Ban-the-box still bad policy, despite improvements

Monday, April 24, 2017

Significant changes to this year's version of "Ban the Box" (House Bill 1305) have reduced the specter of litigation by potential employees, and for that sponsors Rep. Mike Foote (D-Lafayette) and Rep. Jovan Melton (D-Denver) deserve credit.

However, businesses use questions about criminal history for a variety of reasons - not simply because they don't want ex-cons in the workplace.

Employers ask for criminal history to protect employees and customers and to avoid litigation. Employers often owe a duty of reasonable care to both employees and customers to avoid personal harm to either. Courts often hold employers liable for criminal or intentional harm caused by an employee when, in they eyes of a jury with 20/20 hindsight, it was "reasonably foreseeable" that some type of harm or injury could result from hiring or retaining an employee with a criminal history.

That's why employers use questions about criminal history to fulfill their duty of care to other employees and to customers. And that's why Colorado Civil Justice League remains OPPOSED to HB 1305.

 

House advances construction lawsuit reform, nixes homeless right to sue

Saturday, April 22, 2017

House State, Veterans and Military Affairs Committee rubber-stamped a bipartisan agreement to make it more difficult for trial lawyers to bullrush homeowner associations into construction defects lawsuits, passing House Bill 1279 (SUPPORT) on a unanimous vote after adopting several amendments.

The bill would require a majority of homeowners in an association to give written consent before a construction lawsuit could proceed. Homeowners would also be fully apprised of the potential costs and risks of litigation. Provisions mandating mediation or arbitration were deleted from the bill.
 
 
As a result, Colorado law will continue to allow plaintiffs and their attorneys to collect "phantom damages" on medical bills that do not reflect the true cost of treatment and to receive 8% or 9% interest per year on those claims.
 
Ironically, one of the witnesses arguing against SB 181 acknowledged that his medical finance business would cease to exist if clients could no longer sue for phantom damages.
 
Simultaneously, House Local Government Committee endured a 10-hour hearing on a single bill, Rep. Joe Salazar's (D-Thornton) perennial "Right to Rest Act" - aka, the Homeless Right to Sue.
 
Citing the potential for expansive litigation against local governments, Reps. Paul Rosenthal (D-Denver) and Matt Gray (D-Broomfield) courageously voted against the bill, joined by the committee's six Republicans.
Representatives of cities testified that the bill would strike down bans on "urban camping," thereby depriving the public of safe use of city parks and denying customers access to businesses.
 
Unpersuaded by concerns of people who want to enjoy clean parks funded by taxpayers and to shop safely, Rep. Salazar took to social media to condemn his own colleagues for not marching in lockstep with his prescription.

 

House hearings hold key to lawsuit reforms

Wednesday, April 19, 2017

It’s a pivotal week in House committees for several bills - some that would make common-sense reforms to lawsuits in Colorado, others that would create new causes of litigation. 

On Wednesday, House State, Veterans and Military Affairs considers several bills aimed at curtailing Colorado’s lawsuit tax:

Senate Bill 181 (sponsored by Rep. Yeulin Willett, R-Grand Junction) would allow juries to hear evidence that reimbursement costs for medical expenses were actually less than the amount printed on bills from medical providers. The difference between the larger billed amount and the lesser paid amount are “phantom damages” which no one actually owed and no one ever paid. Juries are smart enough to sort this out, if only courts are required to give them all of the facts.

Senate Bill 191 (by Rep. Willett and Rep. Cole Wist, R-Centennial) changes the interest rate on judgments from 8% or 9% to a floating rate of 2% above the Kansas City federal reserve rate. Today, the best investment in Colorado is a lawsuit because interest rates on successful lawsuits pay more than CDs, bonds - even more than PERA. Interest rates should reflect today’s economy - not the economy of the 1970s.

Senate Bill 156 (by Rep. Lori Saine, R-Firestone, and Rep. Wist) requires that, before an HOA can engage in a lawsuit based on construction defects, homeowners must be given information about the costs and risks of litigation; requires mediation before litigation; and requires written consent of at least a majority of HOA members.

Meanwhile, two other House committees consider bills that will lead to more lawsuits.

House Bill 1307 (by Rep. Faith Winter, D-Westminster) creates mandatory family and medical leave insurance. The bill creates several potential “litigation traps” for employers by prohibiting “adverse employment action” against an employee who attempts to take leave. So, an employee who is being discharged or demoted files for leave and then claims discrimination by the employer, forcing the employer to prove that discharge or demotion was due to performance, not related to the attempt to take leave.

