*1 and Brett SLACK Julie Petitioners,
Slack,
v. EXCHANGE, a INSURANCE
FARMERS Respondent. corporation,
California
No. 98SC812. Colorado,
Supreme Court Banc.
En 19, 2000.
June July 2000.*
Rеhearing Denied * petition. grant the would BENDER and Justice Chief Justice MULLARKEY
Burg, Simpson, Eldredge, Hersh & Houlis- tan, P.C., Burg, Michael S. Diane Vaksdal Smith, Orsini, Rosemary Englewood, Colora- do, Attorneys for Petitioners. Patterson, Seymour, P.C., Nuss & Frank- Patterson, lin Englewood, Colorado, D. At- torneys Respondent.
Campbell, Ruebel, P.C., Latiolais & Jef- frey Clay Ruebel, Denver, Colorado, Attor- neys for Amicus Curiae for Colorado Defense Lawyers Association.
Breit, Bosch, P.C., Coppola, Levin & Brad- Levin, ley Denver, Colorado, A. Roberts & Zboyan, Roberts, Denver, P.C. Thomas L. Colorado, Attorneys for Amicus Curiae for Lawyers the Colorado Trial Association. turn, young of When Opinion began to make the she delivered KOURLIS Justice small, stoplight ran the green car man in a the Court. the brakes. to slam on forced Slack see case is whether in this question chin her stop to strike abrupt caused Slack (1999) requires 18-21-111.5, 5 C.R.S. tion hit the and then to steering wheel on the *3 of civil distribution pro rata the headrest. her head on back of tortfeasors among intentional injuries.1 Sec indivisible jointly cause who her chiro following day, visited Slack 18-21-111.5(1) that a tortfeasor states tion Schuster, for treat Lee Dr. Steven practor, the ex damages to for liable shall pain caused and back of her neck ment of fault. The court negligence of her tent all submitted Dr. Schuster accident.3 Insurance Harvey v. Farmers in appeals, insurer, to Slack's charges for treatment (Colo.App.1998)con P.2d 34 Exchange, 983 with her In accordance Insurance. Farmers by the drafted as the statute cluded Farmers Insur request of policy, and at the contemplates that Farmers ance, signed and delivered Slack a apportioned between may be for Benefits Application an Insurance and an tortfeasor Injury requesting Personal of Loss Proof The Petitioner (Colo.App.1998).2 P.2d (PIP) her automo under benefits Protection of the tortfea- when one contends here Insurance policy. Farmers insurance bile act, the has committed sors opinion regarding a second to obtain elected of the risk should bear injuries from an inde the nature of Slack's having the benefit loss, than rather full IME). (an pendent medical examiner dis degree of loss. We apportioned anof meaning of plain agree, and hold appoint an Insurance scheduled Farmers apportion requires statutory language Lachow, Lloyd a Dr. for Slack with ment inten among negligent and ment of time, one of At that another chiropractor. to an indi contributed who tional tortfeasors Harvey, insureds, Lynn had Jodi Farmers' thus, the court we affirm injury, and visible sexually her assaulted that Lachow claimed appeals. of testified during examination.4 Slack an exam, touched her during Lachow her I pelvis into her pushed his clothed breast and addition, he testified that she back. 8, 1992, Diane Juliette September On her head and shook pulled hard on her neck acci- injuries in an automobile Slack suffered side-to-side, in putting her ad violently from minivan, stopped Slack, driving a was dent. pain. right turn. ditional waiting make a stoplight at a treating since Slack Schuster had been 3. Dr. issues: granted on three We certiorari 1. pain. August mid-back 1992 for a (1) appeals erred as court of Whether ruling that the intentional matter of law owed no tortfeasor, who Harvey oc- fault of and Lachow between nonparty 4. The incident compared to the duty plaintiffs, could be reported Harvey it to in November 1991. curred duty who owed of a defendant Insurance, and adjuster at Farmers her claims plaintiffs. dealing to the good faith and fair coplaintiff in as a in March 1993 later filed suit opinion (2) appeals' must the court Whether Harvey adjuster for The claims this case. derogates an insurer's because it be reversed claims than the of a different office worked out dealing in violation good fair faith and trial, attorney ar- Slack's adjuster Slack. At and further vio- prior decisions this court's either jury Insurance gued that Farmers to the public policy. lates allegation that known of the or should have knew (3) opinion appeals' Whether the court sexually patients before it re- abused Lachow of Brett favor respect verdict to the a verdict returned Slack to him. ferred the court ad- because be reversed Slack must claim; on for Farmers Insurance Harvey's properly been had not an issue that dressed affirmed; Harvey appeals and because court of preserved trial court. in the certiorari, portion of the petition her did today under a differ- arises before us The case today. us case is not before plаintiff predecessor because than its ent title a writ of Harvey petition this court for did not certiorari. Immediately thereafter, 18-21-111.5(1), Slack drove to Dr. with section the trial court $16,000 Schuster's office to confirm that her IME reduced Slack's award to in compen inappropriately. satory acted then damages $16,000 She contacted exemplary attorney reported an the incident damages. The trial court did not reduce the City police department. of Aurora Later compensatory portion of damage Brett's day, that same Slack contacted In- award.
