Court Opinions: Colorado Supreme Court Opinions for April 22

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Matter of John F. Kennedy

This attorney reciprocal disciplinary proceeding provided state courts an opportunity to clarify whether the five-year limitation period in Colorado Rule of Civil Procedure 242.12 for bringing an attorney disciplinary action applies to reciprocal disciplinary proceedings brought under the rule.

In July 2016, the District of Columbia Office of Bar Counsel initiated formal disciplinary proceedings against attorney John Kennedy for alleged misconduct from 2008 through 2009. These proceedings weren’t resolved until Aug. 25, 2022, when the D.C. Court of Appeals issued an order disbarring Kennedy in the district. D.C. Bar Counsel notified Colorado’s Office of Attorney Regulation Counsel of Kennedy’s disbarment the same day.

Less than three months later, on Nov. 14, 2022, OARC filed a reciprocal disciplinary complaint against Kennedy under Rule 242.21. Following cross-motions for summary judgment in the resulting proceedings, the Presiding Disciplinary Judge ordered Kennedy to be reciprocally disbarred in Colorado.

Kennedy appealed the PDJ’s order, raising two arguments. First, he contended this reciprocal disciplinary case is time-barred under Rule 242.12’s five-year rule of limitation because it was initiated more than five years after the underlying conduct was discovered. 

Second, he contended the PDJ erred in granting OARC’s motion for summary judgment when there were genuine issues of material fact concerning his affirmative defenses under Rule 242.21(a)(3) and (a)(4). Specifically, Kennedy argued the D.C. Court of Appeals didn’t determine his misconduct was committed intentionally, and because both of his affirmative defenses turned on his state of mind, resolution of the case on summary judgment was improper.

The Colorado Supreme Court concluded the rule of limitation in Rule 242.12 doesn’t apply to reciprocal disciplinary proceedings brought under the rule. The Supreme Court held in this case the PDJ didn’t err in declining to find the respondent attorney’s reciprocal disciplinary case barred by Rule 242.12. It also held the PDJ properly granted the motion for summary judgment and affirmed the PDJ’s order reciprocally disbarring Kennedy in Colorado. 

Scholle v. Ehrichs

In this medical malpractice case, the Colorado Supreme Court considered the interrelationship between the collateral source statute and the Health Care Availability Act. The specific question presented was whether the contract exception to the collateral source statute applies in a post-verdict proceeding under the HCAA seeking to reduce a jury’s damages award in a medical malpractice action. 

A split division of the Colorado Court of Appeals answered this question no, holding a trial court may properly consider collateral source evidence when determining whether good cause exists to allow a prevailing plaintiff in a medical malpractice case to exceed the $1 million statutory damages cap set in the HCAA.

The state Supreme Court concluded the contract exception to the collateral source statute prohibits a trial court from considering this type of evidence regarding a plaintiff’s insurance contract liabilities in making its good cause determination under the HCAA and that Section 13-64-402 of the Colorado Revised Statutes doesn’t compel a different result.

The high court reversed the portion of the division majority’s opinion holding a trial court may properly consider a prevailing plaintiff’s insurance contract liabilities as part of the court’s good cause and unfairness determinations under the HCAA. 

It affirmed the rest of the division majority’s judgment and remanded the case for the trial court to recalculate interest and enter judgment accordingly. On remand, the Colorado Supreme Court noted a new good cause determination is unnecessary because the trial court properly declined to consider Scholle’s insurance contract liabilities and as the division majority concluded, the record supports the trial court’s application of the five remaining factors. 

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