Gibraltar Casualty Co. v. Walters
185 F.3d 1103
10th Cir.
1999
Check Treatment

*1 COMPANY, GIBRALTAR CASUALTY Lexington corporation;

a Delaware Company, a Delaware cor

Insurance subrogees

poration,

Pharmaceutical, Inc., -Ap Plaintiff s

pellants, WALTERS, M.D.; Mehl,

Vernon Albert Moyer, M.D.,

M.D.; indi John P. all

vidually doing Ever business as Pediatrics, Evergreen-Conifer

green

Pediatrics, Evergreen-Conifer

Clinic; Pediatrics, LLC, Evergreen Appellees.

Defendants -

No. 98-1182. Appeals, Court of

United States

Tenth Circuit.

Aug. *2 (Ronald States District pellees) the United Court Puhala on Cuyler D. D. Stephen Colorado, Burk, alleging Parsippany, New Jer- the District of brief), for Cuyler Plaintiffs-Appellants. Theos- sey, prescribing they negligent for were moved to dis- Appellees The pan to Cari. (Marci L. Laddusaw E. Norman Collie ground Colora- miss the cause Johnson, McConaty Ruddy, & brief), on had of limitations year one statute do’s Colorado, Glendale, Defen- for Sargent, granted court expired. The district dants-Appellees. the cause and dismissed Appellees’ motion MAGILL,* EBEL, Before prejudice. with LUCERO, Judges. Circuit MAGILL, II. Judge. Circuit court diversity the district In this the district Appellants argue The complaint which Appellants’ dismissed concluding that the erred Colora court contribution, of action for a cause set forth had do contribution statute limita- statute of that the Colorado finding they complaint before filed expired was filed. before suit expired had tions reviewing After the dis 1997. timely complaint was We conclude de of state law application trict court’s and, thus, remand for reverse and filed for un novo, that the dismissal agree proceedings. further Ro Boyd timeliness was erroneous. Assocs., v. Kansas Mun. Gas & Inc. sene I. (10th 1115, 1118 Cir. Agency, F.3d minor, Coddington, a 1984 Cari April In (standard review). 1999) injuries from a permanent severe suffered that the district Appellants The contend prescription medication reaction toxic gov- misapplied Colorado’s statute court moving “Theospan.” After known (the period for erning the limitations contribu- Codding- parents New Cari’s part, In relevant tons), of their tion actions. individually and on behalf manufacturer, drug’s provides: sued the daughter, (Central), Pharmaceutical, Inc. injury for the If is a there February Jersey state court wrongful against death tortfeasor or agreed February Coddingtons In contribution, any separate ac- seeking against Be- their claims Central. settle contribution must him to enforce minor, law cause Cari was a year commenced within one after be receive required that judgment has become On proposed settlement. approval of appellate after or review. 8, 1996, Superior the New May inju- there “friendly hearing” on the held a against death the tortfea- ry wrongful or en- agreement and proposed settlement contribution, right of seeking his sor approving it. Warrant tered he ei- is barred unless has contribution 3, 1996, filed on was June Satisfaction1 ther: stipulation of dis- and the filed 2,1996. August missal (a) com- Discharged by payment the limi- liability within the statute of mon Casualty Gibraltar On June to claimant’s tations Lexington Insurance Com- Company and him action right of (the subrogees to pany Appellants), as his action for contribution commenced Central, action filed this contribution (the or year payment; one after Ap- within treating physicians against Cari’s * Judge, of Satisfaction is document Magill, 1. The Warrant Frank Senior Circuit Honorable indicating that a Eighth with court Appeals filed States Court of United (i.e., Circuit, by payment). sitting by designation. has been satisfied

(b) pending action actions after the time Agreed while has ex- discharge him to the common pired, had until June year has within one after liability and 1997 to file suit a straight-forward under paid liability application of the statute. commenced his action for contribution. Appellees contend *3 § 13-50.5-104. Colo.Rev.Stat. straight-forward application of the statute matter, an initial we hold that

