Slack v. Farmers Insurance Exchange

5 P.3d 280, 2000 Colo. J. C.A.R. 3458, 2000 Colo. LEXIS 742, 2000 WL 776612

• Court: Supreme Court of Colorado
• Decided: June 19, 2000
• Docket: 98SC812
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

The question in this case is whether seetion 18-21-111.5, 5 C.R.S. (1999) requires the pro rata distribution of civil liability among intentional and negligent tortfeasors who jointly cause indivisible injuries.¹ Section 18-21-111.5(1) states that a tortfeasor shall only be liable for damages to the extent of her negligence or fault. The court of appeals, in Harvey v. Farmers Insurance Exchange, 983 P.2d 34 (Colo.App.1998) concluded that the statute as drafted by the General Assembly contemplates that liability may be apportioned between a negligent tortfeasor and an intentional tortfeasor. 983 P.2d 34, 39 (Colo.App.1998).² The Petitioner here contends that when one of the tortfea-sors has committed an intentional act, the negligent tortfeasor should bear the risk of the full loss, rather than having the benefit of an apportioned degree of loss. We disagree, and hold that the plain meaning of the statutory language requires apportionment of liability among negligent and intentional tortfeasors who contributed to an indivisible injury, and thus, we affirm the court of appeals.

I

On September 8, 1992, Juliette Diane Slack suffered injuries in an automobile accident. Slack, driving a minivan, was stopped at a stoplight waiting to make a right turn. When she began to make the turn, a young man in a small, green car ran the stoplight and forced Slack to slam on the brakes. The abrupt stop caused Slack to strike her chin on the steering wheel and then to hit the back of her head on the headrest.

The following day, Slack visited her chiropractor, Dr. Steven Lee Schuster, for treatment of her neck and back pain caused by the accident.³ Dr. Schuster submitted all charges for treatment to Slack's insurer, Farmers Insurance. In accordance with her policy, and at the request of Farmers Insurance, Slack signed and delivered to Farmers Insurance an Application for Benefits and Proof of Loss requesting Personal Injury Protection (PIP) benefits under her automobile insurance policy. Farmers Insurance elected to obtain a second opinion regarding the nature of Slack's injuries from an independent medical examiner (an IME).

Farmers Insurance scheduled an appointment for Slack with Dr. Lloyd Lachow, a chiropractor. At that time, another one of Farmers' insureds, Jodi Lynn Harvey, had claimed that Lachow sexually assaulted her during an examination.⁴ Slack testified that during her exam, Lachow touched her clothed breast and pushed his pelvis into her back. In addition, she testified that he pulled hard on her neck and shook her head violently from side-to-side, putting her in additional pain.

Immediately thereafter, Slack drove to Dr. Schuster's office to confirm that her IME acted inappropriately. She then contacted an attorney and reported the incident to the City of Aurora police department. Later that same day, Slack contacted Farmers Insurance to inform it of the events.

Following an investigation, the Colorado Department of Regulatory Agencies (the Agency) suspended Lachow's license effective March 81, 1998. Lachow admitted in a Stipulation and Final Agency Order that the State Board of Chiropractic Examiners, a Board contained within the Agency, would be able to establish a prima facie case of unprofessional conduct during the examinations of Slack and Harvey.

Slack filed suit against Lachow claiming assault, battery, negligence, extreme and outrageous conduct/intentional infliction of emotional distress, negligent infliction of emotional distress, and malpractice. In the same suit, she claimed negligence, breach of contract, bad faith breach of contract, and outrageous conduct against Farmers Insurance. Slack claimed that Farmers Insurance acted improperly by sending her to a chiropractor it knew or should have known would injure her. Brett Slack, her husband, brought a loss of consortium claim.

Before trial, the Slacks settled their claims with Lachow. Farmers Insurance, however, designated Lachow a nonparty pursuant to section 18-21-111.5(8), 5 C.R.S. (1999).⁵ Following a trial, the jury returned a verdict in favor of the Slacks and against Farmers Insurance on the negligence claim, bad faith breach of contract claim, and on Brett's loss of consortium claim. The jury also found that Farmers Insurance acted willfully and wantonly. The jury awarded Slack $40,000 for her injuries and $16,000 in exemplary damages. It awarded Brett $6000 for his loss and $2400 in exemplary damages. The jury apportioned sixty percent of the fault for Slack's injuries to Lachow and forty percent to Farmers Insurance. In accordance with section 18-21-111.5(1), the trial court reduced Slack's award to $16,000 in compensatory damages and $16,000 in exemplary damages. The trial court did not reduce the compensatory portion of Brett's damage award.