While House Finance considers that bill, House Local Government will ponder House Bill 1314 (by Rep. Joe Salazar, D-Thorton) this year’s iteration of the Colorado Right to Rest Act - aka “the Homeless Right to Sue” Bill.

While HB 1314 has been dialed back from previous versions, it continues to create statutory “rights,” like a right for homeless people right to enjoy privacy in public places comparable to that in a private residence. This bill creates a cause of action (and litigation) for anyone who believes that these “rights” are being violated, either by government or private property owners.

 

Senate bills needlessly use litigation as enforcement weapon

Tuesday, April 11, 2017

At Colorado Civil Justice League, we try to keep a consistent focus on unnecessary litigation. That's why you usually won't see us weigh in on bills unless there's a litigation angle.

After all, litigation should be a last resort!

However, two bills in the Colorado Senate needlessly turn to private, personal injury litigation as an enforcement mechanism to advance other policy objectives. The only time private litigation is the proper enforcement tool is when fundamental freedoms are at stake and other avenues of redress are insufficient or unavailable - as when First Amendment rights to freedom of speech or freedom of religion or freedom of association are being abridged by government.

Even then, the answer usually isn't to sue for monetary damages; it's to sue to compel government to honor your constitutional freedoms.

Senate Bill 281 (by Sen. Vicki Marble, R-Fort Collins, and Sen. Tim Neville, R-Littleton) aims to punish local governments that fail to enforce federal immigration law - aka "sanctuary cities."

Senate Bill 284 (by Sen. Kevin Lundberg, R-Berthoud, and Sen. Marble) would require that health care providers present women who are considering an abortion with certain information about their pregnancies and health care options.


Both of those issues are squarely outside CCJL's policy purview - unless the bills use private lawsuits as an enforcement mechanism. That's why CCJL opposes both bills, so long as the personal injury lawsuit provisions remain.

Under SB 281, if a crime is committed by someone determined to be an illegal alien, crime victims would be allowed to sue the local jurisdiction for damages. Ironically, crime victims cannot sue state or local governments for criminal acts committed by legal residents. That is, you cannot sue the police department for failure to prevent a crime.

It's doubtful that a crime victim could prove all of the elements necessary to successfully bring such a lawsuit against a "sanctuary jurisdiction." So, the lawsuit provisions may be an empty threat.

SB 284 includes a "kitchen sink" provision that allows someone who suffers a "loss or injury" due to an abortion provider's failure to provide required information to sue for "damages, punitive damages, treble damages, and such equitable remedies as the court may deem appropriate." Translation: sue for everything your lawyer can dream up!

Government's job is to see that laws are followed, so lawmakers should enforce the law through state agencies, not by unleashing an army of personal injury lawyers to do their bidding.
 
For more background, read CCJL's issue papers on the perils of enforcement through private litigation or about the rational basis for limits on governmental liability.

 

HB 1254: A cynical attack on common-sense lawsuit limits

Monday, March 27, 2017

On Wednesday, March 29, members of the House Judiciary Committee will be presented with a plea to eliminate limits on non-economic damages in lawsuits related to the wrongful death of a minor (under age 21). 

House Bill 1254 (sponsored by House Majority Leader KC Becker, D-Boulder) threatens dissenting lawmakers with the axiom, "If you're explaining, you're losing!" After all, who wants to explain a "heartless" vote to deny parents damages for "emotional stress" or "loss of enjoyment" when a loved one has been taken from them due to the wrongful act of another?

That's tough duty, but in this case, it's the right thing to do.

First, recall that there are no caps in Colorado law for actual (economic) damages.

 


 

Next, keep in mind that non-economic damages address factors that are subjective or unquantifiable, such as "pain and suffering" and "emotional stress." These are damages, to be sure, but there's no matrix by which to objectively evaluate the "value" of those damages. One jury might award $500,000; another hearing the same facts might award $5 million.

The purpose of limits on non-economic damages is to balance the legitimate interests of the family to be compensated for the emotional cost of a tragic loss while preserving the ability of consumers, in general, to afford insurance.

HB 1254 is so broadly written that it even eliminates caps on damages brought against non-profits - like Boy Scouts, Girl Scouts and summer camps - and those brought against city recreation leagues or schools. If this bill passes, the cost of purchasing necessary liability coverage for those activities will be severely affected - and those costs will be passed along to parents.

Worse still, the bill does not merely lift the caps for wrongful death. It stealthily lifts the cap on injuries "recoverable in an action" for wrongful death.

