The firm represented HOMER Energy LLC in the sale of the company to a subsidiary of UL LLC that closed on December 16, 2019. HOMER Energy provides the leading software platform for microgrid and distributed generation power system design and optimization, and UL LLC acquired HOMER Energy as part of its efforts to provide more services to the renewable energy chain and in microgrids in particular. Peter Lilienthal, the CEO of HOMER Energy, commented, “This transaction was a real challenge for our small company. Never having been through this before, I couldn’t have done it without Jim Carpenter and the HBC team. I’m sure it would have been harder, more stressful, and probably taken longer without their experience and expertise. It’s been a real pleasure to work with Jim and HBC.”
HBC Welcomes Jane C. Paddison as Of Counsel
HBC is very pleased to welcome Jane C. Paddison, J.D., LL.M., as of counsel with the firm. Jane brings to HBC over thirty years of experience representing clients in the areas of federal and state taxation, with an emphasis in the estate, gift and generation skipping transfer tax areas. Throughout her career, Jane has represented high net worth clients in complex estate tax planning and controversy matters. Jane is a fellow of the American College of Estate and Trust Counsel and the Colorado Bar Foundation. Jane has been recognized in various publications as being a “top lawyer” in her field, including recognition in “5280 – The Denver Magazine,” Colorado Super Lawyers and Colorado Best Lawyers. Jane is also a current trustee for the Community Foundation of Boulder County.
Jonathan Boonin and Justin Konrad co-author a Practice Note for Thomson Reuters Practical Law on Confidentiality and Nondisclosure Agreements in Colorado
HBC attorneys Jonathan Boonin and Justin Konrad co-authored a Practice Note for Thomson Reuters Practical Law discussing overall protection of a company’s confidential information and the use of confidentiality agreements (also known as nondisclosure agreements or NDAs) in the context of commercial transactions under Colorado law. The Practice Note provides practical tips on developing internal systems and contract provisions designed to protect a company’s sensitive information, including its business assets and relationships, data security, and trade secrets. Read the full Practice Note here.
HBC Attorney John Clune Receives the 2019 Frank Carrington Champion of Civil Justice Award
HBC attorney John Clune received the 2019 Frank Carrington Champion of Civil Justice Award, presented by the National Crime Victim Bar Association, in recognition of his commitment to civil justice and his effort to give a voice to victims of crime.
The Frank Carrington Champion of Civil Justice Award is presented annually to honor attorneys who share Mr. Carrington’s commitment to justice for victims. John’s regular representation of and commitment to victims through Title IX litigation, civil lawsuits, campus disciplinary proceedings, and sports league and workplace investigations mirrors Mr. Carrington’s lifelong pursuit of justice. HBC applauds John for his receipt of the award and his continued efforts to support victims through some of the most difficult times in their lives.
Frank G. Carrington, often referred to as “the father of the crime victims’ rights movement in America,” was a federal law enforcement official, police legal advisor, and attorney who brought attention to the issue of victims’ rights—a neglected area of the criminal justice system—with the publication of his 1975 book The Victims. Mr. Carrington served on the Attorney General’s Task Force on Violent Crime in 1981 and the President’s Task Force on Victims of Crime in 1982, the final report of which is still used as a blueprint for the fair treatment of crime victims. Through his association with the National Center for Victims of Crime, Mr. Carrington developed a concept that would eventually become the National Crime Victim Bar Association, which provides an association of attorneys and expert witnesses dedicated to helping crime victims seek justice through the civil system.
HBC named a Tier 1 "Best Law Firm" for Colorado in five practice areas by U.S. News – Best Lawyers® in 2020
Hutchinson Black and Cook LLC has been named a Tier 1 firm in Colorado for Commercial Litigation, Corporate Law, Medical Malpractice Law - Plaintiffs, Personal Injury Litigation - Plaintiffs, and Trusts & Estates Law by U.S. News – Best Lawyers® “Best Law Firms” in 2020.
