December

Karl Chambers tried the case of Grace Stean and Adam Stevens v. Margaret Molloy in a four day trial in Arapahoe District Court.

This action arose out of a motor vehicle accident involving plaintiff’s wife, Grace Stean, and our client, Margaret Molloy.  Ms. Stean claimed that she was injured in the accident, including an alleged mild traumatic brain injury and a cervical facet injury.  Plaintiff, Adam Stevens, was not involved in the accident, but claimed that he suffered a loss of consortium due to his wife’s injuries.  We admitted that defendant negligently caused the accident, but challenged the injuries and damages claimed by Ms. Stean and her husband.  Ms. Stean settled her claim prior to trial and Mr. Stevens elected to litigate his loss of consortium claim.  Our defense was that he did not suffer a loss of consortium.  The jury agreed and returned a defense verdict finding that Mr. Stevens did not suffer a loss of consortium.

October

Frank & Hillary Patterson obtained a Defense Verdict in an October trial over UIM benefits.  The case is Velvet Entz v. State Farm Mutual Automobile Insurance Company, Pueblo County District Court, 2016CV030960.  Plaintiff claimed the accident caused serious cervical injuries including a herniated disc, with past medical expenses of $160,000 and an anticipated future cervical surgery at a cost of $140,644.00 – $244,430.  The liability carrier had previously paid its $100,000 in limits.  Plaintiff demanded the full UIM policy limits of $500,000.  The last and lowest offer to settle by Plaintiff was $350,000.

Frank and Hillary disputed causation.  In the trial they admitted plaintiff may have had a slight exacerbation of some pre-accident complaints but denied that the disc herniation or subsequent surgeries were the result of the accident.  They argued that plaintiff had a pre-existing degenerative condition in her cervical spine for which she sought periodic chiropractic treatment in the years preceding the accident and that her post-accident treatment was not consistent with a herniation caused by the accident.  Instead, they argued that the significant herniation at C5-6 occurred 8 months after the accident and it was not related to the accident.

The jury agreed, finding that Plaintiff’s total damages from the accident were $4,300.  Since she had already recovered the liability limits far in excess of that, State Farm owed no UIM payment.

Plaintiff’s treating doctors who testified were Dr. Lloyd Mobley, Dr. Roger Sung, Dr. John Warner, DC and Dr. William Anderson, DC.  The defense expert who testified was Dr. Henry Roth.

September

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.

August

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.

July

On July 23, 2018, Kevin G. Ripplinger and Brian D. Kennedy tried the case of Julie Weber v. Keyan Pesaran, Nahid Pesaran, and Ahmad Pesaran in Boulder County District Court in front of the Honorable Thomas F. Mulvahill.

PLAINTIFF’S ATTORNEYS:
Alan C. Shafner
Allie D. Shafner
Law Office of Alan C. Shafner, P.C.
5350 South Roslyn Street, Ste. 460
Greenwood Village, CO 80111

Sean T. Olson
Olson Law Firm, L.L.C.
2701 Lawrence Street, Suite 117
Denver, CO 80205

DEFENSE ATTORNEYS:

Kevin G. Ripplinger, Esq.
Brian D. Kennedy, Esq.
Frank Patterson & Associates, P.C.
5613 DTC Parkway, Suite 400
Greenwood Village, CO 80111

Andrew A. Scott, Esq.
White and Steele, P.C.
Dominion Towers, North Tower
600 17th Street, Suite 600N
Denver, CO 80202-5406

TYPE OF CLAIMS: Wrongful Death (Negligence) claim against Defendant Keyan Pesaran, Family Car Doctrine claim against Defendants Nahid Pesaran and Ahmad Pesaran.

DATE, TIME AND PLACE OF ACCIDENT OR OCCURRENCE: December 6, 2015, near mile marker 123 on Colorado Highway 40 in Routt County, Colorado.

DESCRIPTION OF CASE: Plaintiff’s daughter, Nicole Weber, Keyan Pesaran and a mutual friend, Shannon Cook, were returning to Boulder from Steamboat, Colorado.  Nicole Weber was a passenger in a Jeep Grand Cherokee being driven by Keyan Pesaran.  The previous night (and early morning), Nicole Weber, Shannon Cook and Keyan Pesaran had attended a party.  Keyan Pesaran used drugs and alcohol during or after the party.  The morning after the party, Keyan Pesaran also took Adderall or Vyvanse.  During the drive back to Boulder, Keyan Pesaran fell asleep or lost consciousness, and the Jeep left the road, rolling several times.  Keyan Pesaran and Shannon Cook were injured in the accident, and Nicole Weber was killed.

Nahid and Ahmad Pesaran are Keyan Pesaran’s parents.  They purchased the Jeep for Keyan Pesaran several years before the accident.  Nahid Pesaran was the registered owner of the Jeep, and Nahid and Ahmad Pesaran covered most of Keyan Pesaran’s expenses.  Keyan Pesaran was a college student at the time of the collision and had an apartment separate from his parents’ home.

Plaintiff asserted a wrongful death claim against Keyan Pesaran and a family car claim against Nahid and Ahmad Pesaran.

INJURIES AND/OR DAMAGES ALLEGED: Plaintiffs adult daughter, Nicole Weber, was killed in a car accident.  Plaintiff claimed emotional distress, suffering, inconvenience and loss of quality of life as the result of the death of her daughter.

FINAL DEMAND BEFORE TRIAL: $930,000

FINAL OFFER BEFORE TRIAL: $300,000 from all defendants jointly.

PLAINTIFF’S EXPERT WITNESSES:  Daniel Anderson, Colorado Bureau of Investigation Forensic Services Division, as to blood test results concerning Keyan Pesaran.  Ken Kulig, M.D., toxicologist, as to effects of substances consumed by Keyan Pesaran.

DEFENDANT’S EXPERT WITNESSES: None.

VERDICT: For the plaintiff and against Defendant Pesaran on the Wrongful Death (negligence) claim.  The jury determined that Plaintiff’s damages were $1,500,000.  For Defendants Nahid Pesaran and Ahmad Pesaran and against the plaintiff on the Family Car claim.

OTHER COMMENTS: Plaintiff petitioned the court for a determination that the death of Nicole Weber constitutes a felonious killing and the court granted that motion.

April

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.

January

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.

October

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.

September

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.

April

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.