2013 COA 128
Colo. Ct. App.2013Background
- Darrell Einspahr, manager in Quality Mitsubishi’s special-finance dept., engaged in "power booking"—inflating vehicle values on sale paperwork to induce Premier Members FCU to approve high‑risk auto loans.
- Premier sued Einspahr, Quality, and another employee for fraud; Quality and Premier later settled and Quality’s cross‑claims against Einspahr were dismissed.
- Quality initially demanded a jury and paid the jury fee; Einspahr (first represented, later pro se) timely filed jury demands but did not timely pay the jury fee.
- At final pretrial, Quality withdrew its jury demand; Einspahr moved to pay the jury fee late, blaming counsel negligence and seeking relief; the trial court denied the request and proceeded to a bench trial.
- The trial court found Einspahr liable for fraud and dismissed his cross‑claim for indemnification against Quality; Einspahr appealed denial of a jury trial and dismissal of his indemnity claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether C.R.C.P. 6(b) permits enlargement of the statutory jury‑fee deadline for excusable neglect | Premier: statutory deadline controls; no excusable‑neglect exception | Einspahr: Rule 6(b) allows court discretion to accept late jury fee upon excusable neglect | Court: Rule 6(b) does not apply to statutorily prescribed jury‑fee deadline (§ 13‑71‑144(1)(c)); waiver stands and bench trial proper |
| Whether failure to timely pay jury fee can be cured by other parties’ later written authorization | Premier: statute and rules supply no mechanism to cure nonpayment by authorization | Einspahr: other parties could authorize reinstatement / fee acceptance out of time | Held that neither the rules nor statute provide for reinstatement by other parties; nonpayment waived the jury right |
| Whether an employee who acted tortiously (fraudulently and knowingly) can obtain common‑law indemnity from a vicariously liable employer | Premier: public policy and Restatement limit indemnity where agent knowingly commits wrongful acts | Einspahr: employer authorized the conduct; Restatement and Colorado precedent permit indemnity when employer authorized acts | Court: an agent who knowingly commits wrongful/illegal acts is not an "innocent agent" and cannot seek indemnity from a vicariously liable principal |
| Whether UCATA or joint‑tortfeasor doctrine bars indemnity when employer is vicariously liable but not independently negligent | Premier: UCATA limits indemnity among joint tortfeasors; exception exists for vicarious‑only liability | Einspahr: Serna supports indemnity where employer is vicariously liable but not at fault | Court: even assuming vicarious liability only, indemnity is barred because Einspahr knowingly committed the wrongful acts; judgment dismissing indemnity claim affirmed |
Key Cases Cited
- State Farm Fire & Cas. Co. v. Weiss, 194 P.3d 1063 (Colo. App. 2008) (abuse‑of‑discretion standard for denial of time enlargements under C.R.C.P. 6(b))
- Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007) (C.R.C.P. 6(b) does not apply to statutorily established time periods)
- Brochner v. Western Insurance Co., 724 P.2d 1298 (Colo. 1986) (abolishing common‑law indemnity between joint tortfeasors after UCATA adoption)
- Serna v. Kingston Enterprises, 72 P.3d 376 (Colo. App. 2002) (distinguishing joint‑tortfeasor bar where employer’s liability is solely vicarious)
- Frick v. Abell, 602 P.2d 852 (Colo. 1979) (employer must indemnify servant if employer participated in, authorized, or failed in selection/care of servant)
- Equitex, Inc. v. Ungar, 60 P.3d 746 (Colo. App. 2002) (public policy bars indemnifying intentional/willful wrongful acts)
- Johnson Realty v. Bender, 89 P.3d 1215 (Colo. App. 2001) (common‑law duty to indemnify arises from agency principles)