COLORADO SELECT CASE LAW UPDATE

Colorado Court of Appeals

Redden v. Clear Creek Skiing Corporation — Court of Appeals enforces exculpatory agreement by ski resort – 2020COA176 (CA 12/24/20). Redden was hurt as she attempted to exit the Ptarmigan ski lift, located in the Loveland Ski Area. The Court of Appeals considered whether ski area operators can, by means of exculpatory agreements, protect themselves from lawsuits arising from the alleged negligence of their employees. At issue in this case is the validity of two exculpatory agreements—one in connection with a purchase of ski equipment, the other on the back of a lift ticket—purporting to bar claims by a skier injured while getting off a ski lift. The two judges in the majority concluded that the exculpatory agreements are not only valid, but that they also do not undermine public policies underlying the Colorado Passenger Tramway Safety Act. This was a 2-1 decision, so we likely have not heard the last of it.

Tuscany Custom Homes, LLC v. Westover —Court of Appeals holds unsigned post-mediation writing is not admissible without supporting admissible evidence – 2020COA178 (CA 12/24/20) The parties went to mediation, but due to the mediator’s computer problems, mediation was concluded without the parties signing any document memorializing an agreement. Instead, the mediator sent an email summarizing the parties’ settlement terms to serve as the basis for preparing a formal Mutual Release and Settlement Agreement by Tuscany’s counsel. The parties agreed, through emails, that the terms were correct, and Tuscany’s counsel drafted and distributed a draft agreement. The Westover defendants refused to sign the agreement, but the other parties signed. Tuscany filed a motion to enforce a settlement agreement, which the Platenaks joined. They alleged that an oral settlement agreement was formed in the mediation proceeding, and they attached the mediator’s email and the draft agreement. The Westover defendants denied that an enforceable agreement existed. In a deposition, the mediator confirmed that the parties had reached agreement and the terms in his email and the subsequent emails accurately reflected that agreement. The Court of Appeals considered the scope and application of the statutory protection for mediation communications. Mediation communications are generally inadmissible in a judicial proceeding. Here the question was whether this protection applies to a mediation communication as well as to evidence that discloses information concerning a mediation communication. Here it was an unsigned, post-mediation writing offered to prove the existence and terms of an oral agreement reached during a mediation proceeding. Because such an unsigned writing is inadmissible, a party cannot prove the existence or terms of an agreement reached at mediation unless it is reduced to writing and fully executed or the party can present other, admissible evidence of the agreement.

Other cases of interest

American Guarantee & Liability Insurance Co. v. ACE American Insurance Co. – Primary insurer found responsible to secondary carrier for excess verdict – Docket: 19-20779 (5^th Cir. 12/21/20). After Mark Braswell died when his road bike collided with a stopped truck, his survivors filed suit against the truck’s owner, the Brickman Group. Brickman was primarily insured by ACE and secondarily insured by Plaintiff AGLIC. ACE rejected plaintiffs’ three settlement offers before and during trial. The jury ultimately awarded plaintiffs nearly $28 million, plaintiffs and Brickman settled for nearly $10 million, and AGLIC paid nearly $8 million of the amount. AGLIC then filed suit against ACE, arguing that because ACE violated its duty to accept one of the three settlement offers for the primary policy limits, ACE had to cover AGLIC’s settlement contribution. The district court agreed, and the Fifth Circuit affirmed the district court’s judgment and held that ACE’s duty was triggered by plaintiffs’ third offer, and that ACE violated this duty. In this case, the offer generated a duty because it “proposed to release the insured fully” and it was not conditional. Furthermore, the evidence was sufficient to support that ACE violated its Stowers duty by failing to reevaluate the settlement value of the case and accept plaintiffs’ reasonable offer.