Appendix — Tyler v. Hartford Insurance Group

Supreme Court brief1982

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APPENDIX A

COLORADO COURT OF APPEALS

No. 81C A0157

DONALD E. TYLER,

NOT

Plaintiff- Appellant, N

SELECTED

Ve

— —— ee ee —

FOR

THE HARTFORD INSURANCE)

) PUBLIC ATION

GROUP, FRANCIS FRY, and )

)

ROBERT S, BRITTAIN, )

Defendants- Appellees,

Appeal from the District Court of Jefferson

County

Honorable Anthony F. Vollack, Judge

DIVISION U

Opinion by JUDGE KELLY

Van Cise and Tursi, JJ, concur

JUDGMENT AND ORDERS AFFIRMED

A-l

ye

heel

Donald E. Tyler, Pro se

Pryor, Carney and Johnson, P. C.

Peter Pryor

Thomas L. Roberts

Englewood, Colorado

Attorneys for Defendants-Appellees

Opinion filed and judgment entered on the Zlst

of December 1981,Clerk of the Court,

Mac Danford.

Plaintiff Dr. Donald Tyler, sued defendants,

The Hartford Insurance Group (Hartford),

Francis Fry, and Dr. Robert Brittain, for

libel, slander, outrageous conduct, civil

conspiracy, and violation of 42 U. S. C. 61983,

In December, 1977, the trial court dismissed

the conspiracy and civil rights claims, and in

January 1981, the trial court granted

summary judgment in favor of defendants on

the libel, slander, and outrageous conduct

A-2

An.

claims. Plaintiff appeals these trial court

rulings and assigns error to other rulings

denying discovery. We affirm.

On July 3, 1974, Donald Gaylor wrote a

letter to Dr. Galen Marks, the chief of staff

of Brighton Community Ho spital (BCH). In

the letter, Gaylor described an incident in

which he had brought his aunt into the

emergency room at BCH and the emergency

room physician, Tyler, had refused to treat

her. On the same day, Gaylor sent an

identical letter to Dale Alter, chairman of

the board of directors at BCH, The Risk

Management Committee at BCH discussed the

letter and asked Tyler to produce various

medical records for review by the committee.

Tyler refused several requests to produce

the records and was subsequently removed

from emergency room duty. Tyler's

A-3

malpractice insurance carrier, Hartford,

also requested a review of Tyler's records,

and when he refused to provide them, his

malpractice insurance was not renewed,

Tyler sued Gaylor, Marks, and various

BCH officials for libel, conspiracy and

denial of constitutional rights, In Tyler x.

Gaylor (Colo. App. No. 77-894, June 14, 1980)

(Not selected for official publication), we held

that the letter from Gaylor to Alter was

nondefamatory and nonactionable as a matter

of law. A jury verdict in favor of defendants

Gaylor and Alter on the conspiracy claims

was affirmed,

I, Libel and Slander

It is uncontroverted that Fry, a medical

malpractice claims examiner working for

Hartford, showed the Gaylor-Marks letter

and other documents associated with pending

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Tyler litigation to Brittain, who was then the

chairman of the Professional Liability

Committee of the Colorado Medical Society.

Fry's duties as a Hartford employee included

review of lawsuits against doctors insured by

Hartford. Brittain's responsibilities included

review of hospital records and education of

doctors to prevent malpractice claims.

Tyler asserts that Fry's publication to

Brittain of the Gaylor-Marks letter

constituted libel, and their subsequent

discussion of the letter and other documents

constituted slander, The trial court noted

that the Gaylor-Marks letter, which is the

subject of this litigation, is identical to the

Gaylor-Alter letter, which was the subject of

Tyler, v. Gaylor, supra, except for the

difference in the addressee and the lack of

signature on the Alter letter, The trial court

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held that collateral estoppel prevented

relitigation of the issue whether the Gaylor-

Marks letter was defamatory. We agree,

All of the criteria for the application of

the doctrine of collateral estoppel announced

in Pomeroy v, Waitkus, 183 Colo. 344, 517

P. 2d 396 (1973) are present here. First, the

issue decided in the prior adjudication is

identical with the one presented in the action

in question. Second, there has been a final

judgment on the merits in the first case, In

Tyler v, Gaylor, the Colorado Supreme

Court denied Tyler's petition for certiorari

on October 9, 1979. Third, the party against

whom the plea is asserted, Tyler, was a

party to the prior adjudication. It is

irrelevant that the defendants were not

parties to the prior action. Murphy v.

Northern Colorado Grain Co., 30 Colo. App.

A-6

ps!

21, 488 P. 2d 103 (1971), And fourth, the

party against whom the plea is asserted has

had a full and fair opportunity to litigate the

issue in the prior adjudication. Tyler had

both the incentive aud the opportunity to litigate

the question fully: He presented evidence to

the jury on the defamation issue and appealed

the jury verdict.

Consequently, collateral estoppel applies

to preclude Tyler from asserting that the

Gaylor-Marks letter is defamatory. Since

the defendants could not be guilty of libeling

or slandering plaintiff by publishing a

nondefamatory statement, Tyler's first and

second claims must fail.

Tyler asserts that his complaint included

the allegation that documents other than the

Gaylor-Marks letter were published to

Brittain. However, the Gaylor-Marks letter

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“|= =

is stressed in Tyler's complaint, and the

only other documents mentioned by Tyler are

his own pleadings and requests for admissions

in the prior cases. Such documents,

authored by Tyler himself, cannot be the

basis of a defamation claim. See Restatement

(Second) of Torts § 558,

II. Outrageous Conduct

Tyler asserts that Fry's Nabe to

Brittain of the subject documents constituted

outrageous conduct, which caused him severe

emotional distress. However, there is

liability for outrageous conduct "only where

the conduct has been so outrageous in

character, and so extreme in degree, as to

go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly

intolerable in a civilized community. Rugg

v. McCarty, 173 Colo, 170, 476 P. 2d 753

A-8

(1970), citing Restatement (Second) of Torts

3460). Comment d (1965).

"It is for the court to determine, in the

first instance, whether the defendant's

conduct rnay reasonably be regarded as so

extreme and outrageous as to permit recovery.

«ee Blackwell , Del Bosco, 35 Colo. App.

399, 536 P. 2d 838 (1975), aff'd , 191 Colo. 344,

558 P. 2d 563 (1976). We agree with the trial

court's determination that the Gaylor-Marks

letter, which does not contain profane or

insulting language, cannot be considered

outrageous under the Rugg standard. See

Meiter v, Cavanaugh, 40 Colo. App. 454

580 P. 2d 399 (1978).

III. Anticipatory Breach and Conspiracy

In his third claim for relief, Tyler

attempted to allege numerous causes of action

arising out of an anticipatory breach

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of his insurance contract with Hartford,

conspiracy to breach that contract, and

conspiracy to interfere with his practice of

medicine. Although Hartford warned Tyler that

it would not renew his malpractice insurance if

he failed to cooperated with the Risk

Management Committee, that action was not an

anticipatory breach of contract, Under

§ 10-4-109, C. R. S. 1973 (1980 Cum. Supp.),

an insurer is required to provide to the insured

sixty days' advance notice of its intention not

to renew.

Moreover, failure to renew a contract does

not constitute a breach when there is no provi-

sion in the contract for automatic renewal,

Hartford did not cancel Tyler's contract, but

merely failed to renew it when Tyler refused

to cooperate with its investigation. While

§ 10-4-109, C. R. S. 1973 (1980 Cum. Supp.)

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—_—_

prescribes the manner in which a medical

malpractice insurer must effect a nonrenewal,

the statute does not require renewal. Since

there was no breach of the insurance contract,

the trial court correctly dismissed Tyler's

claim of conspiracy to breach the contract.

In an action for civil conspiracy, the

plaintiff must establish that two or more

persons, with an object to be accomplished,

came to a meeting of the minds concerning

that object, and performed one or more

unlawful acts which resulted in damages,

Lockwood Grader Corp. v. Bockhaus, 129

Colo. 339, 270 P. 2d 193 (1954). Tyler asserts

that defendants conspired to interfere with

his practice of medicine by intimidating him

to betray the confidences of his patients and

by depriving him of his medical malpractice

insurance coverage. However, the

A-ll

investigation conducted by the Risk Management

Committee was sanctioned by § 12-43, 5-101,

C. R. S. 1973, which provides for committees

of physicians to review the conduct of practice

by other doctors in order to encourage

discipline and control of the practice of

health care, Hartford's investigation into

Tyler's practice, and its subsequent nonrenewal

based on Tyler's failure to cooperate, were

not unlawful acts that could be the basis for

civil conspiracy,

IV. 42 U.S.C, 8 1983

Tyler alleged that defendants, acting under

color of state law, conspired to deprive him

of rights protected by the Fourteenth

Amendment. He theorized that the defendants

acted under color of state law because they

acted pursuant to municipal ordinances of

Brighton and § 10-4-109, C,R.S, 1973 (1980

A- 12

Cum, Supp.), the insurance nonrenewal

statute, and as members of the Colorado

Medical Society.

The following elements are required to

maintain a conspiracy claim under 42 U.S.C,

$1983: The defendants must have conspired

together, acted under color of state law,

deprived the plaintiff of a federal right, and

committed overt acts pursuant to the

conspiracy which caused damage to the

plaintiff. Espinoza x. O'Dell, Colo.

633 P. 2d 455 (1981).

Tyler had no federal or constitutional

right to have his malpractice insurance

renewed, No Colorado law requires a

physician to maintain professional liability

insurance coverage as a condition precedent

to practicing medicine in this state. Moreover,

simply following local ordinances and state

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laws does not constitute state action for

purposes of 42 U. S. C. 8 1983 unless a state

statute compels a private party to actina

certain way. Since the state did not mandate

or otherwise compel defendants to consider

nonrenewal of Tyler's policy, there is no

basis for concluding that defendants acted

under color of state law.

V. Discovery .

Tyler cites Miller v, First National Bank,

156 Colo, 358, 399 P. 2d 99 (1965), for the

proposition that the trial court improperly

denied his discovery motions. In Miller,

summary judgment was reversed because

the trial court had abused its discretion in

refusing to grant Miller a continuance to

permit discovery. However, Miller had no

opportunity to conduct discovery, Tyler had

nearly three years to conduct discovery but

failed to exercise the opportunity in any

14

.

om

meaningful way until after defendants had

filed a second motion to dismiss for lack of

prosecution, Under these circumstances,

the trial court's stay of discovery until after

its consideration of the motion for summary

judgment was not an abuse of discretion,

We have examined Tyler's other

contentions of error and find them to be

without merit.

The trial court's judgment and orders

are affirmed in all respects.

JUDGE VAN CISE and JUDGE TURSI

concur.

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IN THE COURT OF APPEALS OF THE

STATE OF COLORADO

Case Number 8IC A015 7

DONALD E, TYLER, )

Plaintiff- Appellant,

.

‘ ) ORDER

THE HARTFORD INSURANCE)

GROUP, FRANCIS FRY, and

ROBERT BRITTAIN,

Defendant - Appellees.

Upon consideration of the Petition for

Rehearing filed by the appellant herein, said

petition is hereby Denied. Unless otherwise

ordered, mandate will issue Feb 4, 1982.

BY THE COURT,

Dated: Jan. 28, 1982

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IN THE SUPREME COURT OF THE

STATE OF COLORADO

No. 82 SC 80 January Term, 1982

DONALD E, TYLER, )

| ) Certiorari to

Petitioner, )

) the Colorado

vs. )

) Court of Appeals

THE HARTFORD INSURANCE)

No. SC A0157

GROUP, FRANCIS FRY, and )

)

ROBERT S. BRITTAIN, )

)

Respondents, )

ON PETITION FOR WRIT OF CERTIORARI

to the Court of Appeals.

