1988 Update on Colorado Tort Reform Legislation-part Ii

• Publication year: 1988
• Pages: 1949
• Citation: Vol. 17 No. 10 Pg. 1949

17 Colo.Law. 1949 Colorado Lawyer 1988.

1988, October, Pg. 1949. 1988 Update on Colorado Tort Reform Legislation-Part II

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Vol. 17, No. 10, Pg. 1949

1988 Update on Colorado Tort Reform Legislation---Part II

by John G. Salmon

Part I of this article, appearing at page 1719 in the September 1988 issue of The Colorado Lawyer, covered the significant legislative changes which drastically modified medical malpractice law. Part II summarizes and analyzes the other legislative changes in the area of tort law enacted by the 56th Colorado General Assembly in 1987 and 1988. This article also includes judicial developments which have had a significant effect on the 1986 tort reform.

The following topics are discussed---changes in: statutes of limitations; mandatory arbitration; limitations on claims for injuries sustained while committing a felony; immunity for volunteers; limited liability for persons serving as officers, directors or employees of corporations; claims against insurance companies; immunity for providing evidence as to insurance fraud; mandatory seat-belt legislation; elimination of strict liability as applied to public water/sanitation facilities; reenactment of joint liability when conspiracy exists; developments in dram shop law; changes regarding who may prosecute wrongful death actions; recovery of expenses by defendants when certain civil cases are dismissed; and limitations on liability of certain private landowners.

STATUTES OF LIMITATIONS

1. Senate Bill 75 (1987)

2. Amends: CRS §§ 13-80-101(1)(a), (1)(c) 102(1)(b), 103(1)(f), 103.5, 107 (1)(a)

3. Adds: CRS § 13-80-108(10)

4. Effective Date: July 1, 1987

In the tort reform of 1986, Senate Bill 69 drastically changed the statutes of limitations. In 1987, Senate Bill 75 made further minor changes.

One-Year Statute Of Limitations

In 1987, Senate Bill 75 added a subsection to those causes of action subject to a one-year statute of limitations.(fn1) This new section concerns actions brought under CRS § 12-61-303 (the Real Estate Recovery Fund Act) for negligence, fraud, willful misrepresentation, deceit or conversion of trust funds. The statute now specifically provides that no order for payment from the Real Estate Recovery Fund may issue unless the underlying suit is commenced within one year after the cause of action accrued.(fn2)

Two-Year Statute Of Limitations

Senate Bill 75 also removed breach of warranty from the two-year statute of limitations found in CRS § 13-80-102 (1)(b). Breach of warranty actions now appear to be included under the three-year statute of limitations found in CRS § 13-80-101(1)(a) and apparently will be treated as a matter of contract.

Three-Year Statute Of Limitations

Senate Bill 75 added to CRS § 13-80-101 the following causes of actions now subject to a three-year statute of limitations: (1) all actions in debt under CRS § 40-30-102; and (2) all actions for recovery of erroneous or excessive refunds of any tax pursuant to CRS § 39-21-102.(fn3)

Six-Year Statute Of Limitations

Senate Bill 75 amended CRS § 13-80-103.5(1)(a) to include all actions to recover a liquidated debt or an unliquidated determinable amount of money due to the person who is bringing the action.(fn4)

MANDATORY ARBITRATION

1. Senate Bill 22 (1987)

2. Adds: CRS, Part 4 of Article 22 of Title 13

3. Effective Dates: January 1, 1988, to July 1, 1990

[Please see hardcopy for image]

John G. Salmon is a shareholder of John G. Salmon, P.C Denver, a law firm which emphasizes plaintiff's personal injury law. The author wishes to extend deep appreciation to Fran-cine Salazar, whose tireless research contributed greatly to this article.

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As of January 1, 1988, the First, Third, Sixth, Seventh Eighth, Fourteenth, Eighteenth and Twentieth Judicial Districts are subject to a pilot project involving mandatory arbitration. Senate Bill 22 is incorporated in the new C.R.C.P. Rule 109.1, which outlines both forms and procedure. In these jurisdictions, any civil action seeking money damages in the sum of $50,000 or less must be assigned for mandatory arbitration once the matter is at issue between the parties. This bill also applies to any counterclaim or cross-claim seeking damages of $50,000 or less.(fn5)

A claim filed with the courts of these jurisdictions must now contain a certification stating whether or not the probable amount of recovery exceeds $50,000, exclusive of interest and costs. Certification of an amount of less than $50,000 will cause the case to be arbitrated within ninety days of the date on which the case is at issue between the parties. If the court finds this certification lacks substantial justification, the opposing party shall be awarded attorneys' fees pursuant to CRS, Article 17 of Title 13.(fn6)

The arbitration requirement does not apply to county court cases or small claims cases; to any civil action in which an equitable remedy is sought; or to any party who meets existing indigency standards.(fn7) This requirement is also inapplicable to any actions governed by the voluntary arbitration provisions of C.R.C.P. Rule 109, the Uniform Arbitration Act(fn8) or the Dispute Resolution Act.(fn9) A Certification of Exemption, as in the complaint, must also be placed at the beginning of a defendant's answer to avoid arbitration.(fn10) Failure of a party to claim an exemption from mandatory arbitration shall constitute an agreement by that party to arbitrate.(fn11)

The selection of arbitrators can prove to be either a simple or a complex process. The parties may agree to arbitration before a single arbitrator or go through the process of having each party select a competent and impartial arbitrator, the two arbitrators then selecting a third arbitrator.(fn12) If the two arbitrators are unable to agree on the third arbitrator, any party may request that the court appoint the third arbitrator.(fn13) Moreover, if the parties wish to have a single arbitrator but are unable to agree on the person, any party may request that the court appoint such an arbitrator.(fn14)

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 C.R.C.P. Rule 109.1(c), will be completely impartial and will fairly and justly determine the issues in the case. 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. An arbitrator need not be an attorney. It is within the court's discretion when appointing an arbitrator to 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.(fn15)

Discovery under the Mandatory Arbitration Act is extremely limited. A party may take one deposition of each opposing party and one other deposition. The manner and use of depositions is governed by C.R.C.P. Rules 26, 28, 29, 30, 32, 45 and 121, with the exception that matters concerning discovery will be determined by the arbitrators and not by the court.(fn16)

A party may also serve one set of written interrogatories upon each opposing party. Once again, although matters concerning such discovery are to be decided by the arbitrators instead of the court, the scope and manner of proceeding by way of interrogatories and the use of interrogatories is to be governed by C.R.C.P. Rules 26 and 33. However, the number of interrogatories to any one party cannot exceed ten, each interrogatory consisting of a single question.(fn17)

C.R.C.P. Rule 35 will continue to control the request by an adverse party to obtain a mental or physical examination of a party or person. The mental or physical condition of a party (or of a person in the custody or under the legal control of a party) must be in controversy to trigger the...