Colorado Supreme Court

People v. Cooper – Court gives guidelines to try and provide limits on expert testimony – 2021 CO 69 (9/27/21). The Supreme Court tries to clarify the mess created by earlier holdings, by emphasized that before expert testimony is admitted into evidence, a trial court must find that it would be helpful to the jury. Whether expert testimony is helpful to the jury hinges on the “fit”—the expert testimony must fit the case. The Court held that generalized expert testimony fits a case if it has a sufficient logical connection to the factual issues to be helpful to the jury while still clearing the ever-present CRE 403 admissibility bar. In evaluating the fit of generalized expert testimony, a trial court must be mindful of the purposes for which such testimony is offered—that is, the reasons why the proponent of the evidence has asked the expert to educate the jury about certain concepts or principles. The Supreme Court rejected the Court of Appeals holding which had adopted a fit standard that the Supreme Court found inflexible and overly exacting. The Supreme Court held that the fit need not be perfect – each aspect of such testimony need not match a factual issue because generalized expert testimony, by definition, seeks to inform the jury about generic concepts or principles without knowledge of the facts. Because of this, the Court stated that it is almost inevitable that parts of such testimony will not be logically connected to the case. However, the Court did admonish attorneys and trial courts to do their best to avoid introducing generalized expert testimony where the testimony has no logical connection to the case facts. [This obviously will work well in an adversarial system]. Trial courts, in turn, should exercise their discretion in deciding whether to permit all, some, or none of the proffered testimony under the fit standard articulated here. In doing so, trial courts should consider the feasibility and propriety of admitting only a portion of the proposed generalized expert testimony on a particular subject.

Colorado Court of Appeals

Owners Insurance Co. v. Dakota Station II Condominium Ass’n, Inc.In the second Dakota station appeal, the Court of Appeals affirms trial court order vacating appraisal – 2021 COA 114 (8/26/21). Dakota Station II Condominium Association, Inc. represents the owners of a 49-building residential property. It filed two claims with its insurer, Owners Insurance Co., after the property sustained storm damage. The parties couldn’t agree on the amount of the damage, so Dakota invoked the appraisal provision in its insurance policy. Dakota hired Benglen to serve as its public adjuster to handle the claims, and Benglen retained Haber initially as a policy and damage expert and later as Dakota’s appraiser. In accordance with the appraisal procedure, the parties’ respective appraisers submitted their estimates, and the umpire issued an award adopting some estimates from each appraiser. Owners later filed a motion to vacate the appraisal award, alleging, among other things, that Haber wasn’t impartial as required by the policy. Ultimately, the Supreme Court heard the case and remanded it to determine whether Haber was impartial as required by the policy. The trial court then issued new findings and conclusions finding that Haber wasn’t impartial and vacated the award. On appeal, Dakota contended that the remand court failed to follow the law of the case in its proceedings on remand. However, the remand court appropriately followed the Supreme Court’s broad direction to determine whether Haber’s conduct conformed to the appropriate impartiality standard. Further, the remand court wasn’t prohibited from reconsidering the prior factual findings on remand. Therefore, the court did not fail to follow the law of the case on remand. Dakota also contended that the remand court abused its discretion by failing to rule on its pre-hearing motions to establish the scope of the remand, denying its requested stay, and ruling on evidentiary objections. Dakota didn’t articulate any harm from the court’s delay in addressing the scope of the remand, denying its requested stay, or ruling on evidentiary objections. Dakota also argued that the remand court applied the wrong legal standard when it vacated the appraisal award. Dakota’s policy unambiguously required that, for an appraisal award to be binding on the parties, it must be agreed to by an umpire and a competent impartial appraisal or two competent impartial appraisers. Here, the award was signed by the umpire and Haber, who was determined by the remand court not to be impartial, so the award was not binding. The remand court therefore did not err by vacating the award.

Johnson v. MEP EngineeringLimitation of liability clauses not void when ambiguous – 2021COA125 (9/23/21). Johnson Nathan Strohe, P.C. (architect) designed a building and contracted with MEP Engineering, Inc. (engineer) to provide mechanical, plumbing, and electrical engineering services for the building. The contract contained a clause limiting the engineer’s liability to $2,000 or twice the engineer’s fee, whichever was greater. The architect alleged that as the building was nearing completion and the engineer was close to completing its work, the owner and architect discovered substantial problems with the building’s heating and hot water systems. The architect also alleged that the engineer admitted it erred and then designed and implemented repairs. Additional problems were subsequently discovered, and the architect hired another firm for those repairs. The building owner initiated an arbitration proceeding against the architect regarding the heating and hot water systems, and the arbitrator awarded the owner $1.2 million in damages. The architect then sued the engineer for negligence and moved under CRCP 56(h) for a legal determination of the validity of the limitation of liability provision, claiming it was too vague and ambiguous to be enforceable. The district court found the provision unambiguous and enforceable. The engineer moved for leave to deposit twice its contractual fee plus interest [the limit of liability provided for by contract] into the court’s registry and for dismissal with prejudice. The district court granted the motion. On appeal, the architect argued that the district court erred by concluding that the limitation of liability provision was clear and unambiguous. The Court of Appeals agreed and reversed the trial court. The architect also argued that because the liability limitation clause was ambiguous, it was void. The Court of Appeals held that a limitation of liability in a commercial contract is not void merely because it is ambiguous. Rather, like other ambiguous contract provisions, the meaning of the ambiguous clause is a question of fact that courts must determine using ordinary methods of contract interpretation. 

BonBeck Parker, et al. v. Travelers Indemnity – Tenth Circuit holds policy language permits appraisers to resolve causation disputes – No. 20-1192 (10th Cir. 2021). The issue on appeal in this case stemmed from an insurance claim filed by Bonbeck Parker, LLC and BonBeck HL, LLC for hail damage. The Travelers acknowledged that some of the claimed damage to BonBeck’s property was caused by a covered hailstorm, but argued the remaining damage was caused by uncovered events such as wear and tear. BonBeck requested an appraisal to determine how much damage occurred, but Travelers refused this request unless BonBeck agreed the appraisers would not decide whether the hailstorm in fact caused the disputed damage. When BonBeck rejected this condition, Travelers filed suit, seeking a declaration that the appraisal procedure in BonBeck’s policy did not allow appraisers to decide the causation issue. The district court disagreed, ruling that the relevant policy language allowed appraisers to decide causation. After the appraisal occurred, the district court granted summary judgment to BonBeck on its breach of contract counterclaim, concluding that Travelers breached the policy’s appraisal provision. Travelers appealed. Applying Colorado law, the Tenth Circuit Court of Appeals affirmed: the disputed policy provision allowed either party to request an appraisal on “the amount of loss,” a phrase with an ordinary meaning in the insurance context that unambiguously encompassed causation disputes like the one here. “And contrary to Travelers’ view, giving effect to this meaning aligns both with other related policy language and with the appraisal provision’s purpose of avoiding costly litigation. For these reasons, the district court appropriately allowed the appraisers to resolve the parties’ causation dispute and granted summary judgment for BonBeck on its breach of contract claim.”

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