After review of the record, the briefs and

the opinion of the Court of Appeals,

IT IS ORDERED by this court that said

petition be, and the same hereby is, denied,

MARCH 29, 1982 By the Supreme Court

Sitting En Banc

(Court Seal)

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9 *

—

7

IN THE DISTRICT COURT IN AND FOR THE

COUNTY OF JEFFERSON

STATE OF COLORADO

Civil Action No. 77CV0782, Div. 4

Donald E. Tyler,

PLAINTIFF,

vs. COMPLAINT

The Hartford Insurance Group,

Francis Fry, Robert 8. Brittain,

eee eee — — —-—

DEFENDANTS

Plaintiff complains of defendants The

Hartford Insurance Croup, Francis Fry, and

Robert 8. Brittain and each of them and for

caise of action alleges:

FIRST CLAIM FOR RELIEF

1. At all times mentioned herein, the plaintiff

Donald E, Tyler was licensed to practice

medicine and surgery in Colorado and was

Admitted to the Bar of the State of Colorado.

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2. At all times mentioned herein defendant

Francis Fry was an employee and agent of

defendant The Hartford Insurance Group and P

was acting in that capacity for Hartford

Insurance Group and within the scope of his

employment.

3. At all times mentioned herein Robert 8.

Brittain was and is a resident of Jefferson

County.

4. On or about June 15, 1976, in Denver,

Colorado, in offices of defendant Hartford

Insurance Group, defendant Fry did publish

various writings to defendant Robert 8.

Brittain including but not limited to a letter

addressed to Galen Marks which is annexed

hereto and labeled EXHIBIT A and is included

by reference as a part of this paragraph, and

other letters making the same state ments.

5. Aforementioned writings on the face

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imputed aad stated and meant without any

exlanation by innuendo that the plaintiff

acted and spoke unprofessionally in conduct of

his practice of medicine and surgery, and were

libelous per se.

6. Furthermore, by innuendo the aforementioned

writings meant to persons reading them

including Robert 8. Brittain that the plaintiff

acted improperly in conduct of his practice

of medicine and surgery, and were defamatory

and libelous.

7, Aforementioned writings, and by innuendo,

are and were false,

8. Aforementioned publications were made by

defendants Fry and Hartford Insurance Group

and each of them to lower the reputation of the

plaintiff, to humiliate and subject him to

ridicule, and in other ways damage him,

9, Aforementioned publications were made

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with a knowledge of their falsity and in

reckless disregard of whether they were true

or not.

10. Aforementioned publications were made

negligently.

ll, Aforementioned publications were made

maliciously, willfully, wantonly, and in

reckless disregard for the rights and feelings

of the plaintiff.

SECOND CLAIM FOR RELIEF

12. Paragraphs | through Il are incorporated

herein by this reference.

13. Defendant Brittain republished

aforementioned written statements by way of

oral communications to various persons known

to defendants and unknown to plaintiff

including but not limited to Wilfred Stedman,

Herbert Rothenberg, James Henderson, and

Carl H. McLauthlin,

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14, Defendants F ry and Hartford are

responsible with Brittain for aforementioned

republication,

15, The time and place of such communications

are known to defendants; to knowledge and

belief of plaintiff they occurred in 1976 and

1977, since June 15, 1976, and in various

places in Colorado including Arapahoe County.

16, Aforementioned publications were

defamatory, and imputed improper conduct

and conduct hazardous to the public and others

by Donald E. Tyler and in his practice of

medicine and surgery.

17. Aforementioned publications were

understood by the persons hearing them

aforementioned as stating that the plaintiff

conducted his practice of medicine and

surgery improperly and unprodfessionally.

18. Aforementioned publications were and

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are false.

19. Aforementioned publications were made

to lower the reputation of the plaintiff, to

humiliate and subject him to ridicule and in

othe: ways damage him,

20. Aforementioned publications were made

negligently, maliciously, willfully, and

wantonly and in reckless disregard for the

rights and feelings of the plaintiff.

21. Aforementioned publications were made

with knowledge of their falsity and in reckless

disregard of whether they were true or not,

THIRD CLAIM FOR RELIEF

22. Paragraphs | through 21 are incorporated

herein by this reference.

23. By way of the foregoing and in other ways

herein described the defendants and each of

them have conspired and continue to conspire

with each other and with other persons

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including but not limited to Galen Marks,

Robert Larsen, Wilfred Stedman, Herbert

Rothenberg, James Henderson, Carl Me Lauthlin,

Orrel Daniel, John Vowell, Brighton

Community Hospital Association, to unlawfully

and wrongfully interfere with and obstruct

the lawful practice of medicine and surgery

by the plaintiff which is continuing, and to

monopolize and control the practice of

medicine and surgery in an area including

Brighton and Fort Lupton, Colorado, and to

wrongfully and unlawfully eliminate competition,

to the detriment of the plaintiff, and the

defendants and each of them have committed and

continue to commit various acts hereinafter

described and listed which have resulted and

continue to result in unlawful elimination of

competition and in unlawful interference with

the professional practice of medicine and

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surgery by the plaintiff,

24. The defendants and each of them have

conspired with each other and with others and

have acted r and unlawfully to coerce

and intimidate the plaintiff to 8 and

breach the confidences of his patients, the

ethics of his profession, and contracts with

his patients and specifically by forcing,

coercing and oppressing him to consent to the

examination of the medical records of his

patients without their consent.

25. The defendants and each of them have

conspired to and have acted oppressively,

wrongfully and maliciously to damage the

insurability of the plaintiff, a valuable right,

and without notice, hearing, or due process

of law for purposes of the foregoing,and in

furtherance of aforementioned conspiracy.

26. At all times mentioned herein, the

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defendants and each of them had and have

knowledge of an insurance contract for

professional liability existing between

plaintiff and defendant The Hartford Insurance

Group and an expectancy by plaintiff and right

by agreement and laws of the State of

Colorado of renewal of such,

27. At all times mentioned herein, the

defendants and each of them had knowledge of

contracts and business relations between

Warren & Sommer, Inc. and the plaintiff,

28. The defendants and each of them have

conspired with each other and with other

persons wrongfully, unlawfully, and in bad

faith to induce breaches of aforementioned

contracts and to breach aforementioned

contracts and have caused damage in

business relationships and have induced

Hartford Insurance Group and Warren &

A- 26

Sommer, Inc. to cease doing business with

the plaintiff and to breach the aforementioned

contracts. Notice of such is appended as

EXHIBIT B,

29. The defendants and each of them have in

the foregoing and in other ways harassed and

annoyed the plaintiff and have written and

caused to be written various letters for these

purposes and for purposes of insult, abuse,

and to injure his feelings, and for purposes of

the aforementioned conspiracy.

30, At all times mentioned herein By Laws

of the Medical Staff of Brighton Community

Hospital (BCH), a true and correct copy of

which are annexed hereto as EXHIBIT C, were

in effect subject to dates of amendments

included from November 2, 1973, through

December 31, 1974.

31. At all times mentioned herein Rules and

Regulations of the Medical Staff of BCH, a

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true and correct copy of which are annexed

hereto as EXHIBIT D, were in effect from

November 2, 1973, through December 31, 1974,

32. The defendants and each of them have

conspired to and have committed and continue

to commit and are responsible for the following

acts which have been committed in Brighton,

Colorado:

(a) Wrongful treatment of a minor patient in

1974 by Robert Larsen and BCH in 1974 without

consent of parents to detriment of plaintiff;

(b) Aiding and abetting the practice of

medicine and surgery by persons unlicensed to

practice such in 1974;

(c) Abuses of purposes of committees of the

Medical Staff of BCH by using them for

unauthorized, wrongful and unlawful purposes,

including but not limited to their use to attempt

to force the plaintiff to submit his x-rays for

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re

examination by others to his detriment and to

insult and humiliate him and to the detriment

of his patients in February and March, 1974;

(d) The non-reporting and false reporting of

its activities to the medical staff by the

members of the executive committee of the

Medical Staff of BCH and those acting with

it in 1973 and 1974;

(e) The untimely scheduling of a disciplinary

corrective action hearing concerning and

against the plaintiff without charges, without

written request, without notice or without

adequate notice, without jurisdiction, and

without due process of law; the deciding of

issues subject to hearing without hearing; the

decreasing of the plaintiff's privileges in BCH

including removal from emergency room call

without charges, notice or hearing, without

authority, or jurisdiction, and without due

A- 29

—

process of law or equal protection of the law

in 1974;

(f) Making a sham requirement of filing an

application for appointment a requirement for

reappointment of the plaintiff to the Medical

Staff of BCH without authority, without

jurisdiction, and without equal protection,

and denial of reappointment of plaintiff to the

Medical Staff of BCH without recommendation

by the Medical Staff in 1974 and 1975;

(g) Failure to record minutes of meetings and

falsification of records of committees of the

medical staff of BCH in 1974;

(h) Inducement of breaches of contract

between the plaintiff and Brighton Community

Hospital Association and between the plaintiff

and his patients in 1974 and continuing:

(i) Treatment of patients of other physicians

without adhering to the principles of ethics of

A- 30

the AMA, and coercion and intimidation to

force the plaintiff to treat patients of other

physicians without adhering to the principles

of ethics of the AMA and denial! of his right to

treat whom he chooses in 1974 and continuing;

(j) Abusive, oppressive, coercive, insulting

and damaging statements by John Vowell,

William Waddell, and Gwen Stieber, and

abusive, insulting and damaging written

public ations by John Vowell, Galen Marks, and

others in .

(k) Abuse, insult, and denial of equal rights

and equal protection under the law by

withholding an application form from plaintiff

for purported but sham purpose of evaluation

for reappointment to the medical staff, and

later providing one on an unequal basis with

‘other staff members of BCH in 1974;

(1) Deprivation of plaintiff of Emergency

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Room call schedules, a valuable property,

without due process and without jurisdiction

or authority in November and December, 1974;

(m) Decrease of privileges in BCH of Donald

Fern, D. O., without charges, notice, hearing,

or due process of law in December 1973,

January and February 1974;

n) Denial of reappointment to the Medical

Staff of BCH of Donald Fern, D.O., without

charges, notice, hearing, or due process,

and without recommendation by the medical

staff in 1974 and 1975 and continuing;

(o) Decrease in the privileges in BCH of

Merrill Shidler, M. D., without charges,

notice, hearing, due process, and without

authority or jurisdiction in 1975;

(p) Decrease in the privileges in BCH of

Buel Hutchinson, M. D., without notice or

hearing, without due process of law, and in

breach of the By Laws of the Medical Staff of

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BCH in 1976;

(q) Breach of fiduciary duty to recommend

plaintiff for membership to the medical

staffs of other hospitals in 1974,1975 and

continuing, thereby black-listing the

plaintiff,

33. The foregoing acts were all done and

continue to be done in bad faith, arbitrarily,

capriciously, unreasonably, in breach of

fiduciary duties, contracts and agreements,

and in breach of the By Laws, Rules and

Regulations of the Medical Staff of BCH.

34. By the unlawful and wrongful acts,

methods, means and ways aforementioned

the defendants and each of them have and

continue to wrongfully and unlawfully

- interfere with and obstruct the practice of

medicine and surgery of the plaintiff.

FOURTH CLAIM FOR RELIEF

35. Paragz aphe | through 34 are

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incorporated herein by this reference.

36. At all times mentioned herein until April,

1975, ordinances of the municipality of

Brighton, Colorado, numbered 421, 422, 423,

and 424 annexed hereto as EXHIBITS E,F,G,

and H were in effect.

37. The right to practice medicine and

surgery in Brighton Community Hospital at

all times mentioned herein was and is protected

by the Constitution of the United States of

America by agreement by the aforementioned

By Laws.

38, The defendants and each of them

committed the foregoing acts under color of

the aforementioned ordin ances of the

municipality of Brighton, Colorado, and the

State of Colorado,

39. At all times mentioned herein defendant

Robert 8. Brittain and co-conspirators

A-34

Stedman, Rothenberg and Henderson were

members of the Risk Management Committee

of the Colorado Medical Society and were

acting under color of that office.

