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The Colorado Court of Appeals recently issued a slew of opinions — three of which are of particular interest:

Soicher v. State Farm 13CA2305

This opinion holds that an insurer must plead failure to cooperate as a separate defense or it is waived. In the course of the decision, the court of appeals defines what constitutes an affirmative defense (basically, anything that lets the carrier off the hook, even if it otherwise owed the insured a benefit under the policy) and what constitutes implicit consent to an amendment (basically, allowing evidence to come in, without objection, when the sole purpose of the evidence relates to an unpled matter). From an appellate advocacy standpoint, this opinion seems to disregard the standard appellate rule that anything not included in the record  will be interpreted to support the decision of the trial court. In this case, State Farm argued that, by consenting to  the trial management order, Soicher consented to the addition of the defense of lack of cooperation. The TMO was not in the record on appeal, however, and therefore the court of appeals did not consider it. But see Colorado Dep’t of Pub. Health & Env’t v. Bethell, 60 P.3d 779, 787 (Colo.App. 2002)(“As appellant, defendant is responsible for designating the record on appeal, see C.A.R. 10(b), and if the appellant does not provide a complete record on appeal, we must presume the record supports the trial court’s conclusions.”).

McShane v. Stirling Ranch

In this case, the court of appeals enforced exculpatory clauses in the Declarations and Design Guidelines of a Property Owners Association against the argument that the clauses should not extend to a matter of public concern. The appellate court held, among other things, that under CCIOA, C.R.S. §38-33.3-302(3)(b), design matters are not matters of public concern but are left to the discretion of the design board.

L&R Exploration v. Grynberg

In this opinion, the court of appeals limited the attorneys fees available to a successful litigant in a garnishment proceeding to those actually incurred in the course of the proceeding, and not those fees and expenses which are ancillary to them.