Edward O'Brien (Partner-Louisville, KY), Kim Koehler (Partner-Denver, CO), and Jason Melichar (Partner-Denver, CO) secured a significant appellate victory for Wilson Elser’s attorney client when the Colorado Court of Appeals affirmed the probate court’s order awarding the client more than $400,000 in attorney fees and costs following an earlier defense verdict. The appeal arose from a professional liability action brought by a former protected person against Wilson Elser’s client, who the court had appointed as a limited conservator after the protected person lost more than $1 million to online romance scams.

After the conservatorship was terminated, the former protected person pursued a Petition for Surcharge alleging that our client had breached her fiduciary duty and seeking substantial damages. Kim and Jason successfully defended the client at a week-long bench trial, after which the probate court found that the petitioner failed to prove any fiduciary-duty breach and entered judgment for the client. As the prevailing party under the applicable probate framework, the client was awarded more than $400,000 in fees and costs.

On appeal, the petitioner challenged the compensation and costs award, arguing that she was entitled to a hearing on its reasonableness and that the award violated various Colorado probate statutes. The Colorado Court of Appeals rejected those arguments and affirmed the probate court’s order in full. The court held that the petitioner waived her argument that a hearing was mandatory under section 15-10-604(4), C.R.S., because she had not raised that statutory basis in the probate court, instead asking only for a discretionary hearing under a different rule. The court also rejected her statutory challenge to the award of fees and costs for litigating the surcharge and discharge-compensation petitions, holding that sections 15-10-602(1) and 15-10-602(6), C.R.S., are stand-alone provisions and that a fiduciary’s good-faith prosecution or defense of a proceeding is compensable under section 15-10-602(6) regardless of whether the same litigation also qualifies as services rendered on behalf of the estate under section 15-10-602(1).

The court declined to reach several remaining arguments because they were insufficiently developed, including challenges concerning alleged opposition to removal, testimony at a termination hearing, post-termination services, and the scope of the conservator’s authority after a removal petition.

The decision preserves the probate court’s substantial fee and cost award and provides the client another important victory in the trial and appellate proceedings. Edward’s work on the appeal was pivotal in protecting the client’s significant judgment for fees and costs and allowing her to proceed with collection, absent further review.

Ryan Williams (Partner-Denver, CO) and Benjamin Bakula (Associate-Denver, CO) secured a defense jury verdict in the Seventeenth Judicial District Court, Adams County, Colorado, in favor of their clients, a custom landscaping company and its employee. In this personal injury action, the plaintiffs alleged that, during a winter storm in December 2019, the employee of the landscape company negligently operated a snowplow that crossed into their lane of travel, causing a side-to-side collision and resulting in their claimed personal injuries. The plaintiffs asserted claims for negligence, negligence per se, negligent hiring and supervision, and negligent entrustment. Ryan and Ben established, through expert testimony, that the accident could not have occurred as described by the plaintiffs, and that any force applied to the plaintiffs’ vehicle was likely insufficient to have caused the alleged injuries. After deliberations, the jury returned a defense verdict, finding that Wilson Elser’s clients were not negligent. The company, its employee, and their insurer will seek recovery of all litigation costs, which exceed six figures.

Ryan Williams (Partner-Denver) and Michelle Yang (Associate-Denver) obtained summary judgment on behalf of their client, a regional bank with branches throughout Colorado, in the Denver County District Court. The presiding judge granted the motion, dismissing all vicarious liability claims against the bank.

The case arose from an August 2023 motor vehicle collision in which a bank employee struck the plaintiff while driving home from a work-related banking conference. The plaintiff alleged that our client was vicariously liable under respondeat superior, arguing the employee was acting within the course and scope of her employment at the time of the accident. Ryan and Michelle successfully argued that Colorado's well-established going-and-coming rule barred the claim, demonstrating that the employee's commute home – regardless of whether the employee had attended a work event earlier that day – did not further the bank's business purpose. The Court agreed, finding no genuine issue of material fact and ruling that the doctrine of respondeat superior was inapplicable as a matter of law.

Ryan Williams (Partner-Denver), Edward O’Brien (Partner-Louisville), and Gabrielle Lalonde (Associate-Denver) secured an appellate victory in the Colorado Court of Appeals for Wilson Elser’s client, Jim Black Construction. The court affirmed the trial court’s judgment in favor of the client in its lien foreclosure and breach of contract action against a property owner for whom it provided services. The panel rejected the property owner’s challenges to the validity and amount of the mechanic’s lien and upheld the trial court’s findings that the lien was not knowingly excessive. The court also affirmed the contract judgment, concluding that the parties’ proposal and work authorization are to be construed together and that the record supported the scope of work and the charges awarded. This decision allows Jim Black Construction to proceed toward foreclosure and enforcement upon issuance of the mandate, absent any further review.

