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									1942 BROADWAY, SUITE 205                                                                     PHONE: 303.440.4758
BOULDER, CO 80302                                                                            EMAIL:

                     N O V E M B E R                                                   2 0 0 3
                              PURE TORT SUBROGATION and LIENS
                                               BY PETER M. ANDERSON
On July 1, 2003, automobile law in         be fully compensated, or made whole,        any entity has a subrogation right, the
Colorado changed dramatically: The         before the health care providers are        attorney must read all the relevant poli-
No-Fault Act was abolished in favor        reimbursed.                                 cies. A written request should be sent
of a pure tort system.                                                                 to the client for all insurance policies
                                           An anticipated complex scenario will        the client or a resident relative carries,
Under the No-Fault Act, the insurer        involve a client who, because of a tort-    whether automobile, homeowners or
for each vehicle involved in an acci-      feasor's inadequate liability coverage,     other. The attorney must also obtain
dent was required to pay for all med-      is not fully compensated and cannot         the policy for the vehicle the client was
ical services that were reasonable and     repay his health insurer. This situa-       occupying at the time of collision. The
necessary regardless of fault.             tion becomes more problematic when          policies must be reviewed to resolve
Additionally, under most circum-           the client's insurer seeks to enforce its   several issues, including what coverage
stances, the no-fault benefits paid to     right to reimbursement or subroga-          is available, in what order the different
the health care providers did not          tion for medical costs, in addition to      insurers can be made to pay and
have to be reimbursed to the insurer       health care providers seeking pay-          whether the insurer has a right to sub-
from any judgment or settlement for        ment for their services via a lien. This    rogation. The lawyer must analyze the
the insured.                               creates a situation where understand-       policies to assess the client's duty to
                                           ing subrogation rights of insurers and      inform the client’s medical payor
Under the new law, however, the            lien requirements of health care            (insurer) of a settlement because the
payment and reimbursement scheme           providers is essential.                     payor's rights may be subrogated to the
has completely changed. Examples                                                       rights of the client against the tortfea-
of some of the more prominent dis-         This article identifies some of the         sor.
tinctions include: 1) insurers may         major subrogation and lien issues in a
now have a right to be reimbursed for      pure tort system and offers practical       In addition, it must be determined
medical services by the insured or a       guidelines to assist attorneys in man-      whether the client purchased medical
right of subrogation1 to collect direct-   aging auto claims.                          payments coverage (which may create
ly from the tortfeasor; 2) the insured                                                 a contractual subrogation right),
may recover medical costs in an            Requesting and Reviewing Insurance          whether the client's health insurance
action against the tortfeasor; and 3)      Policies                                    benefits are subject to state law and
the insured must pursue the right to       As a first step in assessing whether        whether the client's health insurance
                                                                                       benefits are provided through an
                                                                                       employee welfare plan subject to the
  CONTENTS                                                                             Employee Retirement Income Security
                                                                                       Act of 1974 (ERISA). Resolution of
  Pure Tort Subrogation and Liens    1       Lawyer Announcements              7
  Tips For Legal Services            4       Pro Bono Page                     11
                                                                                       these issues will help determine what
  President’s Page                   5       Homeless Shelter                  13      entities are responsible for medical
  Calendar of Events                 6       Classified Ads                    15
                                                                                                         (continued on page 3)
    NOVEMBER 2003                     (Details for programs on page 6)

     SUNDAY             MONDAY        TUESDAY           WEDNESDAY            THURSDAY              FRIDAY          SATURDAY


2                  3             4                  5                    6                   7                 8
                                                                              Judges’        Environmental
                                                                              Dinner         Law

9                  10            11                 12 Criminal Law      13                 14                 15
                                 Employment Law
                                                    Same-Sex Marriage
16                 17            18                 19 Real Estate Law 20 Medical Legal/Civil 21               22
                                     Business Law       Family Law       Litigation            Collaborative
                                                                         New/Young Lawyer
                                                     Tax, Estate Law &                        Family Seminar
                                                                         Happy Hour
                                                    Environmental Law
23                 24            25                 26                   27                 28                 29


