Cases of Note Archive 2022

Turoff v. Itachi Capital, Inc., Colorado Court of Appeals No. 21CA0825 (December 29, 2022)

Holding: 1) In light of C.R.S. section 13-22-228(1)(e), neither C.R.S. section 13-4-102 nor C.A.R. 1 gave the Court of Appeals jurisdiction to review a district court order that vacated an arbitration award and ordered a new hearing.

2) Because a corporation failed to file a motion asking the district court to confirm an arbitration award pursuant to the requirements of C.R.C.P. 7(b)(1), the corporation could not use C.R.S. section 13-22-228(1)(c) to seek appellate review of the district court's order vacating the arbitration award and ordering a new hearing.

3) A corporation's embedded request for the district court to confirm an arbitration award in a response to a woman's motion to vacate the arbitration award was not allowed under C.R.C.P. 121 section 1-15(1)(d). And because the corporation did not file a motion asking the district court to confirm the arbitration award pursuant to the requirements of C.R.C.P. 7(b)(1), the corporation could not use C.R.S. section 13-22-228(1)(c) to seek review of the district court's order vacating the arbitration award and ordering a new hearing.

Case Summary: A corporation (the corporation) and a woman (the woman) jointly owned an LLC. The corporation was the majority owner. The LLC's operating agreement allowed the corporation to compel the woman to sell her LLC interest under certain circumstances. Pursuant to the provisions of the operating agreement, the corporation tried to compel the woman to sell her interest, and the woman refused.

In light of the conflict over the woman refusing to sell her LLC interest, the corporation filed an arbitration demand. The woman asked to postpone arbitration so she could retain counsel. Once the woman retained an attorney, her attorney asked to postpone the arbitration so the attorney could get up to speed on the case and conduct discovery. The arbitrator denied the attorney's request for postponement. The arbitrator then found in favor of the corporation and awarded it attorney fees and costs.

The woman filed a motion to vacate the arbitration award against her. The corporation's response to the woman's motion said there was no legal basis to vacate the award and asked the district court to confirm the arbitration award. The corporation's request for confirmation of the arbitration reward in its response was not identified as a cross-motion.

The district court vacated the arbitration award because the arbitrator's denial of the woman's discovery request substantially prejudiced her. The district court ordered the corporation and the woman to resubmit the dispute to the arbitrator for a new hearing. The corporation initiated an interlocutory appeal, stating that the district court erred by vacating the arbitration award against the woman.

The Court of Appeals determined that it did not have jurisdiction to review the district court's order to vacating the arbitration award and ordering a new hearing. The Court of Appeals dismissed the corporation's appeal.

People v. Johnson, Colorado Court of Appeals No. 20CA0764 (December 8, 2022)

Holding: 1) In conjunction with the defendant's previous Louisiana charge for aggravated kidnapping of a 5-year-old child, evidence that a defendant allegedly told a 10-year-old child who was alone on a sidewalk that she was "the perfect age for a boyfriend", asked if she had "ever touched it", and then stated that he was "just curious" was insufficient to:

   a)  Establish the "substantial step" necessary to prove that the defendant attempted to invite or persuade the child to enter his vehicle in violation of C.R.S. sections 18-2-101 and 18-3-305(1);

   b) Convict the defendant of enticement of a child under C.R.S. section 18-3-305(1);

   c) Establish that the defendant intended to engage in unlawful sexual contact as defined by C.R.S. sections 18-3-401 and 18-3-404; and

   d) Establish that the defendant intended to commit sexual assault as defined by C.R.S. section 18-3-402.

Case Summary: A 10-year-old child (the child) and her mother alleged that a defendant (the defendant) drove up to the child in his truck while the child was standing with only her dog on a sidewalk. The defendant allegedly made several statements to the child, and the Court of Appeals noted the following: (1) the defendant complimented the child's dog; (2) the defendant asked about the child's age, name, and where she lived; (3) after the child stated that she was 10, the defendant said that she was "the perfect age for a boyfriend"; (4) the defendant asked the child if she had "ever touched it"; and (5) the defendant then said he was "just curious". After this interaction that supposedly lasted less than two minutes, the defendant allegedly drove off in the opposite direction at a normal speed.