As right is incorrect because there is no to governed by case is present appeal from a judgment approving a set- (3). contend that this Appellees The case and, agreement tlement if even such a judgment does not involve a because the exists, right the time to the New agreement settlement does not constitute a 3, 1996, Jersey judgment expired on June of the statute. “judgment” purposes when the Warrant of Satisfaction was filed. However, Jersey op law dictates the disagree arguments. We with both posite conclusion this case. First, Appellees have not directed us law, Jersey Under New settlement any authority, to and we have identified minors are not valid agreements involving none, support of proposition that a until a state court has reviewed the facts judgment approving agree a settlement agreement to ensure and the terms subject ment forty-five day is not agreement the child’s best filing window for that is other 4:44; R. Civ. Practice interests. See N.J. Jersey judg wise to New court Berry, N.J.Super. Mack contrast, In ments. we have identified at (1985). “Upon judicial A.2d inves litigants least one case in which have filed tigation approval and the settlement [of an appeal judgment approving from a a agreement], adjudging an order will issue Modery settlement See binding parties the settlement on all and Co., Liberty Mut. Ins. judgment a final damages.” therefore as to (1988). Thus, reject 549 A.2d 867 we Consequently, Jersey Id. the New state Appellees’ forty-five contention that approving court’s order the settlement on day window to file an appeal does not 8,May a final judgment 1996 constituted Jersey apply judgment approv to the New Codding- Central. Because the ing the settlement. ton’s claims Central were ultimate Second, authority sup there is no ly by judgment, resolved a state court we porting Appellees’ contention that the that applies conclude statute of limitations commences provides period the relevant limitations for Colorado Accordingly, action. we upon entry this contribution of the Warrant of Satisfaction. Jersey must determine when the New assuming, Appellees’ suggest, Even as the by became final of the time judgment lapse entry of Warrant Satisfaction appeal. precluded appealing judgment, see Sturdivant v. General Brass straight-forward application Corp., & Mach. Jersey law in favor of our militates (1971) (warrant 111-12 of satis appeal expired conclusion the time for validity judgment recognizes faction 1996. Under New operates waiving right as a contract to litigant forty-five days a from the en plain language of the Colorado appeal), try appeal. to file a notice limi provides contribution statute 1(a). In See N.J. of Court 2:4 - period begin does not to run until tations judg the New court entered final “the has become approving agreement ment the settlement Colo.Rev.Stat. appeal.” time 8, 1996, May had until so added). 13-50.5-104(3) (emphasis appeal. June 1996 to file notice of accelerating says nothing statute about provides Because the Colorado statute if the to year period one on contribution limitations judgment was tak- ... consent which prematurely extinguished waived or Martin, Thus, en”); interpret Highley v. 784 S.W.2d parties. conduct (discussing a con- settle- permitting (Mo.Ct.App.1989) the Colorado “ year of the ‘friendly one referring action within to tribution becoming underlying parties] would consent [the suit’ wherein regardless of appeal, of the time for 1952, the Su- In judgment”). agreed forego have whether held that preme Court Because we con- appellate proceedings. is not A consent had Satisfaction clude that Warrant any litigated right, determination applicable stat- no effect on otherwise court, ex- judgment of the it is not the ac- this contribution limitations for ute of allows it the court cept the sense that tion, filed their we hold have the upon the record and appear *4 period within the complaint judgment; a it is force and effect of contribution contemplated by the Colorado parties act of the consented merely the statute. by the court. Warren, 298, 248 P.2d 126 Colo. Marsh v. III. (1952) Judg 825, (quoting 49 C.J.S. 828 reasons, RE- foregoing the For 173). Jersey case § While New ments pro- for further and REMAND VERSE directly the appear to address law does not ceedings. involving mi judgments consent status of nors, in the forum of courts New LUCERO, dissenting. Judge, Circuit certainly friendly in are the suit this case differs my analysis of Because general proposition the in accord with colleagues, and would lead my that of results from settle judgment a consent result, respectfully I dissent. to a different adjudication. rather than an ment points. three My disagreement on One, Freehold, Inc. at Section Stonehurst Freehold, N.J.Super. 139 Township I (1976) 560, in (holding, A.2d 353 561 First, hastily dispose of I would not so judgment resolving context of consent that Colo.Rev. the trial court’s conclusion ordinance, that a challenge to municipal 13-50.5-104(4) applicable is the § Stat. strictly not consent “is limita- controlling the statutory provision decree, nature of a contract but rather in (3) nor subsection period. Neither sanction of into with the solemn entered (4) use the un- Mertz, court”); Long v. “judgment,” but instead use qualified term that, (stating A.2d “judgment for the qualified language part in of resolution of action context the tort- injury wrongful death or accounting, “a consent nership Finding no seeking contribution.” feasor adjudication, much as not lie so does issue, pertinent precedent Colorado parties”). I agreement between treated the apparently the district court Jersey persuaded not New am ... to dis- “agree[ment] an judgment as of settle judicial approval requirement and found liability,” charge the common minors, see N.J. R. Civ. involving ments by Colo.Rev.Stat. 13- the action barred 4:44; Berry, Mack v. 205 N.J.Su 50.5-104(4)(b). Practice (1985), suffices 501 A.2d per. provides ample support law The case con character of this change basic court’s conclusion the district ultimate as to transform this set sent so at implicated the case subsection was on the merits into a judgment tlement by friendly A reached bar. suit appellants. Under generally among parties agreement certainly reviews the trial court judgment. consent treated as a form of interests, light of the child’s Adorno, See, e.g., Daniel “ 4:44-3, review does (D.C.1954) but such ‘friendly suit’ see N.J. (discussing here, apply disagree fact that the were to being alter the fundamental not —this by parties, action of the my is resolved dispute point second contention—with the ap court. adjudication majority’s not interpretation the words “fi agreement makes of the settlement proval appeal” nal of time for in Colo. it no less settlement 13-50.5-104(3). Rev.Stat. Without cit approve trial court could or ing precedent matter, it parties’ settlement in whole disapprove appears majority effectively construes Ramos, Ramos v. part, or see the words “final ap (1988)- 547 A.2d peal” something to mean like “final by the there. R. 4:44-3. power its ended See N.J. expiration the time disapproved, unless the volun provided for in the statute or tarily modified their settlement to the rule, party whether or any not satisfaction, would be court’s appeal.” only to take such Not do square “back to one” would need I disagree interpretation with that proceedings file on the merits adversarial statute, disagree also we should dispute. judg in order to resolve their unilaterally pronouncement, make such a following litigation, such merits it again and once that prudence believe dic me, would fall under seems to tates certification the question *5 (3) limitation of the Colorado statute. Supreme Colorado Court. Under the lan Moreover, reading a common sense of statute, guage strong of the there is a compels limitation statute Colorado argument Superior that when the of (3) conclusion that subsection is intended Division, Law sanctioned the merits, judgments to deal with on the parties, ap settlement of the the time for (4) to subsection intended deal with resolu- peal lapsed, one-year and the time liability by of settle- discharge tion and See, Lewis, began e.g., to run. Deason v. Functionally, “friendly hearing” ment. (Colo.Ct.App.1985) 706 P.2d obviously equivalent to is most (noting that when “a to party consents pay meaning an to within the of entry judgment, of an order or and such 13-50.5-104(4)(b). Colo.Rev.Stat. obtained, regularly that party consent is however, Ultimately, I not decide would right appeal has to the order or the trial court’s treatment of this whether judgment”). Although are directed to correct, because, being provided issue is directly point, no New case law issue, precedent with no on the Colorado Modery Liberty I do not believe that question presented concluding Co., Mut. Ins. impression, certify of first I would is one (1988), necessarily stands for a A.2d 867 Supreme question That contrary proposition. case involved Court, pursuant to our Local Rule 27.1 and judge’s a trial to appeal refusal 21.1(a). See, Colo.App. e.g., R. Allstate sanction, friendly settle approving Brown, (10th 920 F.2d Ins. Co. v. infant, attorney’s an an involving Cir.1990) (“Certification particularly ap- at 25% retainer See id. 868. legal question at issue propriate where attorney not see how the fact that an do is novel and the state law is may appeal essentially collateral mat unsettled.”). Although party neither ter, 4:44-3, R. a fee see N.J. of denial of certification, per- moved for our local rules a party means that has the arrangement, motion, certify see mit us to on our own wholly settle right appeal approved to 27.1(B), R. and I believe this case 10th Cir. ment to which he or she consented. represents appropriate an instance for ex- authority. lapse of that if did not ercise Even the time day approved, the settlement was

