COLORADO COURT OF APPEALS 2017COA20 

Court of Appeals No. 16CA0102 

Arapahoe County District Court No. 14CV32139 

Honorable Charles M. Pratt, Judge 

Chris Bermel, 

Plaintiff-Appellant, 

v. 

BlueRadios, Inc., 

Defendant-Appellee. 

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, 

AND CASE REMANDED WITH DIRECTIONS 

Division VII 

Opinion by JUDGE BOORAS 

Terry, J., concurs 

Berger, J., specially concurs 

Announced February 23, 2017 

Kishinevsky & Raykin, LLC, Igor Raykin, Ian Griffin, Aurora, Colorado, for 

Plaintiff-Appellant 

Brosseau Bartlett Seserman, LLC, David B. Seserman, Chad Lieberman, 

Greenwood Village, Colorado, for Defendant-Appellee
1 

¶ 1 In Van Rees v. Unleaded Software, Inc., 2016 CO 51, the 

supreme court granted certiorari review on the question whether 

the economic loss rule may bar a claim for civil theft under section 

18-4-405, C.R.S. 2016 (the civil theft statute). Ultimately, the court 

did not answer that question because it was able to affirm on the 

narrower ground that the plaintiff had failed to prove one of the 

required elements of theft. Van Rees, ¶¶ 23-24. 

¶ 2 This appeal raises the question left unanswered in Van Rees. 

Plaintiff, Chris Bermel, contends that the trial court erred when it 

denied his motion for summary judgment, in which he argued that 

the economic loss rule barred the claim of defendant, BlueRadios, 

Inc., for civil theft. Because the economic loss rule is a judicial 

construct, and because a civil theft claim is a statutory cause of 

action, we reject Bermel’s argument and hold that the economic 

loss rule does not preclude a cause of action under the civil theft 

statute. 

¶ 3 However, as to Bermel’s Colorado Wage Protection Act (CWPA) 

claim, we conclude that summary judgment was improper, and we 

remand for further proceedings as to that claim. 
2 

I. Background 

¶ 4 In 2009, Bermel entered into a “Contractor Agreement” with 

BlueRadios. Under the agreement, Bermel provided engineering 

services to BlueRadios. Contemporaneously with his execution of 

that agreement, Bermel also signed a “Proprietary Information and 

Inventions Agreement” (PIAA). The PIAA contained the following 

provision related to Bermel’s removal, delivery, and return of 

“Company Materials”: 

All Company Materials shall be the sole 

property of the Company. I agree that during 

my employment and/or contracting 

arrangement with the Company, I will not 

remove any Company Materials from the 

business premises of the Company or deliver 

Company materials to any person or entity 

outside the Company, except as I am required 

to do in connection with performing the duties 

of my employment and/or contracting 

arrangement. I further agree that, immediately 

upon the termination of my employment 

and/or contracting arrangement by me or by 

the Company for any reason, or for no reason, 

or during my employment and/or contracting 

arrangement if so requested by the Company, I 

will return all Company Materials, apparatus, 

equipment and other physical property, or any 

reproduction of such property, excepting only 

(i) my personal copies of records relating to my 

compensation; (ii) my personal copies of any 

materials previously distributed generally to 
3 

stockholders of the Company; and (iii) my copy 

of this agreement. 

¶ 5 The parties renewed both agreements annually until July 

2014. At that point, they were unable to agree on renewal terms, so 

the parties ended their relationship. However, anticipating that he 

might end up in litigation over unpaid wages, Bermel breached the 

PIAA by forwarding to his personal e-mail account (Gmail account) 

what he described as thousands of BlueRadios e-mails and 

attachments, some of which contained proprietary information. 

¶ 6 Soon after the parties’ contract expired, BlueRadios received a 

demand letter from Bermel requesting $5113.34, which consisted of 

unpaid wages and expenses he had incurred on behalf of 

BlueRadios. BlueRadios paid Bermel this amount approximately 

two months after he sent the demand letter. 

