Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Jeffrey Sloan appealed his conviction of two counts of first-degree assault, two counts of vehicular homicide, failure to fulfill duties after involvement in an accident involving death and vehicular eluding resulting in death.
In this case, the court set aside seats for the public in the courtroom and provided remote viewing of the trial through Webex. But during the early phases of the trial, problems with the Webex feed limited what remote viewers could hear and see.
The Colorado Court of Appeals held no closure of the courtroom occurred because, despite the problems with the livestreaming of the proceedings, any member of the public who wished to attend the trial in person was able to do so.
Sloan also argued the court erred by giving an instruction and related verdict form on the form on the vehicular eluding resulting in death sentence enhancer that directed the jurors to decide whether “the accident resulted in death” rather than whether “vehicular eluding … result[ed] in death.” The appeals court agreed with Sloan that the court plainly erred by giving this enhancer instruction.
The appeals court reversed Sloan’s conviction for class 3 vehicular eluding resulting in death, but affirmed his other convictions. The appeals court remanded to the trial court to correct the mittimus to remove the reference to the counts dismissed before trial.
Dennis Herold appealed his conviction of class 4 felony DUI – fourth or subsequent offense.
In this case, the Colorado Court of Appeals considered the novel issue in Colorado of whether a description that the person with the prior conviction was a “Caucasian Male” with the same name and date of birth as the defendant is sufficient “corroborating evidence” to support a conviction for felony DUI. The appeals court concluded it’s insufficient.
The appeals court reversed Herold’s conviction for felony DUI and remanded for entry of a judgment of conviction for misdemeanor DUI. But the appeals court rejected his arguments that other errors entitled him to a new trial.
Ortiz v. Progressive Direct Insurance Co.
Progressive Direct Insurance Company appealed the district court’s judgment in favor of Andrew Ortiz.
Tania Granados Camacho injured Ortiz in a car crash when she collided with his car as Ortiz attempted to turn left into a parking lot. Camacho was unlicensed (she had only a learner’s permit), unsupervised by an adult and uninsured. Ortis was insured by Progressive under a policy that included uninsured motorist coverage. After the crash, Progressive denied Ortiz’s claim for UM benefits on the basis that Ortiz was more than 50% at fault for the collision.
Ortiz sued Camacho for negligence and negligence per se. He included Progressive as a codefendant, asserting claims for breach of contract, common law insurance bad faith and unreasonable delay and denial of insurance benefits under Sections 10-3-1115 to -1116 of the Colorado Revised Statutes. Camacho never responded to Ortiz’s complaint, and the district court entered a clerk’s default against her.
Both Ortiz’s motion requesting entry of a clerk’s default and the district court’s order granting the motion and entering default against Camacho were served on Progressive. Progressive didn’t file anything in response to either the motion or the corresponding order.
Meanwhile, Progressive filed an answer to Ortiz’s complaint.
The district court heard the case, and importantly for the purposes of the Colorado Court of Appeals’ analysis, declined to permit Progressive to contest Camacho’s liability.
At the damages hearing, the district court awarded Ortiz $20,000 of the $100,000 he requested for noneconomic damages and damages for permanent physical impairment. Progressive then paid Ortiz the $86,958.66 total default judgment entered in favor of Ortiz against Camacho. Progressive and Ortiz proceeded to trial only on the claims for common law insurance bad faith and statutory unreasonable delay and denial of insurance benefits.
The jury found in Ortiz’s favor on both claims, awarding him $76,493.52 for statutory unreasonable delay and denial of insurance benefits and $140,000 for common law insurance bad faith.
The appeals court found no error in the district court’s determination that Camacho’s default invoked Ortiz’s UM coverage, thereby binding Progressive. The appeals court also found no abuse of discretion in the district court’s decision about the proper role of Progressive in the litigation and disagreed with Progressive’s challenges that the district court incorrectly told the jury Camacho was found to be at fault for the accident and that the instructions were deficient because they didn’t contain an instruction on comparative fault.
The appeals court affirmed and remanded the case with instructions to determine the issue of appellate attorney fees and costs.
Judge Lino Lipinsky de Orlov specially concurred. He urged the Colorado Supreme Court to reconsider State Farm Mutual Automobile Insurance Co v. Brekke restrictions on an insurer’s ability to defend itself against its policyholder’s coverage claims in UM litigation.
Bruce Michael Gestner appealed the default judgment in favor of Bruce Allen Gestner and Mary Jean Gestner. But he didn’t appear or present any arguments in the district court before the default judgment was entered.
Because none of the arguments raised on appeal were preserved for review, the Colorado Court of Appeals affirmed the judgment.