2                                                                                                              NOVEMBER 2003
PURE TORT SUBROGATION and LIENS (continued from page 1)
payment and help the lawyer assess        Assessing Liens                            Secretary of State and contains the
the overall value of the case.            The attorney must check for liens to       name and address of your client, the
                                          evaluate settlement offers properly.       date of accident, the name and loca-
The insurer's right to reimbursement      One method of identifying liens is to      tion of the hospital and the name of
is dependent on a recovery from the       visit and pro-         the person alleged to be liable to
tortfeasor. The insurer may not have      ceed to the Business Center. On the        your client for his or her injuries.
any right to reimbursement from the       left side of the screen, choose “Create
insured's other assets.2 The attorney     an Account” and follow the instruc-        In terms of priority, the attorney's
should argue to the insurer that it       tions. For $15, payable online with a      lien is satisfied first, and a hospital
should should a share of the attor-       credit card, you may conduct a one-        lien is then satisfied from the net
ney's fees and costs expended in          hour consecutive search on all liens       amount payable to the injured per-
obtaining money from the tortfeasor       that have been filed with the state.       son.6 To summarize, liens of attor-
by reducing the insurer's subroga-                                                   neys created under C.R.S. § 12-5-119
tion interest. In addition, Colorado      The attorney must also assess              have priority over and are senior to
also applies pro-rata fault, which        whether the hospital has followed          liens created under C.R.S. § 38-27-
means the insurer is subject to the       the statutory requirements for per-        101.
same limitations, restrictions and        fecting a lien against proceeds
defenses as the client.3                  payable to an injured party.5 If a         Reduction of Lien Amounts
                                          hospital fails to follow C.R.S. § 38-27-   To reduce lien amounts, attorneys
If the client's policy provides for       101-2, its lien is unenforceable. A        should highlight the fact that the
direct payment to medical providers,      lien shall take effect if 1) the lien is   medical facilities are passive benefi-
the attorney may wish to take a secu-     perfected prior to any judgment, set-      ciaries of the settlement that the
rity interest in all money that the       tlement or compromise; and 2) a
                                                                                                     (continued on page 12)
client may recover from insurance,        written notice is filed with the
notwithstanding that the payments
may be recoverable from the tortfea-
sor. This strategy may be beneficial             SEIDMAN DEPOSITION REPORTING
in a situation where there is limited
coverage, as the attorney then has
authority to determine, for instance,                    Serving the Boulder County Bar since 1960.
that an MRI (for which payment is                               Registered MERIT Reporters
due immediately) should be paid                                Certified Shorthand Reporters
before massage therapy (which may                             Certified Legal Video Specialists
accept payment on a lien basis).                              Registered Professional Reporters
After notifying the payor of the
attorney’s interest in specific payout
direction, the payor's actions will be               BOULDER’S ONLY LOCALLY OWNED
dictated by the threat of a lawsuit for            FULL-SERVICE COURT REPORTING FIRM
converting the security interest.                    Depositions • Hearings • Arbitrations
                                                      Videotaping • ASCII & Discovery Disks
The client may also look to unin-
                                             Realtime • Conference Rooms • Mini or Full Sized Pages
sured motorist (UM) coverage if the
liability coverage is inadequate.                     Exhibit Management • Word Indexing
Whether a UM carrier, that has paid
medical costs may deduct the med-                 Irwin Seidman                          Janet S. Lawder
ical payments from amounts owed to                Cynthia A. Hudak                        Judy Leach
the client under the UM policy has                John J. Spera                          Nicholas A. Francis
not been decided in Colorado.                     Elizabeth K. Ellis                     Kathleen Pratt
However, other jurisdictions have                                   P.O. Box 4689
decided the UM carrier's subroga-                                 Boulder, CO 80306
tion right is void as against public               303.444.4669 FAX 303.440.9968 Cell 303.909.4707

    NOVEMBER 2003                                                                                                          3
The caller often begins with, “I just     The Colorado Bar Association web-
have one simple question,” but Legal      site is and Colorado
Services and the Bar Association          State University website is www.wel-
office hesitate to say they can answer
the questions. As Elizabeth Moulton,
managing attorney of Boulder              People who do not have access to a
County Legal Services, points out,        computer with Internet capabilities,
simple questions can have not-so-         can usually use computers at the
simple answers. The people who            public libraries.
answer the phones in these offices are
not attorneys and cannot give legal       More than half the cases filed in the
advice. They can, however, give           courts are pro se at least on one side.
information. Telling someone who          Most district courts in Colorado now
has just moved here where it would        have a Family Court Facilitator to
be best of file for dissolution of mar-   assist pro se litigants to find their
riage is legal advice.                    way through the legal system with-
                                          out giving legal advice. Many courts
As budgets for programs to provide        have a resource area designed to
legal assistance decrease and the         assist parties who do not have attor-
courts lay off personnel, less Legal      neys.
assistance is available. But websites
offer a great amount of information,      In an ideal world the process would
including do-it-yourself advice and       be simple enough that people could
even copies of forms that need to be      navigate it on their own, or there
filed.                                    would be enough resources to make
                                          sure that legal aid is available to low
The Colorado Judicial Department’s        income residents of the state and oth-
website is        ers who need the services of an attor-
The Colorado Legal Services website       ney. Since this is not the case, it is
is         important to know what help is avail-
                                          able and how to access it.

                                          Submitted by Jane Gill Kellenberger,
                                          BCLS volunteer.

4                                                                                   NOVEMBER 2003
                                        PRESIDENT’S PAGE
                                  JUDGES: THE DELICATE BALANCE
                                                BY VIRGINIA CHAVEZ

