Opinion by
Plaintiff, Richard Tanski, suing in a representative capacity, appeals the trial cоurt's dismissal of this action in which he named himself as defendant. We affirm.
In August 1989, Richard Tanski and his wife, Robertа, were in a one-car accident. Mr. Tanski was the driver and his wife was a passenger. As а result of the accident, his wife died.
Thereafter, Richard Tanski, in his representative cаpacity as surviving spouse and heir at law of Roberta M. Tanski, filed this wrongful death action suing himself and alleging that his wife died as a result of his negligence. See § 13-21-201, C.R.S. (1987 Repl.Vol. 6A).
Defendant Tanski then moved to dismiss plaintiff Tanski’s complaint. As grounds for dismissal, defendant Tanski argued that since he and plaintiff were the same person and were equally negligent, and since the comparative negligence statute bars a plaintiff who is аt least fifty percent negligent from recovering, plaintiff’s lawsuit should be dismissed as a matter оf law.
The trial court concluded that nothing in either the language of the wrongful death statute § 13-21-202, C.R.S. (1987 Repl.Vol. 6A) or the comparative negligence statute § 13-21-111, C.R.S. (1987 Repl.Vol. 6A) preventеd Tanski from filing his action. However, the court ruled that the public policy of Coloradо bars a person from recovering damages for his or her own torts and that, therefore, Tanski could not recover as a matter of law. Accordingly, the court dismissed Tanski’s action.
I.
Plaintiff Tanski’s first contention is that the trial court erred by assuming that Tanski was seeking recovеry only for himself. We find no error.
Section 13-21-201(l)(a), C.R.S. (1990 Cum.Supp.) applies to all civil actions based on deaths occurring after July 1, 1988. It provides that a wrongful death action may be brought within the first year after death by decedent’s spouse or, upon the written election of the spouse, by the decedent’s spouse and heirs.
In the trial court’s written order of dismissal, the court noted that: “Mr. Tanski has children of his own and Mrs. Tanski had children of her own_” Here, however, Tanski did not file the written election that was required in order for him to sue on behalf of decedent’s other heirs. Since there is nothing in the record to indicate that Tanski intended to file, or was authorized to file, his lawsuit as a representative of heirs other than himself, the triаl court did not err in finding that Tanski sought recovery only for himself.
II.
Plaintiff Tanski, in his representative cаpacity, next contends that the trial court erred by concluding that the public policy of Colorado bars his recovery under the state’s wrongful death statute. We disagree.
In Davenport v. Patrick,
The North Carolina court, however, ruled that the real party in interest wаs the husband because he was the beneficiary of his wife’s estate, and if the administrator was allowed to proceed and recover, the husband would be enriched for his own wrong. Accordingly, the court held that since “the wrongdoer [husband] [was] both the defendant and the real plaintiff,” his action was contrary to North Carolina’s public policy, and husband was barred from recovery. See also Bays v. Cox’ Administrator,
Other courts have ruled to the contrary. See Strickland v. Atlantic Coast Line R.R. Co.,
We find the reasoning of the North Carolina court persuasive and consistеnt with the public policy of this state. Cf. Willy v. Atchison, Topeka & Santa Fe Ry. Co.,
On a motion to dismiss, we must view the allegatiоns of the complaint in the light most favorable to plaintiff. Shelter General Insurance Co. v. Progressive Casualty Insurance Co.,
III.
In view of our ruling, we need not consider plaintiff’s other contentions.
Since plaintiff here has attempted to establish a new theory of law, we deny defendant’s request for attorney fees. See § 13-17-102(7), C.R.S. (1987 Repl.Vol. 6A). See also Mission Denver Co. v. Pierson,
The judgment is affirmed.