Not a CBA Member? Join Now!
Find A Lawyer Directory
Legal Directory

Colorado Court of Appeals Opinions
October 11, 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 163. No. 10CA0788. People v. Wilson.
Batson Challenge—Jury Selection—Peremptory Strike—MirandaRights—Evidence.

Defendant Derrick Wilson appealed the judgment of conviction entered on jury verdicts finding him guilty of sexual assault with a deadly weapon, unlawful sexual contact with force or violence, and second-degree kidnapping of a victim of sexual assault. He also appealed the sentence imposed after the trial court convicted him of three habitual counts. The judgment was reversed and the case was remanded.

Wilson contended that the trial court clearly erred in overruling his Batson challenge to the prosecutor’s peremptory strike against Mr. E, a potential juror who is African American [Batson v. Kentucky, 476 U.S. 79 (1986)]. The trial court credited the prosecutor’s race-neutral reasons for excusing Mr. E. However, both explanations given by the prosecutor were refuted by the record, and therefore suggest pretext sufficient for finding discriminatory purpose. Furthermore, three other prospective jurors expressed concerns similar to those cited by the prosecutor in her explanation for challenging Mr. E, but the prosecutor did not challenge them, which strongly suggested that her proffered explanations for excusing Mr. E were pretextual. Therefore, the striking of Mr. E violated Wilson’s constitutional rights, and the case was remanded for a new trial.

Wilson also contended that the trial court erred in admitting statements he made to law enforcement officials without being advised of his Miranda rights. However, the questions asked by the officer were attendant to his custody of Wilson and did not amount to interrogation. Therefore, the trial court did not err in admitting the statements.

Wilson also contended that the trial court erred in denying his request to admit the entirety of a twenty- to thirty-minute recorded phone call, instead of a ninety-second redacted version offered by the prosecutor. The remainder of the recording related to character evidence, testimony, and the state of mind of the defendant, which is not relevant evidence. Therefore, the trial court’s decision was not an abuse of discretion. The Court of Appeals further upheld the Colorado Habitual Offender Statute as constitutional and found that collection of Wilson’s saliva was not a warrantless search and did not violate his Fourth Amendment rights.

2012 COA 164. No. 10CA1846. Hiner v. Johnson, MD.
CRCP 102—Writ of Attachment—Counterclaim—Damages—Attorney Fees.

In this case pertaining to CRCP 102, plaintiffs David Hiner and Deelila Quick appealed the trial court’s order denying their request for damages, attorney fees, and costs against defendants Dr. Bruce Johnson and Dr. Michael King. The order was affirmed.

At the request of defendants, the trial court issued a writ attaching proceeds that had been obtained by plaintiffs in a settlement with a defendant who was not part of this appeal. Subsequently, the trial court, at plaintiffs’ request, discharged the writ.

Plaintiffs contended that the trial court erred in denying their request for damages, attorney fees, and costs as a result of defendant’s wrongful request for a writ of attachment. CRCP 102(a) only authorizes a court to issue a writ of attachment for the party bringing the claim, which would be a plaintiff or a defendant who has asserted a counterclaim. Here, although defendants did not assert a counterclaim, they requested the writ of attachment. Because defendants did not assert a counterclaim, CRCP 102(a) did not provide a basis for the court to issue a writ of attachment. As a result, the writ of attachment was improperly issued, and the trial court properly discharged the writ under CRCP 102(w). Plaintiffs are not entitled to damages, attorney fees, or costs in this case because (1) CRCP 102(d) only authorizes an award of costs or damages to the plaintiff if a defendant who has asserted a counterclaim is not entitled to an attachment; and (2) CRCP 102(n)(2) only authorizes an award of damages to a plaintiff if the defendant who has asserted a counterclaim does not prevail at such a hearing.

2012 COA 165. No. 10CA2045. People v. Williams.
Robbery—Felony Murder—Testimony—CRE 404(b)—Fruit of the Poisonous Tree Doctrine—Evidence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree felony murder and three counts of aggravated robbery. The judgment was affirmed in part and reversed in part, and the sentence was vacated in part.

