July 2015 Case Law Updates


Colorado Court of Appeals

Ackerman v. City and County of DenverRed Rocks is a natural condition for purposes of GIA (CA 07/16/15). While attending a concert, Plaintiffs were struck and injured by rocks that fell from a rock formation that abuts one side of the Red Rocks Park amphitheater. The trial court determined that Denver’s immunity from suit had been waived and the City appealed. The Court of Appeals held that since Creation Rock is a natural sandstone monolith it is a natural condition of unimproved property. Denver’s voluntary efforts to protect the public from a natural condition does not render the government liable for injuries that occur when those efforts are inadequate and that the City was immune from liability under the Immunity Act.

Lucero v. Ulvestad – Mere legal title insufficient to qualify as Owner under Premises Liability Act (CA 07/16/15). Ulvestad sold property to Landers. The installment land contract provided Landers immediate possession of the property, but record title would remain in Ulvestad’s name until Landers paid the entire purchase price. With permission from Landers, Lucero entered the steam room and suffered a seizure rendering her unconscious. Before she was found, Lucero suffered severe burns to her face, head, and arm. Lucero brought this lawsuit against both Landers and Ulvestad. The trial court found that Ulvestad owed Lucero no common law duty of care and dismissed her negligence claim. The jury returned a verdict in favor of Ulvestad on Lucero’s claim under the Premises Liability Act. Lucero appealed the trial court’s determination that she was a trespasser on the property at the time she was injured. Based on the plain language of the installment land contract, on the date possession of the property was transferred to Landers, Ulvestad was no longer a person “in possession of real property” or “legally responsible for the condition of real property.” Therefore, because Ulvestad was not a landowner under the Act, the trial court should have granted Ulvestad’s motion for a directed verdict.

Tenth Circuit Court of Appeals

BancInsure v. FDIC – Insured v Insured exclusion bars D & O claim. Docket: 14-3063 (10th Cir. 08/06/15). BancInsure issued a Directors and Officers Liability Insurance Policy to Columbian and its parent Columbian Financial Corporation. The Kansas State Bank Commissioner declared Columbian insolvent and appointed the FDIC as receiver. By operation of law, the FDIC-R succeeded to “all rights, titles, powers, and privileges of [Columbian], and of any stockholder, member, accountholder, depositor, officer, or director” of Columbian. BancInsure received notice of potential claims the FDIC-R intended to file against the bank’s officers and directors. BancInsure filed the instant action against the director-defendants in Kansas state court seeking a declaratory judgment that it owed no duty of coverage to the director-defendants for claims brought against them by the FDIC-R. The FDIC-R joined and removed the action to the federal district court in Kansas while at approximately the same time bringing claims against several of Columbian’s former directors and officers alleging negligence, gross negligence, and breach of fiduciary duty. The district court held that claims by the FDIC-R were unambiguously excluded by the policy’s “insured v. insured”. The Tenth Circuit affirmed.

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