The defendant was arrested for enticement of a child pursuant to C.R.S. section 18-3-305(1). At trial, the prosecution presented evidence under C.R.E. 404(b) regarding the defendant's previous charge in Louisiana for aggravated kidnapping for allegedly persuading a 5-year-old child to enter his car, driving her to a store, and kissing her on the lips before letting her go (the CRE 404(b) evidence). The Defendant was convicted of enticement of a child under C.R.S. section 18-3-305(1).

On appeal, the defendant argued that the Court of Appeals should have vacated his conviction because the evidence against him was insufficient to convict him. The defendant also argued that the trial court should not have admitted the CRE 404(b) evidence submitted against him.

The court of appeals concluded that the evidence, including the CRE 404(b) evidence, against the defendant was not sufficient to convict the defendant of a violation of C.R.S. section 18-3-305(1). The defendant's conviction was vacated by the Court of Appeals.

Doe v. Wellbridge Club Mgmt., Colorado Court of Appeals No. 21CA1299 (December 1, 2022)

Holding: An exculpatory provision in an athletic club membership agreement did not bar a premises liability claim against the club for the sexually abusive behavior of its employee against a member because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of the club's employee sexually abusing a member due to the defendant's alleged negligence or failure to exercise reasonable care.

Case Summary: A minor child's (the Child's) grandfather signed a membership agreement that enabled the Child to use the facilities at an athletic club (the Club). In the membership agreement, there was an exculpatory provision that stated it released the Club from "...all claims, damages, liabilities, expenses, and costs arising out of, or relating to (a) the negligence of [the Club], its owners, managers, and employees...or (d) [the member's or member's guest's] use of [the Club's] facilities...." While at the Club, the Child received tennis instruction from the Club's employee (the Club Employee). It was alleged that the Club Employee sexually abused the Child on and off the Club's premises. In regard to his interaction with the Child, the Club Employee later pled guilty to sexual exploitation of a child and child abuse.
 
The Child's mother (the Mother) sued the Club for damages for alleged harm the Child suffered due to the sexual abuse committed by the Club Employee. The District Court dismissed the Mother's case, reasoning that the exculpatory provision/waiver in the membership agreement barred the Mother's claims.

The Court of Appeals reversed the District Court's dismissal of the Mother's case. Using the fourth factor of a four-factor test from Jones v. Dressel, 623 P.2d 370 (Colo. 1981), the Court of Appeals held that the Mother's lawsuit was not barred by the exculpatory provision in the Club's membership agreement because (1) the provision did not express the parties' intention to waive sexual abuse claims in clear, unambiguous, and unequivocal language; and (2) the provision created a substantial likelihood that a reader would fail to recognize that the provision could apply to the risk of a Club employee sexually abusing a member due to the Club's alleged negligence or failure to exercise reasonable care.

Anschutz v. Dept. of Rev., Colorado Court of Appeals No. 21CA1242 (November 17, 2022)

Holding: The trial court erred in granting the department of revenue's motion to dismiss taxpayers' refund claim made in an amended state income tax return based on an amendment to federal income tax laws that applied to prior tax years. Taxpayers were entitled to file an amended state income tax return for the 2018 tax year claiming the entirety of their "excess business loss" as a deduction based on the federal CARES Act of 2020, which suspended the "excess business loss" deduction limits for the 2018 through 2020 tax years. Absent an amendment by the General Assembly to the state income tax code to not conform with changes to the federal Internal Revenue Code, section 39-22-103(5.3) unambiguously automatically incorporates amendments to the federal Internal Revenue Code, including amendments that relate to prior tax years. The department's emergency rule erroneously defined "internal revenue code" to exclude any federal statutory changes enacted after the last day of the taxable year and was not entitled to deference.