J.T. and his wife, A.T., owned a tattoo shop in Denver from which J.D. sold marijuana and cocaine. The couple was at the store with their friend N.C. when two men carrying handguns entered the shop through the back door with their faces covered by masks or bandanas. One of the robbers shot and killed J.T., and the robbers fled with cash and drugs. Defendant and Dewayne O’Bannon were charged with the crimes.

On appeal, defendant contended that the trial court erred by denying his motion for a mistrial because the testimony of T.M., who met defendant in the Denver County Jail and testified as to defendant’s admissions that defendant threatened him, was a discovery violation and was improper under CRE 404(b). Because the challenged statement was not made by the accused to the police or prosecution, the prosecution was not required to disclose it under Crim.P. 16. Further, the trial court struck the statement from the record and instructed the jury not to consider it for any purpose. Even assuming that the statement did violate CRE 404(b), it was not substantially prejudicial because it was cumulative of other admissible testimony from witnesses who feared retaliation from defendant for testifying at his trial. Therefore, the trial court did not abuse its discretion by denying defendant’s motion for a mistrial.

Defendant also contended that the trial court erred by admitting testimony from a witness whose identity was discovered from an illegal seizure, in violation of the “fruit of the poisonous tree” doctrine. When defendant was arrested during a routine traffic stop, the police had probable cause that he provided false identifying information to the police. Because defendant’s seizure was legal, the fruit of the poisonous tree doctrine was inapplicable.

Defendant further contended that there was insufficient evidence to support the aggravated robbery convictions because A.T. and N.C. did not exercise control over, or have a right to control, the money taken from J.T.’s pockets. A.T., as the shop’s co-owner and J.T.’s wife, had sufficient ownership or control over the money in J.T.’s pockets. In contrast, there was no evidence that N.C., a friend who just happened to be in the tattoo shop, had control over the money or any claim to the stolen money. Therefore, the judgment was reversed as to the conviction of aggravated robbery of N.C., and the sentence imposed for that conviction was vacated.

2012 COA 166. No. 10CA2541. People v. Poe.
Jury Instruction—Evidence—Possession of Drugs and Drug Paraphernalia.

Defendant Alexander Poe appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a schedule II controlled substance (methamphetamine), possession of marijuana, and possession of drug paraphernalia. The judgment was affirmed.

While Poe was out with a female friend, his parole officer and two other parole officers searched his apartment. They found drugs and drug paraphernalia. He returned during the search and was arrested.

On appeal, Poe contended that the trial court erred when it gave the jury an instruction with suggestions on how deliberations should be conducted. However, the court did not direct the jury to deliberate in a certain way. The court merely offered suggestions, which were given to facilitate the same open and honest deliberation of which Poe now claims he was deprived. Therefore, the court did not abuse its discretion in offering suggestions to the jury to keep an open mind and reach a considered decision during final deliberations.

Poe also contended that the evidence presented to the jury was insufficient to convict him of the possession charges. The drugs and drug paraphernalia were found in Poe’s one-bedroom apartment, which he owned, and there was no evidence that any other person lived at the apartment or that Poe had a female houseguest as he claimed. Further, Poe’s parole conditions required him to request permission to have an overnight guest, and he had not made such a request. Although Poe had a female friend who claimed ownership of the illegal items, the evidence sufficiently supported the jury’s conclusion that the items found were under Poe’s dominion and control.

2012 COA 167. No. 10CA2544. People v. Samson.
Theft—Conspiracy—Juror—Challenge for Cause—Prosecutorial Misconduct—Evidence—Elements.

Defendant Xavier Samson appealed his convictions for theft ($1,000–$20,000 series) and conspiracy to commit theft ($1,000–$20,000 series). The convictions were affirmed.

Samson was or had been roommates with Juan Lopez-Cabello, who, along with Nicolas DelPapa, served as a cashier at Clark’s Market, a grocery store in Pitkin County. Lopez-Cabello and DelPapa allowed Samson to take items from the store without paying for them.

