Summaries of Selected Opinions, 1016 COBJ, Vol. 45, No. 10 Pg. 101

45 Colo.Law. 101

Summaries of Selected Opinions

Vol. 45, No. 10 [Page 101]

The Colorado Lawyer

October, 2016

U.S. Court of Appeals for Tenth Circuit

Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").

No. 15-1218. KCOM, Inc. v. Employers Mutual Casualty Co. 07/19/2016 D.Colo. Judge Baldock Diversity—Appellate Jurisdiction—Non-Final Order—State Law Cannot Confer Federal Jurisdiction— Collateral Order Doctrine.

KCOM, Inc. sought payment from its insurer Employers Mutual Casualty Company (EMC) for damages to its motel. EMC disagreed about the extent of the damage. KCOM invoked the insurance contract's appraisal provision Dissatisfied with the appraisal process, KCOM sued the insurer for unreasonably delaying and denying benefits. EMC removed the case to the district court based on diversity jurisdiction The district court stayed the matter pending completion of the appraisal process. An umpire and EMC's appraiser agreed to an appraisal award, but KCOM objected. EMC filed a motion to confirm the appraisal award, invoking the Colorado Uniform Arbitration Act (CUAA). The district court denied the motion, stating that issues remained for further proceedings, including a trial.

EMC appealed the denial of its motion to confirm the award, arguing that the CUAA provided jurisdiction. The Tenth Circuit rejected EMC's argument, holding that state law cannot provide a federal court jurisdiction over an interlocutory appeal. Although the Tenth Circuit would have had interlocutory jurisdiction if the action had been brought under the federal arbitration act, EMC did not invoke this federal law, perhaps because the relevant provision conditions judicial confirmation on the parties' prior agreement to have judgment entered on an award.

The Tenth Circuit also rejected EMC's argument that the collateral order doctrine could provide appellate jurisdiction A desire to avoid trial is alone insufficient to warrant invocation of the doctrine. EMC's claim that a failure to review the appraisal award would subject the umpire and appraiser to unwarranted discovery was also insufficient to invoke the doctrine.

The appeal was dismissed for lack of appellate jurisdiction.

No. 15-1256. CEEG (Shanghai) Solar Science & Technology Co., Ltd. v. LUMOS LLC. 07/19/2016 D.Colo. Judge Lucero. Arbitration—Chinese Language—Notice Not Reasonably Calculated to Apprise of Arbitration Proceedings—Prejudice.

CEEG (Shanghai) Solar Science & Technology Co., Ltd. (CEEG), a Chinese company, agreed to sell products to LUMOS LLC, a U.S. company. The parties' original agreement provided that all notices were to be in English, disputes were to be arbitrated, and details regarding individual orders were to be set forth in subsequent contracts. A subsequent sales contract did not include an English-language provision After receiving several shipments under the sales contract, LUMOS filed a warranty claim alleging workmanship defects and refused...

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