Frank Patterson and Karl Chambers won a summary judgment motion in a declaratory relief action entitled Viking Insurance Co v. Mark Achter; Monica Achter; Little Willie J. Ortiz, II; Darrell J. Ortiz in Pueblo County, case number 2017 CV 030215. The case involved an excluded driver who was involved in the accident. Because the Complaint in the underlying bodily injury suit identified the excluded driver as the operator of the vehicle at the time of the accident, the declaratory relief action could be pursued without awaiting the conclusion of the underlying suit. The trial court agreed the exclusion was consistent with Colorado law and Viking was not obligated to defend or indemnify for the accident.
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.
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.