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Colorado Court of Appeals Opinions
January 19, 2012

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2012 COA 10. No. 10CA2591. Roque v. Allstate Insurance Co.
Road Rage—Vehicle—Assault—Injuries—Uninsured Motorist.

Plaintiffs Chanson Roque and Shannon Isenhour appealed the trial court’s summary judgment in favor of defendant Allstate Insurance Company. The summary judgment was affirmed.

Plaintiffs, in Isenhour’s car, and Richard Terlingen, in his car, exchanged verbal hostilities while driving next to each other. When plaintiffs turned into a McDonald’s parking lot, Terlingen followed. He parked directly behind plaintiffs’ car, preventing them from leaving the parking lot. After all three of them exited their vehicles, Terlingen pulled a golf club from the trunk of his car and struck plaintiffs with it, causing injuries.

Terlingen had home, umbrella, and automobile insurance policies with American Family Mutual Insurance Company, which obtained a declaratory judgment in federal court that it was not required to cover Terlingen for the injuries that he had intentionally caused. The court found that the uninsured motorist (UM) coverage in the Allstate policy covering Isenhour’s vehicle did not cover the injuries that Terlingen had intentionally caused.

On appeal, plaintiffs argued that their injuries arose out of Terlingen’s use of his vehicle because, but for the road rage incident, the altercation would not have occurred, and by parking closely behind them to prevent them from driving out of the parking lot, Terlingen used his vehicle to facilitate the assault. Allstate’s policy covers damages caused by the owner or operator of an uninsured vehicle “aris[ing] out of the ownership, maintenance, or use of an uninsured auto.” Here, exiting the car and then engaging in intentional misconduct broke the requisite causal chain between use of the vehicle and the injuries. Accordingly, because plaintiffs’ injuries did not result from use of a vehicle, they were not entitled to UM coverage.

Finally, plaintiffs contended that the Allstate policy is unenforceable to the degree it fails to conform to Colorado’s Uninsured Motorist Statute. Neither the statute nor the Allstate policy defines “use,” and plaintiffs did not offer any reason these provisions are in conflict. Accordingly, plaintiffs’ argument failed.

2012 COA 11. No. 11CA0442. Rea v. Corrections Corporation of America.
Final Judgment—Service of Process—Default Judgment—Bias—Prejudice.

Plaintiff Michael Rea appealed the judgment of dismissal entered by the district court in favor of defendant, the Corrections Corporation of America (CCA). The judgment was affirmed.

CCA operates a private prison under contract with the Colorado Department of Corrections. According to Rea’s allegations, a CCA sergeant searched his cell, seized documents about the unsolved murder of Jon Benet Ramsey, and started a rumor that Rea was involved in that murder. Rea instituted the present action, alleging claims of defamation, failure to provide protection, discrimination, and tampering with legal mail and witnesses against CCA, the sergeant, and a CCA case manager. The sergeant and the CCA case manager were never served with process in this matter, and the district court dismissed the claims against CCA.

The Court of Appeals first concluded sua sponte that named but unserved defendants are not litigants for purposes of determining the appealability of an order under the final judgment rule. Because the sergeant and the CCA case manager were never served with process in this matter, the district court’s order dismissing the claims against CCA was a final judgment for purposes of appellate review.

Rea alleged that the district court erred in not having the complaint served on any of the defendants until months after he filed his original complaint. However, the delay in service of process was caused by Rea, because he failed to comply with the court clerk’s order that he provide additional copies of the complaint for service.

Rea also asserted that, instead of dismissing the case against CCA, the court should have granted him a default judgment against CCA. However, CCA filed a motion for extension of time to file a responsive pleading in state court and timely filed an answer in federal court, which continued with the case after it was remanded to state court. Therefore, Rea was not entitled to a default judgment.

Finally, Rea asserted that the judgment should be reversed because the district court was biased and prejudiced against him. However, Rea waived any appearance of impropriety because he did not seek to disqualify the judge in the district court, and Rea did not allege any facts to support a claim of actual bias.

