Rough road for civil justice bills in 2015 Legislature

Tuesday, May 12, 2015

Good, bad or otherwise, the Colorado General Assembly killed 11 of 14 bills with a direct impact on Colorado’s civil justice liability system during the recently-concluded 2015 session.

Eleven proposals that died included six opposed by Colorado Civil Justice League and five that CCJL supported. Of the three bills that passed, House Bill 1063 (restrictions on patent trolling) was the lone measure to limit liability by imposing restrictions on frivolous attempts to extract patent infringement settlements. Two other bills actually expanded liability by lowering the bar for lawsuits against schools following incidents of school violence (Senate Bill 213) and by creating a new private right of action against hospitals for procedural errors related to liens (Senate Bill 265).

The House of Representatives killed two bills aimed at restoring some measure of sanity to construction litigation (Senate Bills 91 and 177). It also struck down two attempts to reduce employment lawsuits, killing Senate Bill 69, which would have repealed the 2013 “Sue Your Boss Bill” and House Bill 1172, that repealed punitive damages from the 2013 law.

On the other hand, the House did kill several bills that would have expanded liability. House Judiciary killed a bill that would have prohibited courts from using the laches doctrine to bar untimely claims (House Bill 1272). House State Affairs killed the “Homeless Right to Sue” proposal (House Bill 1264). The latest proposal to mandate that employees pay for family leave insurance (House Bill 1258) died following debate on the House floor, and a bill to employees to tamper with employer personnel files (House Bill 1342) also came up short.

Senators advanced bills on construction claims and employee lawsuits – only to see them die in the House – and passed the patent trolling bill. However, the Senate’s passage of bills expanding school liability and creating a new private right of action against hospitals handed trial lawyers their only outright victories.

HB 1063 – Restrictions on “patent trolling” – CCJL: SUPPORT – Passed; on Governor’s desk.

HB 1154 – No fee on tax portion of credit card transaction – CCJL: OPPOSE; NEUTRAL after amendment – Killed in House Finance.

HB 1172 – Repeal punitive damages in employment lawsuits – CCJL: SUPPORT – Killed in House Judiciary.

HB 1216 – Expert testimony Daubert standard – CCJL: SUPPORT – Killed in House Judiciary.

HB 1258 – Mandatory family leave insurance – CCJL: OPPOSE – Killed in House.

HB 1264 – Homeless right to sue – CCJL: OPPOSE – Killed in House State Affairs.

HB 1272 – Prohibit laches doctrine – CCJL: OPPOSE – Killed in House Judiciary.

HB 1342 – Employee access to personnel file – CCJL: OPPOSE – Killed in House.

SB 69 – Repeal Sue Your Boss Bill – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 91 – Construction claims reduce statute of limitations – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 177 – Construction litigation – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 213 – Expand litigation school violence – CCJL: OPPOSE – Passed; on Governor’s desk.

SB 265 – Expand litigation hospital liens – CCJL: OPPOSE unless amended – Passed; on Governor’s desk.

SB 275 – Legislator access to confidential information – CCJL: OPPOSE – Killed in Senate.

Housing affordability bills headed for House crossfire

Sunday, April 26, 2015

With just 10 days left before the Legislature goes home for the year, the prospects for meaningful progress toward resolving housing construction complaints look dim. Although Senate Bill 177 passed the Senate on a bipartisan vote of 24-11, it is assigned to House Speaker Dickey Lee Hullinghorst’s killer committee.

Meanwhile, Rep. Max Tyler is working on a series of very late bills that, if passed, would simply make housing lawsuits even more expensive. It’s hard to see how this ends with any progress toward making it easier or less expensive to resolve homeowner complaints about construction defects.

Bad for business, bad for schools

Sunday, April 26, 2015

With 20/20 hindsight, it’s easy to second-guess decisions that might have averted an unfortunate outcome. We don’t like these lawsuits when they’re targeted at business, so why should we like them any better when they are aimed at schools which must defend themselves with scarce taxpayer dollars, as Senate Bill 213 proposes.

In a thoughtful op-ed in Sunday’s Denver Post, CCJL vice president Lee Mickus writes:


“[A] school should be sued only when it does something wrong — not because of its misfortune to be in the path of someone intent upon inflicting injury or death.

