Hagan v. Farmers Ins. Exch.
| Decision Date | 26 January 2015 |
| Docket Number | Supreme Court Case No. 14SA266, Supreme Court Case No. 14SA313, Supreme Court Case No. 14SA267 |
| Citation | 342 P.3d 427,2015 CO 6 |
| Parties | In re Deanna HAGAN and Shane Hagan, Plaintiffs v. FARMERS INSURANCE EXCHANGE, Defendant In re Cynthia Ewald, Plaintiff v. Farmers Insurance Exchange, Defendant In re James Mayfield, Plaintiff v. Farmers Insurance Exchange, Defendant |
| Court | Colorado Supreme Court |
Attorneys for Plaintiffs Deanna Hagan, Shane Hagan, and Cynthia Ewald: Taussig & Taussig, P.C., John E. Taussig, III, Dustin E. Bergman, Boulder, Colorado, The Fowler Law Firm, LLC, Timms R. Fowler, Fort Collins, Colorado
Attorneys for Plaintiff James Mayfield: Richard M. Crane, Denver, Colorado, Earl & Earl, PLLC Collin J. Earl, Castle Rock, Colorado
Attorneys for Defendant: Fowler, Schimberg & Flanagan, P.C., Daniel M. Fowler, Max S. Gad, Denver, Colorado
En Banc
¶ 1 These original proceedings involve plaintiffs who filed separate actions against the same defendant, Farmers Insurance Exchange (“Farmers”), in Boulder County District Court. In each case, Farmers moved to change venue under C.R.C.P. 98(f)(2), alleging that a change would promote “the convenience of witnesses and the ends of justice.” Farmers supported its motions with attorney affidavits that purport to demonstrate—based on Google Maps printouts alone—that the transferee court is a more convenient venue for the plaintiffs and their medical treatment providers. The trial court granted the motions in all three cases.
¶ 2 The plaintiffs asked this court to issue a rule to show cause why the orders granting a change of venue should not be vacated and venue transferred back to Boulder County. Their petitions under C.A.R. 21 exposed an inconsistency in how judges within the same district have applied Rule 98. Recognizing the need to promote a uniform application of the venue rules, we issued our rules to show cause.
¶ 3 We now make our rules absolute. We hold that the trial courts abused their discretion when they changed the venue in these cases. First, Boulder County District Court is a proper venue for all three cases; under C.R.C.P. 98(c)(1), the plaintiffs were allowed to file their complaints in the county of their choice because Farmers is a nonresident defendant. Second, the trial courts granted the motions without the requisite evidentiary support. The affidavits that Farmers submitted improperly focus on convenience to the plaintiffs and do not satisfy the standard set forth in Sampson v. District Court, 197 Colo. 158, 160, 590 P.2d 958, 959 (1979). Sampson requires a party seeking to change venue under Rule 98(f)(2) to support the motion with evidence indicating “the identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.” Id. Consequently, we direct the transferee courts to return the cases to Boulder County District Court.
¶ 4 In 2011, Deanna Hagan (a driver) and her mother-in-law, Cynthia Ewald (her passenger), were involved in a car accident in Weld County. A third party, Abdi Abdullahi, allegedly collided with them after running a red light. Both Hagan and Ewald were hurt in the collision and received medical treatment for their injuries. Hagan asserts that she incurred over $11,000 in medical expenses and lost income because of her injuries. Ewald asserts that she incurred almost $68,000 in medical expenses and also lost income because of her injuries.
¶ 5 Hagan and Ewald were insured by Farmers and had underinsured motorist (“UIM”) coverage up to $250,000 and medical payments coverage up to $25,000. Abdullahi was insured by Young America Insurance (“Young America”), with a policy limit of $25,000. Young America paid Ewald $25,000 to settle her claim. It paid Hagan $15,000 to settle her claim and held $10,000 in reserve for additional exposure. Hagan and Ewald contend that they also were entitled to UIM benefits, which Farmers has refused to pay.
¶ 6 Represented by the same counsel, Hagan (together with her husband) and Ewald filed separate lawsuits against Farmers in Boulder County District Court on the same day. The lawsuits asserted claims for breach of contract, bad faith breach of insurance contract, and improper denial of insurance claims in violation of sections 10–3–1115(1)(a) and 10–3–1116(1), C.R.S. (2014). The Hagans also asserted a loss of consortium claim.