40. The defendants and each of them and their

co -conspirators committed the foregoing acts

and conspiracies under color of CRS, 1973,

10-4-109 amended.

41. The defendants and each of them have

conspired to and have deprived the plaintiff of

valuable rights protected by the Constitution of

the United States and the 14th Amendment

thereto without due process of law and

without equal protection of the law,

FIFTH CLAIM FOR RELIEF

42. Paragraphs | through 41 are incorporated

herein by this reference.

43. The foregoing acts were and are

outrageous and they were and are being

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3

committed for the purposes of coercion,

intimidation, abuse, insult and to intentionally

cause the plaintiff mental suffering, anxieties

and severe emotional distress.

ALLEGATIONS CONCERNING EACH CLAIM

FOR RELIEF IN THE ALTERNATIVE AND

JOINTLY

44. As a direct and proximate result of the

foregoing the plaintiff has suffered and

continues to suffer loss of time, loss of

income, loss of earning capacity, damage to

his professional reputation, damage to his

professional insurabiiity, breach of valuable

contracts and other special damage. Such

special damage is permanent and continuing

and the exact amount is unascertainable at

this time and plaintiff prays leave to insert

the amount herein when it is ascertained.

45. Asa direct and proximate result of the

foregoing the plaintiff has suffered and

A-36

continues to suffer worries, mental suffering,

severe emotional distress, and such are

expected to continue, and other general

damage in amount of five million dollars,

46. The acts related in each of the foregoing

claims for relief were committed oppressively,

willfally, wantonly and maliciously, and in

reckless disregard for the rights and feelings

of the plaintiff,

47. The plaintiff is being irreparably and

permanently injured and damaged; this

damage is continuing and increasing with time;

multiple suits will be required unless the

issues are promptly resolved; and legal

relief is inadequate.

WHEREFORE, plaintiff prays for relief

as follows:

1. Special damages;

2. General damage in the amount of five

A- 37

million dollars ($5,000, 000. 00;

3. Punitive damages in the amount of

fifteen million dollars ($15,000, 000, 00);

4. Costs of suit;

5. Early trial of this matter,

Dated: April 25, 1977 By: [signed]! N, E, Tyler

Donald E, Tyler

Attorney for Plaintiff

1790 East Bridge Street

Brighton, Colo 80601

telephone 659-4581

Supreme Court Regis

#001401

PLAINTIFF DEMANDS A JURY TRIAL OF THE

ISSUES HEREIN

A-38

gaylor’'s FOOD STORE, INC,

540 Bridge Street. Brighton, Colo

July 3, 1974

Dr. Galen Marks

Chief of Staff

Brighton Community Hospital

Dear Galen:

On Thursday June 27th, 1974 at approxi-

mately 5:30 PM I brought my Aunt Miss

Margaret Schroer to Brighton Community

Hospital for emergency treatment, She

received a bad cut on her leg from a lawn

mower accident which needed medical

attention, The action taken by Dr, Tyler who

was on duty was very distressing to me, my

family and friends. After discussion with

Dale Alter I am writing this letter to the

Board and Chief of Staff asking that the

situation be reviewed and corrected.

EXHIBIT A

A-39

The decision by Dr, Tyler was that my

Aunt Miss Schroer should seek medical

attention elsewhere because she was not and

probably would not be a patient of his. The

whole discussion and situation was very

unprofessional and is not in my opinion the

reason for which Brighton Community Hospital

was built. It is my feeling that the Hospital

was built to serve all citizens of the Brighton

area and in particular admister emergency

treatment to anyone regardless of who they

are and regardless of who there Doctor is.

This type of situation can only hurt the

Image of Brighton Community Hospital and I

support action to correct what I feel is the

wrong approach in dealing with people who

need attention and the service of Brighton

Community Hospital,

A- 40

WARREN & SOMMER INCORPORATED

SUITE 500/3855 EAST EXPOSITION

DENVER,COLORADO 80209

TELEPHONE 303-744-3711

March 29, 1977

Donald E. Tyler, M. D.

1790 E. Bridge Street

Brighton, Colorado 80601

Dear Dr. Tyler:

On November |, 1976, the Risk Management

Committee of the Colorado Medical Society

requested permission to look at your medical

records, On November 28, 1976, Dr. Robert

S. Brittain received a supoena from you

requesting a deposition from your attorney,

This deposition was carried out on January 4,

1977 and, following that deposition, Dr,

Brittain advised your attorney that the Risk

Management Committee would still want

EXHIBIT B

A-42

permission to examine your ER records,

As of March 28, 1977, the Risk Manage-

ment Committee has not received your

permission to review your records, I would

like to point out that the Risk Management

Committee has reviewed (with the doctor's

permission) many doctors records in

Colorado.

Your professional Liability coverage is

due for renewal on December II, 1977, and

this is to advise you we will be unable to offer

renewal of the Professional Liability coverage

because of your failure to cooperate with the

Risk Management Committee of the Colorado

Medical Society.

Should you have any questions, please do

not hesitate to give me a call,

Sincerely,

(signed) Bill Buck---

A-43

n

William M, Buckman

Vice President

WMB/jg

cc: Wilfred Stedman, M. 9.

Robert 8. Brittain, M. D.

Thomal Mitchell, Hartford

ONE OF THE SEVENTY WORLDWIDE

OFFICES OF ASSUREX INTERNATIONAL

INSURANCE BROKERS

— —

A- 44

+ (Exhibit C consists of 27 type written pages.

Es pertinent parts are excerpted herein)

BY LAWS OF THE MEDICAL STAFF OF

BRIGHTON COMMUNITY HOSPITAL

PREAMBLE ...

ARTICLE Il: SUPREMACY OF LAW

l, The constitution of the United States and

the State of Colorado, the laws of the United

States and the State of Colorado and the laws

of the City of Brighton are supreme to any

rules, bylaws and constitution of the medical

staff of Brighton Community Hospital,

2. All rights under the constitutions of the

United States, Colorado and laws of the State

of Colorado and the United States apply and

are available to the members of the staff of

this hospital and specifically in reference to

their practice in this hospital and membership

EXHIBIT C A-45

in the Medical Staff,

ARTELE IV: MEDICAL STAFF MEMBERSHIP

Section |, Nature of Medical Staff Membership

Membership on the medical staff of Brighton

Community Hospital is a privilege which

shall be extended only to professionally

competent physicians, dentists and podiatrists

who continuously meet the qualifications,

standards and requirements set forth in these

bylaws.

Section 2. Qualifications for Membership.

a. Only physicians, dentists and podiatrists

licensed to practice in the State of Colorado

shall be qualified for membership on the

medical staff. No physician, dentist, or

podiatrist shall be entitled to membership on

the medical staff or to exercise of particular

clinical privileges in the hospital merely by

virtue of the fact that he is duly licensed to

A-46

N

Pm nat

practice medicine, dentistry, or podiatry in

this or any other state, or that he is a

member of any professional organization, or

that he had in the past, or presently has, such

privileges at another hospital.

d. Acceptance of membership on the medical

staff shall constitute the staff member's

agreement that he will strictly abide by the

Principles of Medical Ethics of the American

Medical Association, the Code of Ethics of the

Dental Association, or the Code of Ethics of

the American Podiatry Association,

whichever is applicabie, as the same are

appended to and made a part of these bylaws,

Section 3. Conditions and Duration of

Appointment.

a. Initial appointments and reappointments to

the medical staff shall be made by the

governing body. The governing body shall

A-47

* .

E *

act on appointments, reappointments, or

revocation of appointments only after there

has been a recommendation from the medical

staff as provided in thes bylaws; provided that

in the event of unwarranted delay on the part

of the medical staff, (exceeding 3 months),

the governing body may act without such

recommendation on the basis of documented

evidence of the applicant's or staff member's

professional and ethical qualifications

obtained from reliable sources other than the

medical staff, (Comment: When acting in

the event of an unwarranted delay, the

governing body must base its decision upon

the same kind of information as is usually

considered by the medical staff. For the

purposes of this section, unwarranted delay

generally means 3 months from the date that

the fully completed application has been

A-48

received by the medical staff, )

d. Initial appointments shall be for a period

extending to the end of the current medical

staff year of the hospital. Reappointments

shall be for a period of not more than one

medical staff year. For the purpose of these

bylaws the medical staff year commences on

the first day of January and ends on the Zlst

day of December of each year.

c. Appointments to the medical staff shall

confer on the appointee only such clinical

privileges as have been granted by the

governing body, in accordance with these

bylaws.

d. Every application for staff appointment

shall be signed by the applicant and shall

contain the applicant's specific acknowledge-

ment of every staff member's obligations to

read and abide by the medical staff bylaws,

A-49

rules and regulations. ...

ARTICLE VI: PROCEDURE FOR

APPOINTMENT AND REAPPOINT MENT

Section |. Application for Appointment.

a. All applications for appointment to the

medical staff shall be in writing, shall be

signed by the applicant, and shall be submitted

on a form prescribed by the medical staff.

The application shall contain detailed

information 3 the applicant's

professional qualifications, and two letters

of recommendations by physicians and a

letter containing a summation of an interview

by an Active Staff member appointed by the

acting Chief of Staff.

b. The applicant shall have the burden of

producing adequate information for a proper

evaluation of his competence, character,

ethics and other qualifications, and for

A-50

resolving any doubts about such qualifications.

c. The completed application shall be

submitted to the Chief Executive Officer,

who will within 7 days transmit the application

and all supporting materials to the secretary

of the Staff for medical staff action, with his

written recommendation regarding the

application.

d. By applying for appointment to the

medical staff, each applicant thereby

signifies his willingness to appear for

interviews in regard to his application,

authorizes the hospital to consult with

members of medical staffs of other hospitals

with which the applicant has been associated

and with others who may have information

bearing on his competence, character and

ethical qualifications, consents to the

hospital's inspection of all records and

A-51

documents that may be material to an

evaluation of his professional qualifications

and competence to carry out the clinical

privileges he requests as well as his moral

and ethical qualifications for staff membership,

releases from

any liability all representatives of the

hospital and its medical staff for their acts

performed in good faith and without malice

in connection with evaluating the applicant and

his credentials, and releases from any

liability all individuals and organizations who :

provide information to the hospital in good

faith and without malice concerning the

applicant's competence, ethics, character

and other qualifications for staff appointment

and clinical privileges, including otherwise

privileged or conficential information. ...

3. The application form shall include a

A-52

1

statement that the applic ant has received and

read the bylaws of the hospital governing body

and the bylaws, rules and regulations of the

medical staff and that he agrees to be bound

by the terms thereof if he is granted

membership and/or clinical privileges and to

be bound by the terms thereof without regard

to whether or not he is granted membership

and/or clinical privileges in all matters

relating to consideration of his application.

Section 2. Appointment Process,

a. The complete application with recommend-

ations in writing from the chief executive

officer shall be presented to the medical

staff for initial reading by the secretary of

the medical staff at the next regular staff

meeting.

b. Second reading shall occur at the

following regular staff meeting. At this

A-53

time the application shall be approved with

clinical privileges as delineated or deferred

or disapproved. After final action the

application shall be forwarded to the governing

body with recommendations by the medical

staff.

Section 3. Reappointment Process,

a. At least 90 days prior to the final

scheduled Board of Directors meeting in the

medical staff year, the executive committee

shall review all pertinent information

available on each practioner scheduled for

periodic appraisal, for the purpose of

determining its recommendations for

reappointments to the medical staff and for

granting of clinical privileges for the ensuing

period, and shall transmit its recommenda-

tions, in writing to the medical staff. If

nonreappointment or a change in clinical

privileges is recommended, the reason for

A-54

7

N

such recommendation shall be stated and

documented, The 30 or more days prior to the

final scheduled Board of Director's meeting

in the medical staff year, the medical staff

shall present its recommendations.

d. Each recommendation concerning the

reappointment of a medical staff member and

the clinical privileges to be granted upon

reappointment shall be based upon such

member's professional competence and

clinical judgment in the treatment of patients,

his ethics and conduct, his attendance at

medical staff meetings and participation in

staff affairs, his compliance with the

hospital bylaws and the medical staff by rules

and regulations, his cooperation with hospital

personnel, his use of the hospital's facilities

for his patients, his relations with other

practitioners, and his general attitude

A-55

toward patients, the hospital and the

public

ARTELE VU: CLINE AL PRIVILEGES

Section |. Clinical Privileges Restricted.

