Greenemeier Ex Rel. Redington v. Spencer

Castro, 932, 946, (Colo.1983). n. 10 657 P.2d Castro, suggested: 10 of we footnote GREENEMEIER, minor, by Gunnar his parent friend, and next Lois REDING potential

Once a conflict interest be- TON, Redington, individually, and Lois reasonably apparent, attorney comes Petitioners, inform the client of the nature of and, terms, plain the conflict describe specific ways in which the conflict SPENCER, Respondent. may attorney’s ability affect the to effec- No. 84SC319. tively represent the defendant at various litigation. stages pending Supreme Colorado, Court of attorney place defense then should En Banc. potential record the conflict of interest June and further advise the court that as com- plete possible a disclosure as has been court,

made to the defendant.... If the upon inquiry of the is satis- understanding^ (voluntarily, fied that he knowingly intelligently) waives all reasonably

conflicts that are foreseeable circumstances, under the then it ac- waiver, cept though even it views the improvident defendant’s decision as an one. (citations omitted). Id. n. 10 majority’s reading guidelines sug in Castro

gested unduly restrictive. The petitioner’s clearly written waiver demon petitioner voluntarily,

strates that the has knowingly, intelligently any po waived tential conflict of interest. The waiver is clear,

specific and and it affords the re spect and deference which must be accord intelligent ed an informed and individual’s See system justice. choice under our Curcio, United States v. (2d 680 F.2d 881 Garcia, Cir.1982); United States (5th Cir.1975); Faretta v. Califor F.2d 272 nia, 422 U.S. 45 L.Ed.2d S.Ct. (1975).

I would therefore make the rule absolute public total and allow defender’s representation office continue with the Rodriguez.

7H McDermott, Hansen, Anderson Reilly, & Denver, Reilly, Daniel M. for amicus curiae Lawyers Colo. Trial Ass’n. Evans, Hall,

Hall Denver, & Richard D. curiae, for amicus Colo. Lawyers Defense Ass’n.

Buchanan, Gray, Schuetze, Purvis & Purvis, Schuetze, John A. Robert A. Boul- der, for amicus curiae.

LOHR, Justice. granted certiorari to judg- review the ment of the Appeals Colorado Court of Spencer, Greenemeier v. 694 P.2d 850 (Colo.App.1984). upheld That court judgment of County the Jefferson District reducing Court compensatory to zero the plain- awarded personal injury tiffs in a case. The reduc- tion was based on a payment setoff for a in settlement joint prior from the defendant’s tortfeasors presents ques- trial. This case also tion of whether a should be told of the and, so, fact of such a settlement if of the amount. We conclude that the trial court compensa- reduced addition, tory damages. In we hold that absent circumstances a should be informed of the fact of but case, however, not the amount. this trial court’s decision not to tell the the settlement was not error. reversible Therefore, we affirm the appeals. court of

I. plaintiffs,

The Gunnar Greenemeier and mother, Redington, brought suit his Lois minors, Spencer and two Sacco, parents. plain- David and their alleged Spencer and tiffs that Darwin negligently guns fired BB David Sacco direction, hitting him in Greenemeier’s plaintiffs fur- eye causing injury. Silverstein, Galchinsky Herbert H. & alleged parents of the two ther Grossman, Galchinsky, Edward Elizabeth them in boys negligently failed to instruct Tulloch, Denver, petitioners. K. negli- guns BB proper use of the Streelman, plain- gently supervise them. The Henderson D. Hender- failed & Jack son, Denver, sought damages various losses respondent. tiffs for the allegedly pensatory