¶ 7 Bermel filed the current lawsuit in August 2014, asserting 

claims for breach of contract, unjust enrichment, and violation of 

the CWPA, section 8-4-109(1)(a), (b), C.R.S. 2016. 

¶ 8 During a subsequent deposition, Bermel revealed to 

BlueRadios that he had forwarded company e-mails to his Gmail 

account. As a result, BlueRadios filed counterclaims against him, 
4 

including breach of contract; civil theft, under section 18-4-405; 

and conversion. BlueRadios also requested, and received, a 

preliminary injunction barring Bermel from “continuing to 

misappropriate [BlueRadios’] confidential information.” Despite this 

injunction, Bermel continued to access, modify, and delete 

BlueRadios e-mails that he had forwarded to his Gmail account. 

¶ 9 Both parties later filed motions for summary judgment. 

BlueRadios contended that Bermel was an independent contractor 

not entitled to the CWPA’s protection, and Bermel argued that 

BlueRadios’ civil theft and conversion claims were barred by the 

economic loss rule. 

¶ 10 The court granted summary judgment in favor of BlueRadios 

on Bermel’s CWPA claim, but it denied summary judgment on 

BlueRadios’ civil theft and conversion claims. The parties then 

proceeded to trial on BlueRadios’ counterclaims. After the close of 

evidence, Bermel moved for a directed verdict on BlueRadios’ civil 

theft claim, again arguing that the economic loss rule precluded 

such a claim. And, again, the court rejected Bermel’s argument, 

concluding that the economic loss rule does not bar a statutory 

cause of action. 
5 

¶ 11 Following trial, the court entered a written order finding 

Bermel liable on all of BlueRadios’ counterclaims. Pursuant to the 

civil theft statute, the court awarded attorney fees and $200 in 

statutory damages on BlueRadios’ civil theft claim. It awarded $1 

in nominal damages on each of the other claims. 

¶ 12 On appeal, Bermel contends that the trial court erred when it 

(1) denied his motion for summary judgment on BlueRadios’ civil 

theft and conversion claims and (2) granted BlueRadios’ motion for 

summary judgment on his CWPA claim. Before reaching their 

merits, we first address Bermel’s preservation of these arguments. 

¶ 13 Although in his motion for summary judgment Bermel raised 

the issue of the economic loss rule’s application to BlueRadios’ 

conversion counterclaim, he did not re-raise it in a motion for 

directed verdict or in a motion for judgment notwithstanding the 

verdict. Consequently, he failed to preserve that issue for appeal, 

so we will not address it. See, e.g., Top Rail Ranch Estates, LLC v. 

Walker, 2014 COA 9, ¶ 44 (a district court’s denial of a party’s 

motion for summary judgment is not an appealable order unless 

the moving party preserves the issue by re-raising it in a later 
6 

motion for directed verdict or judgment notwithstanding the 

verdict). 

¶ 14 Bermel did, however, preserve his contentions regarding the 

application of the economic loss rule to a civil theft claim and the 

court’s summary judgment on his CWPA claim. We address these 

two contentions in turn. 

II. Standard of Review and Summary Judgment 

¶ 15 We review de novo a trial court’s ruling on a party’s motion for 

summary judgment. Armed Forces Bank, N.A. v. Hicks, 2014 COA 

74, ¶ 20. “Summary judgment is appropriate when the pleadings 

and supporting documents clearly demonstrate no issue of material 

fact exists, and the moving party is entitled to judgment as a matter 

of law.” Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 852 

(Colo. App. 2007). 

III. The Economic Loss Rule and Civil Theft 

¶ 16 Bermel first contends that the trial court erred when it 

concluded that the economic loss rule does not bar BlueRadios’ civil 

theft counterclaim. We are not persuaded. 
7 

A. The Economic Loss Rule 

¶ 17 Under the economic loss rule, “a party suffering only economic 

loss from the breach of an express or implied contractual duty may 

not assert a tort claim for such a breach absent an independent 

duty of care under tort law.” Town of Alma v. AZCO Constr., Inc., 10 

P.3d 1256, 1264 (Colo. 2000). 

