Rocky Mountain Appellate Blog

Health Care Providers Dodge Bullet on Powers of Attorney

In a decision issued earlier this week, providers who serve persons who are incapacitated or seriously disabled avoided what could have been a significant problem. In Moffett v. Life Care Centers of America, the Colorado Supreme Court upheld the exercise of powers of attorney for persons who are incapacitated or disabled. The decision is a win for all providers who provide services to such persons.

The case involved an attempt by a relative to avoid an agreement he signed for his mother agreeing to arbitration of any medical malpractice claims. The son (who possessed a power of attorney for the mother) signed the arbitration agreement right after he placed his mother in a health care facility. The mother soon passed away and the son and his sister sued for wrongful death. The trial court denied the provider’s attempt to enforce the arbitration agreement, essentially holding (among other things) that a person with a power of attorney did not have the power to enter into an arbitration agreement. The provider appealed and the Court of Appeals reversed, upholding the arbitration agreement and the son’s exercise of the power of attorney on behalf of his mother.

When the Colorado Supreme Court granted certiorari, many providers became alarmed. One of the questions upon which certiorari was granted stated whether “mere powers of attorney” have the authority to execute arbitration agreements. Reversal of the Court of Appeals on this point would have potentially called into question all powers of attorneys exercised on behalf of persons who are incapacitated or seriously disabled. Numerous amicus briefs were filed, and the Court, doing the right thing in my view, upheld the arbitration agreement and the son’s power to enter into that agreement based upon the power of attorney.

This decision, combined with the General Assembly’s recent adoption of the Uniform Power of Attorney Act, House Bill 09-1198, provide additional certainty in this area and reinforce providers’ ability to rely upon powers of attorney in general.

Supreme Court’s to Address First Title VII Timeliness Case in the post-Ledbetter Era

Early last month, the U.S. Supreme Court began hearing oral arguments in its 2009-2010 term.  Currently pending on the docket are five cases that may directly impact employers in employment and labor related issues.  One of the most notable of these, and the lone employment discrimination case on the docket, addresses a key procedural question concerning disparate impact claims arising from allegedly discriminatory hiring tests in the Chicago fire department.  That’s right, in the wake of last term’s holding in Ricci v. DiStefano, the Court will hear another case involving hiring tests for firefighters. 

 

Lewis et al. v. City of Chicago (08-974) raises the issue of whether a plaintiff’s time to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission begins to run as soon as the employer announces a hiring policy that has a disparate impact on a protected class, or wither the time to file only begins to run once the employer has implemented or applied the policy.  As can be imagined, the Circuits are split on the question, with the Seventh, Third and Sixth Circuits holding that the time to file begins to run as soon as the policy is announced, and the Second, Fifth and Ninth Circuits holding that the clock restarts every time the employer actually makes an employment decision based on the challenged policy. 

 

This issue bears striking similarity to that which was raised in the Court’s 2007 decision in Ledbetter v. Goodyear Tire, regarding the timeliness of Equal Pay Act claims.  In fact, the Seventh Circuit’s opinion largely tracked the reasoning of the Court’s Ledbetter decision, which, of course, led to the passage of the Ledbetter Fair Pay Act of 2009. 

 

 

As this represents the first case under the new legislation, the Court will have an opportunity to answer an important question about the Act, namely how far the broadly written law will apply in the Title VII arena.  Assuming the Court follows a conservative path and renders an employer-friendly ruling along the lines of the Ledbetter decision, it wouldn’t be all that surprising if Congress steps in with new legislation, just as it did after the Ledbetter decision.  The Court is expected to hear argument in the case in the early part of next year.

Groucho Marx and Good English Grammar

The Tenth Circuit's decision in Payless Shoesources v. Travelers Cos., issued yesterday, contains a discussion of grammar in the context of contract interpretation that is sure to be quoted many times over in future briefs and opinions. 

After settling a class action brought against it for California state wage act violations, Payless sued Travelers to recoup the settlement costs and costs of defending. The district court entered summary judgment for Travelers, holding that Travelers' policy excluded losses for violations of the Fair Labor Standards Act and, as the exclusion states, "other similar provisions of any federal, state, or local statutory or common law."

Payless appealed, arguing that the district court misread the policy and that "good English grammar" mandates that the modifier "other similar provisions" applied only to the immediately preceding clause, which dealt only with workers compensation.

In rejecting Payless's argument, Judge Gorsuch's opinion contains an interesting discourse on how grammatical rules should (and, as in this case, should not) guide a court's contract interpretation:

[W]hile the rules of English grammar often afford a valuable starting point to understanding a speaker’s meaning, they are violated so often by so many of us that they can hardly be safely relied upon as the end point of any analysis of the parties’ plain meaning. So it is that Groucho Marx could joke in Animal Crackers, “One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know,” leaving his audience at once amused by the image of a pachyderm stealing into his night clothes and yet certain that Marx meant something very different. In the more mundane task of contract interpretation, we must be no less entitled to acknowledge the parties’ plain meaning without being straight-jacketed by a grammatical rule into reaching a patently unintended result.

Colorado Supreme Court to Opine on Cost Statutes

The Colorado Supreme Court today granted certiorari in a seemingly obscure case involving recovery of costs. One could look at this grant as potentially signaling a broader review by the Court of what are and what are not recoverable costs.

The case, Catlin v. Tormley Bewley Corp., involves labor and employment law. One of two woman plaintiffs suing their employer recovered under the Equal Pay Act. She recovered a modest sum under the Act and an award of attorney’s fees. Three items of costs were denied by the trial court and the Court of Appeals: (1) interest on loans taken out to finance the litigation; (2) certain expert witness costs after the trial court held that the expert’s testimony was inadmissible; and (3) money paid to lay witnesses to reimburse them for wages lost due to appearing to testify at trial.

A review of the Court of Appeals’ opinion suggests nothing cert-worthy. The fact that the Colorado Supreme Court granted review to determine whether any of the three cost items listed above is recoverable may be a signal that the Court is looking for a vehicle for opining more expansively on what costs are recoverable. The case may well be worth keeping an eye on and perhaps weighing in as an amicus.