On appeal, Samson contended that the trial court erred in denying his challenge for cause to Juror B. Juror B told the court that he knew most of the officers in the area, was very close to some of them, had friendships with a lot of them, trusted police offers, and would have a difficult time doubting their word. Juror B then indicated that he would listen to all of the evidence, hold the prosecution to their burden of proof, and follow the law and instructions of the court. The trial court denied Samson’s challenge based on these statements, the totality of the circumstances, and its observations of Juror B’s demeanor and credibility, although it noted that it viewed the challenge as a “close call.”The Court of Appeals agreed that the “issue was close,” but perceived no abuse of discretion in the trial court’s ruling.

Samson also contended that reversal was required because the prosecutor committed misconduct during rebuttal closing argument. The prosecutor’s comments were in direct response to defense counsel’s closing argument, were within the realm of fair commentary on Samson’s theory of the case, and were supported by the evidence. Therefore, there was no prosecutorial misconduct.

Samson further argued that the evidence was insufficient to support his conspiracy conviction because the prosecution was required to prove not only that he agreed to take the groceries from Clark’s Market, but also that this agreement extended to the fact that those groceries were valued at between $1,000 and $20,000. The prosecution is only required to prove the elements of theft. Because the completed crime of theft does not require proof of a defendant’s knowledge of the value of the goods taken, it follows that a conspiracy to commit theft does not require the prosecutor to prove an agreement to take goods valued at a particular amount of money. The prosecution was required only to plead and prove the amount beyond a reasonable doubt for purposes of classifying the level of the crime. Here, the prosecution satisfied its burden of proof, and the evidence was sufficient to support Samson’s conspiracy conviction.

2012 COA 168. No. 11CA0134. SDI, Inc. v. Pivotal Parker Commercial, LLC.
Breach of Contract—Assignment—CRS § 32-1-1001(1).

In this dispute over the terms of several contracts, defendant Pivotal Parker Commercial, LLC (Pivotal) appealed the trial court’s entry of judgment following a bench trial in favor of plaintiff SDI, Inc. (SDI). The judgment was reversed and the case was remanded.

In 1984, the Town of Parker annexed a parcel of undeveloped land known as Stroh Ranch. Cherry Creek South Metropolitan District No. 1 (District) thereafter incurred an obligation to one of the original developers of the Stroh Ranch (later called Stroh Ranch Development, LLC, or SRD) for $11,130,000. SRD later assigned the right to receive development fee revenue to SDI by a purchase and sale agreement (Seventh Amendment). SDI entered into a real estate purchase and sale contract with Pivotal (SDI–Pivotal Contract) for “Filing Nos. 14 and 15.” SDI later sought a declaratory judgment and damages for unpaid development fees pursuant to the Seventh Amendment and the SDI–Pivotal Contract. Following a bench trial, the trial court entered judgment in favor of SDI.

On appeal, Pivotal contended that the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court erred in concluding it must look to common law to fill in the statutory silence in CRS § 32-1-1001(1), which defines a special district’s common powers. The statute does not give the District the power to assign its right to receive revenue to a private party. The District’s assignment to SDI in paragraph 6 of the Seventh Amendment, therefore, went beyond the District’s statutory and constitutional powers. Consequently, paragraph 6 of the Seventh Amendment is void, and the trial court erred when it determined that the District validly assigned its right to receive development fee revenue to SDI, and that SDI was entitled to collect, and charge interest on, that amount. The trial court further erred when it declared that SDI has a perpetual lien on Filing Nos. 14 and 15.

Pivotal also argued that the trial court erred when it concluded that Pivotal breached its contract with SDI. Neither the SDI–Pivotal Contract, the E&T Contract, nor the E&T Contract Assignment provided that Pivotal must transfer a portion of the purchase price of the E&T Contract to SDI as development fees. Therefore, Pivotal did not breach the contract.

2012 COA 169. No. 11CA1507. Justus v. State of Colorado.
Public Employees’ Retirement Association—Cost of Living Adjustment—Senate Bill 10-001—Contract Clause—Takings Clause—Impairment—Public Purpose.

