2020 COA 144
Colo. Ct. App.2020Background
- Gary Suydam was struck by two cars while bicycling; Chelsea Brewer (an LFI Fort Pierce employee) hit him first and Stephen Tecmire hit him second, leaving Suydam a quadriplegic.
- Plaintiffs sued Brewer, LFI, Tecmire, and others; plaintiffs obtained an entry of default against Tecmire for failing to respond.
- At trial the jury awarded >$54 million (≈$32M for physical impairment/disfigurement) and apportioned fault 90% to Brewer (thus LFI) and 10% to Tecmire.
- LFI appealed, raising three principal issues: (1) trial court refused a going-and-coming jury instruction, (2) the court changed Tecmire’s status from defaulted defendant to nonparty at fault during trial, and (3) the damages award (challenge to per-diem argument and statutory distinction) was improper.
- Trial evidence showed Brewer was returning from a job site to LFI’s office with two coworkers, LFI equipment, and a work order (including next-day personnel needs); no evidence showed she was driving home or to a personal destination.
- The trial court instructed the jury on standard scope-of-employment (CJI) and also informed the jury Tecmire was at fault; the court later treated Tecmire as a nonparty but did not rescind the jury instruction that he was liable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by refusing a going‑and‑coming jury instruction | Brewer was acting in scope of employment: she was performing duties for LFI (transporting employees, equipment, work order) | Brewer was commuting home; going‑and‑coming rule absolves LFI of respondeat superior liability | No error — evidence did not support a going‑and‑coming instruction; standard scope‑of‑employment instruction was supported and given |
| Whether changing Tecmire from defaulted defendant to nonparty at fault prejudiced LFI and requires a new trial | Plaintiffs maintained dismissal of Tecmire was proper and court could treat him as nonparty | LFI argued the change shifted burden, allowed plaintiffs to excuse Tecmire via expert testimony, and permitted prejudicial closing argument | No reversible error — court had instructed jury Tecmire was liable and a cause of harm from the outset; any change was harmless and caused no unfair prejudice |
| Whether damages award should be set aside for (a) improper per‑diem argument and (b) vagueness/labeling to evade statutory cap | Plaintiffs argued the award was proper and supported by closing argument and evidence of impairment | LFI argued per‑diem argument was improper and the statutory distinction between capped noneconomic damages and uncapped physical impairment is meaningless | Not reached on the merits — both challenges were not preserved (no contemporaneous objection to closing per‑diem argument; no instruction preserved challenge to statutory distinction) |
Key Cases Cited
- Day v. Johnson, 255 P.3d 1064 (Colo. 2011) (standard for correct and complete jury instructions)
- Melton v. Larrabee, 832 P.2d 1069 (Colo. App. 1992) (instruction entitlement requires more than a scintilla of evidentiary support)
- Beeson v. Kelran Constructors, Inc., 608 P.2d 369 (Colo. App. 1979) (Colorado formulation of the going‑and‑coming rule)
- Stokes v. Denver Newspaper Agency, LLP, 159 P.3d 691 (Colo. App. 2006) (employer liable when employee’s conduct motivated to serve employer and connected to authorized acts)
- Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011 (Colo. 2006) (scope of employment is a question of fact)
- Thompson v. Colo. & E. R.R. Co., 852 P.2d 1328 (Colo. App. 1993) (requirements and timing for designating nonparties at fault)
- Dickinson v. Lincoln Bldg. Corp., 378 P.3d 797 (Colo. App. 2015) (entry of default establishes liability but not damages)