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Scooters. Most Denver metro area residents have probably seen them, zipping down the street. And the sidewalk, and on bike paths. Perhaps in the wrong direction. They can go fast, compared to bikes and pedestrians, and their drivers may or may not have much experience handling them.

If there’s an accident, who pays?

It turns out that under Colorado law, insurance policies can leave a pretty significant coverage gap. This is because many Colorado automobile insurance policies define “vehicles” as having four or more wheels, meaning that there may not be coverage if the holder of such a policy is involved in a scooter accident. While it is possible to purchase separate motorcycle insurance that applies to two wheeled vehicles, it is probably unlikely that many people who don’t own motorcycles or mopeds have it.

Similarly, the general liability coverage found on many Colorado homeowners and renters insurance policies is often defined to not apply to injuries involving motor vehicles, no matter how many wheels they have.

Given the above, if a scooter rider injures a pedestrian or bike rider, the injured party may not have access to any liability insurance, and instead be left to rely on their own health insurance.

The above approach by insurance companies appears to be presently permitted by Colorado law. This is because the Colorado statute that requires certain minimum liability coverages defines a “motor vehicle” as:

C.R.S. 10-4-601(6): ““Motor vehicle” means a “motor vehicle” and a “low-power scooter”, as both terms are defined in section 42-1-102, C.R.S.; except that “motor vehicle” does not include a toy vehicle, snowmobile, off-highway vehicle, or vehicle designed primarily for use on rails.”

In turn, C.R.S. 42-1-102 defines low-power scooters as, pertinently, vehicles designed to be used on public roads (i.e. mopeds and the like), and toy vehicles as vehicles not designed to be used on public roads. This means that electric scooters, at least under current law, probably do not fall within the Colorado laws requiring certain minimum insurance coverages.

 

The 2019 Colorado Legislature has concluded, and the new laws include two affecting most Colorado landlords. These new laws are:

HB 19-1118 extends the time that most landlords must give residential tenants to cure rent defaults and other lease violations from three to ten days. Once signed in to law, this bill will require that demands for possession or compliance to most residential tenants allow ten days, up from three, for compliance before the landlord can file an eviction lawsuit.  However, the ten day time period does not apply to non-residential (i.e. commercial) leases or to employer-provided housing, and a three day demand for possession or compliance will still be allowed in such situations. Additionally, the ten day time period is shortened to five days for landlords who lease five or fewer single family rental homes and provide written notice in their leases that the ten day time period does not apply.

Essentially, HB 19-1118 will require most residential landlords to give ten days when delivering a demand for possession or compliance, however small landlords who properly update their leases will be able to to give five days instead.

HB 19-1106 limits rental application fees to the costs actually incurred by a landlord, and also prohibits landlords from considering rental or credit history older than seven years from the time of an application. It also prohibits landlords from considering most criminal arrests and convictions older than five years, however contains exceptions for certain methamphetamine offenses, sex offenses, and homicide. Additionally, HB 19-1106 requires that landlords disclose their reasons for denying rental applications, and creates a private civil cause of action for prospective tenants to recover rental application fees and penalties in the event of a violation.

The 2019 Colorado Legislature also considered other bills with a more narrow application to landlords, including HB19-1170 (concerning the warranty of habitability) and HB19-1309 (concerning mobile home park lot rentals).

The Colorado House of Representatives has passed HB19-1118, which would extend the time period for tenants to cure lease violations, including nonpayment of rent, from three to ten days. The bill passed on a 38 to 26 vote, and remains to be passed in the senate.

If enacted, the law would require that landlords provide tenants with ten days to cure defaults in rent payments and other lease violations when posting demands for compliance or possession. This would apparently extend the general timeframe of a typical eviction by one additional week, while also, if the bill’s sponsors are correct, increasing the likelihood that a tenant will be able to cure the violation and avoid an eviction becoming necessary.