The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys, and review of additional information provided by law firms as part of the formal submission process. The full list of HBC’s ranked practice areas can be found here.
Earlier this year, HBC attorneys Jim Carpenter, David Driscoll, Maureen Eldredge, Connie Tromble Eyster, Chris Ford, Glen Gordon, Kimberly Hult, Baine Kerr, Bill Meyer, and Brad Peterson were selected for inclusion in Best Lawyers in America© 2020. For the full announcement on HBC’s Ten 2020 Best Lawyers in America, click here.
In addition, Connie Tromble Eyster was recognized as the 2020 Trusts and Estates “Lawyer of the Year” for Boulder by Best Lawyers. Click here for our original announcement of Connie’s “Lawyer of the Year” award.
John Clune and Assistant D.A. Katharina Booth to speak on Boulder's leadership role in national fight to end sexual violence at Museum of Boulder on October 9 @ 6 PM
HBC attorney John Clune and First Assistant District Attorney Katharina Booth will be featured in a conversation on Boulder’s role as a national leader in the fight to end sexual violence at the Museum of Boulder on October 9, 2019 at 6 PM. John and Katharina will share their work at the forefront of the national - and local - movement to combat sexual violence against women by prosecuting crimes and taking on high-profile cases. The discussion will focus on how John and Katharina support survivors and how the #MeToo movement has changed the conversation around sexual assault and holding perpetrators responsible. More event details can be found here.
HBC Attorney John Clune Gave Opening Keynote Address for ATIXA Conference
HBC attorney John Clune gave the opening keynote address for the Association of Title IX Administrators (“ATIXA”) 2019 East Coast Annual Conference. ATIXA is the nation’s largest organization for training and consulting of school personnel in their efforts to implement Title IX. Clune, a founding advisory board member of the organization, presented on the topic of representing complainants in Title IX matters. Read more about the keynote address and conference here.
HBC Attorneys Join the ACLU of Colorado in First Amendment Challenge
HBC attorneys Dan Williams and Colleen Koch joined with the ACLU of Colorado in filing a lawsuit challenging the constitutionality of a Greeley, Colorado ordinance banning pedestrian presence on medians, arguing that the ban is intended to target panhandlers and infringes upon citizens’ free speech rights. Greeley agreed to stop enforcing the ordinance while the lawsuit is pending. More information can be found here.
HBC retained to investigate possible Title IX violations at University of Wisconsin
HBC attorney John Clune has been retained to investigate possible Title IX violations at the University of Wisconsin following the re-admittance of wide receiver Quintez Cephus. Read more here.
HBC's Colorado Supreme Court victory makes front page news
The Daily Camera’s front page on September 3, 2019 featured HBC trial team Dan Williams, Chris Ford, Lauren Groth and Lucy Walker, who secured a precedent-setting victory at the Colorado Supreme Court for their client, Rugby International Marketing, setting forth a general rule that a subsidiary company who hasn’t signed an arbitration agreement will not be compelled to arbitrate, even when its parent company has signed such an agreement.
Read the full Daily Camera article here, and click here to read the full Supreme Court opinion. You can see HBC’s original announcement from June 18, 2019 here.
HBC attorneys settle rape claims against Australian rugby star
HBC partners John Clune and Keith Edwards settled a sexual assault lawsuit this month against former NFL football player and Australian National Rugby League star Jarryd Hayne. Hayne rose to football prominence winning the NRL player of the year in multiple years and then the international rugby player of the year in 2009 before securing a contract with the NFL. The firms’ client, identified as JV in the lawsuit, accused Hayne of forcibly raping her after a night out in a bar in San Jose, California while Hayne was employed by the San Francisco 49ers football team. JV reported the matter to the police but the Santa Clara County District Attorney chose not to file a criminal action. The terms of the settlement remain confidential but under California’s new #MeToo law prohibiting confidentiality agreements, the parties are not restrained from speaking about the case. Since the filing of HBC's lawsuit, Hayne has been accused of another sexual assault in Australia for which he is currently being prosecuted and faces up to 20 years in prison. The civil case is one of several sexual assault matters that HBC has handled against professional athletes and the second against NFL athletes in as many years. Read more about the case here.
