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  • Colorado Supreme Court Holds Collateral Source Rule Inapplicable: Defendant’s Insurer Can Extinguish a Plaintiff’s Past Medical Expenses in Third-Party Action by Settling Directly with Workers’ Compensation Carrier

    Good News for Insurers in Recent Colorado Supreme Court Cases

    April 15, 2021

    In two opinions issued on April 12, 2021, the Colorado Supreme Court held that a settlement between a workers' compensation insurer and a third-party tortfeasor for all past medical expenses paid as a result of an on-the-job injury extinguishes the plaintiff-employee's claim to recover damages for those past medical expenses from the third-party tortfeasor. Because the injured employee need not present evidence of either billed or paid medical expenses in the absence of a viable claim for such expenses, the collateral source rule is not implicated.

  • Workers’ Compensation Liability & COVID-19: A Comparative Law Review

    September 24, 2020

    Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.
  • When Home Is a Masterpiece: Analyzing and Defending Claims Involving Large Single-Family Homes

    CLM Construction Claims Magazine

    September 2, 2020

  • How to Navigate the Coronavirus: A Reference Guide for Employers

    How to Navigate the Coronavirus: A Reference Guide for Employers

    March 17, 2020

    Wilson Elser has compiled a reference guide for employers that, while not comprehensive, provides general information and links to resources that can help employers determine a thoughtful course of action during the current state of emergency declared due to the COVID-19 pandemic.
  • Colorado Increases Damages Caps, Effective January 1, 2020, and Every Two Years Thereafter

    New Law Increases Colorado’s Statutory Damages Caps

    February 5, 2020

    In April 2019, Colorado Governor Jared Polis (D) signed Senate Bill 19-109 into law, increasing Colorado’s statutory damages caps for the first time in more than a decade. More specifically, the law increases damages for noneconomic loss or injuries, derivative noneconomic loss, wrongful death, dram shop/social host matters, and solatium (an alternative damages amount in wrongful death matters). These increases are to account for “the cumulative annual adjustment for inflation” since caps were last adjusted in 2008.

  • Informed Insurance: Thought Leadership 2019/20

    September 20, 2019

  • Colorado Court of Appeals Permits Evidence of Billed Workers’ Compensation Benefits at Trial

    CO Court on Admissibility of Evidence of Past Medical Expenses

    June 24, 2019

    A recent decision by the Colorado Court of Appeals might be viewed as creating a windfall in favor of injured employees and rendering pre-suit settlement negotiations with workers’ compensation carriers significantly less meaningful. Nonetheless, this decision appears to be in line with Colorado courts’ propensity for providing unavoidable windfalls to an injured plaintiff rather than insurance carriers or tortfeasors.

  • Colorado’s Snow Removal Service Liability Limitation Act Restricts Enforceability of Indemnity Provisions

    New Colorado Legislation Limits Indemnity in Snow Removal Contracts

    June 21, 2018

    Pursuant to legislation recently enacted by the Colorado Legislature and signed by the governor, provisions in snow removal services contracts requiring indemnity for one’s own fault will no longer be enforceable, effective August 8, 2018.

  • Benefits Delayed versus Benefits Denied: No Distinction Says Colorado Supreme Court

    Unreasonable Delay or Denial of Insurance Benefits

    June 7, 2018

    In a recent case, the Colorado Supreme Court held that any concern was obviated that an insured facing an unreasonable delay of benefits would be in a “superior” position to a similar insured suffering an unreasonable denial of benefits or otherwise receive a windfall.

  • Colorado Supreme Court Finds One-Year Statute of Limitations Inapplicable to Statutory Bad Faith Claims

    Colorado: Statute of Limitations for Bad Faith Claims

    June 7, 2018

    In a recent case, the Colorado Supreme Court observed that a statutory bad faith action can never result in a determination of overpayment or delinquency. Thus, the court found that if the bad faith statute is a penalty, the cause would never accrue under the statute − which the court deemed an impossible result because it would render the statute of limitations meaningless − and held that the bad faith statute is not a penalty, and therefore not subject to the one-year statute of limitations.

