Report: Colorado verging on 'Judicial Hellhole' status

Monday, December 10, 2018

Anyone wondering why insurance premiums are on the rise in Colorado need look no further than four recent decisions by the Colorado Supreme Court.  Those rulings expand liability and increase litigation costs, so consumers can expect to pay more for insurance coverage.

After all, insurance companies simply set premiums to cover their anticipated costs.

As a result, a new report by the American Tort Reform Association finds Colorado teetering on the verge of becoming a “Judicial Hellhole.”

 

Liability-expanding decisions by the Colorado Supreme Court coupled with the prospects of a pro-plaintiff legislative agenda has created an unfair and unbalanced environment for those who face lawsuits in the Centennial State. The state appears to be moving in a dangerous direction and if it does not correct course, the Colorado Supreme Court or the state may find itself in unwanted company on next year’s Judicial Hellholes list.

Four Colorado Supreme Court decisions issued in 2018 have exposed insurers to expanded liability, which will lead to higher rates for consumers.

Each of these decisions addressed the responsibility of insurers to promptly pay valid insurance claims. That is a reasonable and common requirement, however, Colorado takes an outlier approach. Under Colorado’s bad faith law, a person can recover the amount of the covered benefit that was improperly delayed or denied, plus two times that value (essentially, triple damages), plus attorneys’ fees and costs.

Read the full ATRA Judicial Hellholes report HERE.

Meanwhile, Forbes' Best States for Business ranks Colorado 8th overall, but 40th in costs and regulations as the state's worsening lawsuit climate (now ranked 35th) becomes a bothersome factor.


 

 

'Common Sense' legislators to be honored by CCJL at Oct. 24 event

Sunday, September 23, 2018

DENVER — Colorado Civil Justice League has announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse.

Awards will be presented at CCJL’s Legislative Awards Luncheon on Wednesday, Oct. 24, at the Denver Four Seasons.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been wronged, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

The best news from the 2018 legislative session was the bills that didn’t pass.Late in the legislative session, two bills were introduced to discourage arbitration – an alternative to litigation that often saves time and money.  The alternative to arbitration?  Hiring a lawyer and filing a lawsuit, of course.

Other bills were introduced to address business practices that result in perceived greed or inequity.  The irony, however, is that in each of these bills the remedy to alleged “corporate greed” was to create new incentives for profiteering by personal injury lawyers.

"At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state's economy," Hillman said.

Common Sense in the Courtroom Award recipients include:

  • Representatives Jon Becker (Fort Morgan), Susan Beckman (Littleton), Perry Buck (Greeley), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Phil Covarrubias (Brighton), Justin Everett (Littleton), Matt Gray (Broomfield), Chris Hansen (Denver), Steve Humphrey (Eaton), Tracy Kraft-Tharp (Arvada), Lois Landgraf (Fountain), Polly Lawrence (Douglas County), Tim Leonard (Evergreen), Kimmi Lewis (Kim), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Hugh McKean (Loveland), Patrick Neville (Franktown), Dan Pabon (Denver), Bob Rankin (Carbondale), Kim Ranson (Douglas County), Judy Reyher (La Junta), Lori Saine (Firestone), Shane Sandridge (Colorado Springs), Lang Sias (Arvada), Dan Thurlow (Grand Junction), Kevin Van Winkle (Highlands Ranch), Yeulin Willett (Grand Junction), David Williams (Colorado Springs), Jim Wilson (Salida), Alex "Skinny" Winkler (Northglenn) and Cole Wist (Centennial).

  • Senators Rachel Zenzinger (Arvada), Angela Williams (Denver), Jack Tate (Centennial), Jerry Sonnenberg (Sterling), Jim Smallwood (Castle Rock), Ray Scott (Grand Junction), Kevin Priola (Brighton), Tim Neville (Littleton), Beth Martinez Humenik (Thornton), Vicki Marble (Fort Collins), Kevin Lundberg (Berthoud), Kent Lambert (Colorado Springs), Cheri Jahn (Wheat Ridge), Chris Holbert (Parker), Owen Hill (Colorado Springs), Kevin Grantham (Canon City), Bob Gardner (Colorado Springs), Larry Crowder (Alamosa), Don Coram (Montrose), John Cooke (Greeley) and Randy Baumgardner (Hot Sulphur Springs).

    This year's luncheon is sponsored by American Furniture Warehouse, Colorado Association of Mechanical and Plumbing Contractors, State Farm, HuschBlackwell, Wheeler Trigg O'Donnell and COPIC.

