B.G.‘S, INC., d/b/а Drink-n-Dawg, Petitioner, v. Marla GROSS, individually, and as surviving spouse of Gary A. Gross, Respondent.
No. 99SC873.
Supreme Court of Colorado, En Banc.
May 14, 2001.
As Modified May 21, 2001. Rehearing Denied June 4, 2001.
23 P.3d 691
J.J. Vick, Fort Collins, CO, Attorney for Respondent.
Justice COATS delivered the Opinion of the Court.
B.G.‘s, Inc., the defendant in the underlying wrongful-death action, sought review of the court of appeals’ decision in Gross v. B.G.‘s, Inc., 7 P.3d 1003 (Colo.App.1999), by writ of certiorari. The court of appeals reversed the district court‘s judgment in favor of B.G.‘s, holding instead that the plaintiff, Marla Gross, the surviving spouse of the decedent, was entitled to judgment against B.G.‘s and that the solatium award she elected in lieu of establishing noneconomic loss or injury was not subject to reduction by operation of comparative fault principles. Because the plain language of the sоlatium statute does not allow for a reduction of the $50,000 award, and because the solatium statute is the later and more specific enactment, a solatium award is not subject to reduction by operation of either the comparative negligence statute,
I.
The events giving rise to Respondent Marla Gross‘s wrongful-death action on behalf of her decedent husband occurred on September 26, 1994. Having consumed a combination of beer and liquor at B.G.‘s establishment, the “Drink-N-Dawg,” three patrons—the decedent, Michael Mintz, and Kirk Rossman—became intoxicated in the presence of B.G.‘s employee. While still intoxicated, all three left the bar in a vehicle driven by Rossman and ultimately were involved in a one-car accident in which the decedent was killed.
In the wrongful death action that followed, Gross alleged that an employee of B.G.‘s served the three visibly-intoxicated men without substantial interruption, in violation of
A jury ultimately found that an employee of B.G.‘s willfully and knowingly served an alcoholic beverage to Rossman while he wаs visibly intoxicated, and that such service was a cause of the decedent‘s death. As the jury also found negligence on the part of Rossman and the decedent to have been contributing causes to the accident and consequent death, it attributed percentages of fault to the respective parties and the nonparty in the following manner: Rossman—55%; the decedent—25%; B.G.‘s—20%. In response to B.G.‘s motion for determination of a question of law before commencement of the trial, the district court indicated that the solatium would not be subject to reduction; however, because the jury found the decedent more at fault than B.G.‘s, the district court entered judgment in favоr of B.G.‘s and therefore did not reach the issue of damages.
The court of appeals reversed, holding that Gross was entitled to judgment against B.G.‘s because the combined negligence of the nonparty at fault (55%) and the defendant B.G.‘s (20%) was greater than that of the decedent. In addition, the court of appeals rejected B.G.‘s contention that Gross‘s solatium award was subject to reduction by operation of comparative fault principles and accordingly remanded the case to the district court for entry of judgment in favor of Gross for the amount of $50,000. This court rejected B.G.‘s challenge to entry of judgment in favor of the plaintiff on the basis of the jury‘s apportionment of fault but granted its petition for writ of certiorari as to the amount of its liability to the plaintiff.3 Therefore, the sole issue before this court is whether Colorado‘s solatium statute,
II.
With regard to negligence actions generally, Colorado statutes prescribe a comparative negligence scheme under which a plaintiff can recover notwithstanding some negligence attributable to the person for whose injury recovery is sought, as long as thаt negligence was less than the negligence of the person against whom recovery is sought. See
Where multiple defendants are named in an action, this court has previously construed the statute to intend that the negligence of the injured person be measured against the combined negligence of the defendants, rather than separately against each individual defendant. Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 890 (Colo.1983). Furthermore, a defendant is permitted to name nonparties whom he believes to be wholly or partially at fault in producing the injury, see
As a corollary, or perhaps counterpoint, to the comparative negligence statute, which seeks to eliminate the inequity resulting from the prior contributory negligence approach that barred recovery upon a finding of any fault by the injured party, Colorado‘s pro-rata liability provision,
As an alternative to establishing these noneconomic damages, the general assembly has provided wrongful-death plaintiffs with the option of electing a $50,000 award, referred to as a “solatium.” Section 13-21-203.5 is entitled, “Alternative means of estаblishing damages—solatium amount,” and provides:
In any case arising under section 13-21-202, the persons entitled to sue under the provisions of section 13-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this section. Such solatium amount shall be in lieu of noneconomic damages recoverable under section 13-21-203 and shall be awarded upon a finding or admission of the defendant‘s liability for the wrongful death.
