*1 is within the bor- tect an abused child who v. District of the state. See Johnson
ders (Under (Colo.1982) Court,
UCCJA, jurisdiction may have court emergency though even
protect a child in an causing the situation occurred
the events
elsewhere.). reject that the father’s contention
We thus permit insufficient verdict was jurisdiction over him and to obtain provisions comply
order him to plan.
the treatment that it
The order is extent reversed custody rights or either mother’s
modifies under the Oklahoma rights
father’s visitation
custody and determination. respects. are in all other
order affirmed JJ., MARQUEZ, concur.
PIERCE and Marilyn Simon, and
James SIMON
Plaintiffs-Appellees and Cross-
Appellants, Designer COPPOLA, Spas and
Rob d/b/a Tubs, Defendant-Appellee Hot
Cross-Appellee, Corporation, Defendant-Appellant
Eaton Cross-Appellee.
No. 91CA2101. Appeals,
Colorado Court
Div. II. 4,
Nov. 1993. Modified
As on Denial Petition
Rehearing Plaintiffs-Appellees 3,
Cross-Appellants Feb. 1994. Rehearing of
Petition for
DefendanU-Appellant Cross-Appellee 3, Feb. 1994.*
Denied
Certiorari June 1994. Granted * J., majority Metzger, opinion. as to Part VI of the would Grant
H *3 Wolf, Jerry Coppola employee, Another equipment pack in the tub at installed Wolf set the thermostat home. half-way point. He told the and the Schnells be warm tub would homeowners enough evening, plac- use that but advised over next ing a blanket it for the few solar days suggested cutting retain heat. He fit the of the tub. The the blanket to inside evening used the tub that homeowners *4 with a solar blanket. covered it morning, The Mrs. Simon went next so, she tub to the blanket. To do rolled cut up leg step her and 'into the pants started so, realized the water tub. As she did she extremely pull was hot and back but tried and fell into the tub immers- lost her balance Johnson, P.C., Pryor, Carney Eliza- and body in the ing half of her water. the lower Moran, Barnhart, Randolph W. Mark beth C. degree third She second and burns. sustained Sullivan, Englewood, plaintiffs-appel- D. for against The homeowners filed suit cross-appellants. lees and manufacturer, Coppola, two other defen- and Kane, Shaffer, Donley Donley, & E. Jack dants, alleging that the was de- thermostat Springs, defendant-appellee and for Colorado brought They claims founded in fective. cross-appellee. warranty, liability, breach and strict Coles, Fish, Denver, R. Fish & Kenneth express implied and warranties of breach of defendant-appellant cross-appellee. and for particular merchantability and fitness for a Cop- purpose. The homeowners P.C., Keating Wagner, Fogel, William L. negligent in of the pola its installation was Devereux, Denver, Timothy Keating, F. in the tub. pack and control thermostat Lawyers amicus curiae Colorado Trial Ass’n. designated Bill Coppola Tom and When Judge Opinion Chief STERNBERG. Special- Schnell, Property Renovation d/b/a (manufaer Corporation Defendant Eaton fault, ists, nonparties at homeowners turer) appeals entered on a ver- complaint them to add amended their partially plain- finding it liable diсt subsequently The defendants. homeowners Plaintiffs, Marilyn injuries. and James tiffs’ trial, but the the Schnells before settled with (homeowners), cross-appeal. Defen- Simon designated nonparties at remained Schnells Coppola, Designer Spas and Rob dant d/b/a throughout the trial. fault Tubs, (Coppola) responds to both the Hot petition bankruptcy filed a Coppola affirm, but re- appeal cross-appeal. We An automat- shortly the suit was filed. after for allowance of costs. mand stay was lifted to ic extended but later the homeowners contracted late coverage. The his the extent of Schnell, Property Bill with Tom and d/b/a complaint again amended their homeowners Specialists, for the installation of Renovation as defendants. Anderton Wolf to include The and a used hot tub. Schnells a deck then into a cove- The entered Coppola inspect homeowners turn contracted with Hawkeye Insurance repair it nant not to execute pack and as needed. equipment tub’s Anderton, heater, Coppola, Company on behalf pack circulаtion The consisted accepted a The homeowners Greg Ander- Wolf. equipment, and other controls. $300,000 their claims payment, dismissed ton, employee Coppola, installed new retaining while against Anderton Wolf including thermostat manufactured controls defendants, Designer Spas as Coppola and by Eaton. agreed any judgment not to on involved was manufactured in execute actuator $300,- against Coppola personally sought excess 1985. The homeowners to introduce manufactured in 1989 to another thermostat 000. impeach testimony of the manufacturer’s ex- trial, jury After a three-week returned pert “bordering who testified that it would be a verdict in favor of all the homeowners on impossible” on for the actuator bulb at [the] against four counts the manufacturer. The factory in the condition issue to leave the verdict allocated 75% fault to the manufac- alleged. nonparties turer and 12.5%fault each to Tom and Bill Schnell. The verdict found both The manufacturer contends that the court negligent thermostat, and Mrs. Simon but not admitting erred in second liable, finding no connection causal between arguing that the differences between the two negligence of either and the homeowners’ substantially being in it not similar resulted $850,000 damages. awarded to the actuator at issue. Mrs. Simon for economic and non-economic This second thermostat had been discover- damages and to Mr. Simon for loss of shortly the homeowners before trial ed consortium. *5 begin. gone through It was scheduled to had hearing, After a the court reduced the quality inspections factory, at but control the apportioned verdicts the 25% to the non- expert it too overheated. An witness for the $637,500 parties and awarded to Mrs. Simon examined it and submitted an homeowners to Mr. Simon. concluding compo- affidavit that the actuator substantially nent'of the thermostat was sim- The manufacturer contends the court tub, ilar to that in even the homeowners’ evidentiary in rulings erred several in its though unit in the entire thermostat differed damages regard calculation of to the ways. several other pre-trial effect of the various settlements. cross-appeal, contesting The homeowners the The manufаcturer moved in limine to ex- expert Cop- court’s awai’d witness fees to thermostat, arguing clude the second that it Coppola joins homeowners, pola. in the re- that, substantially pursu- was similar and sponse the appeal manufacturer’s and re- 403, any probative ant to CRE value was sponds cross-appeal. to the homeowners’ outweighed by potential preju- the for unfair jury.
