COLORADO SELECT CASE LAW UPDATE

Colorado Court of Appeals

Mitchell v. Xu – Court of Appeals holds statutory offer includes actual costs incurred predating the offer – 2021 COA 39 (03/11/21). Defendant made two pretrial statutory offers of settlement, which plaintiff declined. The first proposed to settle “all claims” for $3,500 “inclusive of costs.” The second proposed to settle “all claims” for $5,000 but made no explicit reference to costs. A jury awarded plaintiff $2,700 in economic damages, and the court entered judgment. Following trial, plaintiff claimed costs as a prevailing party, and defendant claimed that she was entitled to her actual costs because her second offer of settlement exceeded plaintiff’s recovery. The court examined the prejudgment interest accrued before each offer of settlement but only considered the costs incurred before the first offer, based on the lack of reference to costs in the second offer. It awarded plaintiff $829.10 in costs and $331.43 in pre- and post-judgment interest and awarded defendant $12,370.31 in costs. On appeal, plaintiff argued that the district court misapplied the law by excluding the actual costs she incurred before the second offer. The Court held that a plaintiff may be awarded actual costs only if the final judgment, which is the amount that disposes of the entire litigation, exceeds the offer of settlement. If a final judgment does not exceed the offer of settlement the defendant may recover costs. A statutory offer of settlement under CRS § 13-17-202 purporting to cover “all claims” includes actual costs predating the offer, so when evaluating an offer of judgment against trial success a “final judgment” must include the plaintiff’s actual costs accrued before the settlement offer. Here, when plaintiff’s actual costs accrued before the second settlement offer are included, her final judgment amount would be $6169.61, which exceeds the amount of defendant’s settlement offer. Accordingly, the Court reversed, finding plaintiff was entitled to costs.

United States District Court – Colorado

Owners Insurance Co v. 11380 East Smith Road, LLC – Daubert challenge precludes testimony 17-cv-00346 (Brimmer 3/17/21). Owners moved to strike opinions of Ed Fronapfel on repair cost estimates. First, the Court held that Smith Road’s filing a supplemental affidavit in support of his opinion was not permitted. Next, finding the expert’s failure to provide methodology for his opinion was lacking and that ipse dixit was an insufficient basis for permitting the opinion and that The Court also finds that merely providing the Xactimate report without an explanation as to the basis for the data being entered and that relying on the opinion of another is not permitted without providing an ‘independent judgment.’

Clifton v. State Farm – Court enters a variety of challenges to exclude expert opinions – 18-cv-01231 (Krieger 03/23/21). Plaintiff’s challenged Ellis Mayer’s opinions. These challenges were generally denied because Plaintiff did not meaningfully identify the opinions, or mis-stating and misconstruing Mayer’s opinions. The Court made a distinction between opinions usurping the role of the jury and the opinions being articulations of industry standards and methodology. State Farm challenged opinions of claimant expert Elliot Flood. Flood opined that, based on his experience, it was common for people in auto accidents to go home and rest rather than seek medical treatment. However, since he did not tie his experience to the opinion, the court granted the motion to preclude this testimony. Similarly, Flood’s opinion that a carrier should make payments of any underpaid amount within a week was not permitted as Flood’s experience was again not tied to that opinion. Lastly, the Court addressed several of Dr. Douglas Scott’s opinions. The Court permitted the use of a differential diagnosis not to arrive at a conclusive diagnosis but to focus attention on the most probably explanation of symptoms is proper. Next, Dr. Scott’s opinion that the impact speed of the rear-end accident was less than 16 m.p.h. [he found that on the internet] was found to be admissible as a factual assumption that made his opinion conditional but nonetheless admissible. Dr. Scott was also permitted to recite part of the Traffic Accident Report that he relied upon for his opinions [nothing new there]. Finally, Plaintiff challenged Scott’s use of the Worker’s Comp Treatment Guidelines and comparing to Plaintiff’s treatment. The Court found this comparison was also proper expert testimony.

McCaffrey v. Great Northern Insurance Company – Court vacates appraisal award for failure to perform full scope – 18-cv-1052-WJM-KLM (Martinez 01/29/21). Plaintiffs [Yes, it is Ed and wife] began a home renovation. During the renovation, the contractor advised Plaintiffs of potential water damage. Plaintiffs made a claim under the Defendant’s policy. During the inspection, Defendant’s expert observed certain construction deficiencies and deterioration of building materials from the home’s original construction. Defendant paid some of the cost of repair including the cost of the intrusive testing but asserted exclusions and policy provisions in denying portions of the damages. Plaintiffs demanded an appraisal to determine: (1) the amount of loss for damage attributable to the intrusive testing; and (2) the amount of loss for the damage to Plaintiffs’ home from the water damage claim originally reported. The appraiser entered an award as to the amount of damages attributable to the intrusive testing, but did not enter an amount for the damages resulting from the water intrusion. Holding that disputes regarding coverage determinations are to be resolved by the Court and should not affect the Umpire’s analysis, the Court nonetheless found that the Umpire’s failure to analyze the losses relating to Plaintiffs’ water claim improperly reduced the scope of the appraisal decision. As a result, the Umpire’s decision was vacated.

Anchondo-Galaviz v. State Farm Mutual – Judge Kane holds med lien is not collateral source but is not admissible; and that jury can be advised of statutory damages – 18-cv-01322 (Kane 02/08/21). This civil action arises out of an insurance dispute between Plaintiff Abril Anchondo-Galaviz and her insurer, Defendant State Farm Automobile Insurance Company, regarding her first-party claim for UIM benefits. Judge Kane held that Marrick simply purchased Ms. Anchondo-Galaviz’s medical debt, and she remains contractually obligated to Marrick for the full value of her medical bills. In that fashion, Marrick became Anchondo-Galaviz’s creditor, and not a collateral source conferring a benefit on her. However, the judge did hold that evidence of the amount Marrick paid for the medical services here should be excluded pursuant to Federal Rule of Evidence 403. Judge Kane also held that, because State Farm’s defense to her claim alleging unreasonable delay or denial is that Ms. Anchondo-Galaviz and her agents manufactured delays and obstructed State Farm’s efforts because they were motivated by the statutory damages, the existence of and content of the statutory award provision was therefore relevant and has probative value.