Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Fear v. GEICO Casualty Company
Marcus Fear asked the Colorado Supreme Court to determine whether it is, reasonable, as a matter of law, for an underinsured motorist insurer to refuse to pay non-economic damages to an insured on the ground that such damages are “inherently subjective” and thus are always reasonably disputed until resolution of the remainder of the insured’s claims.
Fear argued that GEICO violated Section 10-3-1115 of the Colorado Revised Statutes, which prohibits an insurer from unreasonably delaying or denying payment of a covered benefit, by failing to pay undisputed non-economic damages before final settlement.
The court also granted certiorari in the case to decide whether an insurer’s internal settlement evaluation is admissible as evidence of undisputed “benefits owed” under the court’s ruling in State Farm Mutual Automobile Insurance Co. v. Fisher.
Its analysis of the second issue informed its consideration of the first. The court concluded that Colorado Rule of Evidence 408 bars the admission of the kind of claim evaluation at issue here to show an amount of undisputed benefits owed. But, it also determined that the evaluation may be admissible for other purposes, such as establishing an insurer’s good or bad faith.
On the first issue, the state’s high court found that a division of the Colorado Court of Appeals erred in determining that it is reasonable, as a matter of law, for an insurer to refuse to pay non-economic damages (or any portion of alleged non-economic damages) before resolving the rest of an insured’s claim, because such damages are inherently subjective and therefore always subject to reasonable dispute under Fisher.
The high court noted that it is conceivable that non-economic damages—or some portion of them—could be undisputed (or not subject to reasonable dispute) in a particular case. IIn such instances, under Fisher, an insurer would be required to pay those damages without obtaining a release of an insured’s entire claim.
But in this case, the court found that the sole evidence Fear presented to demonstrate that a portion of his non-economic damages was undisputed (or not reasonably disputed) consisted of the claim evaluation itself, his expert’s views on it and his expert’s interpretation of the claim adjuster’s failure to expressly note in the claim file that she disputed any particular amount of Fear’s claimed non-economic damages.
The court found that this evidence amounted to nothing more than an assertion that the claim evaluation proved the amount of the allegedly undisputed non-economic damages, which it concluded was inappropriate under CRE 408.
The court affirmed, albeit in part on different grounds.
The Invisible Institute, Christopher Osher and The Gazette filed an application in Denver District Court seeking an order to show cause after the custodian of records for the Colorado Peace Officers Standards and Training Board partially denied their requests for records regarding peace officer demographics, certification and decertification.
The Gazette argued that the records were subject to mandatory disclosure under the Colorado Open Records Act. The board countered that the requests were for criminal justice records and were governed by the Colorado Criminal Justice Records Act. As a result, it argued that the custodian had discretion to decide whether to disclose the records after balancing the public and private interests.
The district court agreed with POST. It concluded that POST constituted a “[c]riminal justice agency” as defined in Section 24-72-302(3) of the Colorado Revised Statutes, and that the requested records were criminal justice records. Therefore, according to the opinion, the CCJRA, not CORA, governed petitioners’ records requests and disclosure was not mandatory. Instead, the custodian had the discretion to decide whether to disclose the records.
The district court reached this conclusion after determining that POST performed two activities that qualified it as a criminal justice agency under the CCJRA definition: facilitating and collecting criminal background checks on officers seeking certification and maintaining those checks in a database, and engaging in “activity directly relating to the detection or investigation of crime.”
After determining that the custodian of records considered the appropriate factors under the CCJRA, the district court held that the custodian didn’t abuse her discretion in partially denying the petitioners’ requests, based on her concerns that releasing the records could compromise the safety of undercover officers and the viability of ongoing investigations.
On appeal, a division of the Colorado Court of Appeals affirmed on slightly different grounds. The division concluded that POST is a criminal justice agency because it collects and stores arrest and criminal records information when it revokes a peace officer’s certification.
The state’s high court concluded that POST qualifies as a criminal justice agency—and that the CCJRA thus governs the records requested by the petitioners—because POST performs activities “directly relating to the detection or investigation of crime.”
The court affirmed, but on grounds that mirror part of the district court’s reasoning.