II judg- when the assuredly lapse most it did a warrant ment was satisfied and of satis- majority if correct and Even were (4) Casualty and rather than faction entered Gibraltar latest, when a warrant the in Companies, Lexington Insurance Pharmaceuti appellants’ tortfeasor Central satisfaction of the evidencing surers of Brass & v. General cal. See Sturdivant year from that judgment was filed. One Corp., Machine filed date was June (holding any 111-12 complaint for contribution Colora- including satisfaction party, of a act 6, 1997. That date is more do on June recognizes the impliedly judgment, of time year following lapse than one him, a court decree validity of required ques- to decide the appeal. right appeal). to a waiver of the amounts tion, I affirm the district court’s would I am of the view that majority, Unlike proceedings. dismissal within appeal” may “lapse” the “time § 13-50.5- meaning of Colo.Rev.Stat. 104(3) specifically by operation resulting right

the waiver judgment. of a

from the satisfaction

Sturdivant, A.2d at 111-12. Under majority’s interpretation “lapse only can occur appeal,” such day period

by expiration forty-five 2:4-1(a), regardless of whether

of N.J. This, believe, exists. America, UNITED STATES of overly and formalistic read restrictive Plaintiff-Appellee, statutory language. Further ing of the correct,

more, majority even were the 13-50.5-104(3) required Colo.Rev.Stat. ROSE, Talmadge Defendant- Dan *6 filing any statutory period Appellant. (whether or not there is a notice of appeal), any right pursue such No. 98-7108. absurdity applying requirement such here, exists, where, as Appeals, United States Court appropriate only further demonstrates Tenth Circuit. (4), (3), ness of subsection not subsection Aug. limitation appropriate source period in circumstances such as those be

fore us. that the result the trial again conclude the correct one. likely

court reached is expressed with the view Sec-

Consistent I, supra, this is a state law because reiterate, impression, first we

question of certify the matter for determination

should Supreme the Colorado Court.

Ill disagreement with the

My point in a rath-

majority opinion encapsulated If must straightforward proposition:

er using analysis em-

resolve the matter then, majority, my opin-

ployed

ion, The time wrongly the case is decided. in the New very

Jersey “friendly lapsed, suit” at the