Court Opinions- Apr 22, 2019

Lorenzen v. Pinnacol Assurance

In this bad faith breach of insurance contract case, Richard Lorenzen sued Pinnacol Assurance, his employer’s workers’ compensation insurer, after Pinnacol initially denied his request for surgery to treat a work-related injury. Pinnacol’s denial resulted in a 13-day delay between the date of the request and the date Lorenzen underwent surgery. 

Before trial, Lorenzen disclosed four doctors as experts to offer opinions that the delay in approving the request caused Lorenzen to suffer permanent nerve damage. 

The experts relied on a theory that prolonged nerve compression from a herniated disc leads to nerve damage and, therefore, surgery must be performed sooner rather than later. 

The district court concluded that the theory relied on by the doctors was not a scientifically reliable theory of medical causation and disallowed the expert testimony. Without his experts’ testimony, Lorenzen could not prove causation or damages, and so the district court granted summary judgment in favor of Pinnacol. 

On appeal, Lorenzen contended the district court erred in excluding his expert testimony. 

He maintains that the court imposed too stringent a causation standard and that, even under the standard applied by the court, he presented a reliable and relevant theory of causation that satisfies CRE 702. Lorenzen also contended that the district court erred in entering judgment for Pinnacol, as he retained a claim for noneconomic damages that did not require expert testimony. The court rejected his contentions and affirmed the district court.

People v. Delgado

Defendant Lupe Delgado appealed the district court’s order summarily denying his motion for post-conviction relief based on ineffective assistance of counsel. The appeals court reversed the order in part and remanded the case for a hearing on Delgado’s claim that his attorney incorrectly advised him about his sentencing exposure, leading him to reject a favorable plea offer. 

In so deciding, the appeals court concluded the U.S. Supreme Court’s decisions in Lafler v. Cooper and Missouri v. Frye overruled the Colorado Supreme Court’s decision in Carmichael v. People on two points: (1) the test for showing prejudice where an attorney incorrectly advises a defendant in plea negotiations, resulting in the defendant rejecting a plea offer, and (2) the remedies available where a defendant in these circumstances shows both ineffective assistance and prejudice. Otherwise, the Court of Appeals affirmed.

People in Interest of D.M.

Section 18-1.3-603(1), C.R.S. 2018, says every order of conviction for a criminal offense, with certain exceptions, must “include consideration of restitution.” And unless the sentencing court finds that no victim suffered a monetary loss, the court must order the defendant to pay restitution to the victim. Likewise, a juvenile whom the court has judged delinquent must pay restitution for a victim’s loss of personal property. 

But what if the victim’s monetary loss is the value of marijuana stolen from the victim’s marijuana store? Can a defendant be required to pay restitution for such loss? 

D.M., a juvenile who stole marijuana from a marijuana store, says “no,” contending that because the Federal Controlled Substances Act 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. 

In short, he contended the CSA preempts the restitution statutes in these circumstances. But the court did not see any positive conflict between the CSA and the restitution statutes, the judges rejected D.M.’s preemption argument and affirmed the restitution order.

People in the Interest of B.D.

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. B.D. was found delinquent for two counts of felony burglary — one count for each home — 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. With respect to the adjudication for theft against an at-risk person, B.D. was adjudicated only as a complicitor. 

On appeal, B.D. contended the magistrate erred in denying his motion to suppress and in finding him a complicitor on the enhanced theft charge. The appeals court was not persuaded the magistrate erred in his suppression ruling, but did conclude that, applying People v. Childress, there was insufficient evidence to adjudicate B.D. as a complicitor to theft from an at-risk person. 

In Childress, the Colorado Supreme Court held a complicitor can be held criminally responsible for a strict liability crime committed by another person if evidence exists that the complicitor (1) intended that the principal would commit the strict liability crime and (2) was aware of those circumstances attending the act or conduct he or she sought to further that were necessary for commission of the offense in question. 

In this case, the appeals court applied that holding to a statute that enhances the penalty for a theft that is committed “in the presence of” an at-risk person. The court concluded the Childress analysis applies to a strict liability sentence enhancer. Because the court also concluded there was no evidence B.D. was aware that the principal would commit the burglary “in the presence of” an at-risk person, the court reversed the judgment for felony theft and remanded the case for resentencing. The court affirmed the judgment in all other respects.

Southern Cross Ranches v. JBC Agricultural Management 

JBC Agricultural Management entered into separate contracts to buy cattle from plaintiffs Southern Cross Ranches and Ranch Management (referred to collectively as the sellers). In turn, JBC contracted to sell the cattle to Crystal River Meat, its subsidiary (collectively, buyers). 

Sellers brought this action alleging JBC breached the contracts by failing to make any payments. JBC counterclaimed alleging, as relevant here, that after the initial payment deadlines had been extended, sellers breached the contracts by failing to certify, source, feed, and care for the cattle as required by the contracts, and then by failing to provide adequate assurances that they would do so. Crystal River intervened and made similar allegations in a third-party complaint. After substantial discovery, JBC moved for summary judgment on its breach of contract counterclaim.

Under C.R.C.P. 56, summary judgment is proper only in the absence of any disputed issue of material fact. 

But if the nonmoving party fails to oppose a summary judgment motion, must the trial court examine the entire record on file for factual disputes, or may the court limit its analysis to materials cited in the motion? 

Prior to this case, this question had been unresolved in Colorado and had divided the federal courts until a 2010 amendment to Federal Rules of Civil Procedure 56(c)(3), which now states “[t]he court need consider only the cited materials, but it may consider other materials in the record.” 

The court concluded a trial court is not required to review the entire record on file for factual disputes before ruling on a summary judgment motion. 

Even so, the court further conclude that in this case the trial court abused its discretion by making inconsistent rulings, first denying and then granting summary judgment, without explanation. 

Therefore, the court reversed the summary judgments and remanded for further proceedings.

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