Amparan v Lake Powell Car Rental Companies

The Amparans appealed summary judgment to Lake Powell on their negligent entrustment and loss of consortium claims. The panel affirmed. It held evidence Lake Powell rented a car to a licensed driver younger than 25 in violation of company policy did not prove lake Powell should have known the driver in question would operate the car in an unsafe manner given New Mexico Court of Appels case law holding violation of state law is not enough to prove an entity should have known a driver was unsafe and the unanimous case law on the issue from other state and federal courts and thus the Amparans could not prove all the elements of negligent entrustment or their loss of consortium claim.

Black & Veatch Corporation v Aspen Insurance (UK) Ltd. and Lloyd’s Syndicate 2003

Corporation appealed summary judgment to Aspen and Lloyd’s in this insurance coverage suit. The panel, 2-1, vacated and remanded. The majority held that under New York  law, which controls here, general liability policies cover unexpected and unintentional damages, are to be construed as a whole  and surplusage must be avoided and here Corporation did not expect its subcontractors to damage the facilities being built, covered the claims here as it covers claims by the utility paying for the facilities, not finding coverage here would render the subcontractor coverage exception superfluous contrary to New York law, the history of general liability policies point to coverage as subcontractor poor workmanship was originally excluded then added based on general contractor   complaints, finding coverage here is consistent with the trend among state supreme courts to find coverage in similar circumstances and no intermediate New York appellate decisions bar coverage in these circumstances. Briscoe dissented arguing New York intermediate appellate courts have adopted a rule barring coverage for damage to a claimants work product, the facilities damaged here were work product and thus there is no coverage, that the majority wrongly looked to history and other states to make its prediction about how the new York Court of Appeals would rule and in if there is doubt the proper course is to certify the question to the Court of Appeals.

T.D. v Patton

Patton appealed the denial of her qualified immunity motion. The panel with one judge concurring affirmed. The majority  held that under the circuit’s Currier precedent, Paton violated T.D.’s substantive due process rights when she created danger T.D.’s father would sexually abuse him because she knew father was a convicted sex offender, withheld information about father’s criminal past when recommending placement to the juvenile court, recommend T.D. stay with father after receiving information father was abusing T.D., withheld her gut feeling placement was wrong here, failed to investigate the abuse allegations, failed to make face to face contact with T.D., made at least some of her recommendations out of fear for her job, T.D. is within the group of children protected by the danger creation doctrine, placement put T.D. in immediate risk for harm and the totality of her conduct shocks the conscience. Briscoe concurred arguing Currier controls but was wrongly decided and should be revisited.

The Fourth Corner Credit Union v Federal Reserve Bank of Kansas City

Fourth Corner appealed the dismissal of its declaratory judgment complaint. The panel, with each judge issuing an opinion, remanded with instructions to dismiss without prejudice. Moritz argued the case should be dismissed with prejudice as Fourth Corner wants to give banking services to marijuana businesses which would violate federal law and courts will not exercise equity power to facilitate illegal activity. Matheson argued the case should be dismissed as prudentially unripe as Fourth Corner amended its complaint to assert it would only serve marijuana business it legal to do so, it never applied for an account with bank offering to not serve marijuana businesses until they are legal under federal law, it is unknown how such an application would be handled and thus the suit is not currently fit for decision and Fourth Corner may not suffer any significant hardship form requiring it to submit a new application for an account with Bank. Bacharach argued the case should not have been dismissed as Fourth Corner promised to obey the law as declared by the district court; Fourth Corner is entitled to an account under the plain language of 12 USC 248a(c)(2), past interpretations of that provision by the Federal Reserves’ Board of Governors, interpretations by regional reserve bank officials, legislative history, and the decisions of two other circuits; and Colorado law would only be preempted to the extent it conflicts with the objects of federal law namely serving marijuana business if illegal to do so; and the case is ripe as bank will certainly reject fourth Corner’s new application and Fourth Corner cannot provide banking services without the account; and requiring a new suit is inappropriate as it would require Fourth Corner to reveal its business plan, it already pledged to follow the law, two judges on appeal held servicing marijuana businesses violates federal law and will magnify Fourth Corner’s hardship.

