Metier July 2017 Legal Newsletter

Attorney Tom Metier

The Courts in Colorado looked at a few procedural questions these past few weeks. In one case, it was the long-arm statute and what determines the required minimum contacts, and in another, whether a finalized settlement can be reopened because of mutual mistake. In other cases involving injured parties, the Colorado Supreme Court examined the duty of a dog owner in very specific circumstances, and how to sort out the responsibilities of multiple tortfeasors.

What Kind of Minimum Contacts Will Satisfy Colorado’s Long-Arm Statute and Permit Personal Jurisdiction Over a Non-Resident Defendant? The Colorado Court of Appeals examined that question in Rome v. Reyes, (2017 COA 84). In this case, Gerald Rome, the Securities Commissioner for the State of Colorado (“Rome”) is appealing the district court’s dismissal of claims against the defendants, Antonio Reyes, Craig Kahler, and Betty Schnorenberg. The three defendants were a part of a Ponzi scheme that defrauded more than 250 investors out of more than $15 million dollars. The court looks at whether the defendant purposefully availed himself of the privilege of conducting business in the forum state, and whether the litigation ‘arises out of’ the defendant’s forum related contacts. In this case, the answer to both questions was yes.

When Can an Employee Re-open a Settlement Based on Mutual Mistake of Material Fact? In England v. Amerigas Propane, (2017 CO 55), the Supreme Court considered whether a provision of the mandatory form settlement document required by the Director of the Division of Workers’ Compensation waives an injured employee’s statutory right to reopen a settlement based on mutual mistake of material fact. In this case, the parties cannot reopen the claim unless there was fraud or mutual mistake of material fact. The late discovery of a fracture in England’s scapula was previously unknown, but definitely a material fact. Therefore, the Supreme Court said based on paragraph four, England has a right to reopen his claim. The case was reversed and remanded with instructions.

Does a Dog Owner Owe a Duty of Care to a Child Who Became Frightened of the Dogs and Ran Into the Street Resulting in Injury? The Colorado Supreme Court tackled this challenging question in N.M. v. Trujillo, (2017 CO 79). In this case, walking past respondent Alexander Trujillo’s (“Trujillo”) home on his way to the playground at Dupont Elementary School, petitioner N.M. became frightened when Trujillo’s two pit bulls rushed at the front-yard fence. Although the dogs did not get out of the yard or touch N.M., N.M., in his fright, ran across the street and was struck by a passing van, which seriously injured him. NM did not show any reason there would be a special relationship between him and Trujillo. Because there was no special relationship that would be necessary to support a viable negligence claim, and there was no foreknowledge that the dog was dangerous, the dog owner had no duty.

What Does “Legally Entitled to Recover” Mean in a Tort Action with Multiple Tortfeasors? The Colorado Court of Appeals got to interpret the language of insurance policies in American Family Mutual Insurance Co., v. Omar Ashour (2017 COA 67). Omar Ashour (“Ashour”) is an employee and co-owner of Nubilt Restoration & Construction (“Nubilt”). While at Nubilt, Ashour was severely injured when he was pinned by a truck to a nearby tractor-trailer. The accident was caused by the negligence of his co-employee, Rebecca Peake (“Peake”), who didn’t set the airbrake on the truck that rolled and pinned Ashour. Ashour filed a claim with Nubilt’s workers’ compensation carrier and received benefits. He submitted a claim to Nubilt’s corporate liability insurance provider and got a settlement because of a policy rider that covered workplace injuries. Ashour then made a claim under his personal automobile insurance policy with American Family Mutual Insurance (“AFI”) for Uninsured/Underinsured Motorist (“UIM”) benefits to recover the rest of his damages. Colorado law requires that all automobile insurance policies insuring against loss resulting from bodily injury or death must provide UM/UIM coverage. After extensive analysis of the interaction of the UIM insurance requirements and the Act, the Court determined the district court misapplied the law and that Ashour’s claim for UIM benefits under his policy with AFI is not barred by the exclusivity provisions of the Act, or by the “legally entitled to recover” language of the policy.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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