2013 COA 158
Colo. Ct. App.2013Background
- Mildred Fernandez died after an accident at an American Furniture Warehouse (AFW) store; she was survived by her husband Ezekiel and a son (plaintiff).
- Husband retained counsel, notified AFW's insurer he was asserting a wrongful-death claim, negotiated, and in December 2011 accepted $400,000; he executed a broad release in February 2012.
- Son thereafter sued AFW under Colorado's Wrongful Death Act asserting a wrongful-death claim.
- AFW moved for summary judgment, arguing the Act permits “only one civil action” for a decedent and husband’s prior settlement barred son’s later claim.
- The district court granted summary judgment for AFW; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pre‑litigation settlement by a spouse with the primary right to sue counts as an “action” that bars subsequent wrongful‑death suits by heirs under § 13‑21‑208(1)(a) | Son: "Action" and "sue" mean judicial proceedings; a pre‑suit settlement is not an "action," so the bar does not apply. | AFW: The Act’s "only one civil action" limit was meant to prevent multiple recoveries; a spouse with the primary right may settle and that settlement should bar later claims. | The court held a pre‑litigation settlement by the spouse is an “action” for § 13‑21‑208(1)(a) purposes and bars subsequent heirs’ claims. |
Key Cases Cited
- Hopper v. Denver & R.G.R. Co., 155 F. 278 (8th Cir. 1907) (wrongful‑death recovery only available by statute)
- Clint v. Stolworthy, 357 P.2d 649 (Colo. 1960) (statutory scheme governs who may bring wrongful‑death actions)
- Estate of Kronemeyer v. Meinig, 948 P.2d 119 (Colo. App. 1997) (only one wrongful‑death action permitted)
- Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983) (spouse’s exclusive right to sue in first year)
- Steedle v. Sereff, 167 P.3d 135 (Colo. 2007) (Act limits damages by requiring claims be combined)
- Hernandez v. Downing, 154 P.3d 1068 (Colo. 2007) (definition of “action” as judicial proceeding)
- Whitley v. Georgia W. & Watkins Motor Lines, Inc., 299 F. Supp. 1238 (E.D. Tenn. 1969) (pre‑suit settlement by primary beneficiary binds subsequent beneficiaries)
- Spencer v. Bradley, 351 S.W.2d 202 (Mo. 1961) (beneficiary need not file suit to effect recovery; settlement suffices)
- Blessing v. Chicago, B. & Q.R. Co., 171 S.W.2d 602 (Mo. 1948) (widow’s right to compromise suit binds others)