surance to it inform of the events. appealed Slack the reduction of her award appeals.
Following the court of investigation, Farmers Insurance the Colorado (the Department Regulatory Agencies cross-appealed the trial court's ap- refusal to Agency) suspended portion Lachow's license effec- damages awarded to Brett. The tive March 1998. Lachow admitted court appeals held favor of Farmers Stipulation Agency and Final Order that the Insurаnce on both issues. *4 appeal This fol- Examiners, Chiropractic State Board of a lowed. Board Agency, contained within the would be prima
able to
unpro-
establish a
facie case of
IL.
during
fessional conduct
the examinations of
A.
Harvey.
Slack and
argues
Slack first
that section 18-21-
against
Slack filed suit
claiming
Lachow
111.5(1)
require apportionment
does not
be
assault, battery,
negligence,
extreme
and
tween a
actor and an intentional
outrageous
infliction of
conduct/intentional
disagree.
tortfeasor. We
distress, negligent
emotional
infliction of
distress,
malpractice.
emotional
and
In the
Slack asserts that an IME owes no
suit,
same
she
negligence,
claimed
breach of
duty
patient
to a
who
has been referred
contract,
contract,
bad faith breach of
and
an
company,
therefore,
insurance
and that
outrageous
against
conduct
Farmers
Insur-
Lachow
nonparty
be a
in
tortfeasor
cannot
ance. Slack claimedthat Farmers Insurance
Lewis,
this case. She cites Martinez v.
969
improperly by
acted
sending her to a сhiro-
(Colo.1998)
P.2d 213
to this effect where we
practor it
or
knew
should have known would
held that an IME
duty
does not owe a
of care
injure
Slack,
husband,
her.
Brett
her
diagnose
to the examinee to
the examinee's
brought a loss of consortium claim.
correctly
condition
physician-pa
because no
trial,
Before
the Slacks settled their claims
tient relationship arises from the examina
Insurance,
however,
(Colo.1998).
Lachow.
218,
Farmers
tion. 969 P.2d
219
Slack
misinterprets
designated
holding
our
in Martines. As
nonparty pursuant
Lachow a
to
(1999).5
18-21-111.5(8),
section
5 C.R.S.
Fol we stated
explicitly
Perkins,
Greenberg
in
v.
trial,
lowing
jury
a
530,
returned a
(Colo.1993),
verdict
845 P.2d
536
[indepen
"the
favor
of the Slacks and
Farmers
dent
may
medical] examination itself
be said
claim,
Insurance on the
bad faith
a relationship
create
parties
between the
claim,
breach of contract
and on
impose upon
Brett's loss
and
physician
duty
a
consortium claim. The
also found
exercise a level of care that is consistent with
professional
training
his
expertise."
willfully
and
Insurance
See
acted
and
wantonly.
$40,000
Martinez,
awarded Slack
also
284
statute, we
interpreting
When
sexually,
would
them
duty not to assault
number of
with a
in accordance
proceed
Hence,
Lachow
conduct.
for such
be liable
First,
adopt the
principles.
we
time-honored
nonparty.
proрer
was a
to the
gives effect
that best
construction
Rights
See Water
legislative scheme.
B.
Of
LLP v.
Sportsmen's Ranch
County
Park
question of
to the
then
move
We
(Colo.1999).
262,
P.2d
268
Bargas, 986
apportion
properly
jury could
whether
meaning
plain
doing
we must look
so
and Farmers
Lachow
damages between
Slack's
id.; see also
employed. See
the words
the tort reform
part of
As
urance.6
Ins
(1999).
24-101,
construe
1 C.R.S.
We
Colorado,
General Assem
movement
word,
every
give
as to
effect
statute so
joint and several
bly eliminated
that renders
adopt a construction
do not
we
might be liable
one
wherein
Cherry Hills Re
superfluous.
any term
See
tortfeasor,
of another
the acts
damages for
Cherry
Village,
Hills
City
Dev. Co. v.
sort
scheme,
adopted a several
(Colo.1990).
