Colorado Court of Appeals

Rosten v. ICAOCourt holds failure to conduct in-person examination does not invalidate medical finding—2023COA62 (06/29/23). The Court of Appeals addressed whether the failure to conduct an in-person examination invalidates a doctor’s report finding that a claimant has no permanent impairment. It concluded that, while a record review without a personal examination is not the preferred method of conducting an impairment rating, any associated deficiencies or limitations are relevant to the report’s persuasiveness, not its validity. Thus, the issuance of a final admission of liability predicated upon such a report does not render the finding invalid.

United States Supreme Court

Mallory v. Norfolk Southern Railway Co.—By registering company to do business in a state without more, company may create jurisdiction—Docket: 21-1168 (6/27/2023). Mallory worked as a Norfolk mechanic for 20 years in Ohio and Virginia. After leaving the company, Mallory moved to Pennsylvania, then returned to Virginia. He attributed his cancer diagnosis to his work and sued Norfolk under the Federal Employers’ Liability Act, in Pennsylvania state court. Norfolk, incorporated and headquartered in Virginia, challenged the court’s exercise of personal jurisdiction. Pennsylvania requires out-of-state companies that register to do business to agree to appear in its courts on “any cause of action” against them. The Pennsylvania Supreme Court held that the Pennsylvania law violated the Due Process Clause. The US Supreme Court vacated. Pennsylvania law is explicit that qualification as a foreign corporation shall permit state courts to exercise general personal jurisdiction over a registered foreign corporation. ‘For more than two decades, Norfolk has agreed to be found in Pennsylvania and answer any suit there. Suits premised on these grounds do not deny a defendant due process of law’.

Tenth Circuit Court of Appeals

Chung v. Lamb, et al.Section 1927 sanction case—Docket: 22-1266 (7/13/23). After a prior remand to the district court, the Tenth Circuit reviewed the propriety of that court’s revised award of attorney fees under 28 U.S.C. § 1927, which permitted monetary sanction when an attorney has unreasonably and vexatiously multiplied the proceedings. Appellant Karen Hammer claimed the district court failed to make the findings necessary to support an award under § 1927, failed to abide by the statutory requirement that a court award only excess fees incurred because of the sanctioned attorney’s multiplication of proceedings, and failed to apply the law of the case. She also argued the court erred in striking a surreply that she filed without leave. With one exception, the Tenth Circuit found no merit in these arguments.

Carraway v. State Farm FireInsurance requirement to repair before RCV owed—No. 22-1370 (08/22/23); Not binding but can be cited for persuasive authority. State Farm and its insured disagreed as to the value of a claimed property loss. The matter went to appraisal, and the appraisers made and aware of $60,864.26, of which $12,604.78 was identified as depreciation. The repairs had to be performed within two years to be recoverable. The appraisal award, however, was more than two years after the loss and State Farm declined to pay the RCV amount. The insured blamed State Farm and brought suit claiming State Farm breached its contract by not paying the full amount as well as the obligatory statutory and common law bad faith claims. State Farm moved to dismiss for failure to state a claim, pointing out the lack of factual allegations. Judge Brimmer dismissed the complaint pointing out that the failure to pay replacement cost value when the work had not been performed was not a breach of contract and that there was no clause in the contract obligating State Farm to extend the two-year contractual statute of limitation period contained in the policy. Finding no factual allegations that repair efforts were impossible, impractical, or otherwise impeded, the Tenth Circuit affirmed finding that the complaint failed to adequately allege a breach of contract, stating that it could not discern no plausibly alleged justifiable nonperformance. Similarly, the Court stated that claimant had only plead only vague conclusions that failed to establish that State Farm lacked a reasonable basis for the conduct described as being in breach of 1115 and 1116.

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