  • U.S. Supreme Court Defends State Sovereignty via Anti-Commandeering Doctrine

    SCOTUS Decision a Harbinger of Cannabis Legalization?

    May 29, 2018

    On May 14, 2018, the U.S. Supreme Court relied exclusively on principles of federalism to strike down the Professional and Amateur Sports Protection Act and open the door for all 50 states to legalize sports gambling − while analyzing what effect if any the case would have on the burgeoning cannabis industry and the related state regulatory landscape.

  • Colorado Considers Expansion of Its Privacy and Data Breach Regulations

    Colorado Privacy and Data Breach Regulations

    March 22, 2018

    If Colorado enacts proposed new legislation, it would be among a handful of states with the shortest notification timeline in the country for data breach events. While the 30-day deadline provides consumers the opportunity to quickly respond to the improper release of sensitive information, it clearly shortens the period within which companies are required to react.

  • Choice of Law; Anti-Indemnity Provisions; and Insurability of Punitive Damages

    ABA Handbook on Additional Insureds

    Second Edition 2018

  • Sessions’s Marijuana Memo Reminds Colorado Employers They Are Not Out of the Federal Weeds

    Sessions Memo: Marijuana Still an Illegal Substance under Federal Law

    January 23, 2018

    While Attorney General Jeff Sessions’s January 4, 2018, memo indicates that the federal government continues to maintain the belief that marijuana is an illegal substance, the extent to which federal law will be enforced in Colorado remains uncertain at this time. 

  • Cannabis Standardization: The Next Step on the Path to Full Legalization

    Cannabis Industry’s Move Toward Standardization

    March 13, 2017

  • Fourth Circuit Expands Cyber Coverage under Commercial General Liability Policies

    Coverage under CGL Policies for Cyber Events

    April 14, 2016

    While cyber policies were created to fill the insurance gap for data breach incidents, there are naturally limitations to such coverage. Therefore, the Fourth Circuit’s recent expansion of CGL coverage has the potential to cause overlap in coverage and unintended confusion when companies are insured under both CGL and cyber policies.

  • Open Communication and Collaboration Make Campus Networks Vulnerable to Cyberattack

    Cyberattacks on Institutions of Higher Education

    April 6, 2016

    Today, approximately one third of all security breaches are directed at higher education. From personal and financial information to student health records to campus police departments that maintain records of interactions with students, such information is inherently sensitive and can, at the very least, lead to reputational damage if exposed. In addition, balancing the academic purpose of an institution with the need to protect certain information is a challenge that gets at the fundamental function of a university.

  • Rocky Road Ahead for Ashley Madison after Widespread Damage Arising from Disclosure of Personal Information

    Ashley Madison: Planning for the Inevitable Breach

    August 28, 2015

    With extensive reporting on social media website Ashley Madison’s compromise of the names, addresses, credit card information and phone numbers of its 37 million members, the cheat facilitator has been cheated in what will likely amount to a very costly breach.

  • Twitter Terrorism: Criminals Choose the Hack Attack

    Use of Social Media Can Leave Businesses Vulnerable

    July 6, 2015

    Businesses in 2015 have become enthralled by virtually unlimited access to customers and business partners via online platforms. Unfortunately, many have focused on the potential profits arising from such undertakings without sufficient consideration for the problems that too frequently arise.

  • Food Safety Insurance and the FDA's Forthcoming Rule

    Law 360

    June 22, 2015

  • Colorado Supreme Court Upholds Employers’ Right to Terminate for Use of Medical Marijuana During Nonworking Hours

    Use of Medical Marijuana During Nonworking Hours

    June 16, 2015

    A recent ruling by the Colorado Supreme Court addresses in the employment context the conflict between federal and state law that arises when states legalize medical and retail marijuana. Colorado’s Supreme Court issued what appears to be a per se determination that the use of medical marijuana is not a “lawful” activity protected by Colorado’s “lawful activities statute” because marijuana remains prohibited under federal law as a Schedule I substance. Therefore, it is not an unfair or discriminatory practice for an employer to discharge an employee based on the employee’s use of medical marijuana, even outside of the workplace.

