*1 Immunity Act rights of which a reasonable Colorado Governmental constitutional largely on recommendations of 713 based Higgs, person would have known.” legislative report council in a Gener- Harlow, at 457 U.S. (quoting P.2d at 852 Assembly. Legislative Council, al 2738). Granting pa 102 S.Ct. Colorado, Liability in Governmental Re- only entity state role as an and the board (Nov. 1968). search Pub. No. 134 at xxvii-lii qualified immunity would not serve report acknowledged That the existence of interest, however, it would public because nonliability apart common law bases for parole jeopardize independent action of 16-17, sovereign immunity, from id. at Imbler, 424 96 S.Ct. U.S. boards. Cf. public entity noted that a should not be knowingly used (giving prosecutor who if employee’s negligence liable for an testimony suppressed false material employee is immune from suit. Id. at 141. im qualified evidence at defendant’s trial policies Because we hold that subject prosecutors would all munity parole of the entitle individual members retaliation). quasi-judicial immunity also board entitle however, discretion, parole The board’s parole entity board as an and the state paroled, At the time Smith was limits. immunity, to quasi-judicial of Colorado we denying parole required the granting or need not determine the standard of care to least concurrence of at two members applied by a in determining trial court board, parole after an interview with parole liability. board the state’s 17-2-201(9)(a). two inmate. § Judgment and the reversed case is concur, member members did not a third appeals remanded to the court of with di- record, review the interview judgment of rections to reinstate the applicant necessary, if the decid- and cast district court. 'Moreover, ing parole if vote. Id. granted, hearing a it could be revoked after member, parole subject
in front of a board appeal before three members 17-2-103,
parole board. 8 C.R.S. §§
17-2-201(9), (1978). Parole 8 C.R.S. the laws be revoked both for violation of Petitioner, BROCHNER, Ruben parole. of a for violation condition 17-2-103(1). parole The See discretion § COMPANY, board is also circumscribed members INSURANCE WESTERN Corporation, Commu- statutory limit on the members’ terms Kansas Association, Hospital nity a Colorado requirement reappointment and the Corporation, Respondents. 17-2-201(1), governor. 8 C.R.S. No. 84SC55. if the plaintiff asserts that even Colorado, Supreme Court parole are immune board state En Banc. suit, quasi-judicial immunity their Sept. 2, 1986. purchase of insurance waived the state’s Rehearing 1986. Sept. Denied 24-10-104(1), 10 C.R.S. (1982).10 This section concerns the waiver sovereign type immunity, nonwaiver immunity not at issue in this case. 24-10-104(1) any resulting liability injury provides from an act his follows:. acting employee such within the or omission Notwithstanding any provision or of this of law employment, public entity pro- scope such enti- contrary, public of his then if article to the coverage provided by ty an insur- deemed waived the defense vides insurance shall be to have company in this sovereign immunity any ance authorized to do business action dam- any against liability for against.... state injury insure itself any ages injury insured employees insure or to
KIRSHBAUM, Justice. granted We certiorari opin- to review the ion Appeals Colorado Court of Brochner, Western Insurance Co. v. (Colo.App.1983), in which the Court of Appeals concluded that a whose pri- was the mary plaintiff’s cause of a personal injuries liable to a second tortfeasor. The court also concluded that primarily liable tortfeasor obligat- attorney ed to fees and costs in- curred secondarily liable tortfeasor defending original We action. re- verse. Hospital
The Community (the Association hospital), operates which Boulder Commu- nity Hospital, granted privileges staff Dr. Ruben Brochner in October 1964. Bro- performed chner numerous craniotomies1 hospital at the over the next few months. after reviews of those cranioto- mies samples indicated that tissue many patients normal, appeared hospital’s orally executive committee re- quired Brochner to obtain consultations be- performing fore craniotomies if the rele- radiographic vant clearly evidence did not pathology. In establish the executive committee recommended to Brochner that he should obtain additional outside consul- surgical pathological tation on specimens. hospital’s In March tissue com- mittee a report received that fourteen twenty-eight samples tissue taken from patients neurosurgery Brochner's were completely normal nine remaining samples fourteen indicated grade expert An low disease. testified at trial that one normal tissue 100 tissue samples acceptable was an ratio and that twenty-eight two normal tissues out of samples require investigation. would 9, 1968, On Brochner per- November Littman, P.C., Stevens & Andrew C. Litt- craniotomy formed a on Esther Cortez man, Boulder, petitioner. injury which resulted in to Cortez. Cortez P.C., Kelley, Cooper Cooper, Paul D. later filed a civil action Brochner Childs, Denver, Kim B. for respondents. hospital. alleged She that Bro- craniotomy type surgery 1. A is a of brain tissue is removed. suspected abnormal diseased brain Act) (1985 (the abrogated the Supp.) for a C.R.S. diagnosed her need negligently chner rule of negligently Colorado craniotomy, that upon distinc- extent such rule is based privileges when Brochner’s staff continued secondary primary and fault. tions between that he was have known it knew or should per se do not statute We negli- incompetent, and that indem- the common law doctrine of altered unnec- *3 perform gently allowed Broehner existence nity. we conclude that Bro- against claim essary surgery. The his- sufficiently undermines the of the Act severed, claims trial of the was chner require its for the rule to torical basis 3, April against hospital commenced modification. trial, of that Prior to the conclusion 1978. hospital agreed to a settle- and the Cortez The common law of has consist Colorado later, $150,000. time Cortez Some
ment of
ently
majority
followed the
against
her suit
a settlement of
reached
prohibiting
rule
uninsured,
undis-
Broehner,
for an
who was
Thompson,
143
Hamm v.
