Workers’ Compensation—Bad Faith Breach of Insurance Contract—CRE 702—Causation—Evidence—Expert Testimony.

Lorenzen was working as a groundskeeper for a country club when he injured his back and suffered a herniated disc with an extruded caudally migrated fragment. Pinnacol Assurance (Pinnacol), employer’s workers’ compensation insurer, denied Lorenzen’s request for surgery to treat the injury on grounds that it was not work-related. The denial resulted in a 13-day delay between the date of the surgery request and the date Lorenzen underwent surgery under his private health insurance. Several months later, Pinnacol determined that Lorenzen’s injury was work-related and it reimbursed him for his medical costs and paid other workers’ compensation benefits.

Lorenzen sued Pinnacol for bad faith breach of an insurance contract, alleging that the insurer’s 13-day delay in authorizing surgery caused permanent nerve damage. Lorenzen disclosed four doctors as experts who intended to opine that the delay in approving the surgery request caused him to suffer the permanent nerve damage. The doctors relied on a theory that prolonged nerve compression from a disc herniation causes nerve damage, so prompt surgery is preferable to delayed surgery to preserve nerve function. The district court concluded that this theory was not a scientifically reliable theory of medical causation and disallowed the expert testimony. Consequently, Lorenzen could not prove causation or damages, and the district court granted summary judgment in favor of Pinnacol.

On appeal, Lorenzen contended that the district court erred in excluding his expert testimony by imposing the too stringent but-for causation standard, and that even under the court’s standard, his causation theory satisfied CRE 702. The test for causation-in-fact is whether but for the tortious conduct, the harm would not have occurred. Further, the principle that early treatment is preferable to later treatment is not a viable theory of causation. Instead, evidence was needed that would allow a jury to find that, but for the delay, Lorenzen would not have suffered the impairment. Here, Lorenzen’s expert testimony left significant gaps between the premise that nerve compression should be alleviated by prompt surgery and the conclusion that it is more likely than not the 13-day delay in undergoing surgery caused his permanent nerve damage. Therefore, the district court did not abuse its discretion in disallowing the experts’ testimony because it would not have assisted the jury in determining whether Pinnacol’s delay in authorizing surgery caused Lorenzen’s permanent impairment.

Lorenzen also contended that the district court erred in entering judgment for Pinnacol because he retained a claim for noneconomic damages that did not require expert testimony. The Court of Appeals construed Lorenzen’s complaint liberally and concluded that it contained a single claim for economic and noneconomic damages based on his physical impairment. Because Lorenzen cannot prove that Pinnacol’s conduct caused his physical impairment, he also cannot prove that Pinnacol is responsible for the noneconomic damages resulting from his physical impairment. Therefore, the court did not err in dismissing Lorenzen’s complaint and entering judgment for Pinnacol.

Criminal Procedure—Ineffective Assistance of Counsel.

The People charged defendant with aggravated incest and three counts of sexual assault on a child by one in a position of trust. He hired a private attorney to represent him, but that attorney withdrew several months before trial. Defendant couldn’t pay another attorney but didn’t qualify for a public defender, so he proceeded to trial pro se. A jury convicted him of all charges. Defendant was represented by a public defender at sentencing. The court sentenced him to an indeterminate 15 years to life for aggravated incest and concurrent 15-year sentences on the other charges. Defendant successfully appealed his convictions, but was retried and the district court again imposed an indeterminate sentence of 15 years to life on the aggravated incest count after the second trial.  

Defendant filed a Crim. P. 35(c) motion, asserting 10 claims of ineffective assistance of counsel and requesting a hearing on those claims. According to the motion, the public defender told him that the prosecutor had made a post-verdict, presentence offer of a fixed, 10-year sentence to the custody of the Department of Corrections, but the offer wasn’t favorable because the maximum prison term he could get was 15 years. Relying on this advice, defendant rejected the offer. The district court denied the motion without a hearing.

On appeal, defendant argued that the district court erred in denying his Rule 35(c) motion without a hearing. He contended that the public defender incorrectly advised him about the possible sentence after the first trial, and further argued that if he had been granted a hearing he would have presented evidence that but for his attorney’s advice he would have accepted the offer of a determinate 10-year sentence. Here, defendant made sufficient allegations of ineffective assistance and resulting prejudice to justify a hearing on this claim.

Defendant also contended that the district court erred by summarily denying his claim that he received ineffective assistance of counsel at his second trial when his lawyer advised him not to testify. However, defendant didn’t make any allegations showing a reasonable probability that the outcome would have been different if he had testified. Therefore, the court did not err in summarily denying this claim.

Lastly, defendant contended that the district court should have held a hearing on his claim that his attorney provided ineffective assistance of counsel by not investigating the case thoroughly. Defendant alleged that the lack of investigation resulted in him being unable to provide the jury with context for his incriminating statements to the victim and he couldn’t strategically attack her allegations. Defendant’s conclusory statements without supporting factual allegations weren’t enough to entitle him to a hearing on this claim, which the district court properly denied.

The portion of the district court’s order summarily denying defendant’s claim that he received ineffective assistance of counsel because his attorney incorrectly advised him about his sentencing exposure was reversed, and the case was remanded for a hearing on that claim. In all other respects, the order was affirmed.

Juvenile Law—Sentencing—Restitution—Federal Controlled Substances Act—Marijuana—Preemption.

D.M., a juvenile, and two of his friends broke into a licensed marijuana dispensary and stole marijuana plants and products worth $178,000. D.M. pleaded guilty to burglary of a non-dwelling. The district court accepted the plea agreement, adjudicated D.M. delinquent, sentenced him to nine months of probation, and ordered D.M. to pay the store owner $178,000 in restitution.

