Arik Hansen, as the surviving parent of Wendy Ulmer, deceased, Plaintiff-Appellant, v. Barron’s Oilfield Service, Inc., a Colorado corporation; and Victor Hierro, Defendants-Appellees.
No. 17CA1109
COLORADO COURT OF APPEALS
September 6, 2018
2018COA132
Opinion by CHIEF JUDGE LOEB; Vogt and Carparelli, JJ., concur
Adams County District Court No. 16CV31446; Honorable Emily E. Anderson, Judge; Division V; Announced September 6, 2018
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
September 6, 2018
2018COA132
No. 17CA1109 Hansen v. Barron’s Oilfield Serv. Inc. — Torts — Wrongful Death; Damages — Damages for Death by Negligence — Damages for Death
Plaintiff, Arik Hansen, appealed the district court’s dismissal of his wrongful death action against Barron’s Oilfield Services, Inc. (Barron’s) and its employee Victor Hierro for negligently causing the death of Hansen’s daughter. We affirm the judgment.
Hansen’s attorneys originally filed this wrongful death action on behalf of the deceased’s husband. However, unbeknownst to the attorneys, the husband died prior to their filing the complaint. The attorneys then filed an amended complaint on Hansen’s behalf.
Barron’s argued that the deceased was married at the time of her death and that, therefore, Hansen, as the deceased’s father, did not have standing to bring a wrongful death action under section
We affirm the district court’s judgment of dismissal because we conclude that the relevant time to determine a decedent’s marital status and familial relationships under section
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Bachus & Schanker, LLC, J. Kyle Bachus, Claire Soto, Denver, Colorado, for Plaintiff-Appellant
Padilla & Padilla, PLLC, Joaquin G. Padilla, Denver, Colorado, for Defendant-Appellee Barron’s Oilfield Service, Inc.
The Ukasick Law Firm, Troy A. Ukasick, Loveland, Colorado, for Defendant-Appellee Victor Hierro
*Sitting by assignment of the Chief Justice under provisions of
¶ 1 In this wrongful death action, plaintiff, Arik Hansen, appeals the district court’s judgment granting the motion to dismiss of defendant, Barron’s Oilfield Service, Inc. (Barron’s), for lack of standing under the
I. Background and Procedural History
¶ 2 Wendy Ulmer (Wife) died in an automobile collision with Barron’s employee, Victor Hierro, on March 21, 2016. At the time of her death, Wife was married to Benjamin Ulmer (Husband) and had no children. It is undisputed that when Wife died, she was married to Husband, and that Husband survived her.
¶ 3 On July 29, 2016, the law firm of Bachus & Schanker filed a wrongful death action on Husband’s behalf, naming Barron’s and Hierro as defendants. However, apparently unbeknownst to the attorneys, Husband had died of natural causes sometime prior to the filing of the complaint.2
¶ 4 Upon learning of Husband’s death, Bachus & Schanker filed an amended complaint on September 9, 2016, substituting Hansen, Wife’s father (Parent), as the plaintiff. In October, Barron’s filed a motion to dismiss under
¶ 5 In his response to the motion to dismiss, Parent argued that the WDA should be liberally construed to conclude that, under the circumstances here, where Husband died prior to filing a wrongful death action, Parent should be allowed to file the action. Parent argued that because Husband was dead at the time Parent filed his wrongful death action, Wife was “unmarried” for purposes of section
¶ 6 The district court ruled in favor of Barron’s, concluding that, because Wife was a married adult without children on the date of her death, Parent did not have standing under section
II. Standard of Review
¶ 7 Although Barron’s motion to dismiss was nominally filed pursuant to
¶ 8 The issue of standing is a legal question that we review de novo. Sandstrom, ¶ 14. We employ a mixed standard of review for motions to dismiss for lack of subject matter jurisdiction. Grant Bros. Ranch, LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 15. We review the district court’s factual findings for clear error and the court’s legal conclusions de novo. Id.
¶ 10 A statute’s silence on an issue does not necessarily mean that the statute is ambiguous. In re 2000-2001 Dist. Grand Jury, 97 P.3d at 924. “If . . . a statute can be construed and applied as written, the legislature’s silence on collateral matters is not this court’s concern, for we will not strain to construe a statute unless necessary to avoid an absurd result.” Id. (citations omitted).