¶ 18 The Colorado Supreme Court adopted the economic loss rule 

in Town of Alma.In that case, the town contracted with a 

construction company for “improvements to [the town’s] water 

distribution system.” Id. at 1258. After discovering defects in the 

improvements to its water system, the town brought negligence 

claims against the construction company. Id.

¶ 19 The court held that the town’s “negligence claim [wa]s based 

solely on the breach of a contractual duty resulting in purely 

economic loss, and thus [wa]s barred by application of the economic 

loss rule.” Id. at 1266. In doing so, the court recognized that the 

rule was “originally born from products liability law,” but the court 

held that its applicability was “broader, because it serves to 

maintain a distinction between contract and tort law.” Id. at 1262. 
8 

¶ 20 In deciding whether the economic loss rule bars a particular 

claim, Town of Alma directs courts to focus on “determining the 

source of the duty that forms the basis of the action.” Id. Not only 

must the duty arise from a source independent of the contract, it 

must also be a duty that is not memorialized in the parties’ 

contract. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 74 (Colo. 

2004). 

B. Discussion 

¶ 21 We agree with the trial court’s conclusion that the economic 

loss rule does not bar a claim under the civil theft statute. 

¶ 22 By its plain terms, the civil theft statute establishes both a 

cause of action and a remedy for victims of theft: an owner of stolen 

property “may maintain an action . . . against the taker” to “recover 

two hundred dollars or three times the amount of the actual 

damages sustained . . . , whichever is greater, and may also recover 

costs of the action and reasonable attorney fees.” § 18-4-405. 

Indeed, in interpreting this statute in another context, our supreme 

court has concluded that “the General Assembly intended the [civil 

theft] statute to provide an owner with a private remedy against the 

taker that requires proof of a specified criminal act but not proof of 
9 

a prior criminal conviction to recover treble damages, fees, and 

costs.” Itin v. Ungar, 17 P.3d 129, 134 (Colo. 2000) (emphasis 

added); see also In re Marriage of Allen, 724 P.2d 651, 656 (Colo. 

1986) (noting that the legislature enacted the civil theft statute for 

“a punitive . . . purpose by depriving thieves . . . of the immediate 

fruits of their criminal activities and by making such persons pay 

damages that by definition are three times greater than the amount 

necessary to compensate their victims”). 

¶ 23 In contrast to this legislatively created cause of action, the 

economic loss rule — a rule that seeks to maintain the boundary 

between the law of contracts and torts — is a judicial construct. 

See Town of Alma, 10 P.3d at 1264. 

¶ 24 While maintaining the distinction between the law of contracts 

and torts is no doubt a laudable goal, the economic loss rule is 

nonetheless a judge-made rule. And that being the case, the 

economic loss rule cannot preclude a claim under the civil theft 

statute because the legislature explicitly provided that cause of 

action, and its attendant remedy, to victims of theft. 

¶ 25 Indeed, as the Florida Supreme Court put it in Comptech, the 

leading case on this topic, “the Legislature has the authority to 
10 

enact laws creating causes of action. If the courts limit or abrogate 

such legislative enactments through judicial policies, separation of 

powers issues are created, and that tension must be resolved in 

favor of the Legislature’s right to act in this area.” Comptech Int’l, 

Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219, 1222 (Fla. 

1999), receded from by Tiara Condo. Ass’n v. Marsh & McLennan 

Cos., 110 So. 3d 399, 400 (Fla. 2013) (restricting the economic loss 

rule’s application to products liability cases); see also Boehme v. 