(Comment: Applications for additional

clinical privileges must be in writing and will

be processed in the same manner as applica-

tions for initial appointment.) ...

ARTE LE VII: CORRECTIVE ACTION

Section l. Procedures

a. Whenever the activities or professional!

conduct of any practitioner with clinical

privileges are considered to be lower than

the standards or aims of the medical staff or

to be disruptive to the operations of the

hospital, corrective action against such

practitioner may be requested by any

member of the active staff, by the chief

executive officer, or by the governing body.

A-56

~~ -—-)h

All requests for corrective action shall be in

writing, shall be made to the executive

committee, and shall be supported by

reference to the specific activities or conduct

which constitute the grounds for the request,

b. Whenever the corrective action could be a

reduction or suspension of clinical privileges,

the executive committee shall schedule a

hearing to be held within 30 days. Notice of

such hearing shall be given in writing by

certified mail with return acknowledgement

of receipt prior to 15 days of such hearing.

c. The executive committee shall conduct

the hearing and be responsible for making

the record of its conduct, findings and

recommendations.

d. The executive committee shall submit its

report, including its findings and

recommendations to the medical staff at its

next regular or special meeting.

A-57

|e a

e. The medical staff may then make

recommendations to the governing body. The

involved practitioner has a right to a

hearing before the governing body prior...

Section 2. Summary Suspension. ...

ARTE LE X: Committees

Section l. Executive Committe

>

Section 2. Professional Activities Committee.

a. Composition: The professional activities

committee shall consist of the active medical

staff.

b. Functions: It shall be responsible for

staff functions relating to Medical Records,

«e+ Emergency Room and Out Patient

Services,...

c. These functions will be facilitated by

subcommittees. ...

d. Subcommittees:

(1) Medical Records Audit Subcommittee: ...

A-58

ay a =. - fs <2 „ * a —

2 a +” Ae 5

7 *

4

*

(7) Emergency Room and Outpatient

Subcommittee: ... |

ARTICLE XI: COMMITTEE AND

SUBCOMMITTEE MEETINGS

«++ Section 5. Minutes ... Each committee

and subcommittee shall maintain a permanent

file of the minutes of each meeting. ...

AMENDMENT TO BY-LAWS

eee I. Repeal of Article VII Sectionl, c, d, e;

Section 2, a.

2. Section |, c, to read as follows:

The executive committee shall conduct the

hearing and be responsible for making a

verbatim written record of the hearing, its

findings, and recommendations. The

findings and recommendations shall be

mailed to the involved practitioner by

certified mail with return receipt or

delivered in person to the involved

practitioner within 48 hours of conclusion of

A-59

said hearing. The involved practitioner and

the executive committee shall have the right

to the presence and advice of legal counsel,

3. Article VIII, section |, d, to read as follows:

The executive committee shall present its

report including its findings and recormmenda-

tions to the medical staff at its next regular or

special meeting after 5 days after afore men

tioned hearing. The medical staff shall not

take any action until its following regular or

special meeting and not within fifteen days nor

later than the next staff meeting after

fifteen days after being presented the

executive committee report. A hearing de

novo shall be held by the medical staff at the

written request of the involved practitioner

and delivered to the acting president of the

medical staff more than five days prior to the

meeting designated for 1 upon the

A-60

a

executive committee report. At the request

of any member of the medical staff, the

executive committee shall report to the

medical staff the complete verbatim record

of its hearing, and the executive committee

shall furnish any staff member at his request

a complete verbatim written record of its

hearings. The involved practitioner and

medical staff shall have the right to the

presence and advice of legal counsel,

4. Section I, e, to read as follows:

The medical staff may then make

recommendations to the governing body. A

vote of at least 2/3 of the active medical staff

present shall be required for making any

recommendations to the governing body which

are adverse or unfavorable to the involved

practitioner,

5. Article VIII, Section 2, a, to read as

A-61

. N — 0 aoe

follows: ... Summary suspension is to be

ordered by the Chief Executive officer only

when medical care by the practitioner is

believed to very seriously immediately

jeopardize care of patients. It is to be used

sparingly, only to the extent or degree

necessary and only when other reasonable and

potentially less damaging means cannot be

employed to effect the necessary protection

of patients. ...

Adopted by the active Medical Staff on

March I, 1974 ....

Approved by the Governing Body on 5-23,1974

A-62

o>

.

RuUlLEs AND REGULATIONS OF THE MEDK AL

STAFF OF BRIGHTON COMMUNITY

HOSPITAL

(This Exhibit D of the complaint consists of

14 single-spaced 8 1/2" by U“ pages. Part

is excerpted here)

A. Admissions and Discharge of Patients

B. Medical Records...

F. Emergency Services

1. Policy on Admission of Patient to

Emergency Service

2. The Medical Staff will provide Emergency

Roo n care

6. There shall be a monthly review of the

Emergency Medical Record by the

EXHIBIT D

A-63

Professional Activities Committee to

evaluate the quality of emergency medical

care

ADOPTED by the active medical staff

6 July, 1973.

APPROVED BY THE GOVERNING BODY

on July 23, 1973

A-64

ORDINANCE NO, 421

(This Exhibit E of the complaint consists

of 8 single-spaced, legal size pages. Part is

excerpted here)

AN ORDINANCE AUTHORIZING, CONFIRMING

LEASING WITH OPTION TO PURCHASE AND

SETTING OUT THE TERMS OF SAID LEASE

PURCHASE AGREEMENT BETWEEN THE

CITY OF BRIGHTON, COLORADO AND THE

BRIGHTON DEVELOPMENT COMPANY, A

COLORADO CORPORATION, SAID PROPERTY

TO BE USED AND OPERATED AS A HOSPITAL,

COMMITTING THE CITY TO RENTAL

PAYMENTS AS SET OUT IN THIS

ORDINANCE, APPROPRIATING MONEY

FOR RENTAL PAYMENTS AND DECLARING

AN EMERGENCY, ...

The above described property and the

improvements thereon to be used as a

EXHIBIT E

A- 65

public community hospital. cee

It is further understood and agreed that in the

event of defaults as herein provided, the City

shall remain liable for the balance of the

rent herein reserved... The City agrees

to keep the property herein described insured

«ee The City covenants and agrees to equip,

supply and operate said hospital structure as

a public and community hospital... The

City may exercise this option and purchase

said property for the sum... ($19,712) on

or after April |, 1975 and until June l, 1975...

12. All rental payments or purchase

payments shall be made by the City from any

available City income, lawfully imposed

property taxes, , or income from sub-

leasing the property for each fiscal year, and

the City covenants and agrees, when all

other sources of income or revenue are

A-66

insufficient in part or in whole, to impose

a general levy upon both personal and real

property included within the boundaries of the

City .... 10th day of November 1959...

Passed on second and final reading this 24

day of November, A. D. 1959

(signed) J, William Wells

Mayor

A-67

ORDINANCE NO, 422

(This Exhibit F of the complaint consists of

7 single-spaced legal sized typewritten pages.

Part is excerpted here, )

AN ORDINANCE AUTHORIZING, CONFIRMING,

SUBLEASING WITH OPTION TO PURCHASE

AND SETTING OUT THE TERMS OF SAID

SUBLEASE PURCHASE AGREEMENT

BETWEEN THE CITY OF BRIGHTON,

COLORADO AND THE BRIGHTON

COMMUNITY HOSPITAL ASSOCIATION,

SAID PROPERTY TO BE USED AND

OPERATED AS A HOSPITAL, AND

DEC LARING AN EMERGENCY,

. for the promotion of the public order,

health, safety, welfare, security, prosperty,

and general welfare and good of the people

of the City of Brighton, Colorado, and the

public in general in order to secure

EXHIBIT F

A-68

sae -

equipment for and the operation of a public

and community hospital. eee

The Sublessee agrees and covenants to staff,

operate, equip, supply and maintain said

structure as a public and community hospital...

City agrees to pay any and all taxes, if any,

which may be lawfully satiate against

said hospital property. ...

Passed on second and final reading this

24 Day of November, A. D. 1959,

(signed) J, William Wells

Mayor

A-69

nnn, *

ORDINANCE NO, 423

(This Exhibit G of the complaint consists

of 9 single-spaced, legal size typewritten |

pages. Part is excerpted here)

AN ORDINANCE AUTHORIZING, CONFIRMING,

LEASING WITH OPTION TO PURCHASE AND

SETTING OUT THE TERMS OF SAID LEASE

PURCHASE AGREEMENT BETWEEN THE

CITY OF BRIGHTON, COLORADO AND THE

BRIGHTON DEVELOPMENT COMPANY T.

COMMITTING THE CITY TO RENTAL

PAYMENTS...

The above described property and the

improvements thereon to be used as a

public and community hospital, and/or for

medical care and treatment and/or for

nursing care for the people. . Structure or

building as the terms are herein used means

the 40 bed hospital or building

A-70

EXHIBIT G

12. All rental payments or purchase

payments shall be made by the City from

any available City income, lawfully imposed

property taxes, ...

Second publication on the 26th day of

November, A.D, 1959.

A-71

ORDINANCE NO, 424

(This Exhibit H of the complaint consists

of 8 single-spaced typewritten legal size

pages. Part is excerpted here)

AN ORDINANCE AUTHORIZING, CONFIRMING,

SUBLEASING WITH OPTION TO PURCHASE

AND SETTING OUT THE TERMS OF SAID

SUBLEASE PURCHASE AGREEMENT

BETWEEN THE CITY OF BRIGHTON,

COLORADO, AND THE BRIGHTON

COMMUNITY NURSING HOME ASSOCIATION,

SAID PROPERTY, TO BE USED AND

OPERATED AS A HOSPITAL, AND/OR FOR

MEDICAL CARE AND TREATEMENT AND/

OR FOR NURSING CARE AND TREATMENT

OF PEOPLE NEEDING/DESIRING SUCH

CARE AND TREATMENT, ...

EXHIBIT H A-72

. Bp Ps > —

* „

in order to secure the operation of a

public and community hospital, and/or for

medical care and treatment and/or for

nursing care... Sublessee agrees to

continue to pay into the fund as herein

provided so long as the Brighton

Community Hospital Association is liable to

the City for any rental payments

Passes on second and final reading this

24 day of November, 1959

(signed) J. William Wells

Mayor eee

A-73

IN THE DISTRICT COURT IN AND FOR THE

COUNTY OF JEFFERSON

STATE OF COLORADO

Civil Action No. 77CV0782 Div. 4

Donald E. Tyler,

PLAINTIFF

AMENDMENTS TO

vs.

COMPLAINT

The Hartford Insurance

Group, Francis Fry,

Robert S. Brittain,

— eee eee ee eee ee ee

DEFENDANTS

COMES NOW the plaintiff to arnend his

complaint prior to responsive pleading in

accord with Rule 15 (a) of the Colorado Rules

of Civil Procedure as follows:

1. Paragraph 25 is amended to read as

follows:

25. The defendants and each of them

have conspired to and have acted

A-74

oppressively, wrongfully and maliciously

to damage the insurability of the plaintiff for

medical professional liability or malpractice _

insurance, a valuable right, and without

notice, hearing, or due process of law for

purposes of the foregoing, and in furtherance

of aforementioned conspiracy.