The Boulder County Bar Association        takes, but not out of malice. Most of      on what seems just. Making life-alter-
sponsors an annual opportunity to         the time, a higher court can correct       ing decisions for other people is nei-
join our esteemed judges for dinner.      errors, sentencing or bond decisions       ther easy nor fun.
While ordinarily it is difficult to       may result in unintended and very
socialize with judges, we all know        tragic outcomes for a defendant or a       JUDGES SACRIFICE PERSONALLY
that this is not because they are anti-   victim. On these rare occasions, the       The sacrifice comes not only in the
social. This dinner provides the          judge endures personal pain and            withholding emotion in the court-
chance to spend relaxed time with         public scorn.                              room but often in avoiding social set-
judges after they have "disrobed" for                                                tings. In the past, the judicial ethics
the day. Lawyers may show their           Civil and domestic cases vary in com-      enforcement officer opined that
appreciation to the judges for the dif-   plexity. The lawyers may generate          judges could not go to political
ficult job they perform daily by          what seem to be endless pleadings,         precinct caucuses because of the
attending this event. Some may won-       requiring the judges and/or magis-         appearance of impropriety. He
der why judges should be honored          trate's attention. Most plaintiffs want    believed that, even with a secret bal-
with this dinner. Let me tell you         their cases handled quickly, but dock-     lot, a judge could affect the outcome
what those who are sitting may not        et size often prevents a quick case res-   of the vote by someone trying to
disclose publicly. Not all judges may     olution. To the credit of the Boulder      curry the judge's favor. Many judges
agree with these observations.            judges, cases are handled relatively       viewed his suggestion as a constitu-
                                          promptly. In district court, trials are    tional rights violation.
Being a judge is not easy. Like a fine    rarely, if ever, continued on the
athlete, a good judge may create the      court's own motion. The county             Judges rarely, if ever, can take a spon-
appearance that the job is easy.          court recently improved from 14th in       taneous day of vacation. The process
However, a good judge does not have       the state to 4th in case closures.         of rescheduling is not a crowd or
the luxury of specializing in one area
                                                                                                     (continued on page 10)
of the law, must have good listening      JUDGES ARE REAL PEOPLE, TOO
skills and exercise patience and          Not only must a judge listen to crim-
restraint. To cap this list, the best     inal and civil horror stories and not
judges remain human but sacrifice         overtly react, but they cannot even
                                                                                     HOWARDS OF COLORADO
                                                                                        WORLD INVESTIGATIVE
certain aspects of "normal" life.         turn to the other judges to ask, "What
                                          should I do?" Trial judges have to
BEING A JUDGE IS NOT EASY                 make their decisions individually.
Five Boulder district judges handled      Judges routinely make decisions far-               Boulder office
9,453 and 9,496 cases in 2001 and in      reaching effects that must be founded             Tel: 720.214.2198
2002 respectively, while the five         in the law and not personal prefer-               Fax: 720.214.2430
county judges processed 30,969 and        ence. They may disagree with a law                Cell:720.352.1315
30,943 cases in 2001 and 2002 respec-     or believe that its application in a
tively. (Source: Colorado Judicial        given circumstance is not right; not to
Branch Fiscal Year 2002 Annual            follow the law is worse.
Report - Executive Summary.) Judges                                                           Denver office
must be experts in civil and criminal     The good judge who does not like a                  Don Howard
law, requiring quick study of any of      party or a lawyer will set aside all              Tel: 303.757.5000
the volumes of statutes or the vast       personal feelings and rule on the                     ext. 2651
common law.                               basis of the law. Despite a judge's
                                                                                            Fax: 303.689.9627
                                          best efforts, in a close case there may
In criminal cases, judges must be able    be critics who believe that the deci-
to listen and read the hearts and         sion was biased. Such criticism may         We speak Spanish, Chinese,
minds of those accused or convicted       arise simply because someone loses.             Japanese, Korean
of crimes and of victims to try to mete                                                      and German
out justice. This can be a daunting       When a decision is purely discre-
task. Judges can and do make mis-         tionary, a good judge follows instinct

    NOVEMBER 2003                                                                                                           5
                                    CALENDAR OF EVENTS
Pre-registration is required for all BCBA CLE programs. Please send a check to the Bar office at least 3 days in advance.
You will be charged for your lunch if you make a reservation and do not cancel prior to the CLE meeting. BCBA CLE’s cost
$15 per credit hour for members and $18 for non-members unless otherwise noted. CLE credit is $10 per hour for mem-
bers of the Young/New Lawyer Section who have practiced 3 years or less. Materials are $5 without CLE credit.

          November 6, 2003                        November 12, 2003                    Real Estate Law Section
        Annual Judges’ Dinner                    Criminal Law Section             “Swede Johnson’s Legal Ethics in Real
      5:30 p.m. at The Academy               “Sentencing in County Court”                 Estate Transactions”
               Cost $40                     Speaker: Judge David Archuleta              Speaker: Jim Benjamin
        Call the bar offices now                Noon Brown Bag Lunch                  Noon at Dolan’s Restaurant
       to make your reservations          Boulder Justice Center, Courtroom D             Lunch $14, CLE $15

          November 7, 2003                        Public Symposium                          November 20, 2003
  Natural Resources/Environmental                “Same-Sex Marriage:                  Civil Litigation/Medical-Legal
            Law Section                      Legal Right or Legal Wrong?”              The End of No-Fault and PIP
“Rights-of-Way Issues Under RS2477”          Lindsley Memorial Courtroom                  Noon at The Academy
    Speaker: Michael S. Freeman,              CU School of Law, 7 - 9 p.m.                  Lunch $14, CLE $15
      Faegre & Benson, Denver                          Free CLE
     Noon Brown Bag Lunch at                                                           New/Young Lawyer Section
 Boulder Justice Center Courtroom B               November 19, 2003                           Happy Hour
                                            Tax, Estate Planning & Probate              5:30 p.m. at The Redfish
          November 11, 2003                    “Conservation Easements”                 2027 13th Street, Boulder
   ADR and Employment Sections                 Speaker: Matt Moorehead
 “Everything you Always Wanted to          Noon at The Nature Conservancy                 November 21, 2002
Know about Employment Arbitration             2424 Spruce Street, Boulder          Collaborative Family Law Seminar
     ... But Were Afraid to Ask”          $10 Box Lunch (turkey, veggie, beef)               1:30 - 4:30 PM
Speakers: Katy Miller, J.D. Arbitrator,                 CLE $15                   1942 Broadway, 3rd Floor Conference
  Darren Nadel, Littler Mendelson,                                                      Speakers: Kathy Franco,
    P.C., former in-house counsel                Family Law Section                     Daryl James, Amy Naes
      Noon at Caplan & Earnest                   “Case Law Update”                 $60 CLE 4 general and .6 ethics credits
 $10 Box Lunch (turkey, veggie or beef)          Speaker: Ron Litvak
               CLE $15                         Noon Brown Bag Lunch
                                             Boulder County Justice Center
                                                Courtroom E CLE $15

          do you need ethics credits before the end of the year?
          december ethics update and avoiding legal malpractice

                       thursday, december 4, 2003 • 8:00 A.M. - 12 noon
                       at the raintree conference center in longmont
            John Gleason, Esq. Colorado supreme Court Attorney Regulation Counsel
                     Dave Little, Esq., CBA Professional Liability Committee
                           Alec Rothrock, Esq., CBA ethics Committee
                Russell Murray, Esq., ethics update for family law practitioners

