COLORADO SELECT CASE LAW UPDATE

Colorado Supreme Court

State v. Ctr. for Excellence in Higher Educ., Inc.—CCPA remedies are equitable and thus defendant not entitled to jury—2023 CO23 (05/15/23). This case was a civil enforcement action under the Colorado Consumer Protection Act and the Colorado Consumer Credit Code (“UCCC”). The issue was whether the Court of Appeals erred when it (1) concluded that civil penalty claims under the CCPA are equitable and thus that CollegeAmerica was not entitled to a jury trial on those claims; (2) remanded the case for a new trial on each of the State’s CCPA claims; and (3) concluded that section 5-6-112(3)(a) of the UCCC requires individualized evidence (e.g., evidence regarding specific consumers) in determining whether CollegeAmerica’ s loan program was unconscionable. The Supreme Court concluded that the division below properly determined that CCPA’s civil penalty claims are equitable in nature and thus do not entitle CollegeAmerica to a jury trial on those claims. The Court further concluded that the division erred in remanding the case for a new trial without first assessing whether the parties had a full and fair opportunity to litigate the issue of significant public impact and, if so, whether the evidence sufficiently established such an impact. Last, the Court concluded that the division correctly determined that CollegeAmerica’ s loan program was not unconscionable, although it disagrees with the COA’s conclusion that individualized evidence regarding the probability of repayment was necessary to establish unconscionability.

Colorado Court of Appeals

People v Perkins—Strict compliance with industry standards publication not necessary for admissibility of expert opinion—2023COA38A (05/04/23). Division of the Court of Appeals holds that the standards set by the National Fire Protection Association (NFPA) and specifically NFPA 921 [Guide for Fire and Explosion Investigations], constitute a reliable basis for an expert’s opinion, under People v. Shreck, 22 P.3d 68 (Colo. 2001). As a matter of first impression, the division further holds that strict compliance with NFPA 921 is not required for an expert’s testimony to be admissible under CRE 702, and that deviations from NFPA 921 go to the weight of the expert’s opinion and not the opinion’s admissibility.

Heights Healthcare v. BCER—COA holds Homeowner Protection applies to commercial property—2023COA44 (05/25/23). In this construction defect case, a division of the court of appeals reverses a trial court order enforcing a limitation of liability provision in the parties’ contract (the division also rejected defendant’s cross-appeal of the trial court’s verdict finding it liable for breach of contract). In resolving this appeal, the division interpreted a provision of the Homeowner Protection Act of 2007. The HPA provides that “any express waiver of, or limitation on, the legal rights, remedies, or damages” provided by CDARA to “claimants asserting claims arising out of residential property” “are void as against public policy.” Applying HPA, the trial court determined that a limitation of liability clause in the parties’ contract was enforceable by the defendant against the plaintiff because “the property in question in this case was zoned ‘commercial’ at the time that the parties entered into the contract.” In Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co., 2017 COA 31, the Court of Appeals held that the HPA’s prohibition against enforcement of limitation on the accrual of claims protected the owners of a senior living facility when the property was located on a parcel zoned “for residential use only.” In this case, the Court addresses a question left open by the division in Broomfield Senior Living — namely, whether the residential living quarters of a senior living community located on a parcel that is zoned “commercial” or “mixed use” constitutes “residential property” that is protected by the HPA. The Court concluded that it does and reversed the trial court’s determination that the limitation of liability is valid and enforceable. The Court further concluded that the record supports the trial court’s finding that defendant breached the parties’ contract and that that breach is not excused by any alleged breach by the plaintiff.

Tenth Circuit Court of Appeals

Giertz v. State Farm—Bifurcation of liability from bad faith—Docket: 22-2224 (10^th Cir. 05/26/23). Giertz was injured in an automobile-bicycle accident involving Gordon. Giertz sought underinsured motorist benefits from State Farm, her automobile liability insurer. The district court severed for trial Giertz’s contract claim from her common-law and statutory bad faith claims. It concluded that by first resolving whether State Farm breached its contract with Giertz, the court could potentially save time and resources. The Tenth Circuit held the district court did not abuse its wide discretion in severing the issue of Gordon’s liability from the remaining breach issues and from the bad faith claims. The liability issue is separate from the remaining breach issues and bad faith claims. The district court reasonably concluded bifurcation would further efficiency, while minimizing prejudice and confusion. The appellate court continued that the district court correctly concluded, pursuant to the dictates of Sunahara, that State Farm’s internal claim deliberations were legally irrelevant to the question of Gordon’s liability. [Note: the case is not binding precedent but may be cited for persuasive value].

Health and Hospital Corp. of Marion County v. Talevski—Federal Nursing Home Reform Act—Docket: 21-806 (6/8/23). After Talevski’s move to a nursing home proved problematic, Talevski sued a county-owned nursing home [Plaintiff] under 42 U.S.C. 1983, claiming that HHC’s actions violated rights guaranteed him under the Federal Nursing Home Reform Act (FNHRA). The Seventh Circuit reversed the dismissal of the suit, concluding that the FNHRA rights cited by Talevski—the right to be free from unnecessary chemical restraints and rights to be discharged or transferred only when certain preconditions are met, “unambiguously confer individually enforceable rights on nursing home residents,” presumptively enforceable via section 1983. The Supreme Court affirmed. The FNHRA provisions at issue unambiguously create section 1983-enforceable rights. There is no incompatibility between private enforcement under section 1983 and the remedial scheme that Congress devised. The Court rejected HHC’s argument that, because Congress apparently enacted the FNHRA pursuant to the Spending Clause, Talevski cannot invoke section 1983 to vindicate rights recognized by the FNHRA. FNHRA lacks any indicia of congressional intent to preclude section 1983 enforcement, such as an express private judicial right of action or any other provision that might signify that intent. Plaintiff cited the comprehensiveness of FNHRA’s enforcement mechanisms, but implicit preclusion is shown only by a comprehensive enforcement scheme that is incompatible with individual enforcement under section 1983. There is no indication that private enforcement under section 1983 would thwart Congress’s scheme by circumventing the statutes’ pre-suit procedures, or by giving plaintiffs access to tangible benefits otherwise unavailable under the statutes.

United States Supreme Court

Dupree v. Younger—Post-trial appeal of strictly legal decision is unnecessary—Docket: 22-210 (05/25/23). A post-trial motion under Federal Rule of Civil Procedure 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment. Holding that a reviewing court does not benefit from having a district court reexamine a purely legal pretrial ruling, the Court resolved a conflict among circuits and found a strictly legal decision is not “supersede[d]” by later developments in the litigation and so such rulings merge into the final judgment, at which point they are reviewable on appeal.