Opinion by JUDGE BERNARD 1 How does land in the city of Denver become a park This appeal requires us to look at that question through two lenses: (1) Denver's charter; and (2) common law principles concerning the dedication of property to particular uses, such as parks. Once we have viewed the case through those lenses, we must then decide which one controls our analysis. 2 If a city's charter provides no guidance on a legal issue, courts look to the common law. Colorado, like many other...
Opinion by JUDGE ROY * . 1 American Family Mutual Insurance Company (the insurance company), appeals the judgment and award of damages to Jennifer Hansen (the claimant) on her claim for an unreasonable delay or denial of a covered benefit under her underinsured motorist (UIM) coverage pursuant to sections 10-3-1115, -1116, C.R.S.2013 (the statutory claim). We affirm. I. Issues on Appeal 2 The insurance company contends that the trial court erred in: (1) concluding that the...
Opinion by JUDGE TAUBMAN . 1 In this eminent domain case, petitioner, Regional Transportation District (RTD), appeals the trial court's pretrial and instructional rulings as well as certain evidentiary rulings by a board of commissioners made in the course of determining the amount of just compensation to be paid for property acquired from respondent, 750 West 48th Ave., LLC (Landowner). We affirm. I. Background 2 In April 2011, RTD filed a petition in condemnation and acquired...
Opinion by JUDGE WEBB. 1 This probate appeal involves two unresolved questions in Colorado: first, whether section 15-11-205(4), C.R.S. 2013, of the Colorado Probate Code requires a surviving spouse to bring a separate action for contribution, before serving a writ of garnishment based on the contribution liability, although the probate court order has fixed the contribution liability of a person under that section; and, second, whether trust funds subject to a valid spendthrift provision...
Opinion by JUDGE J. JONES . 1 Plaintiff, Matthew V. Barnhart (son), appeals the district court's summary judgment in favor of defendant, American Furniture Warehouse Company (AFW), on his wrongful death claim. 2 We must decide whether, under Colorado's Wrongful Death Act (the Act), sections 13-21-201 to -204, C.R.S.2013, an heir may bring a wrongful death claim after a decedent's surviving spouse has settled such a claim without filing suit. We conclude that a spouse's earlier...
Opinion by CHIEF JUDGE LOEB 1 In this premises liability case, plaintiff, Martin Rieger, appeals the district court's summary judgment in favor of defendant, Wat Buddhawararam (the Temple). We affirm. I. Background and Procedural History 2 The following facts are undisputed from the district court record. 3 On July 26, 2010, Rieger was helping his friend and neighbor, Chris Margotta, trim a large tree on the Temple's property. Rieger and Margotta had agreed that Rieger would not...
Opinion by JUDGE ROM N. 1 Plaintiff, Colorado Mining Association (CMA), 1 a trade association representing coal producers, appeals the trial court's judgment dismissing as moot its claims against defendants, Colorado Department of Public Health and Environment (CDPHE), Christopher E. Urbina in his capacity as Executive Director of CDPHE, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively the agencies). CMA alleged that the rulemaking...
Opinion by JUDGE ROTHENBERG * 1 At issue in this appeal is whether the plaintiff, Todd Creek Village Metropolitan District (the special district), had the constitutional and statutory authority to enter into loans and security agreements with the defendant, Valley Bank & Trust Company (the bank), and to pledge the district's assets as collateral. Because we conclude the special district had such authority, we reverse the judgment invalidating the loan and security agreement executed by the...
Opinion by JUDGE BOORAS . 1 This is an appeal from the district court's review of challenges to state agency action. Consolidated plaintiffs Tracey Lawless, Robert Hogan, and Terrilynn Mills appeal the judgments in favor of defendants, Standard Insurance Company (Standard), as well as the Colorado Public Employees' Retirement Association (PERA), its Board of Trustees, and trustees Carole Wright, Maryann Motza, and Rick Larson (collectively the PERA defendants). We affirm. I. Background...
Opinion by JUDGE ROY . * 1 Plaintiffs, Richard L. Anderson, Stephanie Allen, James N. Dreisbach, M.D., Nicholas G. Muller, Ray Blum, M.D., K. Mason Howard, M.D., Susan E. Ljunghag, M.D., Richard Schaler, M.D., and Richard Parker, M.D., appeal the trial court's judgment dismissing the action as moot. The plaintiffs are challenging the Office of the Colorado State Attorney General's (OAG) approval of a transaction between The Colorado Heath Foundation, a Colorado nonprofit corporation...