Plaintiffs Gary Justus, Kathleen Hopkins, Eugene Halaas, and Robert Laird, Jr., who are recipients of retirement benefits through the Colorado Public Employees’ Retirement Association (PERA), appealed the trial court’s entry of summary judgment in favor of defendants, the State of Colorado, Governor John Hickenlooper, PERA, Carole Wright (chair of the PERA Board of Trustees), and Maryann Motza (vice chair of the PERA Board of Trustees). The judgment was reversed and the case was remanded.

Plaintiffs challenged §§ 19 and 20 of Senate Bill 10-001 (now codified at CRS §§ 24-51-1001 and -1002), which reduced the amount they were entitled to receive as a cost-of-living adjustment (COLA) to their PERA benefits. The trial court ruled that plaintiffs have no contractual right to the COLA in effect when they retired, and that absent such a contractual right, plaintiffs’ claims necessarily fail.

On appeal, plaintiffs contended that the district court erred by granting summary judgment on their Contract and Takings Clause claims, because once they became eligible to retire or had retired, they each acquired a contractual right to the COLA then in effect, which precluded the General Assembly from making any adverse change to the formula. Plaintiffs have a contractual right to have their retirement benefits calculated using the COLA in effect when their rights vested, before the effective date of Senate Bill 10-001. However, §§ 19 and 20 of Senate Bill 10-001 do not violate plaintiffs’ rights under the Contract Clauses if: (1) their contract right has not been impaired; (2) any impairment is not substantial; or (3) the change in the COLA was reasonable and necessary to serve a significant and legitimate public purpose. The trial court did not rule on those issues. Therefore, the case was remanded for the trial court to make these determinations. In light of the conclusion that the court erred in regard to plaintiffs’ Contract Clause claims, the summary judgment on the Takings Clause claim also was reversed, and the case was remanded for further proceedings on that claim.

2012 COA 170. No. 11CA1700. Jacox v. American Family Mutual Insurance Company.
Underinsured Motorist—CRS § 10-4-609.

In this underinsured motorist (UIM) coverage action, plaintiff Annabell Jacox appealed the district court’s order granting a motion filed by defendant American Family Mutual Insurance Company (American Family) and determining that Jacox was not legally entitled to UIM benefits. The order was affirmed.

Jacox was a passenger in Winferd Loper’s vehicle when Loper fell asleep at the wheel, resulting in a one-car accident in which Jacox suffered injuries. Jacox filed a civil action against Loper and ultimately settled her suit against him, collecting the liability policy limit for bodily injuries. She also sought UIM coverage under Loper’s American Family policy. The request was denied and Jacox sued. The district court granted American Family’s motion to dismiss, ruling that Jacox was not entitled to UIM benefits under Loper’s policy.

On appeal, Jacox argued she was entitled to UIM benefits pursuant to the amended UIM statute, CRS § 10-4-609. Loper’s policy contained a UIM exclusion applicable to vehicles “insured under the liability coverage of this policy.” Jacox contended that the 2008 amendments to the UIM statute overruled the Supreme Court’s ruling in Terranova v. State Farm Mutual Insurance Company, 800 P.2d 55, 59 (Colo. 1990), which held that the identical exclusion does not violate public policy. The Court of Appeals found that the amendments did not invalidate Terranova and, therefore, the UIM exclusion was valid.

Jacox also argued that the UIM exclusion in Loper’s policy was inconsistent with the “limits of liability” policy provision, because the provision provided that bodily injury liability payments would be offset against the UIM coverage. The Court disagreed that they were inconsistent because, per the exclusion, there was no UIM coverage and therefore there was no limit of liability for a nonexistent UIM coverage. The order of dismissal was affirmed.

2012 COA 171. No. 11CA1772. Daniel v. City of Colorado Springs.
Governmental Immunity—CRS § 24-10-106(1)(e)—Public Parking Lots.

