Joann L. Vogt

This case involves a dispute among members of several LLCs formed for real estate development, where plaintiff Daniel Young sued Eric Bush and related entities, asserting derivative claims on behalf of the LLCs for alleged mismanagement and other issues, plus a direct claim for breach of a settlement agreement. The trial court granted summary judgment dismissing the derivative claims under Colorado statute section 7-80-716, which allows dismissal if a majority of independent members determine that pursuing the action is not in the LLCs' best interests, finding no genuine issues regarding independence or inquiry adequacy. The appellate court reversed, holding that the plaintiff should be permitted discovery to investigate the members' independence and the adequacy of their inquiry before dismissal, and that the direct claim for breach of settlement should be reinstated, while affirming that certain claims for records and accounting were properly treated as derivative.

business & regulatoryprocedure

This case involved an insurance coverage dispute arising from a 2008 wildfire in Colorado that injured one defendant and damaged others' property. After the insurer paid the $1 million limit under a farm liability policy covering the LLC-owned property where slash burning occurred, the parties sought a judicial determination on whether an additional homeowners policy (with a $500,000 limit) also provided coverage for the insured Larry Gerbaz and his wife. The trial court granted summary judgment to the defendants, finding neither the business pursuits nor owned premises exclusions in the homeowners policy applied. The Court of Appeals affirmed the ruling on the owned premises exclusion, holding that it did not bar coverage because the farm property was titled in the LLC (a separate entity) rather than owned by the individual insureds, but reversed and remanded on the business pursuits exclusion for further proceedings to determine its applicability based on the facts of the leasing activity.

propertytorts & liabilityprocedure

In Yeiser v. Ferrellgas, Inc., the plaintiff sued the defendant for breach of contract after the defendant failed to timely deliver propane gas, causing pipes in the plaintiff's home to freeze and resulting in damage. The jury awarded the plaintiff $314,323.21 in damages, but the trial court offset this amount by $212,071.94 that the plaintiff had received from her homeowners insurance. On appeal, the court held that the collateral source rule did not bar a setoff because the defendant had contributed by settling the insurer's subrogation claim, but the setoff should have been limited to the $172,657.55 actually paid by the defendant to the insurer, and remanded for recalculation of the judgment and prejudgment interest accordingly.

business & regulatoryprocedure

The case involved judicial review of an administrative decision by the Colorado Division of Wildlife suspending plaintiff Leonard Quercioli's hunting and fishing licenses for 25 years total under wildlife statutes. Plaintiff had prior suspensions in 1998-2000 (including a two-year extension for buying licenses during suspension) and 2005, which the agency treated as three strikes triggering an additional 20-year suspension under the "three strikes" provision of section 33-6-106(8). The court reversed that portion of the suspension, holding that the two-year extension under section 33-6-106(6) is not a separate suspension but merely lengthens an existing one, based on the statute's plain language distinguishing extensions from new suspensions authorized under section 33-6-106(1). The matter was remanded for further proceedings consistent with this interpretation.

criminal lawenvironmentprocedure

The case involved a psychologist, Laurence Aylesworth, who appealed a probate court order approving a $15,000 personal injury settlement for a minor child injured in a car accident; the settlement did not include payment for Aylesworth's therapy services treating the child's post-traumatic stress disorder. The probate court had approved the settlement, which placed remaining funds in an annuity for the child after attorney fees, concluding that the child's mother was responsible for medical bills and that a lien agreement with her was not enforceable against the child's settlement funds. The Colorado Court of Appeals vacated the order, holding that the lien was not enforceable against the child's estate but that further proceedings were needed to determine if Aylesworth could recover on a quantum meruit or unjust enrichment theory, provided the services' reasonable value was shown and the parents were unable or unwilling to pay.

family lawtorts & liabilityprocedurehealthcare

The case involved a subcontractor, Redd Iron, that performed steel work on a construction project but was not paid by its direct contractor, Excel; Redd sued the project owner ALSCO and general contractor CBS for unjust enrichment (along with other claims) after Excel defaulted. The trial court granted judgment on the pleadings for Redd on the unjust enrichment claim and awarded damages. The appellate court vacated that judgment, holding that the record did not establish as a matter of law that CBS or ALSCO received a benefit from Redd's work, the value of any benefit, or that retention of the benefit would be unjust under the standards of DCB Construction Co. v. Central City Development Co.; further factual development and findings were required on remand.

business & regulatorypropertyprocedure