  • Supreme Court backs CCJL in judgment interest case

    Monday, September 10, 2018

    Today, the Colorado Supreme Court ruled unanimously that a claimant is not entitled to interest on damages if no court action is filed.  The opinion written by Justice Brian Boatright supports the position taken by Colorado Civil Justice League in an amicus brief authored by Lee Mickus of Taylor Anderson LLP.

    “We hold that, under the plain language of the (statute), an insured is entitled to prejudgment interest only after (1) an action is brought, (2) the plaintiff claims damages and interest in the complaint, (3) there is a finding of damages by a jury or court, and (4) judgment is entered,” wrote Justice Boatright.

    In this case, Joel Munoz was injured in a car crash and reached a settlement with his insurer, American Family.  Munoz asked for interest on the claim, but American Family Insurance declined to pay interest because Colorado law requires interest only after a judgment, not after a private settlement.

    The high court's finding upheld an early decision by the Colorado Court of Appeals.

    Read the Supreme Court opinion HERE.

     

     

     

    Carlos Samour newest Justice on Colorado Supreme Court

    Monday, July 09, 2018

    Judge Carlos Samour became Colorado’s newest Supreme Court justice earlier this month when he was sworn in to replace retiring Chief Justice Nancy Rice. 

    Although most widely known for presiding over the trial of James Holmes for the Aurora theater shooting, Samour has served for 11 years as a judge in the 18th Judicial District, where he was most recently Chief Judge.

    “Judge Samour complements Colorado’s Supreme Court both professionally and personally. He has presided over some of Colorado’s highest profile cases in recent history and has distinguished himself, without exception, as being fair and impartial regardless of the magnitude of the case,” said Gov. John Hickenlooper, when announcing the appointment.

    During his two terms, Governor Hickenlooper has appointed five of the seven justices on the Court.

    With Rice’s retirement, Justice Nathan Coats was selected by his colleagues to serve as Chief Justice.Coats was appointed in 2000 by Gov. Bill Owens.

    “Judge Samour has earned a reputation as an efficient, fair-minded jurist by those who have practiced in his courtroom,” said CCJL executive director Mark Hillman.“He is considered to be consistent, thoughtful, hard-working and exceptionally knowledgeable.”

     

    Much ado, but little done to reduce lawsuits in 2018

    Wednesday, May 16, 2018

    The 2018 legislative session produced much political posturing but resulted in comparatively no meaningful policy accomplishments toward reducing litigation in Colorado.

    Most significant legislation to pass was re-authorization of the Colorado Civil Rights Division which was due for the periodic "sunset review" to which all regulatory agencies are subject. Because CCRD is the first stop for all employment-related litigation, it is an important mechanism to filter out frivolous claims against businesses. Ordinarily, sunset bills are fairly mundane and characterized by discussions between the regulators and "the regulated" seeking to accomplish the agencies' mission without undue burden on either party.

    Instead, the CCRD reauthorization measure (House Bill 1256, sponsored by Speaker Crisanta Duran, D-Denver, and Sen. Bob Gardner, R-Colorado Springs) became a vehicle for scoring political points. At the center of this gamesmanship was the Civil Rights Commission's (CRC) handling of the Masterpiece Cakeshop case which is now before the United States Supreme Court.

    Democrats, viewing the Commission as a bulwark against unfair discrimination toward racial and sexual minorities, chided Republicans for, at one point, blocking funding of CCRD. Republicans, conversely, seized upon statements made by individual CRC commissioners in the Masterpiece deliberations which have been described by Justice Anthony Kennedy as "neither tolerant nor respectful." Republicans were also annoyed that Gov. Hickenlooper, in 2017, had appointed a commissioner to fill one of the seats reserved for representatives of the business community who, in their view, had no business credentials and then reappointed that person, albeit in a different position, after her confirmation was rejected by the Senate.


    Ultimately, another compromise was finally adopted only a few hours before mandatory adjournment at midnight on the final legislative day. That change mandates partisan (3D-3R-1UA) balance on the commission, adds a third seat for business representatives, and bars a governor from re-appointing someone who fails Senate confirmation.

    Other bills that passed with bipartisan consensus increased the limit on claims brought in county courts (Senate Bill 56) from $15,000 to $25,000 and resolved inconsistencies between case law and statutory provisions that address damages (Senate Bill 98).