each had incurred or would incur awards the amount of the Saccos, the future as a result of incident. settlement with the they dif- concerning fered whether the tried, Before the case was Greenemeier have been advised of the Redington reached a settlement with Judge Cise, writing Van opinion plaintiffs accepted whereby the Saccos court, agreed with the trial court’s determi- $100,000 in satisfaction of their claims jury nation that a should not be informed against subsequent the Saccos. In the trial that a settlement has occurred. Id. against Spencers, the Greenemeier Judge issue, Chief Enoch dissented on this Redington requested the court to inform expressing the jury view that the jury plaintiffs the had that the settled with have been told of the fact of the settle- $100,000. Spencers the The Saccos for re- ment, paid. but not the amount In quested Chief jury merely that the be told that Judge opinion, Enoch’s the trial plaintiffs the court’s fail- and the Saccos had reached a give ure to settlement. The trial court the that information consti- refused both requests (En- and did not advise the of tuted reversible error. Id. at 853-54 prior och, C.J., either concurring part the fact or the amount of the in dissenting part). Judge in Sternberg adopted a mid- ground, agreeing dissenting dle with the case, plaintiffs’ At the- close of the the view that the should have been ad- granted Spenc- the motion of Darwin vised of the fact of settlement voting but verdict, parents leaving er’s for a directed affirm because the trial court’s failure to Spencer only Darwin as the defendant in impart such information to the was the case. The returned verdicts prejudicial. not shown to have been Id. at $8,000 against Spencer, awarding compen- J., (Sternberg, concurring and specially $50,000 satory damages Redington concurring). $1,000 compensatory and exemplary dam- ages Upon by to Greenemeier. motion granted certiorari to consider of both defendant, the trial court reduced each of by ap- the issues addressed the court of compensatory damages the two awards to peals. We conclude that the trial court entry judgment zero and directed of properly reduced to zero the amount of the $1,000 against Spencer only plaintiffs’ compensatory damages awards. exemplary damages assessed addition, we hold that absent The trial court held that the Uniform Con- circumstances, settlement, the fact of but Among (Act), tribution Tortfeasors Act not the should be made known to a -106, (1985 13-50.5-101 to 6 C.R.S. §§ jury. Although the trial court Supp.), required that amount of com- present case declined to advise the of pensatory damages plain- the fact of the record does not tiffs at trial be reduced the amount of that adversely indicate this refusal affected they had received from the Sac- justice. the cause of substantial There- prior cos to trial. fore, appeals we affirm the court of Redington appealed, Greenemeier and upholding judgment of the trial court. erred, contending that the trial court first reducing the awards to and sec- II. refusing to inform ond Redington argue Greenemeier and that Saccos and the had settled reducing the trial court erred in their com appeals to trial. court of affirmed. pensatory damages award. Spencer, 694 P.2d 850 Greenemeier by reducing contend that (Colo.App.1984). three panel against Spencer by judges appeals’ on the court of amount Saccos, agreed the trial court had settlement with the the trial court that 1” Spencer com- to receive reduced the amount allowed “contribution any or 1. Contribution has been defined as act of one several of a number of co-debtors "[t]he Saccos, following despite pro provide; so from the but it reduces the claim the Act: the others to any vision of the extent of stipulated by amount the release or the right of in favor There is no contribution covenant, or in the amount the con- intentionally, tortfeasor who has it, paid sideration whichever is willfully, wantonly or caused or contrib- greater .... injury uted to the ... [suffered plaintiff]. added). (emphasis In Perlmutter v. Bless (Colo.1985), ing, 706 P.2d we noted 13-50.5-102(3), (1985 Supp.). 