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.

November

Franklin D. Patterson and Karl Chambers tried and won the case of Nicholas Nelson v. State Farm Mutual Automobile Insurance Company in a 6-day jury trial in El Paso County.

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.