*1 NEVES, individually Deanna M. and as Neves, guardian
natural of Manuel D.
III, minor, Neves, II, and Manuel D.
individually guardian and as natural duly appointed conservator of the Neves, III,
Estate of Manuel D. a mi-
nor, Petitioners, protected person, POTTER, D.O.,
Robert E. and Gilbert
Roth, D.O., Respondents.
No. 87SC373. Colorado,
Supreme Court of
En Banc.
Feb. 1989. Rehearing
As Modified Denial
March Kinnaird,
Law Firm of Kenneth D. Ken- Kinnaird, Springs, neth D. Colorado petitioners.
Cooper P.C., Mihm, Kelley, & Mick T. Mann, Denver, respondent, John R. Potter, Robert E. D.O. *2 given Wills, Manny appropriate Kirgis, Lee R. directions that and Gorsuch
Wills signs respondent, if he exhibited Springs, for Gilbert doses of codeine Colorado Roth, D.O. discomfort. Johnson, Carney Pryor, and Robert W. being A after taken to the few hours Johnson, Irving and
Carney, G. Elizabeth room, breathing. recovery Manny stopped curiae, Moran, Englewood, for amicus C. staff, hospital removing post- after The Lawyers Ass’n. Defense Colorado successfully pack, nasal resuscitated the During the course of the resuscita- child. Springer McDermott and and Gerald P. Manny had mis- tion it was discovered P.C., Steinberg, Jeffrey Springer, Den- A. takenly an adult dose of been administered ver, curiae Colorado Trial Law- for amicus morphine rather than the ordered amount yers Ass’n. Manny appeared for a child. codeine ERICKSON, however, Justice. from the incident. Later recover speech he exhibited both a defect and a granted certiorari to review the court We learning disability. mild Potter, in appeals decision Neves v. (Colo.App.1987),which affirmed The threatened to sue Eisenhower entry summary judg- the trial court’s Hospital, alleging Manny was brain respondent doctors. ment favor of damaged respiratory as a result of the executed The issue is whether a release brought morphine arrest over- specifically released the the Neves which dose. Counsel for the Neves enterеd into any Hospital Eisenhower “as well as and negotiations settlement with Eisenhower’s all other carrier, Falls Insurance insurance Glen operated liability malpractice from also agreement Company, and an was reached. doctors, to release the required part agreement specifically named in the release. were not Neves execute a release favor of the genuine there is a issue as to Because hospital. to release the whether the Neves intended Appoint- The Neves filed a Petition for through from the execution doctors ment of Conservator with the district court release, and return the of this we reverse sitting probate as a court and attached a appeals case to the сourt of with directions copy proposed of the which had to remand to the trial court for further September been executed on proceedings opinion. consistent with judge Sep- district court issued an order on 28,1978, approving petition tember and I. stated: malprac- a medical This action involves proposed compromised That the settle- brought against respondents, Drs. tice suit ment on behalf of said minor set forth Roth, by E. Potter and Gilbert De- Robert filed herein Petition be and same Neves, II, anna M. and Manuel D. individu- authorized, hereby is and said Conserva- ally, guardians as of and as conservators $17,- accept tor is directed to sum Neves, (Man- III for their son Manuel D. Neves, 000.00 for Manuel D. III in full 21, 1974, ny). April Manny, then twen- On complete settlement of and all claims old, to the ty-two months was admitted said minor and said Conservator Hospital Springs in Colorado Eisenhower Hospital, its successors and for treatment of an ear infection. assigns, any growing and all claims day, performed following surgery with out of said accident and to execute a serving Manny’s Drs. Potter and Roth release. operating attending physicians. After and (Emphasis added.) post-nasal surgery, the doctors used a pack bleeding, materially to control was left The order is different place Manny September 20 tied in when was taken to the release because the class recovery post-operative persons room. Routine or- of described sub- nurses, including stantially persons ders were issued to the broader than the class of Specifically, malpractice described the order. specific which occurred” on a September 20 release states that the Neves sufficiently specific date is identify discharged those to be comply acquit Ei- forever requirements Hospital, successors,
senhower
and its
[Uniform
Among
assigns,
servants,
Contribution
Tortfeasors
agents,
principals and
Act].
