State & Federal Cases Reported by Zupkus & Angell Attorneys

CFC Construction, Inc. v. Mountain States Mutual Casualty Company, 2007 WL 2200300 (Colo. App. 2007)(not selected for publication)(cert. denied)(“Your Work” exclusion precludes recovery of damages caused by general contractor; nominal award of damages for bad faith breach of contract not arbitrary and capricious; additional insured has standing to bring third-party claim).

Titan Indem. Co. v. Travelers Property Cas. Co., 181 P.3d 303 (Colo. App. 2007)(CGL policy exclusion for “professional services” was not ambiguous and precluded coverage).

Nationwide Mut. Ins. Co. v. Mrs. Condies Salad Co., Inc., 141 P.3d 923 (Colo. App. 2006), (cert. denied) (misrepresentation by insured regarding true ownership of vehicle insured under policy was not material).

Ayon v. Gourley, 47 F.Supp. 1246 (D. Colo. 1998) (Plaintiff brought sexual abuse suit against priest and Archdiocese, which were barred, in part, because plaintiff’s claims accrued at time of abuse, rather than date of subsequent psychological treatment.)

Geiger v. American Standard Insurance Company, 117 P.3d 16 (Colo. App. 2004) (Insurer required to send cancellation notice to wife, Named Insured, and non-driving spouse.)

Snipes v. American Family Mutual Insurance Company, 134 P.3d 556 (Colo. App. 2006) (Insured not entitled to unlimited enhanced personal injury (PIP) benefits under insurer’s reformed policy under former Auto Accident Reparation Act (No-Fault Act). Coverage limited to amount stated in the policy.)

Gotfredson v. Larsen, LP, 432 F. Supp.2d 1163 (D. Colo. 2006) (Contractors’ allegations set forth sufficient facts to satisfy relationship test for a pattern under RICO but did set forth sufficient allegations to establish closed or open-ended continuity required to prove parted under RICO, therefore, federal court denied subject matter and supplemental jurisdiction.)

Davis v. Casualty Reciprocal Exchange, et. al., 2003 WL 21716202 (Colo. App., 2003) (not selected for publication)

Gonzales v. Allstate Ins. Co., 51 P.3d 1103 (Colo.App. 2002) June 20,2002

Barker v. Allstate Ins. Co., 2002 WL 31684804 (Colo.App. 2002) (not selected for publication)

National Farmers Union Property and Cas. Co. v. Estate of Mosher, 22 P.3d 531 (Colo. App. 2000), cert. denied, (PIP coverage existed for decedent who was struck and killed on a public highway while driving his tractor. Court interpreted §10-4-707(1) (a) as providing coverage based on language of " 'any' motor vehicle" contained in the statute).

Perez v. Grovert, 962 P.2d 996 (Colo. App. 1998) (Lessor who has transferred possession and control over the leased premises to a lessee has no liability for injuries resulting from a dangerous condition of the premises).

Swank v. Four Winds Inc., 98-STA-4 (ALJ Nov. 18, 1998) (Employee bus driver properly maintained an STAA action for a retaliatory discharge for refusing to continue to drive after he made multiple complaints to his superiors that the windshield washer was inoperable on a day that he was driving over mountainous terrain roads that were partly covered with snow and ice and were wet with slush and water).

Goderstad v. Dillon Companies, Inc., 971 P.2d 693 (Colo. App. 1998) (Magistrate did not have authority to enter default as sanction for discovery violation).

Jones v. USAA Cas. Ins. Co., 952 P.2d 819, (Colo. App. 1997), cert. denied, (Duplication of benefits language in policy did not permit insurer to withhold loss of work payments where injured party was also receiving sick-pay benefits from her employer).

Aetna Cas. & Sur. Co. v. McMichael. 906 P.2d 92 (Colo.1995) (UIM coverage applied to employee's use of insured employer's truck, even though employee was not within vehicle at time of accident).

Ammons v. American Family Mut. Ins. Co., 897 P.2d 860 (Colo. App. 1995) (Colorado No-Fault Act requires reimbursement of reasonable and necessary transportation expenses incurred by claimant in obtaining authorized medical services. Plaintiff seeking reimbursement for transportation expenses denied class certification).