HBC's Connie Eyster Honored as 2020 Lawyer of the Year for Boulder
HBC's Connie Tromble Eyster was selected as the 2020 "Lawyer of the Year" for Boulder by The Best Lawyers in America©. Only a single lawyer in each practice area in a community is honored each year. Connie was named for her exceptional work in Trusts and Estates. Connie was previously named Lawyer of the Year for Trusts and Estates in 2017 and 2012, and has been by Best Lawyers® since 2008.
This honor follows past HBC lawyers’ selections as "Lawyers of the Year": Jim Carpenter’s selection for Boulder for Mergers and Acquisitions in 2019, Brad Peterson's selection for Denver/Boulder for Construction Law in 2013, and Chris Ford's selection for Personal Injury Litigation-Plaintiffs in 2017.
HBC Congratulates Its Ten 2020 Best Lawyers in America
HBC is delighted to announce that ten of its lawyers were selected as Best Lawyers in America© for 2020. Here are the lawyers and the practice areas for which they were selected:
Jim Carpenter: Corporate Governance, Corporate Law, and Mergers and Acquisitions
David Driscoll: Commercial Litigation, Insurance Law, and Personal Injury Litigation - Plaintiffs
Maureen Eldredge: Corporate Law
Connie Tromble Eyster: Trusts and Estates
Chris Ford: Personal Injury Litigation - Plaintiffs
Glen Gordon: Personal Injury Litigation - Plaintiffs
Kimberly Hult: Medical Malpractice Law - Plaintiffs
Baine Kerr: Medical Malpractice Law - Plaintiffs
Bill Meyer: Commercial Litigation
Brad Peterson: Construction Law
Insurance Coverage for Construction Projects
A basic mechanism for managing risk on construction projects is insurance. Insurance policies provide two basic benefits: protection from losses arising out of covered claims; legal representation for covered claims. There are numerous kinds of insurance coverage available for a construction project. It’s worth carefully assessing your risks and matching them with the appropriate coverage.
Commercial General Liability Insurance (“CGL”). CGL coverage is a basic business liability policy. Typically, a CGL policy provides only “first party” coverage: it protects only the parties named in the policy. Third parties, such as an injured bystander, cannot submit a claim to the insurer. It is therefore important to ensure that all of the parties required by contract are included as “named insureds” or “additional insureds.” However, in doing so, the additional insureds are then made first party claimants should they be sued by a third party
Property Insurance. Property insurance provides protection against most risks to property, such as fire, theft and possibly weather damage. Special forms of property insurance include flood insurance, earthquake insurance, home insurance, and boiler insurance.
Builder’s Risk Insurance. Standard property insurance policies do not cover losses to new improvements to the property. Builder’s risk insurance provides coverage to new improvements for damage to the work during construction, including installed materials and equipment as well as permanent structures. Typical exclusions from builder’s risk policies are land, existing structures, tools and machinery not part of the new permanent structure, contractual liabilities and faulty workmanship. Builder’s risk insurance does not provide liability coverage in the case of loss to another party. Both the owner and the general contractor are typically named insureds under a builder’s risk policy. Subcontractors are sometimes also named insureds.
Professional Liability Insurance. Professional liability insurance provides malpractice coverage to construction designers such as architects and engineers for defects or deficiencies in the design aspects of the project, and for any deficiencies in the project administration responsibilities undertaken by the design professional. To the extent that a construction manager or the general contractor has a licensed designer on its staff, or if they have design responsibilities, the GC or CM should have an additional design insurance policy.
Excess/Umbrella Insurance. Additional coverage for construction parties is readily available in the form of “excess” or “umbrella” policies. It is a good practice for construction contractors to procure liability insurance in addition to their CGL coverage in the form of excess insurance policies. The additional coverage is implicated only when the underlying insurance is exhausted. It is important to give prompt notice to both insurers if a claim arises. This is so even if the two policies are issued by the same insurer as the insurer typically assigns two adjusters to the claim, one for each policy.
