BIFURCATION AND THE BAD FAITH CLAIM
Stephen C. Kaufman
There are certain insurers with policies requiring that the insured sue the insurer when they cannot agree on the amount of uninsured or underinsured motorist (hereinafter UM or UIM) benefits to which the insured is entitled. Often times the dispute over benefits is genuine, with both parties acting in good faith. Sometimes it is not and a claim for bad faith may result. When this happens the insured’s attorney would do well to consider combining the claim for UM or UIM benefits with the bad faith claim in the complaint. This will give the jury a much better appreciation of the basis underlying the bad faith claim and, since the insurer’s acts of bad faith relevant to the UM or UIM claim probably will be continuing throughout trial, joining these claims will enable the jury to view some of the insurer’s acts of bad faith as they occur. Of course, the insurer will move to bifurcate the bad faith claim from the UM or UIM claim, with the idea being to first try the UM or UIM claim and thereafter proceed with the bad faith claim, if necessary, depending upon how the jury rules on the underlying UM or UIM claim. The ability of the insured to defeat that motion may make all the difference in the world relevant to the willingness of the insurer to alter course and resolve the insured’s claims in good faith, short of trial.
Remember that before a court can order bifurcation C.R.C.P. 42(b) requires a showing by the moving party that separate trials are needed “in furtherance of convenience, or to avoid prejudice, or . . . [that] separate trials will be conducive to expedition or economy.” In the absence of such a showing, bifurcation would be inappropriate.1 “Circumstances to be considered include the interrelationships of issues and claims, potential prejudice to any party, potential duplication of evidence, and possible delay in the ultimate resolution of the case.”2 With these standards in mind, bifurcation of the bad faith case from the UM or UIM case would achieve just the opposite result. Because the two claims are substantially intertwined and the evidence and witnesses needed to prove the UM or UIM claim would be nearly identical to that demanded to prove the bad faith claim, bifurcation would result in the unnecessary duplication of trials, together with an unnecessary duplication of expenses. Therefore, bifurcation would be neither feasible, nor warranted.
THE ISSUES INVOLVING CLAIMS FOR UM OR UIM BENEFITS AND BAD FAITH ARE INTERRELATED
An insured’s claim for UM or UIM benefits derives from the contract of insurance issued by the insurer. As such, it is important to note that an insured’s claim for UM or UIM benefits is not grounded in negligence, but rather is based on what benefits the insured is entitled to pursuant to the terms of the contract. In turn, the insured’s claim for bad faith stems from the manner in which the insurer handled the UM or UIM claim under the same contract and its breach of that contract. Thus, both the claim for UM or UIM benefits and the bad faith claim are interrelated inasmuch as all issues revolve around the terms of the contract of insurance and the insurer’s obligations under the law with respect to that contract.
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Analogously, C.R.C.P. 20 permits the joinder of parties in the same action where the claims being made by or against each of them “are in respect of or arising out of the same . . . series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” The purpose of allowing joinder under these conditions is to promote the efficiency of the judicial system and lessen the expense involved with litigation. As to both the UM or UIM claim and the bad faith claim there is a “series of transactions or occurrences” all arising from the same contract of insurance and all requiring for their resolution a determination of what each of the parties’ rights and duties are under those contracts. Furthermore, as will be discussed below, a multitude of significant questions of fact will be common to both the claim for UM or UIM benefits and the claim for bad faith. Therefore, because of the interrelatedness of the issues involved with these claims, bifurcation would be inappropriate and result in the inefficient and expensive treatment of the insured’s causes of action.
THE SAME EVIDENCE WILL BE REQUIRED TO PROVE BOTH THE CLAIM FOR UM OR UIM BENEFITS AND THE CLAIM FOR BAD FAITH
In order to prevail on a UM or UIM claim, an insured must establish that the other driver’s negligence caused the collision and the nature and extent of the insured’s damages resulting therefrom vis-a-vis preexisting conditions. For an insured to succeed on a claim for bad faith it must show that the insurer acted in bad faith by not dealing fairly with the insured in that it negligently or unreasonably handled, delayed, or denied Plaintiffs’ uninsured motorist claims.3 This has been codified in C.R.S. 10-3-1113(1)-(3). Furthermore, pursuant to subsection (4) of that statute, any “unfair claim settlement practice” engaged in by the insurer, as set forth in C.R.S. 10-3-1104(1)(h)(I)-(XIV), constitutes evidence of its bad faith. Analysis of an insured’s claims for UM or UIM benefits and for bad faith, in this context, will demonstrate that the evidence needed to prove each of these claims will be virtually identical.