The full text of the bill and its current status can be found here: https://leg.colorado.gov/bills/hb19-1118

The Colorado Court of Appeals has released its decision in Garcia v. Colorado Cab Company, LLC, 2019COA3, reversing a lower court and holding that a would be passenger who suffered serious personal injuries while intervening in an assault of a cab driver by another passenger could not recover from the cab company.

The Court summarized the altercation as beginning when a passenger refused to pay a cab driver. The cab had no partition, and the passenger began assaulting the cab driver. Another would be passenger, Garcia, approached and told the attacker to leave the cab driver alone, and was also assaulted. The Court described the subsequent events as follows:

Garcia was hit from behind on the head. (He wasn’t sure who hit him.) Glinton (the attacker) got in the driver’s seat of the taxi and sped off. But before going too far, he abruptly turned around and drove toward Garcia and Yusuf (the cab driver), who were standing in a parking lot entry lane. Glinton swerved toward Garcia and Yusuf. Yusuf jumped out of the way, but Glinton hit Garcia with the taxi, ran him over, and dragged him down the street. Garcia’s injuries were extensive — they included shattered ear drums, a traumatic brain injury, a fractured eye socket, three broken ribs, a torn anterior cruciate ligament, other torn ligaments, and more injuries causing hip and back pain.

Garcia subsequently pursued a claim against the cab company, arguing that the cab company owed him a safe pickup location and that it was also liable under the “Rescue Doctrine”. A jury found in Garcia’s favor. However, the Colorado Court of Appeals reversed the trial court’s decision, finding that the cab company did not owe Garcia a safe pickup location because he should have been able to see that the cab was already occupied (by the attacker), and so he was essentially not a prospective customer. The Court also found that the Rescue Doctrine – which allows a would be rescuer to recover for injuries caused by a third party’s negligence as to the party in peril – did not apply because Garcia attempted to intervene verbally, rather than physically.

While the situation faced by Garcia appears unusual, the Court’s decision could apply to individuals injured by passengers of not only cab companies, but also ride sharing services.

The decision is available in full at: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2019/17CA1381-PD.pdf

If you are going to host a house party with 120 or so attendees, one way to limit your liability is to fail to check IDs. This is the apparent take away from the Colorado Supreme Court’s decision announced today in Przekurat v. Torres, 2018CO69.

The case involved life altering injuries sustained by the passenger in a vehicle driven by a twenty-year-old man after being served alcohol at a house party. The driver and passenger had attended the party with a third individual, and the party’s host had greeted the three by saying to the third individual that “I don’t really know these other people, but I know you.” No IDs were apparently checked, and after a night of drinking, the three were involved in a single vehicle rollover crash around 2 a.m. that night.

The injured party argued that “constructive knowledge” – that someone should have known – should be enough to establish social host liability for serving alcohol to a minor under Colorado’s Dram Shop Act, C.R.S. 12-47-801. However, the Dram Shop Act places significant limits on the liability of alcohol vendors, including social hosts, to third parties injured by drinkers they have served. In the case of social hosts, the Dram Shop Act places liability only on social hosts who “knowingly” provide individuals under age twenty-one with alcohol or a place to drink. The Colorado Supreme Court has now held that “knowingly” requires actual knowledge, and it is not enough to show that a social host had constructive knowledge that minors were in attendance at their event.

 

 

The Supreme Court has granted a Petition for Writ of Certiorari on Court of Appeals Case No. 14CA1392 with Petitioner Lance Webster Margerum versus the Respondent the People of the State of Colorado.

The issue is whether a single physical act of assault without any additional corroborating evidence such as additional physical actions or verbal threats can be enough to support a conviction for both assault and menacing.

When looking at the definition of “assault” in Colorado we see that a person commits the crime if “the person knowingly or recklessly causes bodily injury to another person or with criminal negligence the person causes bodily injury to another person by means of a deadly weapon.”

The definition of “menacing” in Colorado is defined as a person commits the crime if “by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.”