dice in the its influence on The I. motion, ruling denied the that the evidence impeachment was admissible as of the manu- Contrary to the manufacturer’s first expert It facturer’s witness. found that the contention, the trial court in did not err issues, argument CRE 403 went to factual allowing a thermostat in be received evi including the difference in the dates of manu- impeachment purposes. dence for facture and the differences in manufacture theory against The homeowners’ the man- that and materials. court noted the The ufacturer was that the thermostat installed homeowners would still have to show at trial defectively the tub had been manufactured. similarity the the actua- substantial between particular component The of the thermostat tors. claimed to be defective was known as an post-acci actuator. The homeowners contended that Evidence of other similar product upon the defect the actuator allowed the water dent failures is admissible n beyond heat showing the marked maximum of that the other accidents occurred Specifically, they alleged 115°F. the under circumstances and conditions the same actuator, bulb, defectively substantially a metal had been to the involved in similar one crimped during particu present manufacture and that this the case. Such evidence is temperature sensing larly defect altered the mech- relevant when the defendant contends possibly anism such that it allowed the water the that the incident could not And, injury. complained-of tub to heat to 180°F. The manufacturer have the caused any damage maintained that to the thermo- the court has discretion to determine the factory. similarity weigh it stat occurred after left the and to CRE 403 concerns the defect was v. R.D. was defective and because of implicated by such evidence. Koehn (2) Co., dangerous; defect (Colo.App.1990). unreasonably the exist- Werner P.2d product at the was sold or left ed time Any in the circumstances differences control; (3) product was the defendant’s goes two between the occurrences plaintiff, expected to and did reach v. weight given evidence. Ponder to be such user, expected change without substantial Co., (10th F.2d 1553 Cir. Warren Tool (4) condition; injured; its was 1987). (5) injury. was a cause of the defect immediately on the court did not rule (1989). 14:18 CJI-Civ.Sd limine, wait until preferring motion in light in the Taken most favorable concerning the ther- trial. Evidence second homeowners, there sufficient evi was during testimony of mostat was introduced dence the record a reasonable his expert after he stated manufacturer’s crimp in the actuator exist conclude that concerning impossibility for opinion near factory when it left the manufacturer’s ed go through the manufactur- thermostat and that it rendered the thermostat defective testing procedures and still water er’s allow dangerous by allowing unreasonably and, his to heat tо 180°F belief past maximum water to heat marked factory in left at issue had not actuator temperature, homeowners reached the it was time condition change, that it without substantial incident. injuries. cause the homeowners’ allowed record reflects that the court permitting Corp., substantial voir dire before Motors Shaw General *6 thermostat, during and cases cited (Colo.App.1986) introduction second other was distinguishable. which the manufacturer afforded are the manufacturer opportunity the differences be- in not products to establish involved those cases were manufacturer, perceive they no tween the two thermostats. We when left the defective components allegedly in the court’s decision. abuse of discretion but either became Co., supra. products subject v. R.D. See were See Koehn Werner defective finished Co., hand, Here, Deere 862 F.2d the actua- also John misuse. on the other Wheeler (evidence (10th Cir.1988) inci- of other tor involved was to be defective factory. impeach proponent if dents admissible to it left manufacturer’s issuе). similarity product at first shows prima a facie for To case establish warranty a implied for fitness for breach II. purpose, plaintiff must show particular disagree with the manufacturer’s We also (1) impliedly that: the defendant sold that the court erred in not direct- contention particu a product to fit for warranted the be strict ing a on homeowners’ claims of verdict (2) plaintiff reasonably purpose; was lar implied warranty of liability breach (3) product product; expected use the particular purpose. for a fitness warranted; purpose for the was not suitable (4) the plain was a cause of breach A motion for a directed verdict (1989). injuries. 14:8 CJI-Civ.Sd tiffs See evidence, granted if considered non-moving light most favorable to light most favor Again, taken party, compels the that reasonable conclusion homeowners, there was sufficient able to disagree, no persons and when could in the record for a reasonable evidence sus that could presented evidence has been impliedly was conclude that the actuator moving par jury’s against the tain a verdict n use in hot by the manufacturer warranted ty. Bank Center Joint Ven v. One United tubs, that homeowners could have been ture, (Colo.App.1989). reasonably the thermostat expected use that, defect, product was prima case of due to facie To establish a cause of the product, fit for use was a defective such strict based on (1) injuries. product: must that the homeowners’ show Accordingly, perceive we no error IV. denial of the manufacturer’s motion for di- The manufacturer next contends