U.S. Postal Serv., 343 F.3d 1260, 1266 (10th Cir. 2003) (“Colorado’s 

economic loss rule has no application” to a party’s claim under the 

forcible entry and detainer statute, section 13-40-104(1)(d), C.R.S. 

2016, because “the Colorado legislature has provided a statutory 

remedy to landlords”); Ulbrich v. Groth, 78 A.3d 76, 102 (Conn. 

2013) (the economic loss rule does not bar claims under the 

Connecticut Uniform Trade Practices Act, overruling prior contrary 

authority); Stuart v. Weisflog’s Showroom Gallery, Inc., 746 N.W.2d 

762, 772 (Wis. 2008) (the economic loss rule “cannot apply to 

statutory claims, including those under the [Home Improvement 

Practices Act]” because doing so would “ignor[e] the public policies 

that are the basis for the [act]”). 
11 

¶ 26 In short, allowing the economic loss rule to preclude a civil 

theft claim would thwart the legislature’s intended goals of (1) 

punishing thieves, Marriage of Allen, 724 P.2d at 656; and (2) 

“provid[ing] an owner with a private remedy against the taker” of 

stolen property, Itin, 17 P.3d at 134. 

¶ 27 In arguing to the contrary, Bermel relies principally on Makoto 

USA, Inc. v. Russell, 250 P.3d 625, 629 (Colo. App. 2009). In that 

case, a division of this court was presented with the same issue: the 

plaintiff argued that “the economic loss rule, as a judicial construct, 

cannot be applied to preclude a statutory claim.” Id. The court 

agreed that “if the legislature intended to provide a remedy in 

addition to a contractual one, the statutory remedy would trump 

the economic loss rule.” Id. Finding “no indication that the [civil 

theft] statute was intended to expand contractual remedies,” 
12 

however, the Makoto division concluded that the economic loss rule 

barred the plaintiff’s civil theft claim.1 Id.

¶ 28 We agree with Makoto’s general statement that a private 

remedy provided by the legislature would trump the economic loss 

rule. But we disagree with Makoto’s focus on whether the 

legislature “intended to expand contractual remedies.” Id. 

¶ 29 In our view, by asking whether the legislature “intended to 

expand contractual remedies,” id., the Makoto division incorporated 

the economic loss rule’s policy rationales in its analysis. We think 

the inquiry is simply whether the legislature intended to establish a 

cause of action for victims of theft. And, in this case, under the 

 

1 The division cited West v. Roberts, 143 P.3d 1037 (Colo. 2006), for 

the proposition that the civil theft statute has been construed 

narrowly to avoid expanding contractual remedies. There, the 

supreme court held that a provision of the Uniform Commercial 

Code — adopted by the legislature and codified at section 4-2-403, 

C.R.S. 2016 — had “abrogate[d] the stolen property statute so that 

‘theft’ in that provision does not include any theft in which an 

owner voluntarily relinquishes property to a thief under a 

transaction of purchase.” West, 143 P.3d at 1045. We agree that 

under the facts of Makoto, the West decision precluded the 

plaintiff’s civil theft claim in that case. We do not agree however 

that West provides guidance on the issue of whether the economic 

loss rule can bar a statutory cause of action. West considered 

whether one legislative enactment abrogated another, whereas here 

we are considering whether a judicial construct can, in essence, 

abrogate a statutory cause of action. 
13 

plain terms of the statute, it is evident that the legislature intended 

to do so. Accordingly, we affirm the trial court’s conclusion that the 

economic loss rule does not bar a claim under the civil theft statute. 

IV. Bermel’s CWPA Claim 

¶ 30 Bermel also contends that the trial court erred in granting 

BlueRadios’ motion for summary judgment on his CWPA claim 

under section 8-4-109(1)(a), (b). Specifically, he contends that the 

trial court failed to apply the CWPA’s definition of “employee” when 

it concluded that Bermel was an independent contractor not 

entitled to the CWPA’s protection. We agree. 

