No. 91CA0198Colorado Court of Appeals.
Decided June 25, 1992. Rehearing Denied July 23, 1992. Certiorari Granted January 4, 1993 (92SC552).
Certiorari Granted on the following issues: Whether the court of appeals erred in its interpretation and application of § 13-21-102.5, 6A C.R.S. (1987).
Appeal from the District Court of El Paso County Honorable Oyer Leary, Judge.
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Bill E. Landsberg; Kenneth A. Matthews, for Plaintiffs-Appellees.
Watson, Nathan Bremer, P.C., Mark H. Dumm, Heidi J. Hugdahl, for Defendant-Appellant.
Division IV.
Opinion by JUDGE JONES.
[1] Defendant, General Electric Company, appeals the judgment entered against it and in favor of plaintiffs, Donald and Connie Niemet. It also appeals a post-trial order relative to the determination of damages. We affirm. [2] Donald Niemet, while acting within the course of his employment as a meter specialist for the City of Colorado Springs (the City), suffered severe burns and injuries as a result of an explosion and an electrical fire at an electric metering station owned and operated by the City. Plaintiffs brought suit against defendant, the manufacturer of the electrical transformer used in the metering station, alleging that the transformer was defectively manufactured and then placed in service. Defendant denied liability on the ground that the proximate cause of plaintiffs’ injuries were the negligent acts of a non-party, the City, which, it claimed, negligently installed, maintained, and failed to ground the electrical distribution system. [3] The jury awarded plaintiffs $1 million for non-economic damages and apportioned liability by affixing 10% of the fault to Mr. Niemet,Page 89
35% to defendant, and 55% to the City.
[4] Pursuant to § 13-21-102.5(3)(a), C.R.S. (1987 Repl. Vol. 6A), the trial court determined that clear and convincing evidence supported the conclusion that the non-economic damages should be capped at $500,000. The court denied defendant’s post-trial motions and ordered that the final award of non-economic damages be calculated by first applying the pro-rata proportions of liability against the total award of $1 million and by then imposing the $500,000 statutory cap pursuant to § 13-21-102.5. Judgment against defendant was, thus, entered in the amount of $421,750. I.
[5] Defendant first contends that the trial court erred in its interpretation and application of the non-economic damages cap established by § 13-21-102.5, C.R.S. (1987 Repl. Vol. 6A). It argues that the terms of the statute require that the statutory cap must be applied to a jury award before pro-rata liability is apportioned. We do not agree.
. . . .
[12] “(3)(a) In any civil action in which damages for non-economic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of such damages exceed five hundred thousand dollars.”
or for each action. If the non-economic damages cap applies to each action, then there is support for defendant’s argument that the cap should first be applied to the entire sum of the recoverable damages in the action and then, secondly, liability should be apportioned. If, as plaintiff argues, the non-economic damages cap applies to each award, then liability should first be apportioned in relation to the total damages and then, secondly, any damage award against a specific party in excess of the statutory limit should be capped.
