Summaries of Published Opinions, 0119 COBJ, Vol. 48, No. 1 Pg. 96

PositionVol. 48, 1 [Page 96]

48 Colo.Law. 96

Summaries of Published Opinions

Vol. 48, No. 1 [Page 96]

The Colorado Lawyer

January, 2019


November 5, 2018

2018 CO 87. No. 18SA135. Schultz v. GEICO Casualty Co. Insurance—Bad Faith—CRS § 10-3-1115—Fair Debatability—CRCP 35— Independent Medical Exams.

In this original proceeding pursuant to C.A.R. 21, the Supreme Court reviewed the district court's order requiring plaintiff to undergo an independent medical examination (IME), pursuant to CRCP 35, at defendant's request. The Court issued a rule to show cause.

In this case, plaintiff, who was insured by defendant, alleged that defendant insurance company breached its duty of good faith and fair dealing and violated its statutory obligation to evaluate and pay her insurance claim without unreasonable delay. Defendant denied liability, asserting that because the question of medical causation was "fairly debatable" at the time it made its coverage decision, it did not act unreasonably or in bad faith. To establish these defenses, defendant sought an IME of plaintiff, and over plaintiff's objection, the district court granted that request.

The Court concluded that defendant's conduct must be evaluated based on the evidence before it when it made its coverage decision. Thus, defendant is not entitled to create new evidence to try to support its earlier coverage decision. The Court further concluded that the district court abused its discretion when it ordered plaintiff to undergo an IME over three years after the original accident that precipitated this case and a year and a half after defendant had made the coverage decision at issue. The Court therefore made the rule to show cause absolute.

2018 CO 88. No. 18SA204. People v. Cox. Searches and Seizures—Judicial Review or Determination—Scope of Inquiry or Review, in General.

In this interlocutory appeal, the Supreme Court considered whether the trial court erred in ruling that the affidavit in support of a search warrant failed to establish probable cause. The search warrant was obtained after law enforcement officers observed what they believed was a large marijuana grow on defendant's agricultural and residential property. The trial court found that the affidavit was deficient because it failed to mention that defendant was a registered industrial hemp farmer and that marijuana and industrial hemp appear and smell the same.


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