Slack appealed the reduction of her award to the court of appeals. Farmers Insurance cross-appealed the trial court's refusal to apportion the damages awarded to Brett. The court of appeals held in favor of Farmers Insurance on both issues. This appeal followed.

IL.

A.

Slack first argues that section 18-21-111.5(1) does not require apportionment between a negligent actor and an intentional tortfeasor. We disagree.

Slack asserts that an IME owes no duty to a patient who has been referred by an insurance company, and that therefore, Lachow cannot be a nonparty tortfeasor in this case. She cites Martinez v. Lewis, 969 P.2d 213 (Colo.1998) to this effect where we held that an IME does not owe a duty of care to the examinee to diagnose the examinee's condition correctly because no physician-patient relationship arises from the examination. 969 P.2d 218, 219 (Colo.1998). Slack misinterprets our holding in Martines. As we stated explicitly in Greenberg v. Perkins, 845 P.2d 530, 536 (Colo.1993), "the [independent medical] examination itself may be said to create a relationship between the parties and impose upon the physician a duty to exercise a level of care that is consistent with his professional training and expertise." See also Martinez, 969 P.2d at 217-18. Therefore, an IME remains Hable for any injury he negligently or intentionally inflicts on a patient during an examination, but does not owe the examinee a duty to diagnose correctly his or her condition. It goes without saying that a physician owes all examinees a duty not to assault them sexually, and would be liable for such conduct. Hence, Lachow was a proper nonparty.

B.

We move then to the question of whether the jury could properly apportion Slack's damages between Lachow and Farmers Insurance.⁶ As part of the tort reform movement in Colorado, the General Assembly eliminated joint and several lability wherein one tortfeasor might be liable in damages for the acts of another tortfeasor, and adopted a several liability scheme, wherein a tortfeasor is responsible only for the portion of the damages that he or she caused. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo.1995); Robert E. Benson, Application of the Pro Liability, Comparative Negligence and Contribution Statutes, 28 Colo. Law. 1717, 1717 (1994). Section 13-21-111.5(1) states:

In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or foult attributable to such defendant that produced the claimed injury, death, damage, or loss. ...

(Emphasis added.) The General Assembly also provided that the negligence or fault of a nonparty who settled with the plaintiff could be considered in the apportionment of damages. See §§ 18-21-111.5(2), -111.5(8).

We are called upon to determine whether the General Assembly intended that liability may be apportioned only between negligent tortfeasors, or also between a negligent and an intentional tortfeasor. In other words, may a jury apportion fault among tortfeasors who were merely negligent and others who intended to do wrong?

When interpreting a statute, we proceed in accordance with a number of time-honored principles. First, we adopt the construction that best gives effect to the legislative scheme. See Water Rights Of Park County Sportsmen's Ranch LLP v. Bargas, 986 P.2d 262, 268 (Colo.1999). In doing so we must look to the plain meaning of the words employed. See id.; see also § 24-101, 1 C.R.S. (1999). We construe a statute so as to give effect to every word, and we do not adopt a construction that renders any term superfluous. See Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 790 P.2d 827, 830 (Colo.1990). Where the statutory language is clear and unambiguous, we do not resort to other rules of statutory construction. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997). The court will not create an exception to a statute that the plain language does not suggest or demand. See Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994) ( "We will not judicially legislate by reading a statute to accomplish something the plain language does not suggest, warrant or mandate.").

In accordance with this approach, we first examine the plain meaning of section 13-21-111.5(1) to determine which torts it encompasses. For analytical purposes, the statute can be separated into two parts. The first explains that the statute applies to "an action brought as a result of a death or an injury to person or property." § 13-21-111.5(1). The language of this part clearly applies to a wide variety of situations, and includes intentional torts. Undoubtedly, a sexual assault can result in an action for an injury to a person. Therefore, on its face, the language would cover the intentional torts of assault and battery.