On appeal, D.M. argued that the court couldn’t order such restitution because the Federal Controlled Substances Act (CSA) preempts Colorado’s restitution statutes. He contended that because the CSA makes it a federal offense to distribute marijuana and provides that no one has a property interest in marijuana, Colorado’s restitution statutes can’t be applied to his conduct. Here, the restitution order only requires D.M. to make the victim whole for value lost because of his conduct; it doesn’t require him to violate the CSA. Further, the argument that the CSA conflicts with the order because it effectively recognizes a property interest in marijuana lacks authority, and in any event, recognizing a state property interest in marijuana under Colorado law doesn’t positively conflict with the CSA. The CSA does not indicate that Congress intended to supersede the restitution statutes, and there is no positive conflict between the CSA and Colorado’s restitution statutes as applied in this case. Therefore, the CSA doesn’t preempt those statutes.

The order was affirmed.

Juvenile Law—Delinquency—Miranda—Interrogation—Search—Voluntary—Theft—At-Risk Person—Complicitor—Sentencing.

Sixteen-year-old B.D., along with two other juveniles, broke into two homes and stole several items. At one of the homes, one of B.D.’s accomplices crossed paths with the 77-year-old homeowner. Officers stopped B.D. on the street shortly after the burglary and he told a sergeant he had alcohol in his backpack and allowed the sergeant to search the backpack. The sergeant found a bottle of vodka and an iPad, which were later determined to belong to the victim, and B.D. was arrested. Before trial B.D. filed a motion to suppress, which the magistrate denied. B.D. was adjudicated delinquent for two counts of felony burglary and two counts of theft. One of the theft counts was a misdemeanor but the other was enhanced to a class 5 felony because it was committed in the presence of an at-risk person.

On appeal, B.D. contended that the magistrate erred in denying his motion to suppress because (1) police improperly obtained evidence by obtaining incriminating statements during a custodial interrogation; (2) he was coerced into allowing police to search his backpack; and (3) his fingerprints were improperly obtained. Here, the only incriminating statement that B.D. made to the sergeant was that he had alcohol in his backpack. The statement was made when he was on a street in a public place with his friends, and he was questioned by the officer in a calm, conversational tone for only a few minutes. B.D. was not in custody when he made this statement. Further, the record shows that there was nothing coercive about the search, to which B.D. voluntarily consented. Finally, because nothing about B.D.’s interrogation, backpack search, or arrest was unlawful, police were authorized to obtain B.D.’s fingerprints as part of the routine identification process that accompanies an arrest. Therefore, the magistrate did not err in denying the motion to suppress.

B.D. also argued that the prosecution presented insufficient evidence to support the conclusion that he was guilty of theft in the presence of an at-risk person as a complicitor. Because there was no evidence that B.D. was aware that the principal would commit the burglary in the presence of an at-risk person, he cannot be held strictly liable for the sentence enhancer.

The adjudication and sentence for theft from an at-risk person were reversed. The case was remanded for resentencing on that count as a non-enhanced misdemeanor theft and to amend the mittimus accordingly. The judgment was affirmed in all other respects.

Civil Procedure—Summary Judgment—Prior Inconsistent Ruling—CRCP 56(c).

JBC Agricultural Management, LLC (JBC) entered into separate contracts to buy cattle from Southern Cross Ranches, LLC, and Ranch Management, LLC (collectively, sellers). In turn, JBC contracted to sell the cattle to its subsidiary (collectively, buyers). Sellers brought this action alleging that JBC had breached the contracts by failing to make any payments. JBC counterclaimed alleging that after the initial payment deadlines had been extended, sellers breached the contracts. JBC moved for summary judgment on its breach of contract counterclaim. It supported the motion with an affidavit from its principal. Sellers opposed the motion with counter affidavits and a brief. The trial court denied JBC’s motion, stating that a genuine dispute of material fact existed. Shortly thereafter, the trial court granted buyers’ counsel’s motion to withdraw. Sellers then moved for summary judgment on all claims, counterclaims, and third-party claims. Because buyers were still without counsel, they could not oppose the motion. The court granted sellers’ summary judgement motion without mentioning any aspect of the earlier summary judgment proceeding.

Four weeks later, buyers’ new counsel entered an appearance and moved to vacate the summary judgment orders. The court denied the motion.

On appeal, buyers contended that sellers failed to meet their burden of showing the absence of a disputed material fact. Here, sellers’ affidavits are admissible evidence and support summary judgment. Sellers met their burden of showing the absence of a factual issue on JBC’s breach by nonpayment. Thus, the burden shifted to buyers to respond and show that a genuine issue for trial exists. Here, JBC did not respond, but argued on appeal that its principal’s affidavit established disputed issues of material fact and the trial court was required to review all materials then on file. CRCP 56(c) does not require a trial court to review the record beyond the materials cited in the summary judgment motion and any opposition. Thus, buyers cannot rely on the principal’s affidavit to show a disputed issue of material fact.

Buyers next contended that the trial court erred by entering summary judgment in favor of sellers because the court departed from its earlier summary judgment ruling, without explanation, that found disputed material facts. Here, while the court had discretion to disregard its prior ruling, the record does not show that it consciously did so. And comparing the prior order to the affidavits sellers submitted in support of their summary judgment motion leaves no doubt that there are factual issues. The court’s failure to reconcile its prior inconsistent ruling was an abuse of discretion.

The summary judgments in favor of sellers were reversed and the case was remanded for further proceedings.