"We want our schools to be safe. We want them to provide sound education. We want parents to have access to vital information. But litigation is not the way to advance those goals.”

CCJL Quick Reference Guide to Legislature

Tuesday, April 21, 2015

Here’s a quick look at the bills Colorado Civil Justice League is following and our positions on those bills as the legislature enters its final three weeks of the 2015 regular session.


For a more detailed look at each bill, click here.

SB 69 – Repeal “Sue Your Boss” Bill (Woods/Priola)

CCJL Position: SUPPORT


SB 91 – Reduce Statute of Limitations for Construction Claims (Scott/Willett)

CCJL Position: SUPPORT


SB 177 – HOA construction litigation procedures (Scheffel/Ulibarri/DelGrosso/Singer)

CCJL Position: SUPPORT


SB 213 – Sue Your School Bill (Cadman/Scheffel/Hullinghorst/Durant)

CCJL Position: OPPOSE


SB 265 – Conditions necessary for creation of a hospital lien (Cadman/Hullinghorst)

CCJL Position: OPPOSE unless amended to remove right to sue hospital for improper lien


HB 1043 – Penalties for DUI offenders (Saine/McCann/Cooke/Johnston)

CCJL Position: MONITOR


HB 1063 – Prohibition communications concerning patents (Pabon/Balmer)

CCJL Position: SUPPORT


HB 1232 – Emergency use of epinephrine auto-injectors (Ginal/Todd)

CCJL Position: MONITOR


HB 1264 – Creation of extra rights for homeless persons (Salazar/Melton/Kefalas)

CCJL Position: OPPOSE


HB 1342 – Employee access to employer’s personnel file (Salazar)

CCJL Position: OPPOSE 

Litigation is not the answer to school violence

Monday, April 13, 2015

“Hard cases make bad laws.” – Justice Oliver Wendell Holmes

Justice Holmes’ adage seems to refer to difficult cases, but evidence suggests that he may have been talking about “hard cases” that evoke sympathy.

Few cases evoke sympathy and grief more than the death of a child. Just such a tragedy has led to Senate Bill 213.

On Dec. 13, 2013, 17-year-old Claire Davis was shot at point-blank range by a fellow student at Arapahoe High School. The assailant then took his own life, and Davis died from her injuries eight days later.

Davis’ parents understandably sought to learn what the school might have known about the student shooter. Those efforts were thwarted until recently when Littleton Public Schools approved a plan to release that information in order to avoid litigation.

By contrast, SB 213 would encourage litigation in the wake of such tragedies. The bill imposes upon schools a liability that the law doesn’t even apply to law enforcement.


Our courts, including the U.S. Supreme Court, have repeatedly found that law enforcement agencies cannot be sued for failure to prevent a crime from happening. Public safety is the primary purpose of law enforcement; it’s their area of expertise. Schools leaders, while understanding full well that safety is crucial to learning, must also provide a quality education, put good teachers in the classroom, and maintain sound buildings and transportation vehicles.

School leaders, unlike law enforcement officers, are not public safety experts. Yet SB 213 would hold schools and school personnel to a higher standard than law enforcement.

“Public school parents should have a reasonable expectation . . . that school officials will have taken reasonable care to provide for their (children’s) safety, just as they provide for their education,” Sen. Cadman explained.

The problem for schools is that even if they do take “reasonable care,” they cannot guarantee that a tragedy will not happen. Under SB 213, when those tragedies happen, schools will be sued, even if they have taken “reasonable care.”

Unless SB 213 is amended, it will certainly create more litigation.  Whether it will create safer schools is a dubious proposition.

How trial lawyers troll for clients

Wednesday, April 08, 2015

Wonder why trial lawyers spend so much money advertising for clients? One answer is that volume is a key factor in the business model of contingency-fee attorneys – especially those who practice “mass torts.” In addition to our local ambulance chasers, late night cable TV is loaded with advertisements for victims of mesothelioma and pelvic mesh.

Ironically, mesothelioma cases peaked 20 years, writes Tiger Joyce, president of the American Tort Reform Association, in the Wall Street Journal.