First, there is the need to deal with the liability issue. If the insurer has denied that the uninsured or underinsured motorist was negligent, the insured will have to call witnesses at trial to establish this. This will likely involve eliciting testimony from the insured, the other driver, any eyewitnesses, and the investigating police officer. So too with respect to the bad faith claim since it is evidence of bad faith when an insurer does “[n]ot attempt… in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.”4 Thus, the same evidence that will be used to prove the liability issue with respect to the UM or UIM claim which will be utilized for the bad faith claim to show that liability was clear and that the insurer did not make reasonable attempts to fairly settle once it became aware of this.
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As for the damage issue with respect to the UM or UIM claim, the insured will have to rely on his or her own testimony, the testimony of doctors and friends, the medical records and other extrinsic evidence, such as the damage to the involved vehicles, to prove what injuries and damages, or portions thereof, were caused by the collision as compared to other incidents. This same evidence, all going to the issues of apportionment and extent of damages, will be necessary to prove whether: the insurer acted in bad faith in not making a response to a settlement offer from the insured or in making a late response; in compelling its insured to institute a lawsuit “by offering substantially less than the amounts ultimately recovered”; and by “[a]ttempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled.”5
In other words, without there being the medical and lay testimony, and the accompanying medical records and exhibits, to determine extent of the insured’s injury and apportionment issues, an insured would be unable to prove whether the insurer’s delay in responding to offers was reasonable, whether the offer that the insurer made was “substantially less” than was reasonable, and less than what a reasonable man would feel entitled to. Thus, the same evidence that goes to proving damages in the claim for uninsured motorist benefits is essential to proving whether the insurer acted in bad faith with respect to its handling of the UM or UIM claim.
The truth of this is further demonstrated in looking at some specific instances of misconduct that an insurer might engage in when dealing with the claims of its insured for UM or UIM benefits. For example, an insurer may have already obtained IME’s in the context of the insured’s PIP claim which turned out favorable to the insured. Nevertheless, the insurer may seek an additional IME once suit is filed, not for the purpose of truly evaluating the insured’s UM or UIM claim, but solely to obtain a contrary opinion in order to defeat the insured’s claim. So, while the testimony of the favorable IME doctors will be required to establish damages for the UM or UIM claim, this same testimony will be needed to show that the insurer acted unfairly towards its insured in compelling an unnecessary IME . In other words, the testimony of the favorable IME doctors will demonstrate that the insurer already had IME opinions covering the same issues it sought to have the new IME doctor address, but that the insurer then retained another doctor, not for the purpose of ensuring that the pay out of benefits was fair, but instead for the sole purpose of obtaining testimony at trial in an effort to unfairly diminish the amount of benefits its insured would receive.
So too with respect to the insurer’s taking of inconsistent positions with respect to its handling of the insured’s PIP claim and the insured’s UM or UIM claim. On the PIP claim the insurer may well have paid benefits based on the opinions of the treating doctors and the IME reports. Again, the same doctors that will be needed at trial to prove the insured’s claim for UM or UIM benefits will have to be called to prove the correctness in the way the insurer adjusted the PIP claim in order to show that the insurer then turned around and took an inconsistent position as to the UM or UIM claim. This will aid in establishing that the insurer intentionally took inconsistent positions so as to unreasonably and unfairly preclude the insured from recovering the full amount of benefits to which the insured was entitled.
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Because the evidence that will be used to prove the UM or UIM claim will be the same as the evidence presented on the issue of bad faith, it would be extremely inefficient to bifurcate these claims. The end result would be to litigate the case twice. Furthermore, the ultimate resolution of the case will be delayed by one to two years should the insured be forced to try the bad faith claim after trial of the UM or UIM claim. In this same vein, the insured will be forced to incur duplicative expenses in trying the same case a second time, particularly in having to pay the same expert medical witnesses twice for appearing at two trials to testify to the same thing. Taking all this into consideration requires the conclusion that bifurcating claims for UM or UIM benefits and bad faith claims would be improper.
