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 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.
Frank Patterson argued the Fisher vs State Farm case in the Supreme Court in October. He receives periodic calls from insurers asking about the status. The Supreme Court has not yet issued a ruling, and there is no deadline to issue its ruling, but it is likely to do so by May or June.
Frank Patterson was honored with selection to the “TOP 100” in Colorado Super Lawyers 2018 following a blue ribbon review process. Frank has been listed annually in Super Lawyers for many years and has long been recognized in the legal community as one of the best trial lawyers around. Trial success followed from his earliest years in practice. It is believed he was the youngest attorney ever selected to the American Board of Trial Advocates when he was selected in the early 90’s. Congratulations Frank!
Frank Patterson was honored again by 5280 Magazine as a Top Lawyer in personal injury defense. Congratulations again, Frank!
Frank and Hillary Patterson teamed up with Frank’s wife, Robin, and Joe Buchholz to win the 2017 CDLA golf tournament. Pictured here are the happy Pattersons with the traveling trophy. Not bad for a team with a novice (Hillary) and a new hip (Robin). They hope to defend the title this year at the CDLA conference in Telluride.
Frank Patterson and Karl Chambers won a summary judgment motion in a declaratory relief action entitled Viking Insurance Co v. Mark Achter; Monica Achter; Little Willie J. Ortiz, II; Darrell J. Ortiz in Pueblo County, case number 2017 CV 030215. The case involved an excluded driver who was involved in the accident. Because the Complaint in the underlying bodily injury suit identified the excluded driver as the operator of the vehicle at the time of the accident, the declaratory relief action could be pursued without awaiting the conclusion of the underlying suit. The trial court agreed the exclusion was consistent with Colorado law and Viking was not obligated to defend or indemnify for the accident.
Frank Patterson and Lindsay Dunn won a defense verdict in an important bad faith “set-up” case in El Paso County with exposure of almost $10 million. The jury found for defendant State Farm on all claims after a 7-day jury trial.
Plaintiff Melanie Rountree was insured through State Farm for auto insurance liability policies totaling $1,250,000. She was 100% at fault in causing an auto accident on January 19, 2013. Rountree, while extremely intoxicated, drove her vehicle through a red light and collided with Patrick Kirchhofer’s vehicle, causing serious and permanent injuries to Mr. Kirchhofer, including partial paralysis. Ms. Rountree claimed that State Farm unreasonably failed to timely make an offer to settle, causing a judgment to be entered against Ms. Rountree in the amount of $4,102,526.05. State Farm paid its policy limits plus interest and costs after judgment was entered, leaving an unpaid judgment balance of $3,469,598.25 as of the second trial. Rountree entered into a Bashor Agreement with Kirchhofer and was represented at the bad faith trial by the same lawyers who had represented Kirchhofer. She sought the unpaid amount of the judgment, plus two times the insurance limits (a total of $2.5 million) for unreasonable delay under C.R.S. § 10-3-1115 and 1116, punitive damages of $3,469,598.25, and attorney fees. In closing, the total requested by her attorneys was $9,439,196.50, plus attorney fees in excess of $500,000.00.
State Farm provided Rountree a defense to the Kirchhofer suit and Rountree later hired personal counsel. During the underlying litigation, Kirchhofer’s attorneys sent a letter demanding a settlement offer from State Farm. The letter purposely did not say State Farm’s limits would be accepted as a full and final settlement. Rountree and her attorneys advised State Farm not to offer its policy limits because that would immediately expose Rountree’s personal assets for further negotiations. They still hoped to convince Kirchhofer’s attorneys to accept policy limits for a full release. State Farm agreed to Rountree’s request. When State Farm’s policy limits were not offered by the deadline Kirchhofer’s attorneys revoked their “demand”, claimed it was bad faith and argued State Farm was now exposed to the full damages suffered by Kirchhofer. They demanded $12 million at mediation and $27 million at the injury trial. After the injury trial Rountree entered into the Bashor Agreement, assigning her bad faith claim proceeds to Kirchhofer.
During the bad faith trial, Frank Patterson and Lindsay Dunn convinced the jury that State Farm never had a reasonable opportunity to settle the case for several reasons. First, it was following the request of its insured in not making the policy limits offer. Second, Kirchhofer and his lawyers had no intent to settle for the State Farm policy limits. The lawyers were trying to create a “set-up”, a way to claim bad faith and open the policy limits.
This case is important for insurers because there is a surge of “set-up” cases in Colorado as a result of the punitive provisions of C.R.S. § 10-3-1115 and 1116. This case shows that juries will consider the question whether the insurer had a reasonable chance to settle, and that set-up cases raise real doubts about the plaintiff’s intent to settle.
Frank Patterson made oral arguments before the Colorado Supreme Court on the important Fisher v State Farm case on October 18. He expects a ruling by late Spring. The Court of Appeals surprised everyone in 2015 by announcing a rule that UM/UIM carriers were required to make piecemeal payments of portions of the UM/UIM claim which were “undisputed”. Typically, these would be economic damages such as medical expenses. The Court discovered this requirement in the “Unreasonable Delay/Denial” statute which, Frank argued, makes no mention whatsoever of partial payments or even of the UM/UIM statute. In effect, the Court of Appeals created a new pay-as-you-go medical coverage like the old PIP or No-Fault system. Unfortunately, this new mandate from the Court of Appeals came with no guidelines, regulations or legislative guidance such as exist with MPC or existed under the old PIP system. The case has generated substantial claims disputes and subsequent litigation over demands for “Fisher” payments. We hope the Supreme Court reverses this unfortunate misinterpretation of Colorado statutes and reinstates the system which had worked well for almost 50 years. Frank is happy to answer questions about the case or about the current state of the law in relation to Fisher.
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 the case of Robert Stephenson v. Lindsey Heaston (2016CV031355), Hillary Patterson obtained an Order of Dismissal for Continued Violation of Discovery Obligations. This is an important victory not only because it dismissed all claims against the defendant, but also because it reflects the firm’s goals and commitment to clients to vigorously defend their interests while avoiding unnecessary and excessive litigation fees and costs.
The revised Colorado Rules of Civil Procedure aim to promote more complete disclosure and to curtail discovery costs. While dismissal is a drastic sanction, the circumstances of this litigation and the discovery violations warranted dismissal. In the Order of Dismissal, Adams County District Court Judge Moss astutely quoted the following excerpt from a timely and relevant article in the Colorado Lawyer:
“‘[T]he elephant in the living room of civil litigation is that even ‘proportionate’ litigation costs in the average case are so high [as] to be out of reach for all but the wealthiest of individuals and corporations…. Judges have some responsibility for this situation, because many of us are so resistant to enforcing the existing rules with the bite of sanctions.’ Wang & Hoffman, A Year after Significant Civil Justice Reforms in Colorado, Colorado Lawyer (Jan. 2017).
Order of Dismiss. For Cont’d Violation of Discov. Obligations. Aug. 8, 2017.
Karl Chambers won the case of Sentry v. Barragan, Adams County, Case No. 16CV31486 on summary judgment. This was a declaratory judgment action that we filed on behalf of Sentry Insurance seeking a declaration that there was no insurance coverage under an “operator’s policy” issued to the mother when her daughter was driving the car. The court agreed with our postion and held that Sentry was not required to provide libility coverage when the daughter was involved in an accident while driving her mom’s car. You can read the order here.