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 In an unpublished opinion, the court of appeals ruled that decking damaged by the separate, nonfortuitous loss of ‘wear, tear, and deterioration’ was not covered by the OL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.
There have been recent changes to the Rules of Civil Procedure regarding disclosure obligations and discovery requests. Requests for disclosure or discovery must be narrowly tailored and proportional to the needs of the case. In light of these changes, Frank Patterson recently obtained a favorable Order for his client in a bad faith case precluding extensive discovery of what has come to be thought of as “institutional discovery.” The Order can be reviewed here.
In a declaratory relief action filed by the insurer for failure to cooperate after the insured entered into a Nunn Agreement, Frank Patterson and Lindsay Dunn obtained an order denying the defendants’ motion to dismiss. The defendants argued that Nunn Agreements are allowed under Colorado law and therefore, cannot be a failure to cooperate. The trial court denied the motion holding that the case law does not automatically allow for such agreements and that an insured may enter into such an agreement when the insurer has acted unreasonably or in the face of a colorable bad faith claim. This case will have significant ramifications for insurers’ ability to challenge Nunn Agreements.
Karl Chambers obtained a defense verdict in the case of Shaun Olguin v. Louis Chacon dba Louie’s Barber Shop in Boulder County. The plaintiff claimed that he was injured while receiving a haircut at Louie’s Barber Shop and developed a staph infection that required medical treatment, including surgery. Karl defended Mr. Chacon on the theory that the plaintiff was never in the barber shop on the date that he claimed, but even if he was, the staph infection was not caused by conditions at the barber shop, but rather was due to a pre-existing medical condition that plaintiff had. The jury returned a defense verdict in favor of Mr. Chacon finding that the plaintiff’s alleged injuries were not caused by any negligence of Mr. Chacon or Louie’s Barber Shop.
We are pleased to announce that Todd Dieterich has been named a Non-Equity Partner. Todd has been with the firm for over five years and has met with success as a trial lawyer and developing solid relationships in the community. Congratulations, Todd!
Frank Patterson was among 531 Denver attorneys named as 5280 Magazine’s Top Lawyers in 2017. He was named as a Top Lawyer in the field of Personal Injury Defense. Congratulations, Frank!
Hillary Patterson obtained summary judgment for a client that paid work loss PIP benefits to its insured following a motor vehicle accident that occurred in Michigan (State Farm Mut. Auto. Ins. Co. v. Timika Thomas, 16CV30578). The insured subsequently recovered duplicate Social Security Disability Insurance benefits, but refused to reimburse the insurer pursuant to Michigan law. This case involved the application of Colorado’s choice of law principles, Michigan insurance law, and Michigan law governing breach of contract.
This case stemmed out of a motor vehicle accident on March 20, 2010, when Plaintiff and several companions were returning to their California college from New Orleans. A drunk driver going the wrong way on a California highway hit them head-on. The drunk driver fled the scene on foot but was later caught. Plaintiff was in the back seat sleeping, but was seat-belted. The force of the collision caused significant internal injuries. The injuries were immediately life-threatening and he developed a hematoma at the sight of the abdominal wall rupture that grew from softball to watermelon size. Emergency surgery included pulling his abdominal contents out and searching inch by inch for tears or no-viable tissue. The surgeons removed large sections of the upper and lower intestines and bowels.
Plaintiff settled his claim against the drunk driver for policy limits of $100,000 and then made a demand for underinsured motorist (UIM) insurance benefits under an insurance policy issued by State Farm to his parents. That policy had $1,000,000 in limits. A demand for policy limits was made 3 months before the Statute of Limitations expired. State Farm requested additional information which was not provided prior to suit. The information was provided within 90 days after filing suit. State Farm evaluated and offered $113,000 to resolve the claim. After a failed mediation, State Farm advanced the $113,000. State Farm informed the jury it had evaluated the claim in the range of $113,000-160,000 in addition to the BI limits previously received.
Just prior to the expiration of the Statute of Limitations, Plaintiff filed suit for UIM benefits, and alleging unreasonable delay, bad faith and (later) punitive damages.
State Farm admitted Plaintiff sustained serious, life-threatening injuries, but claimed he had made a remarkable recovery and had not sought treatment for anything since August, 2011. In fact, he traveled to South America, living and working there for 6 months in 2011-12. He had worked two lengthy stints in the backcountry for national parks in the Northwest, creating/restoring trails and removing invasive species, which work involved heavy manual labor. Further, he completed a 1,500 mile bike trip from Oregon to Mexico. State Farm denied he had ongoing or future medical expenses or income loss.
As to the extra-contractual claims, State Farm alleged any delays were caused by plaintiff, through his lawyer-agents. State Farm alleged that coverage for additional damages was voided due to failure to cooperate, and material misrepresentations made in correspondence about plaintiff’s ongoing treatment. Plaintiff, through his lawyer-agents, failed over 3 years to return a signed medical authorization as requested under the policy, and failed to respond to requests for related medical information. (Plaintiff claimed the other records were minor compared to the uncontested injuries, for which plaintiff counsel supplied the records.) In addition, State Farm asserted material misrepresentations voided coverage because plaintiff counsel asserted that plaintiff had treatment in 2012 when treatment had actually ended in 2011.
DIRECTED VERDICTS: Defendant’s Motion for Directed Verdict was granted on plaintiff’s claims for future income loss ($660,000) and future medical expense ($440,000).
Plaintiff called Dave Torres as a Claims Handling expert. Following voir dire, the court determined Mr. Torres lacked qualifications to provide an expert opinion.
The jury returned a verdict for Defendant State Farm on Verdict Form A – Plaintiff failed to cooperate, voiding any additional coverage. As a result, the jury did not address the remaining claims of UIM damages, unreasonable delay, bad faith or punitive damages.
Hillary Patterson obtained an order for dismissal for a pro se plaintiff’s failure to prosecute and for discovery violations (Brenda Senna v. Leah Flink, 2016CV115). In retaliation for a separate eviction proceeding, Plaintiff brought personal injury claims on behalf of her children and herself against defendant landlord arising out of a water heater fire where plaintiff alleges she and her children were exposed to carbon monoxide. Plaintiff demanded several millions of dollars in damages, but failed to make any disclosures and failed to appear at two separate depositions. By obtaining dismissal, extensive and unnecessary litigation costs were avoided in defending frivolous and meritless claims.
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).