RQ Law Blog

Case Law update

Lewis v. Taylor – Court of appeals holds time limitati
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n for fraudulent conveyance action is jurisdictional and thus cannot be tolled (CA 03/13/14). Section 38-8-110(1) provides that a fraudulent conveyance action is “extinguished” unless brought within the applicable time period. The Court first noted that there is a distinction between a jurisdictional time limitation and a non-jurisdictional time limitation.  A jurisdictional time limitation is one that, if not met, destroys the right of action underlying the suit. A non-jurisdictional time limitation [such as a statute of limitations] has no effect on the underlying right, and merely defines the period during which an action based on that right may be brought. Here, the time limit was determined to be jurisdictional and therefore could not be tolled by agreement of the parties. 
  • Estate of Bleck v. MartinezOrder denying immunity for willful and wanton conduct held not appealable under GIA. (CA 03/27/14). The police officer was sued for injuries sustained as a result of alleged willful and wanton conduct. A motion to dismiss under Rule 12 claiming qualified immunity was denied. The GIA does not provide for an interlocutory appeal of an order denying an employee’s motion to dismiss based on qualified immunity, but the officer appealed that order, arguing there was an exception in the case of alleged willful and wanton conduct. The Court of Appeals disagreed and found it had no subject matter jurisdiction. 
  • B.S.C. Holding, Inc.; Lyons Salt Company v. Lexington Insurance Company, (No. 13-3142) (10th Cir. 03/11/14) (D. Kansas) (This order and judgment does not constitute binding precedent and is provided for informational purposes only) Lyons Salt Company and its sole shareholder, B.S.C. Holding, Inc., own an underground salt mine in Kansas that suffered water intrusion. When told about the water intrusion, Lexington Insurance Company did not pay on the policy, and Lyons and B.S.C. Holding sued to obtain a declaratory judgment recognizing coverage for the damage and related expenses. Lexington moved for summary judgment, arguing that the Plaintiffs took too long to provide notice. The district court agreed and granted summary judgment to Lexington, but the 10th Circuit reversed, holding that even if the Plaintiffs had taken too long, the delay would only relieve Lexington of coverage if it showed substantial prejudice, which Lexington had not.
  • City Center West, LP v. American Modern Home Ins. Co. - Colorado Insurance Policy—Non-Assignment Clause—Assignment of Post-Loss Claim Not Assignment of Policy (10th Cir. 02/06/2014). Defendant’s policy prohibited assignment "of this Policy." After the property was damaged, the mortgage holder assigned the claim to the property owner. The insurance company refused to pay because of the non-assignment provision, so the property owner sued the insurance company. The Tenth Circuit rejected the parties’ view that the issue was whether a provision prohibiting assignment of post-loss claims is enforceable. That provision, the Circuit held, applied to assignment of the policy, not post-loss assignment. It was undisputed that only the post-loss claim was assigned, not the entire policy. Under Colorado law, there is a difference between an assignment of a contract and an assignment of a claim under a contract. Consequently, the policy did not prohibit assignment of the claim. 

 

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