The second part of the statute states "no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss." § 18-21-111.5(1) (emphasis added). The critical portion of this section is the phrase "negligence or fault." If this second part of the statute does not limit the first part, then intentional torts must fall within its reach.

We note that the comparative negligence statute refers only to the negligence of the victim and the negligence of the tortfeasor. See § 18-21-111, 5 C.R.S. (1999). On the other hand, the pro-rata apportionment statute that is before us today contains not only a reference to the negligence of a defendant, but also to the "fault" attributable to a defendant. See § 18-21-111.5(1). Thus, we cannot ignore the addition of the term "fault" to the statute. See Cherry Hills, 790 P.2d at 830.

Black's Low Dictionary defines fault as "[a)n error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement." Black's Law Dictionary 628 (7th ed.1999). As pertinent in this case, Webster's New Collegiate Dictionary provides that fault means "misdemeanor" and "mistake" and "responsibility for wrongdoing or failure." Webster's New Collegiate Dictionary A14 (1981). Webster's Third New International Dictionary defines fault in part as "a failure to do what is right" and "a failure to do something required by law or the doing of something forbidden by law" and "a responsibility for wrongdoing or failure." Webster's Third New International Dictionary 829 (1976).

The same sources define negligence more narrowly. Black's offers this definition of negligence:

The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights.

Black's, supra, at 1056. Webster's New Collegiate Dictionary and Webster's Third New International Dictionary define negligence as the "failure to exercise the care that a prudent person usually exercises." Webster's New, supra, at 762; Webster's Third, supra, at 1518.

These definitions suggest that the General Assembly used the word "fault" purposefully in section 13-21-111.5(1) and that the common understanding of that term controls our interpretation. Fault contemplates more than mere negligence, and includes intentional acts.

Interestingly, this court addressed a related issue in Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo.1995). In that case, we answered a certified question from the United States District Court for the District of Colorado about whether "tortious act" meant both negligent and intentional acts. See id. at 1052. The case involved an action by Resolution Trust Corp. (RTC) against the officers and directors of a savings and loan association that had fallen into receivership. See id. at 1052-53. RTC alleged that the defendants engaged in a common plan or design to exercise inadequate oversight, and asserted claims for negligence, negligence per se, gross negligence, and breach of the fiduciary duty of care. See id. at 1053. The issue that the court decided was whether those defendants were liable jointly under the terms of section 13-21-111.5(4), 5 C.R.S. (1999) as "two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act." See id. at 1055. One of the defendants argued that the term "tortious act" meant something different from the term "negligence or fault" contained elsewhere in the statute because of the former term's solitary use in subsection four. See id. at 1056. We disagreed, opining that,

the term "tortious act" has a broad definition that encompasses any wrongful conduct. There is no basis to assume that by using the term "tortious act" in section 13-21-111.5(4) the General Assembly for some reason intended to exelude one or more forms of wrongful conduct from the scope of that term.

Id. The court then reasoned that the term "tortious act" included both negligent and intentional acts. See id. As relevant to our inquiry today, the court concluded that "tor-tious act" did include "negligence or fault," and included both negligent and intentional acts. Therefore, we implicitly equated "negligence or fault" with negligent and intentional acts.

In short, we can find nothing in the statutes or in our cases interpreting the statutes to suggest that the General Assembly intended to expose a negligent tortfeasor to greater liability when his conduct was coupled with that of an intentional tortfeasor, than when his conduct combined with that of another negligent tortfeasor. Accordingly, we conclude that section 18-21-111.5(1) applies even when one of several tortfeasors commits an intentional tort that contributes to an indivisible injury.

The General Assembly abolished joint and several lability in Colorado "to reduce unfair burdens placed on defendants." General Elec. Co. v. Niemet, 866 P.2d 1361, 1364 (Colo.1994). "The adoption of [the pro-rata division of liability] was intended to cure the perceived inequity under the common law concept of joint and several liability whereby wrongdoers could be held fully responsible for a plaintiffs entire loss, despite the fact that another wrongdoer, who was not held accountable, contributed to the result." Barton v. Adams Rental, Inc., 938 P.2d 532, 535 (Colo.1997). In our view, neither the reasoning nor the result differ when an intentional wrongdoer contributes to the loss.

C.