¶ 31 Under the CWPA, an employee is “any person . . . performing 

labor or services for the benefit of an employer in which the 

employer may command when, where, and how much labor or 

services shall be performed.” § 8-4-101(5), C.R.S. 2016. The CWPA 

goes on to state that 

[f]or the purpose of this article, an individual 

primarily free from control and direction in the 

performance of the service, both under his or 

her contract for the performance of service and 

in fact, and who is customarily engaged in an 

independent trade, occupation, profession, or 
14 

business related to the service performed is 

not an “employee.”2

Id. 

¶ 32 As we set forth above, BlueRadios filed a motion for summary 

judgment in which it contended that Bermel could not assert a 

claim under the CWPA because he was an independent contractor 

rather than an “employee.” BlueRadios supported its motion with 

an affidavit from its president, deposition transcripts, and other 

exhibits. In the affidavit, the president averred the following: 

 From 2009 to 2014, BlueRadios and Bermel annually renewed 

their “Contractor Agreement.” 

 BlueRadios gave Bermel “general project assignments”; Bermel 

“chose the order to perform work, the hours to work and the 

method for completing project assignments”; BlueRadios did 

 

2 Section 8-70-115(1)(c), C.R.S. 2016, contains a similar definition 

of employee in the context of unemployment compensation 

insurance tax liability. In that context, a multi-factor test, in which 

no one factor is determinative, is used to assess whether an 

individual is engaged in an independent business. See Indus. Claim 

Appeals Office v. Softrock Geological Servs., Inc., 2014 CO 30, ¶¶ 15, 

16. 

 
15 

not provid[e] any training to” Bermel; and Bermel “could pick 

and choose which assignments he wanted to work on.” 

 “After his deposition, [Bermel] produced a copy of a notebook 

that he testified he maintained and [that] reflected all of the 

direction and control he received from BlueRadios.” The 

president had “reviewed [a] copy of the notebook” and said it 

“consists primarily of doodles, schematic drawings, personal 

notes (such as notes on [Bermel’s] mortgage) and blank pages. 

The notebook shows that there was little, if any, direction 

given to or control exercised over how [Bermel] completed the 

tasks he was given.” 

 “In 2014, the Colorado Department of Labor and Employment 

conducted an audit of BlueRadios for the purpose of assessing 

whether the independent contractors working with BlueRadios 

were properly classified” as such. “The auditor conducted a 

very extensive and thorough review during which payroll 

records, time sheets, work assignments, contracts and other 

documents were reviewed.” The auditor also “conducted 

several interviews and looked at the amount of oversight and 

control BlueRadios exercised over contractors. The Colorado 
16 

Department of Labor and Employment concluded that 

independent contractors, including [Bermel], were properly 

classified as independent contractors and not employees.” 

¶ 33 In his response, Bermel contended that BlueRadios had cited 

cases that were inapplicable in determining whether a person was 

an employee or an independent contractor. Bermel asserted that 

the proper inquiry was whether he met the statutory definition of an 

“employee” under section 8-4-101(5). He further maintained that 

the question whether he was an employee or independent 

contractor involved disputed issues of material fact, but he did not 

support his allegations by “affidavits or otherwise” as required 

under C.R.C.P. 56(e). 

¶ 34 The trial court concluded that BlueRadios’ “exhibits set forth 

the way in which [Bermel] was treated by [BlueRadios] [as] — and 

held himself out via loans and federal tax forms to be — an 

independent contractor.” Thus, because independent contractors 

may not avail themselves of the CWPA’s protections, and Bermel 

“submitted no rebuttal evidence,” the court granted BlueRadios’ 

motion for summary judgment. 
17 

¶ 35 We agree with the trial court’s conclusion that the evidence 

attached to BlueRadios’ motion for summary judgment, which 

Bermel did not rebut, established that BlueRadios treated Bermel 

as an independent contractor. This unrebutted evidence was 

sufficient to carry BlueRadios’ initial summary judgment burden of 

establishing that Bermel was, “in fact,” “primarily free from control 

and direction in the performance of” his services to BlueRadios. 