2. The first part, to the colon, of paragraph

| 32 is amended to read as follows:

32. The defendants and each of them have

conspired to and have committed and

continue to commit and are responsible for

the following acts which have been committed

in Brighton, Colorado; and the defendants

and each of them had knowledge of all of the

following enumerated acts which may have

occurred prior to their joining the

aforementioned conspiracy and which may

have occurred prior to their joining the

A-75

aforementioned conspiracy and which may have

occurred prior to their committing acts

alleged in paragraphs | through 29 in

furtherance of and pursuant to the aforemen-

tioned conspiracy: (the remainder of

paragraph 32 is unchanged)

3. Immediately to follow paragraph 37, a new

paragraph 37A is added as follows:

37A. At times mentioned herein,

conspirators Galen Marks and Robert Larsen

were officers of the Medical Staff of Brighton

Community Hospital, conspirator John

Vowell was administrator of Brighton

Community Hospital, and previously

named conspirator Dale Alter was

President of the Board of Directors of the

Brighton Community Hospital Association,

and these conspiratars acted under color

of those offices,

4. Paragraph 39A is added to immediately

A-76

follow paragraph 39 as follows:

39A. Conspirator Carl McLauthlin was

at times mentioned herein President of the

Colorado Medical Society and was acting

under color of that office,

5. Paragraph 40 is amended to read as

follows:

40. The defendants and each of them and

each of their co-conspirators committed and

continue to commit the forgoing acts and

conspiracies under color of the aforementioned

municipal statutes of Brighton, Colorado, a

subdivision of the state of Colorado, and

under color of various other state laws and

statutes regulating the insurance business,

regulating hospitals, and statutes, rules and

regulations relating to the Colorado

Medical Society including but not limited to

C. R. S. 1973, amended, 10-4-109, 13-21-110,

A-77

13-90-107,

5. New paragraph 40A is added to immediately

follow paragraph 40,

40A, Exhibits Iand J appended hereto and

annexed as a part of this complaint are copies |

of letters caused by the defendants to be sent

to the plaintiff pursuant to the foregoing.

6. Paragraphs 25 and 32 as amended are

incorporated in paragraph 35, and paragraphs

25, 32, 37 A, 39 A, 40 and 40A as amended are

incorporated in paragraph 42.

By (signed) D, E, Tyler

Donald E. Tyler

Regis, #001401

Attorney for plaintiff

1790 E. Bridge St.

Brighton, Colo 80601

659-4581

A-78

November l, 1976

b. E. Tyler, xl. D.

1790 Bridge Street PERSONAL AND

Brighton, Colorado CONFIDENTIAL

Dear Dr. Tyler:

The Risk Management Committee of the

State Medical Society has been made aware of

the suits which you have pending against

members of the Staff and Board of the

Brighton Community Hospital, It is

furthermore aware of a letter written by the

husband of a patient that you contacted in

Brighton Community Hospital Emergency

Room which apparently was one of the

instigating factors in your suit against this

gentleman, This information is hearsay

only.

The Risk Management Committee of the

EXHIBIT I

A-79

Colorado Medical Society exists for the

purpose of investigating areas where there is

potentially an increased risk of malpractice

cases against physicians insured by the

Colorado Medical Society-Hartford program,

Since, after reviewing some 600 claims in this

state over five and one half years, the Risk

Management Committee is aware that the

angry patient is the one most likely to sue, the

Committee is requesting your written

permission to examine a Se sample of

hospital records at the Brighton Community

Hu. pital in which you were the primary

physician. It is our understanding that you

have practiced very little, if any, at that

hospital in recent nonths or perhaps the last

year or two and consequently the permission

would have to include a review of the cases

when you were more active there, The

reason for this review is to assure the

A-80

Committee that the quality of these records

is sufficient for defense, if a case were

brought against you (with or without merit),

For your information House Bill 91 passed

by the last session of the Colorado Legislature

and signed into law effective July I. 1976, gives

permission to committees such as the Risk

Management Committee to request such

permission in writing. If you wish, a copy

of this bill may be obtained from the

headquarters of the Colorado Medical

Society. The Risk Management Committee

would request such permission in writing no

later than 30 days after receipt of this

letter.

Sincerely,

(signed) Robert 8. Brittain, M. D.

ROBERT S, BRITTAIN, M.D,

Chairman, Risk Management Committee

A-81

CMS

COLORADO MEDE AL SOCIETY

1601 East 19th Avenue

Denver, Colorado 80218. Phone (303)534-8580

August 23, 1977

Donald Tyler, M. D.

1790 East Bridge St.

Brighton, CO 80601

(CE RTIFIED MAIL)

Dear Dr, Tyler:

The Risk Management Committee of the

Colorado Medical Society has received

information from past Emergency Room

records that your hospital records may be

deficient in documentation of history,

physical, and patient instruction, The

Committee is requesting permission for a

physician selected by them to inspect your

records at whatever hospital you have used

EXHIBIT J

A-82

Pe

to see Emergency patients in the past two

years and to report back to the Risk

Management Committee. Would you please

complete the enclosed form and return it to

me,

For your information, 13-90-107, C. R. 8.

1973, as amended allows committees such as

the Risk Management Committee of the

Colorado Medical Society to examine records

of patients if the physician gives such

permission, Permission of the patient is not

required. If you have any questions, I can be

reached at 442-4660,

Very sincerely,

(signed) J. H. Poynter

Joseph H. Poynter, M. D.

Chairman, Risk Management Committee

HP: pie

A-83

—

CMS

COLORADO MEDE AL SOCIETY

1601 East 19th Avenue

Denver, Colorado 80218, Phone(303)534-8580

TO: Chairman, Risk Management Committee

Colorado Medical Society

(Certified Mail)

I, Donald Tyler, M. D,, do hereby authorize

a representative of the Risk Management

Committee of the Colorado Medical Society to

examine my medical records at whatever

hospitals I have used to see Emergency

patients in the past 2 years and to report

those findings back to the Risk pee

Committee. I understand that 13-90-107,

c. R. S. 1973, as amended, allows committees

such as the Risk Management Committee of

the Colorado Medical Society to examine

records of patients if the physician gives

A-84

Sea SE

36 ‘ *

1 *

as

Se

«

1 *

—

such permission, Permission of the patient

is not required.

(unsigned)

(Signature) Donald E. Tyler, M.D.

(undated)

(date)

A-85

COLORADO COURT OF APPEALS

NO. 77-894

DONALD E, TYLER,

Plaintiff- Appellant, NOT SELECTED

ve FOR

DONALD GAYLOR PUBLK ATION

and DALE ALTER, NOT TO BE

Defendants-Appellees, CITED AS

and PRECEDENT IN

)

)

)

)

)

)

)

)

)

)

)

)

)

)

DONALD E, TYLER, ) ANY COLORADO

° )

Plaintiff- Appellant, ) COURT

)

v. )

)

GAYLOR'S FOOD STORE,)

)

NC., MARGARET )

)

MUMBY, DONALD GAY -)

)

LOR, WILMAGAYLOR )

)

and MAUDE GAYLOR, )

)

)

Defendants -Appel-.ees

A-86

Shee

Appeal from the District Court of Adams

County Honorable Dean Johnson, Judge

JUDGMENTS AFFIRMED

DIVISION Il

Opinion by JUDGE SMITH

Ruland and Sternberg, jj. » concur

Donald E. Tyler Pro se

Ontario, Oregon

Stephen Dawson

Littleton, 8

Paul D. Renner, P. C.

Denver, Colorado

Attorneys for Defendant- Appellee

Dale Alter

Gaunt, Dirrim and Coover

Bradley Coover

Brighton, Colorado

Attorneys for Defendants- Appellees

Donald, Wilma, and Maude Gaylor

A-87

Littell, Everstine & Kickinson

Gilbert Dickinson

Duane Littell

Denver, Colorado

Attorneys for Defendants - Appellees

Gaylor's Food and Margaret Mumby

Opinion filed and judgment 1 t he

14th day of June, 1979 Clerk of the Court

Mac V. Danford

Plaintiff Tyler, a practicing physician

and attorney, filed suit against defendants

Dale Alter and Donald Gaylor for libel.

Tyler therafter filed another complaint

against Gaylor and others alleging a civil

conspiracy on the part of the defendants

designed to interfere with Tyler's practice

of medicine. The two actions were

consolidated and following a trial to a jury,

verdicts were returned, and judgment was

A-88

0

entered for defendants on all issues. Tyler

appeals, and we affirm the judgments,

I

The Libel Action

On June 27, 1974, Donald Gaylor brought

his aunt, Margaret Schroer, to the Brighton

Community Hospital emergency room to be

treated for a superficial cut on the let, After

examining Schroer, Tyler refused to treat

her, and Schroer then went to a hospital in

Denver for treatment. Gaylor therafter

complained to Dale Alter, Chairman of the

Board of Directors of Brighton Community

Hospital Association, Alter requested that

Gaylor put his complaint in writing, and

Gaylor thereafter mailed a letter to Alter,

Alter in turn gave copies of the letter to

board members and others connected with

the hospital, The letter is as follows:

A-89

a ee

"July 3, 1974

Mr. Dale Alter

3 ) Chairman of the Board of Directors

Brighton Community Hospital

Dear Dale:

1 On Thursday, June 27, 1974 at approximately

5:30 p.m. I brought my aunt, Miss Margaret

Schroer to Brighton Community Hospital

for emergency treatment. She had received

a bad cut on her leg from a lawn mower

accident which needed medica! attention, The

action taken by Dr. Tyler who was on duty was

very distressing to me, my family and my

friends, After discussion with Dale Alter,

Iam writing this letter to the board and

chief of staff asking that the situation be

reviewed and corrected,

The decision by Dr. Tyler was that my

aunt, Miss Schroer, should seek medical

A-90

attention elsewhere because she was not

and probably would not be a patient of his, The

whole situation was very unprofessional and

is not in my opinion the reason for which

Brighton Community Hospital was built. It is

my feeling that the hospita! was built to serve

all citizens of the Brighton area and in

particular adminster emergency treatment

to anyone regardless of who they are and

regardless of who there doctor is.

This type of situation can only hurt the

image of Brighton Community Hospital and I

support action to correct what I feel was the

wrong approach in dealing with people who

need attention and the service of Brighton

Community Hospital,

Sincerely,

Donald G. Gaylor."

A-91

1

.

g

The trial court determined as a matter of

law that this letter was libelous per se as it

related to Tyler. We are not bound by this

conclusion since questions of law decided by

the trialcourt are reviewable upon appeal,

American National Bank v. Christensen,

28 Colo. App. 501, 476 P. 2d 281 (1970), and

we disagree with the trial court's ruling.

It is a question of law whether any

specific communication is defamatory and

thus constitutes libel or slander. Downing v.

Brown, 3 Colo. 571 (1877). In our view, the

ene en at issue here is not defamatory

and thus is not actionable, It is well settled

that mere words of opinion indicating that a

defendant dislikes a plaintiff or does not

respect him are not actionable. See Gertz

v. Welch, 418 U.S. 323, 94 8. Ct. 2997, 41

L. Ed, 2d 789 (1974). The words used here

A-92

merely demonstrate Gaylor's strong

disagreement with the way the incident in the

emergency room was handled, There is no

assertion that the facts which Gaylor recites

in the letter are untrue, and his opinion is

based solely upon those facts, The letter

does not imply that there are, nor does it

refer to any undisclosed facts. Expression of

such an opinion, even in the most pejorative

terms, cannot be actionable, Bucher v.

Roberts, Colo. . P, 2d

(No. C-1643 announced 29 May, 1979).