  • California’s Highest Court Refuses to Review Denial of Coverage Under Contamination Products Insurance Policy for Ground Beef Recall

    Food Companies Face Hostile Regulatory Environment

    May 29, 2015

    A recent ruling by the California Supreme Court appears to continue a line of decisions regarding potential product contamination rendered at a critical time for a food industry facing an increasingly hostile regulatory environment. Food companies must analyze and understand the potential impact the new regulations will have on their operations and consider the expertise and coverages product contamination policies can provide when a crisis management event strikes.

  • Colo. Lone Pine Case Is Setback for Fracking


    May 19, 2015

  • Colorado High Court Nixes Use of Lone Pine Orders to Streamline Colorado Fracking Litigation

    Energy Industry’s Defense of Fracking in Colorado

    May 6, 2015

    A recent ruling by the Colorado Supreme Court represents a setback for the energy industry in its defense of fracking litigation in Colorado. Had they won, the industry could have used the decision to secure early dismissals of fracking suits. Now, as a consequence of this ruling, Colorado fracking defendants are likely to see an increase in defense costs, fewer dismissals and fewer early settlements.

  • Montana and Wyoming Expand Data Breach Notice Requirements

    Montana and Wyoming Expand Data Breach Notice Requirements

    April 28, 2015

    Generally, a company’s duty to notify of a data breach is triggered when personally identifiable information is exposed or lost. It is the definition and scope of that information that leaves responsible parties scratching their heads and looking for answers.

  • Product Recall Insurance: It’s Not Just for Food Contamination Anymore

    ABA Section of Litigation Insurance Coverage Litigation Committee CLE Seminar

    March 2015

  • Boom or Bust? Cyber Security and Data Breach Loss in Latin America

    Cyber Security and Data Breach Loss in Latin America

    February 25, 2015

    Most Latin American countries have done little in the way of enacting laws to dissuade cybercrime either through governing and reporting requirements for those in possession of sensitive data or through more severe penalties for corresponding loss. Without the motivation to more closely monitor and protect sensitive data, business loss and the incentive for criminals to attack will continue to grow.

  • Indemnification by Insurance Precluded under Wyoming Anti-indemnity Statute in Oil & Gas Personal Injury Coverage Dispute

    Anti-indemnity Statute Precludes Insurance

    January 16, 2015

    The Federal District Court in Wyoming has extended Wyoming Statute §30-1-131 to preclude coverage of a drilling company that claimed to be an additional insured covered for its own negligence under a liability policy issued to a wellsite management company. The case arose in the Tenth Circuit, which jurisdiction includes Nebraska, Colorado, Utah and Oklahoma, all locations central to the resurgence of drilling in the oil & gas industry. Thus, the decision may have wide-ranging implications for neighboring states with similar anti-indemnity laws.

  • North Korea’s Attack Raises Critical Coverage Issues and TRIA Implications

    Cyber Alert: FBI’s Determination May Negate Coverage for Sony’s Losses

    December 23, 2014

    While cyber espionage, crimeware, and other types of cyber attacks and theft are nothing new, even for Sony, the FBI’s determination that North Korea was behind the recent devastating attack raises critical alarms. The attack did not merely harm Sony Pictures Entertainment’s (SPE's) intellectual property and data; it was intended to and did cause physical harm to its network and operations. North Korea literally planted and detonated a bomb within SPE’s systems. The implications for businesses, brokers and insurers are significant and raise additional concerns about Congress’s failure to extend the Terrorism Risk Insurance Act of 2002.

  • Data Security, Cyber Liability and First-party Costs for Mid Cap and Small Companies Are Reaching Catastrophic Levels

    Cyber Alert: Insurance Perspective on 2015 Cyber Warnings

    December 15, 2014

    The critical trend of data security breaches and cyber liabilities significantly harming mid cap and small businesses will continue to increase through 2015. Small companies need to recognize that they have as much, if not more, risk of suffering losses and attacks with greater frequency and severity than their bigger competitors. In fact, smaller companies are at greater risk because they do not have the same depth of resources as their larger competitors. Brokers and insurers can assist these companies in preparing for, protecting against and surviving an eventual and potentially catastrophic cyber crisis event.