rected verdict on these two claims. permitted that the court erred when it Mrs. physician
Simon’s to offer certain medical opinions. HI. . physician accepted expert as an argues (cid:127)The manufacturer the court plastic surgery and reconstructive and the admitting erred in two exhibits into evidence. patients. care of burn He testified that he perceive We no abuse of discretion. had discontinued a steroid treatment after reported gynecological Mrs.’ certain Simon Rulings relevancy on of evidence are symptoms. within the sound discretion of the triаl court objected, claiming The manufacturer and are not to be disturbed unless the record concerning gynecological matters the area of demonstrates an abuse of that discretion. and obstetrical medicine were outside the Energy, K.N. Sugar Inc. v. Great Western expertise. doctor’s area of The court over- Co., (Colo.1985). There was no objection ruled the and allowed the testimo- such abuse here. ny. explained The doctor then his reasons discontinuing the treatment. questioned The first exhibit was a The homeowners contend that the doctor pur thermostat manufactured in 1987 and expert opinion did not seek to offer an expert chased during homeowners’ gynecological and obstetrical medicine pre-trial investigation. Although the actua testifying as to the causes of Mrs. Simon’s crimped issue, tor was not as was the one at symptoms, gave but rather his reasons for it carried the same model number and func his course of treatment which were based on operated way. tioned and the same It was physical responses Mrs. Simon’s to that expert admitted after the manufacturer’s treatment. only significant conceded voir dire that the agree with the per- We homeowners and crimping difference was the absence of *7 ceive no abuse of discretion in the court’s which, testified, high he would not affect the evidentiary ruling. See Publix Cab Co. v. temperature range. end of the Bank, 205, Colorado National 139 Colo. (1959). Energy, See also K.N. Inc. log The second exhibit was a Co., Sugar supra. v. Great Western inspections final results of of thermostats of the same model the one issue which V. factory were manufactured at the from 1984 that, to 1988. It showed a lot of 200 The manufacturer also asserts that rejected thermostats had been the because the court erred in not allowing jury the “crimp big.” in actuator was too potential liability consider the of Anderton and Wolf and also in its decision not to log The court concluded that the “cut both jury inform the of the terms of the home ways” only because it showed not that the disagree owners’ settlement with them. We quality program manufacturer’s control had with both contentions. problem potential discovered the but also the argues The manufacturer jury that the was manufacturing process. for error the permitted, through impli- either inference or log help court also stated that the the cation, to conclude that neither Anderton nor jury manufacturing better understand the contrary, Wolf was liable. To the the record process. jury reflects that the instructions stated that circumstances, we conclude Under these employees Anderton and Wolf were both that the court did not abuse its discretion Coppola acting within scope the and course admitting Energy, K.N. Inc. employment either exhibit. of their at all relevant times. Co., Sugar supra. Consequently, jury assigned v. Great Western the could have ultimately any that Wolf or both and ease law but determined fault to either Anderton or so, that, produce a it such reduction would windfall should do was instructed apply It thus not Coppola. manufacturer. did either be attributed to statute and stand without let Citing Spencer, 719 P.2d Greenemeier v. by reduction the amount of the settlement. (Colo.1986), argues manufacturer argues The manufacturer that the court required the сourt was to advise the that agree erred in this decision. We that jury of the fact of the settlement between the applied but court should have and Anderton and Wolf. We homeowners agree not not that 13-21-111.6. We do does not mandate conclude that Greenemeier application judgment. such would reduce the such action here. ruling, In the Greenemeier A. that, jury specu- court held order to avoid view, § inap In our 13-21-111.6 is person as to fate of absent lation plicable requires That to this case. section obviously only po- is not the the defendant damage by award reduce the tentially person: the usual ease a “[I]n liable “compensated that is amounts jury should be advised of the fact settle- by any corporation, person, for his loss other court, ment, how- but not the amount.” The language company, insurance fund.” The ever, establishing that made clear it was not