American Guarantee and Liability Insurance Co. v. King, 02CA927 (October 23, 2003): This case arose from settlements in two proceedings: a workers' compensation claim in which Jack King received benefits from the insurer, and a later malpractice action brought by King and his wife concerning other treatment by the same doctor who treated King for his industrial injury. After King's workers' compensation settlement, the doctor continued to treat him. Two years later, King was diagnosed with progressive kidney disease. The Kings sued the doctor for malpractice in failing to diagnose and treat the kidney disease during the initial treatment for the industrial injury. King notified the insurer that it might wish to assert subrogation rights under C.R.S. § 8-41-203.
  The Kings settled the malpractice claim for $250,000. Insurer brought an action against the Kings, the doctor and the Kings' lawyer on the basis that the mal-

practice settlement included wage loss and medical expenses that it had paid to King. However, insurer never obtained a medical opinion showing that the kidney disease caused King's wage loss. The claims against the doctor and lawyer were dismissed. The Kings counterclaimed against insurer for bad faith and abuse of process.
  At the close of insurer's evidence, the trial court granted King's motion for dismissal of the subrogation claims. The trial court also found that insurer maintained its suit out of dislike for King, without properly investigating, and in disregard of information that it did not have a claim; that it attempted to hide this information; that it was aware of and tried to exploit King's bad health; and that it joined the doctor as a defendant to trigger King's indemnification under the settlement agreement. The trial court held insurer liable for bad faith and abuse of process, awarded King noneconomic and punitive damages, awarded

Schwindt v. Hershey Foods Corp., 02CA1825 (November 20, 2003): Employee sustained an industrial injury while operating one of employer's machines. Employee and his wife sued employer in district court. Employee alleged that employer modified the machine to bypass the safety switch and to operate with the safety guards open, that employer knew that operation of the modified machine was dangerous, and that employer's actions were willful, wanton and in reckless disregard of the health and safety of its employees. The trial court granted employer's motion to

dismiss based on the exclusivity provisions of the Workers' Compensation Act (Act).
  The court of appeals affirmed. The court rejected employee's argument that because the complaint alleged an intentional tort, the exclusive remedy provisions of the Act do not bar a common law damage claim. The court noted that the Act provides the exclusive remedy for an employee's work related injury, even where the injury is a result of an intentional tort by a co-employee, absent an allegation that the co-employee was not acting in the course of employment. However, an employer may

be held liable to an employee in a common law damage claim for intentional torts committed by the employer if the employer deliberately intended to cause the injury and acted directly, rather than constructively through an agent.
  The court of appeals concluded that employee's complaint alleged at most a claim for gross negligence because it did not contend that employer intended to cause the injury. Thus, the exclusivity provisions of the Act barred the common law action.