2012 COA 7. No. 09CA0487. People v. Stovall.
Crim.P. 35(a)—Plea—Ineffective Assistance of Counsel—Timeliness—Sentence.

Defendant appealed the trial court’s orders denying his Crim.P. 35(a) and (c) motions. The orders were affirmed.

Defendant shot and killed a neighbor’s dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff placed defendant under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant’s twin brother then arrived and shot the arresting deputy in the head, killing him. Defendant and his brother stole a pickup truck from a neighbor at gunpoint, and defendant shot another officer in the lower back, permanently paralyzing him. During the next twenty-four hours, defendant and his brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen officers without striking them. The brothers eventually surrendered.

Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty for either brother. Pursuant to that agreement, defendant pleaded guilty to one count of felony first-degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted-after-deliberation first-degree murder, five counts of attempted extreme indifference first-degree murder, and one count of aggravated robbery.

On appeal, defendant contended that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. Specifically, defendant argued that his plea counsel were ineffective because they failed to advise him that he could not be convicted of first-degree felony murder with a predicate offense of escape pursuant to CRS § 18-3-102(1)(b) when the escape was a petty offense. Because defendant’s plea counsel properly advised him and his claim was based on a misunderstanding of the law, he failed to state any facts that would constitute ineffective assistance of plea counsel.

Defendant also contended that plea counsel were ineffective because they did not examine the autopsy reports, police reports, or ballistic reports, and did not interview any witnesses before advising him to plead guilty. However, defendant did not specifically identify any exculpatory evidence or lack of evidence that would have affected his decision to plead guilty. Therefore, defendant’s argument is entirely speculative and insufficient to meet his burden of alleging facts that would allow the post-conviction court to find that he was prejudiced by counsel’s alleged failure to investigate.

Defendant also contended that the trial court erred in dismissing his Crim.P. 35(c) motion as time barred under CRS § 16-5-402 for the non-class felony convictions. However, defendant filed his Crim.P. 35(c) motion after the time had expired and failed to prove any justifiable excuse or excusable neglect for the untimely filing. Therefore, the court did not err in dismissing his motion.

Defendant further argued that the sentence imposed on him was illegal because his convictions for attempted-after-deliberation first-degree murder and attempted extreme indifference first-degree murder required inconsistent findings of fact. The information reflected that each attempted murder charge—after deliberation and extreme indifference—involved a different victim. Consequently, the sentence imposed on defendant was not illegal.

2012 COA 8. No. 10CA2157. In re the Parental Responsibilities Concerning T.L.B., and Concerning Esquibel.
Parental Responsibilities—Uniform Child Custody Jurisdiction and Enforcement Act—Hague Convention—International—Claim Preclusion—Issue Preclusion—Temporary—Emergency—CRS § 14-13-204.

Leah Marie Esquibel (mother) appealed the trial court’s order that Canada, rather than Colorado, has jurisdiction to determine parental responsibilities regarding the children in this matter. The order was affirmed.

This case concerns mother, who at all relevant times lived in Colorado; Nicola Laurence Boswell (father), who at all relevant times lived in Vancouver, Canada; and their two young children. Beginning in 2001, the parties lived together in Canada for six years and had two children. In 2007, mother took the children to Colorado without consulting father. Father then obtained a Canadian order granting him custody of the children.

Mother contended that the trial court erred by finding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that Canada has jurisdiction to determine parental responsibilities for the parties’ children. An action involving the children was initiated by father in Canada before mother filed the petition in Colorado. The trial court found that because Canada’s jurisdiction was substantially in conformity with the UCCJEA and Canada had not determined that Colorado was a more convenient forum, Canada had jurisdiction to determine parental responsibilities. Although the Hague Convention usuallydirects that the child be physically taken to the country that will determine parental responsibilities, the Colorado court’s decision not to return a child under the grave risk exception to the Hague Convention does not mean that the country to which the child was taken mustalways make the final parental responsibilities decision concerning the child. Therefore, the trial court properly exercised only temporary emergency jurisdiction under CRS § 14-13-204 until the Canadian court entered an order for parental responsibilities.

