Flower Stop Marketing Corp. v. Kilgore
| Citation | 762 P.2d 747 |
| Decision Date | 23 June 1988 |
| Docket Number | No. 88CA0121,88CA0121 |
| Parties | FLOWER STOP MARKETING CORP., Petitioner, v. William B. KILGORE and the Industrial Claim Appeals Office of the State of Colorado, Respondents. . IV |
| Court | Colorado Court of Appeals |
Gregory John Hock, Colorado Springs, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt Kriksciun, Asst. Atty. Gen., Denver, for respondent Industrial Claim Appeals Office.
No Appearance for respondent William B. Kilgore.
Employer, Flower Stop Marketing Corp., petitions for review of an order of the Industrial Claim Appeals Office (Panel) granting unemployment compensation benefits to claimant, William B. Kilgore. That petition presents the issue whether the supreme court's opinion in Colorado Department of Revenue v. Kirke, 743 P.2d 16 (Colo.1987), overruled, for the purpose of proceedings under the Colorado Employment Security Act, § 8-70-101 through § 8-82-105, C.R.S. (1986 Repl Vol. 3B), its previous decision in Sims v. Industrial Commission, 627 P.2d 1107 (Colo.1981). We conclude that Kirke had that effect and, therefore, set aside the Panel's order and remand for further proceedings.
Claimant's employment was terminated for reckless driving. At the hearing before the referee, however, the only evidence presented to establish claimant's acts consisted of the hearsay statements of individuals who did not appear at the hearing. While the referee considered this evidence sufficient to establish claimant's fault, the Panel did not.
The Panel correctly reasoned that, since it was undisputed that claimant had been discharged, the employer had the burden of establishing that he was disqualified from receiving benefits. Yellow Front Stores v. Industrial Commission, 694 P.2d 882 (Colo.App.1985). It concluded that the employer could not meet this burden by relying, as it did, solely upon hearsay evidence.
Authority for this proposition is found in Sims v. Industrial Commission, supra. In Sims, the employee's termination was based upon the alleged decision by the employer's liability insurance carrier not to continue to extend coverage to the employee or to assume any liability for damages resulting from the employee's actions. However, at the hearing before the referee, the only evidence of the carrier's action was testimony that summarized a telephone conversation between a representative of the employer and a non-appearing agent of the carrier.
The supreme court held in Sims that the evidence was insufficient to deny unemployment compensation benefits to the employee. It noted that none of the rules of evidence would allow receipt of such evidence and concluded that:
"Although there may be situations in which it is proper for hearsay testimony to be presented during a hearing before a referee, such hearsay evidence alone cannot support a determination reducing or denying an award of unemployment benefits." (emphasis supplied)
Consistent with this general principle, this court, in Kirke v. Colorado Department of Revenue, 724 P.2d 77 (Colo.App.1986), applied Sims' so-called "residuum rule" to administrative proceedings for the revocation of drivers' licenses under § 42-2-122.1, C.R.S. (1984 Repl.Vol. 17). However, upon certiorari review of our holding in Kirke, the supreme court overruled Sims to the extent that the Sims opinion might be read as meaning that "any administrative determination must be based on some non-hearsay evidence, regardless of the reliability of hearsay evidence that has been admitted...." (original emphasis) There, it concluded that Sims' residuum rule need not be applied to drivers' license revocation proceedings.
In reaching this conclusion, the supreme court noted that CRE 1101(e) provides that the rules of evidence apply in special statutory proceedings only to the extent that "matters of evidence are not provided for in the statutes which govern...
To continue reading
Request your trial
-
Industrial Claims Appeals Office v. Flower Stop Marketing Corp.
...employer, Flower Stop Marketing Corporation (Flower Stop), appealed and the court of appeals in Flower Stop Marketing Corporation v. Kilgore, 762 P.2d 747 (Colo.Ct.App.1988), held that Sims was no longer applicable to unemployment compensation cases. The court set aside the panel's order an......