closed sum.
298,
(1960);
Ringsby
Colo.
from indemnity, never firm in the best of We have worked ourselves into situa- circumstances, became even more difficult tion where as between tort- Indeed, to fix. difficulties with definitions is decided on the basis of which active, and applications concepts guilty one is of “active” and which one passive, secondary negligence guilty “passive” negligence. “Pas- loses, wins, subject have been the of critical discussion sive” “active” no matter how among joint of fault bution tortfeasors and estab- great proportion passive authorizing tortfeasor. been lished a rule degrees relative
based on
fault.
13-50.5-102(6)
following provi-
contains
way
to fix re-
not a sensible
respecting
principles
sion
de-
indemnity. It comes about
sponsibility in
fining rights
responsibilities among
attempting
find
formula
two
tortfeasors:
excuse
or concurrent
completely
prac-
as a
when
impair any right
not
This article does
blame,
they both are to
tical matter
existing
law.
[of]
being only
between them
true difference
in-
Where one tortfeasor
entitled to
degree
relativity
or
matter of
fault.
another, the
demnity
ingenuity
phrasing, negli-
With a little
indemnity obligee
can made
be either “active”
gence
obli-
“passive”
suits the writer.
as
For
gor
not entitled to contribution from
“driving an
example,
automobile with
obligee
any portion
of his indem-
through
“running
brakes” or
bad
nity obligation.
stop sign”
“using a defective crane”
addition,
provides
section 13-50.5-103
negligence,
might be
to be “active”
said
follows:
“omitting
of brake
while
maintenance
disproportion
When there is a
apply
“neglecting
level” or
fluid
the relative de-
*5
“failing
inspect
to
the
or
crane
brakes”
grees
joint
fault
the
tortfeasors
of
of
defectiveness”
in order to discover its
pro
determining
used in
their
shall be
might
“passive” negligence
be
—these
the
solely
purpose
of
rata shares
omissions,
the
the same acts
but
are
rights of
determining their
contribution
facts,
upon
not
the
but
depends
outcome
themselves,
remaining sev-
among
each
upon how
chooses to character-
someone
person
to
for the
erally liable
the
ize them.
injury as
common law.4
whole
at
R.R.,
Missouri
566 S.W.2d at
Pacific
(citations omitted).
470-71
reme
recognizes
thus
that the
statute
indemnity
contribution are
dies
and
of
Subsequent
to this court’s decision
mutually
Prosser,
exclusive.
theory
See W.
Ringsby, 193 Colo.
1971);
(4th
Re
ed.
Act,
Law
Torts
adopted
effec-
Assembly
§§
General
of
(Second)
Torts
886A Com
of
§
statement
July
statute abolished
tive
1977.3
parties
as the
(1979).5
ment
prohibition
contri-
l
trols,
right of
tortfeasor has a
changes,
and neither
some
the Act was based on the
3. With
against the other.
Among
contribution
Model
Contribution
Tort-
Uniform
following comparative contribu-
In a state
Act.
feasors
tion,
according
compa-
contribution
may
parties,
during
of
fault
was amended
rative
4. Section 13-50.5-103
merge
indemnity,
the techni-
with
legislative
pro-
tend to
session. That section now
indemnity may
less
of
become
cal distinctions
vides:
all-or-nothing approach of in-
important. The
degrees
of
The relative
of fault
likely
demnity
to become less desirable
determining
be used in
their
tortfeasors shall
indemnity
the traditional bases for
some of
pro rata shares.
by
contribution.
be absorbed
vein,
to
886A and 886B of the
pro-
§§
In comments
886B
§
In a similar
comment
/ to
Restatement,
discussed the tension be-
drafters
vides:
statutory
law
tween common
indemnity developed at an earli-
of
The law
provisions for contribution. Comment
/
available.
when contribution
er time
(Second) of
only
Restatement
Torts
remedy
886A the
all-or-nothing
§
thus
Its
provides:
had
tortfeasor who
available to a
relief
paid
injury.