Hence,
insurers,
correctly
the trial court
per-
ruled that
*3
sons,
the
discharged
Neves’ release
the
firms,
corporations
who are or
defen-
dants.
any
be liable of and from
claims
resulting
malprac-
...
or to result from
Potter,
1335,
(Colo.
Neves v.
748 P.2d
August,
tice which occurred on or about
App.1987).
granted
We
certiorari
to ad-
Springs,
at Colorado
Colorado.
question
the
dress
of whether the form
added.)
(Emphasis
persons,
release of “all other
firms or cor-
porations” discharges
joint
tortfeasors
2, 1980,
On October
the Neves filed a
from liability under section 13-50.5-105.
malpractice
respondent
suit
the
County
doctors in the El Paso
District
II.
complaint alleged
Court. The
that before
case, arising
The issue in this
from the
administered,
morphine
overdose was
differences between the terms of the re-
respondents negligently placed
agreement
lease
and the district court’s
pack
post-nasal
way
in such a
authorizing
agreement,
order
focuses
Manny’s. airway
blocked
and induced the
scope
on the intended
of the release. The
respiratory
respondents
arrest.
The
conflict between the terms creates an ambi-
summary judgment, asserting
moved
guity
scope
as to the intended
of the re-
September
20 release entered into
lease, and causes us to determine whether
between
Neves and Eisenhower effec-
any genuine
there was
issue of material
tively
liability
released them from
scope.
fact as to the intended
We reach
arising
claims
from that
incident. The
upon
grant-
the issue
which certiorari was
Neves moved to reform the release. The
ed
if
because
it is found that the release
motion,
trial court denied the
and entered
intent,
parties’
reflects
then it must be
summary judgment
respondents’
favor
whether,
law,
determined
as a
of
matter
April
appealed
1985. The Neves
provides
form which
for the release of “all
trial court’s action to the Colorado
of
Court
other
dis-
Appeals.
charged
respondent
doctors.
appeals
court of
opinions
issued two
regarding
opinion,
the case.
Its first
is-
relinquishment
A release is the
of a
28, 1987,
May
sued
reversed the trial
right
person against
vested
or claim to a
entry
summary judgment
court’s
be-
E.g.,
whom the claim is enforceable.
expressly identify
cause the release did not
Bresnahan,
Trustee
Co.
respondents
who
re-
were
(1949).
law,
P.2d 499
At common
and
discharged.
leased and whose
Colorado,
many years
release of
Potter,
(Colo.App.
Neves v.
No. 85CA1001
joint
one
tortfeasor
served
release all
May
1987).
doctors
E.g.,
tortfeasors.
Cox v. Pearl
rehearing,
filed a motion for
which was
Inv.
168 Colo.
While release before us did ex- more tortfeasors acted concert cause plicitly injury, the defendants as an the act of one became the act of name liability, action, single we hold that all and a cause with each language “any persons” participant being liable for the entire loss coupled Prosser, in a plaintiff. release when the limit- sustained Joint ing language “resulting or to Liability, result from Torts and Several Calif.L. of one have advocated that desir- The release “[t]he
Rev.
plaintiff
would seem to be that
able rule
was a surrender
joint tortfeasor
cause
deprived
never be
of a
action,
should
resulted
re
entire cause of
plain-
against wrongdoer
аction
when
liability. W.
leasing each tortfeasor from
intentionally
neither
surrendered
tiff has
Dobbs,
Owen,
Keeton,
Keeton & D.
W.
R.
cause of action nor received substan-
Torts
Keeton on the Law
Prosser and
Keeton,
compensation.”
tially full
W.
W.
(5th
1984);
e.g., Cingora
ed.
at 332
§
Dobbs,
Owen,
Keeton
Prosser
R.
& D.
Paul
Marine Ins.
nelli v. St.
Fire &
49, at
on the
Torts
Keeton
Law
§
(Colo.1983).
1984).
(5th ed.
of release of
The common-law doctrine
1, 1977,
July
the General
Effective
As-
has come under wide
tortfeasors
abrogated
sembly
common law release
yielding
that are
spread criticism as
results
UCATA,
passage
rule Colorado
basis,”
“harsh,”
“without
rational
-106, 6A
sections 13-50.5-101 to
C.R.S.
Perillo,
“very
J.
& J.