NO UNFAIR PREJUDICE WILL INURE TO THE INSURER IF THE INSURED’S CLAIMS ARE NOT BIFURCATED
Insurers tend to make the conclusory allegation that if the insured’s UM or UIM claim is tied together with the bad faith claim, the insurer will be unfairly prejudiced. Often times the insurer makes no effort to explain exactly how this would be the case. In any event, to analyze this issue the focus must be on the key term “unfairly” since any evidence favorable to one party is, of course, going to be prejudicial to the opposing side.
On the one hand, if the insurer has not committed and will not commit acts of bad faith then there obviously can be no unfair prejudice to it in trying these claims together. Under such circumstances the jurors could then not possibly be incited by the insurer’s conduct in the handling of the UM or UIM claims so as to induce them to award an amount of UM or UIM benefits in excess of what the insured would be entitled to on that claim alone. Therefore, the motion of an insurer to bifurcate on that basis would in fact be inconsistent with its denial of the bad faith allegations in the complaint. If the insurer has denied the allegations in good faith, then there should really be no fear on its part of being unfairly prejudiced. Under equitable principles, the insurer’s denial of the bad faith allegations should certainly estop them from making any claim that they will be unfairly prejudiced.
On the other hand, if the evidence at trial does prove that the insurer acted in bad faith, the insurer still will not be subject to unfair prejudice. First, an instruction should be given making clear the differences in the insured’s claims for relief and directing the jury to award damages on the bad faith claim relating to the insured’s wrongful handling of the UM or UIM claim. The jury should also be instructed not to increase the award on the insured’s claim for UM or UIM benefits due to the manner in which the insurer has dealt with the UM or UIM claim, since that conduct is to be properly addressed with respect to its award on the bad faith damage claim, and would, therefore, constitute a double recovery. Given the propensity of juries to avoid awards that double the recovery for the same element of damages, the chance of that happening in this case would be practically non-existent. To argue to the contrary would be to presume that the jury failed to follow the court’s instructions designed to preclude a double recovery, which is something a court will not do.
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It is also important to note that any act of bad faith on the part of the insurer derives from its own wrongful conduct and it is not unfair to make the insurer bear the consequences of that conduct. What would be unfair, however, would be to punish the insured for the insurer’s acts of bad faith by bifurcating claims which would delay the ultimate resolution of insured’s case and force the insured to try the same case twice while doubling the insured’s expenses in doing so.
The insurer may also contend that the insured will argue that the insurer’s bad faith is continuing right through trial. Again, if the insurer is not continuing to act in bad faith, it has nothing to be concerned about. But if acts of bad faith show up at trial, the jury should be allowed to see it as it occurs, rather than to have it sanitized through the filter of a separate trial. The court, though, should not facilitate the insurer’s acts of bad faith and enhance their unfair impact on the insured by way of an order for bifurcation. Instead, the jury should be allowed to see exactly what the insurer is trying to do in the overall context of all claims and the insurer’s wrongful acts should not thereby be buried under cover of bifurcation.
SEPARATION OF CLAIMS FOR UM OR UIM BENEFITS AND BAD FAITH DOES NOT FIND SUPPORT IN CASE LAW
There are no Colorado appellate cases directly on point involving the issue of whether claims for uninsured motorist benefits and bad faith should be bifurcated. However, the Colorado Supreme Court decision in Sutterfield v. District Court7 does provide guidance with reference to a comparable situation. In Sutterfield, the plaintiff was injured in two separate motor vehicle accidents and he brought suit against both drivers in the same case. Our Supreme Court reversed the trial court’s decision to order separate trials against each defendant. In doing so, the court stated:
Proper apportionment can be more justly accomplished by one jury than by two juries sitting separately, each faced with the argument that the greater portion of the injury was caused by the defendants other than the one in the case at trial. The situation of two juries faced with the task of apportioning liability for a single injury could very well result in the plaintiffs’ receiving aggregate verdicts for much less than the admitted amount of permanent injuries, or, on the other hand, for much more than the admitted amount of permanent injuries. Justice would not be well served by either of such results.8
Obviously, the public policy that our Supreme Court sought to advance in Sutterfield was one whereby an injured person would receive full and fair compensation for injuries sustained. In its ruling the Court would not allow this policy to be thwarted by way of legal tactical devices such as bifurcation which would have given the defendants the opportunity in each separate case to attribute the plaintiff’s damages to the incident underlying the other case not then being tried.
