Legislators chosen for 'Common Sense' Awards

Tuesday, September 19, 2017

DENVER — Colorado Civil Justice League has announced winners of its Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse. 

Awards will be presented at CCJL’s Legislative Awards Luncheon on Friday, October 20, at the Denver Four Seasons. Tickets are available at www.CCJL.org.

CCJL is the only organization in Colorado exclusively dedicated to stopping lawsuit abuse while preserving a system of civil justice that fairly compensates legitimate victims.

“Common Sense in the Courtroom requires justice for those who have been wronged, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

A highlight of the 2017 legislative session was the passage of House Bill 1279 which addressed construction litigation by ensuring that homeowners are fully informed of costs and risks of litigation and given a formal voice in determining whether to initiate a lawsuit to resolve alleged defective construction.

“The most encouraging development this year is the growing coalition of legislators who value economic growth for all Coloradans above the narrow interests of personal injury lawyers and a handful of plaintiffs,” Hillman added.

"At CCJL, we are grateful for the bipartisan support of legislators who understand the importance of an efficient and balanced court system to our state's economy," said Jeff Weist, CCJL legislative director.

Common Sense in the Courtroom Award recipients include:


  • Representatives Jeni Arndt (Fort Collins), Jon Becker (Fort Morgan), Susan Beckman (Littleton), Perry Buck (Greeley), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Phil Covarrubias (Brighton), Justin Everett (Littleton), Matt Gray (Broomfield), Leslie Herod (Denver), Edie Hooton (Boulder), Steve Humphrey (Eaton), Tracy Kraft-Tharp (Arvada), Lois Landgraf (Fountain), Polly Lawrence (Douglas County), Tim Leonard (Evergreen), Kimmi Lewis (Kim), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Hugh McKean (Loveland), Clarice Navarro-Ratzlaff (Pueblo West), Patrick Neville (Franktown), Dan Nordberg (Colorado Springs), Bob Rankin (Carbondale), Kim Ransom (Douglas County), Lori Saine (Firestone), Lang Sias (Arvada), Dan Thurlow (Grand Junction), Don Valdez (La Jara), Kevin Van Winkle (Highlands Ranch), Yeulin Willett (Grand Junction), David Williams (Colorado Springs), Jim Wilson (Salida) and Cole Wist (Centennial).
  • Senators Randy Baumgardner (Hot Sulphur Springs), John Cooke (Greeley), Don Coram (Montrose), Larry Crowder (Alamosa), Bob Gardner (Colorado Springs), Kevin Grantham (Canon City), Owen Hill (Colorado Springs), Chris Holbert (Parker), Beth Martinez Humenik (Thornton), Cheri Jahn (Wheat Ridge), Kent Lambert (Colorado Springs), Dominic Moreno (Commerce City), Kevin Priola (Brighton), Ray Scott (Grand Junction), Jim Smallwood (Castle Rock), Jerry Sonnenberg (Sterling), Jack Tate (Centennial), Nancy Todd (Aurora), Angela Williams (Denver), Rachel Zenzinger (Arvada).
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    Tickets on sale now for Legislative Awards Luncheon

    Thursday, September 07, 2017

    DENVER - Tickets are now available for CCJL's Legislative Awards Luncheon on Friday, Oct. 20, at the Denver Four Seasons, where Colorado's business community will recognize state lawmakers for their commitment to "Common Sense in the Courtroom." 

    Featured speaker at this year's event is Malini Moorthy, head of global litigation for Bayer Corporation, who will speak about "The Mass Tort Machine." Moorthy is a nationally recognized expert in civil justice reform and complex litigation in the life sciences industry. Last year, she was named a Visionary Leader in Litigation by Inside Counsel magazine. She was also recognized by the National Center for Law and Economic Justice for her extraordinary service to the legal profession and nonprofit community.

    Prior to joining Bayer, Malini headed the Civil Litigation Group at Pfizer where she and her team were awarded in-house Counsel Litigation Team of the Year by Benchmark Litigation. Earlier, she worked as a litigation associate at law firms in the U.S. and Canada, including the New York office of Salans, now known a Dentons.

    Tickets can be purchased HERE.

     

    General Assembly gets 'B' grade for 2017

    Monday, May 22, 2017

    With one notable exception, the Colorado General Assembly's 2017 session preserved the status quo - which isn't the worst outcome, given the potential of certain bills to wreak havoc upon Colorado's litigation climate.

    So, Colorado Civil Justice League rates the Legislature's performance as a "B," with it's passage of House Bill 1279, addressing construction litigation, as the notable achievement.

    Sponsored by Rep. Alec Garnett (D-Denver), Rep. Lori Saine (R-Firestone), Sen. Jack Tate (R-Centennial) and Sen. Lucia Guzman (D-Denver), HB 1279 was the product of many hours of work including a much larger coalition of lawmakers from both parties, as well as advocates representing homeowners and homebuilders.

    While not as ambitious as we might have hoped, the bill nonetheless moves the ball forward by ensuring that homeowners are fully informed of costs and risks and given a formal voice in determining whether to initiate litigation to resolve alleged defective construction.

    Anything that makes it more difficult for a cadre of plaintiffs attorneys to steamroll HOA members down the path toward litigation is an improvement over the status quo, which has construction of multi-family owner-occupied projects crawling at a snail's pace.

    The bill didn't specifically address affordability of contractor's liability insurance or the rampant litigation that ensues between developers and subcontractors when a construction lawsuit is filed. One school of thought says that HB 1279 will help with insurance affordability by making claims more predictable for underwriters. A more skeptical outlook is that the cost of litigation will continue to drive up insurance costs until those issues are specifically addressed. Only time will tell which viewpoint is more accurate.

    Building on the success of HB 1279, the most encouraging development from this session is the growing coalition of legislators who value economic growth for all Coloradans above the narrow interests of personal injury lawyers and a handful of plaintiffs.

    Bipartisan votes were instrumental in advancing worthwhile bills or defeating others that invited further lawsuit abuse.

    The Senate passed - with bipartisan support - a package of bills to help consumers control the rising cost of automobile insurance, only to see those bills fail in the House. However, key Representatives stood up to vote against, and sometimes defeat, destructive legislation that would have eroded Colorado's safeguards against runaway jury awards for "pain and suffering" or other non-economic damages and subjected schools, nonprofits, businesses and local governments to increased litigation for various claims.

    A complete list of bills related to Colorado's civil justice system appears below, followed by a link to each bill's summary and legislative history.

     

    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.