*4
unfair.”
Calamari
(1987
Supp.).
& 1988
Section 13-50.5-105
(2d
1977);
20-3
ed.
The Law Contracts §
of
provides
of the UCATA
that:
Alsup v. Firestone Tire & Rubber
e.g.,
given
good
When a release ...
is
Co.,
461
101 Ill.2d
77 Ill.Dec.
persons
of
faith to one
twо or more
liable
(1984);
Chrysler
361
v.
Bjork
N.E.2d
injury
tort
same
or
same
146
Corp.,
(Wyo.1985).
basis
wrongful death:
put by
the Ohio
for the criticism
well
(a)
discharge any
It does
of the other
v.
Supreme Court when it stated Whitt
liability
from
tortfeasors
for their sever-
Huchison,
43 Ohio
1051
proсeeding against
presumes
unnamed tortfeasors.
rule
intended to
See, e.g., Douglas v. United States Tobac
persons
those
entities
(8th Cir.1982);
791
co
F.2d
Mori
are named
or discernible from the re
Corp.,
v.
son General Motors
UCATA] plaintiff given to runs date the If liberal effect were limitations from the rule.... general discovered, ‘all form and every use of release or exercise of reasonable corporations’ discovered, ... firms and diligence negli should have discharged, important pur an Trevarton, were to be Trevarton v. gence); Colo. by pose would be thwarted (1963) (parent-child [UCATA] immu persons who release of the unintended suing nity does not bar from his father son strangers contract.” were personal injuries by caused father’s 740-41, 199-200, Id. Ill.Dec. at at negligence injuries where were inflicted on to went N.E.2d at 363-64. performancе of duties related to say that parental distinguished from work legislature to abolish Rains, duties); Rains v. 97 Colo. produced an invol- common law rule that (1935) (abrogating the common P.2d tortfeasors. untary holding by that a wife could sue her law 2(c) states that a release will Section personal injuries husband caused ‘discharge any of the other operate to negligence); his Bendix-West Bradford inju- tortfeasors Co., inghouse Auto. Air Brake ry....’ We do not consider App. (permitting follows, i.e., language modifying injured party in the zone of who was dan provide,’ so should be ‘unless its terms ger product created defective but who legislative in- interpreted to allow the neither the nor ultimate consumer user nullifying the common law tendment liability theory to sue under strict and abol through the use of frustrated rule ishing privity requirement of contract un forms. what are often recovery available der which Id. at at at 77 Ill.Dec. 461 N.E.2d consumer”); “ultimate user overriding has Our concern been and will view, expressed In our concerns to be victim of tortious continue that a Alsup Mclnnis are well-founded. opportunity conduct has a fair and realistic spirit of rule violates the “absolute bar” appropriate damages. to recover The “ab- *6 the 13-50.5- UCATA and frustrates section rule is odds with this con- solute bar” at liability express goal retaining of the 105’s cern. Since the common-law rule re- joint joint It tort- provides of tortfeasors. garding the release of tortfeasors has feasors, of nor signatories who are neither Colorado; in will been abolished we not release, to a benefit contributors a windfall general by holding it now resurrect that a they bargain. Adoption which did itself, discharges in and of the rule would contravene Accordingly, do not apply tortfeasors. we UCATA, the modern but would also curb bar” in this case. the “absolute rule judiciary stripping trend of the Colorado away artificial and anachronistic barriers B. See, injured recovery by parties. to tort apply “express We also chose not to Co., e.g., v. Ins. Myer State Farm Mut. designation” rule in this case because it (common-law (Colo.1984) doctrine swings pendulum too far other intra-family immunity abrogated tort Assembly ex direction. General has arising from colli motor vehicle actions provided pressly that a release of one tort- allow, specific class of sions in order “a does not feasor tortfеasors persons those related to innocent provide.” its driver,” “unless terms so living negligent with 13-50.5-105(l)(a). nothing There is negli injured by § recover when driver’s Brochner, suggests which that a the statute releaser v. gence); Owens punctilious point patently must mathe (rejecting unjust year precision identifying every per matical two the traditional rule that malprac discharge. he limitations medical son whom intends to statute of negli legislature easily tice at could chosen to re action accrued the date have application by See, strict the of a release to those e.g., release.1 Hansen v. Col specifically named therein. It chose lett, not to. Nev. 380 P.2d meaning of the statute should be de (1963); Hale, Sage v. 75 Misc.2d 257- plain language, termined from the statute’s 347 N.Y.S.2d (N.Y.Sup.Ct. Lobato, (Cоlo.1987), 743 P.2d v. Charnes 1973). Had the Assembly General usurp legislature’s pow and we will not require express designation was a by deciding er what should have been said. prerequisite releasing joint tortfeasor, policy There are also it could adopted several considera- have a version of the argue against “express tions which des- UJOA rather than the UCATA. ignation” rule. Under the UCATA “[a] tortfeasor who enters into a settlement C.