intent of this clause evinces a clear an absolute rule. It left the decision by any damages be off collateral source set jury the trial inform the to the discretion of by specifically excepted contributions not court, that, if requiring a trial court clause of the statute. See Van Wa second that such an instruction determines Keelan, Rogers, P.2d ters Inc. v. appropriate, it must make a sufficient record (Colo.1992). provides The second clause appellate to allow review. by to be reduced amounts the verdict Here, the trial court determined result of a contract plaintiff receives justice case” could “best reach this by or paid into on behalf of entered deviating Given that An- from Greenemeier. plaintiff. included in the settle- derton and Wolf were Coppola and that ment reached Thus, payment since the defendant, in the trial as a we remained corpora “person another was made justice agree with the trial court that tion,” requirement general of the collat informing jury of by not best served mandates that the verdict eral source statute settlement, allowing jury to determine amount, the settlement unless reduced adjust- liability, making appropriate then statutory ex payment qualifies for the verdict. ments *8 ception. a settlement аc We conclude that by a release or covenant companied this case Based on the circumstances of scope of the “con falls the execute within court, by made the court’s the record the exception. tract” give instruction not to a Greenmeir decision abuse discretion. initially that courts have We note Colorado compromise and recognized that a VI. proceedings. judicial end is a contract District Co. v. Houston Construction H.W. disagree the manufacturer’s also with We (Colo.1981); Court, Recreation- 632 P.2d in not that the court erred final assertion Development v. American Construc- al Co. crediting amount of the homeowners’ set- Co., (Colo.App.1987). tion Coppola against amount it tlement .damages. owed supra, Rogers, the su- & In Van Waters interpreta- rejected narrow judgment, preme court the court a motion to amend On exception applied to con- tion reduce the that whether it should considered money. plaintiff paid It §§ for which pursuant to or both 13- tracts judgment either (1987 exception applied to bene- 13-50.5-105, Repl. there held that C.R.S. 21-111.6 and fighters 6A). by from a statewide fits fire the relevant received The court considered Vol. by fund and to created statute which neither B. fighter employer the fire nor his ever con- 13-50.5-105, (1987 Section C.R.S. holding,
tributed.
In
it
so
ruled that
6A)
Repl.Vol.
provides,
pertinent
part,
exception
enough
protect
is “broad
bene-
that,
when a release or
covenant not to sue
employment
fits that result from an
contract
or
judgment
given
not to
is
good
enforce
person
for which
gives
consideration in the
persons
faith to one
more
of two or
liable
Waters,
form
supra,
of services.” Van
tort,
discharge any
it does not
other tortfea-
1078.
However,
liability.
sor from
it reduces the
aggregate
against
claim
the other “to the
The Van Waters court went on to construe
extent
degree
percentage
or
of fault
enough
the clause as
“broad
cover con-
attributable,
negligence
by
or
the finder of
plaintiff gives
tracts for which a
some form of
fact to the
whom
tortfeasor to
the release or
consideration,
it be in the
whether
form of
given.”
right
covenant is
There is no
on the
money
employment
services.” Van Wa-
part of a
has not
tortfeasor who
settled to
ters,
And,
supra, at
1079.
noted that its
choose, instead, a
reduction
the actual
pur-
construction of the statute “serves the
paid
amount
in settlement.
pose
protecting
person
benefits which a
by
person’s
entitled
virtue
own
Here,
Coppola
determined that
Waters, supra,
efforts.” Van
at 1079.
Consequently,
was 0% at
aggre-
fault.
gate
against
claim
the manufacturer should
Here, the settlement and covenant not to
not be reduced
the amount of the settle-
paid
execute were
into
entered
ment between
Coppola.
the homeowners and
exchange
the homeowners.
In
for the settle-
result,
noted,
This
as the
court has
payments,
ment
the homeowners surren-
policy
overriding
of the Uniform
furthers
dered
against
settling
their claims
par-
Act,
Contribution Among Joint Tortfeasors
illustrates,
ties. As this case
that consider-
13-50-101,
seq.,
et
By
ation was not
accepting
insubstantial.
6A), of
part.
which
is a
this statute
Schnells,
instance,
from the
light
considerations,
of these
we believe
right
homeowners released the
to recover on
that a
refusal to
reduce
jury’s
Schnells,
against
verdict
which
justified
the settlement
amount
under
proved
$875,000,
$218,750.
to be 25% of
the Act even if
in overcompensa-
it results
Also,
negotiated
the settlements were
for and
tion
plaintiff, particularly
since a
resulted from the homeowners’ own efforts in
defeat,
contrary rule
cases such
pursuing those claims. We conclude that
one,
present
as the
the Act’s overriding
payments received in connection with a cove-
goal
compensation.
of ensuring full
nant not to
within
statutory
execute fall
and,
exception
thus,
County Denver,
13-21-111.6
City
do not Kussman v.