§ 8-4-101(5). 

¶ 36 But the CWPA requires that the individual be “primarily free 

from control and direction in the performance of the service, both 

under his or her contract for the performance of service and in fact.” 

Id. (emphasis added). It also requires that the individual be 

“customarily engaged in an independent trade, occupation, 

profession, or business related to the service performed.” Id.

(emphasis added). The evidence attached to BlueRadios’ motion for 

summary judgment, which included the parties’ Contractor 

Agreement, did not establish that Bermel was free from control and 

direction under his contract or that he was customarily engaged in 

an independent trade, occupation, profession, or business related to 

the service performed.
18 

¶ 37 The parties’ contract contained the following provisions: 

3. Rate of Payment for Services. The 

Company shall pay Contractor an hourly wage 

of $27.50/hr. for the services of the contractor, 

payable at regular payroll periods every 

2-weeks. Company will provide Contractor 

time recording time sheet that shall be 

updated daily and signed and dated when 

submitted by the Contractor to the Company 

for payment. As an independent 1099 

Contractor[,] the responsibility for any [and] all 

taxes and social security, etc[.] will be the 

responsibility of the Contractor. 

4. Duties and Position. The Company hires 

the Contractor in the capacity of Electronics 

Design Engineer. The Contractor’s duties may 

be reasonably modified at the Company’s 

discretion from time to time. 

5. Contractor to Devote Full Time to 

Company. The Contractor will devote full time, 

attention, and energies to the business of the 

Company, and, during this contract, will not 

engage in any other related business activity of 

the Company, regardless of whether such 

activity is pursued for profit, gain, or other 

pecuniary advantage [but] Contractor is not 

prohibited from making personal investments 

in any other businesses provided those 

investments do not require active involvement 

in the operation of said companies. 

. . . 

8. Restriction on Post Contract Compensation. 

For a period of 2 years after the end of the 

contract, the Contractor shall not start or have 

control in any business similar to that 
19 

conducted by the company, either by soliciting 

any of its accounts or by operating within 

Employer’s specific trade business. 

¶ 38 In our view, these provisions raise a genuine issue of material 

fact as to whether Bermel was primarily free from BlueRadios’ 

control and direction in his performance of services under the terms 

of the parties’ contracts, and whether Bermel customarily engaged 

in an independent trade, occupation, profession, or business 

related to the services performed. In particular, under the terms of 

the contracts (1) BlueRadios required Bermel to “devote full time, 

attention, and energies to the business of” BlueRadios; (2) Bermel 

was prohibited from “engag[ing] in any other related business 

activity of” BlueRadios; (3) BlueRadios retained the right to 

reasonably modify Bermel’s duties at its discretion; (4) BlueRadios 

contracted to pay Bermel at an hourly rate “payable at regular 

payroll periods every” two weeks; and (5) Bermel could not operate a 

business that offered services similar to those conducted by 

BlueRadios for two years after the conclusion of the Contractor 

Agreement. Accordingly, BlueRadios failed to carry its burden of 

establishing that no genuine dispute of material fact existed as to 

whether, under the parties’ contracts, Bermel was an employee for 
20 

purposes of the CWPA. We therefore reverse the trial court’s grant 

of summary judgment on Bermel’s CWPA claim. 

¶ 39 In reaching this conclusion, we acknowledge that the parties 

could have provided better analysis in their summary judgment 

briefing to the trial court. BlueRadios did not cite the CWPA’s 

definition of an employee, and Bermel did not support his response 

to BlueRadios’ motion for summary judgment with any evidence. 

Nonetheless, BlueRadios failed to carry its initial summary 

judgment burden of establishing that Bermel was not an employee 

as that term is defined under section 8-4-101(5). Accordingly, 

reversal of the summary judgment on the CWPA claim is required. 

