Bocian v. Owners Ins. Co.

• Decision Date: 18 June 2020
• Docket Number: Court of Appeals No. 19CA0786
• Parties: Lyubov BOCIAN, Plaintiff-Appellant, v. OWNERS INSURANCE COMPANY, Defendant-Appellee.
• Court: Colorado Court of Appeals

482 P.3d 502

Lyubov BOCIAN, Plaintiff-Appellant,

v.OWNERS INSURANCE COMPANY, Defendant-Appellee.

Court of Appeals No. 19CA0786

Colorado Court of Appeals, Division VI.

Announced June 18, 2020

Connelly Law, LLC, Sean Connelly, Denver, Colorado; Franklin D. Azar & Associates, P.C., DezaRae LaCrue, Aurora, Colorado, for Plaintiff-Appellant

Zupkus & Angell, P.C., Muliha Khan, Erica Payne, Anne Murphy, Denver, Colorado, for Defendant-Appellee

Opinion by JUSTICE MARTINEZ^*

¶ 1 This case arises out of a claim for underinsured motorist (UIM) benefits by plaintiff, Lyubov Bocian, under her insurance policy with defendant, Owners Insurance Company (Owners). Bocian appeals the trial court's denial of her C.R.C.P. 97 motion to disqualify the trial judge and evidentiary rulings regarding the testimony and report of an expert witness. For the reasons stated below, we affirm.

I. Background

¶ 2 In September 2016, Bocian was injured in a car accident with another driver (at-fault driver). After Bocian settled with the at-fault driver's insurer for its policy limit, Bocian made a UIM claim with her insurer, Owners.

¶ 3 In addition to medical costs, Bocian sought to recover lost wages resulting from her injuries and subsequent inability to work full-time for six months at the upholstery repair business she co-owns with her husband. In support of this claim, Bocian provided Owners with a report from economist Jeffrey Nehls that calculated $63,600 in wage loss due to the collision.

¶ 4 After reviewing Nehls's report and other documentation, Owners determined that the information was insufficient to support $63,600 in wage loss and offered Bocian $15,000 to settle her claim. Bocian did not accept Owners' offer and filed suit in May 2018, asserting claims for breach of contract, bad faith breach of contract, and statutory unreasonable denial/delay of insurance benefits.

¶ 5 Before trial, Bocian disclosed Nehls as an expert who would testify regarding her alleged economic loss and the report he had submitted to Owners during the claim process. Owners sought to strike Nehls's testimony and report, arguing that his methodology was not reliable and that his testimony would not be helpful to the jury.

¶ 6 The trial court held a hearing on Owners' motion under CRE 702 and People v. Shreck , 22 P.3d 68, 70 (Colo. 2001). During the hearing, the trial court extensively questioned Nehls about the methodology he used in calculating lost wages and requested supplemental authority to support his methodology.

¶ 7 Hours after the hearing, Bocian filed a motion under C.R.C.P. 97 to disqualify the trial court judge, alleging the judge had demonstrated actual bias and an appearance of bias against the law firm representing Bocian, Franklin D. Azar and Associates (Azar & Associates). As grounds for disqualification, Bocian pointed to (1) "disparaging comments" the judge had made against the law firm and its lawyers in three prior cases; (2) the judge's "hostile" inquiry of Nehls during the Shreck hearing; and (3) the fact that Franklin Azar had personally donated a "significant amount of money" to a campaign opposing the judge's November 2018 retention. In support of the motion, Bocian attached a previous motion to disqualify the same judge in an unrelated case, a news article regarding Azar's contribution to the anti-retention campaign, and an affidavit signed by one of Bocian's attorneys.

¶ 8 The trial court denied Bocian's C.R.C.P. 97 motion, finding she had waived some of her claims of alleged bias and had otherwise not met her burden to warrant disqualification.

¶ 9 Shortly after, the trial court granted Owners' motion to strike Nehls as an expert. In striking the expert testimony, the trial court also precluded Nehls's report from being presented to the jury. As a result, Bocian performed her own informal calculation and presented a lay opinion at trial that her lost wages totaled $19,200.

¶ 10 Ultimately, the jury found Owners had breached the insurance contract but had not acted in bad faith or unreasonably delayed payment. Its verdict awarded Bocian $90,000, comprised of $25,000 in noneconomic losses, $40,000 in economic losses, and $25,000 for physical impairment. Following judgment, Owners was deemed the prevailing party for the purpose of awarding costs.

II. Judicial Bias

¶ 11 Bocian first contends that the trial court judge abused his discretion in denying her motion to disqualify under C.R.C.P. 97. She further contends that the trial judge manifested additional bias during the case that required his disqualification. We disagree with both contentions.