Defendant, the City of Colorado Springs (City), brought this interlocutory appeal of the district court’s order denying its motion to dismiss, on governmental immunity grounds, the complaint filed by plaintiff Marilyn Daniel. The order was reversed and the case was remanded.

Plaintiff alleged she was injured when she fell after stepping into a hole in a parking lot for the public Valley Hi Golf Course, which was owned and maintained by the City. She asserted the City knew or should have known about the dangerous condition of the parking lot.

The City moved to dismiss pursuant to CRCP 12(b)(1) for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). Plaintiff argued that immunity had been waived, under CRS § 24-10-106(1)(e), for a dangerous condition of any public facility located in any park or recreation area maintained by a public entity. The City responded that the phrase “in any park or recreation area” includes only places and areas within a golf course, but not the parking lot. The trial court denied the City’s motion to dismiss and the City brought an interlocutory appeal.

On appeal, the Court of Appeals emphasized that waiver was for a dangerous condition located in any park or recreation area. It also noted that before the 1986 amendments to the CGIA, the statute had excepted immunity for a “public parking facility” and that this section was deleted by the amendments. The Court followed other decisions that found this deletion was intended to remove the exclusion from governmental immunity to such areas. It therefore was error to find that the City’s immunity was waived. The order was reversed and the case was remanded with directions to dismiss the complaint against the City.

2012 COA 172. Nos. 11CA1852 & 11CA2003. Board of County Commissioners of Gilpin County v. City of Black Hawk.
Subject Matter Jurisdiction—Rule-Making Proceeding—CRS § 12-47.1-521.

Plaintiffs, the Board of County Commissioners of Gilpin County, Forrest Whitman, Bruce Schmalz, and Connie McLain (collectively, Gilpin County), and defendant, the City of Black Hawk (Black Hawk), appealed the district court’s order dismissing their claims against defendants, the Colorado Limited Gaming Control Commission (Commission), the Colorado Division of Gaming (Division of Gaming), Colorado State Treasurer Walker Stapleton, the Board of County Commissioners of Teller County (Teller County), the City of Cripple Creek (Cripple Creek), and the City of Central (Central), for lack of subject matter jurisdiction pursuant to CRCP 12(b)(1). The order was affirmed.

This case arose from a rule-making proceeding before the Commission. The proceeding addressed the interpretation of the phrase “gaming revenue” as used in the Colorado Constitution.

At a Commission hearing, the Division of Gaming proposed an amendment to the Commission’s Rule 24 that reflected its interpretation of “gaming revenue” and, in response, Gilpin County proposed its own amendment. The Commission adopted the Division of Gaming’s amendment.

Gilpin County then filed a complaint against defendants, seeking judicial review of the Commission’s rule-making proceeding. Defendants, excluding Black Hawk, filed a motion to dismiss for lack of subject matter jurisdiction under CRCP 12(b)(1), which was granted by the district court.

On appeal, Gilpin County argued that CRS § 12-47.1-521 does not give the Court of Appeals exclusive jurisdiction to review the rule-making actions of the Commission. The Court, relying on the plain meaning of the statute, held that it does. Therefore, the district court was correct that it lacked jurisdiction to review the Commission’s rule-making actions.

The Court also considered whether Gilpin County and Black Hawk had claims for declaratory relief under CRCP 57, because review under CRS §§ 12-47.1-521 and 24-4.106 do not provide adequate relief for their constitutional challenges to the Commission’s rule-making actions. The Court held they do not have claims for declaratory relief because the statutory sections provide adequate relief in these circumstances. Here, adequate relief was provided because Gilpin County and Black Hawk were parties to the rule-making proceeding. The order was affirmed.

2012 COA 173. No. 11CA1870. Abady v. Certain Underwriters at Lloyd’s London Subscribing to Mortgage Bankers Bond No. MBB-06-0009.
Summary Judgment—Damage Suffered by Investors—Direct Financial Loss—Distinction Between Liability Policy and Fidelity Bond.

Plaintiffs (investors) appealed the trial court’s summary judgment in favor of Certain Underwriters at Lloyd’s London (Lloyd’s). The judgment was affirmed.