                              4 ethics and 4 general CLE Credits
                $120 BCBA members, $150 non-members $65 New/Young Lawyers
                                 (includes breakfast and cle)
             Call now for reservations 303.440.4758 or email:

6                                                                                                        NOVEMBER 2003
                                 LAWYER ANNOUNCEMENTS
 PLEASE NOTE THE CORRECT SPELLING OF MR. BELOCHI’S             It has been said that a person cannot succeed unless
     LAST NAME. WE APOLOGIZE FOR OUR MISTAKE                  many others want it to happen. I am deeply indebted
                                                              to the following attorneys, who have reminded me of
                                                                the meaning of "community", and encouraged my
     STEVENS, LITTMAN, BIDDISON,                                  success through their kind and supportive acts.
      THARP & WEINBERG L.L.C.                                               With gratitude, Renee Ezer

                                                                     Claudia Bayliff        Eve Canfield
         Is Pleased to Announce that                                 Marco Chayet           Spencer Crona
                                                                     Carmen Danielson       Joe Dawson
            MICHAEL BELOCHI                                          Dave Driscoll          Chris Ebner
                                                                     Steve Foster           Alex Garlin
   Has Joined the Firm as an Associate                               Jennifer Gormley       John Holt
    Mr. Belochi plans to focus on busines law issues and
                                                                     Stuart Kingsbery       Rich LiPuma
   brings talents enhanced by his corporate tax experience           Jan Lord               Brian Meegan
   and the past sale of his business to a NYSE listed firm.          Russell Murray         Marcie O'Brien
                                                                     Robert Phillips        Larry Rider
                                                                     Martha Ridgway         Julia Robinson
              250 Arapahoe, Suite 301
            BOULDER, COLORADO 80302                                  Tom Rodriguez          Richard Romeo
              Telephone: 303.443.6690                                Melissa Schwartz       Bob Steenrod
                   1.800.273.1802                                    Helen Stone            David Thrower
                  (Colorado Only)                                    Julie Tishkowski       Herb Tucker
               Facsimile: 303.449.9349                               Steve Young

                           Clinton K. Nash and                     JAMES R. CHRISTOPH
                           Stephan A. Wall are
                           pleased to announce                              MEDIATION
                           the opening of their                      SETTLEMENT CONFERENCES
                           new law office.                                 ARBITRATION

                                                                        Also Accepting Referrals
     Mr. Wall and Mr. Nash are sharing                                and Requests for Co-Counsel
          office space located at                                    Personal Injury, Civil Litigation
           385 Main St., Suite D                                           & Criminal Defense
           Longmont, CO 80501
                                                                Over 20 years experience as a trial lawyer
     Mr. Nash and Mr. Wall’s Practice will
       continue to emphasize Divorce,
        Criminal Defense, Real Estate,                                       1406 Pearl Street
        Estate Planning, Business Law                                       Boulder, CO 80302
             and Civil Litigation                                         Telephone: 303.443.2281
                                                                             Fax: 303.443.2862
      303.774.0509          303.772.7273

NOVEMBER 2003                                                                                                         7
                         LAWYER ANNOUNCEMENTS

           DIETZE & DAVIS, P.C.                     The Law Office of
                                                  Guy R. Greenstein, P.C.
             is pleased to announce
                                                           has moved.
           JOEL C. MAGUIRE                             The new address is:

     is joining the firm as a Shareholder.        5390 Manhattan Circle, #200
                                                     Boulder, CO 80303
          Mr. Maguire’s practice will
              continue to focus on
      Civil Litigation, Trials and Appeals       Phone: 303.494.2727 (same as before)
                                                   FAX: 303.543.8582 NEW!!!
                2060 Broadway
                    Suite 400
                                                    Effective November 3, 2003
              Boulder, CO 80302
    Telephone: 303.447.1375 Fax: 303.440.9036


                                                 MARTIN & MEHAFFY, LLC

                                                 DONALD J. HUMPHREY’S
                                                         retirement and
                                                withdrawal from the practice of law

                                                     JOEL C. MCGUIRE’S
                                                     withdrawal from the firm

                                                   We wish them both happiness and
                                                    success in their new endeavors.
                                                     1655 Walnut Street, Suite 300
                                                       Boulder, Colorado 80302
                                                        Fascimile 303.444.8398

8                                                                              NOVEMBER 2003
                            LAWYER ANNOUNCEMENTS
                                         This month the Legal Aid Foundation of Colorado's
                                           Boulder County Campaign Committee begins its
                                            2003-2004 campaign. Last year, recognizing the
                                              financial difficulties faced by Colorado Legal
                                          Services in these times of economic challenge and
                                         declining operating revenues, lawyers in this county
                                               responded with unprecedented generosity.
      MARTIN & MEHAFFY, LLC                   We raised more than $78,000, most of it from
                                            law firms. As a result, CLS staffing reductions
                                               were less severe than they otherwise would
           Is pleased to announce           have been. The Legal Aid Foundation asks law
                                              firms for an annual donation of at least $300
      CHRISTIAN J. CASLIN                  per lawyer. The following law firms contributed
                                          at that target level and deserve special recognition:
                                                          Caplan & Earnest, LLC
                Has passed the Bar                        Faegre & Benson, LLP
                                                     Garlin Driscoll & Murray, LLC
                Congratulations!!                          Holland & Hart LLP
                                                      Holme Roberts & Owen, LLP
                  1655 Walnut, #300                      Johnson & Repucci, LLP
                                                         Miller & Harrison, LLC
                  Boulder, CO 80302                        Trine & Metcalf, P.C.
                Fascimile 303.444.8398        Submitted by David Driscoll, co-chair, Colorado Legal Aid
                                                Foundation's Boulder County Campaign Committee.