The distinction here is that one crime requires an actual bodily injury, while the other crime does not. Assault requires that you injure someone, menacing requires only that the person is fearful of a potential impending serious bodily injury. A factual scenario that describes the differences would be: if someone punches you, they commit assault, if someone acts as if they are going to punch you, swings at you, but was attempting to only scare you and doesn’t make contact, that would be menacing.

So, if you get punched, could that be assault because of the injury, but also menacing because you were fearful of the punch before it happened? Common sense seems to indicate you were assaulted, or you were menaced, but not both. That once the physical contact occurred, you were no longer menaced, but instead assaulted.

Thus, we end up with a situation where the same act could have potentially two different mental states at the exact same time. Did you know your actions were intended to cause fear of imminent serious bodily injury, or did you know that your actions were intended to cause serious bodily injury? Because you could have only intended on one end result, such as causing injury or causing fear of an injury, you would not be able to have a mental state associated with the other crime.

As one of Colorado’s hottest summers on record continues on, a common question for landlords and tenants alike seems to be whether a landlord is obligated to fix things like electrical issues and broken air conditioning units.

By statute, residential leases in Colorado contain an “implied warranty of habitability”, which requires that the residence be fit for human habitation. C.R.S. 38-12-501, et seq. Generally, Colorado law requires that rental homes substantially have the following in good working order:

• waterproofing and weather protection of roofs, walls, windows, and exterior doors;
• functioning plumbing and, if applicable, gas lines;
• running water;
• hot water;
• heating;
• electricity;
• reasonably clean common areas;
• appropriate extermination efforts of rodents and other vermin;
• appropriate exterior trash receptacles;
• floors, stairways, and railings;
• locks on exterior doors and latches on exterior windows; and
• compliance with building, housing, and house code provisions which, if violated, would constitute a danger to a tenant’s life, health, or safety.

Thus, a landlord that fails to address leaking plumbing, electrical wiring issues, or damaged windows, as common examples, would potentially be in breach of the warranty of habitability. In general, if a landlord breaches the warranty of habitability by failing to repair issues within a reasonable amount of time after receiving written notice from a tenant, the tenant can break his or her lease and move out.

One thing notably absent from the above list is air conditioning. While this may seem surprising in the context of record summer temperatures, under the current law a landlord is nonetheless generally not required to provide air conditioning.

However, if a local building, housing, or house code requires air conditioning, a landlord’s failure to provide it could be a breach of the warranty of habitability. Similarly, an electrical, weather proofing, or plumbing issue that leads to non-functional air conditioning could also be a breach of the warranty of habitability.

Thus, while a landlord generally has a strong defense to a tenant’s claim that the landlord violated the warranty of habitability by not providing air conditioning, non-functional air conditioning could implicate the landlord’s other obligations under Colorado’s warranty of habitability.

Getting involved in a legal dispute – whether civil or criminal, no matter the size – can be confusing and stressful. It’s natural to want a quick resolution. It’s natural to want to win. However, it is also important to understand what the judge and/or jury will be relying on in deciding who wins, and to understand your chances of success ahead of time.

Law vs. fact

Nearly every trial involved disputed questions of fact – was the defendant driving while impaired by alcohol? Which party’s negligence caused the motor vehicle collision? What was the dollar amount of damages caused to the plaintiff? These issues will be decided by the “finder of fact” – either the jury, or the judge if there is no jury. Parties, and their attorneys, can present evidence, such as witness testimony or exhibits, supporting their positions on the facts. The ultimate determination, however, will be made by the jury (or judge). This determination will be made at or after the trial, which may be months or even years after a lawsuit is filed.

If there are no significant factual disputes, it may be possible for a court to decide a case before trial. However, this is the exception, not the norm.

Some trials also involve disputed legal issues. However, the law applicable to a particular situation is often fairly well established, and often the most significant questions for trial are over what occurred factually.