Case Summary: Congress enacted the CARES Act in March 2020, which Act retroactively reduced the federal taxable income for taxpayers who had "excess business loss" deductions for tax years 2018 through 2020 by suspending the limits on such deductions. In June 2020, the department adopted emergency rule 39-22-103(3.5), which states, in part, "'Internal revenue code' does not, for any taxable year, incorporate federal statutory changes that are enacted after the last day of that taxable year." Also in June, the General Assembly passed HB20-1420 (the "Tax Fairness Act"), which prevents taxpayers from using certain CARES Act provisions, including the unlimited "excess business loss" deduction, in calculating their Colorado taxable income for tax years ending on and after the enactment of the CARES Act, but before January 1, 2021, and for income tax years beginning on and after the enactment of the CARES Act, but before January 1, 2021. The Tax Fairness Act was signed into law in July 2020. Before the passage of HB20-1420, the taxpayers-appellants filed amended federal and Colorado income tax returns for tax year 2018, claiming the entirety of their "excess business loss" and seeking income tax refunds. The department rejected the refund claim citing the emergency rule. The taxpayers appealed to the district court, which court granted the department's motion to dismiss, reasoning that section 39-22-103(5.3) is ambiguous and the department's interpretation was reasonable, consistent with the General Assembly's later amendments to the statute, and entitled to deference. A panel of the Court of Appeals unanimously reversed and remanded the case, holding that while the General Assembly can amend the state income tax code to not confirm with changes to the Internal Revenue Code, until such amendments are effective, Colorado law automatically incorporates amendments to the Internal Revenue Code, whether retrospective or prospective in their operation.

DiPietro v. Coldiron, Colorado Court of Appeals No. 22CA0740 (October 13, 2022)

Holding: Records protected by the attorney-client privilege or the deliberative process privilege are not subject to disclosure to a "person in interest" under section 24-72-204(3)(a), C.R.S., of the Colorado Open Records Act (CORA).

Case Summary: Plaintiff, Michele DiPietro, was a paralegal for the Loveland City Attorney’s Office. After DiPietro’s employment ended, she made CORA requests for records in which she was the “person in interest” — the subject of the records. Defendants, collectively "the City," notified DiPietro that, pursuant to CORA, the City was withholding some emails that involved her because they fell under the deliberative process privilege or the attorney-client privilege.

The Colorado Court of Appeals considered the issue of whether privileged information must be disclosed to a person in interest under section 24-72-204(3)(a), C.R.S., of CORA, an issue of first impression in Colorado.

The court acknowledged that section 24-72-204(3)(a), C.R.S., clearly states that the custodian “shall make any of the following records…available to the person in interest in accordance with this subsection (3),” and that among the records discussed under subsection (3)(a) are records protected by the deliberative process privilege and the attorney-client privilege.  However, the court concluded that by including the phrase, “… in accordance with this subsection (3),” the General Assembly made clear that any disclosure to a person of interest must be done in conformity to or in harmony with the rest of subsection (3).

The court found that when subsection (3) is viewed as a whole, many of its parts include detailed requirements for disclosing certain records to a person in interest. Therefore, the court held that any disclosure of the records in subsection (3) to a person in interest must conform to the specific requirements found in the relevant part of subsection (3).

Applying the above analysis, the court held that disclosure of records protected by the deliberative process privilege to a person in interest would directly conflict with part (3)(a)(XIII) of section 24-72-204, C.R.S., because nothing in part (3)(a)(XIII) permits such a disclosure. Therefore, the court held that the "person in interest" provision of subsection (3)(a) does not apply to records protected by the deliberative process privilege.

Turning next to records protected by the attorney-client privilege, the court found that part (3)(a)(IV) of section 24-72-204, C.R.S., likewise does not carve out an exception for a "person of interest." Therefore, the court held that the "person in interest" provision of subsection (3)(a) also does not apply to records protected by attorney-client privilege. Moreover, the court found that section 24-72-204(1), C.R.S., which provides that inspection of public records shall be denied where such inspection would be contrary to any state statute, protects records covered by attorney-client privilege from inspection, even by a person in interest, because allowing inspection by a person in interest would be contrary to the provisions of section 13-92-107(1)(b), C.R.S., which codifies the attorney-client privilege.

Finally, the court concluded that reading CORA to require disclosure of records protected by the deliberative process privilege or the attorney-client privilege would produce an absurd result. First, the court recognized the importance of the deliberative process privilege in protecting the open exchange of opinions and recommendations between government officials and in protecting the government's decision-making processes. The court held that to conclude that a person who is the subject of privileged government communications is entitled to inspect those communications would directly contradict the General Assembly's express intent when it created the deliberative process exception to CORA. Second, the court found that reading section 24-72-204 (3)(a) as an exception to the attorney-client privilege would create an exception contrary to the legislature's express intent to protect attorney-client communications. Specifically, the court held that requiring the disclosure of privileged documents between governmental officials and their attorneys to a person in interest would deprive governmental officials of effective and complete legal representation.