 Legal Spanish Classes to Continue           Bon Voyage and Good Luck
    Intermediate Spanish Class
       (a condensed version)                     WENDY STEVENS
        Nov. 4 - Dec. 11                         Wendy is leaving Boulder to go to
Tuesday and Thursday Evenings                    Burlington, Vermont. She and her
                                                husband Eric Hillmuth are expecting
      from 5:30 - 6:30 pm                    a bundle of joy sometime early next April.

                                               Wendy has been an exemplary member
               10 Classes,                    of the Boulder County Bar. She has been
          $150 for instruction                  co-chair of the Family Law Section for
                                                  the past two years. She has always
       CLE 11 general credits - $90              been a motiviting force encouraging
                                                    new/young lawyers to become
        To register for the class,                    involved in bar functions.

          call 303.440.4758 or                  THANK YOU SO MUCH FOR
      email:                 ALL YOU HAVE DONE.
                                                 WE WISH YOU THE BEST!

NOVEMBER 2003                                                                                             9
 JUDGES: THE DELICATE BALANCE (continued from page 5)
 clerk-pleaser. Judges cannot just call   but, more often than not, they exer-     to spend time with the intelligent,
 in sick. One judge worked through-       cise restraint. After a series of poor   patient, compassionate and thoughtful
 out the week, febrile with strep         legal presentations in a short time, a   humans disguised as judges.
 throat, because it was intake month.     judge's patience may wear thin, but
 The judge had to hear restraining        judges cannot correct the lawyer's       Virginia Chavez formerly served on the
 order motions and provide advise-        missteps even when it is clear the       20th Judicial District county court bench.
 ments to defendants in jail custody.     client may suffer by the poor repre-
 There was no senior or other avail-      sentation.
 able judge to cover the docket for
 four days. Finally, on Friday, relief    Judges may see the same criminal
 came.                                    defendants who continue to disobey
                                          the law and the court's orders. While
 JUDGES EXERCISE RESTRAINT                this is frustrating and sometimes
 Some lawyers come to court woeful-       depressing, judges work within the
 ly unprepared and then behave as         bounds of the law to manage people
 though the fault rests with the court.   who do not or cannot take care of
 While the lawyer should know the         themselves.
 case better than anyone else, judges
 work not to humiliate the lawyer         Judges are not saints, but they pro-
 when the client is present.              vide an invaluable community ser-
 Sometimes judges would like to           vice with wit and wisdom. The annu-
 dress down the ill-prepared lawyer;      al judges' dinner provides an evening

10                                                                                                          NOVEMBER 2003
                                      PRO BONO PAGE
Thirty-nine cases were referred       Students of Norm Aaronson's            AIDS Project during September.
during September. Thank you to        CULADP                                 John Kuker
the following attorneys:                                                     Kristan Wheeler
                                      Special Thanks to:
Gwen Ayers                            Mentors: Bev Nelson
Bill Benjamin                         Mediations/Settlement                  Pro Bono Corner
Susan Bryant                          Conference: Jim Christoph,             BCLS has pro bono cases avail-
Carmen Danielson                      Steve Clymer and Sara Jane             able in many areas of practice,
Christina Ebner                       Cohen                                  including housing, consumer,
Kim Gent                                                                     family and elder law. Call Sue at
Peggy Goodbody                        Pro Se Program volunteers              303.449.2197
George Johnson                        Christy Coates
Cynthia Kennedy                       Mike Miner
Rachael Lattimer                      Bev Nelson
Gary Merenstein                       Georgiana Scott
Mary Helen Miller
Mike Ruderman                         Boulder County AIDS Project
Wendy Stevens                         Thank you to the following attor-
Scott Tippett                         neys who accepted pro bono
Louisa Young                          referrals for the Boulder County

                   Boulder County Bar                                      JACQUELINE ST.
                       Association                                             JOAN
               Professionalism Committee                                   former Denver County Judge

                    On-Call Schedule                                         SPECIAL ADVOCACY
                                                                               FOR CHILDREN
            Nov. 3    Steve Meyrich       303.440.8238                    STATUTORY CIVIL TRIALS,
                                                                                  CRS 13-3-111
            Nov. 10    Bruce Fest         303.494.5600
            Nov. 17   Curt Rautenstraus   303.666.8576                           SETTLEMENT
            Nov. 24   Chuck Saxton        303.776.6911                      FAMILY LAW APPEALS
            Dec. 1    Helen Stone         303.442.0802
                                                                             1400 16th Street, #400
                                                                              Denver, CO 80202
                                                                               Fax: 720.932.8100