  • Cyber Voluntary Payment Defense Thwarted by Bank Fraud Regulation

    Coverage Issues Raised By Cyber Crisis Events

    October 9, 2014

    As companies, brokers and insurers continue to develop a better understanding of the risks and exposures involved with data breaches, standard insurance portfolios must be reviewed and developed to provide proper protection in the face of state laws and other outside influences.

  • FDA Outbreak Response Is Not a Constitutional Taking

    Can A Food Company Be Compensated By The FDA for a Recall?

    October 1, 2014

    While governmental regulatory actions can have significant financial impact on the marketplace, in the instance of a governmental product advisory, a standard insurance portfolio of general liability and property policies offers no protection. Companies should consider governmental recall and adverse publicity coverages that are contained in product contamination and product recall policies to protect their bottom line.

  • Long-Awaited Colorado Court of Appeals Stresscon Decision a Mixed Bag

    Colorado’s Stresscon Decision Likely Not the Last Word

    September 24, 2013

    A recent decision by the Colorado Court of Appeals may now require insurers to prove prejudice in order to deny coverage of a settlement negotiated without their knowledge or consent. However, the decision may also restrict insureds’ potential recovery of statutorily imposed double damages for unreasonable delay or denial because the court interpreted “other insurance” clauses to limit such damages. 

  • Lives and Businesses Interrupted by Rocky Mountain Floods

    Rocky Mountain Floods: Is There Coverage and Will It Be Enough?

    September 19, 2013

    The Rocky Mountain floods raise a host of anti–concurrent cause issues. If there is no flood coverage or the water damage is excluded, what about potential resulting damage, such as earth movement, structural damage or mold? Colorado courts, for example, have historically enforced anti–concurrent cause language, but the severity of the damages may trigger legislative action overruling such decisions. Indeed, following the Superstorm Sandy losses, New York passed legislation limiting the application of anti–concurrent cause language so as to maximize coverage. The Colorado, New Mexico and Utah state legislatures all passed legislation of some kind in reaction to the considerable forest fire losses sustained in 2012, so it is feasible these states may react in kind to the 2013 flood losses.

  • Utah Enacts the Internet Employment Privacy Act: The Good, the Bad and the Ugly

    Agents of America Newsletter

    May 30, 2013

  • Colorado Supreme Court Abolishes Sudden Emergency Doctrine Defense

    Colorado Abolishes Sudden Emergency Doctrine Defense

    January 29, 2013

    The Colorado Supreme Court abolished the sudden emergency doctrine defense, reasoning that abolishing this doctrine does not drastically affect the defense of cases involving sudden emergencies because the standard of care in those situations remains the same.

  • Can There Be Confidentiality in the Age of Social Media?

    Hospitality Lawyer e-Magazine

    December 20, 2012

  • Legalization of Marijuana: Employers’ Rights Up in Smoke?

    Rights outlined in Amendment 64 may alter employer's actions.

    November 15, 2012

    If an employer with an anti-drug policy fires an employee who admittedly used marijuana the night before at home, the conflict between the express rights outlined in the recently passed Amendment 64 and the prohibition on terminating someone’s employment for otherwise legal conduct may spin the conflict into protracted litigation.

  • Sandy’s Perilous Aftermath

    Hurricane Sandy

    November 1, 2012

    As businesses and families that were caught in the path of Hurricane Sandy begin to survey the damage, insurers are feeling the first surge of many claims to come. Now’s the time to confer with Wilson Elser’s knowledgeable and adept insurance attorneys to be certain you’ve got all contingencies covered.

    This is the first in a series of alerts designed to provide you with clarity and understanding of the important and significant issues raised by this unprecedented crisis.

  • Employment Newsletter

    Social Media in the Workplace

    October 2012

    The proliferation of social media in the workplace has increased the risk of potential liabilities for companies. Specifically, there is a growing amount of litigation arising out of the use of confidential or proprietary information shared on social media websites.

  • U.S. District Court Agrees with Insurer’s Interpretation of Accidental Product Contamination and Grants Summary Judgment on All Counts

    October 2011

    On September 22, 2011, the United States District Court for the Northern District of Illinois, Eastern Division determined that no coverage existed under an accidental product contamination policy where the products were never actually contaminated with harmful bacteria.