Mother also contended that claim and issue preclusion bar father’s claim that Canada has jurisdiction to determine parental responsibilities. Neither doctrine applies here, however, because subject matter jurisdiction to determine final parental responsibilities was not decided in father’s Hague Convention action. Thus, there was no identity of claims or issues.

Mother further contended that the trial court erred in ruling that Canada has jurisdiction because the Canadian action was not in substantial conformity with the UCCJEA and because Canada violates fundamental principles of human rights. However, mother clearly had actual notice of the Canadian proceedings, and nothing in the record supports mother’s claim that Canada violates fundamental principles of human rights.

Finally, mother contended that the trial court erred by not making findings concerning her spousal abuse allegations. The trial court here did not allocate temporary parental responsibilities. Rather, the court exercised only the very limited jurisdiction permitted under CRS § 14-13-204 to protect the children by keeping them in Colorado temporarily until the Canadian court entered further orders. Accordingly, the court did not err by focusing solely on the children, and not addressing mother’s spousal abuse allegations.

2012 COA 9. No. 10CA2590. Vaccaro v. American Family Insurance Group.
Underinsured Motorist Insurance Benefits—CRS §§ 10-3-1115 and -1116—Unconstitutional—Retroactive Application—Bad Faith Breach of Insurance Contract—Evidence—Reasonableness—Policy Limits.

In this dispute over underinsured motorist (UIM) insurance benefits, defendant American Family Insurance Group appealed the judgment entered on a jury verdict in favor of plaintiff Charles M. Vaccaro for breach of contract and for unreasonable denial of insurance benefits under CRS §§ 10-3-1115 and -1116 (statutes). The judgment was affirmed, the interest award was vacated, and the case was remanded with directions.

A negligent tortfeasor injured plaintiff in a two-car accident in 2005. The tortfeasor had liability insurance with policy limits of $25,000. Defendant’s policy insuring plaintiff provided UIM coverage up to $100,000. Plaintiff settled his claim against the at-fault driver for the policy limit of $25,000. After defendant received plaintiff’s independent medical examination (IME) report on September 22, 2008, which opined that extensive medical treatment was necessary and causally related to the accident, defendant denied plaintiff’s claim for $75,000 in UIM benefits.

On appeal, defendant asserted that the trial court’s submission of plaintiff’s statutory claim to the jury was an unconstitutional retroactive application of the statutes. The statutes, which took effect on August 5, 2008, create a right of action separate from the common law tort of bad faith breach of an insurance contract. Although the statutes may not operate retroactively, they may properly apply to new acts of unreasonable denial or delay occurring after their effective date, even where the underlying insurance claim arose before their enactment.

Here, a reasonable jury could find that defendant engaged in new acts of unreasonable denial and delay after August 5, 2008, sufficient to impose liability under the statutes. Accordingly, there was no retroactive application of the statutes in this case, and the trial court properly submitted plaintiff’s statutory claim to the jury and properly denied defendant’s motions to direct a contrary verdict.

Defendant also contended that there was insufficient evidence of unreasonableness to support plaintiff’s statutory claim. Plaintiff provided evidence at trial beyond a merely subjective opinion on whether defendant acted reasonably. Particularly in light of plaintiff’s theory that defendant requested—and then ignored—the IME report, a reasonable jury could have found that defendant refused to consider evidence showing plaintiff was entitled to additional compensation. Thus, the court properly denied defendant’s motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial.

Defendant further contended that the trial court erroneously ordered it to pay an additional $40,539 in prejudgment interest because the jury awarded plaintiff the policy limit of $75,000 in contract damages. Because it is part of the compensation awarded for bodily injury, prejudgment interest is comprehended within the bodily injury coverage of an insurance policy and is subject to those policy limits. Therefore, defendant was not liable for prejudgment interest beyond the $75,000 awarded on plaintiff’s contract claim.

Colorado Court of Appeals Opinions

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