827,
Where
790 P.2d
only for
responsible
is
a tortfeasor
wherein
unambiguous,
statutory language is clear
damages that he or she
portion of the
statutory
to other rules
we do not resort
Heis
Corp.
Trust
v.
Resolution
caused. See
McMinn, 945
Vaughan v.
construction.
(Colo.1995);
erman,
P.2d
(Colo.1997).
The court will
P.2d
*5
Benson,
the Pro
Application
E.
Robert
plain
a
that the
exception
an
to statute
create
Negligence and
Comparative
Liability,
See
suggest or demand.
language does not
Statutes,
Law.
28 Colo.
Contribution
Co., 869 P.2d
Scoggins
Unigard
v.
Ins.
13-21-111.5(1)
(1994).
states:
Section
(Colo.1994)(
judicially legis
will not
"We
a result of a death
brought as
In an action
accomplish some
by reading a statute to
late
property, no
injury
person or
or an
suggest,
not
thing
plain language does
for an amount
be liable
shall
defendant
mandate.").
warrant or
by
represented
the de-
that
greater
than
negligence
approach,
or
we
of the
with this
percentage
accordance
gree or
meaning
of section
plain
defendant
to such
examine
attributable
first
foult
death,
13-21-111.5(1)
it
injury,
dam-
which torts
to determine
the claimed
produced
analytical purposes,
For
age,
encompasses.
loss. ...
or
parts. The
separated into two
can be
statute
added.)
Assembly
The General
(Emphasis
applies to "an
statute
explains that
first
fault of a
negligence or
that the
provided
also
a
or an
brought
a result of
death
action
as
plaintiff could
with the
nonpаrty who settled
§ 13-21-
injury
person
property."
or
of dam-
in the
be considered
111.5(1).
clearly
part
language of this
-111.5(8).
18-21-111.5(2),
§§
ages. See
situations,
variety
a
applies to wide
upon
determine whether
are called
We
Undoubtedly, a
torts.
includes
intended
in an action for
can result
sexual assault
only
may
apportioned
between
be
face,
Therefore, on its
injury
person.
a
negligent and
tortfeasors,
or also between
the intentional
language would cover
words,
In other
an intentional
battery.
torts of assault
among tortfeasors
fault
may jury apportion
"no
part
the statute states
who
The second
merely negligent and others
who were
for an amount
be liable
defendant
shall
wrong?
intended to do
tortfea-
an intentional
not be considered
specifically
should
find
did not
6.
In this
13-21-111.5(1).
purposes
tort be-
of section
sor
committed
Lachow
nonparty
after his
to the suit
became a
cause he
of Farmers
we find in favor
However,
because
jury in-
tendered
Slack. The
settlement with
for re-
framed this issue
as we have
Insurance
jury to determine if
not force the
structions did
argu-
the merits of its
we
nоt address
view,
do
intentionally.
In-
negligently or
acted
Lachow
stead,
may
By
holding,
responsibility
ment.
our
to find
allowed
the instruction
Farmers In-
apportioned
Lachow and
between
injuries if
to Slack's
that Lachow contributed
negli-
was
conduct
Lachow's
surance, whether
negligence
fault.
they
or
were caused
gent or intentional.
Thus,
argues
Lachow
Insurance
greater
represented by
degree
than that
Dictionary
International
negligence
define
percentage
negligence
or
of the
at-
or
as the "failure to exercise the care that a
fault
produced
tributable to
defendant that
such
prudent person usually exercises." Webster's
death,
injury,
damage,
the claimed
or loss." New,
762;
Third,
supra, at
supra,
Webster's
18-21-111.5(1)
added).
§
(emphasis
at 1518.
portion
critical
of this section is
phrase
suggest
definitions
that the General
These
"negligence
fault."
If
part
this second
Assembly used the
purposefully
word "fault"
part,
the statute does not limit the first
then
13-21-111.5(1)
in section
and that
the com-
torts must fall within
reach.
its
understanding
mon
of that term controls our
comparative negligence
We note that
interрretation.
contemplates
Fault
more
only
negligence
statute refers
than
negligence,
mere
and includes intention-
negligence
victim and the
of the tortfeasor.
al acts.
(1999).
18-21-111,
§ See
5 C.R.S.
On the
hand,
pro-rata apportionment
other
stat-
Interestingly,
this court addressed a relat
today
ute that is
before us
contains not
Corp.
ed issue Resolution Trust
v. Heiser
defendant,
reference to the
of a
man,
(Colo.1995).