People v. Dennel, Colorado Court of Appeals No. 19CA1007 (October 5, 2022)

Holding: The juvenile transfer statute does not condition transfer eligibility on a previous delinquency adjudication.

Case Summary: Juvenile defendant was charged in juvenile court with committing a delinquent act that if committed by an adult would constitute second degree murder, a class 2 felony. On the date of the alleged offense, defendant was 15 years old. The juvenile court transferred defendant's case to district court for adult criminal proceedings pursuant to the juvenile transfer statute, § 19-2.5-802, C.R.S. In the district court, defendant pleaded guilty to manslaughter, a class 4 felony, and was sentenced as an adult. The defendant appealed, contending that his case was ineligible for transfer because the transfer statute requires a juvenile to have a prior felony adjudication in order for the case to be transferred, and defendant did not have a prior felony adjudication.

The court held that the plain language of the transfer statute does not require the transfer petition to allege the juvenile had been previously adjudicated for a delinquent act in order to transfer the juvenile's case to district court. As relevant to the issue in the case, the transfer statute only requires the delinquency petition to allege that the juvenile is at least a certain age and that the juvenile is accused of committing an offense of at least a certain seriousness. The court found that the petition in this case satisfied both conditions.

The court in this case acknowledged that another division of the court of appeals, in People v. Nelson, 2015 COA 123, interpreted the transfer statute to require a prior felony adjudication in order to transfer a juvenile's case to district court. The division in this case was not persuaded to depart from its plain language statutory analysis by the Nelson division's analysis because Nelson didn't turn on the issue of whether a prior felony adjudication was required and the Nelson division only addressed the issue in passing.

People v. Snelling, Colorado Court of Appeals No. 20CA1144 (October 5, 2022)

Holding: First degree criminal trespass, § 18-4-502(1)(a), C.R.S., is a lesser included offense of second degree burglary, § 18-4-203(1), C.R.S.

Case Summary: Defendant was convicted of both first degree criminal trespass and second degree burglary. On appeal, defendant argued that  first degree criminal trespass is a lesser included offense of second degree burglary, so the trespass conviction should merge with the burglary conviction.

An offense is a lesser included offense of a greater offense if the lesser offense contains only elements that are also included in the elements of the greater offense. If a defendant is found guilty of a greater offense and a lesser included offense, the court must merge the lesser offense into the greater. In this case, the court found that both first degree criminal trespass and second degree burglary are committed by knowingly and unlawfully entering a dwelling; second degree burglary differs only because it requires the intent to commit a crime upon entry. Because all of the elements of first degree criminal trespass are included in second degree burglary, the trespass is a lesser included offense of the burglary and convictions for the offenses merge.

The court acknowledged that its holding conflicts with the Colorado Supreme Court's opinion in People v. Garcia, 940 P.2d 357 (Colo. 1997), in which the court held that first degree criminal trespass was not a lesser included offense of second degree burglary, and with the opinion of another division of the court of appeals in People v. Whiteaker, 2022 COA 84, in which the division relied on Garcia to hold that second degree burglary and first degree trespass do not merge. The court of appeals division in this case found that it is not bound by Garcia's holding because the Supreme Court implicitly overruled Garcia when, in a later case, it adopted a standard different from the one used in Garcia to determine whether two offenses merge.

People in Interest of A.C., Colorado Supreme Court No. 22SA73 (October 4, 2022)

Holding: 1) The Supreme Court's exercise of original jurisdiction under Colorado Appellate Rule 21(a)(1) was justified to determine whether the Juvenile Justice Code authorized a magistrate to order a juvenile who had been found incompetent to proceed to undergo a reassessment evaluation as part of restoration review or restoration hearing procedures under C.R.S. sections 19-2.5-704 and 19-2.5-705, respectively.

2) When a juvenile court determines during a restoration review (pursuant to C.R.S. section 19-2.5-704) or after a restoration hearing (pursuant to C.R.S. section 19-2.5-705) that a juvenile remains incompetent, the court has the authority under C.R.S. section 19-2.5-706(2) to order the juvenile to submit to a reassessment evaluation to determine whether the juvenile has been restored to competency.