6 C.R.S. § where, present case, as “the According plaintiffs, must only injuries involved in an action are those Spencer’s have determined that Darwin jointly for which all tortfeasors are or sev because, conduct was willful and wanton liable, erally application 13- [section being after instructed that it could award 50.5-105(l)(a) is clear: either the settle ] exemplary damages if it found that Green- ment amount provided amount for in injuries by emeier’s were attended circum- document, the settlement whichever is disregard stances of a wanton or reckless greater, must be deducted from the total rights feelings,2 of his award- judgment against remaining tort- $1,000 exemplary damages ed to Greenem- type feasors.” This of reduction was rec determination, eier. Given such a ognized legis even Colorado before our plaintiffs argue, the trial court committed adopted lature the Act in 1977. See Cox v. by allowing Spencer error to bene- Co., 67, 74, Pearl 168 Investment Colo. 450 plaintiffs’ fit from the settlement with the 60, (1969) (noting P.2d 63 that in order to disagree plaintiffs’ with the Saccos. overcompensating plaintiff, avoid a a non- argument. settling defendant is entitled to have the reducing plaintiffs’ compensatory against judgment amount of the him re damages award amount of settlement). paid duced the amount settlement, upon sec- the trial relied 13-50.5-105(l)(a) While section directs 13-50.5-105(l)(a), (1985 tion 6 C.R.S. adjust recovering plain- the trial court to a Supp.), provides which for the setoff of damages tiff’s award of in order to reflect payments by one tortfeasor sec- the occurrence a from the claim other tortfeasors 13-50.5-102(3) speaks separate tion to the injury. who are liable for the same Section right subject of the of one tortfeasor to 13-50.5-105(l)(a) states: receive contribution from another tort- (1) When a release or covenant 13-50.5-105(l)(a), feasor. It is section is sue or not to enforce 13-50.5-102(3), governs not section that good faith to one of two or more adjustments plaintiffs’ of the awards any persons injury in tort for the same liable present in the case. wrongful or same death: $100,- (a) plaintiffs discharge any It of the Since the does not trial, plain prior to liability other tortfeasors from for the 000 from the Saccos against Spencer, remaining injury wrongful or unless its terms tiffs’ claims death injury beyond reimbursing a reasonable doubt that ... one of their number who has paid complained the whole liabil- whole debt suffered was attended circumstances ity, proportionate rights each to the extent of his disregard of the of a wanton or reckless Dictionary (4th Black’s Law 399 ed. share.” feelings plaintiff, then in addition of the 1968). you may damages, also award actual exemplary plaintiff a reasonable sum as complete 2. The instruction to the on exem- damages. plary damages read as follows: damages Exemplary be construed are not to you plaintiff, GUN- If find in favor wrong compensation as done, GREENEMEIER, him actual NAR damages and award punishment but as you negligence, for his claim of then example and as an to others. plaintiff is enti- should consider whether the no. 25. Instruction exemplary damages. you tled to If also find 714