C.
only responsible for his
negligent actor is
injury,
irrespective
of
to an
contribution
adopted
facing
have
this issue
Other courts
accidentally or
other tortfeasor
whether
the
In Bhinder v. Sun
construction.
a similar
injured
victim. To hold
purposefully
the
(1998),
Co.,
the
717 A.2d
246 Conn.
anomaly
would lead to
otherwise
held that the
Supreme
of Connecticut
Court
the full risk
tortfeasor would bear
apply
did not
situa
apportionment statute
purpose
injury if the other tortfeasor
in
committed an
defendant
tions where one
victim,
only
portion
fully injured the
but
negli
committed a
act and another
tentional
negligent.
were
if the other actor
of the risk
law,
act,
gent
because unlike Colorado's
responsibility were
"negli
any disproportionate
If
limited to
Connecticut statute was
assessed,
logically fall
it would more
However,
extend
genсe
the court
actions."
neg-
tortfeasor-not
upon the
as a matter
ed the statute to such situations
Nonetheless,
ligent one.7
section 13-21-
fault as it related to the consortium claim.
Assembly's
agree
appeals
with the
111.5 demonstrates
We
court of
on this
pay
point.
intent
that a tortfeasor
should
portion
injury
he caused.
of
determined,
appeals
As the court of
a loss of consortium claim falls within the
E.
18-21-111.5(1).
language of section
See Har
argues
ap
Slack
the court of
vey,
qualifies
peals' decision allows insurer to act brought as a injury result of a death or an derogation duty good faith of its of and fair 18-21-111.5(1). person property." § dealing. suggests She that the court's hold Thus, apportionment rules contained ing neglect companies invites insurance apply. the statute Hability their insureds without the risk of fall argues Brett that Farmers appor for their actions. Slack contends that Insur estopped asserting ance should be error ignores tionment in this case the nature of jury as to this issue because the verdict form duty punishes owed Slack her for Brett's claim did appor not inсlude an proportionately reducing Farmers Insur question. disagree tionment We because we liability. argument ance's We find this un party hold that a derives a loss of consortium persuasive. underlying injury pur claim from the jury specifically found that Farmers poses apportionment between duty good Insurance breached its faith and multiple tortfeasors.> Slack, dealing damages fair and awarded jury
accordingly. explained instructions A loss of consortium claim is collat duty the nature of Farmers Insurance's personal eral injury purposes claim for good dealing, presumably, faith and fair comparative negligence. See Lee v. Colo jury considered the nature of the Health, (Colo. Dep't rado 718 P.2d apportioned Clearly, when it fault. 1986). principle applies This also in the con Insurance has not avoided for its result, text of this case. As a when a victim Rather, improper acts. accordance with injury, suffers an apportion indivisible jury apportioned liability for the ment of fault for the loss of consortium must injury according entire to its determination apportionment match the of fault for the regarding the relative fault of the tortfea- underlying injury. In this there was no Here, exempla- sors. even awarded apportionment liability question on the ry damages against Farmers Insurance. jury verdict form for Brett's loss of consor damages While our tort scheme limits these However, tium claim. question had such a degree, they to some remain available to a present, jury might been appor have wrongdoer willfully when a acts wan- differently. Any tioned fault as to his claim 18-21-102(1)(a), tonly. 5 CRS. injuries difference for the (1999). proper this case would not have been - *8 under our law.
IL
exemplary damage
The
award for loss of
The
suggests
jury
Slacks also contend that
the
consortium in this case
that the
appeals
apportioning
court of
in
apportionment
erred
the
understood this
scheme. The
damages
jury
awarded Brett
for loss of consor
awarded
in
dam-
compensatory
$6000
ages
exemplary damages.
and
in
because,
trial,
The
$2400
tium
at
Farmers
Insurance
exactly
total is
40% of the
award
$2400
accepted
the
$6000
verdict form that did not
apportionment
include an area for the
and the most Brett could have obtained un-
provides
7. Consistent with the notion that an intentional
that an intentional
tortfeasor has no
culpable
negligent
tortfeasor is more
even than a
right of contribution from other tortfeasors even
subject
tortfeasor,
thus,
and
should
to in-
in those narrow circumstances
in which contri-
creased,
decreased,
is section
13-
negli-
bution continues to exist for the benefit of
exposure
50.5-102(3),
(1999)
5 C.R.S.
of the Uniform Con-
gent tortfeasors.