3) A reassessment evaluation authorized under 19-2.5-706(2) is legally distinct from a second competency evaluation that is prohibited by the case People in Interest of B.B.A.M., 2019 CO 103 (B.B.A.M.)

Case Summary: The state filed a petition in delinquency against a juvenile (the juvenile), and the juvenile moved for a competency evaluation under C.R.S. section 19-2.5-703(1) in light of his Attention Deficit Hyperactivity Disorder (ADHD). The magistrate granted the motion for a competency evaluation. The evaluating doctor (doctor) and the magistrate found the juvenile to be incompetent to proceed (see C.R.S. section 16-8.5-101(12)), and the magistrate ordered the Colorado Department of Human Services (CDHS) to provide restoration services to the juvenile.

Approximately six months after the magistrate's initial order, the magistrate held a hearing to determine whether the juvenile's competency had been restored. During the hearing, the doctor and the juvenile's restoration services provider did not give opinions about whether the juvenile had been restored. The doctor said that he could not form an opinion about the juvenile's competency because he had not seen the juvenile since the initial evaluation. The doctor noted that he did not believe he could see the juvenile after the initial evaluation because he thought that the holding in the case People in Interest of B.B.A.M., 2019 CO 103 (B.B.A.M.), prevented him from performing a reassessment evaluation. The magistrate then ordered the juvenile to participate in an reassessment evaluation.

The juvenile objected to a reassessment evaluation, arguing that it was the same as a second competency evaluation, which is prohibited by the B.B.A.M. case. The magistrate held that a reassessment evaluation is not the same as a second competency evaluation, and the district court agreed.

The juvenile then sought relief from the Supreme Court. The Supreme Court held that it had original jurisdiction to hear this case under Colorado Appellate Rule 21(a)(1) because the case raised an issue "of significant public importance that [the Court had] not yet considered" and the juvenile could have suffered irreparable harm without Court intervention.

The Court held that, pursuant to C.R.S. section 19-2.5-706(2), a reassessment evaluation is legally distinct from a second competency evaluation that is prohibited by B.B.A.M. The Court also held that the law allows a juvenile court to order a reassessment evaluation after a determining a juvenile is incompetent.

Ford Motor Co. v. Walker, Colorado Supreme Court No. 20SC947 (June 21, 2022)

Holding: If a civil judgment is reversed on appeal and a new judgment entered on retrial, postjudgment interest accrues at the market interest rate after the date of the first judgment rather than the statutory 9% interest rate.

Case Summary: Under § 13-21-101, C.R.S., if a judgment debtor appeals a judgment, postjudgment interest accrues from the date the judgment is entered until the judgment is satisfied at the market interest rate rather than the statutory interest rate of 9%. In this case, the judgment debtor successfully appealed the first judgment, resulting in reversal and remand to the trial court for a new trial. Following the new trial, a second judgment was entered for the plaintiffs. In an appeal to the Colorado Supreme Court following entry of the second judgment, the issue was whether the market interest rate should apply from the date the first judgment was entered until the second judgment was satisfied or whether the statutory 9% interest rate should apply once the first judgment was reversed and the case sent back to the trial court for retrial. The Supreme Court found that the statute was ambiguous, but interpreted the legislative intent of the statute to require application of the market interest rate for the entire period after the date of the first judgment and until the second judgment was satisfied.

Magana v. People, Colorado Supreme Court No. 20SC928 (June 13, 2022)

Holding: 1) The Colorado Supreme Court affirmed the Court of Appeals by holding that a defendant's convictions for two counts of first degree arson, two counts of second degree arson, and fourteen counts of fourth degree arson all arising from a single criminal episode were not a violation of the constitution's double jeopardy clause because (a) the unit of prosecution for first degree arson is each building or occupied structure that is damaged, (b) the unit of prosecution for second degree arson is each person's property (other than a building or occupied structure) that is damaged, and (c) the unit of prosecution for fourth degree arson is each person endangered by the criminal act. 
2) The Colorado Supreme Court reversed the Court of Appeals by holding that fire alone is not a deadly weapon for the purpose of prosecuting first degree arson as a crime of violence subject to sentence enhancement.