with a
is not
claimant
entitled to recover
contributions
from another
tortfeasor
view,
In our
the “intent” rule most
liability
injury
wrongful
whose
nearly comports
existing
Colorado
extinguished
death is not
by the settle-
case
effectively promotes
law and most
ment_”
13-50.5-102(4). Under the
§
purpose
spirit
of the' UCATA. Under
statute,
settling
may
defendant who
have
rule,
scope
general
of a
release is
planned to seek contribution from other
dependent upon the
parties
intent of the
tortfeasors would be unable to do so if
negotiated
the release. Tortfeasors
express designation
required
because
who are not
to the release are
liability
non-settling
tortfeasors
called on to show either that the release
extinguished
would not
have been
intended to
them or that the
Thus,
release.
the tortfeasor who settled
releaser
compensation
has received full
pro
for more than his
rata share of
injuries
sustained. Fieser v. St. Fran
potential
order to avoid the
larger
of a
Hosp.
Inc.,
cis
Nursing,
& School
judgment would
recovering
be barred from
Kan.
1. Six states have a version of the Uni- New and Wisconsin. Hawaii, Maine, Obligations form Joint Act: Ne- 1054 claims within the terms of the generally is correct that an did
While it
interpret
must
unambiguous document
be
the driver’s automobile insur-
only upon
obligation
con
pay
ed based
information
ance carrier
its
to
PIP
corners,
is not
its four
such
injured passenger
tained within
to
benefits
absent a
always
case. Parol evidence can be
contrary
at 869. The
intent.
Id.
court
contradict
document
vary
used to
distinguished Cingoranelli’s tort claim from
party to
litigation is between a
when the
claim, stating
PIP
the two
her
that
were
stranger thereto. Bard
the contract and a
separate and distinct. Since two distinct
(10th Cir.1963);
C.I.R.,
1055 tent); 89, Briggs, covering compensation. 60 Taylor reasons, v. Colo. For these (1936) (whether conveyance apply was we the “intent” rule and hold that purposes security only or for de absolute the release this case discharge does not intent); pends upon party’s parties Farmers Res those are who to the release Co., ervoir & Irr. Co. v. Sun Productions unless the releasers so intended. (construction (Colo.App.1986) 721 P.2d paramount
of deed is matter of
with
law
IV.
ascertaining
parties).
purpose of
intent of
Summary judgment
remedy
is a drastic
Similarly,
Supreme
the United States
appropriate only upon
and is
a clear show
polestar
Court has viewed intent as the
to ing
genuine
that no
issue of material facts
determining
scope of a release.
In
moving
exists and
party
is entitled
arenas,
variety
Supreme
Court has
judgment
to a
as a matter of law. Chur
disdain,
signaled
policy
its
as a matter of
as
Co.,
chey Adolph
1336,
Coors
759 P.2d
law,
give
as federal
for rules which
(Colo.1988);
well
Ginter v. Palmer &
preclusive
agree-
effect to
203,
broad
Thus,
area,
in the antitrust
ments.
moving
party has the burden
adopted
straightforward
has
Court
establishing
the lack of a
“[t]he
triable factual
party
only
rule ...
that a
releases
those
issue, and all doubts as to the
existence
he intends to release.”
whom
against
such an issue must be resolved
Corp.
Research,
Zenith Radio
v. Hazeltine
moving party. Churchey, 759 P.2d at
Inc.,
321, 347,
795, 810,
1339-40;
U.S.
91 S.Ct.
Savio,
Travelers Ins. Co. v.
(1971). So, too,
L.Ed.2d 77
has
Court
(Colo.1985).