III. Statutory Framework
¶ 11 The WDA creates a statutory right to bring suit for a person’s death resulting from negligence. Section
(1) When any person dies from any injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employee [of a railroad or other common carrier] . . . [the employer] shall forfeit and pay for every person and passenger so injured the sum of not exceeding ten thousand dollars and not less than three thousand dollars, which may be sued for and recovered:
(a) In the first year after such death:
(I) By the spouse of the deceased;
(II) Upon the written election of the spouse, by the spouse and the heir or heirs of the deceased;
(III) Upon the written election of the spouse, by the heir or heirs of the deceased; or
(IV) If there is no spouse, by the heir or heirs of the deceased or the designated beneficiary, if there is one designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to this section, and if there is no designated beneficiary, by the heir or heirs of the deceased;
(b)(I) In the second year after such death:
(A) By the spouse of the deceased;
(B) By the heir or heirs of the deceased;
(C) By the spouse and the heir or heirs of the deceased; or
(D) By the designated beneficiary of the deceased, if there is one designated pursuant to article 22 of title 15, C.R.S., with the right to bring an action pursuant to this section, and the heir or heirs of the deceased. . . .
¶ 12 Under section
If the deceased is an unmarried minor without descendants or an unmarried adult without descendants and without a designated beneficiary pursuant to article 22 of title 15, C.R.S., by the father or mother who may join in the suit. Except as provided in subparagraphs (II) and (III) of this paragraph (c), the father and mother shall have an equal interest in the judgment, or if either of them is dead, then the surviving parent shall
have an exclusive interest in the judgment.
(Emphasis added.)
¶ 13 Here, Wife’s fatal car accident did not involve railroads or common carriers. However, section
When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as
would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.
“All damages accruing under section
IV. Parent’s Standing under the WDA
¶ 14 Parent argues on appeal that the district court erred in dismissing his wrongful death action because it interpreted the WDA too strictly instead of interpreting the provisions of the WDA liberally. He further argues that fairness and public policy dictate that he should be allowed to file a wrongful death action for the death of Wife under the circumstances here. We disagree with both contentions.
A. Applicable Law
¶ 15 To have standing to prosecute a lawsuit, “a plaintiff must have (1) suffered an injury in fact (2) to a legally protected interest.” C.W.B. v. A.S., 2018 CO 8, ¶ 18. As relevant here, to show a legally protected interest, a plaintiff must have a claim for relief under the constitution, the common law, a statute, or a rule or regulation. E.g., Hickenlooper v. Freedom from Religion Found., Inc., 2014 CO 77, ¶ 10. “The legally protected interest requirement . . . recognizes that ‘parties actually protected by a statute or constitutional provision are generally best situated to vindicate their own rights.‘” C.W.B., ¶ 18 (quoting City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 437 (Colo. 2000)).
¶ 16 Wrongful death actions did not exist at common law and are entirely creatures of statute. Mitson v. AG Eng’g & Dev. Co., 835 F. Supp. 572, 573 (D. Colo. 1993). Sections
¶ 17 The pertinent provisions of the WDA have remained substantively unchanged since their enactment in 1877. Pub. Serv. Co. of Colo., 674 P.2d at 384. As the WDA is currently codified, section
¶ 18 Colorado has vested the right of recovery under the WDA “solely in the person[s] named in the statute.” Espinosa v. Perez, 165 P.3d 770, 774 (Colo. App. 2006)
¶ 19 Parents of an adult deceased have the right to bring a wrongful death action only if the decedent is unmarried and without descendants.
¶ 20 The term “unmarried” as used in the WDA refers to someone who is not married at the relevant time, rather than a person who has never been married. Myers v. Denver & R. G. R. Co., 61 Colo. 302, 305, 157 P. 196, 196-97 (1916). Section
B. Analysis
¶ 21 For purposes of our standing analysis under section
¶ 22 At the outset, we note that the following facts are undisputed:
- Wife was an adult when she died.
- Wife died in a car crash involving a Barron’s employee.
- Wife was married to Husband at the time of her death.
- Husband survived Wife.
- Husband died of natural causes prior to filing a wrongful death action for the death of Wife.
- Wife did not have any heirs or descendants, as those terms are interpreted under the WDA.
