High Court Highlights

The Colorado Supreme Court will hear oral arguments on the rescue doctrine, a life insurance case and whether a judge erred in allowing his wife on a jury

The Colorado Supreme Court will hear oral arguments this week in six cases that raise questions about the legislature’s ability to delegate power, the right to a fair trial, the definition of a “rescuer” and ethical responsibilities of attorneys and judges. The state’s highest court will hear arguments Tuesday in the following cases.

Power to Preempt

Plaintiff’s lawyers and the insurance industry will be watching to see what the Colorado Supreme Court decides in Amica Life Insurance v. Michael Wertz, the first case to be heard this week.

The question before the court is whether the state legislature may delegate power to an interstate administrative commission to approve insurance policies sold in Colorado under a standard that differs from state statute.

Wertz is the beneficiary of an Amica Life Insurance policy on the life of Martin Fisher, who died by suicide 13 months after the policy was taken out. Under Colorado statute, a life insurance provider can’t deny claims for suicide after the first policy year. But Amica denied Wertz the death benefit, citing the policy’s two-year suicide exclusion — an exclusion the insurer says is allowed under a rule made by the Interstate Insurance Product Regulation Commission. 

The industry-funded commission was created by the Insurance Product Regulation Compact, which 44 states have adopted, including Colorado. Amica argues the compact allows the commission to adopt standards for commission-approved insurance policies that differ from state statutes. 

However, attorneys for Wertz argue that if the commission’s standards can preempt state statute, “the Commission is exercising a power that is purely legislative and cannot be delegated.” This delegation of power, they argue, violates Colorado’s constitutional separation of powers guarantee.

The question made its way to the state’s highest court after a federal district court made a summary judgment ruling in favor of Amica. Wertz appealed that decision, and the 10th Circuit certified the separation of powers question to the Colorado Supreme Court.

A Courthouse Marriage

Everyone has the right to a fair trial. But how fair is that trial if the presiding judge is married to one of the jurors?

The Colorado Supreme Court will hear arguments on whether a trial judge reversibly erred in permitting his wife to serve on a jury in a criminal case over which he presided. 

The defendant in the trial, Gary Richardson, argues his conviction on assault and other charges should be reversed because the presence of the judge’s wife on the jury amounted to structural error. According to Richardson, the couple’s relationship and interactions in the courthouse (including banter about their dinner plans and the judge’s comments that his wife would be “a fine juror”) negatively affected the perception of fairness and impartiality among trial participants and the public. 

The state argues that the U.S. Supreme Court and Colorado Supreme Court have only found structural error in cases involving denial of counsel, coerced confessions, racial discrimination in jury selection, biased judges and a handful of other situations, none of which are relevant to Richardson’s claims. The state also says Richardson’s trial lawyers knew the judge’s wife was among the potential jurors and chose not to challenge her selection, thereby waiving his complaint on appeal.

In 2018, the Court of Appeals majority concluded that the defense forfeited the right to a jury free of the judge’s wife because it failed to object at trial.  The majority also found the wife’s presence on the jury didn’t constitute structural or plain error. 

“While we cannot endorse the judge’s decision here, even assuming error we affirm because Richardson can show no prejudice resulting from this juror’s presence,” said the majority opinion upholding Richardson’s conviction.

To the Rescue?

Also on Tuesday, the state’s highest court will hear arguments about who qualifies as a “rescuer” under the rescue doctrine. 

One night in 2014, Jose Garcia tried to help a cab driver who was being attacked by a passenger, but he ended up with serious injuries of his own after the attacker turned on him. 

Garcia sued Colorado Cab for negligence under a rescue doctrine theory. A trial court jury found the cab company’s negligence caused Garcia’s injuries and that he suffered more than $1.6 million in damages, allocating 45% fault to Colorado Cab and 55% fault to the attacker. 

Colorado Cab asked for the judge to overrule the jury’s decision, but the court found the company had a duty to protect its driver, and failure to do so could result in injury to a third-party rescuer. “Almost by definition, the duty to a rescuer arises from the breach of a duty owed to another,” the court concluded.However, the Court of Appeals reversed the verdict, saying that Garcia didn’t qualify as a “rescuer”— a status the court said requires “concrete physical activity” involving “bodily movement and effort” to save a person in danger. The COA said Garcia didn’t meet this standard because “he didn’t, for example, get between the two men or try to pull one away from the other.” 

On the night of the attack, Garcia opened the taxi door and verbally confronted the attacker, at which point the attacker turned on Garcia and the driver fled on foot. The attacker then ran Garcia down with the taxi.

The Colorado Supreme Court will hear oral arguments in the case to determine whether the COA improperly narrowed the standard for determining rescuer status. Garcia argues the COA was wrong to focus on the physicality of his rescue attempt, rather than the fact that he intervened in the attack, allowing the driver to escape. Colorado Cab, in its filings to the high court, defends the COA’s “physical action” standard, citing findings in other rescue doctrine cases. 

— Jessica Folker

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