&
(fn. 5) (Colo.1985)
damages.
reduce
P.2d
the amount of
(interpreting
13-50.5-105).
prior
version of
recognize
We
application
of U.S. Fi-
however,
manufacturer,
argues
delity Guaranty
Co. v. Salida Gas Service
expressly applies only
per-
Co.,
(Colo.App.1989);
Gutierrez
sons found
“liable
tort.” Because
*9
Bussey,
v.
(Colo.App.1992);
tortfeasor insurance, from collateral sources such as ble tort” trial. benefits, nursing sick medical or donated part of was enacted as Section 13-50.5-105 services, voluntary wages continuance or adoption of the Contribu- Colorado’s Uniform by employer, pay- and the like. These Act in 1977. Among tion Joint Tortfeasors commonly by ments are made one who Mountain, Inc., 862 Copper v. See Stubbs may fears he held as a liable (Colo.App.1993). P.2d 978 who turns out not to be. tortfeasor and § original version of 13-50.5- Under (Second) com- of Torts Restatement 105, phrase on which also contained the (1979) added); (emphasis ment f see also relies, an manufacturer which the (Second) 920A(1) of Torts Restatement with a tortfeasor who settled (1979) (“A payment by a made tortfeasor liability typically at trial exposure avoid by person acting person for him to a whom a any further claims. As received a release of injured against his tort he has is credited result, fact finder not make a did liability, are made another payments those finding negligence to the fault or is, is, subject he the same who or believes only excep- prior to trial. The who settled liability.”). tort that a tion was in the unusual circumstance not to tortfeasor received a covenant execute Wesley Application of United Services v. at trial. It was and remained defendant Ass’n, (Colo.App. Automobile Assembly until amend- after General 1984), result; contrary lead howev could to a concurrently enacted ed statute and view, er, vitality case has our of that (1987 13-21-111.5, 6A), in Repl.Yol. C.R.S. decision been eroded court’s procedure created that a for Denver, County City v. Kussman routinely fact finder at trial to determine year Wesley. supra, after decided Cf. had be- of a tortfeasor who settled Zufelt, supra. Smith v. fore trial. ' original statute Because under VII. typically determination made at there was no cross-appeal, con- their the homeowners as to whether those who had settled trial awarding tend that the court erred tort,” the current statute
were “liable disallowing fees related a witness various require such not be construed to disagree. Coppola. We finding in the amount before reduction permitted. is included Coppola’s the settlement Because bill of costs depositions, expenses taking discovery interpretation The more reasonable argue that the court erred homeowners 13-50.5-105, before of the statute requested amount it allowed entire amendment, applies those and after its expert Over Coppola as fees for his witness. injury victim pay to an who objection, the court allowed as homeowners’ facing being they exposure are because $15,385.33 for expert witness fees of costs trial, in tort” at as distinct held “liable $5,197.55for trial testi- preparation trial from a provide payments collateral those who mony. source, an insurance contract. See such as (D.Colo. Sharp, Wong F.Supp. has in award [20]A trial discretion 1990). 13- ing expert witnesses. Section costs interpretation 6A); consistent with 33-102(4), Such Burt accepted princi- Church, recognized well tort long Savior Lutheran v. Beautiful Moreover, ples: ex (Colo.App.1990). *10 deposi taking discovery penses incurred in by himself Payments made one who not taking of the where the joint go dimin- tions are allowed tortfeasor will liable as rea general and content were injured against deposition its person of the ish the claim development of the sonably necessary for the if responsible for the same harm others to counsel the light in of facts known compensation of that case they made in are Cherry arbitrary time it was inequitable taken. Creek School and result and would Voelker, (Colo. important policies. District public #5 contravene 1993). standard, perceive Given we this no abuse of discretion in the trial court’s order I. though even charge record indicates 13-21-111.6, Section the collateral source deposition preparation Coppola’s expert. statute, provides part in relevant that also homeowners contend that by court must reduce the verdict the amount the court erred disallowed certain which the has been indemnified portions expert of their witness fees and compensated by “in another relation to the various costs with the taking associated of a injury, damage, or death sustained.” The deposition
video of an out-of-state witness. statute itself a reduction refers to for the Cherry Under our view of Creek School Dis payment amount of a from another “in rela- Voelker, trict # supra, agree 5 v. we injury tion to” the from another who —not therefore remand for an award of such fees tórt,” may provided otherwise in “liable and costs. in wording 13-50.5-105. This choice does compel § not the conclusion that 13-21-111.6 affirmed, and the causе is apply payments only from a remanded for an award costs. independent collateral source wrong- doing but compensation paid also to to avoid BRIGGS, J., specially concurs. being risk of in found “liable tort.” METZGER, J., part in concurs As our recognized, has be- part. dissents in scope § cause the 13-21-111.6 is not en- Judge specially BRIGGS concurs. tirely clear, beyond we look must its lan- guage to determine the construction join I most Judge Sternberg’s opinion Chief accordance with Assembly’s the General in- and concur in affirming