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Committees back to work this week

Now that both chambers have debated and amended Colorado’s state budget, committees return to work this week when four civil justice bills are slated for consideration, culminating with Friday’s Senate Appropriations Committee meeting on Senate Bill 5.

The bill by Sen. Jessie Ulibarri (D-Adams County) and Rep. Jonathan Singer (D-Longmont) was amended in both Senate Judiciary and Senate Finance more than two months ago but has been parked in Senate Appropriations, pending resolution of the state budget, because it requires $460,907 in new expenditures. Read more

Governor signs three bills

While legislators turned their attention to the state budget last week, Governor Hickenlooper signed three bills – a mixed lot at that:

  • Senate Bill 138 provides greater protection from liability for volunteers and emergencies, although its efficacy was watered down by amendments in the Senate State Affairs Committee.  It passed the Senate, 35-0, and House, 63-0 with two excused.
  • House Bill 1065, which tramples on freedom to contract by prohibiting the inclusion of an indemnity clause in motor-carrier contracts, gained momentum in the Senate (passing 33-2) after a contentious battle in the House (41-23, one excused).
  • Senate Bill 97 clarified the boundaries of liability between governmental entities and insurance companies when the latter employ privately-hired firefighters to protect insured customers against wildfires.  This bill passed the Senate, 35-0, and the House, 63-0 with two excused.

Little action on civil justice bills is likely in the coming week, as none are scheduled for a hearing until Tuesday, April 8.  Meanwhile, House Bill 1302 (double damages for creditor claims) cleared House Judiciary on a 10-0 vote after being significantly amended to resolve many concerns which CCJL had with the original version (see Legislative Update).  The bill could be debated in the House of Representatives beginning today.

Personhood debate takes civil litigation angle

Civil remedies available to women who lose their unborn children as a result of the wrongful acts of another would be defined by House Bill 1324, which was recently introduced. The bill is a defensive measure by pro-choice advocates in advance of the impending debate over the latest citizen initiative by some pro-life groups to define personhood in the Colorado constitution.

As introduced, the bill creates specific civil remedies for “unlawful termination of a pregnancy,” which was defined as a specific crime by House Bill 1154 (2013). The bill specifically exempts most health care professionals and facilities from liability.

As introduced, the bill has its share of oddities – not the least of which is that the value of a case involving an unborn child is greater than that of a case involving the death of a child who is born. In the former, a woman could recover damages and costs, plus attorney fees. However, attorney fees are not available under the existing wrongful death statute.

The bill also potentially expands litigation by turning minor auto accidents into major lawsuits if, for example, a woman who did not know she was pregnant at the time of an accident subsequently suffers a miscarriage which could then arguably be related to the accident.

No good deed goes un-litigated

We’ve long complained that judges in Colorado courts are loathe to label even the most ridiculous lawsuits as “frivolous.”  However, a lawsuit filed by a man who was rescued from his car during last summer’s flooding provides a true test of whether our state’s frivolous lawsuit statute is a dead letter.

Roy Ortiz and his attorney have served notice that they intend to file a lawsuit claiming that emergency responders didn’t rescue him soon enough during the region-wide flooding that occurred in September 2013.

According to the Denver Post, Ortiz was driving to work on Sept. 12 when his car slid off Dillon road and into Rock Creek.  He was trapped in his car for two hours, he says, although rescuers say they had him out of the car just over an hour after receiving the 911 call.  Later Ortiz thanked North Metro Fire rescuers after he was released from the hospital.

Now he’s preparing to sue the very rescuers who saved him in a lawsuit that clearly appears to be concocted.

His personal injury lawyer says he “needs help paying $40,000 in medical bills,” so suing those who saved him is his only option.  And for good measure he wants a total of $500,000.

“It’s unfortunate to have to try and cast liability and responsibility for this act of God on the men and women who risked their own lives,” said Ortiz’s attorney.

That statement alone should be enough to dismiss the case.  God doesn’t respond to subpoenas and Mr. Ortiz apparently wasn’t adequately insured, so now he and his personal injury lawyer are turning to “jackpot justice.”

