saloon and Restaurant (Hog's Breath), bars coverage for injuries suffered by plaintiffs, Christopher Roinestad and Gerald Fitz-Gerald, as a result of the negligent dumping of cooking oil and grease by Hog's Breath. After the insurer moved for summary judgment...
Opinion by Judge GRAHAM. Plaintiff, Chad Carter, who purchased a high performance automobile which proved defective, appeals the summary judgment dismissing his claims against defendant, Brighton Ford, Inc., for breach of implied warranty of merchantability and revocation of acceptance. We reverse and remand. I. Background In April 2007, Carter purchased from Brighton Ford a 2006 Mustang produced pursuant to a joint manufacturing agreement between Ford Motor Company and Saleen Inc. The...
Opinion by Judge WEBB. This case involves remedies available to Jefferson County based on its purchase of unrated collateralized mortgage obligations (CMOs) from defendants, Capital Securities of America, Inc., Jerry Manning, and Adam Alves (Capital Securities). Plaintiffs, Faye Griffin in her official capacity as the Treasurer, and the Board of County Commissioners, of Jefferson County (Jefferson County), sued Capital Securities for damages on the basis that because the CMOs were unrated,...
Opinion by Judge RICHMAN. Plaintiff, Metal Management West, Inc., appeals the district court's summary judgment in favor of defendants, the State of Colorado; John R. Newsome, District Attorney for the Fourth Judicial District; the City of Colorado Springs; Terry Maketa, Sheriff of El Paso County; Richard W. Myers, Chief of the Colorado Springs Police Department; and Colonel Mark V. Trostel, Chief of the Colorado State Patrol. We affirm in part, reverse in part, and remand the case with...
Opinion by Judge ROY. Jesse Anderson (skier # 1) and Melissa Ciocian (skier # 2) 1 and Chris Ciocian appeal the entries of summary judgment in favor of the Vail Corporation (ski resort) in their respective cases. These two appeals, though arising from different skiing accidents and different civil cases, are consolidated for the purpose of the opinion because they present virtually identical facts, the same legal issues, and the parties are represented by the same counsel. Slight factual...
Opinion by Judge ROY. Jesse Anderson (skier # 1) and Melissa Ciocian (skier # 2) 1 and Chris Ciocian appeal the entries of summary judgment in favor of the Vail Corporation (ski resort) in their respective cases. These two appeals, though arising from different skiing accidents and different civil cases, are consolidated for the purpose of the opinion because they present virtually identical facts, the same legal issues, and the parties are represented by the same counsel. Slight factual...
Opinion by Judge J. JONES. This case arises from a sale of real property and assets involving the following parties: Loveland Essential Group, LLC (Buyer); Grommon Farms, Inc., Gary Grommon, and Connie Grommon (collectively Seller); and Martin Jara and PoolTyme, L.L.C. (collectively Tenant). The district court found that Seller had breached two contracts (a real estate purchase agreement and an asset purchase agreement) and a warranty deed by conveying the property subject to an encumbrance,...
Opinion by Judge LICHTENSTEIN. Plaintiff, AC Excavating, Inc., appeals the trial court's judgment in favor of defendant, Donald A. Yale, on an alleged violation of the Trust Fund Statute, section 38-22-127, C.R.S.2009, and the civil theft statute, section 18-4-401, C.R.S.2009. We reverse and remand. I. Background This case primarily involves interpretation of Colorado's Trust Fund Statute, section 38-22-127. Specifically, does the Trust Fund Statute limit the source or intended use of funds...
Opinion by Chief Judge DAVIDSON. This is an appeal from the district court's order denying the motion of defendant, Oneida Cold Storage Co., LLP (Oneida), to vacate an arbitration award for lack of proper notice under section 13-22-223(1)(f), C.R.S.2009, of the Colorado Uniform Arbitration Act (CUAA), and confirming the award in favor plaintiff, Braata, Inc. We vacate and remand. Section 13-22-223(1)(f) states that a court shall vacate an arbitration award if it finds that there was a lack of...