  • Law firms specializing in asbestos claims spend roughly $30 million a year on advertising and those litigating pelvic mesh claims spent $52 million last year to troll for clients, according to analysis by the Silverstein Group.
  • “Does the need to recoup marketing expenses create perverse incentives to pursue speculative or even illegitimate claims, for instance, blaming lifelong smokers’ lung cancers on . . . trace exposures to asbestos?” Joyce wonders. A jury found two Pittsburgh-based plaintiffs’ lawyers liable for fraud in a multimillion-dollar civil racketeering case.
  • Transcripts of recruiters’ cold calls to unsuspecting women who had not even undergone mesh implants showed brazen invitations to collect “$30,000 to $40,000.”
  • Congress, the Federal Trade Commission, state attorneys general and other authorities charged with protecting the public interest should also begin scrutinizing personal-injury lawyers’ marketing as zealously as they scrutinize the marketing of countless other businesses.

Several bills sacked, others scrambling

Friday, April 03, 2015

Three recently-introduced bills met an early demise recently, paring down the number of bills that CCJL and CO-LAW are following:

  • House Judiciary Committee killed House Bill 1272, which sought to prohibit use of the laches defense to bar timely claims.  
  • The same fate met House Bill 1253, regarding transfer of assets, in House Business Committee.
  • And a few days later, House Business nixed House Bill 1293 which proposed changes to the statute of limitations for tenant claims in rental disputes.

With the legislature taking off Good Friday, several bills loom on next week’s calendar. Senate Bills 91 and 177, both dealing with construction litigation claims, have been hanging on the Senate calendar since clearing committee, while supporters try to find a compromise acceptable to House leadership but which could still provide meaningful reform toward construction affordability.

Who or what is ‘laches’?

Monday, March 23, 2015

A bill recently introduced in the Colorado General Assembly would prohibit the use of “the doctrine of laches to bar a civil action or claim as untimely” so long as that claim was filed within the applicable statute of limitations.

Non-attorneys – and those attorneys who tended to doze off in law school – asked, “What or who is laches?”

Laches is derived from a French term for “remissness” or “slackness.” The legal lachesdoctrine is based on the maxim that “equity aids the vigilant, not the sleeping ones,” according to Black’s Law Dictionary. Courts apply laches when the party bringing a claim has unnecessarily or unreasonably delayed that claim in a way that particularly disadvantages the opposing party.


Law.com provides the following hypotheticals:

  • Knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title.
  • Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country.

Laches is typically, although not always, brought in cases seeking equitable relief, such as an injunction, but seldom used in cases seeking damages. Obviously, when a claimant seeks both, this distinction can be a bone of contention.

House Bill 1272, which would prohibit courts from applying laches when a statute of limitations is also applicable, is sponsored by Rep. Daneya Esgar, D-Pueblo, and Sen. Chris Holbert, R-Parker.

Colorado Civil Justice League believes courts should be allowed to avail themselves of necessary tools to reject claims that are not presented in a timely manner. Accordingly, CCJL opposes HB 1272.

Bill gives homeless new rights to sue

Tuesday, March 17, 2015

A bill touted as creating a homeless “bill of rights” – apparently the one in the constitution isn’t sufficient – is little more than a license to sue on behalf of homeless people.

House Bill 1264, sponsored by Rep. Joe Salazar (D-Denver) and Sen. John Kefalas (D-Fort Collins), prohibits discrimination “on the basis of housing status.”  Among other things, it prohibits laws and ordinates that limit use of a “public space” through time constraints that discriminate against homeless persons.

So, local ordinances against sleeping or loitering on a public sidewalk or in a municipal park would be deemed to “disproportionately impact people without homes and people who have no private place to rest or seek nourishment.”

Yes, in the same way that laws against speeding and reckless driving disproportionately impact people who like to drive fast but don’t have a racing oval or dragstrip of their own.

These “homeless rights” would essentially make public property or, even, someone else’s property (e.g., shopping malls) places where the homeless would be entitled to sleep, sit, rest and share food regardless of the impact it causes to other people who use the property and regardless of local government’s or property owners’ concerns about public health or safety.

Anyone claiming that their “homeless rights” have been violated could sue for damages up to $1,000 per violation, plus attorney fees.  A group of 100 homeless people could sue for $100,000 per day. While the sponsors of HB 1264 may well have the best interests of homeless people at heart, this bill violates the existing rights of other citizens to use and enjoy public property within the common-sense boundaries established by local municipalities or property owners.