Case Summary: A criminal defendant started a fire that engulfed two cars and a duplex that contained fourteen people. The trial court found the defendant guilty of eighteen counts of arson, including two counts of first degree arson, two counts of second degree arson, and fourteen counts of fourth degree arson. The defendant's charges for first degree arson were charged as crimes of violence based on the defendant's use of "fire and accelerant" as a "deadly weapon". A conviction of first degree arson as a crime of violence is subject to sentence enhancement under the law. The jury found that both counts of first degree arson involved the use of a deadly weapon. However, the trial court believed that the jury reached its sentence enhancement finding based on fire alone. The trial court refused to sentence the defendant under the crime of violence sentence enhancement laws because the court reasoned that the use of fire was already necessary to an arson conviction. The Court of Appeals affirmed the trial court's convictions but concluded that the trial court should have imposed the crime of violence enhancement.

On appeal to the Supreme Court, the defendant argued that his eighteen convictions violated the double jeopardy clause and that his use of fire in the commission of first degree arson did not qualify him for a crime of violence sentence enhancement.

The Supreme Court affirmed the defendant's eighteen convictions. In its holding, the Court referenced Woellhaf v. People, 105 P.3d 209 (Colo. 2005), which stated that "[t]he unit of prosecution is the way the General Assembly, in drafting a criminal statute, divides a defendant's conduct 'into discrete acts for purposes of prosecuting multiple offenses.'" The Supreme Court found no double jeopardy clause violation in the defendant's convictions because (a) the unit of prosecution for first degree arson is each building or occupied structure that is damaged, (b) the unit of prosecution for second degree arson is each person's property (other than a building or occupied structure) that is damaged, and (c) the unit of prosecution for fourth degree arson is each person endangered by the criminal act.

The Supreme Court reversed the Court of Appeals' holding that the trial court should have applied a crime of violence sentence enhancement to defendant's first degree arson convictions. Although the defendant was charged for first degree arson using "fire and accelerant", the parties to the appeal focused only on the use of fire, and the question before the Supreme Court was "whether fire is a deadly weapon that can make first degree arson a crime of violence." The Supreme Court concluded that fire alone is not a deadly weapon for the purpose of prosecuting first degree arson as a crime of violence because "...first-degree-arson fires...would always trigger the [crime of violence] sentence enhancer[,]" and the Court saw "nothing to suggest that the legislature intended to make all first-degree-arson fires [crimes of violence]."

Gregory v. Safeco Ins. Co. of Am., Colorado Court of Appeals No. 20CA1694 (April 21, 2022)

Holding: 1) The Court of Appeals refused to apply the notice-prejudice rule, which excuses an insured party's late filing of a claim when the insurer is unable to demonstrate that its interests were prejudiced by the late notice, to excuse a homeowner's untimely notice to her homeowner's insurance carrier regarding hail damage. The Court reasoned that the Colorado Supreme Court has not applied the notice-prejudice rule in the context of a homeowner's insurance policy, and such a departure from precedent is an undertaking exclusively reserved to that Court. For this reason, the Court upheld the district court's dismissal of the homeowner's claim. 
2) The Court of Appeals also held that a provision in a homeowner's insurance policy that requires the homeowner to notify the insurer about a covered loss in a shorter amount of time than the applicable statute of limitations allows for filing a lawsuit against the insurer does not unlawfully restrict an insured party's ability to file such a lawsuit.

Case Summary: The plaintiff (the Homeowner) had a homeowner's insurance policy that provided coverage from February 15, 2017, to February 15, 2018. The Homeowner's home suffered hail damage in May 2017, but she did not notify the defendant (the Insurer) until about eighteen months after her home suffered damage. The policy stated, "In case of a loss to which this insurance may apply, you must...give immediate notice...within 365 days after the date of the loss....No action shall be brought against [the Insurer] unless there has been compliance with the policy provisions." The Insurer denied the Homeowner's claim as untimely and did not investigate the property damage until after the Homeowner filed a lawsuit.

More than two years after the Insurer's denial, the Homeowner sued the Insurer for breach of contract, bad-faith breach of an insurance policy, and unreasonable delay and denial of payment. The district court dismissed the Homeowner's claims because the Homeowner's delayed notice violated the policy, was unexcused, and relieved the Insurer of its obligation to provide coverage.

