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 In an unpublished opinion, the court of appeals ruled that decking damaged by the separate, nonfortuitous loss of ‘wear, tear, and deterioration’ was not covered by the OL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.
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.
On July 13, 2016, attorneys Frank Patterson and Hillary Patterson obtained a directed verdict for the defendant in the case of My Roofer, Inc. v. State Farm Fire & Casualty Company (Weld County District Court, 2015CV30425).
Plaintiff was a roofing company. State Farm’s insureds suffered roof damages as a result of a hail/wind event. State Farm determined decking was not damaged in the event, and damage to decking was excluded as wear, tear, and deterioration. The insureds and the roofer argued State Farm should cover replacement cost of decking under OL coverage (Ordinance or Law) because code required replacement before new shingles were applied. State Farm contended excluded damages for wear, tear, and deterioration are not restored under OL coverage.
The roofer replaced the decking and took an assignment from the owners for a breach of contract claim. The roofer brought a first-party claim in its own right alleging unreasonable delay and denial pursuant to C.R.S. §§ 10-3-1115 and 10-3-1116.
The Honorable Judge Todd L. Taylor ruled on State Farm’s oral motion for directed verdict after Plaintiff rested its case-in-chief that. Judge Taylor held that, viewing the evidence in the light most favorable to the nonmoving party, Plaintiff had not met its evidentiary burden on the breach of contract claim. The evidence was overwhelmingly clear beyond doubt that the damage to decking was caused by wear, tear, or deterioration, and that the State Farm policy did not provide coverage for the loss. All of Plaintiff’s claims were dismissed pursuant to C.R.C.P. 50.