COLORADO SELECT CASE LAW UPDATE

Colorado Supreme Court

People v. Garcia— Process service document can be admitted without evidentiary foundation as it is not testimonial – 2021 CO 7 (2/1/21). Michael Garcia was convicted of violating a protection order. A document was offered into evidence at Garcia’s trial to prove that he had received notice of the protection order and had therefore violated it by remaining in the apartment. It was admitted even though the individual who served the order did not testify; meaning, Garcia could not cross-examine him about the order served or the service itself. The Supreme Court concluded that the return of service was not testimonial hearsay, and therefore its admission did not violate Garcia’s constitutional right to confrontation.

Ryser v. Shelter Mutual Insurance- Insurance – Worker’s comp exclusivity provision bars UM/UIM recovery 2021 CO 11 (2/16/21). The Supreme Court addressed the interplay between the uninsured/underinsured motorist statute and the Workers’ Compensation Act. Specifically, the question was whether an injured passenger riding in a vehicle negligently driven by one co-worker and owned by another co-worker [all three were within the course and scope of their employment] may recover UM/UIM benefits under the vehicle owner’s insurance policy. The parties briefed the meaning of the phrases “legally entitled to recover” and “legally entitled to collect” under section 10-4-609, but the Court determined it did not need to resolve that dispute because assuming, without deciding, that the plaintiff’s definition is correct, the court concluded that the plaintiff still could not prevail. It concluded that an injured co-worker is barred by operation of the work comp exclusivity provisions from recovering UM/UIM benefits from a co-employee vehicle owner’s insurer.

State Farm Mutual Automobile Insurance Company v. Gary J. Griggs and Susan Goddard — Court affirms verdict in favor of insurer in Nunn assignment case – 2021 COA 15 (2/11/21). State Farm insured Griggs under an auto insurance policy. Griggs injured Goddard and two others in a four-vehicle accident. Goddard and the other injured persons each made a claim under the policy. State Farm made an offer to settle Goddard’s claim, but Goddard did not respond. State Farm settled with the other injured persons. In the meantime, Goddard sued Griggs. State Farm did not learn of the lawsuit until after its settlement offer. State Farm hired an attorney to defend Griggs against Goddard’s claims. Griggs and Goddard entered into an agreement whereby Griggs admitted liability, agreed to have Goddard’s damages determined in arbitration, and assigned any claims he might have against State Farm to Goddard (the agreement). An arbitrator entered an award against Griggs for $837,193.36. After arbitration, State Farm sued Griggs seeking a declaration that Griggs breached his insurance contract by entering into the agreement with Goddard. Goddard brought a bad faith counterclaim against State Farm. A jury returned a verdict in favor of State Farm. On appeal, Goddard argued that the district court erred by denying her motion for directed verdict on State Farm’s breach of contract claim because the claim raised exclusively legal questions and it failed on the facts. The division held that, before an insured is justified in stipulating to a judgment and assigning its claims against its insurer to a third-party claimant Nunn v. Mid-Century Insurance Co., 244 P.3d 116 (Colo. 2010), it must first appear that the insurer has unreasonably refused to defend the insured or to settle the claim within policy limits. Here, whether State Farm appeared to have acted unreasonably in denying Goddard’s policy-limits settlement offer and, consequently, whether Griggs breached the insurance contract by entering into the assignment agreement were questions of fact to be determined by the jury. Therefore, the district court did not err in denying the directed verdict motion. Lastly, Goddard argued that the district court erred by admitting her attorney fees agreement because it was irrelevant and prejudicial. However, the fee agreement was relevant to the causation element of Goddard’s counterclaim for bad faith breach of insurance contract and to State Farm’s collusion affirmative defense, and it was not unfairly prejudicial. Accordingly, the court did not abuse its discretion in admitting it.