Similarly, if the court were to bifurcate a UM or UIM claim from a bad faith claim the insurer could attempt to wrongfully diminish the insured’s overall recovery for damages on all claims for relief by playing off each of the insured’s claims against the other. To illustrate, in the trial for UM or UIM benefits the insurer would have the option of trying to attribute the insured’s emotional damages to problems the insured had with the insurer in collecting benefits rather than as damages caused by the collision with the uninsured or underinsured motorist.
Then in the bad faith trial the insurer could turn around and inconsistently contend that the insured’s emotional damages were not caused by its conduct, but instead were caused by the accident. By not allowing bifurcation, the insurer, in keeping with the rationale underlying the Sutterfield decision, will be precluded from improperly taking inconsistent positions with respect to the insured’s claims and, thus, the insurer will be frustrated in trying to unfairly deny its insured a full and fair recovery on all of the insured’s claims for relief.
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At the trial court level in Colorado, the Denver District Court in the case of Glenn v. State Farm Mut. Auto Ins. Co., et al.9 expressly rejected the insurer’s attempt to bifurcate the insured’s UM and bad faith claims. In Glenn the insured was injured in two collisions and the tortfeasor was uninsured on both occasions. An arbitration award was returned in favor of the insured as to the first accident and, because of a change in the insured’s policy, suit was filed for UM benefits relevant to the second accident.
The insured also included a bad faith claim in that action alleging that the insurer acted improperly by engaging in a scheme whereby an attempt would be made to attribute all damages at the arbitration to the second accident and then the insurer would inconsistently attempt in the law suit to attribute all damages to the first accident so as to improperly deprive the insured of a full recovery for all damages sustained from the combination of accidents. The insured also alleged that the insurer had an unnecessary IME done to unfairly defeat his claim for benefits, that the insurer took contradictory positions in its handling of his PIP and UM claim, and that the insurer failed to make a settlement offer on one of the UM claims, failed to make a fair or timely offer on the other, and failed to respond on a timely basis to correspondence from the insured. The insurer filed a motion to bifurcate claiming it would be prejudiced if the claims were tried together since evidence on the bad faith issue would corrupt the jury’s determination of the UM claim. The insurer also argued that the insured might call the insurer’s present attorneys as witnesses since they would be involved in acts during the course of the litigation and at trial which would further what the insured had asserted to be bad faith. The court rejected the insurer’s motion 10 and the insurer then filed a Petition for Writ of Prohibition and Mandamus which was denied.
In so ruling, the district court set forth the rationale underlying its decision as follows:
State Farm concludes in its motion that to allow Plaintiffs to try their claims together would create a prejudicial and procedurally unwieldy situation. The court does not agree. With respect to the presentation of the breach of contract evidence [i.e. the UM claim] concurrent with the bad faith evidence, the Court has the utmost faith in a jury’s ability to separate the two and make independent decisions on the claims. Moreover, the parties will be able to draft jury instructions mandating that the jury decide the claims separately, without regard for the other claims.
With respect to State Farm’s attorney being called as a witness, the trial in this matter is too far away for Plaintiffs to have designated witnesses yet. The Court will not sever the trial based on a possibility. Furthermore, current counsel can affiliate now, at the outset of this litigation, with another attorney who defends State Farm cases in the event that he is called to testify at trial. If and when current counsel is called to testify, then the affiliate counsel can assume the defense duties and there will be no prejudice to State Farm.12
Courts from other states, when confronted directly with the issue of whether to bifurcate a claim for uninsured motorist benefits from a claim for bad faith, have declined to do so as well. In Motors Insurance Corporation v. Fashing13 the court affirmed the denial of an insurer’s motion to bifurcate claims for uninsured motorist benefits and bad faith, ruling that possible problems that might arise over discovery of the insurers’ file were insufficient to justify separate trials.
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Likewise, in Buzzard v. McDaniel14 the insureds brought an action against their carrier for underinsured motorist benefits and also alleged that their insurer had acted in bad faith with respect to their claim for such benefits. The trial court denied the insurer’s request to bifurcate and the Supreme Court of Oklahoma affirmed, holding that it would not be necessary for the insureds to first address in a separate trial whether they were entitled to underinsurance benefits by proving the liability of the underinsured motorist. The court set forth its rationale as follows:
Farmers actions, in this regard, must be assessed in light of all the facts known and knowable concerning the claim at the time petitioners requested Farmers to perform its contractual obligations. Thus, the issue of whether, in fact, petitioners had a legal right to recover from the City of Norman is not separable from the question of whether Farmers had a good faith belief, at the time its performance was requested, that it had a justifiable reason for withholding payment under the policy.
