Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Michael Wade appealed his convictions of second-degree assault, third-degree assault, misdemeanor child abuse, harassment, misdemeanor menacing and telephone service obstruction. The Colorado Court of Appeals disagreed with his double jeopardy arguments and his self-defense instruction contention and affirmed the judgment.
Wade contended the court erred by failing to sua sponte instruct the jury on the affirmative defense of self-defense. At the trial, Wade didn’t request a self-defense instruction or object to the instructions given. The appeals court concluded reversal wasn’t warranted in the absence of plain error and the district court didn’t err by failing to sua sponte instruct the jury on self-defense.
Wade also contended some of his convictions should have merged as lesser included offenses based on identical conduct. According to the opinion, the parties agreed Wade didn’t preserve this contention in the district court.
The appeals court concluded under the strict elements test harassment isn’t a lesser included offense of either second or third-degree assault, citing the Colorado Supreme Court decision Reyna-Abarca v. People.
Under the Section 18-1-408(5)(c) test of the Colorado Revised Statutes, the appeals court also concluded the convictions didn’t merge.
The appeals court affirmed the judgment.
Derek Dulac appealed the district court’s denial of his petition for removal from the sex offender registry. The Colorado Court of Appeals affirmed the decision.
Dulac received a deferred judgment and sentence for a sex offense, but also pleaded guilty to two non-sex offenses in the same case. Dulac petitioned for removal from the registry after he successfully completed his deferred judgment and sentence.
The question in Dulac’s case was whether the Section 16-22-113(1)(d) exception in the Colorado Revised Statutes applied to a person who successfully completed a deferred judgment and sentence for a sex offense but had other outstanding convictions in the same case. The appeals court held it doesn’t, because the statute requires dismissal of “the case” before a petition may be filed.
Stanislav Babayev and Oleg Chikov appealed the district court’s dismissal of their suit against Hertz which ruled Hertz wasn’t the insurer and owed the plaintiffs no duty. The Colorado Court of Appeals reversed and remanded for further proceedings.
Hertz rented a car to Roman Rakhimov, who isn’t party to the appeal. At the time of the rental, Hertz offered Rakhimov a liability insurance supplement, according to the opinion. The insurance included uninsured/underinsured motorist coverage for occupants of the car. Rakhimov accepted the offer and the offer of a loss damage waiver.
Babayev and Chikov were passengers in the car when a van collided with their car and fled. Apparently unable to collect from the hit-and-run driver, they made insurance claims with Hertz under the UM policy in the rental agreement. When Hertz didn’t fully pay their claims, they sued alleging breach of contract, common law bad faith breach of an insurance contract and unreasonable delay and denial of insurance benefits under Sections 10-3-1115 and 10-3-1116 of the Colorado Revised Statutes.
As trial approached, the parties asked the district court to resolve two questions under Section 56(h) of the Colorado Rules of Civil Procedure, whether Hertz was the plaintiffs’ insurer and if not, whether Herz nevertheless owed plaintiffs an insurer’s duty of good faith and fair dealing under Colorado Court of Appeals cases Cary v. United of Omaha Life Ins. Co. and Riccatone v. Colorado Choice Health Plans.
In the case, Hertz argued it was neither an actual or de facto insurer. According to Hertz, the plaintiffs’ actual insurer was Hertz’ insurer, CHUBB Ace American Insurance Company. Hertz also argued it wasn’t a de facto insurer because it had a risk management services agreement with a company called ESIS, under which ESIS handled all claim adjustment and administration for insurance claims against Hertz.
The district courts agreed with Hertz and held Hertz was neither an actual insurer nor a de facto insurer and owed Babayev and Chikov no duty.
Babayev and Chikov amended their complaint to include CHUBB and ESIS as defendants and added a claim under the Colorado Consumer Protection Act. The district court denied the motion and dismissed all of the plaintiffs’ claims against Hertz. Babayev and Chikov appealed.
They argued the court erred when it ruled as a matter of law Hertz was neither an actual nor a de facto insurer and denied the motion to amend their complaint. The appeals court agreed the district court erred in its Rule 56(h) rulings.