¶ 23 The district court dismissed Parent’s action with prejudice, effectively concluding that section
¶ 24 Parent’s primary argument is that the district court erred in strictly construing the WDA so as to limit the definition of the term “unmarried” to Wife’s marital status at the time of her death. Parent asserts that a liberal construction would allow him to bring a wrongful death action for Wife’s death because the statute is silent as to the operative time to determine the deceased’s marital status. Thus, we now address the dispositive question in this case — for the purposes of a parent’s standing to file a claim pursuant to the WDA, what is the relevant time for determining if the deceased is married or unmarried: the deceased’s date of death, as Barron’s asserts, or when the wrongful death action is filed, as Parent asserts? We conclude it is the decedent’s date of death.
¶ 25 We begin our statutory analysis by reading the plain language of a statute. If that language is clear, the statute is unambiguous and we must apply the words as written. In re 2000-2001 Dist. Grand Jury, 97 P.3d at 924; Hotsenpiller, ¶ 18; Stanley, ¶ 10. The parties spend substantial time in their briefs on appeal arguing about whether we should apply a liberal or strict construction to the statute.6 But, we think that dispute
¶ 26 The statutory language is explicit that parents of a deceased person have the right to bring a wrongful death action only when the deceased is unmarried and has no descendants.
¶ 27 Nevertheless, Parent contends that, despite Husband’s survival, Parent has the right to file a wrongful death action because Wife was “unmarried” under section
¶ 28 First, while section
¶ 29 Second, although there is no Colorado appellate case directly addressing the specific issue here, language in several Colorado cases supports the conclusion that the operative time to determine the deceased’s marital status under section
¶ 30 Similarly, in McGill, the supreme court described the operative facts in that case as follows: ”At the time of his death, the decedent was 23 years of age, married and
¶ 31 In another case, a division of this court reversed a “judgment of dismissal” and remanded to the trial court for further proceedings because there existed a genuine issue of material fact as to whether the decedent was part of a common law marriage at the time of her death, which would have precluded her parents from filing a wrongful death action. Whitenhill v. Kaiser Permanente, 940 P.2d 1129, 1132 (Colo. App. 1997).
¶ 32 Finally, in Hopper, 155 F. at 276, in describing how the order of the various subdivisions in the WDA should be interpreted for purposes of determining when parents of a deceased have a right to sue, the court held that the statute should be interpreted to allow a suit as follows: “If such deceased be a minor or unmarried, and leave no surviving husband or wife and no surviving child, then by the father and mother.” Id. (emphasis added).
¶ 33 In each of the cases discussed above, it is clear that the court’s analysis used the time of the decedent’s death as the operative time for determining the decedent’s marital status and familial relationships. We have found no case law, and Parent has not cited any, that supports the conclusion that the operative time for determining a decedent’s marital status is the time of filing the wrongful death action.
¶ 34 Third, Parent’s proposed interpretation of the statute would, in our view, allow for a posthumous change of a decedent’s marital status, which is an absurd result. See, e.g., Agilent Techs., Inc. v. Dep’t of Revenue, 2017 COA 137, ¶ 31 (stating that we do not interpret a statute in such a way as to render any part of it meaningless or absurd). In effect, Parent asks us to conclude that a person’s marital status can change when that person is no longer alive.
¶ 35 Additionally, were we to accept Parent’s interpretation of the statute (that the decedent’s marital status should be decided at the time of filing the suit), the delineation in section
¶ 36 Parent’s interpretation would also require us to, essentially, add language to section
¶ 37 Fourth, Parent argues that fairness and policy considerations dictate that he should be able to maintain a wrongful death action for Wife’s death when Husband died and was unable to file such an action. These policy arguments are better suited for the General Assembly and not this court. E.g., Ruybalid v. Bd. of Cty. Comm’rs, 2017 COA 113, ¶ 18 (“[M]atters of public policy are better addressed by the General Assembly,” not this court.) (cert. granted Apr. 30, 2018). We presume that the General Assembly was aware of relevant court decisions when amending the WDA, and it has had many years and opportunities to enlarge the circumstances under which parents can
V. Attorney Fees on Appeal
¶ 38 Barron’s requests attorney fees on appeal pursuant to C.A.R. 39; C.A.R. 39.1; sections
VI. Conclusion
¶ 39 The judgment is affirmed, and the case is remanded with directions for a determination of the appropriate amount of attorney fees incurred on appeal.
JUDGE VOGT and JUDGE CARPARELLI concur.