Allstate Insurance Co. v. Smith, 879 P.2d 458 (Colo. App. 1994), aff'd 902 P.2d 1386 (Colo. 1995), cert. Granted, (Colorado No-Fault Act requires reimbursement of reasonable and necessary transportation expenses incurred by claimant in obtaining authorized medical services).

In re Marriage of Purcell, 879 P.2d 468, (Colo. App. 1994) (Husband, appearing pro se, appealed trial courts decision to not award him attorneys' fees. Appellate court held his appeal frivolous, and thus awarded attorneys' fees to his ex-wife).

Ward v. Allstate Insurance Co., 45 F.3d 353 (10th Cir. 1994) (Sections for medical and rehabilitation expenses under Colorado No-Fault Act are separate and distinct coverages each subject to minimum $50,000 statutory limit).

International Tele-Marine Corp. v. Malone & Associates, Inc., 845 F.Supp. 1427 (D. Colo. 1994) (Whether counsel retained by securities broker for purposes of completing Blue Sky applications in public offering of securities owes duty to issuing company is question of fact).

Houtz v. Union Ins. Co., 865 P.2d 847 (Colo. App. 1993) (Use of "an 'insured' " instead of 'insured' (Denoting the class of insureds) determined to be ambiguous and thus interpreted against the insurance company in determining underinsured motorist benefits).

Dean v. Allstate Insurance Co., 878 F.Supp. 1397 (D.Colo. 1993) (Sections for medical and rehabilitation expenses under Colorado No-Fault Act are separate and distinct coverages each subject to minimum of $50,000 statutory limit).

Brewer v. American and Foreign Insurance Co., 837 P.2d 236 (Colo. App. 1992) (Evidence created fact issue whether insurer acted in bad faith in denying claim under fire policy, despite conflicting evidence whether claim was properly denied).

Mayo v. National Farmers Union Prop. And Cas. Insurance Co., 833 P.2d 54 (Colo. 1992) (Household exclusion clause in automobile insurance policy and statute authorizing such clauses do not impinge upon fundamental right to travel and do not violate the equal protection guarantees of the United States and Colorado Constitutions).

Lira v. Davis, 832 P.2d 240 (Colo.1992) (Application of comparative negligence and pro rata liability statutes place a maximum cap on exemplary damage award but cannot reduce punitive damage award on the basis of assigned fault).

Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992) (Summary judgment inappropriate where questions of fact existed whether employer was negligent in loaning an automobile to its employee knowing the employee was intoxicated and drank to excess).

USAA v. Martin, 841 P.2d 391 (Colo. App. 1992) (Job search and placement service not rehabilitation procedure or treatment, or rehabilitative occupational training under Colorado No-Fault Act, and is not a required minimum coverage).

Winscom v. Garza, 843 P.2d 126 (Colo. App. 1992) (Permissive use clause of automobile policy is a valid exclusion that comports with intent of General Assembly in enacting Colorado No-Fault Act).

Allstate Insurance Co. v. Winkler, No. 91 CA 0664 (Colo. App. 1992) (NSFP) (Amendment of Colorado No-Fault Act declaring household exclusion clause in conformity with public policy will not be given retroactive effects unless a contrary intent is clearly expressed in the statute).

Schultz v. Allstate Insurance Co., 764 F.Supp. 1404 (D.Colo. 1991) (Workers' compensation benefits are primary to PIP benefits and determination of availability of compensation benefits must first be made by the state administrative agency where the facts reveal a basis for reasoned argument that workers' compensation benefits are available).

Ralston Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App.1991) (the date on which the claimant was injured should not have been included in calculating the three-day waiting period for determining eligibility for temporary total disability benefits or for determining whether an employer failed to admit or deny liability in a timely manner).

Scott Wetzel Services, Inc. v. Johnson, 821 P.2d 804 (Colo. 1991) (Self-insured employers and independent claims adjusting companies owe a duty of good faith and fair dealing to employees asserting workers' compensation claims).

Colorado Insurance Guaranty Association v. Harris, 815 P.2d 983 (Colo. App. 1991), aff'd 827 P.2d 1139 (Colo. 1992) (Insured of insolvent insurer who settled her UM claim for less than policy limits may bring a claim against CIGA for the difference between UM policy limits and liability limits under the Colorado Insurance Guaranty Association Act).

