. Self-Defense Jury Instruction—Assault.

Defendant had an altercation with his cousin during which defendant cut his cousin’s back with a straight-edge razor, causing a wound that required 12 stitches. There was some evidence at trial that defendant acted in self-defense. The district court denied defendant’s request for a self-defense instruction because the court found he did not provide evidence that he was not the initial aggressor. Defendant was convicted on a jury verdict finding him guilty of second degree assault with a deadly weapon.

On appeal, defendant contended that the district court erred when it failed to give the jury a self-defense instruction. A defendant need not disprove that he or she was the initial aggressor to benefit from a self-defense instruction when there is any evidence to support a self-defense theory. Once the defendant offers evidence of self-defense, and the prosecution offers evidence that defendant was the initial aggressor, the jury should be provided with the self-defense instruction, including the initial aggressor exception, and be permitted to weigh the evidence and decide whether self-defense has been disproved. Here, the district court failed to properly instruct the jury on the law of self-defense, the prosecution did not bear the burden of disproving self-defense, and defendant was deprived of his right to acquittal on that ground. Accordingly, the error was not harmless.

The judgment was reversed and the case was remanded for a new trial.

Medical Malpractice—Health Care Availability Act—Damages Cap—Medicaid—Collateral Source Statute—Contract Exception—Pre-majority Economic Damages—Minor—Statute of Limitations.

Naomi Pressey (Naomi), by and through her conservator Jennifer Pressey, sued Children’s Hospital Colorado (Hospital) for negligence. The case was tried to a jury, which found the Hospital negligent and awarded Naomi $17,839,784.60. The damages award included past medical expenses, past noneconomic losses, future medical expenses, future lost earnings, and future noneconomic losses. After trial, the court reduced the damages to $1 million based on the legislative directive in CRS § 13-64-302(1)(b) of the Health Care Availability Act (HCAA). The court approved Naomi’s motion to exceed the damages cap for good cause and entered judgment in her favor for $14,341,538.60.

On appeal, the Hospital argued that the court erred in excluding evidence of Medicaid benefits and private insurance available to Naomi in the post-verdict proceeding to exceed the damages cap. Sound public policy supports both the cap and the contract exception to the collateral source statute. The Court of Appeals concluded that the contract exception to the collateral source statute is applicable in post-verdict proceedings to reduce damages in medical malpractice actions under the HCAA. Medicaid benefits are paid on behalf of the injured party and are thus collateral sources subject to the contract exception. Accordingly, the trial court correctly did not consider Medicaid payments and private insurance in determining whether to exceed the HCAA damages cap.

The Hospital also argued that the trial court erred in denying its motion for judgment notwithstanding the verdict because Naomi failed to establish that she, rather than her parents, was entitled to her pre-majority economic damages. Parents own the legal right to seek reimbursement for a minor’s pre-majority economic damages. Here, Naomi’s parents did not relinquish this right and failed to institute a claim within the applicable statute of limitations.

The Hospital further argued that irrespective of the evidence of Medicaid and private insurance benefits, Naomi did not establish good cause to exceed the damages cap. The trial court considered a multitude of factors in concluding there was good cause. Its decision was not manifestly arbitrary, unreasonable, or unfair, and was not a misapplication of the law.

Lastly, the Hospital argued that Naomi received a duplicate award for future medical care and lost future earnings. The Court concluded there is record support for the trial court’s findings that the damage award does not overlap with the future lost earnings award.

That portion of the judgment awarding pre-majority economic damages to Naomi was reversed. The judgment was affirmed in all other respects. The case was remanded for recalculation of the total amounts owed by the Hospital.

42 USC § 1983—Indemnification—Defense Costs—Insurance—Employer Liability Law.

A City of Lakewood (City) police officer was killed by friendly fire, and his widow filed a lawsuit under 42 USC § 1983, alleging that the City and various fellow officers had violated the deceased officer’s rights under the U.S. Constitution. The City sought indemnification for its own defense costs and those of the officers named in the lawsuit, which the City has an independent statutory duty to cover. The insurance company, Safety National Casualty Corporation, denied coverage. The district court concluded that a § 1983 claim did not arise under an employer liability law of any state and granted summary judgment for the insurance company.