judgment. Keelan, tent. Rogers, Van Waters & Inc. v. regard opinion, Part VI that I (Colo.1986). To reach the agree properly that the trial court reconciled urged conclusion by the manufacturer that §§ 13-50.5-105, 13-21-111.6 and applies statute to those who have settled 6A) refusing to credit the trial, a tort claim assigned but are no fault at Coppola’s amount of settlement with the Si- we again ignore would have to the statute’s (homeowners) mons against historical context. (manufacturer) Corporation Eaton as deter- mined Section jury. This is 13-21-111.6 was enacted to because the restrict 13-21-111.6, scоpe exception “contract” of the “collateral source” rule in statute, Colorado. Rogers, collateral Van precludes applica- source Waters Inc. v. Keelan, supra. tion of law Coppola previously that Colorado had statute to settle- ment, provided even if or indemnity the statute were re- otherwise applicable. agree injured ceived party I from a further “collateral 13- source,” is, “wholly applies Coppola independent 50.5-105 source to the settlement that, wrongdoer,” of the to which wrong- because attributed 0% contributed, doer had Coppola, fault to would pursuant not diminish damages the manufacturer is entitled to no otherwise recovei'able from the offset be- wrongdoer. 540, Halsey, Coppola’s cause of Kistler v. 173 Colo. involvement the case. 545, (1971); see Am. because, I view, write separately my (1988). Damages § Jur.2d apply collateral source statute does not agreement, without re- Benefits from “collateral sources” have his- gard to the exception. torically statute’s “contract” I payments included from insurance benefits, also separately emphasize why write policies, employee gratuities, (Second) reconciliation urged by legislation. of these statutes social Restatement See manufacturer, (1979). ignoring addition the his- of Torts 920A c comment What statutes, torical context payments have not lead to been considered from a
21 required settling in that he not be payments made com- defendant is collateral source are percentage injury pay to more than his share of the in to -avoid pensation for the order damages jury which the determines the in total being at trial. exposure to found liable tort sustained.”); (Second) plaintiff Rogers Spady, § v. 147 of Restatement Torts See 274, 277, 285, (1979). N.J.Super. (App. 371 A.2d f comment Div.1977) (“Each tortfeasor is liable for the Further, in its con- understood historical per- percentage of the as the same text, necessary § apply to 13-21- is not centage negligence attributable of found to merely 111.6 to such settlement because corollary A when him. natural to this that part in avoid the statute was enacted to codefendant, with a that claimant settles recovery.” U.S. Fi- problem of “double See percentage negligence found attributable of delity Guaranty v. Service & Co. Salida Gas settling to the codefendant will be deducted Co., prin- (Colo.App.1989). against the other verdict returned recovery” ciple preventing of “double juris- found liable.... Other codefendants merely formulation of the collateral another comparative negligence similar dictions with Rogers, rule. See Van Waters & Inc. source proposition.”); are in accord with this laws (Second) Keelan, supra; of v. Restatement Co., v. Western Insurance see also Brochner (1979). § Torts 920A As the (“The (Colo.1986) 1293, 1298-99 Waters, legislative his- explained in Van principle proportionate adopted by fault of § to tory indicates 13-21-111.6 was intended Assembly represents a rational the General plaintiff limit the in which a circumstances approach problem equitable of both from a collateral source could recover allocating responsibility ultimate between or alleged from an tortfeasor for the samе joint payment for the among tortfeasors of benefits, hospitalization. such costs of (emphasis damages injured party.” an to recovery” no similar There is “double added)). plain- proper that term when a sense of court, agree I with the for these therefore proves hindsight what have tiff reaches reasons, § is not additional 13-21-111.6 advantageous an It is that settlement. been Coppola’s applicable to settlement very possibility encourages injury both homeowners. alleged tortfeasors to settle. victims 13-50.5-105, regard § the Chief rejected supreme court has the notion Our opinion Judge’s properly places this statute alleged pays an more that because tortfeasor it, construes its historical context and jury than the determines was recognized principles, tort conformance with liability plaintiff has somehow re- its apply payments received from those unjust an windfall: ceived injury to avoid pay who always opposite trial. plaintiff takes the tort Neither exposure to [T]he risk, 13-50.5-105 nor the settlement will amount the 1986 amendment requires Courts enactment 13-21-111.6 less than the ultimate award. They support our fact attempted ineq- different result. have to redress the never interpretation. appear in uities that settlements hindsight; other- viewed with the aid of § 13-50.5-105 and the The amendment of wise, final would not be settlements part 13-21-111.6 were enactment of to settle. parties would These were legislation of 1986. tort-reform be^reluctant Denver, steps taken the General two of various County City v. Kussman (1985) (fn. 5). damage in certain Assembly awards to limit 776, 778 P.2d Rogers, Inc. v. respects. Waters & Van no reach a different There is reason to Keelan, supra. liability. pro system our rata result under changed Inc., Richview, N.W.2d The amendment Schantz See (“It crediting (Minn.1981) a settlement mechanism be no con- remaining defen- tortfeasor nonsettling how much defendant cern original of the stat- version settling dant. Under from the defen- received dant_ by the amount of was reduced ute the verdict concern the non- that should [A]ll *12 changed § the The amendment have so settlement. could stated when it amended 13- reduction, the of which is now 50.5-105. method based percentage on the of trial fault attributed at any appаrent why, isNor there if reason
