Colorado Civil Justice League

Recently at Gazette.com, Colorado Springs Chamber of Commerce president Johanna Reeder Kleymeyer offered a concise explanation of the primary barrier to construction of affordable entry-level housing in Colorado:

Construction defects lawsuits in Colorado have become a business unto itself. Law firms make millions by hiring forensic experts to “find” defects for up to six years after construction. When one defect is found in one unit, it is then assumed that the same defect is present in all units within the project.

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The next step is to engage the insurance company of the general contractor, and potentially all subcontractors, and any architect or engineer on a project hoping to secure millions in settlement of the defects. Once a settlement is reached based upon the cost to “repair,” the law firm takes a percentage (30-40%) of the award, and the remainder goes to the HOA to resolve the defects. With only a portion of the settlement, many residents cannot actually complete the repairs. The only winners in this system are the trial lawyers.

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One solution that the builders have requested for years is the right to repair. This would allow the contractor to fix the problems identified with the cooperation of the owners. These repairs would address the list identified and be paid for by the contractor. The owners win because the repairs are made. The contractor wins because they want a positive relationship with their buyers and can control the costs associated with the repairs. Fortunately, the trial lawyers cannot collect a large payday because there is no financial settlement.

Construction defects do occur. Homeowners have a right to have them repaired. The laws in the state of Colorado do not strike a balance and have created significant risk to builders.

From Colorado Politics op-ed by CCJL executive director Mark Hillman:

State Rep. David Ortiz (D-Littleton) makes a compelling advocate for the rights and struggles of disabled Coloradans.

“I lived 30 years as an able-bodied leg-walker, a five-minute-mile running, hard-charging combat aviator – until a crash in Afghanistan left me paralyzed from the waist down,” he told the House Judiciary Committee.

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His House Bill 1032 would change Colorado law to specifically allow lawsuits regarding disability access violations to seek “emotional distress” damages of up to $642,180 and to require defendants to pay attorney fees and costs for prevailing plaintiffs.

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That’s where Coloradans who have defended against disability lawsuits cry foul.  HB 1032 doesn’t increase damages only in cases in which violations are “blatant” or “obvious.”  It creates a six-figure incentive to litigate accessibility problems rather than resolve them.  Even the bill’s supporters acknowledge that lawsuits typically take two years to resolve.

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“In my experience, the best laws have both a carrot and a stick,” observed Rep. Marc Snyder (D-Manitou Springs).  “I see a lot of sticks here, but I don’t see any carrots.”

Except for a few bad actors, the most efficient means of resolving accessibility problems might be personal contact with the business.  Litigation should be a last resort.

From the Denver Gazette, op-ed by CCJL executive director Mark Hillman:

Last year, the Colorado General Assembly demonstrated the good sense to pass Senate Bill 115, recogning that property owners are not liable for actions committed on their property by criminals.  It didn’t matter, legislators agreed, if the property owner operated a controversial business.  Ultimate responsibility for harm rests with the person who pulled the trigger.

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Less than a year later, some legislators now propose that Colorado turn this logic on its head in order to make another controversial industry – firearms manufacturers and retailers – liable for others’ irrational actions.  This is akin to holding car manufacturers responsible for drunk drivers or, worse, for a deranged individual who uses a vehicle to run down pedestrians.

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Understandably, lawmakers are desperately searching for elusive solutions to the tragedy of mass shootings.  Even “red flag laws” have not been especially effective in proactively stopping potential mass shooters, so proponents now seek to harass gun manufacturers out of business through endless litigation.  That may feel good in the heat of the moment, but this bill will do nothing to stop criminals or the mentally ill from inflicting harm on innocent Americans.

DENVER — Colorado Civil Justice League announced winners of its  Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

Awards will be presented at a luncheon on Oct. 7 at the Denver Four Seasons, sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

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 harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

When the Colorado General Assembly adjourned in May, it’s record on civil justice was nothing to write home about.  This was no surprise given the expansions of liability handed to TV lawyers over the past four years.  But for Colorado businesses, it was another round of “the beatings will continue until morale improves.”

Legislators did restore sanity to premises liability law (Senate Bill 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (House Bill 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272).

“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 economic health,” Hillman said.

Unfortunately, legislators cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers.

Common Sense in the Courtroom Award recipients include:

Representatives Mark Baisley (Roxborough Park), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Mary Bradfield (Colorado Springs), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Tim Geitner (Peyton), Richard Holtorf (Akron), Colin Larson (Littleton), Stephanie Luck (Penrose), Mike Lynch (Wellington), Julie McCluskie (Dillon), Hugh McKean (Loveland), Barbara McLachlan (Durango), Rod Pelton (Cheyenne Wells), Andy Pico (Colorado Springs), Kim Ransom (Douglas County), Janice Rich (Grand Junction), Dylan Roberts (Eagle), Shane Sandridge (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Alex Valdez (Denver), Tonya Van Beber (Eaton), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), David Williams (Colorado Springs) and Dan Woog (Erie).