Investors alleged that the chief executive officer (CEO) of Commercial Capital Inc. (CCI) formed CCI as a real estate lending company providing short-term financing for commercial construction projects. During 2006 and 2007, CCI solicited private investors to invest funds in the company. The proposed investment involved the acquisition of debt securities documented by a subscription agreement and promissory note from CCI (notes). Seminars were held by CCI to describe the investment.

Investors alleged that the CEO was involved in all day-to-day operations and made misrepresentations that included: (1) CCI had a $5 million policy in place to protect investors’ principal against loss; (2) the investments had high guaranteed rates of return; (3) the interests sold were registered with the Securities and Exchange Commission; (4) the investments were “more liquid than other private real estate strategies” and “enjoyed a superior risk return profile due to inefficiencies in the commercial lending market”; (5) CCI would conduct vigorous due diligence before granting any loans; and (6) the investments and any interest would be personally guaranteed by the CEO. Investors alleged that, based on these and other misrepresentations, they invested or loaned money to CCI in an amount in excess of $1 million. CCI is allegedly in default on the notes and the CEO has not honored his personal guarantee.

It appeared that CCI loaned investors’ funds to developers at lower interest rates than those payable to investors but with very high loan origination fees. On April 22, 2009, CCI filed a voluntary petition for Chapter 11 bankruptcy protection. Certain creditors, including investors, moved for relief from the automatic stay to pursue CCI’s rights under Insuring Clause A1(b) of the Mortgage Bankers Bond No. MBB-06-00090 (bond), which was issued to CCI by Lloyd’s. The relief was granted and the bankruptcy trustee assigned all of CCI’s rights, title, and interest in the bonds to investors, retaining 30% of the gross recovery less reasonable attorney fees and $50,000 to be paid to investors, with the balance to the investors.

Investors filed a complaint against CCI, the CEO, and Lloyd’s, alleging that CCI and the CEO officer violated the Colorado Securities Act; sold unregistered securities; and committed common law fraudulent misrepresentation, constructive fraud, negligent misrepresentation or omission, civil theft, breach of fiduciary duty, and vicarious liability. Investors also asserted two first-party claims against Lloyd’s: (1) as assignee of the bond, and (2) as a garnishment claim asserting a right to garnish Lloyd’s after obtaining judgment against CCI. Following some discovery, Lloyd's filed a motion for summary judgment, which the trial court granted. Investors appealed.

Investors conceded on appeal that the policy was a fidelity bond. As such, it is analogous to an insurance policy. As far as an assignment was concerned, an assignee stands in the assignor’s shoes “and takes ‘only as good a claim as his assignor had.’” Therefore, investors’ third-party claims were not first-party losses merely because investors were now in CCI’s shoes as first-party claimants. Investors may recover only those losses that CCI could have recovered for itself.

The Court of Appeals framed the issue presented as whether, under the agreed-on coverage, Lloyd’s would be liable to CCI for the damages suffered by investors arising out of the wrongful acts of its officers and employees in marketing interests in CCI to investors. The Court held this was not the case, because the losses asserted by investors did not constitute direct losses to CCI as contemplated by the bond. The bond provided coverage for “direct financial loss” sustained by CCI. The phrase was not defined. However, the Court again noted that this was a fidelity bond and not a liability policy. CCI could have purchased such insurance, but it did not. Thus, the Court held that “direct financial loss” unambiguously refers only to the immediate loss of CCI’s property through the dishonesty of its own officers and employees. It does not provide coverage to CCI for acts that cause damages to third parties. The summary judgment in favor of Lloyd’s was affirmed.

2012 COA 174. No. 11CA1917. Corder v. Folds, Jr.
Premises Liability—Summary Judgment—Express and Implied Consent.

In this premises liability case, plaintiff Gerald Corder (neighbor) appealed from the summary judgment dismissing his complaint against defendant William Folds, Jr. (landowner). The judgment was reversed and the case was remanded for further proceedings.