Courts
the full amount of
Indemnity,
entire loss from
which shifts the
expand
another,
ready
to be
were inclined
therefore
one tortfeasor to
might
of situations in which
proportionate
the list
share
which shifts
loss,
granted.
has come to include
mutually
The list
remedies.
be
are
inconsistent
many
indemnity,
in which
indemnitee
con-
situations
is a
it
there
recognized,
here have
a tortfeasor
as
negligent
by
entitled
the result of
primary/secondary
under a
two or more tortfeasors.
There can be no
analysis may
concerning
also be able to mistake
the intent
Gener-
comparative
Assembly
al
policy
benefit
the rule of
contri-
to establish the
re-
by
sponsibility
Act.
bution established
We cannot
related to
fault
arguments
personal
with Brochner’s
the context of
injury litigation.
13-50.5-102(6)
Assembly
adoption
virtually
General
intended
identical
1(f)
of the Act
to alter
the common law of
section
of the 1955 version of the
as
established
this court. Uniform Act.7 Section
of the Uniform
plain language
Act
of section 13-50.5-
102(6)
argument. However,
refutes
determining
pro
rata
shares
Assembly’s
adoption
the General
liability (a)
tortfeasors
in the entire
their
principle
of contribution
tort-
shall not
degrees
relative
of fault
invites,
require,
if it does not
recon-
(b)
considered;
equity
if
requires
col-
sideration
doctrine
be-
liability
lective
of some as
group
shall
tween
tortfeasors.6
share;
(c)
single
constitute a
princi-
ples of equity applicable to contribution
subject
Joint
are now
to con-
generally
apply.
shall
among
upon
tribution
themselves
degrees
princi-
their relative
of fault. That
Among
Unif. Contribution
Tortfeasors Act
ple is at
with the
odds
essential characteris-
(1975)
added).
(emphasis
12 U.L.A. 87
present
indemnity that,
tic
our
rule of
Assembly’s
The General
to reject
decision
regard
apportionment
fault,
without
Act,
section
of the Uniform
while enact-
single
may ultimately
13-50.5-103,
ing
reinforces the con-
expense
injuries
of all
sustained
third
clusion that
Act
apportion
seeks
definitely
great
but
not to
an extent
Tortfeasors
U.L.A. 57
states,
Colorado,
Eighteen
including
as the indemnitor —so that a decision between
nothing
adopted
all and
would be made for all rather
either
1939 or 1955 version
nothing.
than
Uniform Act. Thirteen of these states have
*6
availability
judicial
indemnity
theWith
advent and free
of
decision limited
con-
those situ-
tribution,
party seeking
problem
indemnity
the
the
where the
nature of
has
ations
changed
vicariously
opportu-
and the courts
have
liable
the third
negligent
nity
apportioning
any
responsibili-
was not in
sense
In
of
the financial
or
fault.
ty
parties.
those thirteen
there is no
may produce
states
conflict between
between
This
general
gradual
concept
clause
expansion
in
of the situations covered
allocating
among joint
of
by
Uniform Act
fault
expense
indemnity.
at the
of
states,
remaining
Indeed,
tortfeasors.
In the
five
no
growing
jurisdic-
in the
number of
impact
cases have discussed the
of the model
equitable
tions that determine the
shares of
legislation upon
indemnity.
former doctrines of
obligation
contribution
the basis of
comparative
parties, may
fault
states,
it
adopting
while
Other
the Uniform
develop
merge
well
that the two remedies will
negli
comparative
have enacted their own
other,
proportionate
into each
and that
contri-
gence
legislation.
many
and contribution
In
of
bution will be
jurisdictions, judicial
determined
factfinder in
those
decisions
inter
percentages
accordance with the relative
preted
legislation
abrogating
of
common
(See
886A,
parties.
concept
fault for
several
in
of a
law of
favor
of com
/).
parative negligence
E.g.,
Comment
or
would eliminate
contribution.
the occa-
Smith,
highly
Cal.App.3d
sion for some
of
technical deci-
Ins. Co. v.