Although not dealing specifically with a claim for uninsured motorist benefits, courts in other jurisdictions also have held that bifurcating claims made under a contract of insurance and bad faith claims arising therefrom would be improper. In Liberty National Fire Insurance Company v. Akin16 the insured made a claim for damage to the foundation of her home and payment was denied. The insured brought suit against her insurer making claims for her policy benefits and for bad faith. The insurer argued that the claims should be separated with the insured being precluded from pursuing her bad faith claim until after the underlying claim for benefits was resolved. The court affirmed the denial of the insurer’s motion, holding that the “claims are largely interwoven, most of the evidence introduced will be admissible on both claims, and any prejudicial effect can be reasonably ameliorated by appropriate limiting instructions to the jury.”17 Furthermore, the court noted that judicial economy would not be served by separation since even if the insurer prevailed on the claim for benefits, the bad faith case would still have to be litigated by virtue of the insured not having “limited her bad faith allegations to mere bad faith denial of her claim.
In this same vein, in Britton v. Farmers Insurance Group19 the insured made a claim under his policy for property destroyed by fire. His insurer refused to pay contending that arson was involved. The insured then asserted claims for the policy benefits and for bad faith. The trial court refused to bifurcate and the Montana Supreme Court affirmed, noting that the issues “were inextricably intertwined” so that it would have been error to order separate trials. In so ruling the court observed that “[t]he policy of the law is to avoid multifariousness in litigation and to resolve all issues and lawsuits in one trial.
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CASE LAW RELIED UPON BY INSURERS IN SUPPORT OF BIFURCATION IS UNPERSUASIVE
It is unlikely that an insurer will cite to a case in which a court has ordered bifurcation of an insured’s claims for uninsured motorist benefits and for bad faith. Instead, an insurer may rely upon the Colorado Court of Appeal’s case of Martin v. Minnard22 which did not even involve an insurance claim. In Martin, the plaintiff alleged that he was injured due to the negligence of a bus driver. Suit was also brought against the driver’s employer on grounds of negligent hiring.
The court found bifurcation of the claims to be proper since the driver’s driving record would be admissible on the negligent hiring claim, but not on the claim of negligence, such that unfair prejudice would result to the driver. This is not the case with a UM or UIM claim and a bad faith action where the evidence needed to prove the two claims is the same and where no unfair prejudice will result. Also, in Martin, if the plaintiff failed to prevail on his claim of negligence, there would be no reason to try the negligent hiring claim, which would not be the result with respect to a bad faith claim which can be based on more than just a failure to pay benefits on a timely basis.
An insurer’s citation to the Colorado Supreme Court case of Prudential Property, Etc. v. District Court23 would also fail to advance its position. In that case the insured and another person became involved in a physical altercation in which the other person was injured, resulting in him filing suit. The insurer also filed a declaratory judgment action contending that there was no coverage under a policy of homeowners insurance because the insured had acted intentionally. The trial court ordered that the two cases be combined for trial, that the insurer’s attorney be allowed to participate in the trial, but that the insurer would not be identified, and that the jury would be given a special instruction asking them whether the insured intended to cause bodily injury. The court reversed, noting that while a decision not to bifurcate is discretionary, an abuse of that discretion occurs when the failure to separate trials “virtually assures prejudice to a party.”24
The court then held that the insurer would, indeed, be unfairly prejudiced because the trial court’s order denied the insurer an expedited ruling on whether it had an obligation to defend its insured and thereby reduced the insurer “to a handicapped observer,” “stripped of any adversary role” at trial, without the right “to call witnesses and present evidence, to examine and cross-examine witnesses, and to argue the evidence.”25 Furthermore, the court concluded that to have “a mysterious attorney” present at trial would result in the jury realizing that there was insurance involved which would be irrelevant to the issue of negligence and, therefore, unfairly prejudicial as well. Such unfair prejudice, however, could not occur if a court refused to bifurcate a UM or UIM claim from a bad faith claim.
The insurer would not be deprived of its adversarial rights if the claims were not bifurcated and the fact that there is insurance present could not be hidden from the jury even if separate trials were granted since the insured’s UM or UIM claim is a claim for benefits under a policy of insurance.