Among
tribution
Tortfeasors Act. That section
dictionary
in
There-
lies on three different
definitions
jury's verdict
this case.
der the
support
the term "fault" as
for its conclu-
fore,
trial court erred in
the
we find
authority unper-
I
sion.
find the use of this
award for
failing
apportion
to
suasive,
claim,
particularly in
of the
affirm
consideration
loss of consortium
Brett's
which the term "fault"
issue.
cireumstances under
decision on this
appeals'
the court
Finally, the ma-
was added to the statute.
jority
Assembly's objec-
relies on the General
IV.
enacting
support
tives
this statute as
liability statute does
The Colorado several
However, construing
its conclusion.
the stat-
acts and
between intentional
not differentiate
preclude
ute to
tortfeasor
apportion
in its mandate to
acts
reducing
liability by comparing
negli-
his
Accordingly, the
liability among tortfeasors.
gence
to the actions of
tortfea-
liability in
apportioned
properly
trial court
objectives underly-
with
sor is consistent
jury's
upon the
decision as to
case based
ing the enactment of the statute as well as
Insurance
fault between
relative
of courts
with
well-reasoned conclusions
injuries,
erred in
but
and Lachow for Slack's
jurisdictions
that have
other
addressed
Brett's loss of
failing
apportion
this issue.
Therefore, we affirm the court
consortium.
appeals, and remand the case
di-
I. THE SCOPE OF SECTION
court with
rections to return it to the district
13-21-1115
Brett's award of com-
instructions
reduce
majority opinion,
As noted in the
section
pensatory damages to
in accordance
$2400
part
13-21-111.5 was added as
of the tort
opinion and otherwise to reinstate
with this
majority
movement in 1986. The
as-
reform
judgment.
court
the trial
plain language
serts that the
of the statute is
unambiguous.
disagree
majority's
I
with the
dissents,
RICE
and Chief Justice
Justice
unambiguous
conclusion that the statute is
on
join
BENDER
MULLARKEY and Justice
because,
view,
my
language
its face
the dissent.
interpretations.
lends itself to different
RICE, dissenting:
Justice
primary
construing
A court's
task in
majority
of the
concludes that the use
give
statute is to ascertain
effect to the
13-21-111.5,
"fault" in
5 C.R.S.
term
section
Assembly.
See
intent
Van
(1999),
indicates that
Keelan,
Rogers,
&
Inc. v.
Waters
840 P.2d
of an inten-
intended
include
(Colo.1992).
1070, 1076
To determine that
I
tional
in the statute. As believe
tortfeasor
statutory language.
intent we look first to the
pro
statute was not
rata
language
id.
When the
is clear and
intended to allow for
of liabili-
unambiguous,
there is no need to resort
ty
and an
between a
If,
statutory
rules of
construction. See id.
tortfeasor,
respectfully
I
dissent.
however,
language
ambiguous
is
or un
plain
seope,
lan-
certain as to its intended
with the
concludes that
guage
ambiguous
of the statute is not
result
the text lends itself to alternative
"fault,"
constructions,
may
to other mat
that the term
as used
court
look
view,
attained,
my
object sought
torts.
ters such as the
to be
includes intentional
ambiguous
term "fault"
and its intended
the cireumstances under which the statute
is
enacted,
sсope
Consequently,
legislative history,
the com
is unclear.
it is neces- was
sary
statutory provisions,
or former
to resort
to established rules of statuto- mon law
consequences
particular
ry
discern the intended
of a
construction.
construction
*9
id.;
2-4-208(1),
meaning
explain
§
1
language.
of this
I
below See
see also
CRS.
(1999). Ambiguity
legislative history
demonstrates that
exists when a statute is
how
by reasonably
capable
being
the addition of
"fault" to the statute
of
understood
the term
apportionment
persons
allow for
or more differ
was
intended to
well-informed
two
ent senses. See Allstate Ins. Co. v. Schneid
liability
between
Carriers,
Inc.,
majority
tortfeasor. The
re-
Nat'l
942 P.2d
er
(Colo.App.1997) (citing
Singer,
legislative
2A N.
history
Suther
of section 18-21-111.5
(5th
Statutory
§
land
Construction
45.02
demonstrates
the addition of the term
ed.1992)),
sub nom.
Ins.