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[15] A review of the legislative history for § 13-21-102.5 reveals that the General Assembly did not anticipate this issue. However, the bill’s history does indicate that legislators repeatedly expressed concern for protection of the rights of plaintiffs to recover damages in the context of limited damage awards. And, in fact, the original language of the bill was amended to allow the court to find, “by clear and convincing evidence,” § 13-21-102.5(3)(a), that damages may exceed $250,000 because, “if we don’t, we’re going to create a new class of victims.” Hearings on S.B. 67-1986 before the Senate Business Committee, 56th General Assembly, Second Session (February 19, 1986) (statements made during period from 1:45-2:53 p.m.). [16] In the absence of legislative history to the contrary, we are persuaded that plaintiffs’ argument best satisfies the declaration of intent contained in § 13-21-102.5(1), wherein the General Assembly has stated that “awards . . . for non-economic losses . . . often unduly burden . . . persons in this state.” (emphasis added) This expression of the public policy underlying the statute demonstrates the General Assembly’s concern with protecting individual defendants, or “persons,” from responsibility for paying excessive amounts because of “awards” representing non-economic damages. [17] The statutory language does not evince an intent on the part of the General Assembly to allow individual defendants who have been adjudged as negligent to escape accountability for their negligence based on circumstances concerning any other negligent “person,” whether or not that “person” is a party. Additionally, the language of the statute does not express a public policy that deserving plaintiffs may not recover for non-economic damages beyond the prescribed level of protection from “unduly [burdensome]” awards afforded to individual “persons.” Thus, the intent of § 13-21-102.5 is not to allow “persons” to escape accountability but, rather, is to limit the amount of damages for which each such party must account. [18] Moreover, a construction of § 13-21-102.5 which caps each separate non-economic damage award, rather than awards for entire actions, averts subversion of the intended effect of § 13-21-111.5(2), pursuant to which the jury must determine the “percentage of negligence or fault attributable to each of the parties and any persons not parties to the action.” [19] Here, as the trial court observed, with sound logic, if the $500,000 cap is applied before damages are apportioned, defendant’s liability for the total non-economic damages determined to have been incurred is reduced from the jury’s apportionment of 35% to 17.5%, because the defendant would be responsible only for 35% of 500,000 (or 17.5% of $1 million), rather than 35% of $1 million. By applying the cap to an award, rather than an entire action, the jury’s apportionment of fault percentages is appropriately retained pursuant to § 13-21-111.5, while any award in excess of $500,000 is appropriately capped pursuant to §13-21-102.5. [20] Our construction here does no more than carry out the unimpeachable obligation of this court to harmonize the effect of, and to buffer the friction between, competing statutes applicable to the same set of facts Subsequent Injury Fund v. Grant, 812 P.2d 1183 (Colo.App. 1990). [21] We also note that the enactment of §§ 13-21-102.5 and 13-21-111.5represents a departure from the formerly prevailing common law doctrine of unlimited joint and several liability. And, until the common law is repealed by legislative authority, it “shall be the rule of decision, and shall be considered as of full force.” Section 2-4-211, C.R.S. (1980 Repl. Vol. 1B). [22] Here, the General Assembly has expressed the intent to apportion liability fairly while protecting defendants from the cost of excessive non-economic damage awards. But, there is no express intent to repeal the common law doctrine that plaintiffs may otherwise recover the amount of damages incurred by virtue of negligence on the part of individual defendants. Thus, application of the common law necessitates that the statutes be strictly construed to provide the intended remedy to defendants
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while avoiding a construction that would derogate the common law doctrine allowing plaintiffs to recover for their injuries.
[23] Thus, we construe the statutes at issue so as to reach a reasonable result which harmonizes the effects of the common law and the legislative authority, as required whenever a statute does not abrogate common law either explicitly or as a result of inconsistent language or applicability. Vogts v. Guerrette, 142 Colo. 527, 351 P.2d 851 (1960) Shoemaker v. Mountain States Telephone Telegraph Co., 38 Colo. App. 321, 559 P.2d 721 (1976). [24] Accordingly, we perceive no error in the trial court’s determination that liability should be apportioned pursuant to § 13-21-111.5, C.R.S. (1987 Repl. Vol. 6A) before damages for each award are capped pursuant to § 13-21-102.5, C.R.S. (1987 Repl. Vol. 6A). II.
[25] Defendant next contends that the trial court erred by denying its motion for a directed verdict on the ground that the plaintiffs’ claim is barred by the Colorado statute of repose, § 13-80-107, C.R.S. (1987 Repl. Vol. 6A). We are not persuaded.
III.
[32] Regarding defendant’s contention that the intervening cause of plaintiffs’ injuries was the City’s failure properly to ground the electrical equipment and the transformer, we conclude that there was sufficient evidence in the record to submit this question to the jury.
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