to those who have settled. jury assigned designated 1% fault to a settled, nonparty who earlier the General § The amendment of 13-50.5-105 and the Assembly § would have intended 13-50.5-105 §of enactment 13-21-111.6 were accom- apply, resulting to in a credit to defendant of plished conjunction of enactment fault, only percentage that of no matter how 6A). 13-21-111.5, § settlement, large the but at the time same provides That statute that no shall defendant § intended to credit the defendant under 13- greater be liable for an amount than 21-111.6 with the entire amount of the settle- represented by degree percentage or of jury assigned ment if the 0% fault. It is negligence or fault attributable to that defen- why even more difficult to understand dant. assumed that the General Assem- accomplish provisions These the General bly intended that a defendant who refuses to Assembly’s goal allocating responsibility greater settle can choose the which reduction payment for damages pro on the basis of results under the two no statutes matter liability. rata See Brochner v. In- Western percentage assigns what jury of fault the Co., supra. time, they surance At the same designated nonparty who settled. injury allow both victims and the The more reasonable reconciliation of the keep any tortfeasors benefit advan- statutes, two consistent with them historical tageous settlement. reform, goals context and the of tort is that § Neither 13-21-111.6 nor 13-50.5-105 only § 13-50.5-105 as applies amended explicitly provide, and there is no reason compensation paid exposure to avoid to liabil- provide, construe either to that a tortfeasor ity trial. applies at Section 13-21-111.6 who refuses to settle can choose a credit payments from indepen- collateral sources amount the settlement instead of any alleged dent liability. Wong tort See percentage of assigned fault at That trial. (D.Colo.1990). Sharp, F.Supp. option was removed amendment of 13-50.5-105 1986 when the General As- II. sembly completely removed reference logic history, Aside we must deduction the amount of the settlement. presume Assembly that the General intended place pro- its now expressly statute just and reasonable result enacting percentage vides for a reduction Zufelt, these statutes. See Smith v. of fault attributed finder of fact (Colo.App.1992). nicely The case us before that tortfeasor. §§ illustrates the reconciliation of 13- The amendment of en- 13-50.5-105 and urged 21-111.6 and the man- actment component parts of 13-21-111.6 as arbitrary inequitable ufacturer leads to legislation of the 1986 tort-reform support Assembly results the General could not have the court’s reconciliation of them in another intended. way. The amendment and the new statute Here, jury returned a verdict favor approved were within a week of each other tjie of the homeowners in total amount of sponsors. and both bills had the same Colo. $875,000. determined Sess.Laws ch. 107 at 679 at and ch. 108 fault, manufacturer was 75% the Schnells 680; Edelman, generally Epstein see Seh- 25%, 0%. homeowners had Under Contribution and Collateral Off paid earlier received settlements on behalf of StaUites, (July Source 21 Colo.Law. 1421 $100,000 Schnells and on behalf of 1992). If the intent had been that a defen- $300,000. Coppola for by refusing dant to settle should benefit receiving credit for the amount оf a interpretation settle- Under the manufacturer’s statutes, $875,000, ment with another who at trial was found two because 25% of negligent, $218,750, at fault Assembly greater the General than re- *13 Schnells, designated nonparty no fault to the who has in settlement from the the eeived Thus, plaintiffs be the defendant would damages to awarded settled. the have $218,750. Then, by by first be reduced because and precipitating benefited additional un- $300,000 the from is litigation. settlement warranted degree greater of fault than the zero as- addition, In the defendant who refuses to trial, $300,000 signed at the would be deduct- settle would have achieved this benefit ed. The result is that the manufacturer taking away plaintiff from the the benefit of plaintiffs a would be liable to the for total of It bargain. precisely was this settlement $356,250, jury though even had deter- advantages shifting disadvantages of the for mined the manufacturer liable 75% of prior supreme our of settlements that $875,000, $656,250. rejected County City in Kussman v. & of In comparison, the homeowners had re- Denver, supra. ceived in settlements the total amount of arbitrary inequitable These results are $400,000. jury The determined those avoided, goals of consistent with the tort were, the homeowners who had settled with reform, § by construing only 13-50.5-105 to total, $218,750 fault, equal 25% at to exposure apply compensation paid to to avoid liability. hindsight, the homeowners re- liability. to tort advantage of the two settlements. ceived interpretation Yet the manufacturer’s under III. statutes,