Senators Don Coram (Montrose), Bob Gardner (Colorado Springs), Joann Ginal (Fort Collins), Dennis Hisey (Colorado Springs), Chris Holbert (Douglas County), Barb Kirkmeyer (Brighton), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kevin Priola (Henderson), Ray Scott (Grand Junction), Cleave Simpson (Alamosa), Jim Smallwood (Parker), Jerry Sonnenberg (Sterling), Rob Woodward (Loveland) and Rachel Zenzinger (Arvada).

A dispute over what to do with settlement money from lawsuits brought by state attorneys general is dividing the National Association of Attorneys General (NAAG), reports the US Chamber of Commerce Institute for Legal Reform  Read more here.

When the Colorado General Assembly adjourned on May 11, its record on civil justice was nothing to write home about.

For advocates of Common Sense in the Courtroom, this was no surprise given the expansions of liability handed to TV lawyers over the past four years.  But for Colorado’s business community, it was another round of “the beatings will continue until morale improves.”

To be sure, this year wasn’t a total loss.  Legislators did come together to restore sanity to our state’s premises liability law (SB 115), stopped an attempt to undermine employers’ ability to make workplace safety decisions (HB 1152), and put the brakes on an attempt to kill one of the few remaining protections against frivolous lawsuits (HB 1272).  CCJL members are grateful to legislators for those stands.

Unfortunately, legislators of both parties cast too many votes to expand liability and to transfer or entrust responsibility for enforcing our state’s laws to private contingency-fee lawyers (HBs 1071, 1119, 1253 and 1285, plus SBs 97 and 161).

Increasingly, lawmakers seem to believe that Colorado’s wonderful climate is they key to our economy and believe business can always be absorb one more burden.  One look at the steady decline of California should disabuse anyone of that notion. read more…

Not long ago, Colorado discouraged frivolous or speculative lawsuits. But such safeguards have been eroded. The penalty for filing a lawsuit that is frivolous, groundless or vexations (Section 13-17-101, C.R.S.) is so seldom invoked by judges that it’s essentially a dead letter.

Now comes House Bill 1272 (Reps. Gonzales-Gutierrez and Benavidez; Sens. Gonzales and Rodriguez) which would implicitly encourage frivolous lawsuits by ensuring that plaintiffs who file implausible claims are never responsible to pay the legal costs incurred by a defendant who is dragged into court on dubious grounds.

Civil litigation in our state is a field increasingly tilted to favor plaintiffs. Numerous bills passed over the past three years have required losing defendants to pay attorney fees and costs to winning plaintiffs – even if the defendant had a strong case and loses on a close call.

HB 1272 shafts the defendant again by taking away the ability to recover attorney fees and costs even when the plaintiff’s claims are so flimsy or baseless they cannot survive a motion to dismiss.

Consider that for a defendant to win a motion to dismiss, the court must assume that ALL of the plaintiff’s claims are true and must construe all other assumptions in the plaintiff’s favor. If a plaintiff’s claims aren’t plausible even when assumed to be true, then these claims are, in fact, frivolous.

HB 1272 would entirely repeal Section 13-72-201, C.R.S., which is an important tool. It encourages counsel for both parties to confer to consider an early, efficient, inexpensive resolution which is good for an injured party. Also, the statute encourages plaintiffs counsel to have a hard conversation with a potential plaintiff when it is obvious that the case simply lacks merit and is destined to fail – i.e., that it is a waste of time.

Finally, keep in mind that a motion to dismiss occurs early in the legal process – before an attorney’s billable hours are greatly enlarged by time-consuming discovery. So, a losing plaintiff won’t be on the hook for monstrous legal bills.

If it is ever just to require the plaintiff to reimburse the defendant’s legal bills, it is precisely when a plaintiff’s claims are so meritless that they cannot survive a motion to dismiss.

Passing HB 1272 will invite plaintiffs and TV lawyers to file baseless lawsuits knowing they can use the threat of running up legal fees as leverage to seek a quick settlement.

DENVER — Colorado Civil Justice League announced winners of its  Common Sense in the Courtroom Awards, given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting small business and working families from the cost of frivolous litigation.

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 harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman.

Unfortunately, this year’s Colorado General Assembly passed several bills that will increase the costs and risks of lawsuits: expanding liability for agricultural employers (Senate Bill 87), enabling medical lien companies to hide the amounts they pay to providers for medical care (House Bill 1300), and creating additional liability risks for employers when someone is injured by an employee’s negligence (House Bill 1188).

However, state legislators also defeated a bill that would have allowed contingency fee attorneys to bring class action lawsuits under the Colorado Consumer Protection Act and another to create the nation’s most draconian definition of a “hostile work environment.”

“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 economic health,” Hillman said.

