Tenth Circuit Court of Appeals 

Jody Blatchley v. St. Anthony Summit Medical Center– Courtremands due to error in denying designation of non-party after settlement – No. 18-1231 (10th Cir. 8/17/20). This medical malpractice case is about double recovery. Plaintiff Jody Blatchley alleges that he suffered permanent disability because of the negligence of medical staff while he was receiving care at St. Anthony Summit Medical Center. After he and his wife Delfina Blatchley filed suit, they settled with the orthopedic surgeons and physician assistants responsible for Blatchley’s care but not with St Anthony’s, which employed his nurses. St. Anthony’s filed a nonparty designation stating that the surgeons and PAs were wholly or partially at fault. The district court struck the designation and at trial refused to instruct the jury on comparative fault. The Tenth Circuit concluded that the district court committed legal error when it interpreted § 13-21-111.5 to require that St. Anthony’s provide a notice compliant with Redden. It thus abused its discretion by striking St. Anthony’s first amended designation of nonparties. This abuse of discretion was prejudicial. If the court had not struck the designation, St. Anthony’s would have been able to present evidence at trial of the settling defendants’ negligence. Further, the court would have given a jury instruction consistent with Greenemeier,allowing the jury to allocate fault to the settling defendants. Ultimately, the court’s error resulted in double recovery for the Blatchleys on the same injuries and the matter was reversed.

Bethel v. Berkshire Hathaway Homestate Ins.–Finding ‘actual cash value’ was an ambiguous term, Court remands for specific determination; affirms summary judgment on debris coverage – No. 19-1262 (10th Cir. 8/10/20). Bethel had purchased property from a friend and added it to his existing policy. The property was insured for its ‘actual cash value’, a term not defined in the policy. Before the litigation, Berkshire Hathaway paid an appraised amount of $109,000 and also advised Bethel of the debris removal coverage provision. Bethel sued for $407,000, bringing all the standard claims. Bethel argued that “actual cash value”means “replacement cost minus depreciation.” He therefore contended that BerkshireHathaway breached the Policy by using the property’s market value in compensatinghim. In contrast, Berkshire Hathaway argued that the term “actual cash value”unambiguously permits it to use market value in valuing the property. The districtcourt agreed with Berkshire Hathaway, concluding that the use of the term “actualcash value” unambiguously allowed several possible methods of valuation, includingmarket value, and that Berkshire Hathaway therefore did not breach the Policy byusing the property’s market value. The Tenth Circuit found the term ‘actual cash value’ ambiguous, rejected both Bethel’s and Berkshire Hathaway’s arguments, and remanded the case to the district court for full consideration of extrinsic evidence bearing on the parties’ intended meaning of “actual cash value.” As to the debris removal coverage, Bethel only submitted a bid for removal, but had not occurred any expense for removal. The Court found that, absent performance by Bethel, summary judgment was not in error.