Therefore, even though the trial court's

ruling in this regard was incorrect, the

judgment which resulted from the jury's

verdict was a proper disposition of the case,

and that judgment is affirmed. Because of

our determination that the letter was not

defamatory or capable of a defamatory

A-93

1

n

meaning, and thus was not actionable, it is

not necessary to address any of the plaintiff's

assignments of error with regard to the

conduct of the trial. |

1

The Conspiracy Action

Citing Pratt v. British Medical

Association, (1919) 1 K. B. 244, 9 B. R. S. 982,

Tyler bases his damage complaint for

conspiracy on averments that defendants

collectively schemed and connived to prevent

him from exercising his common law right to

practice and carry on a lawful profession

without wrongful and illegal interference,

Tyler argues that the trial court

committed error when it e to direct a

verdict in his favor on the conspiracy claim

and by permitting the issue to go to the

jury. Tyler relies essentially upon the

same evidence that was adduced to support

A-94

his libel claim, and our review of the same

evidence reveals that there was no direct

proof of aconspiracy. At most, the evidence

supports the existence of a conspiracy only

by inference, The necessary inferences

could only be reached by the finder of fact if

the testimony of the en bee concerning

their lack of conspiratorial intent or intent

to injure Tyler were to be disbelieved. Since

there were factual issues and disputes

relative to the conspiracy, and inasmuch as

there was evidence to support alternate

resolutions of these issues, a directed

verdict would have been improper, See, e.g.,

Safeway Stores, Inc. X. Langdon, 187 Colo.

425, 532 P. 2d 337 (1975).

We have considered Tyler's numerous

other assignments of error and conclude that

they are wholly devoid of legal merit,

A-95

Judgments affirmed,

JUDGE RULAND and JUDGE STERNBERG

concur.

A-96

BRIGHTON COMMUNITY HOSPITAL

1850 EGBERT STREET, BRIGHTON,

COLORADO 80601

PHONE 659-1531 AREA CODE 303

Oct ber 23, 1974

Donald E. Tyler, M. D.

1790 Bridge Street

Brighton Colorado

Dear Dr, Tyler:

Your hearing date has been rescheduled for

Thursday, October 31, 1974, 12:00 aoon at

Brighton Community Hospital,

Sincerely,

(signed Galen M. Marks, M. D. by J. K.)

Galen M. Marks, M. D.

Chief of Medical Staff

EXHIBIT D

Accredited by the Joint Commission on

accreditation of hospitals

A-97

BRIGHTON COMMUNITY HOSPITAL

1850 EGBERT STREET, BRIGHTON,

COLORADO 80601

PHONE 659-1531 AREA CODE 303

September 26, 1974

Donald Tyler, M. D.

1790 Bridge Street

Brighton, Colorado 80601

Dear Dr, Tyler:

A request for corrective action concerning

your Emergency Room care and conduct

has been received by the Executive Committee.

In accordance with the By-Laws of the

Brighton Community Hospital Medical Staff,

the Executive Committee requests your

attendance with the e Committee at

12 o'clock noon on October 17, 1974

at the Brighton Community Hospital.

A-98

Yours truly,

(signed) Galen D. Marks

Galen Marks, M. D.,

Chairman, Executive

Committee

EXHIBIT E

Accredited by the Joint Commission of

Accreditation of Hospitals

A-99

„

BUSINESS MINUTES Date October 31, 1974

EXECUTIVE STAFF MEETING *

Minutes of the meeting of the Executive Staff

The meeting was held in the Conference Room

at the Brighton Community Hospitals at 12:00

noon, 1974, October 3lst.

ATTENDING MEETING: Dr. Galen Marks,

President

Dr. Robert Larsen, Vice President

Dr. Bill Waddell, Secretary

Mr. Orrel Daniels, Hospital Legal Counsel

John Vowell, Hospital Administrator

The meeting was called to order at

12:00 noon, The purpose of the meeting as

called by the President of the Staff was in

accordance with the Medical Staff By-Laws

provisions covering hearings, The hearing

to be conducted was that of Dr. Don Tyler.

Dr. Tyler had been notified by certified

A-100

mail of the time and place of the hearing.

1:45 P. M. Dr. Tyler had not appeared

at the meeting. The meeting adjourned.

No action taken.

(signed) John Vowell

John Vowell, Administrator

EXHIBIT F

A-101

CMS

COLORA DO MEDICAL SOCIETY

1601 East i9th Avenue

Denver, Colorado 80218-Phone (303)534-8580

Donald E. Tyler, M. D.

1790 Bridge Street

Brighton, Colorado

Dear Dr. Tyler:

As you were advised by my letter of

November I, 1976 the Risk Management

Committee of the Colorado Medical Society

requests permission to examine hospital

records of yours at Brighton Community

Ho spital over the past three years, This

request is specifically in reference to

emergency W patients.

You should be advised that failure to

cooperate with the Risk Management

Committee of the Colorado Medical Society

would require that that Committee so inform

A-102

N

. * t e

the Hartford Insurance Company, your

carrier,

The Committee expects written

permission to examine the above mentioned

records to be received by a representative of

that Committee at 3501 South Corona Street

#7, Englewood, Colorado 80110 no later than

January 31, 1977.

Very sincerely yours,

(signed) Robert 8. Brittain M. D.

ROBERT S, BRITTAIN, M.D,

MEMBER

Risk Management Committee

(signed) Wilfred Stedman, M.D,

WILFRED STEDMAN,,M,D.

Chairman

Risk Management Committee

A-103

N ae af r > oF N

Denver Regional Office

820 Grant Street THE HARTFORD

Denver, Colorado 80203

Telephone:(303)837-1515

April 26, 1977

Donald E. Tyler, M. D.

1790 East Bridge Street

Brighton, Colorado

Dear Dr. Tyler:

The underwriting department of

Hartford has been kept abreast of the on-

going efforts of the Risk Management

Committee of the Colorado Medic al Society

to inspect your emergency room records at

Brighton Community Hospital, We

understand numerous requests have been

made to inspect records whether you are

keeping adequate emergency room records,

Hartford works in close cooperation with

A-104

the Risk Management Committee and, among

other things, uses records and information

concerning medical records for premium

computation,

One of the conditions of your policy with

the Hartford, Condition lL on page 4 of the

General Policy Provisions section provides

the insured. . shall send copies of such

records to the company ... at such times

during the policy, as the company may

direct. We feel compliance with this

policy condition is a condition precedent to

any duty on Hartford's part to continue

coverage beyond your renewal date on

December II, 1977, and hereby formally

demands the opportunity to review your

emergency room records at Brighton

Community Hospital for the past three years.

I also want to advise you that Hartford's

A-105

contract with the Colorado Medical Society

provides the company may refuse to renew

a physician in the event he or she fails to

cooperate with the Risk Management

Committee. Please reconsider your position

relative to the examination of your records

as a continued refusal to provide these

records to the Hartford may well lead to a

decision not to renew your coverage come

December II, 1977.

Please call me if you have any questions.

Yours very truly,

(signed) Thomas H. Mitchell

Thomas H. Mitchell

Underwriter

Casualty Department

TM:gn

A-106

WARREN & SOMMER INCORPORATED

SUITE 500/3955 East Exposition

DENVER, COLORADO 80209

Telephone 303-744-3711

April 26, 1977

Donald E. Tyler, M. D.

1790 Bridge Street 8

Brighton, Colorado

Re: Donald E. Tyler vs Gaylor, et al

Dear Dr, Tyler:

You may recall I wrote you on behalf of

the Hartford Insurance Company on March 29,

1977, concerning problems encountered by

the Risk Management Comm. ee of the

Colorado Medical Society in its attempt to

review your emergency room records at

Brighton Community Hospital. You were then

advised Hartford would be unable to renew

your policy on December Il, 1977, your

annual renewal date. The notice of

A-107

non-renewal was based solely on your

refusal to permit the Committee to review

your emergency room records, The purpose

for that request was to determine whether

medical care rendered = you was being

adequately documented in the event you were

to be sued,

Dr. Brittain of the Risk Management

Committee has recently advised Hartford

the Committee wishes to give you the

opportunity to discuss this matter with the

Committee before it makes any final

recommendations concerning non-renewal.

I've also been advised a representative of

the Committee has written you in this

regard,

Accordingly, Hartford plans to reserve

its decision on non-renewal until you meet

with the Committee and the Committee has

A-108

made further recommendations.

Without waiver of any rights under the

policy, and more specifically, the right to

contend your refusal tc cooperate with the

Committee is proper grounds for non-

renewal, Hartford is for the time being

withdrawing the notice of non-renewal as

set forth in my letter of March 29, 1977,

I'm sure you understand the request to

examine your e is not personal and

was not and is not intended to be a

reflection on the way you practice medicine,

Similar requests have been directed to

numerous doctors in an effort to evaluate the

manner in which records are kept and to

assist and educate these physicians. I urge

you to cooperate with Hartford and the

Committee in permitting review of your

records,

A-109

Sincerely,

(signed) Bill Buckm---

William M. Buckman

Vice President

WMB/jg |

cc: Wilfred Stedman, M. D.

Herbert J. Rothenberg, M. D.

James A. Henderson, M. D.

Robert 8. Brittain, M. D.

A-110

CMS

COLORADO MEDK AL SOCIETY

1601 East 19th Avenue

Denver, Colorado 80218-Phone (303) 534-8580

April 26, 1977

PERSONAL AND CONFIDENTIAL

Donald E. Tyler, M. D.

1790 East Bridge Street

Brighton, Colorado

Dear Dr. Tyler:

I have written you on two separate

occasions, on November l, 1976, and on

January 12, 1977, requesting on behalf of the

Risk Management Committee of the Colorado

Medical Society, permission to examine your

hospital records at Brighton Community

Hospital over the past three years, That

request to examine records, outstanding

since November 1, 1976, was also verbally

communicated to you at the time of my

A-ill

deposition on January 4, 1977, and thereafter

to your former attorney, Mr. Mitchem.

Because of your failure to cooperate with

the Risk Managemnt Committee, the

Committee recommended that Hartford refuse

to renew your professional liability coverage.

Although the Committee's recommendation

is that your coverage not be renewed on the

annual renewal date, we want to give you the

chance to discuss this matter with the

Committee. We want to discuss this matter

with you personally before making any final

recommendation to Hartford concerning

non- renewal.

The Committee has now asked that

Hartford reserve any final decision whether

to renew your policy until we've had a

chance to discuss this matter with you and

make further recommendations,

A-Li2

Would you be kind enough to give me a call

and let me know whether you would be willing

to meet with the Committee to discuss this

matter?

Our next committee meeting is set for

Monday, May 9, 1977, at 8:30 P. M. at

Colorado Medical Society, 1601 East 19th

Avenue, Denver, Colorado. If you don't

contact me, please consider this letter as a

formal request that you meet with the

Committee on May 9, 1977, to discuss the

matters of your cooperation with the

Committee and the Committee's recommen -

dation concerning non-renewal of coverage.

If you fail to attend the meeting, the

Committee will make a final recommendation

against renewal of coverage on that date, in

that event you will again be notified of our

recommendation against renewal and will

have 30 days from your receipt of

A113

notification of non-renewal to appeal this

decision to the Board of Trustees of the

Colorado Medical Society.

Very sincerely yours,

(signed) Robert S. Britt--- MD

Robert S. Brittain, M.D.

Member

Risk Management Committee

RSB/mhs

A-114

DONALD E. TYLER, M. D.

UROLOGIST

1790 East Bridge Steeet

Brighton, Colorado 80601

Telephone 659-4581

September 9, 1977

Joseph H. Poynter, M. p.

Chairman, Risk Management Cotamittee

2750 Broadway

Boulder, Colorado

Dear Doctor Poynter:

I have received the vielen of you and

those you represent to examine the records of

my patients, You have stated that my

records may be deficient.

I request the following information:

1. Who reported information concerning

records of my patients to the Risk

Management Committee?

2. Who reported information concerning

A-1¹5

—

eee

records of my patients to you?

3. When was each of those reports made?

4. Where were each of those reports made?

5. What were the contents of each of such

reports?

6. What patients' records are considered to

possibly be deficient?

7. Who (names please) determined that they

may be deficient ?

8. In what respects are each of such records

considered to possibly be deficient ?

9. Have you examined any records of my

patients? If so, please identify which records

you examined with exactness, and who

supplied them to you, when and where,

10. Has the committee examined any

records of my patients? If so, please

identify exactly which records were

examined and who supplied them, and when

and where they were supplied.