Other courts facing this issue have adopted a similar construction. In Bhinder v. Sun Co., 246 Conn. 223, 717 A.2d 202 (1998), the Supreme Court of Connecticut held that the apportionment statute did not apply to situations where one defendant committed an intentional act and another committed a negligent act, because unlike Colorado's law, the Connecticut statute was limited to "negligence actions." However, the court extended the statute to such situations as a matter of common law. See id. at 208. The court noted that failure to apportion "would have the incongruous effect of rendering a negligent party solely responsible for the conduct of an intentional actor, whose deviation from the standard of reasonable care is clearly greater." > Id. at 210; see also Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286 (Ky.Ct.App.1998) (interpreting an apportionment statute covering tort actions involving "fault" to allow apportionment between a church operated school that negligently hired and retained an employee that sexually abused a student and the intentional tortfeasor); Reichert v. Atler, 117 N.M. 623, 875 P.2d 379 (1994) (holding a tavern owner's negligent failure to protect patrons from foreseeable harm may be compared to the intentional conduct of another tortfeasor); Field v. Boyer Co., 952 P.2d 1078 (Utah 1998) (holding that "fault" as contained in Utah's comparative fault scheme included intention al acts).

D.

Slack acknowledges that the pro-rata liability statute would apply were La-chow a mere negligent actor, and that Farmers Insurance would bear only their portion of the liability. She argues, however, that since Lachow was an intentional actor, Farmers Insurance not Lachow should bear a greater proportion of the loss. In our estimation, the public policy rationale for apportioning the loss commensurate with wrongdoing is even more compelling when an intentional tortfeasor contributes to the injury. Under the terms of the statute, a negligent actor is only responsible for his contribution to an injury, irrespective of whether the other tortfeasor accidentally or purposefully injured the victim. To hold otherwise would lead to the anomaly that a negligent tortfeasor would bear the full risk of the injury if the other tortfeasor purposefully injured the victim, but only his portion of the risk if the other actor were negligent. If any disproportionate responsibility were to be assessed, it would more logically fall upon the intentional tortfeasor-not the negligent one.⁷ Nonetheless, section 13-21-111.5 demonstrates the General Assembly's intent that a tortfeasor should pay only for the portion of the injury he caused.

E.

Slack argues that the court of appeals' decision allows an insurer to act in derogation of its duty of good faith and fair dealing. She suggests that the court's holding invites insurance companies to neglect their insureds without the risk of fall Hability for their actions. Slack contends that apportionment in this case ignores the nature of the duty owed Slack and punishes her by proportionately reducing Farmers Insurance's liability. We find this argument unpersuasive.

The jury specifically found that Farmers Insurance breached its duty of good faith and fair dealing to Slack, and awarded damages accordingly. The jury instructions explained the nature of Farmers Insurance's duty of good faith and fair dealing, and presumably, the jury considered the nature of the duty when it apportioned fault. Clearly, Farmers Insurance has not avoided liability for its improper acts. Rather, in accordance with statute, the jury apportioned liability for the entire injury according to its determination regarding the relative fault of the tortfea-sors. Here, the jury even awarded exemplary damages against Farmers Insurance. While our tort scheme limits these damages to some degree, they remain available to a jury when a wrongdoer acts willfully or wantonly. See § 18-21-102(1)(a), 5 CRS. (1999).

IL

The Slacks also contend that the court of appeals erred in apportioning the damages awarded Brett for loss of consortium because, at trial, Farmers Insurance accepted the jury verdict form that did not include an area for the apportionment of fault as it related to the consortium claim. We agree with the court of appeals on this point.

As the court of appeals determined, a loss of consortium claim falls within the language of section 18-21-111.5(1). See Harvey, 983 P.2d at 40. It qualifies as an "action brought as a result of a death or an injury to person or property." § 18-21-111.5(1). Thus, the apportionment rules contained in the statute apply.