The Denver, Colorado, team of Laura Ellenberger (Of Counsel), Chris Yvars (Partner), and Benjamin Bakula (Associate) secured a complete pre-trial dismissal in a case where the plaintiff initially demanded $5 million for alleged injuries from a claimed hit-and-run accident involving a delivery van displaying the branding of a well-known international corporation. Although third-party video captured the incident, the team’s investigation raised concerns that the accident may have been staged. Through aggressive discovery and proactive investigation, they uncovered the plaintiff’s history of injury claims and identified strikingly similar allegations of injury. Armed with this evidence, they successfully challenged causation and credibility. The Denver District Court dismissed all claims before trial and ordered reimbursement of our client’s defense costs.

Christopher Yvars (Partner, Denver, CO) Kimberly Viergever (Of Counsel-Denver, CO), and Michael McCloskey (Senior Counsel-San Diego, CA)  secured a complete defense victory for a national health care client in a commercial arbitration where the claimant sought more than $50 million in damages. The dispute centered on long-term services and nondisclosure agreements involving an alleged proprietary software platform, which claimant developed to streamline and enhance health care outcomes management for large-scale providers. The claimant alleged breach of contract and theft of trade secrets, asserting that the firm’s client had improperly used and disclosed confidential processes, data integration methods, and reporting functionalities unique to the claimant’s product. After a multi-day evidentiary hearing featuring testimony from technical experts and company executives, as well as extensive written submissions, the AAA Arbitration, Denver, Colorado, issued a final award denying all claims and dismissing the case in its entirety.

Jane Young (Partner-Denver, CO) defended an insurer client that issued two excess policies to a health care provider, which provided up to $40 million in hospital professional liability coverage in excess of $2 million per medical incident underlying coverage. The insured was sued by hundreds of patients in Denver, Colorado, claiming a breach in the sterilization protocol of surgical instruments. The coverage issue was whether the hundreds of different claims by different patients constituted one medical incident or more than one medical incident under the excess policies. The insured argued all the claims should be grouped as one medical incident. Our client disagreed and, pursuant to the policy language, argued that each patient's claim constituted a separate medical incident. The insurer filed a declaratory judgment action, seeking a declaration that each claim constituted a separate medical incident. The Colorado Federal Court agreed with our client and granted summary judgment. The insured appealed to the Tenth Circuit. After oral argument, the Tenth Circuit affirmed and held that each patient's claim constituted a separate medical incident. Thus, our client does not have an obligation to pay any monies until any one claim exceeds $2 million, and only one claim did.

Christopher Yvars (Partner-Denver, CO) and Kim Koehler (Partner-Denver, CO) defended a national self-storage company in Denver County District Court in a case brought by one of its renters. The plaintiff sued the client for approximately $100,000 in alleged property damage, plus attorney’s fees and costs.  She alleged that another renter was running an illegal chop shop out of his storage unit, which resulted in a fire that spread to and damaged other units, including the plaintiff’s. The plaintiff pled a single claim of gross negligence against the client in an attempt to plead around the waiver in her rental agreement, which clearly prohibits any simple negligence claims. Through discovery, Chris and Kim found that the plaintiff’s damages valuation was substantially inflated, and that she had discarded important evidence. They were ultimately successful in moving to dismiss plaintiff’s gross negligence claim against the client. Subsequent to the order of dismissal, the plaintiff filed a motion to bring new claims against the storage facility under Colorado's Premises Liability Act, and breach of contract and negligence theories. The court agreed with Chris and Kim’s opposition and denied the plaintiff’s motion, noting that allowing her counsel to essentially restart the case based on claims that could have been but were not asserted in the original complaint would undermine the purpose and spirit of the rules.

Christopher D. Yvars (Partner, Denver, CO) obtained summary judgment in a slip-and-fall case for the lessee and property owner of an Army & Navy Surplus Store in Arapahoe County District Court, Colorado. The plaintiff was walking to her car when she slipped on some ice and fell in the alley separating the clients’ store and their parking lot. Chris established as a matter of law that the clients had no ownership of the alley and owed no legal duty to maintain the area under Colorado’s Premises Liability Act or common law. The court agreed and granted dismissal of the case in its entirety. Chris obtained full resolution of the case before any depositions were taken and without the need for expert discovery.

Christopher D. Yvars (Partner-Denver, CO) and Kim L. Koehler (Partner-Denver, CO) were granted their motion for summary judgment and dismissal of a premises liability case in Denver District Court on behalf of an international brand hotel in downtown Denver, Colorado. The plaintiff, a guest at the hotel for multiple nights, alleged an unreasonably slippery bathroom floor caused him to fall forward and strike his head on the granite counter and door, causing a large facial laceration, traumatic brain injury, permanent neurologic and vision issues, and scarring. He sued the hotel under Colorado's Premises Liability Act, demanding $1.5 million. In obtaining a judgment on the merits of the case, Chris and Kim argued that an ordinary, common, tile bathroom floor is not a “danger” contemplated by the Premises Liability Act and that their client was entitled to judgment as a matter of law. The court granted their motion for summary judgment and dismissed the plaintiff's lawsuit.