tortfeasor, (1982); must be reduced that Slayton Co., v. Ford Motor 140 Vt. 27, amount.3 The trial court acted (1981). 435 A.2d 946 taking The courts reducing compensa- approach this generally hold that no evi tory damages awards zero. dence of either the fact or the amount of settlement should come before

III. Stations, Brewer Payless Inc., 316 705; N.W.2d at Redington McGhee, Greenemeier and further con- Waden v. 274 174, 542, N.C. (1968); tend that the trial court 161 S.E.2d committed reversi- 546 Stephens, ble error when it refused to McCombs v. inform the 252 S.C. 166 (1969). hand, S.E.2d existence of the settlement between On the other them some agree and the Saccos.4 courts have held that we can cal culate practice the better the amount of a to inform the occurred, recoverable in that a settlement has the lawsuit being we do after in formed of the not find reversible error in amount of present settlement and being after instructed to case. deduct the settle ment amount from the plain total sum the above, judges As noted the three on the tiff should compensation receive as for his panel of appeals the court of who decided injuries. E.g., Kemp, Anderson v. 279 Ala. present case reached different conclu (1966); 184 So.2d 832 Hash, Steele v. sions on the issue of whether and to what 212 Cal.App.2d (1963); Cal.Rptr. extent a pretrial should be informed of Haley Byers Transportation Co., settlements between and code- (Mo.1965). S.W.2d 412 fendants potentially or others liable for the injuries by plaintiffs. asserted the The di We conclude that an intermediate vergence in their views is not surprising, approach, similar adopted by to the one the for courts country across the differ their court in Theobold Angelos, 295, v. 40 N.J. approach to the issues of the (1963), 191 A.2d 465 and advocated information to juries be to Judge and the Chief Enoch in the decision now manner in nonsettling which a review, defendant is under Spencer, Greenemeier v. 694 to be credited with the amount (Enoch, C.J., of a settle P.2d at 853-54 concurring in Annot., (1964) ment. 94 part See A.L.R.2d 352 dissenting and part), provides the (collecting cases that address the manner most suitable solution prob to this difficult crediting one tortfeasor with amount lem. We hold that the fact of paid by another for release or covenant paid, not but not the brought amount should be sue). Many adopted have jury’s attention, what is com absent cir monly rule,” termed the whereby addition, “court cumstances. jury if the in is the court deducts the amount of settlement formed place, that settlement has taken the from the verdict jury returned the clearly should be instructed that it E.g., Rogers Luth v. & Babler Construc must determine whether the defendant is Co., (Alaska 1973); tion 507 P.2d 761 De liable based on the criteria set forth in the Rimek, 466, Lude v. Ill.App. 351 115 court’s regard instructions and without (1953); N.E.2d 561 Payless Brewer v. possible liability Sta the parties third tions, Inc., 673,. 412 Mich. 316 N.W.2d 702 jury who have settled. The must also be only review, 3. portion The trial court reduced the party is not before us on for no has plaintiffs’ ry damages, represented compensato- awards that raised this issue. leaving exemplary while damages award intact. The court stated that plaintiffs requested at trial the that partial the purpose reduction was in accordance with the jury be informed of both the fact and the compensation of the Act "to insure full Saccos, amount of their settlement with the plaintiff.” exemplary The court let the argument appeals their before the court of damages award stand because it was before this court is that the should have purpose propriety punishment, compensation. only been informed of the fact that settlement only of the court’s decision to reduce had occurred. compensatory damages portion of the award