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This then leaves us to address the out of state case of Bartlett v. John Hancock Mutual Life Insurance Co.26 In that case the beneficiary of a life insurance policy brought suit against the insurer for the policy benefits and also made a claim in bad faith. The issue was not whether the two claims should be bifurcated, but whether the insurer had to produce certain documents in response to a motion to compel. The court ruled that the documents did not need to be produced since, although they were relevant to the bad faith allegations, there could be no bad faith absent a showing that the insurer was liable to pay benefits under the policy.27
The Bartlett case simply will not justify bifurcation of the UM or UIM case from the bad faith action on the basis of speculation. In fact, an issue concerning the production of documents may never even come up in any particular case. Should one arise, however, the court can address it at that time in the context of the bad faith case having been combined with the UM or UIM claim and make appropriate rulings, if necessary, to prevent the insurer from being unfairly prejudiced. This is exactly what the Bartlett court did, rather than bifurcate, which clearly demonstrates that claims for UM or UIM benefits and bad faith can be fairly managed without having to be severed. On this point, it also must be noted that our Supreme Court in Hawkins v. District Court28 has already held, contrary to Bartlett, that an insured is entitled to the production of the insurer’s file when he has “sued the company [in the same action] for breach of the insuring agreement, bad faith in refusing to pay his claim, and outrageous conduct.” Therefore, since our Supreme Court has held that the insured would be entitled to the insurer’s documents, there can be no real argument that the documents the insurer must produce in a bad faith claim necessitates its bifurcation from the claim for uninsured motorist benefits.
Bartlett has also been cited for the proposition that bifurcation is warranted since a trial on the bad faith claim will be unnecessary if the insured does not prevail on the UM or UIM claim. In Colorado this is simply not true as it has been previously shown above that a bad faith cause of action can result from the insurer’s delay alone in responding to communications from its insured.29
For an insurer to be successful in its attempt to bifurcate the claims of its insured for UM or UIM benefits and bad faith, it will be necessary for the insurer to satisfy the criteria set forth in C.R.C.P. 42(b). Without proof that separate trials would enhance convenience, be more expeditious, or lessen expense, or a showing of unfair prejudice, separate trial should not be granted. Considering that bifurcation would result in two nearly identical trials involving the same witnesses and the same evidence and that the insured would be unfairly prejudiced due to the substantial delay in the ultimate resolution of his or her case and by the doubling of expenses, the argument against separate trials is a strong one. Furthermore, bifurcation might very well enable the insurer to continue to act in bad faith to the insured’s detriment and thereby permit the insurer to cover it up under the auspices of the court. Such a result lacks support in Colorado case law, as well as the case law from other jurisdictions. Accordingly, it is suggested that courts cast a wary eye on an insurer bifurcation motion and take into account what the insurer is really trying to accomplish with its motion and the harmful impact the granting of such a motion would have on the insured.
1. Gaede v. District Court, 676 P.2d 1186, 1188 (Colo. 1984); Sutterfield v. District Court, 438 P.2d 236 (Colo. 1968).
2. Gaede, id. at 1188.
3. Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo. 1984).
4. C.R.S. 10-3-1104(1)(h)(VI).
5. C.R.S. 10-3-1104(1)(h)(II), (VI), (VII), (VIII).
6. Lexton-Ancira Real Estate Fund v. Heller, 826, P.2d 819, 824 (Colo. 1992).
7. 438 P.2d 236 (1968).
8. Id. at 240.
9. 97 CV 2835 (Judge Markson’s Order of Oct. 2, 1997).
11. State Farm Mutual Automobile Insurance Company, et al. v. The District Court, Second Judicial District,97SA422 (Order of Nov. 26, 1997).
12. Supra. note 9.
13. 747 S.W.2d 13 (Tex. App. 1988).
14. 736 P.2d 157 (Okla. 1987).
15. Id. at 159.
16. 927 S.W.2d 627 (Tex. 1996).
17. Id. at 630.
18. Id. at 631.
19. 721 P.2d 303 (Mont. 1985).
20. Id. at 320, 321.
21. Id. at 321.
22. 862 P.2d 1014 (Colo. App. 1993).
23. 617 P.2d 556 (Colo. 1980).
24. Id. at 558.
26. 538 A.2d 997 (R.I. 1988).
27. Id. at 1000-1002.
28. 638 P.2d 1372, 1374 (Colo. 1982).
29. C.R.S. 10-3-1104(1)(h)(II).
Filed under: Articles by Steve Kaufman
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