Teachers
128
(1982);
Cal.Rptr.
Kennedy
City
sions that have been rendered in
701
actions for
180
v.
of
indemnity.
(1980);
Sawyer, 228
Kan.
P.2d 788
State,
(La.App.1976);
v.
In this
the trial court found
person
a third
is enti-
negligently and that
an action
that the
acted
compensation
recover reasonable
independent of Bro-
tled to
such
time, attorney fees and other
for loss of
negligence.
Mercy
Moon v.
chner’s
See
in-
430,
expenditures thereby suffered or
1300
Fender,
opinion
v.
674 P.2d
Elijah
majority
initially recognizes
Accord
946
The
(Colo.1984);
Landis,
Indemnity Co. v.
Sun
that contribution and
are an-
(1948);
119 Colo.
201
602
P.2d
Inter
alytically quite
concepts. Slip op.
distinct
national
Bank
Trinidad v.
State
Trini
indemnity are
at 1295. Contribution and
Co.,
dad Bean
Elevator
79 Colo.
&
mutually exclusive remedies. Restatement
(1926).
exception
P.
to
245
489
(Second)
886A(4) (1979).
They
Torts §
general
prohibiting attorney
rule
fee
distinguished.
are universally
Neither con-
however, only
applicable,
awards is
if the
actions,
tribution nor
are tort
attorney
seeking
fees was with
but the
to contribution arises from
underlying
out fault as
action.
to
See
payment by
one
tortfeasor of more
946;
Elijah,
also
674 P.2d
International
loss,
proportionate
see,
than his
share of
Trinidad,
79
State Bank
Colo.
245
Inc.,
e.g.,
Associates,
Vail
Coniaris v.
196
489;
Fidelity
v.
P.
Brem United States
(1978),
Colo.
whereas
A.2d
Guaranty
(D.C.App.
404
indemnity arises out of the
existence
1965);
Kamyr,
Inc.
Boise Cascade
pre-tort
Lines,
duty.
Ringsby
See
Truck
(1974).
Corp., 268
519 P.2d
Or.
Bradfield,
Inc. v.
193 Colo.
required
expend
Western was
sums for
(1977);
generally
see
Restatement
attorney
defending
in
fees
costs
(Second)
of Torts
886B
Contribu-
lawsuit,
part
Cortez
of the hos
because
play
tion
into
a judgment
comes
after
conduct,
pital’s independently negligent
against joint
been entered
tortfeasors in
solely
negli
and not
because of Brochner’s
an injured party,
requires
favor of
that
gence.
provisions
914(2)
of section
each
the culpable
tortfeasors contribute
therefore,
are,
inapplicable to Western’s
damages
total
por-
amount of
that
attorney
claim
fees.
tion
pro-
which relates
each tortfeasor’s
specific
In the
absence
some
rule of
portionate share of the responsibility. On
authorizing
recovery
law
attorney
hand, indemnity
the other
from a
arises
fees,
general
attorney
rule
fees
duty
care
tortfeasor owes to
expenses
litigation
are not recovera
tortfeasor,
duty
other
is un-
Pierce,
ble. Beebe v.
any duty
related
of care owed
Taxpayers
see
the Ani
party.
While
mas-La Plata
v. Animas La-
Referendum
concepts
both
share
common result of
District,
Conservancy
Plata Water
apportioning
responsibility
dam-
(10th Cir.1984).
F.2d
Western has not
ages
injured party among parties
an who
suggested any
basis for
claim for attor
negligent,
each
been
each con-
ney
914(2)
fees and costs
than
other
cept
upon
is based
different theoretical bas-
Accordingly,
gen
of the Restatement.
es.
prohibiting
applies.
eral rule
such award
produces
equitable
Contribution
more
re
judgment
Appeals
of the Court of
proportionate
sults because the
share of
reversed.
responsibility
damages
directly
relat
J.,
ed to each
tortfeasor’s
part,
VOLLACK dissents
and RO-
VIRA, J.,
causing
injury.
joins
partial
Indemnity,
on the
dissent.
*8
hand,
nothing”
other
in an “all or
results
JJ.,
DUBOFSKY,
ERICKSON
do not
whereby
determination
the
who is
participate.
“primary”
the
party’s
cause of the
VOLLACK, Justice, dissenting
part:
required
damages may
carry
the bur
den of the
loss.
entire
Jacobson v. Dahl
agree
majority
I
with Part III of the
(1970).
berg, 171 Colo.