    NOVEMBER 2003
PURE TORT SUBROGATION and LIENS (continued from page 3)
lawyer negotiates: Without the             Evaluation of the Medical Payor and          The Make Whole Doctrine applies when
lawyer’s efforts, medical facilities       Its Requirements                             the client is entitled to receive money
would not be able to collect their         Lawyers must gain a working knowl-           from more than one source and the
debts. When a lien holder seeks            edge of Medicaid, C.R.S. § 26-4-403,         client's health insurer is entitled to sub-
reimbursement, lawyers should com-         Medicare, 42 C.F.R. §411.24 & 26 and         rogation only after the client is fully
municate in writing, the client's posi-    Workers' Compensation, C.R.S. § 8-41-        compensated.11        The doctrine also
tion and argue for the lien holder to      203, statutes to protect a client's inter-   applies when the insured has recovered
reduce the amount it seeks.                ests.                                        from the third-party tortfeasor and the
                                                                                        hospital attempts to exercise its subro-
A lienholder is given a right only to      Under Workers' Compensation (WC)             gation right by way of a “reimburse-
collect from the client, payable specif-   the carrier has a duty to pay a share of     ment” clause against the insured's
ically from a settlement. Attorneys        the lawyer’s fees and costs in obtaining     recovery.12     See Duncan v. Integon
must assess the client's actions prior     money and the WC claim applies only          General Insurance Corp., 482 S.E. 2d 325
to hospital treatment because the          to economic damages. Under the 2003          (G. 1997) for a comprehensive analysis
hospital may have 1) secured a lien        amendment to the WC Act of                   of the doctrine's policy issues. Colorado
against the total recovery, 2) no duty     Colorado, subrogated insurers may            appellate courts have not determined
to pay attorney's fees or costs, and 3)    claim economic and physical impair-          what priority is applicable to health
the ability to recoup the money pur-       ment damages but not amounts col-            insurance subrogation polices.
suant to a contractual obligation.7,8      lected for "non-economic damages"
                                           awarded for pain and suffering, emo-         The Plan Priority Doctrine gives priori-
                                           tional stress, etc.9 Essential practice      ty to the medical payor "off the top" of
                                           pointer: Provide notice to the Division      the settlement.13 The Pro Rata Doctrine
                                           of WC, employer and WC insurer at            states holds that the medical payor and
                                           least 20 days before filing suit. If this    the insured share ratably in your client's
                                           procedure is not followed, neither the       third party recovery.
                                           subrogated insurer nor the injured
                                           employee is liable for the plaintiff      Unlike the Make Whole Doctrine,
                                           attorney's fees -- which means the        Colorado courts recognize the Common
                                           penalty for failing to provide required   Fund Doctrine via Kuhn v. State, 924 P.2d
                                           notices will fall solely on the lawyer.10 1053, 1059 (Colo. 1996). It provides that
                                                                                     in the absence of a court rule, express
                                           Reduction of Subrogation Rights           statute or private agreement to the con-
                                           When an insurer pursues its subroga- trary, attorneys' fees cannot be recov-
                                           tion rights, lawyers must communi- ered.14
                                           cate, in writing, that the firm 1) under-
                                           stands subrogation issues, 2) antici- The Colorado Court of Appeals has lim-
                                           pates pursuing equitable defenses, 3) ited the application of the Common
                                           recognizes the insurer’s obligations Fund Doctrine to cases in which a
                                           and memorializes the client's rights, health provider or insurer actually had
                                           and 4) seeks to reduce amounts the a right to intervene in the litigation,
                                           insurer requests and invites the insurer which produced a settlement, and elect-
                                           to intervene in the lawsuit, where it ed not to do so actively.15 The Court of
                                           will pay attorneys' fees and costs.       Appeals has held that the Common
                                                                                     Fund Doctrine operates to prevent pas-
                                           Other reduction alternatives are the sive beneficiaries from being unjustly
                                           equitable doctrines, including The enriched by requiring them to bear a
                                           Make Whole Doctrine, Plan Priority fair share of the costs of litigation.16
                                           and Pro Rata equitable remedies, as Attorneys must continue to critically
                                           well as the Common Fund Doctrine.         analyze the health insurer's subrogation
                                                                                     clauses for many reasons, including
                                                                                     whether they have a claim against UM
                                                                                                           (continued on page 14)

12                                                                                                               NOVEMBER 2003
If you've driven north on Broadway         ty, beds are crammed into rooms that         to Boulder in a meaningful, tangible
past Lee Hill Road lately, you've          are far too small to accommodate             way. To learn more about donating to
probably noticed that the new build-       them, and the inadequate size has            the capital campaign, commemorative
ing for the Boulder Shelter for the        severely limited the shelter's capacity.     naming opportunities and the "Buy a
Homeless is quickly taking shape.          The shelter has frequently had to turn       Bed, Buy a Blanket" campaign, please
Construction is nearly complete, but       away potential occupants because all         contact the Capital Campaign
the shelter needs your help to finish      beds were full. The new shelter will         Manager, Annette Mainland, at
it.                                        have space to house more people,             720.565.3004. You may also reach the
                                           afford its residents a greater measure       Volunteer      Coordinator     Janet
For the past two years, the shelter has    of dignity, and offer new services.          McLachlan at that number. Please
been raising funds to pay for the new      Boulder Community Hospital has               donate today!
facility through a capital campaign        donated a medical exam room, where
that taps governmental, corporate          residents can go for basic medical care.     Submitted by Trip DeMuth and Jennifer
and private donors. The total cost of      It will be staffed by the People's Clinic.   Sullivan, Faegre and Benson, LLP.
the project is approximately $5.5 mil-     The Shelter will also host a dental
lion, and the shelter has already          exam room and a training room, where         Articles in this newsletter do not neces-
secured commitments for more than          residents can develop life skills such as    sarily reflect the opinions of the BCBA
$4 million. Now it is focusing on the      resume building and financial plan-          and the publication does not constitute an
final $1 million it hopes to receive       ning.                                        endorsement of the expressed views.
from individual donors in our com-
munity. The shelter is soliciting one-     The new facility will be complete in
time capital gifts from individuals.       November. The Shelter hopes to begin
These special gifts will be in addition    operations there on December 6. That
to the funding raised every year to        schedule makes this a critical time for
support the shelter's operations.          raising the final $1 million from com-
                                           munity sources. This money goes
The shelter's new home will provide        directly into the bricks and mortar to
a resource that is scarce at the present   house Boulder's homeless population.
location-space. At the current facili-     This is a rare opportunity to contribute