The Homeowner admitted that her untimely notice to the Insurer was unjustified, but she argued that the district court should have applied the notice-prejudice rule which states that "...an insured who gives late notice of a claim to his or her insurer does not lose coverage benefits unless the insurer proves by a preponderance of the evidence that the late notice prejudiced its interests." The Court of Appeals declined to apply the notice-prejudice rule because the Colorado Supreme Court has applied the rule only to cases involving underinsured motorist and liability insurance policies and not to cases involving homeowner's insurance policies. The Court held that "...applying the notice-prejudice rule to an entirely new class of insurance policies would...require departure from our supreme court's precedent, an undertaking exclusively reserved to that court...."

The Homeowner also argued that the Insurer's 365-day notice requirement effectively shortened the applicable statute of limitations for her legal claims. The Court disagreed, stating, "...a policy requirement to file a timely claim with an insurer has no bearing on the insured's ability to file a timely lawsuit for the insurer's violations of that policy."

For these reasons, the Court of Appeals affirmed the district court's dismissal of the Homeowner's case.

Macaulay v. Villegas, Colorado Court of Appeals No. 21CA0288 (April 7, 2022)

Holding: 1) The Court of Appeals affirmed the Industrial Claim Appeals Panel's (Panel's) holding that an injured worker with a workers' compensation case that was closed by a Final Admission of Liability (FAL) could not assert penalties against the injured worker's employer without first reopening the case within the statute of limitations for reopening.

2) In setting aside part of the Panel's order, the Court of Appeals held that an injured worker whose workers' compensation case was closed by FAL could not assert penalties against the workers' compensation doctor who oversaw the injured worker's examination without first reopening the case within the statute of limitations for reopening.

Case Summary: The claimant (the Injured Worker) was an employee of one of the respondents (the Employer). On February 15, 2012, the Injured Worker suffered an injury while working for the Employer. Under a workers' compensation claim, the Injured Worker received examination and medical care from the Employer's in-house clinic. The Employer filed an FAL in September 2015, and on October 17, 2016, the Injured Worker received his last indemnity payment for his work injury.

The Injured Worker declared that sometime after April 5, 2018, he heard that a supervisor at the Employer's in-house clinic testified (in an unrelated case) that clinic staff served as nurse case managers. On April 4, 2019, the Injured Worker asserted a claim for penalties against the Employer and a workers' compensation doctor (the Doctor) who oversaw his examination. The Injured Worker argued that the Employer and the Doctor were subject to penalties because they violated the law by not letting him know about the presence of nurse case managers or giving him the chance to decline a nurse case manager's presence during his workers' compensation examination. The Injured Worker also petitioned to reopen his case. Under the The Workers' Compensation Act of Colorado (the WCA), a claim that was closed by an FAL can be reopened within six years of an injured worker's initial injury or within two years of an injured worker's last medical benefit or indemnity payment. The Injured Worker initiated his penalty case more than six years after he suffered his work injury and more than two years after he received his last indemnity payment.

The Administrative Law Judge (ALJ) dismissed the penalty claims against the Employer and the Doctor because the Injured Worker did not submit his claims before the statute of limitations for reopening his workers' compensation case expired. The Panel affirmed the ALJ's dismissal of the Injured Worker's claims against the Employer. However, the Panel held that the Injured Worker's claims against the Doctor could move forward, reasoning that the FAL's closure of issues applied only to employers and insurers (i.e., the parties to the FAL). The Injured Worker and the Doctor appealed the Panel's decision.

On appeal to the Court of Appeals, the Injured Worker argued that the statute of limitations for reopening a workers' compensation case did not apply to his penalty claim and only the statute of limitations for workers' compensation penalties applied. Under the WCA, an injured worker can assert penalties if the injured worker does so within one year of when the injured worker found out or should have found out about the penalty-worthy violation. The Injured Worker did not find out about the alleged presence of a nurse case manager at his medical examination until after April 5, 2018, and he initiated his penalty case on April 4, 2019.