V. Appellate Attorney Fees 

¶ 40 Finally, BlueRadios contends that it should be awarded its 

attorney fees on appeal under the theft statute, section 18-4-405, 

and under the CWPA, section 8-4-110, C.R.S. 2016. We agree that 

BlueRadios is entitled to its appellate attorney fees under the civil 

theft statute. We therefore exercise our discretion under C.A.R. 

39.1 to remand this issue to the trial court to determine and award 

the total amount of BlueRadios’ reasonable fees incurred in 

litigating the civil theft issue on appeal. Payan v. Nash Finch Co., 
21 

2012 COA 135M, ¶ 63. In light of our reversal of the trial court’s 

grant of summary judgment on Bermel’s CWPA claim, however, we 

need not address BlueRadios’ request for appellate attorney fees 

under section 8-4-110. 

VI. Conclusion 

¶ 41 The summary judgment on the CWPA claim is reversed. The 

judgment is affirmed in all other respects. The CWPA claim is 

remanded for further proceedings consistent with this opinion and 

for determination of BlueRadios’ reasonable fees under the civil 

theft statute. 

JUDGE TERRY concurs. 

JUDGE BERGER specially concurs. 
22 

 JUDGE BERGER, specially concurring. 

¶ 42 I agree with the division’s disposition of this appeal and almost 

all of its analysis. My only departure is that I do not believe that 

BlueRadios met any part of its summary judgment burden on the 

CWPA claim. 

¶ 43 As the division recounts, BlueRadios supported its summary 

judgment motion with extensive evidence, including an affidavit 

from its president. While Bermel responded to the summary 

judgment motion, and contended that there were disputed issues of 

material fact that precluded summary judgment, he did not, as 

C.R.C.P. 56(b) permits (and sometimes requires), submit any 

evidence in opposition to the summary judgment motion.1

 

1 Unless the summary judgment movant meets her initial burden, 

the responding party has no duty to submit any evidence in 

opposition to the motion. People v. Wunder, 2016 COA 46, ¶ 43. 

The mere fact that the moving party submits evidence in support of 

the motion does not, by itself, compel the opposing party to counter 

with evidence. Id. Only if the moving party demonstrates that 

there are no disputed issues of material fact and that it is entitled 

to summary judgment as a matter of law does the responsibility 

devolve upon the opposing party to submit evidence. Id. While it 

surely is risky for the opposing party to fail to present evidence in 

opposition, he is not required to do so unless the moving party first 

meets her burden. Id.
23 

¶ 44 The division holds that the “unrebutted evidence [submitted 

by BlueRadios] was sufficient to carry BlueRadios’ initial summary 

judgment burden of establishing that Bermel was, ‘in fact,’ 

‘primarily free from control and direction in the performance of’” his 

services to BlueRadios. 

¶ 45 I disagree with this conclusion. In my view, BlueRadios did 

not meet any part of its summary judgment burden. The trial court 

had before it during the summary judgment proceedings the 

parties’ contract. Several provisions in that contract (addressed by 

the division in connection with its conclusion that BlueRadios did 

not meet its summary judgment burden regarding control of Bermel 

by BlueRadios “under his or her contract”) are relevant both to the 

control exercised by BlueRadios in fact as well as control that could 

be exercised under the contract. 

¶ 46 Contractual provisions that impose restrictive covenants upon 

a worker, both during the service of the worker and after 

termination of the relationship, speak not only to hypothetical 

control, but control in fact. While it is possible that BlueRadios 

could have waived those restrictions, making them inconsequential 

in connection with the “in fact” inquiry, nothing in the summary 
24 

judgment record so indicates. Thus, in my view, BlueRadios did not 

meet any part of its summary judgment burden and the trial court 

should have denied the motion in its entirety. 

¶ 47 Other than this relatively minor disagreement, I join the 

division’s opinion.