Brett argues that Farmers Insurance should be estopped from asserting error as to this issue because the jury verdict form for Brett's claim did not include an apportionment question. We disagree because we hold that a party derives a loss of consortium claim from the underlying injury for purposes of apportionment of liability between multiple tortfeasors.>

A loss of consortium claim is collateral to the personal injury claim for purposes of comparative negligence. See Lee v. Colorado Dep't of Health, 718 P.2d 221, 232 (Colo.1986). This principle also applies in the context of this case. As a result, when a victim suffers an indivisible injury, the apportionment of fault for the loss of consortium must match the apportionment of fault for the underlying injury. In this case, there was no apportionment of liability question on the jury verdict form for Brett's loss of consortium claim. However, had such a question been present, the jury might have apportioned fault as to his claim differently. Any difference in apportionment for the injuries in this case would not have been proper under our law. -

The exemplary damage award for loss of consortium in this case suggests that the jury understood this apportionment scheme. The jury awarded $6000 in compensatory damages and $2400 in exemplary damages. The $2400 total is exactly 40% of the $6000 award and the most Brett could have obtained under the jury's verdict in this case. Therefore, we find that the trial court erred in failing to apportion the jury award for Brett's loss of consortium claim, and affirm the court of appeals' decision on this issue.

IV.

The Colorado several liability statute does not differentiate between intentional acts and negligent acts in its mandate to apportion liability among tortfeasors. Accordingly, the trial court properly apportioned liability in this case based upon the jury's decision as to relative fault between Farmers Insurance and Lachow for Slack's injuries, but erred in failing to apportion liability for Brett's loss of consortium. Therefore, we affirm the court of appeals, and remand the case with directions to return it to the district court with instructions to reduce Brett's award of compensatory damages to $2400 in accordance with this opinion and otherwise to reinstate the trial court judgment.

Justice RICE dissents, and Chief Justice MULLARKEY and Justice BENDER join in the dissent.

1 . We granted certiorari on three issues:

(1) Whether the court of appeals erred as a matter of law in ruling that the intentional fault of a nonparty tortfeasor, who owed no duty to plaintiffs, could be compared to the negligence of a defendant who owed a duty of good faith and fair dealing to the plaintiffs.

(2) Whether the court of appeals' opinion must be reversed because it derogates an insurer's duty of good faith and fair dealing in violation of this court's prior decisions and further violates public policy.

(3) Whether the court of appeals' opinion with respect to the jury verdict in favor of Brett Slack must be reversed because the court addressed an issue that had not been properly preserved in the trial court.

2 . The case before us today arises under a different title than its predecessor because plaintiff Harvey did not petition this court for a writ of certiorari.

3 . Dr. Schuster had been treating Slack since August 1992 for mid-back pain.

4 . The incident between Harvey and Lachow occurred in November 1991. Harvey reported it to her claims adjuster at Farmers Insurance, and later filed suit in March 1993 as a coplaintiff in this case. The claims adjuster for Harvey worked out of a different office than the claims adjuster for Slack. At trial, Slack's attorney argued to the jury that Farmers Insurance either knew or should have known of the allegation that Lachow sexually abused patients before it referred Slack to him. The jury returned a verdict for Farmers Insurance on Harvey's claim; the court of appeals affirmed; and because Harvey did not petition for certiorari, her portion of the case is not before us today.

5 . Section 13-21-111.5(3)(b) provides in part:

Negligence or fault of a nonparty may be considered if the claimant entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault within ninety days following commencement of the action unless the court determines that a longer period is necessary.

6 . In this case, the jury did not specifically find that Lachow committed an intentional tort because he became a nonparty to the suit after his settlement with Slack. The tendered jury instructions did not force the jury to determine if Lachow acted negligently or intentionally. Instead, the instruction allowed the jury to find that Lachow contributed to Slack's injuries if they were caused by his negligence or fault. Thus, Farmers Insurance argues that Lachow should not be considered an intentional tortfea-sor for purposes of section 13-21-111.5(1). However, because we find in favor of Farmers Insurance as we have framed this issue for review, we do not address the merits of its argument. By our holding, responsibility may be apportioned between Lachow and Farmers Insurance, whether Lachow's conduct was negligent or intentional.

7 . Consistent with the notion that an intentional tortfeasor is more culpable even than a negligent tortfeasor, and thus, should be subject to increased, not decreased, exposure is section 13-50.5-102(3), 5 C.R.S. (1999) of the Uniform Contribution Among Tortfeasors Act. That section provides that an intentional tortfeasor has no right of contribution from other tortfeasors even in those narrow circumstances in which contribution continues to exist for the benefit of negligent tortfeasors.