If this case doesn’t satisfy the court’s test for frivolity then nothing does.

Agri-tourism gets committee makeover

The agritourism liability bill, discussed here last week, is in much better shape today after the House Judiciary Committee approved an amendment which preserves the best parts of House Bill 1280 and corrects some inconsistencies between Colorado law and others after which this bill was patterned.  A more complete description appears in our Legislative Update.

Agritourism bill leaves farms and ranches more exposed

A bill intended to increase protections for farms and ranches that allow tourists onto their property for an up-close look at real-life agriculture may actually increase exposure to lawsuits for working farms and ranches, an analysis by Colorado Civil Justice League indicates.

“I know the intentions behind this bill are noble, but the fact is that ordinary farms and ranches actually lose protections,” said CCJL executive director Mark Hillman, who also operates a farm on the Eastern Plains. “Let’s hope these shortcomings can be fixed, so the bill truly is helpful to agriculture.”

Under current law, farms and ranches that allow or invite visitors to watch or participate in ordinary activities related to agriculture are required to “exercise reasonable care” or to give a “warning of any dangers that are ordinarily present.”  HB 1280 removes the option to “exercise reasonable care.” Read more

Few bills escape ‘committee carnage’ week

House and Senate committees significantly pared the slate of civil justice bills last week, killing five of six bills that received hearings in their first committee.  That’s not necessarily bad news.  Frankly, if the legislature would kill five out of every six bills introduced (on any subject), Coloradans would be better for it!

Last week’s “committee carnage” claimed bills from across the philosophical spectrum, erasing some bills that would have increased litigation and nixing others that aimed to deter litigation:

  • Senate Bill 74, which would have repealed last year’s “Sue Your Boss Bill,” was killed in Senate State Affairs on a party-line vote.  Sen. George Rivera sponsored this effort.
  • Senate Judiciary, on the other hand, voted to kill SB 10 which would have created considerable contention between owners of mobile home parks and their tenants.  Sponsor Sen. John Kefalas asked the committee to kill his bill and stated that he will try again with a different approach in the future.
  • Rep. Kevin Priola aimed to thwart frivolous lawsuits with House Bill 1153, which would have awarded attorney fees to the prevailing party when certain cases are dismissed.  However, the bill was sideswiped by a ridiculous cost estimate by compiled legislative staff.  House Judiciary killed the bill on a 9-2 vote. Read more

Shakedown racket looms in Senate Bill 118

Senate Bill 118 is presented as a bill that merely updates Colorado law to conform to the Americans with Disabilities Act and provides some nice protections for people with service animals.

If only that were all it does.

Tucked away within the provisions of this 27-page bill is a looming shakedown racket for plaintiff’s lawyers and yet another threat to Colorado businesses.

Sponsored by Sen. Pat Steadman (D-Denver), the bill astronomically increases penalties for all types of discrimination in public accommodation and employment – not just those related to disability – by as much as 7000% (yes seven thousand percent) from a range of $50 to $500 in current law to a stipulated penalty of $3,500 with no discretion allowed. Read more

Supreme Court to weigh limits on marijuana use off the job

Supreme Court justices have decided to review a case which determined that employers continue to have a right to fire employees for marijuana use away from the workplace, the high court announced.

In Coats v. Dish Network, the Colorado Court of Appeals ruled, in a 2-1 decision, ruled Dish was within its right to fire a quadriplegic man who was a medical marijuana patient.  Coats argued that, because his marijuana use was legal under state law, his employment was protected under a Colorado law that protects employees from being fired for “lawful activities” away from the workplace.  Judges Janice Davidson and Jose Marquez ruled that marijuana use is not a protected activity because it remains illegal under federal law.

“This decision could have a significant impact on Colorado employers, particularly those that drug-test their employees or have safety-sensitive positions,” said Chris Ottele, an employment attorney at Husch Blackwell who also chairs the Colorado Civil Justice League’s legal advisory board.

CCJL is leading an effort to submit a “friend of the court brief” in support of the rights of employers.