Proposed C.r.c.p. Rule 109.1: the Mandatory Arbitration Act Pilot Project

Publication year1987
Pages1809
16 Colo.Law. 1809
Colorado Lawyer
1987.

1987, October, Pg. 1809. Proposed C.R.C.P. Rule 109.1: The Mandatory Arbitration Act Pilot Project




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Vol. 16, No. 10, Pg. 1809

Proposed C.R.C.P. Rule 109.1: The Mandatory Arbitration Act Pilot Project

Hearing to be December 3, 1987

On May 28, 1987, the Colorado Mandatory Arbitration Act, CRS § 13-22-401 et seq., was approved by the Governor. That Act created a pilot project in eight judicial districts to apply to all civil cases filed in District Court after January 1, 1988, which seek money damages of $50,000 or less. A special Supreme Court Committee on Rules for Arbitration has drafted a proposed Rule 109.1 of the Colorado Rules of Civil Procedure to implement this pilot program. The full text of proposed Rule 109.1 is published here, followed by the Committee Comment. Included in the Committee Comment is a summary of the main parts of the proposed Rule.

The Committee has submitted the proposed rule to the Supreme Court and the Court has ordered a public hearing to be held on December 3, 1987, at 2:30 P.M. in the Supreme Court Courtroom. Any person wishing to be heard on the proposed Rule 109.1 should advise the Supreme Court Clerk's Office by November 25, 1987. Any written comments or suggestions should be submitted by November 25, 1987, to:

Clerk of the Supreme Court

2 East 14th Ave.

Denver, CO 80203

with a copy to:

Judge Kenneth K. Stuart

2069 West Littleton Blvd.

Littleton, CO 80120

PROPOSED NEW RULE
Rule 109.1 Mandatory Arbitration

(a) Scope. This rule shall be applicable only in the First, Third, Sixth, Seventh, Eighth, Fourteenth, Eighteenth and Twentieth Judicial Districts and shall apply only to actions commenced on and after January 1, 1988. This rule rather than C.R.C.P. 109, CRS § 13-22-201, et seq., and CRS § 13-22-301, et seq., shall apply to civil cases where the amount certified in the complaint and the amount certified in any counterclaim, any cross-claim or any third-party claim does not exceed $50,000, exclusive of interest and costs. If the certified amount in a complaint, counterclaim, cross-claim or third-party claim is greater than $50,000, no part of the action shall be subject to arbitration except by agreement of the parties. Mandatory arbitration shall not apply to any action in which an equitable remedy is sought. A controversy involving a governmental entity or governmental employee under CRS § 24-10-101, et seq., shall not be subject to mandatory arbitration unless all parties agree by written stipulation. A party meeting Supreme Court indigency standards may, but is not required, to participate in arbitration under this rule.

(b) Certification of Amount and Exemption. (1) Subject to the provisions and sanctions of C.R.C.P. 11, every complaint, counterclaim, cross-claim and third-party claim filed in the Judicial Districts subject to this rule shall contain a certification labeled "CERTIFICATION CONCERNING MANDATORY ARBITRATION" placed at the beginning of the pleading containing the complaint, counterclaim, cross-claim or third-party claim, stating (A) That the probable amount of recovery, exclusive of interest and costs, exceeds or does not exceed $50,000; (B) That the party making the certification and the complaint, counterclaim, cross-claim or third-party claim is or is not exempt from arbitration; and (C) The basis for any exemption.

(2) If a defending party claims to be exempt from mandatory arbitration, that defending party shall so state in a paragraph placed at the beginning of that party's answer and labeled "EXEMPTION FROM MANDATORY ARBITRATION". The paragraph shall state, subject to the sanctions of C.R.C.P. 11, the basis for the claimed exemption.

(c) If Certification is Omitted---Sanctions. (1) If the required certification is omitted in the complaint, the clerk of the district court shall notify the plaintiff or plaintiff's attorney by issuance of a written notice. If the deficiency is not cured within twenty days of the date stated in the notice, the complaint shall be dismissed by the clerk without further notice. An amendment to add or correct the required certification shall be automatically permitted without a motion and without any order of court.

(2) If the required certification is omitted in a counterclaim, cross-claim or third-party claim, it will be the responsibility of the plaintiff to bring the omission to the attention of the clerk of the district court and all other parties by filing and serving a written request for dismissal for failure to include the required certification. Any other party may also file and serve a written request for dismissal for failure to include the required certification. If the deficiency is not cured within twenty days of the date stated in the notice, the counterclaim, cross-claim or third-party claim shall be dismissed by the clerk without further notice. An amendment to add or correct the required certification shall be automatically permitted without a motion and without any order of court.

(3) A failure of a party to claim an exemption from mandatory arbitration shall constitute an agreement by that party to mandatory arbitration. An amendment to add or correct an exemption shall be automatically permitted without a motion and without any order of court if filed and served no later than the date the case is at issue as defined by section (g) of this Rule.

(d) Selection of Arbitrators. (1) Within ten days after the case is at issue as defined by subsection (g) of this Rule, and it appearing from the certification in the pleadings that the case is to be arbitrated, each party, or if there are more than two parties, each side, shall forthwith designate a competent and impartial arbitrator. The two




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arbitrators shall select a third arbitrator. If the two arbitrators are unable to agree on the third arbitrator, any party may request that the court appoint the third arbitrator in the manner specified in subsection (3) of this section The arbitrators shall agree on a chairperson.

(2) The parties may agree to arbitration before a single arbitrator. If the parties are unable to agree on the person to serve as the single arbitrator, any party may request that the Court appoint the arbitrator in the manner specified in subsection (3) of this section.

(3) In the absence of agreement by the arbitrators or the parties, the arbitrator or arbitrators shall be appointed by the court. The arbitrators need not be attorneys. No person may be appointed by the court unless that person is a competent and qualified arbitrator who has filed with the court a consent to act as arbitrator in the district in which the court is located.

(4) A competent arbitrator is a person who meets the requirements of CRS § 13-70-109 to serve as a juror, except that the person need not reside in the Judicial District where the case is pending. A qualified arbitrator is a person who meets the competency requirements of this rule and has filed a consent to serve as an arbitrator in the Judicial District where the case is pending. The court shall use its discretion in its appointment of an arbitrator and may take into consideration the nature of the case and any special knowledge, skill, training or experience which may be helpful in determining the particular controversy. To be an arbitrator a person must be willing to sign an oath or affirmation under penalty of perjury that he or she meets the requirements of CRS § 13-70-109, will be completely impartial and will fairly and justly determine the issues in the case.

(5) Promptly after an arbitrator is selected, he or she shall sign, file with the Court and mail to each party the affirmation/oath set forth in Form...

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