Because Hertz offered and sold Rakhimov two separate insurance coverages for specified prices, the appeals court concluded Hertz was an insurer under Section 10-1-102(13). The appeals court’s conclusion meant Hertz was the proper party for the plaintiffs to bring all their claims against.
The appeals court also concluded all insurers owed insureds a duty of good faith and fair dealing, and as the insurer, Hertz owed the plaintiffs the duty and was potentially liable for breaking it. The appeals court also ruled Hertz could be subject to a claim under Sections 10-3-1115 and 10-3-1116 for unreasonable delay and denial of insurance benefits.
Since the appeals court concluded Hertz was the plaintiffs’ insurer, it ruled the district court erred when it dismissed the plaintiffs’ claim against Hertz.
The appeals court also concluded the material facts about whether Hertz performed the functions of an insurer were disputed, and ruled the district court erred when it resolved this issue under Rule 56(h).
The appeals court reversed the district court’s dismissal and reinstated Babayev and Chikov’s claims and remanded the case to the district court for further proceedings.
Christopher Thomas appealed the district court’s order that granted summary judgment in favor of Childhelp, Inc. on his claim under the Colorado Consumer Protection Act. The Colorado Court of Appeals concluded a plaintiff may still pursue an individual claim under the CCPA if a class isn’t certified and there were disputed issues of material fact regarding whether Thomas suffered individual losses. The appeals court reversed the summary judgment.
Thomas alleged Childhelp used his credit card information to convert his one-time contribution into a recurring monthly charge of $10, according to the opinion. Thomas’ complaint contained a “sole claim for relief” for violation of the CCPA and he alleged Childhelp failed to adequately disclose the donation would be treated as a recurring monthly charge.
Thomas sought certification of two classes under Section 23 of the Colorado Rules of Civil Procedure and claimed he was an appropriate class representative for the two classes. He sought monetary relief for the greater amount of actual damages sustained by the class members or $500 per class member, plus enhanced damages for Childhelp’s allegedly bad faith conduct.
Childhelp argued Thomas couldn’t serve as both class representative and counsel for the case and moved to dismiss. Alternatively, Childhelp argued the complaint failed to allege a plausible claim for relief. The district court denied the motion. Childhelp then filed an answer denying the material allegations of the complaint.
The district court set a deadline for Thomas to file a class certification motion, but he didn’t move for certification. Shortly before the deadline, Childhelp filed a motion to dismiss on the grounds Thomas couldn’t establish he or any class member suffered damages and he lacked standing to pursue the claim.
The district court treated the motion to dismiss as one for summary judgment, and granted the motion on the ground that Thomas hadn’t pursued a claim in his individual capacity and Thomas suffered no damages because his credit card company reimbursed him for the two allegedly unauthorized charges.
Thomas contended the district court erred in both rulings.
The appeals court concluded the district court properly ruled the damage element of the deceptive trade practices claim couldn’t be satisfied by any alleged damages attributed to individual class members because of Thomas’ failure to obtain class certification.
The district court didn’t directly address whether Thomas could individually pursue the deceptive trade practices claim. The appeals court concluded such an individual claim remains viable notwithstanding the absence of class certification. The appeals court ruled the district court erred when it concluded Thomas failed to assert a claim for his individual losses.
The appeals court also concluded Thomas alleged sufficient injury to provide him standing to pursue the CCPA claim in his individual name and the district court erred when it entered summary judgment against him on his CCPA claim.
The appeals court reversed the judgment and remanded the case to district court for further proceedings.
The Colorado Court of Appeals considered an interlocutory appeal on whether the denial of a defense motion for summary judgment or a directed verdict established probable cause for bringing a claim as a matter of law, which would automatically defeat a later malicious prosecution claim, the opinion noted. The appeals court concluded it didn’t and affirmed the trial court’s decision that denied a motion to dismiss the malicious prosecution claim Kaylee Schnelle brought against defendants Ralph Cantafio, David Feeder, Lilly Lentz, Mike Lazar, Mark Fischer, Patricia Ann Scott and Cantafio & Song PLLC.