715 directed that if it concludes that the de- potential some other defendant has “admit liable, fendant is it must return an award liability ted” through settlement. Such a fully compensates that for all expressed concern has been by some courts injuries regard of his without to the fact that have adopted a rule prohibiting disclo plaintiff may that the have com- sure of the fact that a settlement has oc pensation from others as a result of the curred. See Luth Rogers v. & Babler Con Finally, should be in- Co., 768; struction 507 P.2d at Brewer v. structed that “when the representing sum Stations, Inc., Payless 316 N.W.2d at 705. returned, compensation full is it will be We have never presume hesitated to that apportioned as the law among dictates will follow the given by instructions defendant responsible or defendants found E.g., People Lesh, the court. 668 P.2d persons and the other who have 1362, (Colo.1983); James, 1365 James v. made settlements with plaintiff.” 154, 165, (1929); Colo. 274 P. Ap 470; Angelos, Theobold v. 191 A.2d at see pel Sentry Co., Insurance 701 P.2d Life Spencer, also Greenemeier v. 694 P.2d at (Colo.App.1985), granted cert. (Enoch, C.J., concurring part grounds, (Colo. other 85SC158 June dissenting part). 1985). We are confident if that approach This many avoids of the draw clearly instructed as to duty its to deter jurisdictions backs that courts other mine the liability defendant’s have associated with the rule that allows regard without for the existence of third to deduct the amount of settle parties settled, who have nonsettling ment from the award. Such defendant prejudiced by will not be possibilities drawbacks include the jury’s knowledge that such a settlement court will be unable determine whether contrary, has occurred. To the advising actually verdict reflects a deduc of the fact of settlement avoids tion of the settlement Luth v. Rog prejudicial inferences arise Co., ers & Babler Construction 507 P.2d jurors, when normally who are well aware improperly and that the will be that someone other than the was defendant knowledge influenced of the amount in involved the incident that in resulted the determining settlement in plaintiff’s injuries, speculate as to the fate liability damages. Id.; defendant’s and Stations, Inc., person. of the absent Payless Brewer v. believe that the 316 approach N.W.2d at 705. approach adopt today Under the taken that we will be most by the court in Angelos, Theobold v. how conducive to a verdict consistent with the ever, perform does not the settle law, and the evidence for the members Furthermore, ment deduction. is will undertake their duties secure in the not even informed of the amount of settle knowledge they that whatever verdict re ment and thus cannot use that amount as a apportioned among turn will be the defend yardstick with which to measure the dam settling parties ants and as the law re ages against to be assessed the defendant. quires. any danger This minimizes jurors plaintiff’s will reduce or increase the award Although foregoing consider to reflect their belief that the settlement persuade ations us that in the usual case a overcompensated undercompensated has jury should be advised of the fact of settle plaintiff. ment, many but not the and varied circumstances in which issue By providing general with infor against adoption arise caution of an mation about the interrelation of the claims absolute rule. The trial court should be against settling nonsettling parties, vary ap allowed discretion to from this approach Theobold Angelos v. also serves proach where circumstances con minimize risk that will impute liability, vince the court that such variation liability, or lack of will best simply by promote defendant virtue of the fact that a on the verdict based facts and give applicable ample Admittedly, law. This will there is no solution to the scope problem the trial courts to evaluate the given of the information to be to a legal factors complex concerning human and involved jury pro- settlement that will assessing likely effects of disclosure vide ironclad assurance prejudice in promote verdicts settlements will every persuaded, however, case. We are only legally appropriate based considera that the manner adopted of instruction ap tions.5 In order to facilitate effective opinion advance, this will most often rather review, pellate the trial court should detail endanger, than accuracy the fairness and persuade it to the reasons that deviate jury’s of a verdict. It keeping is also in from the manner of instruction outlined justifiably with the confidence that we re- opinion. pro this Decisions of other courts pose juries to resolve serious matters in support recognition of a role vide manner, responsible, impartial a fair judicial determining the infor discretion adhering given by to the instructions jury concerning mation be to a court and uninfluenced extraneous con- v. E.g., City Azure Bill siderations. 460, ings, 182 Mont. 596 P.2d that, (1979) spe we hold (although generally absent circumstances, settlement, of a “a cial the fact of settlement be advised certain brought attention, jury’s amount of discretion must be vested in the should be trial so that each situation can the trial court’s be failure to do so in the basis”); separate Degen present dealt with on a case does not constitute reversible Bayman, S.D. N.W.2d 139 error. The have failed to demon (1972)(the disclosure to the of the fact strate that the lack of an instruction con cerning of settlement should be left to the discre prejudiced court, rights. part tion of the trial but the amount their As of their motion for a known; trial, plaintiffs presented should not be made under the cir new the trial cumstances, the failure to disclose the fact jurors court with affidavits from the six trial, during coupled participated of a settlement made who in the trial. Two of the exploitation jurors with counsel’s [they] stated that “had known about knowledge disposition lack of of the reason for the the settlement it would have “evaporation adversary vigor” between affected deliberations.” Four oth [their] settling they and the ers stated that had known about the discretion); $100,- they was an abuse of would have Groves added (W.Va. Compton, they 280 S.E.2d 711-12 000 to their verdicts because had in 1981) (trial concerning court has discretion tended that receive provided Spencer, regardless the information to be to a from of the amount the concerning pay. about a settlement and whether had to Saccos trial court refused acknowledge offset necessitated the settlement to these affidavits because it made impeach be the court or believed that the could not its jury). in own verdict such a manner.6 Lawyers going pay 5. Amicus curiae Colorado Trial Associ- I am not even to attention to those argues affidavits, they ation argues against recognizing any for a rule of nondisclosure nothing, except mean that the in the counsel], discretion talking [plaintiffs' jury, after to advising respect juries trial court with to of appease give have wanted to him and him pretrial settlements. Amicus asserts that a dis- wrong affidavits. I think it was to obtain cretionary adversely pros- rule will affect the affidavits, I those not, and think that the can- correct, pects for settlement. Even if this is we manner, impeach in that their own ver- prospects believe that the enhancement of the of that, they they saying dict. If are were in by allowing a fair result discretion in the trial they violation would be in violation of of— respond unpredictable court to to various and jurors my their oath as tions, not to follow instruc- compensate circumstances will more than for they were clear that were to which any dampening negotia- effect on settlement compensate fully. him tions. 6. The trial court stated: agree that the affidavits do not merit tice. The court every stage at noted, As the trial court proceeding

