Adamscheck v American Family Mutual Insurance Company

American appealed the underinsurance and bad faith judgment for Adamscheck. The panel affirmed in part, reversed in part and remanded for a new trial. It held the district court properly denied American’s summary judgment motion as Colorado law bars set off of workers compensation benefits in the underinsured motorist context given Colorado Court of Appeals case law on the issue and the way the Colorado Supreme Court has treated other benefits in the underinsured context. The panel held that a statute relied upon by American did not change the outcome as the total liability of the tortfeaser is included in the underinsurance calculation and there was no dispute about that amount here. The panel reversed the exclusion of an expert witness holding the district court erred by failing to perform any meaningful analysis of the proposed expert and making an off the cuff decision without findings of fact or any legal analysis. It held the error was not harmless because the biomedical engineering evidence was critical to American’s defense that the car accident here could not have caused the extensive damages claimed by Adamscheck leaving Admascheck’s exert as the only expert testimony before the jury. The panel held the appropriate remedy here is a new trail as the district court would be tempted to just rationalize its erroneous decision.

United States v Kurtz

Kuntz appealed the denial of his motion to reduce his sentence and appointed counsel filed an Anders brief. The panela concluded there were no meritorious issues and dismissed. It held that there was no error in denying the motion as Kurtz’s actual sentence is lower than the bottom of the guidelines range after applying the new amendments to guidelines and thus Kuntz is not eligible for further reduction in sentence. It rejected Kurtz’s ex post facto argument holding limitations on further reducing a sentence is not eh same as increasing a sentence and thus there is no violation.