ACE American Insurance Company v Dish Network, LLC

Dish appealed summary judgment to ACE in its claim for defense and indemnity under an insurance policy. The panel affirmed holding the relief sought against Dish in the underlying lawsuit, statutory damages for violations of the Telephone Consumer Protection Act, have been held penal and uninsurable by the Colorado Supreme Court for assignment purposes and there is no indication it would characterize them differently in the insurability context.

Genberg v Porter

Genberg appealed summary judgment to Porter on his Sarbanes-Oxley and defamation claims. The panel affirmed in part, 3-0, and reversed and remanded in part, 2-1. The majority  reversed and remanded das to the Sarbanes-Oxley claim as the district court sued the wrong standard to evaluate whether an email was protected activity, under the correct standard the email demonstrated a subjective belief the proxy at issue was unlawful and summary judgment was improper as a jury should determine if the belief was reasonable,  genuine dispute exists as to whether or not the emails in question contributed to Genberg’s firing as the emails and termination were closely related in time and the investigation order by the board of directors was inextricably intertwined with the emails, and the similar action defense was both forfeited by not be raised below and would fail in any event as it is uncertain Genberg would have been fired absent the emails. The pane affirmed as to defamation holding Porter made the statements about Genberg in good faith to those with a common interest in the subject. Hartz dissented as to Sarbanes-Oxley arguing Genberg is a lawyer with experience in securities law, the email about the proxy made no mention whatever of securities violations, and his affidavit submitted during summary judgment was sham for failing to explain the lack of allegations in the email.

United States v Ford

Ford appealed the sex offender conditions to his gun conviction supervised release. It held the challenge to undergoing sex offender assessment was prudentially ripe as a legal issue easily resolved which would impose some hardship on Ford and nether the long federal sentence here or the life sentence without parole in Oklahoma change the outcome as direct review is more appropriate here than waiting for ford to get out and move to eliminate the condition and contingencies which would render a case unripe involve discretionary decisions by third parties and the Oklahoma sentence may be modified on state review. It held the challenge to the polygraph condition was not prudentially ripe as it will only occur if recommend in his assessment and ordered by a probation officer or provider and is thus contingent. It affirmed the assessment condition because the district courts reasoning that Ford’s sex offence involved a 13-year-old girl, Ford never underwent offender treatment and has been incarcerated almost the entire time since the sex offence conviction supported imposing the condition even though the conviction was now 19 years old.


Vasquez v Davis et al. and Martorano and Chamjock

Vasquez appealed summary judgment for Davis et al. On his 1983 medical indifference claim and Davis et al. cross- appealed the sua sponte permanent injunction ordering Vasquez’s liver function be checked every three months. The panel affirmed as summary judgment and vacated the injunction. It held that any claims against Davis, Chamjock and two other providers were time barred as Vasquez knew more than two years before filing that he had hepatitis C, he had cirrhosis resulting from that infection, was taking medication of the disease and knew he needed to enroll in certain classes to obtain certain treatment options. It held that if continuing violation theory applies in the 1983 context, it did not change the outcome as to Davis, Chamjock and the other two defendants had not interaction with Vasquez during the limitations period. As to a fifth defendant, the panel affirmed summary judgment as he consulted with Vasquez about his liver, referred him to take the required classes, did a workup to facilitate treatment, consulted with higher officials to have a biopsy ordered, treated Vasquez for a more pressing medical condition and met with Vazquez every few weeks and treated his symptoms all of which negates any deliberate indifference. It vacated the injunction as it purported to bind defendants sued in their individual capacities and Vasquez does not contest the vacating of the injunction.

United States and Colorado v Colorado & Eastern Railroad (NDSC Industrial Park, LLC; Denver rock Island Railroad et al. Intervenors)

NDSC appealed the dismissal of its consent decree motion. The panel affirmed holding NDSC lacked standing to obtain a declaration that Colorado & Eastern violated the consent decree in this CERCLA case because obtaining the requested declaration will not allow remedy of any alleged harm as the state court where NDSC seeks relief cannot enforce the consent decree.