September 2016: Summaries of Published Opinions, 1116 COBJ, Vol. 45 No. 11 Pg. 119


45 Colo.Law. 119

September 2016: Summaries of Published Opinions

Vol. 45, No. 11 [Page 119]

The Colorado Lawyer

November, 2016

Colorado Court of Appeals

The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, (click on “Opinions/Rules/Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, (click on “Courts/Court of Appeals/Case Announcements”).

September 8, 2016

2016 COA 126. No. 14CA0401. People v. Hebert.

Theft-At-Risk Adult-Video-Deposition-Sixth Amendment Confrontation Right.

Hebert convinced an elderly man to give her loans totaling several hundred thousand dollars and failed to pay them back. The People charged Hebert with theft from an at-risk adult and tax-related offenses. The victim died before Hebert’s trial, and his two-way video deposition was admitted at trial. Hebert was found guilty of all of the charged counts.

On appeal, Hebert argued that the district court erred by determining on remand that she was ineligible for appointed counsel. She contended that because she was separating from her husband, she no longer had access to his income and was, in fact, indigent. However, the district court’s finding that Herbert had not separated from her husband was supported by the evidence. Therefore, the court did not abuse its discretion in determining that Hebert was not indigent and did not qualify for appointed counsel.

Hebert also contended that she was denied the right to a fair trial when the district court admitted the victim’s video deposition testimony without adequate time for defense counsel to prepare for the examination However, the court allowed defense counsel additional time to prepare for the deposition Therefore, Hebert was not denied the right to a fair trial.

Hebert also argued that admitting the video recording of the victim’s deposition violated her Sixth Amendment confrontation right because she was unable to confront the victim face-to-face at the deposition. The at-risk adult deposition statute provides for videotaped depositions. Here, the victim was in hospice care and his survival was measured in months. Therefore, admitting the video of the victim’s deposition did not violate Hebert’s confrontation rights because (1) the video conference procedure was necessary to protect the health of the victim, and (2) the procedure ensured the reliability of the victim’s testimony. Further, because the victim was deceased at the time of trial and Hebert had a full opportunity to cross-examine him during the deposition, admitting the video deposition did not violate Hebert’s Sixth Amendment confrontation rights.

The judgment was affirmed.

2016 COA 127. No. 15CA0932. Grippin v. State Farm Mutual Automobile Insurance Co. Injuries— Uninsured Motorist /Underinsured Motorist Insurance Coverage—Resident Relative.

Grippin was seriously injured in a motorcycle accident. At the time of the accident, Grippin owned and lived in a home but also lived with his grandparents at their house for approximately one week per month. Grippin received the liability limits from his and the other driver’s insurance policies, but he sought additional coverage through the uninsured motorist/underinsured motorist (UM/ UIM) provisions of his family members’ State Farm policies, on which he was listed as an “other household driver,” to cover his medical bills. State Farm denied payment. Grippin filed claims for breach of contract, bad faith breach of insurance contract, and unreasonable delay or denial of payment of benefits. The trial court granted summary judgment in favor of State Farm.

On appeal, Grippin contended that State Farm’s definition of “resident relative” violates public policy because it provides coverage to a narrower class of persons than the UM/UIM statute, and is therefore void and unenforceable. State Farm’s definition of “resident relative” narrows the statutorily defined class of insureds because relatives who “reside” with the named insured but do not reside “primarily” with the named insured are included under the statute but are not included under State Farm’s policy. It therefore impermissibly limits statutorily mandated coverage and violates public policy.

Grippin also contended that he was alternatively entitled to UM/UIM benefits because of ambiguity in the auto renewal forms. The Court of Appeals concluded that the policies are not ambiguous and Grippin is not entitled to coverage on those grounds.

Lastly, Grippin argued that the auto renewal forms and a State Farm employee’s statement created a reasonable expectation that he was insured and therefore entitled to coverage. Whether Grippin is a resident relative and therefore an insured under the policies is a question of fact yet to be determined; therefore, the Court did not reach the question of whether he had a reasonable expectation of coverage.

The district court’s grant of summary judgment was reversed and the case was remanded for further proceedings.

2016 COA 128. No. 15CA0964. Thompson v. United Securities Alliance, Inc. Judgment—Garnishment —Mandate—Prejudgment Interest—Post -judgment Interest .

Plaintiffs obtained a judgment against United Securities Alliance, Inc. (United), and then instituted garnishment proceedings against Catlin Insurance Company (UK) Ltd. (Catlin), United’s insurer. The district court deducted from the policy limit the amount of attorney fees incurred by Catlin in defending the underlying arbitrations against United, and entered judgment for plaintiffs for the remainder of the policy. The court denied plaintiffs’ requests for pre- and post-judgment interest.

On appeal, plaintiffs contended that the district court acted beyond the scope of the Court of Appeals mandate because, by considering the unredacted attorney fees invoices submitted after the mandate, the district court expressly disregarded the mandate’s instruction to review “the existing record.” Given the unusual procedural posture of this case and the largely “indiscernible” unredacted invoices, the language to review “the existing record” was permissive rather than restrictive, and the remand order meant that the district court could rely exclusively on the existing record to calculate reasonable fees, not that it had to. Accordingly, the district court did not err in considering the unredacted invoices.

Plaintiffs next contended that the district court erred in declining to award prejudgment interest pursuant to CRS § 5-12-102(1). This statute, however, governs contract and property damage cases. Because garnishment actions do...

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