Summer Case Law Update

Court Of Appeals

Krol v. CF&I Steel – Court of Appeals limits ‘statutory employee’ immunity (CA 03/14/13). The Court of Appeals found that an injured party does not merely have to have been “on” the landowner’s property when performing work for the statute to apply, but the injured party also must have been doing work “to” the property for the statutory employer immunity to apply.

Engeman Enterprises, LLC v. Tolin Mechanical Systems Company – Court of Appeals (CA 03/14/13). Plaintiff operates a cold storage facility. Defendant serviced the facility pursuant to a contract. Defendant accidentally overfilled the tank and it, resulting in damages totaling hundreds of thousands of dollars. Plaintiff sued, alleging various claims, but not breach of contract. Defendant moved for summary judgment based on the economic loss rule, won the motion and the Court of Appeals affirmed, finding a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law.

Groh v. Westin Operator, LLC – Court of Appeals reverses itself on rehearing and finds hotel has duty to evicted patron. (CA 03/28/13). The Westin asked Groh and her guests to leave the hotel after Groh and her friends, who were intoxicated, became loud in the hotel. After Westin employees escorted Groh and her friends out of the front entrance to the hotel, one of Groh’s friends, who was also intoxicated, attempted to drive them home and rear-ended a vehicle that was traveling well below the speed limit. Groh sustained severe and permanent injuries, a passenger was killed and other friends sustained damages. Originally, the Court of Appeals affirmed summary judgment, but on rehearing, it reversed the summary judgment finding that the Westin properly terminated its contract with Groh and then could evict her, but that questions remained whether it did so in a reasonable manner.

Burnett v. State of Colorado, Dep’t of Natural Resources, Div. of Parks and Outdoor Recreation – Court of Appeals holds that tree in campground is not a public facility  (CA 03/28/13). Plaintiff was struck by a falling tree branch while sleeping in her tent. The Court held that, although the campsite and campground were public facilities under the CGIA, the tree itself was not a public facility and the state retained immunity for injuries resulting from branches falling from trees in unimproved parts of a state park.

Jordan v. Safeco Insurance Company of America, Inc. –  Court of Appeals determines UIM policy language and statute requiring exhaustion was not satisfied by mere settlement of underlying claim. (CA 03/28/13). The Jordans were injured in an automobile accident with J.F. The Jordans sued and settled for $60,000 and $38,500, respectively. J.F.’s auto had $100,000 in liability limits. The Jordans then sought UIM benefits. Safeco maintained that their UIM coverage would be triggered only if either of them had damages exceeding the $100,000 limit of J.F.’s policy, which neither did. Safeco moved for summary judgment on the same claims and the bad faith claim, and the court granted the motion. The Court of Appeals affirmed the policy language unambiguously provides that payment of UIM benefits are only for damages above the tortfeasor’s insurance policy liability limit. The Jordans also argued that under CRS § 10-4-609, an insured’s good faith settlement with a tortfeasor necessarily exhausts the tortfeasor’s liability limits. The Court held that the statutory language is plain and unambiguous and that the trigger is the exhaustion of the tortfeasor’s “limits of . . . legal liability coverage.”

Colorado Supreme Court

In re Gateway Logistics, Inc. v. Smay – Supreme Court holds privacy interest can limit/preclude discovery (SC 04/15/13) In this original proceeding brought under CAR 21, the Supreme Court concluded that the trial court abused its discretion by granting a motion to compel discovery from the defendant without making findings of fact balancing defendants’ asserted privacy interest with plaintiffs’ need for the information sought, as required by In re District Court, 256 P.3d 687 (Colo. 2011).

Tenth Circuit Court of Appeals

Tran v. Nationwide Mutual Insurance Company – Tenth Circuit holds that dispute about value of claim is not basis for bad faith claim (10th Cir. 01/31/13). When the parties could not agree on a value of the settlement, Ms. Tran’s response was to file suit in state court for breach of contract and breach of the implied duty of good faith and fair dealing. The appellate court held that it is not a breach of the duty of good faith for an insurer to resort to a judicial forum to settle legitimate disputes as to the validity or amount of an insurance claim. Travelers Indemnity Co. v. Board of County Commissioners – Tenth Circuit affirms district court holding of no coverage for purlin failure (10th Cir. 01/23/13). The Tenth Circuit affirmed the reasoning of the district court in a case arising out of the snowstorm damage to buildings at the Larimer County Fairgrounds. The District Court had held that the policy language which states that “… an excluded loss [defective construction] results in a Covered Cause of Loss, the Company will be liable only for such resulting loss or damage” meant that the displacement of the purlins was the loss claimed by the County and was thus not covered.  Squires v. Breckenridge Outdoor Education Center – Tenth Circuit affirms dismissal of claims under exculpatory agreement (10th Cir. 05/07/13). In 2008, Plaintiff, a disabled child, was severely injured while skiing. The Tenth Circuit found the Release signed by Plaintiff and her mother clearly and unambiguously waived any negligence claims Plaintiff might have brought against Defendant, and that exculpatory agreements are not required to refer to the specific activity in which the plaintiff participated and was injured.

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