Allstate Insurance Co. v. Parfrey, 815 P.2d 959 (Colo. App. 1991), aff'd 830 P.2d 905 (Colo. 1992) (No-Fault Act creates a private right of action in tort based on an insurer's failure to offer higher levels of UM/UIM coverage. An insurer has a one-time duty to notify an insured of the nature and purpose of UM/UIM coverage and to offer the insured an opportunity to purchase limits equal to liability limits).

Charlton v. Kimata, 815 P.2d 946 (Colo. 1991) (Statute that limits claim for relief against social host providing alcoholic beverage to guests is constitutional).

Allstate Insurance Co. v. Feghali, 814 P.2d 863 (Colo. 1991) (Household exclusion clause in automobile insurance policy is constitutional and in conformity with Colorado No-Fault Act. Uninsured motorist benefits are not available because of operation of household exclusion clause).

Allstate Insurance Co. v. Collins, 805 P.2d 431 (Colo. 1991) (No-Fault Act did not preclude cause of action in tort for alleged bad faith handling a claim).

Herrera v. Allstate Insurance Co., No. 90 CA 1701 (Colo. App. 1991) (NSFP) (Uninsured motorist responsible for own pro-rata share of No-Fault benefits available to the same extent as an insurer had motorist been insured).

Druckman v. Allstate Insurance Co., No. 90 CA 1175 (Colo. App. 1991) (NSFP) (Dismissal of complaint with prejudice and assessment of attorney fees against plaintiff as a discovery sanction appropriate).

Norton v. Allstate Insurance Co., No. 90 CA 1141 (Colo.App. 1991) (NSFP) (A disabled vehicle is "involved" in an accident causing injuries so as to give rise to pro-rata sharing of No-Fault benefits by insurers of both offending and disabled vehicle).

Hageman v. Allstate Insurance Co., No. 90 CA 838 (Colo. App. 1991) (NSFP) (Household exclusion in automobile insurance policy valid and precludes coverage for plaintiff's claim against stepmother).

Cassidy v. Smith, 817 P.2d 555 (Colo.App.1991) (six-year statute of limitations began to run on date plaintiffs achieved age of majority and they were permitted to amend their original complaint to identify those specific sexual incidents with defendant which occurred within six years prior to filing of lawsuit).

Sanderson v. Allstate Insurance Co., 738 F. Supp. 432 (D.Colo. 1990) (Court denied insurer's motion to dismiss holding that a jury may under certain circumstances award both treble damages and punitive damages, attorneys' fees may be awarded in certain civil actions, and that the remedies available under the Colorado Motor Vehicle Insurance Act do not preclude common law tort claims).

Tipton v. Aspen Airways, Inc., 741 F. Supp. 1469 (D.Colo. 1990) (Federal court would not exercise pendent jurisdiction over employee's state law claims for breach of contract and intentional infliction of emotional distress. Railway Labor Act preempts Colorado Labor Peace Act in railroad and aviation labor disputes).

Alexander & Alexander, Inc. v. F.B. Hall & Co. Inc., 1990 W.L. 8028 (D.Colo. 1990) (Employee owes common law fiduciary duty to employer; Binding effect of covenant not to compete vis a vis employee status as a company officer pursuant to Colorado statute is a question of fact).

Kaiser Steel Corp. v. Jacobs, 105 B.R. 639 (Bankr.D.Colo. 1989), aff'd 110 B.R. 514 (D.Colo. 1990) (Provisions in brokerage firm's customer agreements granting firm lien on assets did not require that brokerage firm be found "initial transferee" for purposes of recovering fraudulent transfer. Payments made to brokerage firm in connection with stock redemption by firm's customers were "settlement payments" within meaning of bankruptcy code stating that trustee may not avoid transfer that is "settlement payment" made by or to stockbroker).

Allstate Insurance Co. v. Starke, 771 P.2d 3 (Colo. App. 1988), rev'd 797 P.2d 14 (Colo. 1990) (The Financial Responsibility Act did not mandate the payment of pre-judgment interest as part of the minimum coverage required of an automobile insurance policy).

Allstate Insurance Co. v. Allen, 797 P.2d 46 (Colo. 1990) (Insurer not liable for pre-judgment interest on bodily injury damages awarded against its insured in excess of insurer's policy limits).