"fault" to the statute was not
intended to
aff'd
Boom, Inc.,
(Colo.
liability
Exch. v. Bill
Turning pro now to the rata stat- ute at in the language issue instant majority The states that section 183-21- provides: of the statute 111.5(1) can be divided parts into two (1) brought analytical purрoses: In an action aas result of a death introductory phrase, "In an brought action as result of a injury person property, or an or no injury death person or an property, or defendant shall be liable for an amount (2) .."; sentence, greater the remainder of that represented by than that the de continues, which gree "no percentage megligence or defendant shall be liable or greater for an amount represented than that attributable to such defendant fault degree produced death, percentage negli- or injury, the claimed dam genee loss, or fault age, except provided or attributable to such defendant. as in subsec maj. "3 op. ... major at 284. tion of this section.1 The ity then asserts that the use of the broad 18-21-111.5(1) added). § (emphasis Because language "in an action" indicates that this the term "fault" is not defined in the section "would cover the intentional torts of it is unclear from the text of the statute by battery." assault and majority Id. The next itself whether this term was intended to in language considers the "negligence or fault" face, clude intentional tоrtfeasors.2 itsOn part in the second of the section and con the term "fault" can be read to be limited to if language cludes that "does not limit types other (e.g., tortfeasors part, the first then intentional torts fall must gross negligence). Alternatively, the term within its reach." Id. at 285. interpreted "fault" can be as a modifier of introductory language action," "in an Contrary majority's analysis, making applicable thus the statute to actions legislative history during adoption of this negligence (e.g., products other than liabili section demonstrates the General As- ty). Finally, "fault" can be read to include sembly pro never intended for the rata liabil- intentional tortfeasors. Because this lan ity apportionment negli- scheme to allow a guage capable being is understood in more gent tortfeasor to reduce his share of sense, than one employ we must other rules by comparison to an intentional statutory construction to determine wheth hearing conference committee on this language er this was intended to include part section reveals that the first of section tortfeasors. 18-21-111.5(1), оriginally as referred to the committee, follows, any read negli- as "In Legislative History A. gence brought action as a result aof death or injury relies on the person property,. addition of the or ..." Hear- ing on S.B. 70 Before the Conference Com- term "fault" to the statute as evidence that Assembly the General Liability, intended include mittee on Joint and Several 55th Assembly, Reg. General (April 2d Sess. liability appor- tortfeasors However, 1986) added). addition, tionment scheme. (emphasis examination of in the 1. Assembly necessary Subsection revives the common law rules of it deemed to use the joint right of contribution for tortfea- modifier "willful" to indicate that "fault" was to "consciously conspire deliberately sors who include intentional actions. This is further evi- pursue plan design a common to commit a scope dence that the intended of "fault" in the 13-21-111.5(4). § tortious act." pro rata statute is uncertain. Interestingly, 2. used the phrase "negligence agree analyze fault" in the I that it is useful to Pro- these clauses willful 15-2-807(2)(b), (1999) bate Code. 5 CRS. independently changes to understand the added). (emphasis I cite this section аs an illus- were introduced in the conference committee. statutes, part tration that in another of our *10 view, Therefore, legislative histo- committee, my in the subse- to the referred
version rath- demonstrates ry section 18-21-111.5 "negligence" of quent references to use the language convincingly that the decision by the er not followed were tortfeasor begin- language "in an action" at the id. fault," now reads. See broad the statute "or as (1), the the addition of throughout ning "negligence" of subsection By using the term "negli- after the term language "or fault" including the term by not section, was never gence" throughout this "fault," to the confer- as referred the statute legislature to lead to not allow intended did ence committee would be tortfeasor liability by compari- result that a to reduce tortfeasor liability by comparison tortfea- to reduce his allowed son to the contrary, To the intentional sor. to an changes were made to the statute these in the conference was introduced A motion solely to ensure the conference committee "negligence" remоve the word committee gross apply to the statute would also that part section. See id. first from the products actions. negligence and sponsor's purpose to motion stated The change proposing this was in committee of "Fault" B. Definitions applied also be that the statute would ensure on three different megligence and next relies involving gross in actions "fault," as dictionary as well There was no definitions liability. See id. products corresponding definitions "neg- dictionaries' removal of the word those indication that the any "negligence," support for the conclusion effectuate other as ligence" was intended to "fault" in the statute the use of the term id. This motion that change in the statute. See I intentional torts. id. Im- intended to include passed without comment. See was was authority unpersuasive on thereafter, mediately discussion en- find the use of brief Assem- question to make of whether General regarding the fact that order sued torts bly include intentional with this modifi- intended to consistent the entire statute "fault" in cation, through then of the term part of the statute would the addition another "negligence or the statute. changed to have to be fault" fault" after the by adding language "or dictionary majority's defini- use of the (com- id. "negligence." See use of the term not "negligence" does tions of "fault" change commenting that this mittee member As- proposition that the General support did."). just with what we "would be consistent torts sembly intended to include serve these definitions in the statute because of the committee here The clear concern "fault" is a broader illustrate that language "or the failure to add the was that "negligence." dispute I not than do "negligence" term fault" the use of the word after "fault" in fact a majority's is goal of ensur- contention might defeat the the statute "negligence," or their as- term than apply gross broader ing that the statute would also suggest that definitions "[these sertion that products actions. negligence 'fault' the word used provided no indi- The conference committee 18-21-111.5(1)." Maj. purposefully in section changes intended to were cation these above, the term op. As discussed language the statute at 285. original alter commit- by the conference "fault" was added from reduc- precluding a apply to would that this section liability by comparison to an inten- tee to ensure ing his prod- negligence or Moreover, gross actions based on at no tional tortfeasor. See id. "fault," Therefore, as liability. the term any ucts engage discus- time did the committee section, does, fact, contem- in this changes might al- used indicating these sion in that it plate more than mere lability apportionment seope ter the statute to applicability of this to believe extends any id. It is difficult fashion. See lability ac- products gross negligence and so committee intended the conference support the ma- tions; but its use does change scope in the sweeping a jority's that it includes conclusion any apportionment without discussion torts. comment to that effect.