    LATE BILLS THREATEN LITIGATION TORRENT

    As the legislative session entered its final six weeks, a torrent of "message bills" were introduced in the House - all purporting to address perceived greed and inequity practiced by business. The irony, however, is that in each of these bills, the proposed remedy to "corporate greed" was to create new incentives for personal-injury lawyers to file lawsuits against suspect businesses. Seriously, is the best policy remedy to unleash a hoard of profiteering trial lawyers?

    Two bills were aimed at discouraging arbitration - a tool for dispute resolution that often saves time and expense for both consumers and businesses. House Bills 1261 and 1262 proposed to make arbitration essentially meaningless and to burden arbitrators with so much regulation as to drive them out of business. These misguided bills would have taken away the choice of consumers and business to opt for arbitration. The alternative to arbitration? Hiring a lawyer and filing a lawsuit, of course.

    Fortunately, through the efforts of Colorado Civil Justice League and our allies in the business community, these bills were shown to be impractical and an intrusion into private rights of contract. Both were defeated but are likely candidates for re-introduction in 2019.

    Another bill, HB 1378, would have removed the authority of the Department of Labor and Employment to penalize employers that pay women less than men for performing the same job and instead turned enforcement over to lawsuits filed by trial lawyers. It's companion, HB 1377, sought to make it illegal to merely ask a prospective hire about his or her salary at previous jobs. The bill would have defined this typical step in salary negotiations to be an "unfair labor practice," tantamount to refusing to hire someone because of their race or gender. HB 1377 also insisted that every business in Colorado follow a new state-mandated procedure to advertise all pending workplace promotions.

    At a time when Colorado's lawsuit climate has fallen into the bottom one-third in the United States and when Denver ranks 8th nationally for the number of trial lawyer commercials on television, it's hard to imagine that creating even more litigation is the best remedy to any public policy problem.

    Exceptionally misguided: HBs 1377, 1378

    Monday, April 23, 2018

    Two bills introduced late in this legislative session purport to protect employees – specifically female employees – from wage discrimination.  Instead, House Bills 1377 and 1378 paint a target on the Colorado businesses and invite trial lawyers to unleash a new wave of litigation against them.

    HB 1377 (sponsored by Reps. James Coleman, D-Denver, and Brittany Petterson, D-Lakewood) would prohibit “seeking” information about a potential employee’s salary history.  But what makes this bill so exceptionally misguided is that it makes asking for that information a violation akin to illegal racial or gender discrimination.

    That’s right – the sponsors of this bill believe that merely seeking information about a potential employee’s salary history is tantamount to refusing to hire someone because of their race or gender.

    By defining salary history as a discriminatory practice, the bill creates an incentive for trial lawyers to sue employers, seeking a wide range of monetary damages, including punitive damages, and automatically forces employers to pay attorney fees and costs to any prevailing plaintiff.

    Prevailing employers aren’t automatically entitled to recover their attorney fees and costs.  Even if a business has done nothing wrong, defending against a baseless lawsuit is costly!

    If there was any doubt that these bills are far more about enriching trial lawyers than eliminating any pay disparity, HB 1378 should dispel them.  Sponsored by Rep. Jessie Danielson, D-Wheat Ridge, and Sens. Kerry Donovan, D-Vail, and Rhonda Fields, D-Aurora, this bill removes the authority of the Department of Labor to penalize employers that pay women less than men for performing the same job and instead uses private litigation for enforcement.


    And just as with HB 1377, it gets worse!  Next, the bill mandates that every business in Colorado must follow a specific legal procedure before promoting any of its employees.  No matter how many employees and no matter what the job, the proponents of this bill believe the State must micromanage day-to-day operations of private businesses – the economic engine of our state.

    If this bill becomes law, an employer couldn’t simply give a promotion to a deserving employee – including a female employee – without first advertising the opportunity for promotion to all existing employees.

    In the past year, Colorado has fallen to its worst alltime ranking (36th) by the U.S. Chamber of Commerce Lawsuit Climate Index. Legislation like this shows that it could get worse!

     

     

     

    Anti-arbitration bills will cost consumers, enrich trial lawyers

    Monday, March 19, 2018

    Anti-business extremists at the State Capitol would have Coloradans believe that giving up their "right to sue" in exchange for a more efficient, less adversarial process of dispute resolution is somehow playing into the hands of "big corporations." 

    In fact, consumers and businesses alike have often found arbitration to be a better way to resolve disputes than long, drawn out lawsuits in which the only real winners are the lawyers who rack up hundreds of billable hours.