Common Sense in the Courtroom Award recipients include:

Representatives Mark Baisley (Roxborough Park), Adrienne Benavidez (Commerce City), Shannon Bird (Westminster), Rod Bockenfeld (Watkins), Mary Bradfield (Colorado Springs), Terri Carver (Colorado Springs), Marc Catlin (Montrose), Speaker Alec Garnett (Denver), Tim Geitner (Peyton), Ron Hanks (Penrose), Richard Holtorf (Akron), Colin Larson (Littleton), Stephanie Luck (Penrose), Mike Lynch (Wellington), Hugh McKean (Loveland), Rod Pelton (Cheyenne Wells), Andy Pico (Colorado Springs), Kim Ranson (Douglas County), Janice Rich (Grand Junction), Shane Sandridge (Colorado Springs), Marc Snyder (Manitou Springs), Matt Soper (Delta), Kerry Tipper (Lakewood), Donald Valdez (La Jara), Tonya Van Beber (Eaton), Kevin Van Winkle (Highlands Ranch), Perry Will (New Castle), Dave Williams (Colorado Springs) and Dan Woog (Erie).

Senators John Cooke (Greeley), Rhonda Fields (Aurora), Bob Gardner (Colorado Springs), Chris Hansen (Denver), Dennis Hisey (Fountain), Chris Holbert (Parker), Larry Liston (Colorado Springs), Paul Lundeen (Monument), Kevin Priola (Brighton), Bob Rankin (Snowmass Village), Ray Scott (Grand Junction), Cleave Simpson (Alamosa), Jerry Sonnenberg (Sterling) and Rob Woodward (Loveland).

This year’s awards presentation is sponsored by American Furniture Warehouse, COPIC, Colorado Hospital Association, State Farm, Rocky Mountain Mechanical Contractors Association, Husch Blackwell, Spencer Fane and Wheeler Trigg O’Donnell.

Colorado Civil Justice League will recognize leading state legislators on Thursday, Oct. 28 during its annual Legislative Awards Luncheon at the Denver Four Seasons.  CCJL’s Common Sense In The Courtroom Awards are given to state legislators who have demonstrated a commitment to curtailing lawsuit abuse and protecting working families from the cost of frivolous litigation.

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 harmed by someone else, balanced by fairness for those who may be wrongfully accused,” said CCJL executive director Mark Hillman. read more…

By Mark Hillman

When the Colorado General Assembly adjourned on June 8, small-business owners and job creators breathed a collective sigh of relief.

After suffering through COVID-related restrictions and closures for most of the previous 12 months, employers were hopeful that legislators would join in their efforts to help get the economy back on its feet.

Maybe legislators in another state, but not in Colorado in 2021.

Instead, when our neighborhood businesses were trying to reboot, they found themselves in the crosshairs of more than a dozen bills aimed at creating new opportunities for lawsuits or removing safeguards designed to protect against inflated claims.

This year, the legislature’s unstated but unmistakable message to business was, “Beatings will continue until morale improves.”

Six of the seven states that border Colorado have acted to protect their business owners from dubious COVID-related lawsuits.  Nationwide, 33 states have enacted such laws, and Democratic governors in Kentucky, Louisiana, Michigan, Nevada, North Carolina, and Wisconsin proudly signed them.

Colorado legislators introduced two similar bills.  Like many proposals, these efforts needed revisions to effectively accomplish their objective, but they were tailored to offer businesses the same protections state law already affords governments.  However, unlike many bills that were given time for improvements, both of these bills were snuffed out in their first committee hearing.

Meanwhile, lawmakers introduced a litany of legislation creating new opportunities for litigation against businesses.

House Bill 1188 overturned a decision by the Colorado Supreme Court in Ferrer v. Colorado Cab.  The court ruled that, once an employer has acknowledged its own liability for the injurious actions of an employee, additional claims against the employer for the same injury are “duplicative and unnecessary.”

Now that HB 1188 has been signed into law, plaintiffs’ attorneys will use it to inflate damage claims by picking apart, with 20/20 hindsight, everything an employer “should have done” better to train an employee.

Consider a 2014 case in which a fan attending a Kansas City Royals baseball game was struck in the eye by a hotdog thrown by the team mascot.  The fan suffered a detached retina.  Of course, the fan filed a claim for damages for his medical treatment, but he also sought additional damages by claiming the Royals had failed to train their mascot on how to “safely” throw hotdogs.  Expect similar claims in Colorado.

Senate Bill 87 creates opportunities for employees of farmers and ranchers to sue their employers by, among other things, creating a legal presumption against the farmer or rancher.  If the farmer or rancher cannot overcome the presumption that they unfairly retaliated against an employee, they face a minimum penalty of $10,000 per violation and must pay the employee’s attorney fees.  Ironically, there’s no corresponding requirement for an employee who files a losing lawsuit to pay the employer’s attorney fees.

The unintended consequence of SB 87 will be that once a few farmers or ranchers suffer the cost of trying to defend against these lawsuits, word will spread that it’s better to replace employees with automated equipment whenever possible to avoid the risk of litigation.

Proponents were warned about this result, but they rejected less adversarial solutions in favor of more lawsuits.

Fortunately, lawmakers defeated several other bills that threatened still more litigation either against employers in general or against specific industries.  But in most cases, sponsors of those defeated bills vowed to re-introduce them next year to fight for still more lawsuits against Colorado’s job creators.

Actually, there is one business that was treated exceptionally well this year at the State Capitol: plaintiffs’ lawyers.

Consumers and employers alike will pay a price for that for years to come.

 

Mark Hillman, a former Senate Majority Leader and State Treasurer, is executive director of Colorado Civil Justice League.