Other Policies. Besides the policies described above, there are also other policies typical on construction projects including worker’s compensation, automobile/vehicles, directors and officers, so called “wrap” policies (essentially insuring all parties to the project), and products completed operations hazard policies.
For more information on insurance coverage for construction projects, contact Ken Robinson or another member of our Construction Law & Litigation team.
Flood Water Drainage Rights Between Adjacent Landowners
by Ken Robinson
Everyone knows that water flows downhill, but what are the legal ramifications when the flow is obstructed and property damage results? During flooding, conditions that historically allowed water to pass serenely from one property to another can be overwhelmed. Previously harmless objects in the drainage path become obstacles, and water reroutes without benefit of hydraulic design. Who is responsible for resulting damage and under what circumstances? The law governing the rights and obligations of the landowners is well-developed, but the wide range of property configurations and varying drainage patterns can still make assessment of the legal relationships challenging.
Such questions often arise after unprecedented flooding, such as occurred in 2013 in and around Boulder and the Front Range of Colorado. That event demonstrated that we still have a lot to learn about flood risks and how to manage them. The relevant law can provide guidance as there are well-established legal rights that attend the flow and drainage of water over adjacent properties.
Common Law Drainage Easements
The right to have water drain from one property onto another is in the nature of an easement. In traditional legal terms, an easement is a form of “servitude” which is defined as “[a] charge or a burden resting upon one estate for the benefit or advantage of another” (Black’s Law Dictionary). The benefitted property is known as the dominant estate, while the burdened property is known as the servient estate. Thus a drainage easement benefits the adjacent upstream property, the dominant estate, and burdens the adjacent downstream property, the servient estate. In some instances, though technically not an easement, the downstream property may have a right to require that the drainage from the upstream property be regulated such that the downstream flow will not be destructive.
Drainage easements can be established in several ways: (1) by an instrument of conveyance such as an easement deed; (2) by a dedication in a subdivision plat or an engineered drainage plan associated with a subdivision; or (3) by common law, that is by appellate court rulings. It is the latter two types of drainage easements that give rise to most disputes.
Colorado law recognizes the right of the owner of an up-gradient property to have surface water drain onto an immediately adjacent, down-gradient property by way of a “natural easement for drainage.” When natural and historic drainage conditions are modified or disturbed by construction or development, the law becomes more complex. Generally, the owner of a down-gradient (servient estate) property is allowed to modify the drainage pattern on that property provided that the modifications do not adversely impact the drainage over the up-gradient (dominant estate) property.
The Colorado Court of Appeals summarized the common law of drainage easements as follows:
Colorado has always followed the ‘civil law rule,’ which provides that the owner of upstream property possesses a natural easement on land downstream for drainage of water flowing in its natural course. Also, “(n)atural drainage conditions may be altered . . . provided that water is not sent down in manner or quantity to do more harm than formerly.” Neither the fact that the land concerned is urban rather than rural, nor the fact that the elevation on both properties has been lowered without materially altering the natural drainage flow, affords a rational basis for creating exceptions to the general rule. Colorado cases on water drainage have drawn no such distinctions. (emphasis added)
Calvaresi v. Brannan Sand & Gravel Company, 534 P. 2d 652, 654-55 (Colo. App. 1975). Note that, in Calvaresi, the Court of Appeals in the highlighted text indicated that drainage patterns can create drainage easements through the result of “urbanization,” that is the construction of improvements that alter the flow of water over servient estates.
Prescriptive Drainage Easement
The common law of access easements also provides for the creation of an easement by way of uncontested use over the alleged servient estate for a prescribed period of time. Hankins v. Borland, 163 Colo. 575, 431 P.2d 1007 (1967) (holding that a drainage easement can be created by prescription, with a prescriptive period of 18 years). Accord, Stoll v. MacPherson Duck Club, Ltd., 607 P.2d 1019, 1022 (Colo. App. 1979).