Christopher Yvars (Partner, Denver, CO) obtained a full jury defense verdict in a premises liability case on behalf of a major national bookstore client in Larimer County, Colorado, District Court. The plaintiff suffered significant injuries when he tripped and fell on a display stand at the client’s bookstore. The plaintiff, who is in his 70s, claimed the display created a dangerous condition and sued the client under Colorado’s Premises Liability Act. The plaintiff claimed the store had notice of the danger, as several management-level employees testified they had witnessed similar incidents over the years, and that the store disposed of the video of the incident, implying there was a cover-up. The plaintiff had over $300,000 in billed medical costs, a claim for noneconomic damages, and an uncapped claim for permanent impairment and disfigurement. His demand at trial was in excess of $1.3 million. Liability and the reasonableness of the plaintiff’s medical bills were disputed, though the nature of the plaintiff’s injury and need for surgeries were not. The jury agreed with Chris on his primary defense: the display was not a dangerous condition, and the client did not act unreasonably. As a result, the jury did not even need to address the affirmative defense that the plaintiff’s fall and injuries and damages were a result of his own comparative fault. The client is entitled to and is pursuing recovery of fees and costs, pursuant to Colorado’s Offer of Settlement statute, after the plaintiff rejected the client’s $1 statutory offer thereunder.

Christopher Yvars (Partner-Denver, CO) won a defense verdict in a jury trial in Denver District Court for a national retail clothing store. While shopping at the factory outlet store, the plaintiff tripped and fell on a stanchion chain that was part of the checkout queue. The fall resulted in a broken arm at her elbow, which required medical transport and surgical intervention. The plaintiff, relying in part on expert testimony, claimed the condition, as designed and constructed, fell below the standard of care for retail store customer safety; that store knew or should have known it was a tripping hazard; and that the store breached its duty of care owed to her under Colorado’s Premises Liability Act. Chris successfully argued that plaintiff’s claim lacked merit, establishing that the stanchion was not a danger and, through effective cross of plaintiff’s expert, demonstrating the lack of any applicable industry standard.  After deliberating for less than an hour, the jury agreed in full, and ultimately did not even need to consider Chris’s additional defenses of plaintiff’s comparative fault and assumption of risk.  A complete victory for the defense.

Chris Yvars (Partner-Denver) obtained summary judgment in a wrongful death explosion case before the District Court, Arapahoe County, Colorado. The plaintiff is the young daughter and heir of the decedent, who was killed in a violent explosion that occurred while he was using an acetylene torch to cut a piece of scrap metal while working at our client’s recycling facility as an employee of a torching subcontractor. Excessive heat from the decedent's torch caused compressed air in one of the components to rapidly expand and explode the surrounding metal, killing him instantly. The plaintiff collected workers' compensation death benefits from the subcontractor's insurer and, through her legal guardian, then sued our client for wrongful death based in negligence and under Colorado's Premises Liability Act. After significant argument and motions practice, the court agreed with Chris that our client qualified as a "statutory employer" at the time of the incident, and as such, it was entitled to liability immunity under Colorado's Workers' Compensation Statute and interpreting case law. In a lengthy and well-reasoned opinion, the court granted summary judgment in our client’s favor, dismissing all claims with prejudice.

Christopher Yvars (Partner-Denver) and Sarah Andrzejczak (Associate-Denver) secured summary judgment in a case involving a motor vehicle accident. Our client contractor and its employee were sued by a cab driver based on allegations that the employee crossed into the cab driver’s lane and hit his vehicle, causing him significant permanent injuries, along with substantial economic and non-economic damages, and an uncapped amount for permanent impairment. The plaintiff never wavered from his policy limits demand. Chris and Sarah developed compelling evidence showing that the plaintiff caused the accident when he swerved and hit the employee's truck in a fit of road rage. Upon close of discovery, the Denver District Court granted them summary judgment based on their argument and demonstration that the plaintiff could not establish causation or his claimed damages as a matter of law. The plaintiff recovered nothing, and the carrier is considering pursuing the plaintiff for costs.

Chris Yvars (Partner-Denver, CO) and Kim Koehler (Partner-Denver, CO) defended a self-storage company in a premises liability case brought by a renter at one of the client’s facilities. The plaintiff alleged that she stuck her arm through the gap between the facility’s gate and a stone pillar to comply with an employee’s identification request. She testified that she did not have time to remove her arm when another renter triggered the gate to open from his car, crushing her arm and resulting in traumatic injury and permanent impairment. The plaintiff also alleged that surgeries prevented her from working for a lengthy period. Through diligent investigation, discovery and an aggressive trial approach, we convinced the jury the plaintiff’s injuries and surgeries all were not causally related to the alleged incident, and that her damages were inflated. Most importantly, we convinced the jury that the plaintiff bore the large majority of fault, thereby barring her from any recovery pursuant to Colorado’s comparative fault statute. The jury decided in our favor and costs were awarded to the defense as well.