The Court of Appeals affirmed the Panel's dismissal of the Injured Worker's penalty case against the Employer. Citing Wolford v. Pinnacol Assurance, 107 P.3d 947 (Colo. 2005), the Court noted that the WCA "must be read harmoniously as a whole, giving effect to all its provisions and ensuring that no provision is rendered superfluous." In affirming the Panel's dismissal, the Court reasoned that harmony between the relevant reopening and penalty provisions of the WCA can only be achieved by limiting the assertion of penalty claims to open or reopened cases, and once the statute of limitations for reopening has expired, a party can no longer pursue penalties in that case.

The Court of Appeals set aside the portion of the Panel's order that determined that the reopening statute of limitations did not apply to the Doctor. The Court reasoned that the Panel's exclusion of the Doctor from the statute of limitations for reopening is inconsistent with the clear legislative intent that cases will be closed automatically under an FAL.

People v. Moreno, Colorado Supreme Court No. 21SA181 (March 28, 2022)

Holding: The phrase "intended to harass" in subsection § 18-9-111(1)(e) is facially overbroad and therefore unconstitutional.

Case Summary: Defendant was charged with harassment under § 18-9-111(1)(e) for making multiple derogatory and offensive comments about his ex-wife on social media. Because the term "harass" has a broad meaning that can be applied to protected and unprotected speech, the court ruled that the phrase "intended to harass" was substantially overbroad on its face because the phrase substantially extends into areas of protected speech. Therefore, the court partially invalidated the statute by removing the words "harass or" from (1)(e).

Rojas v. People, Colorado Supreme Court No. 20SC399 (February 22, 2022)

Holding: Criminal conviction was reversed because of admission of evidence of prior criminal act under the common law doctrine of res gestae. The court found that res gestae no longer applies in Colorado.

Case Summary: Defendant was convicted of two counts of theft based upon her improper receipt of food stamps benefits. At trial, the prosecution, over objection, submitted evidence of her application for benefits after the time period in which she received the improper benefits. The trial court and court of appeals upheld the submission of such evidence under the common law doctrine of res gestae. The supreme court reversed and held that the doctrine of res gestae is abolished in criminal cases and that evidence of other wrong doing should be analyzed under Rule 404 of the Colorado Rules of Evidence.

People v. Rau, Colorado Supreme Court No. 20SC583 (January 10, 2022)

Holding: For purposes of section 18-1-704.5, a "dwelling" includes the shared basement in an apartment building.

Case Summary: The defendant lived in an old house that was converted into apartments. The basement of the building contained the controls for the water and heat supply and had areas for storage. Each tenant had keyed access to the basement. One morning the defendant's girlfriend noticed that the door to basement was open. The defendant armed himself with a gun and went down to investigate. Defendant found a large man asleep and surrounded by drug paraphernalia. The defendant woke the man up and told him he needed to leave. The man got up and became aggressive, yelling and throwing things around. The defendant told the man he had a gun, but the man's behavior did not change. Finally, the defendant told the man he was going to count to 5 and if the man did not leave when he finished counting he would shoot. The man did not leave, and the defendant, fearing that the man was going to charge at him, shot and killed the man. A grand jury indicted the defendant for second degree murder. The defendant moved to dismiss the charge arguing that he was immune to prosecution pursuant to section 18-1-704.5, C.R.S., commonly referred to as the "Make My Day" law. Following an evidentiary hearing, the trial court dismissed the charge against him.

The people appealed arguing that the basement was not part of the defendant's "dwelling", and thus section 18-1-704.5, C.R.S., did not provide immunity to the defendant. The court of appeals affirmed the district court's dismissal of the charge. The supreme court took up the case to decide whether the basement was part of the defendant's dwelling.

The supreme court determined that "dwelling" includes an apartment building's shared basement that is accessible to all tenants. The basement was part of the building that the defendant used for habitation. Some of the usual uses of the basement, like the control of water and heat and storage of personal items, were incidental to and part of the defendant's use of the residence. In making its ruling, the supreme court overruled a court of appeals decision that held the common areas of an apartment building used by other tenants and guests was not part of a defendant's dwelling for purposes of section 18-1-704.5, C.R.S.

The supreme court rejected the people's arguments that its decision would lead to absurd results because immunity "would extend to every nook and cranny in apartment buildings". The supreme court acknowledged that the shared living arrangements that may not have been prevalent when section 18-1-704.5, C.R.S., was adopted may present some problems today in applying this section, but it is up to the legislature to contemporize section 18-1-704.5, C.R.S., if changes are necessary.