Court Rulings

Limited writ of mandamus granted. Upon remand, the commission shall determine whether relator was able to return to his former position of employment on the date it was determined he had voluntarily abandoned his former position of employment. Objections to the magistrate's decision overruled.

Workers' Compensation Insurance—Fine—Lapse in Coverage—Unconstitutional—Eighth Amendment. The Division of Workers' Compensation (Division) imposed a fine of $841,200 on Dami Hospitality, LLC, a small employer, for failing over several years to maintain workers' compensation insurance. On appeal, Dami argued that CRS § 8-43-409 is unconstitutional on its face and as applied. Dami also argued that the fine is grossly disproportionate both to its ability to pay and to the harm caused by the lack of workers' compensation insurance. The statute is not unconstitutional on its face. However, because the division director failed to apply the excessive fine factors adopted under the Eighth Amendment to the particular facts that Dami presented, including his ability to pay, the fine was excessive. Dami also contended that the provisions of CRS § 8-43-304 must be read into CRS § 8-43-409 to incorporate a cure provision, a limitation period, and a clear and convincing burden of proof and the fine must be set aside based on the Division's failure to meet these requirements. The Court of Appeals analyzed the statutes and determined that the Division was not obligated to credit Dami for curing the violation, was not required to prove by clear and convincing evidence that Dami violated CRS § 8-43-409, and did not have to file notice of Dami's violation within one year of Dami's lapse. The order was set aside and the case was remanded.

Condominium Declaration—Common Expenses—Amendment—Colorado Common Interest Ownership Act—Motion for Leave to Amend—Indispensable Parties. The Francis parties are trusts and their fiduciaries and other individuals with ownership interests in the Aspen Mountains Condominiums. The parties' dispute arose from a contested 2010 vote that amended the original 1972 condominium declaration to reallocate the common interest shares and common expenses. The 1972 declaration had originally allocated common interest shares and common expenses based on unit size, and the amended declaration reallocated common interest shares equally among all units. Common expenses increased for the Francis parties, and they later filed suit, seeking a judgment voiding the reallocation of the common interest shares. The trial court ruled in favor of the Aspen Mountain Condominium Association, Inc. (AMCA), finding that the 2010 amendment had been properly adopted. On appeal, the Francis parties first contended that the trial court erred by partially granting AMCA's motion for a determination of law. Here, the declaration required a unanimous vote to alter the percentage of the undivided interests in the general common elements. The trial court erred by holding that the Colorado Common Interest Ownership Act, which went into effect in 1992, nullified the 1972 declaration's requirement of a unanimous vote to alter ownership interests in the common elements. The Francis parties also contended that the trial court erred in denying their motion for leave to amend the complaint to assert additional breach of fiduciary duty claims against AMCA. The motion was submitted after the discovery deadline and only a few months before trial. Further, the case had been pending for more than five years, and the Francis parties had already amended the complaint five times and could have added the newly asserted claim at any point. Therefore, the court did not abuse its discretion in denying leave to amend. Next, the

The trial court did not err by entering summary judgment for Appellee on Appellant's claim for workers' compensation benefits. Generally, the coming-and-going rule bars compensation of a fixed-situs employee for injuries which occur off the work premises. Neither the zone-of-employment exception or the totality-of-the-circumstances exception applies. Judgment affirmed.