Killian & Davis, P.C.

Workers Compensation Coverage While Travelling to Work

Tue, 15 May 2012 15:01:52 -0700

Potential clients and curious acquaintances frequently ask me whether an injury on the way to work is covered by workers compensation. The answer depends on a variety of circumstances.

For an injury to be compensable under workers compensation, the injury must have happened in the course and scope of employment. Section 8-41-301(1)(c), C.R.S. There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Horodyskyj v. Karanian, 32 P.3d 470, 475 (Colo. 2001).

Colorado has adopted the going to and from work rule. Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999). Under the rule, a claimant who is injured while going to or coming from work does not qualify for workers compensation benefits because such travel is not considered to be performance of services arising out of and in the course of employment. However, there are many exceptions to the going to and from work rule to account for varying and unusual circumstances that create a causal connection between the employment and an injury that occurred while the employee was going to and from work.Madden, 977 P.2d at 86364.

Factors that are considered in determining whether the travel to work was in the course and scope of employment include:

Resident-relative provisions and UM/UIM benefits: How your family members may be covered under your auto insurance policy

Tue, 15 May 2012 15:00:00 -0700

In Colorado, many drivers carry uninsured/underinsured motorist coverage on their own automobile insurance policies. This coverage is often referred to as UM/UIM coverage. UM/UIM coverage is insurance coverage you purchase and pay premiums for in the event you are involved in a motor vehicle collision caused by another driver (the at-fault driver. If the at-fault driver does not have insurance, you can seek to collect UM benefits from your own insurance company. If the at-fault driver has insurance, but your damages are greater than the amount of insurance available, you can seek to collect UIM benefits from your own insurance company. You can check with your automobile insurance company or insurance agent to determine if you have UM/UIM coverage on your policy.

On most automobile insurance policies, UM/UIM insurance benefits are typically available to insured drivers listed on the policy, resident-relatives who reside in the insured drivers household, and passengers riding in insured vehicles listed on the policy. This blog focuses on the second category: resident-relatives.

Who is a resident-relative? While each insurance contact is different, the following provision is a good example of how the term is generally defined:

Civil Trials by Jury: An Endangered Species

Tue, 17 Apr 2012 08:27:18 -0700

I'll start this post by reapportioning a quote from a blog post of my colleague and new shareholder Nick Mayle:

"I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution."

-Thomas Jefferson

Before going to law school, I assumed that most other nations provide jury trials to their citizens for non-criminal matters. Wrong. Only the United States and Canada make routine use of jury trials in civil cases. Other countries with justice systems similar to the U.S. use jury trials only in a very select class of cases. And true civil jury trials are almost entirely absent elsewhere in the world.

I wanted to give Jefferson's quote above some context, because it's important to note the unique value of the civil jury trial, and the place it holds within the American system of law. "Having your day in court" is a phrase that carries deep meaning with Americans, mostly because the right to have a grievance heard in front of a "jury of our peers" is something Americans particularly identify with. Heck, the civil jury trial has been around since 1789.

But statistics show that the number of U.S. civil jury trials in recent years is in rapid decline.

A news story recently appeared in the Dallas Morning News which noted that the number of Texas civil disputes that were resolved by juries plummeted 20 percent in 2011, even as the number of lawsuits filed hit record highs last year. The story also noted the 1,195 jury trials conducted in Texas in 2011 are only one-third the number held in 1996. But during the same period, the number of lawsuits filed rose 25 percent. The story also stated that juries decided one out of every 48 lawsuits filed (about 2.1%) in 1996, but that in 2011, only one in 183 new civil complaints resulted in jury verdicts (about 0.5%).

The story's author, Mark Curriden, attributed the drop to what he called

Obtaining Class Certification in Federal Court, Part II of II

Tue, 10 Apr 2012 08:03:05 -0700

Class actions are special types of cases where a single plaintiff or a few plaintiffs (the "named plaintiffs") represent the interests of a much larger group in a single action. Because the rights of many plaintiffs, potentially thousands or tens-of-thousands, are being determined in one lawsuit, there are special rules that apply to class action lawsuits.

However, before the class action rules apply, the trial court must "certify" the lawsuit as a class action. There are a number of requirements that a group of plaintiffs are required to meet before their lawsuit will be certified by the trial court as a class action. In federal court, these requirements are listed in Federal Rules of Civil Procedure 23(a) and 23(b). This blog will discuss the requirements established by Rule 23(b). A blog posted in March, 2012, discussed the requirements established by Rule 23(a).

"In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3)." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). Only one of the three categories needs to be met.

Rule 23(b)(1) has two parts under which a class action can be certified. Rule 23(b)(1)(A) covers cases in which separate actions by or against individual class members would risk establishing "incompatible standards of conduct for the party opposing the class." Fed. R. Civ. P. 23(b)(1)(A). The rule "'takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners).'" Windsor, 521 U.S. at 614.

Rule 23(b)(1)(B) covers cases in which separate actions would "as a practical matter . . .

Drive-Thru Injustice: The Forged Poster Child of Tort Reform

Wed, 28 Mar 2012 13:01:13 -0700

On Feburary 27, 1992, Stella Liebeck, a 73-year old woman from Albuquerque, New Mexico, bought a 49-cent cup of coffee at a drive-through window. She probably didn't know that she was about to change the face of modern litigation.

If you ask people what "tort reform" is, they'll most likely tell you about a woman who spilled McDonald's coffee on herself, sued, and got millions of dollars in damages. That woman was Stella Liebeck. For nearly two decades now, corporate interests, the insurance industry, and other groups have used her as a scapegoat, and called her case the "poster child of excessive lawsuits." However, as with many legal issues, once media and other groups become involved, it is difficult to separate fact from fiction. In this case, the facts of Ms. Liebeck's case have been twisted and mis-reported in the name of protecting against so-called "frivolous lawsuits," and provided a tremendous springboard for tort reform around the country. But the facts have morphed into fiction, and a generation-long misunderstanding of what really happened in Liebeck v. McDonald's Restaurants, P.T.S., Inc. has spurred a crusade against the rights of tort victims.

I hadn't thought much about the infamous "McDonald's Case" for years, until a friend and I were talking about tort reform last weekend. He told me about a documentary he watched about the case called Hot Coffee, which premiered on HBO on June 27, 2011. I did a little investigation into the case myself, and was shocked at how much the real facts of the case were different from all the stories I had heard.

As the story is often told, Ms. Liebeck bought coffee at the drive-through window, began driving, and then spilled the entire cup on her lap. This is how I understood the story. But I was surprised when I learned that not only was she seated in the passenger seat being driven by her grandson, but the spill and injury occurred while they were parked. After receiving the coffee from the drive-through window, she asked her grandson to park so that she could add cream and sugar. While holding the cup between her legs, she pried open the lid and the entire cup spilled into her lap. Ms. Liebeck was portrayed as reckless: senselessly spilling her own coffee while trying to drive. Does the real story sound a little different than how the case was portrayed? Read on.