These are the
property
looked to intent in the intellectual
standards
applied by
appellate
to be
an
setting.
Mfg.
Aro
See
Co. v. Convertible
reviewing
court when
a trial court’s sum
Top
377 U.S.
84 S.Ct.
12 mary judgment
generally
order.
See
J.
(1964)(adopting
L.Ed.2d 457
intent rule for
Wicker,
Moore & J.
Moore’s Federal Prac
cases).
patent
infringement
¶
tice,
The Zenith
(2d ed. 1987 & 1987-88
56.27[1]
rejected
Court
the older rules which auto- Supp.);
Wright,
Kane,
A.
C.
Miller & M.
tortfeasors,
matically
joint
released the
see Federal Practice and Procedure
§
Zenith,
We believe that
on ture of the claim
objective
and the
circum
ascertaining
party’s
intent
underlying
is well- stances
the release’s execution.
placed and should be extended to the con
Cingoranelli,
See
The Neves assert hospital from only to the summary judgment intent Since is to be entered in liability. Neves stated an affida Manuel only genuine no issue of a where material my with attor my discussions vit that “[i]n exists, grant fact it was error to summary Southam, agents with of ney, Lynn and judgment in case. this Osteopathic, there Hospital Eisenhower genuine issues of material Because fact releasing any about never discussion was remain as to whether the Neves Hospital parties Eisenhower any other than release the doctors from liabili- company.” An its affidavit insurance ty, summary judgment should not have by Southam stated: granted respondents’ been in favor. Ac- hospital negotiator for thе ... and The cordingly, we reverse and return this case feel, opinion same myself, I share the appeals to the court of directions throughout negotiations, of our pro- remand to the trial court for further only hospi- concerned about the we were ceedings opinion. consistent with this representation on There never a tal. was that this settlement parts either of our LOHR, J., specially concurs and any way Dr. Potter or would release ROVIRA, J., joins special liability. person That from was concurrence. part of the consideration at not all. underlying re- circumstances of the The concurring: specially LOHR JUSTICE execution, by evidenced Manuel as
lease’s I concur with section II of the court’s testimony, and Southam’s indicate Neves’s opinion holds the rе- a as genuine that there is issue to whether lease in case did not those respon- the Neves intended to the to the release were unless liability. from the the dents When so I also releasers intended. concur order, Manuel’s probate court’s and Sout- summary with the court’s conclusion that respondents’ ar- testimony, ham’s and the whole, judgment granted should not have been guments are considered as a it is there a favor of Doctors Potter and Roth clear that remains factual issue since hearing ponderance" petitioners’ on is We note that after the evidence standard irrele- held, trial motion to reform the release was vant to the resolution the motion for summa- court stated: ry judgment. guardianship Moreover, denying peti- The Court’s file in the together sеttlement in its modified order during settle- reformation, with the care taken for trial tioners’ motion court hearing replete ment are with evidence upon reaching listed the documents relied and the Court intended full composed its The conclusion. list is compensation child’s con- final entire I, (1) following being documents: Exhibit mention, absolutely dition and- there is no Transcript hearing the time of held at whatsoever that [sic] inuendo or inference (2) guardianship Petition for Settle- settlement: partial such was settlement. ment; Settlement; (3) (4) Approving Order Re- respondents finding that this dis- contends lease; (5) Larry Neuropsychological Wellman’s disagree. poses of the issue. We intent Report; Evaluation Affidavit of Dr. Lo- occurred while it The trial court’s statement by vejoy. The affidavits sworn out Manuеl grant considering whether motion they Neves and counsel which state that intend- reformation, summary judg- not a motion Hospital ed to release stated that under either a ment. trial court the trial were considered court. "preponderance convincing” "clear and or determining grant In reform, whether a motion standard, petitioner failed to meet evidence” must whether the court ascertain there his burden which would allow reformation parties. mistake a mutual See Crews point in a release. out that motion We Yenter, k Colo. summary judgment the “clear and con- neither Whitlow, vincing” "preponderance of the evidence” nor Smith v. Rather, are, applicable. appropriate petitioners’ is standard affidavits our genuine view, issue of standard is whеther there probative of the mutual mistake. issue of Adolph Churchey fact. Coors such, material As the trial should have considered (Colo.1988). Thus on ruling petitioners’ when affidavits must whether remand the trial court determine Likewise, reform. the affidavits motion to genuine fact existence of a issue material reviewing the re- should also considered summary judgment. forecloses