On appeal, the City contended that the district court erred in granting summary judgment to the insurance company because the policy unambiguously covers all defense costs incurred by the City in connection with the § 1983 lawsuit. Specifically, the City argued that the § 1983 municipal liability claim must be covered by the employers’ liability portion of the policy because it is a claim based on work-related injuries that falls outside the ambit of the workers’ compensation laws. However, this overstates the scope of the coverage under the policy. By the policy’s plain terms, the common law claims must arise under the laws of Colorado or “other State(s).” Section 1983 is not a law of Colorado or any other state. Therefore, the City’s defense costs, which were sustained because of liability imposed as a result of the widow’s § 1983 claim, did not arise from a state workers’ compensation or employers’ liability law and were not covered by the policy.

Next, the City contended that it was entitled to reimbursement for amounts it paid to cover the fellow officers’ defense costs. The policy’s definition makes clear that the term “Employee” refers to the injured employee, not to an employee potentially responsible for the injury. “Loss” means payments by the City to the injured employee and the employee’s dependents. Therefore, the City’s indemnification payments to the officers named in the lawsuit do not qualify as losses under the policy and the City is not entitled to reimbursement from the insurance company.

The judgment was affirmed.

Real Property—Residential—Commercial—Ad Valorem Taxes—Burden of Proof.

James and Mary Ellen O’Neil purchased the subject property and built a log house on it for their use as a vacation home and as an inheritance for their sons. The house was initially classified for tax purposes as residential. After the O’Neils listed the property as available for short-term, overnight rental, the Conejos County Assessor (Assessor) reclassified the property, for ad valorem tax purposes, from residential to commercial. The O’Neils filed a petition for abatement with the Conejos County Board of Commissioners (County), which was denied, and then appealed to the Board of Assessment Appeals (Board), which overturned the Assessor’s action and returned the property’s classification to residential for the relevant years.

On appeal, the County contended that the Board improperly classified the O’Neils’ property as residential. The County asserted as a procedural error that that the Board failed to apply the presumption in favor of the Assessor’s property classification. The Board’s order demonstrated that it implicitly applied the presumption in favor of the County, and the O’Neils met their burden of proof to overcome that presumption. On the merits, the Board determined that the proper classification of the property was “residential” because its “predominant and actual use was as a second home.” The Board’s determination had a reasonable basis in law and was supported by substantial evidence in the record.

The order was affirmed.

Senior Facility—Residential—Commercial—Breach of Contract—Construction Defect Action Reform Act—Homeowner Protection Act of 2007—Accrual—Statute of Limitations—Public Policy—Manifestation of a Defect.

Broomfield Senior Living Owner, LLC (Broomfield) brought claims against R.G. Brinkmann Company (Brinkmann) for breach of contract, negligence, negligence per se, negligent misrepresentation, and breach of express warranties in connection with Brinkmann’s construction of Broomfield’s facility. Brinkmann moved for summary judgment, raising both contractual limitations and statutory limitations defenses to all of Broomfield’s claims. The trial court granted Brinkmann’s motion for summary judgment, reasoning that the two-year statute of limitations applicable to civil claims had expired before Broomfield filed its complaint and that Broomfield had waived its rights to assert claims for repairs under the contract by failing to give Brinkmann timely notice of defects or adequate time to make repairs.

On appeal, Broomfield contended that the trial court erred in granting summary judgment and applying the accrual provisions of the contract rather than the accrual provision of the Construction Defect Action Reform Act (CDARA), titled the “Homeowner Protection Act of 2007” (HPA). Under the parties’ contract, the contractual limitations period expired independent of when the acts or failures to act were discovered, while CDARA links the accrual of construction defect claims to their discovery. The HPA renders a contract’s limitation or waiver of CDARA’s rights and remedies void as against public policy in cases involving claims arising from residential property. The Court of Appeals determined that the term “residential” is “unambiguous and means an improvement on a parcel that is used as a dwelling or for living purposes.” Here, the building is used as a home for senior residents. Accordingly, the senior facility is “residential property,” Broomfield is a “residential property owner,” and the HPA applies. As such, the contract’s terms limiting the accrual of claims are void as a matter of public policy, and the relevant statutory claims accrual periods apply, making Broomfield’s action timely.