Today, these damages are capped at $436,070 and can be raised to higher levels in particularly egregious cases. These are common-sense limits that should not be raised in this ham-handed manner.

 

Broad support as lawsuit curbs pass Senate

Monday, March 20, 2017

On bipartisan votes, the Colorado Senate approved two measures to reduce Colorado's outdated laws in order to allow victims to receive fair compensation but without reaping a litigation windfall based upon arbitrary factors that do not reflect actual costs.

Senate Bill 181 (sponsored by Sen. Bob Gardner and Rep. Yeulin Willett) tackles "phantom damages" and passed on a vote of 20-15. The bill addresses an obscure law which keeps Colorado juries in the dark when evaluating the amount of reimbursement to which an injured victim is entitled.

Let's say someone injured in an auto accident receives an initial bill for $140,000 for medical costs. The injured party's insurance company settles the bill for a negotiated amount of $40,000. But when the injured party sues the at-fault driver for other damages - like pain and suffering or physical impairment - he will begin by claiming the full $140,000 in damages for medical costs. That's because current law says that juries cannot be told that those bills were actually settled for $40,000.

The $100,000 difference is called "phantom damages" because it represents costs that were never truly owed and never paid. SB 181 would allow the jury to consider both amounts when deciding what reimbursement to award.

Senate Bill 191 (Sen. Jack Tate, Reps. Yeulin Willett & Cole Wist), which passed 22-13, tackles a second anachronism in Colorado law by setting interest rates on judgments at 2% above the federal rate. Under existing law, not only can someone claim phantom damages (as above), but they are entitled to receive 9% interest on those phantom damages.

So why settle a lawsuit and put that money in the bank to earn 1% interest (or less) when you can drag it out and continue to earn 9% interest? On a $140,000 judgment, the difference just in interest in four years' time is $40,000.

So the injured party suffered $40,000 in actual paid medical bills, which over four years at 3% interest, would accumulate to $45,020. But under existing Colorado law, they would be entitled to $197,621 - because the law doesn't reflect the real facts!

Yet, Colorado drivers and homeowners must pay higher insurance premiums to cover these unjustified costs.

SBs 181 and 191 preserve the right of an injured party to be fully and properly compensated for their injuries, while sparing Colorado drivers and homeowners the burden of paying for phantom damages and ridiculous interest rates.
 
This week on Wednesday, the Senate Business, Labor & Technology Committee will consider Senate Bill 204, another bill to curtail abusive litigation and rein in rising insurance premiums.

Sponsored by Sen. Kevin Priola and Rep. Polly Lawrence, SB 204 would prevent lawsuits by third-party vendors that sue insurance companies for payment without authorization of the insured consumer or for work that wasn't covered by the consumer's insurance policy.

 

Senate bills tackle Colorado's 'lawsuit tax'

Wednesday, March 01, 2017

Colorado consumers frequently ask why premiums for auto and home insurance are rising so much. 

Answer: Colorado's lawsuit tax - obscure laws that drive up the cost of a lawsuit beyond the actual cost of damages.

Fortunately, several bills introduced in the Colorado General Assembly would rein in this lawsuit tax by conforming Colorado law to real-world facts.


Senate Bill 181 (sponsored by Sen. Bob Gardner and Rep. Yeulin Willett) addresses an obscure law which keeps Colorado juries in the dark when evaluating the amount of reimbursement to which an injured victim is entitled.

Let's say someone injured in an auto accident receives an initial bill for $140,000 for medical costs. The injured party's insurance company settles the bill for a negotiated amount of $40,000. But when the injured party sues the at-fault driver for other damages - like pain and suffering or physical impairment - he will begin by claiming the full $140,000 in damages for medical costs. That's because current law says that juries cannot be told that those bills were actually settled for $40,000.

The $100,000 difference is sometimes called "phantom damages" because it represents costs that were never truly owed and never paid.

SB 181 would allow the jury to consider both amounts when deciding what reimbursement to award.

Senate Bill 191 (Sen. Jack Tate, Reps. Yeulin Willett & Cole Wist) tackles a second anachronism in Colorado law by setting interest rates on judgments at 2% above the federal rate. Under existing law, not only can someone claim phantom damages (as above), but they are entitled to receive 9% interest on those phantom damages.

So why settle a lawsuit and put that money in the bank to earn 1% interest (or less) when you can drag it out and continue to earn 9% interest?

On a $140,000 judgment, the difference just in interest in four years' time is $40,000.