Because the solatium statute chаracterizes itself as an alternative means of establishing damages, and it provides for a solatium award of a specific, predetermined amount, without reference to sections 13-21-111 or 111.5, the question arises whether the solatium award was intended to substitute for the amount the plaintiff would ultimately be entitled to recover as noneconomic damages by operation of the general damage provisions or whether it is merely an alternate way of determining the plaintiff‘s total noneconomic loss or injury, subject to further reduction according to the comparative fault provisions.
In determining the meaning of statutes, an effort must be made to effectuate the legislative intent. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000); Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384-85 (Colo.1997). To that end, the statutory language should be given its plain meaning. Slack, 5 P.3d at 284; Swieckowski, 934 P.2d at 1385. Because the legislature is presumed to intend that statutes concerning the same subject or comprising a comprehensive statutory scheme be consistent and harmonious, Yuma County Bd. of Equalization v. Cabot Petroleum Corp., 856 P.2d 844, 849 (Colo.1993), consideration of other statutes dealing with the same subject is one type of extrinsic aid that can be useful in deciding questions of statutory interpretation. 2B Norman J. Singer, Sutherland Statutory Construction § 51.01 (6th ed.2000). When statutes are clear and unambiguous, however, they need not be construed by reference to extrinsic aids, People v. J.J.H., 17 P.3d 159, 162 (Colo.2001), and when different statutes present a clear conflict, even if they concern the same subject, no harmonious reading can be adopted. M.S. v. People, 812 P.2d 632, 637 (Colo.1991). If statutes are irreconcilable, other aids to construction must be applied to determine which was intended to prevail. See, e.g.,
Although the title of the solatium statute refers to an “[a]lternative means of establishing damages,” the body of the section makes clear that the term “damages” refers to a damage award rather than either the extent or value of the actual noneconomic loss or injury. The statute does not purport to prescribe an alternate method of evaluating the survivor‘s grief, loss of companionship, emotional stress, or other nonpecuniary harm. By its own terms, it specifies unequivocally that the amount of thе solatium is $50,000 and that such amount “shall be awarded” upon a finding of liability. Under the combined comparison approach, a defendant is liable, and the court must enter judgment in favor of the plaintiff if the decedent‘s negligence was not as great as that of the defendants and designated nonparties at fault combined.
Had the general assembly intended merely to establish a minimum value, without proof, of nonpecuniary harm resulting from a wrongful death, it could easily have done so. Instead, in lieu of establishing the actual noneconomic damages that would be recoverable under section 13-21-203, the solatium statute permits a plaintiff to sue for and recover a specific amount, equal to twenty percent of the statutory limitation on recovery for noneconomic loss or injury resulting from a wrongful death.4 On its face, the scheme offers a choice between recovering a known amount and accepting the risk and costs of attempting to establish noneconomic damages of a potentially far greater amount. The language of the statute does not merely omit all reference to the comparative negligence and pro-rata liability statutes; taken as a whole, it evidences an intent to offer the solatium as an ultimate award, not subject to further reduction, regardless of the negligence of the plaintiff or the fault of a nonparty.