Shelter General Insurance Co. v. Progressive Casualty Insurance Co., 796 P.2d 18 (Colo. App. 1990) (Statutory provision requiring mandatory arbitration in accidents involving private passenger automobiles and non-private passenger automobiles not applicable to accident involving two private vehicles).

Allstate Insurance Co. v. Troelstrup, 768 P.2d 731 (Colo. App. 1988), rev'd 789 P.2d 415 (Colo. 1990) (In child molestation case, subjective intent of insured not relevant to determination of whether coverage is precluded under intentional injury exclusion clause. Homeowner's policy excludes coverage for injuries caused by child molestation as it is an intentional injury).

Fleming v. Allstate Insurance Co., 709 F.Supp. 216 (D.Colo. 1989) (Statute, which destroys diversity jurisdiction over direct action against liability insurer if insured is not joined as defendant, was inapplicable to pedestrian's claim).

Hansen v. Barmore, 779 P.2d 1360 (Colo. App. 1989) (Notice to insurer by driver constituted substantial compliance with policy notification requirement. Insurer was liable to driver after entry of default judgment against insured).

Federal Deposit Insurance Corp. v. Bank of Boulder, 622 F.Supp. 288 (D.Colo. 1985), aff'd 865 F.2d 1134 (10th Cir. 1988) (FDIC, as a corporation, can purchase and acquire right to draw on letter of credit as FDIC, notwithstanding that letter of credit is non-transferable under state law or by its own terms).

People Express Airline, Inc. v. Andrew, 86 B.R. 644 (D.Colo. 1988) (Declaratory relief not warranted concerning effect of releases of collective bargaining agreements granted by unions. Claim turns on federal labor law question).

Leeper v. Allstate Insurance Co., 738 F.Supp. 1343 (D.Colo. 1987) (Colorado No-Fault Act did not preclude insured from bringing common law tort claims or from claiming punitive damages).

WestAmerica Mortgage Co. v. First Nationwide Savings, 1987 W.L. 6198 (D.Colo. 1987) (In suit concerning sale of large Ginnie Mae portfolio, use of telephone and mail communication by national corporation within Colorado created personal jurisdiction in Colorado. Fact that vast majority of defendant's witnesses are in Tennessee does not alone create need to override transfer of case to that jurisdiction).

Appel v. Sentry Life Insurance Co., 701 P.2d 634 (Colo. App. 1985), aff'd 739 P.2d 1380 (Colo. 1987) (Where deposition is not used as substantive evidence but for limited purpose of impeaching deponent as witness, it may be admitted as prior inconsistent statement even if opposing party was not present or represented at deposition).

Troelstrup v. District Court In and For City and County of Denver, 712 P.2d 1010 (Colo. 1986) (Where insurance policy clearly excluded coverage for the intentional acts of the insured, trial court did not abuse its discretion by scheduling the declaratory judgment action prior to the underlying personal injury action).

Federal Deposit Insurance Corp. v. Petersen, 770 F.2d 141 (10th Cir. 1985) (Action to enforce guarantee of payment of a note barred by six year federal statute of limitations governing actions by the United States).

Perry v. Crawford & Co., 677 P.2d 416 (Colo. App. 1983) (sufficient nexus between claimant's employment and his injury was not present to entitle claimant to workmen's compensation benefits, and claim did not fall within the special hazard exception to off-premises injuries not normally compensable).

Barnes v. Waco Scaffolding & Equipment Co., 589 P.2d 505 (Colo. App. 1978) (Where insured reasonably concluded it was not liable for accidents and that no claim would be asserted against him, his failure to give notice of accident as soon as practicable was excused. Prejudice to insurer irrelevant because delay in giving notice was excused).

Heller-Mark & Co. v. Kassler & Co., 544 P.2d 995 (Colo. App. 1976) (Recovery properly denied in claim against agent premised on liability for absence of fire insurance coverage where there was no evidence that other insurance could have been obtained and plaintiff failed to prove that defendant's inaction was cause in fact of absence of insurance coverage).

Mountain States Telephone & Telegraph Co. v. United States, 499 F.2d 611 (Ct.Cl. 1974) (Regulation authorizing fee for use of forest land for microwave relay facility based on value of use, in light of investment in property, was valid).