So the injured party suffered $40,000 in actual paid medical bills, which over four years at 3% interest, would accumulate to $45,020. But under existing Colorado law, they would be entitled to $197,621 - because the law doesn't reflect the real facts!

Yet, Colorado drivers and homeowners must pay higher insurance premiums to cover these unjustified costs.

SBs 181 and 191 preserve the right of an injured party to be fully and properly compensated for their injuries, while sparing Colorado drivers and homeowners the burden of paying for phantom damages and ridiculous interest rates.

 

CCJL takes position on SBs 53, 88 and HB 1173

Wednesday, February 22, 2017

Colorado Civil Justice League, the state's advocate for limiting lawsuit abuse, this week staked out its position on three bills:

Senate Bill 53 - Asbestos Litigation Transparency - SUPPORT

By requiring transparency between health care claims due to asbestos-related illness submitted in state courts and those submitted to asbestos bankruptcy trusts, the bill seeks to prevent "double-recovery" by unscrupulous plaintiffs and helps to assure the solvency of the trusts for those with future claims of asbestos-related illness. This legislation accelerates timelines for court proceedings to the benefit of plaintiffs with legitimate claims. Contrary to testimony in committee, this legislation is good for veterans, and similar legislation in Congress is supported by the American Legion.

Senate Bill 88 - Health Care Network Selection - OPPOSE

House Bill 1173 - Health Care Provider/Carrier Contracts - OPPOSE

CCJL's primary concern with both of these bills are their potential to increase litigation and interference with freedom of contract.

As introduced, SB 88 restricts freedom of contract between insurers and health care providers by creating additional contractual prohibitions in state statute. Further, after writing these provisions into statute, the bill defines these contractual violations as "unfair or deceptive trade practice(s)" - akin to false advertising or knowingly making false statements - inviting new opportunities for litigation. HB 1173 would seem to protect slanderous comments if provided as testimony to a governmental body or as "any other public activity in any forum." After inviting new litigation, the bill provides for one-way recovery of court costs and attorney fees (only for a prevailing plaintiff).

CCJL believes that contractual matters between private parties should be resolved privately and disputes resolved by negotiation rather than litigation.

 

CCJL announces support for bills to address construction litigation costs

Tuesday, February 07, 2017

Supports Senate Bills 45 & 156

Recognizing the importance of addressing Colorado's construction litigation problem, Colorado Civil Justice League is supporting both Senate Bill 45 (sponsored by Sen. Angela Williams, Senate President Kevin Grantham, Rep. Cole Wist and Speaker Crisanta Duran) and Senate Bill 156 (sponsored by Sen. Owen Hill, Rep. Lori Saine and Rep. Cole Wist).

"Both of these bills represent small steps toward resolving known factors that drive up construction costs and make homeownership unaffordable," stated CCJL executive director Mark Hillman.

"Neither bill is a panacea, and both may require amendment. However, it is vitally important to keep all potential solutions moving forward."

CCJL commends the sponsors of these bills for engaging in bipartisan efforts to help homeowners obtain satisfaction when they encounter a legitimate construction defect and to help contractors and subcontractors find relief from runaway litigation costs.


 

 

Colorado Supreme Court called 'point of light' for plausibility decision

Thursday, December 22, 2016

A decision by the Colorado Supreme Court to adopt the federal plausibility pleading standard in civil litigation earned a rare "point-of-light" designation from the American Tort Reform Association in its annual Judicial Hellholes report, which routinely excoriates the worst examples of state courts stretching the law, logic and common sense to advance frivolous lawsuits.

In a 4-3 decision authored by Justice Nathan Coats, the court dismissed a plaintiff's lawsuit for "failure to state a plausible claim for relief." Under the former "notice pleading" standard, plaintiffs were not required to state a plausible claim.

Think about that for a minute. Prior to this decision, a lawsuit could continue even if the plaintiff's claim was not plausible.

"It's regrettable that this common sense decision resulted in a 4-3 split on the high court," stated Mark Hillman, executive director of Colorado Civil Justice League which advocates for "common sense in the courtroom."


Joining Justice Coats in the majority were Chief Justice Nancy Rice and Justices Allison Eid and Brian Boatright. Dissenting were Justices Richard Gabriel, William Hood III and Monica Marquez.

CCJL submitted a friend-of-the-court brief - authored jointly by Jordan Lipp and Geoffrey Klingsporn of Davis Graham & Stubbs and by Evan Stephenson and Thomas Werge of Wheeler Trigg O'Donnell - in support of the plausibility standard.