The comparative negligence statute provides a mechanism for diminishing compensatory damages in proportion to the degree of negligence attributable to the injured person, and the pro-rata liability statute provides a mechanism for apportioning compensatory damages among tortfeasors based on their relative degrees of fault. Both are designed to avoid unfairness by limiting liability for compensatory damages to an amount proportionate to a defendant‘s fault in causing those damages, and in order to accomplish this goal, both rely upon a calculation of the amount of the resulting damages, to which the percentage of fault attributable to any individual defendant can be applied. By permitting a wrongful-death plaintiff to sue for an award of a predetermined amount in lieu of noneconomic damages resulting from the death, the solatium statute in effect bypasses the evaluation of noneconomic damages altogether and renders the comparative fault provisions inapplicable to anything other than economic damages. In the absence of a determination of the noneconomic component of total compensatory damages, it cannot be known whether a defendant‘s liability exceeds his proportionate share of compensatory damages, no matter how small the percentage of total fault attributable to him.5
Apart from the plain language of the solatium statute and its manifest intent to provide an incentive to forgo proof of noneconomic damages, the legislative history surrounding the statute‘s enactment evidences a clear intent, supported by specific considerations of public policy, to minimize litigation. The statute was introduced as part of an act concerning damages in wrongful-death actions, see ch. 130, secs. 1-5, 1989 Colo. Sess. Laws 752, 753, and was designed in part to relieve wrongful-death plaintiffs of protracted litigation by providing for a fixed recovery upon the establishment of a defendant‘s liability. See Hearings on S.B. 89-93 Before the Senate Judiciary Committee, 57th General Assembly, First Session (Feb. 1, 1989); Hearings on S.B. 89-93 Before the House State of Affairs Committee, 57th General Assembly, First Session (March 14, 1989); see also Dewey v. Hardy, 917 P.2d 305, 309-10 (Colo.App.1995) (by fixing modest amount of damages, general assembly hoped to encourage abbreviation of wrongful-death actions through solatium alternative).
As noted by the court of appeals, application of comparative fault principles to a solatium award would frustrate the purpose of the statute by encouraging defendants to litigate the issue of liability in an effort to demonstrate the comparative negligence of other parties, nonparties, or the decedent for purposes of reducing the amount of the solatium. Dewey, 917 P.2d at 310-11. In this case B.G.‘s designated Rossman as a nonparty at fault and subsequently moved the district court to determine as a matter of law whether Rossman‘s negligence could operate to reduce the amount of the solatium award. The actions of B.G.‘s poignantly demonstrate the incentive for defendants to protract litigation on the issue of liability that is created by a construction of the solatium statute permitting furthеr reduction in proportion to relative degrees of fault. Concomitantly, any incentive for a plaintiff to elect the solatium would be greatly diminished under such a construction in light of the prospect of both protracted litigation and a reduction of the award below $50,000.
Although the general assembly has clearly expressed its intent that a defendant should not as a rule bear more than its pro-rata share of liability for damages, it has not abolished joint liability in all circumstances, see, e.g.,
III.
In the limited context of wrongful-death claims in which liability has been admitted or found, section 13-21-203.5 allows a plaintiff to elect to sue for and recover a solatium in the amount of $50,000 in lieu of establishing noneconomic damages. The plain language of the statute indicates that the solatium is not subject to reduction, and to the extent that it conflicts with sections 13-21-111 and 13-21-111.5, section 13-21-203.5 prevails. Accordingly, the judgment of the court of appeals is affirmed.
Justice KOULIS dissents.
Justice KOURLIS dissenting:
Because I read the statutes to require a court to apply both the comparative negligence test under
I agree with the majority that a plaintiff may not recover from a defendant in a wrongful death action when the decedent was more than 51% at fault for his or her death. However, I suggest that the statutes require the imposition of comparative negligence and pro-rata liability to the solatium damages award. Additionally, unlike the majority, I do not read the solatium statute to allow joint liability in these situations. Therefore, I respectfully dissent and would reverse the court of appeals with directions to return the case to the trial court for apportionment of the award.
I.
I begin with the general proposition that the General Assembly has determined that: “In an action brought as a result of a death or an injury to persоn or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant.”
Similarly, in Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 890 (Colo.1983), and in Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083, 1085 (Colo.1996), we have repeatedly endorsed the notion that the damages award must follow the fault determinations of the jury, such that each person pays his or her pro-rata share of the damages. See also Bohrer v. DeHart, 961 P.2d 472, 475 (Colo.1998) (stating that pro-rata liability “‘rectifies the inequity’ caused by the common law rule of joint and several liability whereby any one responsible party could have been liable for all losses which the plaintiff incurred“). Thus, the General Assembly clearly intends that tortfeasors should bear their share, and only their share, of the victim‘s loss.
II.
The solatium statute is merely a portion of the broader damages section of the statutes. The solatium statute provides:
Alternative means of establishing damages—solatium amount. In any case arising under section 13-21-202, the persons entitled to sue under the provisions of section 13-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this section. Such solatium amount shall be in lieu of noneconomic damages recoverable under section 13-21-203 and shall be awarded upon a finding or admission of the defendant‘s liability for the wrongful death.