A. Standard of Review

¶ 12 In civil cases, a trial judge's decision whether to disqualify himself is discretionary and will not be reversed unless an abuse of discretion is shown.

Spring Creek Ranchers Ass'n v. McNichols , 165 P.3d 244, 245 (Colo. 2007). A judge's failure to disqualify himself in the face of a legally sufficient motion is an abuse of discretion. Zoline v. Telluride Lodge Ass'n , 732 P.2d 635, 640 (Colo. 1987). Finally, the sufficiency of a motion to disqualify is a legal determination we review de novo. Bruce v. City of Colorado Springs , 252 P.3d 30, 36 (Colo. App. 2010).

B. Legal Principles

¶ 13 Under C.R.C.P. 97, disqualification is appropriate when the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, against a party or counsel to the litigation. Johnson v. Dist. Court , 674 P.2d 952, 955-56 (Colo. 1984) ; see also C.J.C. 2.11(A); People v. Roehrs , 2019 COA 31, ¶ 12, 440 P.3d 1231 ("The court must examine both the actuality and the appearance of fairness in light of the facts alleged.").

¶ 14 Actual bias exists if "a judge has a bias or prejudice that in all probability will prevent him ... from dealing fairly with a party." People v. Julien , 47 P.3d 1194, 1197 (Colo. 2002) ; see also § 16-6-201(1)(d), C.R.S. 2019. Even where there is no actual bias, a judge must disqualify himself if his "involvement with a case might create the appearance of impropriety." People in Interest of A.G. , 262 P.3d 646, 650 (Colo. 2011) (emphasis added).

¶ 15 In ruling on the sufficiency of a motion to disqualify, a judge must accept the factual statements contained in the motion and affidavits as true and determine as a matter of law whether they allege legally sufficient facts for disqualification. S.S. v. Wakefield , 764 P.2d 70, 73 (Colo. 1988). Where the motion and supporting affidavits merely allege opinions or conclusions, unsubstantiated by facts supporting a reasonable inference of actual or apparent bias or prejudice, they are not legally sufficient to require disqualification. Id. ; see People v. Schupper , 2014 COA 80M, ¶ 59, 353 P.3d 880 (the record must clearly establish bias, meaning that there must be more than mere speculation).

C. Motion to Disqualify

¶ 16 The parties initially dispute whether the trial court properly denied part of Bocian's motion to disqualify based on waiver, given that two grounds for alleged bias — disparaging comments in prior cases and Azar's campaign contributions against the judge's retention — occurred well before the motion was filed. See A.G. , 262 P.3d at 652 (a motion to disqualify should be "promptly raised" if grounds for disqualification are known).

¶ 17 However, assuming without deciding that all of Bocian's claims for disqualification were timely raised, we conclude that the motion to disqualify did not, as a matter of law, allege sufficient facts supporting a reasonable inference of actual or apparent bias or prejudice to require disqualification.

1. Prior Disparaging Comments

¶ 18 The first ground for disqualification asserted in the motion concerned three unrelated cases where the judge allegedly made "disparaging comments" against lawyers at Azar & Associates.

¶ 19 In two of the cases, Bocian alleged that the judge improperly denied motions to exclude the law firm's name from evidence. The motions were apparently filed based on the concern that the firm's advertising would prejudice jurors against the firm's clients in those cases. In denying the motion in the first of those cases, the judge stated in a footnote that, if the lawyers believed the firm's "advertising prejudices their clients, the lawyers may wish to consider whether the advertising violates [Colo. RPC] 1.7(a)(2) .... If advertising truly creates the claimed prejudice to the firms' clients, it is simple enough to discontinue the advertising." Although not clear from the motion or affidavit, Bocian alleged that the judge made "an identical allegation in denying" the same motion filed in the second case. According to the disqualification affidavit, these orders "ignored the issue of relevance [and] distorted [Azar & Associates'] argument concerning potential prejudice."

¶ 20 In the third case, Bocian alleged that the trial judge had accused a different attorney at Azar & Associates of malpractice. There, the question arose whether an attorney at the firm might be deposed by opposing counsel. In addressing this issue, the judge appears to have asked the attorney if permitting the deposition would require her to withdraw as counsel. From this question, the following exchange occurred between the Azar & Associates' attorney and the judge:

MS. BROWN: I think it will. I think would — I think it's then up to us to decide whether that's going to be prejudice to our client to the point that we need to withdraw.

THE COURT: Sure. And if you do, there's a Colorado Bar Association ethics opinion on disclosing malpractice to your client.

¶ 21 As an initial matter, we note that Bocian did not provide the underlying record or orders from which these allegedly "unfounded" comments came. Thus, to the extent Bocian relies on Brewster v. District Court , 811 P.2d 812, 814 (Colo. 1991), for the proposition that disqualification is required where a judge's criticisms of counsel are not ...