Whether judgment. spondents’ summary motion for convincing" "pre- facts meet the “clear and *10 agreement directing and material fact remain. to genuine issues of conservator $17,000 separate accept on behalf of his minor son However, presents two this case regarding scope material fact complete issues of in full and settlement the issue addressed First is minor of the release. of said and said conservator claims whether, against Hospital, under the “in- majority: its succes- by the assigns, today, sors and and all applicable held claims tent” rule growing out of accident and to to release the re- said exe- to the release Second, cute a release. and not ad- spondent doctors. majority, is the issue of by the dressed authorizing The terms of the court order by the difference be- material fact created directing payment the release and are nar- agreement the release the terms of
tween of the rower than terms release doc- authorizing court’s order and the district ument executed the Neves. Whereas remand, agreement. the issue of On agreement purported to release release parties to the release need the intent of the “any persons” and all liable mal- if the finder of fact deter- reached not be practice, provided the district court's order the district court’s order autho- mines that only for the settlement of all claims rizing agreement scope limited the hospital. The difference between the not to release the doctors. the release so as language agreement of the release and the Therefore, separately I to write discuss of the district order2 terms court’s creates importance of this additional issue of mate- an issue of material fact as to the autho- fact. rial scope rized of the release. If the effect of court order the district authorize a II, D. in his individual Manuel Neves only hospital release of the and not the capacity and as conservator of his son’s doctors,3 then the issue of whether the estate,1 and Deanna M. Neves executed an parties to the release intended that agreement purported release released need not doctors be be reached. only hospital not and its scope This factual issue of the authorized agents, “any but also release cannot without a of the be resolved be liable presentation regarding evidentiary full malpractice related to their son’s sur- surrounding negotiation circumstances gery. executing agreement, After Ma- execution of the release and the is- petition nuel D. Neves II filed a with the suance of the district court’s order. seeking aрpointment as con- district court I requesting servator of his son’s estate and Because view the differences between agreement agreement the terms of the release and the approval of the settlement 15-14-401, creating genuine and release. 6B C.R.S. district court’s order as See § (1987)(detailing appoint regarding power court’s issue material fact the autho- release, instruct scope I conservator to oversee a minor’s estate rized would affairs). hearing The district court held a the district court on remand to resolve this if petition. necessary on the At the conclusion of the issue first to determine it is hearing, appointed the court Manuel D. reach the intent issue discussed conservator, agree genuine majority. II as his and it Since I is- son’s remain, I authorizing the settlement sues of material fact concur in issued an order purports "malpractice which 1. Neves executed the release as conservator of cover August, September his son’s estate on 1978. He was occurred on or about at Colorado September appointed Springs, describing malprac- conservator until In Colorado." hearing approval 1978. tice to the court in the on the counsel for Manuel D. Neves II hospital just 2. The record indicates that the district court said that "the nurse involved prepared by wrong things,” presumably order was the Neves’s counsel. did some a reference morphine to the overdose. No mention was post-nasal pack. Additionally, entirely made of the The court order clear thаt the malpractice approving dent,” simply the release refers to the "acci- described in the and the any malpractice by court order includes and relies for further definition on the post-nasal pack. petition, incorporates doctors in the use of the the release. by the court that the conclusion reached
summary judgment inappropriate. *11 joins in ROVIRA
JUSTICE
special concurrence. SCHAERRER, Petitioner,
Irma L.
WESTMAN COMMISSION
COMPANY, Respondent.
No. 87SC315. Colorado,
Supreme Court
En Banc.
Feb. Poskus, Legal Society
Bernard A. Aid Denver, Denver, Metropolitan petition- er. Norman, Lirtzman,
Joan M. Nehls & Boulder, Meyrich, respondent. MULLARKEY, Justice. granted
We certiorari to determine may garnish pro- whether a creditor federally guaranteed ceeds of a student’s (GSL) student loan in order to collect an antecedent business debt owed the stu- appeals dent. We reverse the court of garnishment pro- hold that the use of state pur- cedures to attach GSL funds such pose clearly inconsistent the federal