Mark A. Simon - Past Case Summaries

Lazar v. Riggs, 79 P.3d 106, (Colo. 2003)

Colorado Supreme Court

Mr. Simon has practiced personal injury law in the highest State Court possible, the Colorado Supreme Court. Not only did Mr. Simon practice and win at the Colorado Supreme Court level, he also set extremely important precedent in the scope of disclosure requirements for insurance companies. Mr. Simon completed these achievements not for personal recognition, but because they were the only way to ensure that his client, Ms. Judy Lazar, received the compensation that she deserved.

Ms. Lazar’s injury resulted from an automobile accident caused by Patrick Riggs, for failure to exercise reasonable care. Mr. Riggs was further cited at the accident for driving under the influence of alcohol, driving with excessive alcohol content, and careless driving.

After Ms. Lazar brought suit nine months later, Mr. Riggs admitted during his discovery the existence of a recorded statement in the possession of his insurance company. However, Mr. Riggs objected and refused to produce the document through a claim of protection of the document as work produced in anticipation of litigation. Without specified reasoning, hearings, or findings of fact, the District Court denied Mr. Simon’s motion to obtain the document and held that the written statement was in anticipation of litigation (even though it was taken roughly nine months before the suit commenced). 

Mr. Simon, concerned with the injustice of the district court decision and current controlling law, petitioned for a review of the district court’s interlocutory decision to refuse to compel the disclosure of the statement. The Supreme Court of Colorado (the Court) granted review.

The Court reviewed the standards of Rule 26 which differentiates materials prepared in anticipation for litigation, which are not required to be disclosed, from materials prepared in the course of ordinary business, which must be disclosed. The Court further explained that a substantial part of an insurance companies business is to investigate accidents, it is presumed that the investigations are done in the course of ordinary business, and not in anticipation for litigation. Therefore, the Court opined that insurance companies hold the burden of demonstrating that the document was prepared to defend the specific claim which has already arisen.

After a discussion of other relevant legal standards of insurance companies, such as their duty to investigate and defend claims under their own policy and the potential to third party claims, the Court decided Ms. Lazar’s case. The Court concluded that the statement taken by the insurance company was taken well before the lawsuit initiated, so it was not possible that it had been produced in anticipation for litigation. The Court remanded the case to district court with instructions to disclose Mr. Riggs statement.

This case is a clear illustration of the experience and will of Mr. Simon to serve his clients. The District Court ruling in Ms. Lazar’s situation was unjust, so Mr. Simon took the problem to court with a power great enough to change the unjust ruling.    
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Ortega v. Indust. Claim Appeals Office, 207 P.3d 895, (Colo. App. 2009)

Court of Appeals of Colorado

Mr. Simon is always willing to go the extra mile to fight for the rights and compensation his clients deserve. This tenacity was on display when Mr. Robert Ortega hired Mr. Simon. 

At an administrative hearing before an administrative law judge (ALJ), Mr. Simon moved for a continuance so that an essential physician report that obtained a week before the hearing could be timely entered. The administrative law judge, strictly and unnecessarily, denied Mr. Simon’s continuance on the ground that C.R.S. 8-43-210 required reports to be submitted twenty days before the administrative hearing to be timely. The ALJ then went on to deny the entrance of the physician report at the hearing, and ultimately denied benefits for Mr. Ortega.

Mr. Simon appealed the decision to the Industrial Claim Appeals Office (the Panel) to explain that the physician report was not in his possession before the deadline, and so could not have been admitted. Further, Mr. Simon asserted that the ALJ abused its power in denying the continuance and violated Mr. Ortega’s due process rights by excluding the physician report. The Panel affirmed the decision of the ALJ.

Unfazed, Mr. Simon appealed the decision of the Panel to the Court of Appeals of Colorado. The Court of Appeals found that the ALJ’s strict interpretation of the twenty day rule was unwarranted. However, the Court of Appeals ruling that the ALJ’s denials of the continuance and physician report were not abuses of discretion, and the denial of Mr. Ortega’s benefits were upheld. Incredibly, even though a vital piece of evidence was denied entry into the administrative hearing and its denial was ruled by the Court of Appeals as unwarranted, the Court of Appeals found that the ALJ’s decision did not violate Mr. Ortega’s due process rights.

Though the case did not turn in the client’s favor, Mr. Simon took every step within his reach to fight for Mr. Ortega’s worker compensation benefits. Due to the determination to continue to appeal the unfair decisions directed to Mr. Ortega, Mr. Simon set a new standard for a more relaxed twenty day admission rule, which continues to benefit workers compensation beneficiaries today.
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Rieger v. Wat Buddhawararam, 338 P.3d 404, (Colo. App. 2013).

Court of Appeals of Colorado

On July 26, 2010, Martin Rieger volunteered to assist his friend and neighbor, Chris Margotta, trim a large tree on the Buddhawararam Temple’s property at no cost. Mr. Margotta, whose wife was a member of the temple, served as team leader and organizer for the event, though a group of monks observed and offered suggestions on which branches to cut. 
 