Article 21 governs the recovery of damages in Colorado. Part 1 of that article includes both the comparative liability section and the pro-rata liability section quoted above. The solatium section appears in Part 2 of Article 21, and relates to damages for death by negligence. Part 2 also identifies persons entitled to sue and recover for wrongful death caused by a defendant transportation company.
In my view, reading the Article as a whole, the comparative liability and pro-rata liability sections govern all wrongful death actions under Part 2. See Clint v. Stolworthy, 144 Colo. 597, 601, 357 P.2d 649, 651 (1960) (stating that sections 13-21-201 to 204 must be construed as one act, and each section construed as it is connected with and related to the whole act). Part 1 contains the general provisions relating to damages. Part 2 identifies when a victim may bring a wrongful death action, and what damage limitations control. Part 1 governs the solatium statute, just as it governs an award of noneconomic damages under
III.
The majority cites three reasons for its conclusion that both the comparative negligence and the pro-rata liability statutes do not govern
I disagree with the majority‘s reasoning on all three points, and would instead rely upon simple principles of statutory construction. First, although the solatium statute does not itself make reference to a reduction for comparative negligence or pro-rata liability, neither does the general wrongful death statute. Yet, this court has certainly held comparative negligence and pro-rata liability applicable to wrongful death awards. Smith v. Zufelt, 880 P.2d 1178, 1183 (Colo.1994). The solatium statute permits a survivor of а decedent to avoid the trauma and expense of trying to prove noneconomic damages: it does not abrogate the underlying principles of liability.
Second, I find the majority‘s reliance upon the solatium statute as the more specific statute, thus preempting sections 13-21-111 and 13-21-111.5, unpersuasive.
Third, I do not read the legislative history as supporting the majority‘s position. The General Assembly clearly intended the solatium statute to relieve a survivor of the onus of proving noneconomic damages, but it did nothing to change basic concepts of liability that run throughout the statutes. In my view, the statutory reference in the solatium statute to a “defendant‘s liability for the wrongful death” subsumes and includes all underlying notions attendant upon a determination of liability. A defendant joint tortfeasor is only “liable” to the extent the jury concludes he is liable, and I find nothing in the legislative history to the contrary.
The majority argues that allowing the reduction of the lump sum award through the aрplication of comparative negligence principles would encourage defendants to engage in protracted litigation as to liability alone. See Dewey v. Hardy, 917 P.2d 305, 310-11 (Colo.App.1995).1 Although this may be true, the solatium statute sought to reduce litigation as it applies to the establishment of damages, not the determination of liability. The solatium statute still requires juries to determine each party‘s liability for the death and to apportion liability accordingly. In this case, the parties contested liability and engaged in a four-day trial at which numerous witnesses testified. Therefore, even under the majority‘s construction, the only trial efficiency the solatium statute achieves is the elimination of proоf of the plaintiff‘s noneconomic damages. It cannot eliminate or shorten proof of liability.
Lastly, I take issue with the majority‘s application of joint liability to this situation. As a general rule, the General Assembly has abolished joint liability in Colorado. Miller v. Byrne, 916 P.2d 566, 578 (Colo.App.1995). Although it is true that joint liability does still exist in certain cases, it is either specifically imposed by statute, see
IV.
Finally, then, I look to the facts of this case and the outcome reached by the majority approach. The jury determined that Rossman was intoxicated and 55% responsible for the accident that killed Gary Gross. The jury also assigned 20% of the responsibility to the employee of the bar who served Rossman, and found that Gary Gross himself was 25% responsible.
The result of the majority‘s conclusion here is that Marla Gross, standing in Gary Gross‘s shoes for purposes of this actiоn, is entitled to recover the full $50,000 solatium award against the bar, despite the jury‘s determination that the bar only bore 20% of the fault. The award will not be reduced by the fault attributable to the other parties. If Marla Gross had not elected the solatium award, and had proven her noneconomic damages to the jury, clearly any award would have been assessed under
I view that application of the solatium statute to be directly contrary to the legislative intent, as repeatedly noted by this court, that no defendant will bear more than its pro-rata share of liability in a damages action. Smith, 880 P.2d at 1181.
Accordingly, I respectfully dissent and would reverse the court of appeals with directions to return the case to the trial court for apportionment of the award.