June 2016 Case Law Update

AVALANCHES ARE AN INHERENT RISK TO SKIERS UNDER STATUTE

Fleury v. IntraWest Winter Park Operations Corp. (SC 05/31/10). The Colorado Supreme Court held that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger and risk of skiing” under the Ski Safety Act and thus the ski area is not liable to a skier killed in an avalanche. The Court held that the definition of “inherent dangers and risks of skiing” in the statute specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, is the movement, or changing condition, of snow. Skiers are precluded by statute from recovering for injuries resulting from in-bounds avalanches.

TENTH CIRCUIT REVERSES ORDER COMPELLING ARBITRATION IN ADA CASE

EEOC v. PJ Utah, LLC – Docket: 15-4079 (10^th Cir. 05/18/16). The EEOC brought a civil enforcement action against three Papa John’s entities for violating the Americans with Disabilities Act by denying a reasonable workplace accommodation to the appellant, Scott Bonn, and for firing him for requesting this accommodation. Bonn moved to intervene in the EEOC action, but the district court determined that Bonn’s claim was subject to arbitration under an agreement that Bonn’s mother had executed. Based on this determination, the district court denied the motion to intervene and ordered Bonn to arbitrate his claim. Bonn appealed the denial of his motion to intervene and the order compelling arbitration. TheTenth Circuit concluded that the arbitration agreement did not curtail Bonn’s unconditional statutory right to intervene. Accordingly, the Court reversed the denial of the motion to intervene. Furthermore, the Court concluded that it lacked appellate jurisdiction over the order compelling arbitration. “Although the district court ordered Mr. Bonn to arbitrate his claim, that order did not affect the EEOC’s claim against Papa John’s, which remains pending. Because that claim remains, the order compelling arbitration did not constitute a ‘final decision,’ which is necessary for appellate jurisdiction over an order compelling arbitration. Therefore, we dismiss this part of Mr. Bonn’s appeal.”

SUPREME COURT ENFORCES ‘NO VOLUNTARY PAYMENT’ CLAUSE IN POLICY, EXCUSES CARRIER OF OBLIGATION TO INDEMNIFY.

Travelers Prop. Casualty Co. v. Stresscon Co. (SC 04/25/16). Stresscon had voluntarily settled the claim against it without informing its insurance carrier in violation of the no-voluntary-payments clause of their insurance contract. Traveler’s argued that Stresscon’s actions had relieved it of any obligation to indemnify Stresscon for payments Stresscon had made without its consent. In a 4-3 decision, the Supreme Court reversed the judgment of the Court of Appeals, holding that its adoption of a notice-prejudice rule did not overrule any existing “no-voluntary payments” jurisprudence in Colorado, and the Court declined to extend its notice-prejudice reasoning to Stresscon’s voluntary payments, which were made notwithstanding the contractual prohibition of the no-voluntary payments clause of its insurance contract with Travelers. The Court remanded the case with directions that the jury verdict be vacated.