    House Bills 1261 (sponsored by Rep. Mike Weissman, D-Aurora) and 1262 (Reps. Dominique Jackson, D-Aurora, and Dylan Roberts, D-Eagle) purport to bring "fairness" and "transparency" to arbitration proceedings.

    In reality, they would make Colorado's arbitration system just as big a mess as our state's system of civil courts.

     


     

    Many business contracts require arbitration as a means to settle disputes, rather that lawsuits. That's a choice that businesses and consumers deserve to make for themselves - without unnecessary meddling by politicians.

    Arbitration can be cheaper and faster for both parties in a dispute, reducing costs for the largest driver of litigation costs - attorney fees. Arbitration can also be more flexible, less complex, more private and less hostile than endless litigation.

    Instead, HBs 1261 and 1262 will make arbitration more difficult and more expensive by inviting litigation against arbitrators.

    These bills are also likely to erode modest gains made by the Legislature last year to make it easier for homeowners and builders to resolve disputes over home construction problems and to reduce litigation costs that drive up home prices.

    HB 1261 creates new standards for "impartiality" in an environment in which the Colorado Uniform Arbitration Act, case law, Colorado Rules of Professional Conduct, and private contractual standards already establish ethical requirements on arbitrators. This isn't solving a problem. Instead, it's creating one!

    HB 1262 creates disclosure requirements that violate contractual confidentiality provisions that typically benefit both parties in a dispute. The bill also creates a cloud over any contract containing an arbitration clause because, U.S. Supreme Court precedent strongly suggests, it will be preempted by the Federal Arbitration Act.

    It is important to note that judges and courts do police arbitrator impartiality by reviewing arbitration awards. A party that believes an arbitrator to be biased can ask a court to vacate the award. Ironically, these protections do not apply for judges who preside over lawsuits.

    These bills would harm consumers by making arbitration more expensive, thereby leaving consumers at the mercy of trial lawyers and a costly, over-crowded civil litigation system.


     

    Supreme Court upholds limits on wage claims, backing CCJL position

    Monday, March 12, 2018

    Colorado Supreme Court unanimously ruled that claims for disputed wages must be filed within the statute of limitations (either two or three years) and that the clock starts ticking "on the date that each set of wages first became due and payable—not on the date of separation."

    The opinion, written by the court's newest member, Justice Melissa Hart — Yes, we were pleasantly surprised! — largely echoes the salient points submitted by CCJL in a friend of the court brief, authored by Chris Ottele and Sonia Anderson of Husch Blackwell, and which was joined by the Denver Metro Chamber and Building Jobs 4 Colorado.

    As summarized by a blog:

    The plaintiffs in Hernandez v. Ray Domenico Farms, Inc.had sought to exploit an unusual feature of the Colorado Wage Claim Act (the Wage Act). It allows employees to bring suit for unpaid wages under two separate provisions, depending on whether the employee is currently employed or no longer employed. Plaintiffs in this case had reasoned that the provision that applies to former employees revived claims that were time-barred under the provision that applies to current employees. If true, former employees could bring suit for unpaid wages dating to the beginning of their employment, possibly 20 or 30 years ago. 

    [...]

    On behalf of the Colorado Civil Justice League and other business interests, Husch Blackwell attorneys filed the only amicus brief in support of the employer. The Supreme Court’s opinion agreed with each of the positions set forth in Husch Blackwell’s amicus brief and disagreed with the briefs of the plaintiffs, their amici and, with respect to at least one issue, even the defendant employer.

    Asbestos transparency advances in Senate

    Monday, March 05, 2018

    There's an unseemly underside to some of those mesothelioma commercials that dominate late-night television. It hasn't come to Colorado yet, and if the Colorado General Assembly passes Senate Bill 123 (sponsored by Sen. Jerry Sonnenberg), it never will. 

    Mesothelioma is a cancer that develops from asbestos fibers that become lodged in the lungs. Because it usually goes undiscovered until it has become advanced, it is almost always fatal.

    While it is just to feel sympathy for those suffering from mesothelioma and to want them to receive timely compensation, the way some asbestos plaintiffs lawyers abuse the asbestos claims process is not only unjust - it also endangers the ability of future victims to receive adequate compensation.


    Those suffering from mesothelioma can seek relief in two ways: a lawsuit against manufacturers of asbestos products that are still in business or a claim against one or more "asbestos trusts" established during bankruptcy proceedings to pay claims against insolvent companies.

    Many injured parties may have legitimate claims against both. However, as more primary companies declared bankruptcy, plaintiffs attorneys began focusing lawsuits against secondary users of asbestos, including those whose products were less dangerous.