291
respect
next cites to our decision
be
degree
made with
of fault
Heiserman,
Corp.
Resolution Trust
v.
particular
or
mens rea associated with
(Colo.1995),
("There
support.
maj.
conduct."),
P.2d 1049
for
See
is no basis to assume that
op.
holding in
at 285. Bеcause our
Heiser-
by
using the term 'tortious act' in section 18-
21-111.5(4)
meaning
man
resolved the issue of the
for some
language
of the
act"
"tortious
as used in
reason intended to exclude one or more
....")
of
subsection four
and did not
wrongful
forms of
(emphasis
conduct
require
language
"negli-
us
construe the
added).
ultimately
We
concluded that "both
negligent and intentional acts are sufficient
fault,"
genee or
I find the reference to this
authority unpersuasive on the issue before
give
joint
rise to
purposes
for
us.
18-21-111.5(4)."
section
(empha
Id. at 1056
added).
interpretation
sis
Our
of the lan
above,
18-21-111.5(4)
As noted
section
re
183-21-111.5(4)
guage
act" in
"tortious
section
joint liability
vives the common law rules of
does
question
not affect the resolution of the
right
of contribution when "two or more
today;
therefore,
majori
before us
I find the
persons
consciously conspire
[]
and deliber
ty's
unpersuasive.
reliance on Heiserman
ately pursue a
plan
design
common
or
added.)
(Emphasis
commit a
act."
tortious
C. Other Jurisdictions' Treatment
This subsection was added to the statute one
jurisdictions
Other
that have addressed
yeаr
original
pro
enactment of the
after
negli-
this issue have also concluded that a
102,
1,
rata
scheme.
ch.
See
see.
gent
permitted
should not be
18-21-111.5,
551,
§
1987 Colo. Sess. Laws
liability by
reduce
comparing
negli-
his
by
majority,
551-552. As noted
Heiser-
genee to the actions of an intentional tortfea-
proceeding
man was a C.A.R. 21.1
where we
sor.
I
reasoning
As
find the
and rationale
agreed
specific
ques
to answer two
certified
underlying
persuasive
these cases
on the is-
tions from the United States District Court.
us, proceed
sue before
I
to review
here.