Broomfield also contended that the trial court erred in precluding its breach of warranty claim based on its failure to give Brinkmann an opportunity to correct the defects. The Court determined that genuine issues of material fact remain regarding whether Brinkmann received prompt notice of the defects and whether it had an adequate opportunity to correct its work.

Broomfield further argued that the trial court erred in concluding that its negligence claims were barred and that it failed to establish that Brinkmann performed design services. The Court concluded that these claims were not barred and the parties offered conflicting design services evidence. Further, a genuine issue of fact remains concerning whether the alleged defects are patent or latent.

The judgment was reversed and the case was remanded.

Campaign Finance Laws—Independent Expenditure Committee.

Campaign Integrity Watchdog LLC (CIW) alleged that the Colorado Republican Party Independent Expenditure Committee (CORE) violated various campaign finance laws. CIW’s claims stemmed from two earlier campaign finance proceedings against CORE. An administrative law judge (ALJ) imposed a penalty of $200 against CORE in the first case, and in the second case, an ALJ imposed a $600 aggregate penalty and awarded $255 in costs. The Colorado Republican Party paid these amounts on CORE’s behalf. CORE did not disclose these payments on its periodic campaign finance disclosure reports. Around the same time, a private party paid $50,000 to a law firm to settle CORE’s legal expenses. CORE disclosed this payment as a “contribution” in its periodic campaign finance disclosure report.

CIW alleged that CORE did not comply with the disclosure requirements of Colo. Const. art. 28, the Fair Campaign Practices Act (FCPA), and the Colorado Secretary of State’s Rules Concerning Campaign and Political Finance. CIW maintained that the payments by the Republican Party should have been disclosed as “donations” or “contributions” and the payments should have been disclosed as “expenditures.” The ALJ granted CORE’s motion to dismiss the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, CIW again contended that CORE was required to report some payments as donations or contributions, and all payments as expenditures. CORE was not required to report some payments as donations because (1) the donations were not made for the purpose of an independent expenditure and so were not required to be reported; (2) the law requiring some entities to report contributions does not apply to an independent expenditure committee; and (3) the payments here were not expenditures under the relevant statutory and constitutional definitions.

The order was affirmed.

Sex Offender Registration—California Conviction.

In 2001, Stanley was convicted and sentenced in California of “unlawful sexual intercourse with [a] person under 18.” Stanley successfully completed his California probation and his conviction was eventually reduced to a misdemeanor.

In 2014, the California Department of Justice notified Stanley that his statutory requirement to register as a sex offender under the California Penal Code had been terminated. In 2015, Stanley filed a petition to discontinue his sex offender registration in the Arapahoe County District Court for a non-Colorado conviction under CRS § 16-22-113. Stanley, who resided in California but had family in Colorado that he wanted to visit with in Colorado for potentially long periods of time, recognized that travel would result in him being considered a temporary resident of Colorado for purposes of sex offender registration.

The district court denied the petition, concluding as a matter of law that Stanley was ineligible for relief under CRS § 16-22-113(3) because his crime, if committed in Colorado, would have been a violation of CRS § 18-3-402 and consequently required lifetime sex offender registration.

On appeal, Stanley argued that the district court erred as a matter of law in interpreting CRS § 16-22-113(3). He conceded that if committed in Colorado, his offense would have been a violation of CRS § 18-3-402(1)(e), which is a class 1 misdemeanor and an extraordinary risk crime. The Court of Appeals concluded that the plain language of CRS § 16-22-113(3) precludes Stanley, as a matter of law, from discontinuing his sex offender registration in Colorado.

The order was affirmed.