While in- concepts of contribution and I tween the P.2d 63 would conclude that un- ineq- the sometimes demnity, case, and also prerequisites der the facts of this the application the of indem- uitable results of application indemnity principles for the nity majority the then concludes principles, existed. The trial court’s conclusion that contribution can serve that the doctrine of Brochner’s was active while the of indem- purpose the same as the doctrine hospital’s negligence passive or an er- and, proceeds nity premise, on that failing supervise ror of omission a in- the law doctrine of to abolish common physician supports the staff award of dam- except demnity between ages hospital favor of involving liabili- possibly in cases vicarious Requiring physician Broehner. to bear ty. disagree I with this conclusion. highlights the loss the full extent of application occur in Assembly, by adoption result which The General indemnity principles Tort- as established our the Uniform Contribution -106, 13-50.5-101 to common law. (1985 Supp.), obviously did not in- C.R.S. Furthermore, disagree majori- I with majority reached tend the result ty’s adoption that of the conclusion opinion. specifically preserved Act The Among Tortfeasors Uniform Contribution rights indemnity in section 13-50.5- requires Act a reconsideration of doc- 102(6).1 I do not the court indemnity. majority recog- The trine of right indemnity away do with the should nizes the between the two con- difference Assembly, by plain when the General cepts, but then concludes that because con- statute, language recognized of the equitably in its acts more treat- tribution impair any the Act not intended to fault, apportionment ment of the right indemnity existing law. indemnity be abolished. doctrine of should question The of whether remedy hospital a Such a result denies remedy governed contribution exists as a I properly entitled. would to which it is matter at by the facts of the case. indemnity is that the doctrine of conclude hand, right the trial court found concept and should be re- still a viable pre-existing duty out of a arose tained. hospital. owed Broehner considering provi- majority, hospital’s record reflects that the executive 13-50.5-105(l)(b), which re- sions of section required committee Broehner to obtain con- liabili- settling a leases performing sultations before craniotomies tortfeasor, another ty for contribution to radiographic if relevant evidence did contribution to a applies pertaining rules clearly pathology. The evi- establish where the doctrine situation aware of dence shows that the By plain language of this stat- applies. performance of needless cranio- Brochner’s ute, liability for only applies to contribu- it years. period of at least three tomies over involving is a case tion. this result, required Broehner As a indemnity. Application of performing surgical this to consult before stage proceedings analysis at this procedure. No such consultation took hospi- I do not feel the inequitable. While so, Having agreed to do place in this case. totally from fault in held free tal should be duty existed Broehner and the between situation, legislation in the absence this required procedure. hospital to follow ap- Assembly which would Lines, by the Bradfield, General Ringsby Truck Inc. indem- fault treatment to ply comparative Nai- 193 Colo. er, obligee statute, 13-50.5-102(6), (1985 is for 6 C.R.S. 1. The and the in- Supp.), and not obligor demnity entitled to contribution is not impair any right or [sic] This article does not *9 obligee any portion of his indem- for existing Where one law. nity obligation. is entitled to from anoth- tortfeasor actions, physician carry mty must
burden of the entire loss. light plain language retaining indemnity,
statutes only allowing discharge of a set-
tling situations, I
cannot majority’s with the conclusion
that the doctrine of need ab-
rogated. in part
I would affirm reverse
part. ROVIRA,
I am authorized to state that
J., partial joins in this dissent. Vela,
David F. State Public De- fender, Barnes, Douglas D. Deputy State Defender, Denver, Public for petitioner-ap- pellant. Woodard, Gen., Atty. Duane Charles B.
Stanley RUSSELL, G. Howe, Deputy Gen., Atty. Chief Richard H. Petitioner-Appellant, Forman, Gen., Sol. Dailey, John Daniel Gen., Atty. Engle, First Asst. P. Clement COOPER, Superintendent, Thomas Gen., Denver, Atty. Asst. for respondent- Shadow Mountain Correctional appellee.
Facility, Respondent-Appellee. VOLLACK, Justice.
No. 85SA332. Russell, Petitioner-appellant, Stanley G. Supreme Colorado, Court of appeals the dismissal the district court En Banc. petition of his corpus, writ of habeas relief, injunctive and/or rule to Sept. 1986. cause. show We affirm. Rehearing Sept. Denied petition alleged that on December petitioner when sentenced Department Corrections, he had a Oregon lodged detainer from State of against him. the record reflects “acknowledged” by that a detainer was not Department of Corrections until No- vember 1983. Petitioner established mere Department awareness of Correc- charges pending tions officials that were against him jurisdiction. in another On petitioner November received a rights detainer notice and advisement of pertaining charges. Oregon