    NOVEMBER 2003                                                                                                                13
PURE TORT SUBROGATION and LIENS (continued from page 12)
 benefits.                                    ble. The hospital has only a statutory                       The subrogee (the insurer) possesses neither greater
                                              right and its only connection to the set-                    nor lesser rights than those of its subrogor (the
                                                                                                           insured) to benefits actually paid. See Travelers
 Implicit in the Common Fund                  tlement. Therefore, the client would be                      Indem. Co. of Ill. v. Mid-Century Ins. Co., 961 P.2d 509
 Doctrine are two requirements: 1)            responsible for the costs. In conclusion,                    (Colo. App. 1997) and Peterson v. CAN, 791 P.2d 1185
 that all beneficiaries are similarly sit-                                                                 (Colo. App. 1989).
                                              subrogated insurers providing benefits                       2.County Workers Compensation Pool v. Davis, 817
 uated; and 2) that, but for the client's     to car tort victims are subject to this doc-                 P.2d 521, 526 (Colo. 1991).
 actions, the beneficiaries would have        trine, but hospital liens are not. See                       3. Martinez v. St. Joseph Hospital and Nursing Home
                                                                                                           of Del Norte, Inc., 878 P2.d 13 (Colo. App. 1994).
 been forced to institute the litigation      Hawes v. Colorado Division of Insurance,                     4. Grange Mut. Cas. Co. v. Lindsey, 489 N.E. 2d 281
 themselves to obtain any benefit. It is      65 P.3d 1008 (Colo. 2003) for a thorough                     (Ohio 1986).
                                                                                                           5. Rose Medical Center v. State Farm, 903 P2d 15, 17
 crucial for practitioners to know that       review of the Common Fund Doctrine.                          (Colo. App. 1994); C.R.S. § 38-27-102.
 the Common Fund Doctrine does not                                                                         6. C.R.S.§ 38-27-101.
 apply to hospital liens because the                                                                       7. Trevino v. HHL Financial Service, Inc., 928 P.2d 766
                                              Peter Michael Anderson focuses on person-                    (Colo. App. 1996).
 hospital does not possess a subrogat-        al injury, medical malpractice and some                      8. County Workers Compensation Pool v. Davis, 817
 ed interest. For example, if the client      criminal matters. He serves as co-chair of                   P.2d 521, 526 (Colo. 1991).
                                                                                                           9. C.R.S. § 8-41-203(1)(b), (c) and (d).
 signs a hospital admission agree-            the BCBA Civil Litigation/Medical-Legal                      10. C.R.S. § 8-41-203(4)(d)(I) and (II).
 ment, a bilateral contract where the         Section. For more information, contact                       11. Duncan v. Integon General Insurance Corp., 482
                                                                                                           S.E. 2d 325 (Georgia 1997); 16 Couch on Insurance 3d,
 client agrees to pay all costs, the client   Peter at 303.444.1505 or visit www.col-                      Section 223:134 at 147-150 (2000).
 and the hospital are not similarly sit-                                      12. 16 Couch on Insurance 3d, §223:134 at 147-50 (200).
 uated with respect to the settlement                                                                      13. Sunbeam-Oster Co., 102 F3d 1373, 74 (5th Circuit
 and the client's obligation exists           Endnotes                                                     14. Allstate Ins. Co. v. Huizar, 52 P.3d 816, 818 (Colo.
 entirely separate.         Hence, the        1. Subrogation is the right of an insurer to be put in the   2002) (citing Alyeska Pipeline Serv. Co. v. Wilderness
                                              position of its insured to pursue recovery from a third      Soc'y., 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141
 Common Fund Doctrine is inapplica-           party legally responsible for a loss the insurer has paid.   (1975)); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285,
                                                                                                           1287 (Colo. 1996)).
                                                                                                           15. Osborne v. State Farm Mut. Auto. Ins. Co., 923 P.2d
                                                                                                           304, 305-06 (Colo. App. 1996)
                                                                                                           16. Id.