¶ 7 In both cases, Farmers filed a motion to change the venue to Arapahoe County District Court under Rule 98(f)(2), emphasizing that “[n]o potential witnesses have any connection to Boulder County.” Farmers supported its motions with affidavits by its attorney, which contained Google Maps printouts and estimated distances and travel times for the plaintiffs and their potential witnesses.1
¶ 8 The trial courts granted Farmers' motions to change venue. The trial court in Ewald's case ruled first. It determined that Boulder County was not a proper venue. Then, noting that Ewald's medical treatment providers were “substantially closer” to the transferee court, it concluded that “a change in venue would promote the convenience of witnesses and the ends of justice.” Relying on the order in Ewald, the trial court in the Hagans' case followed suit.
¶ 9 In 2012, James Mayfield was involved in a car accident in El Paso County with an underinsured motorist, Mark Merriman, who allegedly failed to stop at a traffic light. Mayfield was hurt in the collision and received medical treatment for his injuries. He asserts that he incurred over $73,000 in medical expenses, had to drop out of school, and suffered a loss of earning capacity and substantial non-economic losses.
¶ 10 Mayfield was insured by Farmers and had UIM coverage up to $100,000. Merriman was insured by GEICO, with liability coverage up to $100,000. Mayfield filed a lawsuit against Merriman and settled it for $95,000. Claiming that his damages far exceeded $100,000, Mayfield then sought UIM benefits from Farmers. Farmers offered him $15,000 and refused to pay more.
¶ 11 Represented by different counsel than the Hagans and Ewald, Mayfield filed a lawsuit against Farmers in Boulder County District Court. In response to a motion to change venue, Mayfield's counsel filed an affidavit in which he stated that “[t]he reason that Plaintiff's Complaint was filed in Boulder was that Colorado's new Civil Access Pilot Project rules (CAPP) are not applicable in Boulder County District Court” and that he and his co-counsel “do not feel that this would be a good case to litigate under the CAPP rules.”2 Mayfield asserted claims for breach of contract and improper denial of insurance claims in violation of sections 10–3–1115(1)(a) and 10–3–1116(1). Mayfield's case was assigned to the same trial judge as the Hagans' case.
¶ 12 Represented by the same defense counsel, Farmers filed a motion to change the venue to El Paso County District Court under Rule 98(f)(2), again emphasizing that “[n]o potential witnesses have any connection to Boulder County.” Farmers once more supported its motion with an attorney affidavit with attached Google Maps printouts and estimated distances and travel times for the plaintiff and his potential witnesses. The trial court granted the motion.3
¶ 13 Under C.A.R. 21, this court may exercise its original jurisdiction to review the trial courts' orders because they relate to venue. See City of Colo. Springs v. Bd. of Comm'rs, 147 P.3d 1, 2 (Colo.2006). Venue refers to the place of trial or “the locality where an action may be properly brought.” State v. Borquez, 751 P.2d 639, 641 (Colo.1988). Review is appropriate under C.A.R. 21 because “[i]ssues involving venue directly affect the trial court's jurisdiction and authority to proceed with a case.” City of Colo. Springs, 147 P.3d at 2 (citing Millet v. Dist. Court, 951 P.2d 476, 477 (Colo.1998) ). Further, review of a venue determination serves to avoid the delay and expense involved in a re-trial should this court deem venue improper. See id. ().
¶ 14 Generally, a plaintiff is entitled to choose the place of trial when venue in more than one county would be proper. 7 Utes Corp. v. Dist. Court, 702 P.2d 262, 266 (Colo.1985) (); accord Tillery v. Dist. Court, 692 P.2d 1079, 1083–84 n.9 (Colo.1984) (). There is a “strong presumption” in favor of that choice. UIH–SFCC Holdings, L.P. v. Brigato, 51 P.3d 1076, 1078 (Colo.App.2002).
¶ 15 The party seeking a change of venue bears the burden of proving the right to a change. Cliff v. Gleason, 142 Colo. 500, 502, 351 P.2d 394, 396 (1960) (citing Fletcher v. Stowell, 17 Colo. 94, 97, 28 P. 326, 327 (1891) ). A court may change the place of trial “on good cause shown” under two circumstances: “(1) When the county designated in the complaint is not the proper county; (2) When the convenience of witnesses and the ends of justice would be promoted by the change.” C.R.C.P. 98(f). A trial court's decision on a motion to change venue is reviewed for an abuse of discretion. Sampson, 197 Colo. at 159–60, 590 P.2d at 959. If the trial court grants a motion to change venue despite a defendant's failure to show that venue should be changed under the standard delineated in Sampson, this court will return the action to the original venue for trial. Tillery, 692 P.2d at 1084.
¶ 16 To assess whether the trial courts abused their discretion in granting Farmers' requests for a change of venue, we ask two questions. First, was venue in Boulder County District Court proper? The answer to this question is yes. Second, can a defendant seeking a change of venue under Rule 98(f)(2) based on witness convenience...
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