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.

August

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.

 

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.

February

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!

October

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.

Background

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).

August

Todd Dieterich tried and won the case of Aaron Phillips v. Kyle Smoker, et. al. in a 5 day trial in Denver County District Court. This case stemmed from a multi-vehicle accident on the ramp exiting I-25 North onto I-70 East. As both parties rounded that turn approaching I-70 East, they encountered a pickup truck who had spun out and was sitting parallel to oncoming vehicles blocking traffic. Both parties were behind a third vehicle who braked to avoid the stopped vehicle. Plaintiff alleges that the Defendant was tailgating that vehicle, had insufficient time to stop, and swerved into his lane, striking him and causing him to lose traction and strike the parallel vehicle, strike the cement median and ultimately come to rest in the I-25 South on-ramp where he was struck by an oncoming eighteen wheeler. Defendant alleges that he did change lanes to avoid the vehicle in front of him, but he did so in a safe and prudent manner, and it was the Plaintiff’s excessive speed that caused him to strike the Defendant and the resulting collisions. Plaintiff made claims for neck, back, and shoulder injuries. These injuries allegedly required rhizotomy and facet injections for an indefinite period of time resulting in $1,953,00 in future treatment. The jury returned a verdict in favor of the defendant.

July

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.

Prior to trial, attorney Hillary Patterson successfully argued a pre-trial motion regarding Plaintiff’s spoliation of evidence, and the Court issued an order for adverse inference instruction.

June

State Farm Mutual Automobile Insurance Company v. Susan Cary, 2015CV30260 was tried by Franklin D. Patterson and Lindsay M. Dunn in Boulder District Court and arose from a Declaratory Relief Action filed by State Farm seeking judicial determination that Ms. Cary breached her contract and voided UM/UIM coverage. Cary filed a lawsuit against another driver following a MVA in December of 2010. The other driver and the owner of the vehicle never answered the lawsuit so Cary obtained a default against them and set a date for a court hearing to establish her damages.  State Farm intervened in that lawsuit to defend its interests per Brekke. Concurrently with the intervention, State Farm was attempting to investigate her claimed injuries and damages.  In February 2015, State Farm denied Cary any coverage or benefits, claiming she had refused to cooperate as required by the policy, as she did not participate in any EUOs, nor did she ever provide medical releases. In November 2015, following an undefended damages trial, a judge in the first case entered judgment in excess of $826,000 (over $1.2 Million with interest and costs) against the other driver. After the judgment entered, Cary demanded State Farm pay her the $500,000 UM/UIM policy limits from the two policies.  State Farm refused to pay because of its prior denial. Against State Farm Ms. Cary claimed damages of over $1,000,000.

VERDICT: For State Farm on all claims. State Farm is seeking costs in excess of $85,000.

Heather Salg tried and won the case of Roland Jaramillo v. State Farm Mutual Automobile Insurance (14cv34554)  in a 4-day trial in El Paso County District Court. This case involved a low-speed, rear-end motor vehicle accident. Plaintiff was transported to the hospital via ambulance and was claiming $60,000 in medical expenses at trial. He recovered policy limits of $25,000 from the tortfeasor and then sought underinsured motorist benefits from State Farm, as well as claimed wage losses. Due to lack of documentation substantiating the wage loss claim, State Farm offered $15,000 based on the received information. Plaintiff filed suit and then advised that there would not be additional information submitted to support the claim of lost wages. State Farm advanced the amount of its initial offer. However, at trial, Plaintiff claimed unreasonable delay. During litigation, defendant discovered that Plaintiff had numerous DUIs prior to the subject MVA. Defendant argued that these DUIs were relevant but was precluded to tell the jury the specific amount of DUIs, rather Defendant could use the word “numerous.” Defendant’s position at trial was that plaintiff had been adequately compensated and that he had failed to cooperate with State Farm by providing timely, complete and accurate wage loss information.

The final demand before trial was $85,000, with the final offer before trial being $5,000.

The jury returned a verdict for the defendant on all claims.


After 43 years of practice, Thomas J. Seaman, Of Counsel for Patterson & Salg has announced his retirement. Tom will be greatly missed and we wish him all the best in his retirement. 

May

State Farm Mutual Automobile Insurance Company v. Susan Cary, 2015CV30260 was tried by Franklin D. Patterson and Lindsay M. Dunn in Boulder District Court and arose from a Declaratory Relief Action filed by State Farm seeking judicial determination that Ms. Cary breached her contract and voided UM/UIM coverage. Cary filed a lawsuit against another driver following a MVA in December of 2010. The other driver and the owner of the vehicle never answered the lawsuit so Cary obtained a default against them and set a date for a court hearing to establish her damages.  State Farm intervened in that lawsuit to defend its interests per Brekke. Concurrently with the intervention, State Farm was attempting to investigate her claimed injuries and damages.  In February 2015, State Farm denied Cary any coverage or benefits, claiming she had refused to cooperate as required by the policy, as she did not participate in any EUOs, nor did she ever provide medical releases. In November 2015, following an undefended damages trial, a judge in the first case entered judgment in excess of $826,000 (over $1.2 Million with interest and costs) against the other driver. After the judgment entered, Cary demanded State Farm pay her the $500,000 UM/UIM policy limits from the two policies.  State Farm refused to pay because of its prior denial. Against State Farm Ms. Cary claimed damages of over $1,000,000.

VERDICT: For State Farm on all claims. State Farm is seeking costs in excess of $85,000.

 

April

Katie Vogt vs American Family Mutual Ins. Co., 2015CV031731 tried by Franklin D. Patterson and Lindsay M. Dunn in Denver District Court was a case that arose from a condominium fire in November of 2014. Plaintiff claimed her insurance company, American Family, failed to pay all the benefits to which she was entitled.  She claimed American Family wrongfully concluded the HOA’s insurance company, Scottsdale, was primary for all Coverage A damages, including to the interior of her condo unit.  Am Fam then forced her to pursue Scottsdale even though she was not an insured under that policy.  Plaintiff made claims for breach of contract, unreasonable delay, and bad faith breach of contract. American Family denies it acted unreasonably or in bad faith.  American Family agreed the fire damaged both her property and that of the Homeowners Association, but that the Declarations and Covenants of the HOA required the association’s policy to be primary and to cover all damages, both interior and exterior.  American Family claimed that any delays were caused by the Homeowners Association, its property manager and its insurance company, Scottsdale Insurance, all of whom obstructed efforts to coordinate benefits and repairs because they were upset Ms. Vogt had negligently started the fire in violation of HOA regulations.  Finally, American Family claims that Plaintiff has failed to take steps herself to resolve the issues of coordination or to get repairs done after checks were issued.

VERDICT: For Defendant on all claims

Kevin Ripplinger tried and won the case of Campanini v. State Farm in a 3 day UIM trial in Arapahoe County District Court.  Plaintiff was involved in a minor rear-end accident while yielding to get on 225 at Parker.  Plaintiff was employed as a pharmaceutical representative with Eli Lilly at the time of the accident.  Plaintiff sued the tortfeasor, Liberty Mutual (UIM carrier for Eli Lilly) and State Farm (Plaintiff personal liability carrier).  Tortfeasor and Liberty Mutual settled out before trial for limits of $50,000 each.  Plaintiff had an additional $100,000 on UIM with State Farm.  Plaintiff claimed a permanent low back injury.  Plaintiff had preexisting back problem but claimed they resolved several months prior to the accident and that she was pain free.  Causation and damages were in dispute.  Jury determined Plaintiff had injuries and damages but that they were not caused by the accident.  The jury returned a verdict for the defense.  Plaintiff’s Motion for New Trial Denied.