Neighbor and landowner were next-door neighbors. In August 2008, neighbor entered landowner’s backyard to return a propane tank he had borrowed from him. He walked up the stairs leading to landowner’s deck, and left the tank on the deck. On his way down the stairs, the stairs collapsed and he was injured. Landowner was not home at the time.

Neighbor sued landowner under the premises liability act (Act), alleging he was either an invitee or licensee at the time of his injury and that landowner failed to exercise reasonable care with respect to a dangerous condition on his property. Landowner filed a motion for determination of law, asserting neighbor was a “trespasser,” as that term is used in CRS § 13-21-115(5)(c). The trial court agreed and entered summary judgment in favor of landowner because there was no evidence suggesting he had injured the neighbor willfully or deliberately. Neighbor appealed.

The Act provides the exclusive remedy against a landowner for injuries sustained on the landowner’s property. A landowner’s standard of care is determined by the classification of the injured party.

Landowner maintained that neighbor was a trespasser because he was not given express consent to enter the property at the time of the injury. Neighbor countered that he had implied consent because: (1) landowner gave him a key to his home to perform maintenance projects and care for landowner’s home when he was away (2) landowner and neighbor were close friends who had a long history of entering each other’s property without express permission; and (3) the loan of the propane tank gives rise to a logical inference that neighbor was permitted to return it without contemporaneous, express permission.

The Court of Appeals held that a landowner may consent to entry, absent express words, by his or her course of conduct. Therefore, “consent” in the Act may include implied consent. Accordingly, the summary judgment was reversed and the case was remanded.

2012 COA 175. No. 11CA2297. Rivera v. American Family Insurance Group.
Automobile Insurance—CRCP 56(h)—Uninsured/Underinsured Coverage—CRS § 10-4-609.

In this automobile insurance case, plaintiff Anita Rivera appealed the district court’s order granting the CRCP 56(h) motion for a determination of law in favor of defendant American Family Insurance Group (American Family). The order was affirmed.

Rivera, while a passenger in an automobile, was seriously injured in a one-car accident when the driver lost control of the automobile. Rivera made a claim against the driver’s insurer, American Family. The declarations page provided that $100,000 was the policy limit for bodily injury under the liability coverage section and $100,000 was the limit for a bodily injury caused by an underinsured motorist.

American Family paid Rivera $100,000, the policy limit of the liability section, but declined coverage under the uninsured/underinsured (UI/UIM) coverage section. Rivera then sued American Family under CRCP 57(a), seeking a declaration that she was covered under the UM/UIM section of the driver’s policy. In turn, American Family filed a motion under CRCP 56(h), seeking a determination of law upholding its denial of Rivera’s claim for coverage under the UM/UIM section.

On appeal, Rivera conceded that the policy was unambiguous when it stated that the insured vehicle exclusion eliminates from the definition of “underinsured vehicle” a vehicle “insured under the liability coverage of this policy.” This bars Rivera from recovering UM/UIM coverage benefits under the policy if she recovers the policy’s liability coverage benefits. She argued this exclusion violates CRS § 10-4-609 and the Court of Appeals disagreed.

The Court found the Supreme Court’s reasoning in Terranova v. State Farm Mutual Insurance Company, 800 P.2d 55, 59 (Colo. 1990),to be dispositive of the issue. The insured vehicle exclusion in Terranova was virtually identical to that at issue in this case, and the Supreme Court held it was enforceable. The Court further held that the amendments to CRS § 10-4-609, made subsequent to Terranova, did not change the basis for the Terranova holding.

Rivera also argued that the insured vehicle exclusion contravened the public policy of Colorado that tort victims injured by uninsured or underinsured motorists receive full compensation for their injuries. The Court disagreed. It noted that the legislative intent behind the statute was to compensate insureds for losses subject to the limits of their insurance contract. In addition, the Supreme Court in Terranova observed that a “majority, and the better reasoned cases, have upheld the exclusion of a vehicle under the liability coverage of the policy from uninsured motorist benefits.” The order was affirmed.

Colorado Court of Appeals Opinions