    One such company, Garlock Sealing Technologies, regularly settled for very small amounts while the primary companies were still solvent. But when the trusts were established, Garlock and other secondary companies suddenly saw claimants argue that they had been exposed only to these secondary products and not to those manufactured by the likes of Owens Corning or Johns Manville.

    Garlock's lawyers smelled a rat and, thanks to an inquisitive judge, uncovered a scam in which plaintiffs lawyers first sued solvent companies, claiming exposure only to one or two products, then after reaching a settlement, they applied to the asbestos trusts, now claiming exposure to many other products which were manufactured by now-bankrupt companies.

    Bankruptcy Judge George R. Hodges examined 15 such cases and found that in "each and every one" evidence of exposure to other products was withheld by the plaintiffs' attorneys.

    "It was a regular practice by many plaintiffs' firms to delay filing Trust claims," Hodges wrote. He found that, on average, plaintiffs against solvent companies disclosed only about two exposures to bankrupt companies' products, but after settling with Garlock, those same plaintiffs subsequently made claims against 19 of the trusts.

    Because exposure happened decades ago, "there's no way for defendants to get information on exposure (to asbestos) except from claimants," said Phil Goldberg, who testified for the U.S. Chamber of Commerce in favor of SB 123.

    SB 123 requires claimants to first file trust claims before litigating against existing companies in state courts and to provide the same information to each.

    "The fastest way to pay plaintiffs is to file trust claims first," Goldberg testified. "The only reason to file civil claims first is to game the system."

    While no such abuses are yet known to have occurred in Colorado, we should institute safeguards before these deceptive practices undermine the integrity of our judicial system.

     

    Legislators chosen for 'Common Sense' Awards

    Tuesday, September 19, 2017

    DENVER — Colorado Civil Justice League has announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse. 

    Awards will be presented at CCJL’s Legislative Awards Luncheon on Friday, October 20, at the Denver Four Seasons. Tickets are available at www.CCJL.org.

    CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

    “Common Sense in the Courtroom requires justice for those who have been wronged, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

    A highlight of the 2017 legislative session was the passage of House Bill 1279 which addressed construction litigation by ensuring that homeowners are fully informed of costs and risks of litigation and given a formal voice in determining whether to initiate a lawsuit to resolve alleged defective construction.

    “The most encouraging development this year is the growing coalition of legislators who value economic growth for all Coloradans above the narrow interests of personal injury lawyers and a handful of plaintiffs,” Hillman added.

    "At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state's economy," said Jeff Weist, CCJL legislative director.

    Common Sense in the Courtroom Award recipients include:


  • Representatives Jeni Arndt (Fort Collins), Jon Becker (Fort Morgan), Susan Beckman (Littleton), Perry Buck (Greeley), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Phil Covarrubias (Brighton), Justin Everett (Littleton), Matt Gray (Broomfield), Leslie Herod (Denver), Edie Hooton (Boulder), Steve Humphrey (Eaton), Tracy Kraft-Tharp (Arvada), Lois Landgraf (Fountain), Polly Lawrence (Douglas County), Tim Leonard (Evergreen), Kimmi Lewis (Kim), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Hugh McKean (Loveland), Clarice Navarro-Ratzlaff (Pueblo West), Patrick Neville (Franktown), Dan Nordberg (Colorado Springs), Bob Rankin (Carbondale), Kim Ransom (Douglas County), Lori Saine (Firestone), Lang Sias (Arvada), Dan Thurlow (Grand Junction), Don Valdez (La Jara), Kevin Van Winkle (Highlands Ranch), Yeulin Willett (Grand Junction), David Williams (Colorado Springs), Jim Wilson (Salida) and Cole Wist (Centennial).
  • Senators Randy Baumgardner (Hot Sulphur Springs), John Cooke (Greeley), Don Coram (Montrose), Larry Crowder (Alamosa), Bob Gardner (Colorado Springs), Kevin Grantham (Canon City), Owen Hill (Colorado Springs), Chris Holbert (Parker), Beth Martinez Humenik (Thornton), Cheri Jahn (Wheat Ridge), Kent Lambert (Colorado Springs), Dominic Moreno (Commerce City), Kevin Priola (Brighton), Ray Scott (Grand Junction), Jim Smallwood (Castle Rock), Jerry Sonnenberg (Sterling), Jack Tate (Centennial), Nancy Todd (Aurora), Angela Williams (Denver), Rachel Zenzinger (Arvada).
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