serious attention. disregard must any error or may mean no more than that the affidavits proceeding defect which does not appease to jurors wished rights affect the substantial par- attorney, apparently presented ju- who ties. rors with form affidavits drafted his Our review of the record satisfies us that persuasive office. More than the affidavits jury’s verdict was consistent with sub- is the fact that the instructed that was justice. Therefore, stantial though even Greenemeier, if it found favor of it must special record discloses no circumstanc- award as his “an amount which es in present case justify that would reasonably compensate will for his [him] the trial court’s decision not to reveal the injuries.” Instruction no. The fact of settlement jury, we do not consider, was further instructed to deter- consider that decision to be er- reversible mining damages, “[a]ny Greenemeier’s ror. physical pain suffering plain- or mental judgment We affirm the of the court of permanent tiff has incurred” and “[a]ny appeals. added). injury disability.” (emphasis or Id. similarly was instructed to award VOLLACK, Justice, specially concurs. damages, any, Redington. reasonable if instructions, explicit Given these and our VOLLACK, Justice, specially concurring: presumption that the instructions were fol- I concur of the court and Colo, lowed, James, James v. join majority opinion except for Part carry weight. P. at the affidavits little III, concerning given the information to be most, express At the the affidavits both the by the court in the event that jurors’ perception Spencer would not plaintiff persons settles with one of the responsible any part be held potentially plaintiff’s who is liable for the disappoint- verdicts him and their injuries. that, majority concludes ab- ment with that result. The affidavits do circumstances, sent the fact of set- not, however, jury’s cast doubt on the de- tlement, but not the should be termination that the were entitled disagree made known to the I compensation to a total of as would hold that neither the fact of settle- injuries. their ment nor its amount should be revealed to affidavits, Despite the existence of the jury. Accordingly, I would conclude the persuaded we are were declining trial court acted prejudiced by lack of knowl- advise the of the fact of the settlement edge concerning in this case. Moreover, we note that the trial court If a is told the settled with prior guidance lacked from this court on liable, persons potentially one of the who is the issue of the information to be jury may presume jury concerning Under the defendant on settlements. similarly particular culpable, conversely, these circumstances we find rele- trial provides: may presume culpable party vance in C.R.C.P. which has settled remaining party held and the should be No error in either the admission or the non-liable. Once informed the fact exclusion of evidence and no error or it would be difficult for the any ruling any- defect in or in or order ignore jury this fact determine thing done or admitted the court or liability regardless of the exist- defendant’s parties ground granting is parties ence of third who have settled. setting a new trial or for aside a verdict Looking practical from a vacating, at the situation modifying or for or otherwise order, knowledge disturbing viewpoint, such does not elimi- unless potential impact the verdict even appears refusal to take such action nate a jus- thoroughly with if the instructed. inconsistent substantial 719 P.2d —17 may appear limiting instructions

While revealing prejudicial effect of resolve the information, reality it is diffi- settlement were followed cult to tell if the instructions Adding during jury’s deliberations. to those needed to more instructions of law complicates further decide the case view, my it is difficult task. factor from the deli- to remove this better process expose and not berative potentially prejudicial information. I not reveal information re- While would I garding jury, concur in this case. with the result reached Colorado, The PEOPLE State Plaintiff-Appellant, CHASE, Edward William Defendant-Appellee.

No. 85SA365. Colorado, Supreme Court of En Banc. June VanMeveren, Atty., A. Dist. Je-

Stuart Roselle, Sharpe, Deputy rome B. Steven Collins, Attys., plaintiff-ap- Fort Dist. pellant. Vela, Joseph Public Defender

David F. Whitesel, Gavaldon, Deputy Lois M. A. Defenders, Collins, Fort for defend- Public ant-appellee.

QUINN, Chief Justice. 4.1, ap- People, pursuant to C.A.R. suppressing custodial peal from an order by the William statement made

Case Details

Case Name: Greenemeier Ex Rel. Redington v. Spencer

Court Name: Supreme Court of Colorado

Date Published: Jun 2, 1986

Citation: 719 P.2d 710

Docket Number: 84SC319

Court Abbreviation: Colo.