them
Heiserman,
See
type of situation negligence liability by comparing "in ing his noted that further The court Id. ture." is of an the conduct 'differs wrongdoing tentional underlying the objectives kind, consistent in the degree but only in statute. Id. to it'" attached condemnation social al., Prosser et Page Keeton (quoting W. opinion, the in the expressed As (5th at 462 Torts Law on the Keeton joint several Assembly abolished principles, ed.1984)). these Applying bur "'to reduce liability in Colorado unfair negligence of an held that Veazey court (emphasis Id. on defendants'" placed dens com not be could complex owner apartment Niemet, added) v. Elec. Co. (quoting General rapist aof conduct pared to the (Colo.1994)). my Under 866 P.2d apartment by a tenant a lawsuit statute, negligent defen interpretation of *14 at 420.7 id. owner. See their to reduce allowed are still dants tort- negligence of other the demonstrate, sig proportion to are in there these cases As injury. the same responsible principles feasors legal important nificant accomplishes statute construction This precluding policy reasons goal a reduction Assembly's of liability by the General com reducing his from tortfeasor by on defendants placed "unfair burdens" The the an intentional tortfeasor.8 parison to joint and several law common particular the cases is underlying these rationale like the scheme. in factual situations compelling ly negligence of the the where
instant view, negligent tortfea- precluding a my In harm that risk of the exact created tortfeasor liability by pointing to reducing his sor from occurred. in no of an the actions Assembly's goal the way undermines 13-21-111.5 Purpose Section of D. on placed unfair burdens reducing the of example of an ideal case is This defendants. the General finally relies on be considered that should a "burden" enacting the statute objectives Assembly's likely not "unfair," that was a result maj. op. at See conclusion. support for its as Assembly when by contemplated the General view, taking into account my In 286. tortfea- compared actions of applied Appeal Court 7. The Louisiana McAvey guests. See one of the assaulted sor who factual circumstances Veazey holding different (E.D.La.1998). Dunbar, (La.Ct.App. 724, 729 110 Lee, v. 58 716 So.2d v. F.Supp.2d in Muse tortfeasor's if the intentional noted that The court seventeen-year- 1998). parents aof Muse the In protection en- ambit of within the conduct "is person suit shooting victim filed old by compassed owed two well as the son, persons as shot their who tortfeasor, inappropriate to instruct the it is was killed. when he their son were with who tortfea- of the intentional quantify the fault a verdict find- returned id. at 113. See Id. sor." fault, and each sixty percent at ing the killer twenty percent at fault. defendants two the other Court, Jersey Supreme one New Even the 8. verdict, jury's not- upheld the court See id. The comparison, type of allow this courts to first Veazey expressed ing concerns that though that New it concluded even stated id. at case. See present in this court were not it also rec this law allowed comparison, Jersey pointed out Notably, the court 115-16. underlying reasoning earlier ognized that corporate defendant Veazey involved preclude applied to appropriately be cases "could and that defendant individual and an intentional tortfeasors two of fault between corporate fault in apportioning concerns about obligation encompassed duty of one when the appropriate because are contexts or institutional the other." specific misconduct prevent the capable bodies policy-making are those entities 222, A.2d N.J. Andrich, v. Blazovic individuals. affecting of numerous the actions added). (1991) (emphasis The Blazovic « id. at 115. in that comparison to be made court allowed the actions decision, it believed because case district court a federal After the Muse were suffi "neither tortfeasors the intentional and held this issue confronted in Louisiana adequate causal bore an ciently nor foreseeable failing provide negligence a hotel Id. negligent defendant's]." relationship [the guests not be security could adequate for its passed it my the statute. Under construc- I am authorized to state that Chief Justice tion of the Farmers would MULLARKEY not be join Justice BENDER this allowed to dissent. liability by reduce its pointing tо
Dr. Lachow's conduct. Farmers' referring Lachow, Mrs. Dr. Slack to when just
it knew he recently sexually had assault- insured,
ed another created the exact risk of
harm that occurred. Precluding Farmers reducing its in this manner impose any
does not unfair burden on Farm- The PEOPLE of the State of ers in contravention of the General Assem- Colorado, Petitioner, bly's purpose. Accordingly, I believe that interpretation of the statute is consistent v. Assembly's the General purpose in en- LEFEBRE, Respondent. John F. acting section 18-21-111.5.
Nos. 99SC8 & 99SC42. Supreme IL CONCLUSION Colorado, Court of En Banc. conclusion, I believe that June Assembly's use of the term "fault" in section *15 13-21-111.5 was not intended to allow for negli- between a
gent tortfeasor and an intentional
I my reach conclusion analysis based on an legislative history concerning the addi-
tion of the term "fault" to the as well
as a underlying review of the legal principles policy concerns in this area of law. view,
my 13-21-111.5, before we read section ambiguous statute that compel does not majority's conclusion, allow a reduce compar-
ing his actions to those of an intentional
tortfeasor, require we should a clear state-
ment of intent part on the of the General
Assembly. interpretation proposed by important raises policy concerns troubling
and leads to results best addressed legislature. Sisk, Gregory C.
Interpretation Statutory Modification Joint and Inability, Several Puget 16 U. (1992) ("[Tihe Sound L.Rev. expansion comparative responsibility concept to wrongdoing significant poli- raises
cy concerns that are best resolved in the government.
democratic branch of state Be-
yond the threshold issue compar- of whether
ative fault should include intentional torts at
all, questions there are of what situations are ...").
best suited for application. such an
Accordingly, I respectfully dissent.