A-

ll, By whose permission were each of such

records examined? oe

12. What is the purpose of your request? Of

course, you are aware that the Risk

Management Committee has already made a

recommendation that my professional

liability insurance not be renewed and this

has been acted upon. What do you intend

ome You are undoubtedly aware that

matters with which you are involving

yourself are properly before two courts of

law,

My patients expect me to not reveal

confidences. It is against my ethics to not

cause a breach of that expectation and I

respect and observe the same ethics

concerning patients of other physicians. R

is recognized, and by your letter, that those

may not be the same as your ethics or those

A-117

of the organizations which sponsored the

legislation you cited.

I hope you will cooperate and supply me

with the above information so that I might

have some idea of your interest.

Edo not know of any patients whom I have

seen as emergencies in any hospital

Emergency Room in the past two years. I

sincerely request that you reconsider your

involvement in this matter.

Yours truly,

(signed) D. E. Tyler

Donald E. Tyler, M. D., J. D., FC LM

cc:

Robert Brittain, M.D.

Herbert Rothenberg, M. D.

James Henderson, M.D,

Wilfred Stedman, M. D.

Carl McLauthlin, M. D.

A-118

IN THE DISTRICT COURT IN AND FOR THE

COUNTY OF JEFFERSON

STATE OF COLORADO

Civil Action No. 77CV0782

Division 4

DONALD E. TYLER, )

) FINDINGS

Plaintiff, )

) CONC LUSIONS

vs. )

) AND ORDERS

THE HARTFORD INSURANCE )

G ROUP, FRANCIS FRY, and)

ROBERT S. BRITTAIN, )

Defendants

This matter coming on to be heard on the

motion of the defendants to dismiss on

November 3rd, 1977, the Court having

heard arguments of counsel and reviewed the

briefs, makes the following Findings,

Conclusions and Orders concerning said

Motion to Dismiss:

The plaintiff has alleged five causes of

A-119

action in his Complaint, and the Court will

deal with each cause of action as pled by the

plaintiff,

The plaintiff has alleged claims of libel

and slander in Claims I and 2 of his Complaint,

and the Court will deal with them jointly.

In reviewing the plaintiff's complaint, the

Court concludes that the plaintiff has alleged

the essential elements necessary for

maintaining an action in libel and slander.

Defendants claim that the factual

circumstances surrounding the incident

constitutes privilege on various grounds.

One, with respect to documents pertaining

to litigation.

The law in Colorado is that publication of

a legal proceedings is qualifiedly privileged,

but not until it has gone into court and

thereby becomes public; and a qualified

A-120

p 9

privilege permits only the publication of a

truthful statement of the matter as it took

place in the court hearing. Switzer v. Anthony,

96 P. 391,

While publication concerning a legal

proceeding is qualifiedly privileged, the

matter must be pending in court, and must be

a truthful statement, otherwise the

publication is not privileged, Towles v.

Meador, 272 P. 625.

The plaintiff is alleging a non-truthful

statement made prior to the existence of the

point in time where the public aspect of the

judicial proceedings exists.

The defendants also cited Lininger v.

Knight, 226 P. 2d 809 for the proposition that

the letter itself would be absolutely

privileged since sent by a citizen to the

officials of a public entity. The plaintiff here

A-121

is alleging a republication of this letter to

individuals of private, not public interest,

A privileged statement repeated on a

non-privileged occasion is actionable,

C.J.S., Libel and Slander, Section 98.

Any qualified privilege which the

defendants assert, i. e., communication in

good faith upon a subject matter in which the

party communicating has legitimate

individual public or group interest (Ling v.

Whittemore, 343 P. 2d 1048), or inter office

memoranda (Abrahamsen v. Mountain States

Tel. & Tel. Co., 494 P. 2d 87), can be

‘lost, and for the purposes of a motion to

dismiss, must be determined inadequate to

constitute grounds for dismissal, because

plaintiff has alleged malice, the burden is

upon the plaintiff to prove malice when a

qualified privilege is found by the Court to

A-122

aa.

ett.

exist.

Questions of good faith on the part of the

defendants and the honest belief in the truth

of the statements put forth by them are all

factual matters for the trier of the facts,

Abrahamsen v, Mountain States Tel. & Tel.

Co, , 494 P. 2d 1287.

The Court concludes as to Claims |. and 2,

that the plaintiff has sufficiently pled a cause

of action and further factual determination

must be made by the trier of the facts before

the defense of privilege would lie. Therefore

the motion to dismiss Claims | and 2 should be

denied,

The Third Claim for Relief of the

plaintiff attempts to allege numerous causes

of action arising out of an anticipatory

breach of contract, conspiracy to interfere

and obstruct the plaintiff in the practice of

A-123

medicine, and conspiracy to breach the

contract,

The defendants maintain that the plaintiff

is alleging a breach of an existing insurance

contract which does not expire until

December II, 1977, and the plaintiff contends,

however, that he is alleging an anticipatory

breach of his expectancy of renewal of the

insurance contract, and therefore the basis

of his claim for relief,

The plaintiff is further stating as a basis

for his third claim for relief the provisions

of 10-4-109, CRS 1973, as amended, which

provides for renewal unless certain

conditions are met,

The Court in reviewing this section of the

statute could use the plaintiff's argument to

his disadvantage since the provision is

actually for non-renewal,

A-124

,

1

8

The instant situation may be analogized to

the case of Jones v. Hopper, 410 F. 2d 1323,

where the Court dismissed an action based

on expectancy of renewal of employment,

because a statute pertaining to employment

of state teachers specifically denied an

expectancy of renewal, and the statute

necessarily become a part of any contract

entered into by the parties.

In the present case, the Hartford gave

lawful notice of termination as required by

10-4-109, CRS 1973, providing that non-

renewal of a medical malpractice insurance

is conditioned upon the absence of the

happening of certain events,

"The provision specifically denies an

expectancy to continued employment;

therefore, absent an expectancy, there

should be no interest, One has no

A-125

i? 9

ey *

*

K 3 3 7 1

constitutional right to a remedy against the

lawful conduct of another. Jones v. Hopper.

The Court further concludes that the

statute does not provide an expectancy in the

plaintiff and therefore any action on his part

at this time would be premature, in that

there has not been any breach of the existing

contract, nor is he entitled to any expectancy

of renewal of that contract.

His other causes of action, coupled in his

third cause of iction, concerning conspiracy

to breach the contract, fail to allege a

cause of action upon which relief may be

granted, for the reasons heretofore

mentioned,

The Court concludes that the motion to

dismiss the third cause of action has merit

and should be granted.

The plaintiff has alleged in his fourth

A-126 |

cause of action a violation of his civil rights

under the provisions of 42 USC, Section 1983.

Under the provisions of Section 1983, in

order to maintain a cause of action,

allegations necessary to state a claim of

deprivation of civil rights under color of

state law are not to be held insufficient unless

it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim

which would entitle him to relief, Jones v.

Hopper, 410 F. 2d 1323,

The basic requirements of a civil rights

complaint are: (I) the conduct complained of

was engaged in under color of state law, and

(2) that such conduct subjected the plaintiff

to a deprivation of rights, privileges, or

immunities secured by the Federal

Constitution and laws. Jones », Hopper, supra.

The plaintiff in the instant case alleges

A-127

2:

1

1

that 10-4-109, Colorado Revised Statutes,

1973, as amended, brings the actions of

Hartford Insuran ce within the scope of

42 USC 1983.

The Court concludes that merely acting

under a state license is not state action

within the meaning of this section, Ouzts v,.

Maryland National Ins. Co., C. A. Nev. 1972,

470 F.2d 790, unless the state is otherwise

connected with the challenged conduct.

Holmes v. Elks Club, Inc., D.C. Fla 1975,

389 F.Supp. 854.

Neither does the fact that a private

corporation enjoys an economic monopoly

which is protected and regulated by the state

necessarily bring its every act withia the

purview of this section. Martin v. Pacific

Northwest Bell Tel. Co. C. A. Or. 1971.

441 F. 2d 1116.

A-128 >

—_ 7

1

3

State regulation of a business does not

transform a private party's activities into state

action for purposes of this section. Scott v.

Eversoll Mortuary, C. A. Cal. 1975, 522 F. 2d

1110; Johnson v. Heinemann Candy Co,, Inc.

D. C. Wis. 1975, 402 F.Supp. 714.

The Court further concludes that the mere

fact that a state has legislated in the area of

the conduct complained of does not in and of

itself constitute sufficient participation to be

appropriately denominated ''state action.

Barrett v. United Hospital, 376 F. Supp. 791.

Shirley v. State National Bank of Connecticut,

493 F.2d 739.

The situation before the Court is

analagous to that in the Shirley v. State

National Bank of Connecticut case in that the

only involvement through the statute cited is

prohibitive of a right to renew or cancel

A-129

existing insurance on 3 of the contract.

The statute provides only that notice and

cause (if demanded) be given.

Hartford is not using a power conferred

by the state to gare or deprive the plaintiff

in this case of his rights guaranteed by the

Federal Constitution. Thus, the requisite

"color of law“ is absent from the plaintiff's

claim and in the Court's opinion fatal to

maintaining any cause of action under this

section,

The Court therefore concludes that the

defendants' motion to dismiss the fourth cause

of action has merit and should be granted,

The plaintiff has alleged in his Fifth

Cause of Action outrageous conduct on

behalf of the defendants to his damage, and

in reviewing the Fifth Cause of Action, the

plaintiff has sufficiently pled the elements

A-130

i

which if found to exist would substantiate the

cause of action known as outrageous conduct,

and therefore the motion to dismiss at this

time as to the Fifth Cause of Action would be

premature, and therefore should be denied.

The last question raised was one of

punitive damages, and under the provisions of

the state the plaintiff has alleged malice,

wanton and reckless disregard of the rights

and feelings of the plaintiff, and would be if

the plaintiff sustained his burden of proof

actionable as provided by the statute,

Therefore the Court concludes that the

plaintiff has sufficiently pled punitive

damages as provided by the statute to

overcome at this time a motion to dismiss,

IT IS THEREFORE ORDERED, that the

Motion to Dismiss as to the First, Second and

Fifth Claims for Relief and allegations

A-131

dealing with punitive damages is hereby denied,

As to the Third and Fourth Claims for

Relief, the Motion to Dismiss is hereby

granted,

The Court orders the defendants to file

responsive pleadings as to the remaining

claims for relief of the Complaint within

thirty(30) days from the receipt of this order,

Done in open Court this l6th day of

December, 1977,

BY THE COURT:

(signed) Anthony F. Vollack

District Judge

A-132

IN THE DISTRICT COURT

IN AND FOR THE COUNTY OF JEFFERSON

STATE OF COLORADO

Civil Action No. 77CV0782, Div, 4

DONALD E, TYLER, )

)

Plaintiff, ) FINDINGS

)

VS. ) CONC LUSIONS

THE HARTFORD e

a ) AND ORDERS

GROUP, FRANCIS FRY and)

ROBERT S, BRITTAIN, ;

Defendants

THIS MATTER, Defendants’ Motion

for Summary Judgment, having come on to

be heard on December 12, 1980, the Court,

having heard arguments of counsel, read the

briefs submitted, and being fully advised in

the premise, enters the following Findings,

Conclusions and Orders, * .

The undisputed facts are that Plaintiff,

A-133

on

Dr. Donald Tyler, filed the instant suit in

April 1977 asserting claims of libel, slander,

civil conspiracy, a violation of civil rights

pursuant to 42 U.S.C. § 1983, and outrageous

conduct against the Defendants. The claims

of libel, slander, and outrageous conduct

(Counts 1, 2, and 5 respectively) are based

on the alleged publication and republication

by the Defendants of certain statements

contained in a letter written by Donald Gaylor

to Dr, Galen Marks, Chief of Staff of the

Brighton Community Hospital (hereinafter

the Gaylor letter, Exhibit A of the Complaint).