Opinion by JUDGE GABRIEL . 1 In this action arising from the judicial dissolution of certain companies in the course of a receivership proceeding, defendants, Walter E. "Gene" Hoffman and Oxford Resource & Management, Inc., attempt to appeal from orders certified as final under C.R.C.P. 54(b) and appeal from orders granting summary judgment to intervenors, Victor Harshberger, Kenneth Adelberg, and Robert Williams, on defendants' counterclaims for abuse of process and civil conspiracy....
Opinion by JUDGE WEBB 1 Whether the economic loss rule bars a nondisclosure tort claim against the seller of a home built on expansive soils, which caused damage to the home after the sale, is a question of first impression in Colorado. In case number 12CA1269, defendants, John E. McNutt, Timothy A. McNutt, and Christopher L. Boortz (collectively, Sellers), appeal the judgment entered following a bench trial in favor of Carol S. Gattis (Gattis) on her nondisclosure claim. They seek reversal...
Opinion by JUDGE DAILEY 1 Petitioner, Ouray Sportswear, LLC (employer), seeks review of a final order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer's decision that employer is a "successor" entity for unemployment taxation purposes under section 8-76-104(1)(a), C.R.S.2013, because it purchased substantially all of the assets of two businesses. We conclude that the Panel's holding that employer is a successor entity directly conflicts with a prior...
Opinion by JUDGE FURMAN . 1 Annette Berenson appeals the summary judgment in favor of USA Hockey, Inc., and Colorado Ice Hockey Referees Association (collectively, USA Hockey). We affirm. 2 Berenson's appeal requires us to answer a question of emerging relevance in modern contract law: what type of evidence is required to prove that an individual has executed an exculpatory agreement during an online registration process To answer this question, we analyze Colorado's best evidence...
Opinion by JUDGE WEBB 1 This case primarily involves an unresolved question in Colorado: whether indebtedness owed to an independent contractor constitutes "earnings" under section 13-54.5-101(2)(a), C.R.S.2013, for purposes of applying the seventy-five percent exemption in section 13-54-104(2)(a)(I)(A), C.R.S.2013, to a writ of continuing garnishment. Plaintiff, Idaho Pacific Lumber Company, Inc. (judgment creditor), appeals the trial court's order upholding Celestial Land Company...
Opinion by JUDGE TAUBMAN . 1 Jerry Mullins, plaintiff, appeals the trial court's judgment in favor of defendant, Medical Lien Management Inc. (MLM), in an interpleader action Mullins initiated, and MLM's counterclaims for breach of contract and declaratory judgment. Addressing an issue of first impression, we conclude the trial court did not err in permitting MLM to litigate its counterclaims, even though it did not reassert them in responding to Mullins's amended complaint. We also...
Opinion by JUDGE KAPELKE * 1 Plaintiffs, Kirsten K. Riccatone, Brian Riccatone, and Ashlee D. Duran, appeal from the summary judgments entered by the district court in favor of defendants, Colorado Choice Health Plans, doing business as San Luis Valley Health Maintenance Organization (Choice), Gallagher Benefit Services, Inc. (GBS), and CNIC Health Solutions, Inc. (CNIC). We affirm. I. Background 2 Plaintiffs are plan participants under the San Luis Valley Combined Educators Health Plan...
Opinion by JUDGE BERNARD 1 Along with other issues, the defendant, Travelers Property Casualty Company of America (the insurance company), raises a question in this appeal concerning "no voluntary payment" clauses. These clauses appear in many insurance policies. They prohibit insureds from voluntarily settling claims and making payment, or from assuming certain expenses, without the insurer's consent, at the risk of losing insurance benefits. 2 The question we must resolve in this...
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS Opinion by JUDGE WEBB. 1 Since 1989, Colorado hospitals have been statutorily immune "from damages in any civil action brought against [them] with respect to ... peer review proceeding[s]." Kauntz v. HCA-Healthone, LLC, 174 P.3d 813 , 817 (Colo.App.2007). Section 12-36.5-203(2), C.R.S.2012 (current statute), abrogated this immunity as to credentialing decisions. In this interlocutory appeal under C.A.R. 4.2, defendant, Catholic Health...
Opinion by JUDGE LICHTENSTEIN 1 Defendant, Darrell Einspahr, appeals the judgment entered after a bench trial, on the fraud claim of plaintiff, Premier Members Federal Credit Union (Premier). He contends the trial court erred by denying him a jury trial. He also appeals the court's dismissal of his cross-claim that sought indemnification from Broadway Automotive Group, Inc., doing business as Quality Mitsubishi, Inc., and its owner Henry Block (collectively Quality). We affirm. 2 As an...