Repair and Maintenance of Drainage Easement
Though the primary purpose of a drainage easement is to allow water to flow over the dominant estate, there is an attendant, but limited, right of access over the servient estate in order to maintain drainage area such that entry onto the servient estate is not trespass. In Shrull v. Rapasardi, 517 P.2d 860, 862 (Colo. App. 1973), plaintiffs brought an action for trespass when the defendants entered plaintiff’s property to reopen a ditch. The trial court held that the defendants were acting lawfully in repairing the ditch. The Court of Appeals in Shrull affirmed the trial court’s judgment, stating:
If the owner of the dominant estate does not unnecessarily inconvenience the owner of the servient estate and use of the easement is not expanded, the owner of the dominant estate may do whatever is reasonably necessary for the enjoyment of the easement, including repairs, ingress and egress, with space therefor as exigency may show.
Accord, Stoll v. MacPherson Duck Club, Ltd., 607 P.2d 1019, 1022 (Colo. App. 1979).
Liability for Impairment of Drainage Flow
If the owner of a down-gradient property subject to a drainage easement alters the drainage pattern for water flowing from the upstream, servient estate, and those changes substantially alter the flow so as to cause the water to back up onto the dominant estate, the owner of the servient estate may be liable for damages. It is important to note that a physical alteration to a drainage area may not cause water to back up except during flood conditions, and thus the impairment may go unnoticed for years. Nevertheless, the servient estate owner may be liable though the flooding may take place long after the alteration. Also, it is useful to note that, in Colorado, the governmental immunity statute, C.R.S. §§ 24-10-101, et seq., does not apply to drainage easement disputes. Upper Platte and Beaver Canal Co. v. Riverview Commons General Improvement Dist., 250 P.3d 711, 714-15 (Colo. App. 2010). Thus, even if the downstream drainage blockage is created by a governmental entity, it could still be required to remove the blockage and even found liable for damages.
Upstream property owners have standing – that is, the right to file suit – to seek recovery of damages for the injury resulting from flood waters backed up by blockage of the downstream drainage. In Romano v. Village of Glenview, 660 N.E.2d 56 (Ill. App. 1995), homeowners brought an action against the developer of a residential subdivision for injunctive and declarative relief seeking to have the developer replace drainage channels on their properties with underground drainage systems or, in the alternative, to require that the natural flow of surface water be restored so as not to flood the plaintiffs’ land. In Romano, the city intervened, filing a motion to dismiss—based on governmental immunity and lack of standing—and contending that the plaintiffs had not alleged injury in fact. The trial court granted the motion. The Illinois Court of Appeals reversed, holding that the plaintiffs had alleged injury-in-fact that the drainage channels created unreasonably dangerous conditions for their children, deprived them of the use and enjoyment of their yards, and created soil erosion in their yards.
For more information on flood water drainage rights, contact Ken Robinson or another member of our Drainage Disputes or Real Estate Law teams.
HBC trial team secured a precedent-setting victory at the Colorado Supreme Court
HBC trial team Dan Williams, Chris Ford, Lauren Groth and Lucy Walker secured a precedent-setting victory at the Colorado Supreme Court for their client concerning the circumstances under which someone who hasn’t signed an arbitration agreement can still be compelled to arbitrate. Read the full opinion here.
John Clune quoted in the Boston Globe on the use of pseudonyms for students in Title IX lawsuits
HBC attorney John Clune was quoted in the Boston Globe on the use of pseudonyms for students in Title IX lawsuits. Read the full article here.
Warning for Immigrants About Using Medical and Legalized Marijuana
The Immigrant Legal Resource Center guide below discusses the problem surrounding marijuana use by a non-citizen, even in a state where use is legal, like Colorado. Any marijuana use can have serious consequences for immigration and naturalization. For more information or guidance, please reach out to one of our immigration law attorneys.