of these the homeowners would re- ceive, $400,000 in in addition to the settle- reason, impor- perhaps The final most ments, manufacturer, only from the tant, §§ rejecting of for the reconciliation 13- $756,250. for of a total urged by the 21-111.6 and 13-50.5-105 man- pro- manufacturer’s The result under the violating public ufacturer is to avoid two statutory posed be construction would that: policies importance. of critical (1) manufacturer would benefit from re- settle, liability, being fusing to its after cred- A. settlements, $300,000 ited less than policy” “overriding The of the Uniform negligence its share of fault or as determined Act, Among Contribution Tortfeasors of (2) jury; facing the others who were part, a which 13-50.5-105 is is insure exposure liability willing to tort and were plaintiffs injuries. compensation full for the in none of the benefit settle would share Denver, supra. City County Kussman (3) homeowners; of taken from the language legislative in the histo- Nowhere homeowners, advantageous of set- a result ry 13-21-111.6 or either litigation, and successful would re- tlements any that the General As- is there intimation the full ceive in total less than amount of public sembly that Colorado’s has concluded jury. damages determined contrary. policy should be to the lead to different arbi- Other cases would reform, sure, trary inequitable example, To as a result tort results. For injury may victim desig- occasions on which it is not unusual for defendant full have nonparty plaintiff compensation nate not name as receive increased. a did the financial circum- may But is a plaintiff then be this result defendant. The tortfeasors, now are liable who party add that a defendant stances forced to If receiving pro their rata shares of fault. one the risk less order to decrease share, assigned pro rata no injuries. pay the than for the cannot full longer tortfeasor liable it. may at another newly named then some is defendant assuming the from Gen- This far different point to avoid further settle statutory Assembly eral intended create possible exposure costs and injury victims full deprives which the manufacturer’s construction scheme trial. Under n though are statutes, compensation, all tortfeasors remaining even defendant injury pro rata pay able their in the full would be entitled to credit shares — compensation might if without full assigns victims who amount of rely upon, on, have However, and become a just drain injury it is not victims governmental resources. discouraged who would be settling: contrary discourage [A] result would set- court’s conclusion under the way: tlements in nonsettling another prior 13-50.5-105, version of although in a pay propor- tortfeasor would than less its context, equally different applicable here damages tionate share of after the settle- to the amended statute: *14 deducted, ment amount is and tortfeasors light considerations, In of these we believe settle, would have an incentive not hop- that a judgment by refusal to reduce the ing that intransigence would be rewarded justified the settlement amount is under when another tortfeasor settled for an the Aсt even if it in overcompensa- results amount in liability. excess of its true plaintiff, tion particularly since a Denver, City County Kussman v. & contrary defeat, rule cases such of (fn. 5). P.2d at 781 one, present as the overriding the Act’s goal ensuring of compensation. full The urged by construction the manufactur- provide unnecessary er would incentives both Denver, City County Kussman v. injury alleged victims and (fn. tortfeasors not 5). P.2d at 781 enough reject settle: reason such a B. construction. Equally if important, not more public IV. judicial policies in Colorado favor the And, disputes. settlement of while a com It is primary often said that our task in
plete
always preferable,
settlement
is
even
construing statutory provisions is to ascer-
partial
encouraged,
settlements should be
give
tain and
legislative
effect
intent.
may
necessary
these
be
steps leading
ato
E.g., Property Tax Administrator v. Produc-
complete settlement. See
Copper
Stubbs v.
Services, Inc.,
Geophysical
tion
Contrary
contention,
“individually
disability
to the homeowners’
such as
held
and life
insurance,
benefits,
security
the settlement does not fall within that
social
death
statu-
ben-
maybe
tory exemption
unemployment
efits and
some
because the covenant should
bene-
Keelan,
Rogers,
fits.” Van
Inc.
Waters
not be construed as a contract which the
supra,
execute, with a defendant who re- reached party but is found to be at fault
mains a 13-21-111.6,' provisions of subject 6A) (1987 Repl.Vol. exempt- and is C.R.S. statutory exception by
ed reason of accompanying contract. accord with cases
This conclusion proceeds
which have held settlement from the
must be deducted award when designated nonparty settling party is. generally
but not to be at fault. See found Zufelt, (Colo.App.1992);
Smith v. Bussey, (Colo.App. P.2d 272
Gutierrez v. Fidelity Guaranty
1992); States United Co., Co. Salida Gas Service
(Colo.App.1989). 13-21-111.6,
Thus, pursuant 6A), the court have
deducted the received Coppola’s insur-
the Simons from defendant
ance the verdict entered carrier from reduced Accord- on the amount.
ingly, reverse as to I would this issue entry appropriate of an remand for
judgment. respects, In all other I concur majority opinion. GIVAN,
David L. Counterclaim Plaintiff- Cross-Appellee,
Appellant and SPRINGS, a
CITY Home OF COLORADO municipal City and a Colorado cor
Rule Defendant-Ap
poration, Counterclaim
pellee Cross-Appellant.
No. 92CA1428. Appeals, Court of
Colorado
Div. IV. 18, 1993.
Nov. Rehearing on Denial
As Modified
Jan. 1994.
Petition and Cross-Petition 20, 1994. Granted June
Certiorari