14                                                                                                                                          NOVEMBER 2003
                                                  CLASSIFIED ADS
HATE       NUMBERS,         FINANCIAL           NEW OFFICE on FOLSOM.                 Along     S. BOULDER OFFICES AND SECRE-
RECORDS? Let an expert researcher ana-          Boulder Creek Path, near CU. Completely         TARIAL STATIONS with suite of lawyers.
lyze discovery documents and save your          renovated inside and out, covered free          Located at South Boulder Road and the
client money while you practice law. First      parking. Single offices, or 470 sq.ft. total.   turnpike. Convenient access to all areas of
case only $25/hour. Call 303-444-3163.          Top floor corner suite, operable windows,       the county and Denver. Plenty of parking.
                                                balcony, Flatirons views. Use of shared con-    Upscale furnishings. Two conference
ROZ LYNN DORF, M.A. FREELANCE                   ference room available. 303.449.1420 x16.       rooms; telephone system; fax; copier; jani-
PARALEGAL SERVICES. Criminal.                                                                   torial; kitchen; DSL; shower. Two lawyer
Civil. Research. Drafting. Filings. Trial       OFFICE       SPACE       AVAILABLE        IN    offices available, plus paralegal office and
Support. 26 years experience. Reasonable        BOULDER. Individual offices available at        secretarial station. Steve Cook (or staff)
rates. References. 303.494.6935.                325 Canyon Boulevard across from the            303.543.1000.
                                                Justice Center. Off-street parking, phone
MEDIUM SIZE BOULDER LAW FIRM                    system and internet available. Conference       SHARE OFFICE SUITE. One executive
WITH A SOPHISTICATED LEGAL                      room and other common areas. Possibility        office plus secretarial station to share with
PRACTICE IS SEEKING AN EXPERI-                  of sharing a receptionist and overflow work     small Louisville firm located at 287
ENCED TRUST AND ESTATE ATTOR-                   in criminal/domestic relations practice. Call   Century Circle, Suite 200, off McCaslin
NEY. The qualified candidate will have a        Jim at 303.449.9960. Price range $500 - $550    Blvd. Conference room and other com-
minimum of five years experience work-          per month (price reduced).                      mon area amenities included. Convenient
ing with clients on estate planning and                                                         location. $1300/mo. Contact Roberta Allen
estate administration. The candidate will       INDIVIDUAL OFFICES AVAILABLE                    303.665.2929. Email:
have the ability to work within our estab-      ACROSS        FROM      THE     BOULDER
lished and thriving trust and estate prac-      COUNTY JUSTICE CENTER, receptionist,            SHARE OFFICE SUITE, LARGE, OPEN,
tice, as well as assist in practical develop-   parking, utilities, law library, conference     ON MEZZANINE, NEWLY PAINTED
ment. We offer a competitive salary and         room, 595 Canyon Blvd., rent $600.              AND CARPETED, WITH THREE
excellent benefits. Please fax cover letter,    303.444.1700.                                   ATTORNEYS at 1375 Walnut Street, Suite
resume and salary expectations to Legal                                                         200, Boulder. Private entrance, telephone
Administrator, 303.494.6309, or send to         THREE OFFICES ACROSS FROM                       system, reception, copier, fax, kitchenette,
Franscona,       Joiner,     Goodman       &    BOULDER COUNTY JUSTICE CENTER.                  secretarial stations, parking available. Rent
Greenstein, 4750 Table Mesa Drive,              Also for rent are our furnished virtual         $800/month. Call 303.449.2182.
Boulder, CO 80305.                              offices at $15/hr. or $100 for 10 hrs. per
                                                month. Wireless DSL and legal research          SHARE SUITE IN ONE OF BOULDER'S
PREMIER OFFICE IN SHARED SUITE                  available, fax/scanner/copier, modern           BEST BUILDINGS; ON DOWNTOWN
W E S T B O U L D E R L O C AT I O N .          kitchen, bathroom and shower, on-site           MALL, Flatiron views, all services. Office
Beautiful office, views, near Justice           parking. 255 Canyon Blvd. 303.443.1426.         in pvt. suite plus clerical area, storage.
Center. Contract work from successful                                                           Broadway Suites, one floor up from BCBA.
firm available, reception services, kitchen,    FOR SALE:BEAUTIFUL, PROFES-                     Possible work for part of rent. Call 303-444-
library,    $1000/month.        STEVENS,        SIONAL OFFICE FURNITURE, desk,                  3163 or email
LITTMAN, BIDDISON, THARP &                      computer bridge, credenza with cover, 2
WEINBERG LLC. Contact Andy Littman              drawer filing cabinet, second fully closed
303.443.6690 EMAIL:         credenza, 2 guest chairs. Cherry stain on
                                                oak, good shape. Also available 3’ x 7’
                                                matching bookcases. Call Sheila Carrigan

                 We wish you all a very


                     from the BCBA Staff and
                        Board of Directors

     NOVEMBER 2003                                                                                                                         15
                                                                                             BCBA PUBLIC SYMPOSIUM
       ANNUAL JUDGES’ DINNER                                                               WEDNESDAY, NOVEMBER 12, 2003
                                                                                         SAME SEX MARRIAGES: LEGAL RIGHT
     THURSDAY, NOVEMBER 6, 2003                                                                  OR LEGAL WRONG
                                                                                            7 - 9 PM CU SCHOOL OF LAWLINDSLEY COURTROOM

TER IS PUBLISHED MONTHLY BY THE BOULDER COUN-                 Boulder County Bar Association                          PRESORTED STANDARD
TY BAR ASSOCIATION. ARTICLES BY GUEST LAWYERS                 1942 Broadway, Suite 205                                    U.S. POSTAGE
                                                              Boulder, Colorado 80302                                          PAID
1ST OF THE MONTH AND DEADLINE FOR ADS IS THE                                                                               PERMIT #661
                                                              Return Service Requested                                    BOULDER, CO

             Phone: 303.440.4758
               Fax: 303.402.6958
          1942 Broadway, Suite 205
              Boulder, CO 80302
        E-mail: <>

Executive Director and
Newsletter Editor .................... Christine Hylbert

Executive Assistant .................. Jonathan P. Saine

Editorial Assistance ........................ Barry Satlow

          Board of Directors (2003-2004)

President: Virginia Chavez ............ 303.572.1919
Past President: Seth Benezra ........ 303.716.0254
President-Elect: Melody Fuller ...... 303.465.4605
Sec./Treasurer: Anton Dworak ...... 303.776.9900
Rachael Lattimer ........................... 303.928.2315
Trip DeMuth .................................. 303.447.7700
Steve Closky ................................. 303.938.6869
H. Sonny Flowers, Jr. ..................... 303.443.7900
Scott Holwick ............................. 303.447.7700

16                                                                                                                               NOVEMBER 2003

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