Elements of proof

Nearly every trial involves specific legal claims, which in turn have specific elements. Personal injury lawsuits, for example, often include a claim for negligence – it may even be the only claim. To win on a negligence claim, the injured party needs to establish:

• that the defendant owed a duty (such as a general duty to not drive negligently);
• that the defendant breached that duty;
• that the plaintiff suffered harm; and
• that the defendant’s breach caused the plaintiff’s harm.

For a plaintiff to win at trial on a negligence claim, the jury generally needs to find that the factual evidence presented supports each of the above legal elements. In a civil case, the findings generally need to be by a “preponderance of the evidence” – 51% or more – as compared to a criminal case where the findings generally need to be beyond a reasonable doubt to support a conviction.

The importance of evidence

As the above may suggest, trials are often won by having better factual evidence than the other side. If a DUI suspect crashes her vehicle in to someone’s living room and gives a blood test that shows a BAC four times the legal limit, the prosecution will probably win at trial because it has overwhelming factual evidence. In less lopsided situations, the side that wins at trial may have won because it spent more time and effort investigating and understanding the facts before trial.

If you are involved in a lawsuit and hire an attorney, it is important to fully answer your attorney’s questions. This will allow him or her to present as much factual evidence in your support as possible, and to confront harmful facts in the best possible way. Unfortunately, trials are usually not won by winning the judge’s sympathy, by novel legal arguments, or by opposing parties slipping up on the witness stand. Rather, hard work and thorough investigation of the facts is often the best way to maximize the chance of winning at trial.

When purchasing or renewing an automobile insurance policy, you may be tempted to try to make your premium as low as possible. Your insurance agent might even tell you that medical payments coverage (also known as “medpay”) isn’t much different from underinsured/uninsured motorist coverage, and so why pay for it at all?

Think twice before rejecting medpay.

In Colorado, there are at least three major differences between medpay and underinsured/uninsured motorist coverage (known as UM/UIM coverage).

First, UM/UIM coverage is generally not available if you are found to be at fault for causing a motor vehicle collision. Medpay is.

Second, UM/UIM coverage is as a practical matter not available immediately after the collision. For an injured person to be entitled to UM/UIM coverage, it needs to be established that the at fault driver was uninsured or underinsured, which can often require waiting for a coverage investigation by his or her insurance company, and if there is even minimal coverage you may need to wait until your damages clearly exceed that coverage before your own UM/UIM coverage will be available. Traditionally, insurance companies often did not extend underinsured motorist benefits at all until the injured party reached a policy limits settlement with the at fault driver’s insurance company. In contrast, medpay benefits are generally available as soon as you have incurred collision-related medical bills.

Third, under Colorado law your insurance company generally has no right to be repaid for medpay benefits if you reach a settlement with the at fault driver’s insurance company. This is in contrast to other ways of paying for collision related medical bills, such as health insurance or medical liens. For example, if you incur $5,000 in medical bills for chiropractic care, have $5,000 in medpay benefits, and your automobile insurance company pays the chiropractor with your medpay, it will have no right to be paid back if you later settle with the at fault driver’s insurance company. This is true even if the at fault driver’s insurance company’s offer includes the chiropractor’s bills. 

On Monday, May 21, 2018, the Colorado Supreme Court announced two new decisions in the area of personal injury law.

In City & County of Denver v. Dennis, 2018CO37, the Court held that a motorcyclist who suffered serious injuries due to the condition of a Denver street could not recover because the street’s condition was not so bad that it posed an unreasonable risk that physically interfered with the flow of traffic. This case demonstrates the difficulty of bringing claims subject to Colorado’s Governmental Immunity Act.

In State Farm v. Fisher, 2018CO39, the Court upheld a Colorado Court of Appeals decision requiring insurance companies to provide underinsured and uninsured motorist benefits promptly, even when there is a dispute as to the amount of benefits the claimant is entitled to. The Court held that the insurance company must promptly pay the undisputed portion of benefits. This case is consistent with other recent Colorado law requiring that insurance companies pay their own insureds’ first party claims promptly, rather than delaying any payment until a full and final payment was agreed to.