Late in the day, Mr. Rieger held a ladder for Mr. Margotta while he cut branches from the tree. As Mr. Margotta cut a branch it suddenly crashed onto the top of Mr. Rieger, which caused him serious injury, including a fractured femur.
Seeking relief for his substantial medical bills, as well as compensation for his significant pain and suffering caused by the falling tree branch, Mr. Rieger enlisted the services of attorney Mark A. Simon, Esq. After Mr. Simon was employed, Mr. Rieger witnessed the grit and determination that Mr. Simon employs to help every client receive the compensation that they deserve.

Mr. Simon quickly filed suit against the Temple for vicarious liability, which subsequently designated Mr. Margotta as a nonparty at fault. This was particularly problematic, as volunteers are immune to liability per Colorado law. However, Mr. Simon was undeterred, and maintained that the Temple remain responsible for the expenses incurred by Mr. Rieger.

Ultimately the district court granted a motion for summary judgment submitted by the Temple, refusing to extend the sound and innovative legal logic employed by Mr. Simon. First, the court, over Mr. Simon’s objections, refused to classify Mr. Rieger as an “invitee,” because Colorado law generally classified volunteers as “licensees,” even though in this case Mr. Rieger’s activity more closely resembled that of an “invitee.” The problem with this conclusion is the Colorado Property Liability Act, which constitutes the sole remedy against landowners, makes the standard for recovery much higher, almost to a point of non-recovery, for “licensees” versus “invitees.” Mr. Simon’s second and third arguments, both related to the Temple’s involvement in the supervision and direction of Mr. Margotta’s supervision and the volunteers directly, were dismissed.

Undeterred, Mr. Simon refused to accept the district court’s determination that his client was left without a remedy. Mr. Simon filed an appeal to the Colorado court system to pursue a just end to his client’s claim. The Appellate Court ultimately determined, through extensive analysis, that Mr. Rieger was a volunteer and licensee. Therefore, it denied relief for Mr. Rieger and upheld the district court’s determination.

Mr. Simon’s second and third arguments, that the Temple could be held variously liable for the Mr. Margotta’s negligence, were also denied. However, the Appellate Court did find error in the reasoning of the district court for its decisions, because the case it relied upon was not applicable to Mr. Rieger’s specific situation. Though Mr. Simon was unsuccessful in this argument, his hard work and determination to file an appeal paved the way for new, more clear, jurisprudence in Colorado regarding the Colorado Property Liability Act which is still relied upon today.

Though the Appellate Court ultimately upheld the determination of the district court, the decision was not for a lack of effort on the part of Mr. Simon. He took it upon himself to exhaust every possibility to find the relief his client deserved, but was ultimately denied because the Appellate Court chose to leave an injured party without a remedy.
 
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Ernie Baylog, Inc. v. Indust. Claim Appeals Office, 923 P.2d 361 (Colo. App. 1996)

Court of Appeals of Colorado

Mr. Simon has practice workers compensation cases for over 25 years. He has built his wealth of knowledge about workers compensation through a multitude of cases. Though each case is unique in its facts and circumstances, each tend to demonstrate one particular idea about Mr. Simon, he is willing to adapt whichever legal strategy is most likely to produce the best result for the client. This was especially true when Ms. Sally Olney hired Mr. Simon. 

Ms. Olney was injured in her capacity as a truck driver for Ernie Baylog, Inc (Baylog). Baylog chose to pay its drivers an eight cents per mile salary, as well as a four cent per mile per for expenses incurred while driving, like meals, showers, and hotels. Pursuant to instructions from the Internal Revenue Service, the Baylog only deducted taxes from the salary amount and treated the expense payments as reimbursements which were not taxed.

At an administrative hearing, Mr. Simon argued that both the salary and expense accounts should be incorporated into Ms. Olney lost benefits calculation to increase her average weekly wage. The administrative law judge (ALJ) excluded the expense amount from the weekly wages, and instead only used the eight cents per mile salary in the calculation.

Mr. Simon appealed the decision to the Industrial Claim Appeals Office (the Panel) to get the average weekly wage that Ms. Olney deserved. On appeal, the Panel agreed with Mr. Simon that the four cent per mile payment more closely resembled compensation, and therefore should be included in Ms. Olney’s average weekly wage.
Unfortunately, Baylog appealed the decision of the Panel to the Court of Appeals of Colorado. At this point, in order to continue to further the interests of Ms. Olney, Mr. Simon joined the Panel in the defense of their decision to include the four cent per mile payment in average weekly wages.

The ultimate outcome of the Court of Appeals was to exclude the four cent per mile reimbursement from average monthly wages. The Court of Appeals found reasoning for its decision in the definition of “per diem” from several sources, legislative intent and committee hearing reports from the per diem provisions of the relevant C.R.S, and testimony about the use of the funds as reimbursement in its decision.

In law, a win in every case is something that no lawyer can promise. However, Mr. Simon, as demonstrated by his involvement and commitment to Ms. Olney, always puts the interests of his clients before all else. 
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