The Gaylor letter concerns an incident which

occurred at the Brighton Community

Hospital between Plaintiff and Ms. Margaret

Schroer, Donald Gaylor's aunt. Plaintiff

asserts that Defendant Fry, an employee of

Defendant Hartford Insurance Group,

A-134

republished the letter to Defendant Brittain,

who in turn republished the contents of the

letter rally to other persons. The Court

granted Defendants' Motions to Dismiss the

Counts of conspiracy and civil rights

violations on December 16, 1977.

Plaintiff had previously filed suit in 1975

in Boulder County (the case was subsequently

transferred to Adams County) against other

Defendants. The Adams County suit, Tyler

V. Gaylor, was also base on the Gaylor letter;

however, the letter which was the subject

of that suit was from Donald Gaylor to Dale

Alter, Chairman of the Board of Directors

of the Brighton Community Hospital. In all

other respects the letters are identical,

except that the letter to Dr, Marks is signed

by Mr. Gaylor and the letter to Mr, Alter is

not signed. In Tyler v. Gaylor the Court

A-135

ruled as a matter of law that the Gaylor letter

was libelous per se, The case was submitted

to a jury, which returned a verdict for the

Defendants. On appeal, the Court of Appeals

reversed the trial judge's determination,

“holding that the letter was not an actionable

form of libel (Decided June 4, 1979, No.

77— 894). The Court of Appeals decision

was not chosen for official publication, The

Supreme Court of Colorado denied Plaintiff's

petition for certiorari on October 9, 1979.

Defendants contend that there is an

absence of any genuine issues of material

fact which would require submission of the

case to atrier of fact. Defendants assert

that Plaintiff is precluded by the doctrine of

collateral estoppel from litigating his

claims of libel and slander, since these

claims are based on the Gaylor letter, which

A-136

was determined to be non-actionable,

Defendants also contend that Plaintiff's claim

of outrageous conduct can he determined as

a matter of law because ''mere words" are

not actionable,

Plaintiff denies that there are no material

issues of fact to be r Plaintiff

asserts that the Court of Appeals opinion

may not be used as a precedent or to

collaterally estop him from litigating his

charges against the Defendants, Plaintiff

also contends that the Gaylor letter was quo ed

incorrectly in the Court of Appeals opinion,

and collateral estoppel should not be applied

by this Court because the letter which is the

subject of this action is different from the

letter determined to be non-actionable by

the Court of Appeals.

At the outset, the Court disagrees with

A-137

Plaintiff's assertion that the Court of Appeals

incorrectly quoted the Gaylor letter in its

opinion, After a careful examination of the

letter attached as an exhibit to the Adams

County complaint and the quote in the Court

of Appeals opinion, the Court conclud:s that

the quote is complete and correct, The

Court also notes that the letter which was the

subject of the Adams County case is identical

to the letter at issue here, with the

exception of the aforementioned different

addressees and missing signature, Plaintiff

himself, in his Response to Defendants’

Motion to Dismiss for Lack of Prosecution,"

filed June 25, 1979, stated:

1. The letter subject of this action

designated as EXHIBIT A of the complaint

has the same content as the letter subject

of Civil Action 26884, D istrict Court of

Adams County, and action for libel.

A-138

5. Final determination of aforementioned

civil action and appeal is essential and

is expected to be determinative of certain

issues in this instant claim, and

particularly to the cliam of libel.

(Plaintiff's Response, p. 1).

The Doctrine of collateral estoppel holds

that the final decision of a court on an issue

actually litigated and determined is

conclusive of that issue in any subsequent

suit. Pomeroy v. Waitkus, 183 Colo, 344,

517 P. 2d 396, 399 (1973). “The rule

limit/s/ litigation by preventing a party who

has had one fair trial on an issue from again

drawing it into coat roversy. Bernhard v.

Bank of America Nat. Trust & Sav. Ass'n.,

19 Cal. 2d 807, 122 P. 2d 892, 894 (1942)

(citations omitted). In their motion,

Defendants are attempting to invoke

defensive collateral estoppel--they are

seeking to prevent Plaintiff from

A-139

‘i 3

. N a N . * 63

KR. * S e ie.

relitigation an issue which he previously

litigated in another action, with another

party. Because the Plaintiff, in the earlier

action, had both the ability to choose the

forum and the incentive to pursue the action

vigorously (including joining potential

defendants in the first action), the use of

defensive collateral estoppel generally does

not create any unfairness or inequity.

Parklane Hosiery Company, Inc. v. Shore,

439 U.S. 322, 329 (1979).

In Pomeroy v. Waitkus, supra, the

Colorado Supreme Court enumerated four

tests to be used to determine if collateral

estoppel may be applied:

First, was the issue decided in the prior

adjudication identical with the on presented

in the action in question? Second, was

there a final judgment on the merits?

Third, was the party against whom the

plea is asserted a party or in privity with

a party to the prior adjudication? And,

fourth, did the party against whom the

plea is asserted have a full and fair

A-140

cy sme *

n. * nn 1 wit «+ a ot ‘oie. Ras 1 ~ 3 888 >

;

A-l41 ,

. i

D ee ee ee c . * ae

opportunity to litigate the issue in the

prior adjudication?

517 P. 2d at 399 (emphasis added).

In the instant case, all four tests given in

Pomeroy have been met. The decisive issue

in Tyler v, Gaylor was whether the Gaylor

letter was defamatory, Plaintiff also bases

his claims of libel and slander against these

Defendants on the Gaylor letter. Plaintiff does

not allege that Defendants made any

defamatory statements, written or oral,

other than those contained in the Gaylor

letter, Therefore, the issue decided in the

prior case, the defamatory nature of the

letter, 7 identical with the issue presented

in the instant case.

The second test is also met. A final

determination on the merits exists in the

Tyler v Gaylor action. The Court of

Appeals expressly held that the Gaylor

¥ B _ eT

ae

2 a

2 wa 1 —.

— *.

letter was not defamatory, and the Plaintiff's

Petition for Certiorari was denied by the

Colorado Supreme Court.

Defendants meet the third test because

they are asserting the doctrine of collateral

estoppel against Plaintiff, who was a party in

the prior action. Murphy v. Northern

Colorado Grain Co,, Colo. App. 21, 488 P. 2d

163 (1971).

Defendants also meet the fourth test.

Plaintiff had a full and fair opportunity to

litigate the issue of the nature of the Gaylor

letter in the prior adjudication. Plaintiff

was permitted to present evidence to the jury

on the defamation issue, and appealed the

jury verdict to the Court of Appeals.

Plaintiff obviously had both the incentive

and opportunity to fully litigate the question,

and did so,

A-142

1

Because all four teste are met and

collateral estoppel applies to preclude

Plaintiff from asserting that the Gaylor

letter is defamatory and actionable, Plaintiff's

first and second claims must fail. Defendants

could not be guilty of libeling or slandering

Plaintiff by publishing non-defamatory

statements.

The tort of outrageous conduct,

Plaintiff's fifth claim against the

Defendants, is defined as extreme and

outrageous conduct intentionally or

recklessly /done which/ causes severe

emotional distress to another

Liability exists only when the conduct

complained of is both extreme and

outrageous.

Liability has been found only where the

eas conduct has been so outrage ous in

* a character, and so extreme in degree, as

A-143

to go beyond all possible bounds of

decency, and to be regarded as atrocious,

and utterly intolerable in a civilized

community. Generally, the case is one

in which the recitation of the facts to an

average member of the community would

arouse his resentment against the actor,

and lead him to exclaim, "outrageous! "

Rugg v. McCarty, 173 Colo. 170, 476 P. 2d

753, 756 (1970),

Colorado has adopted Section 46, Comment

h of the Restatement of Torts, which states:

It is for the court to determine, in the

first instance, whether the defendant's

conduct may reasonably be regarded as so

extreme and outrageous as to permit

recovery, or whether it is necessarily so.

Where reasonable men differ, it is for the

jury, subject to the control of the court,

to determine whether, in the particular

case, the conduct has been sufficiently

extreme and outrageous to result in

liability.

Blackwell v. Del Bosco, 35 Colo. App. 399,

536 P. 2d 838, 841 (1975), aff'd 191 Colo. 344,

558 P. 2d 563 (1976).

It is therefore a reprequisite to

A-144

submission of a claim of outrageous conduct

to the finder of fact that the Court determine

as a question of law whether reasonable

people could differ as to the outrageous

nature of the actions complained of,

Mere words, however profane or

insulting, will not establish a cause of action

for outrageous conduct, See Meiter v,

Cavanaugh, 40 Colo. App. 454, 580 P. 2d 399

(1978); Holtz v. United Airlines, Inc.,

No. 76-A-513 (D. Colo. June 6, 1977). In the

instant action, the foundation for the claim

of outrageous conduct is the allegations

contained in Counts I and 2 concerning

Defendants' communication of the contents

of the Gaylor letter, The words allegedly

written and/or spoken are not even profane

or obviously insulting, and have been

determined to be non-defamatory. In light

of the foregoing, the Court is of the opinion

A-145

that a reasonable person could not find that

the Defendants' statements constituted

outrageous conduct,

Rule 56(b) of the Colorado Rules of

Civil Procedure provides:

A party against whom a claim, counter-

claim or crossclaim is asserted or

declaratory judgment is sought may, at

any time, move with or without

supporting affidavits for a summary

judgment in his favor as to all or any

part thereof,

Summary judgment is a drastic remedy,

but where there are no genuine issues of

legally dispositive facts, it is the duty of the

court to enter a summary judgment. Fort

Collins Houses v. Fort Collins, 30 Colo. App.

445, 496 P. 2d 1074, 1077 (1972).

For the above stated reasosns, the Court

concludes that there is no ee issue of

any material fact, The Court hereby enters

summary judgment in favor of the Defendants

A-146

and against the Plaintiff in this matter,

SO ORDERED this 8th day of January, !951.

BY THE COURT:

(signed) Anthony F. Vollack

DISTRICT JUDGE

A-147

IN THE DISTRICT COURT IN AND FOR THE

COUNTY OF JEFFERSON

STATE OF COLORADO

Civil Action No, 77CV0782, Div. 4

DONALD E. TYLER,

Plaintiff,

vs. ORDER

THE HARTFORD INSURANCE

GROUP, FRANCIS FRY,

ROBERT S, BRITTAIN,

— = eee ee ee ee ee ee ee ee ee”

Defendants.

This matter coming on to be heard on the

2lst day of February, 1978, on the motion of

the plaintiff to compel the defendants to turn

over for inspection files pertaining to the

defense of three suits instituted by the

plaintiff against Dr, Larsen, Mr. Gaylor

and Dr. Marks, in which the Defendant

Hartford Insurance Company afforded

A-148

defenses in the said suits filed in the Adams

County District Court, The files in question

based upon statements of counsel for the

defendant were prepared in anticipation of

trial, and that said materials contained

mental impressions, conclusions and

opinions and legal theories of the attorneys

and other agents of Hartford Insurance

Company.

The suits in Adams County were

predicated on the same letter from Mr.

Gaylor which the plaintiff is contending in the

present lawsuit to have been published by the

defendants in this action to his damage.

The defendants contend that the materials

contained in said files are privileged and not

discoverable by the plaintiff.

The defendants contend further that a

similar request made by the plaintiff during

A-149

discovery procedures in Adams County and

the trial judge in that case denied the

plaintiff's request to review the files on the

grounds that they were privileged under Rule

26 (b) (3), Colorado Rules of Civil Procedure.

The Court concludes based upon

statements of counsel that the materials in

the subject files were prepared or compiled

in anticipation of litigation and that said

materials, containing the impressions,

conclusions and opinions of the agents of the

Defendant Hartford Insurance Company and

legal theories of their attorneys concerning

the said litigation would not be discoverable

under Rule 26 (b) (3).

The Court therefore denies the plaintiff's

motion to compel the defendants to produce

the three files concerning the Adams County

litigation for inspection by the plaintiff in

A-150

this case,

Done in open Court, this 28th day of

February, 1978.

BY THE COURT:

(signed) Anthony F. Vollack

District Judge

A-151

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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