v LFI Fort Pierce

2020 COA 144, 490 P.3d 930

• Court: Colorado Court of Appeals
• Decided: October 8, 2020
• Docket: 19CA0804, Suydam
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 8, 2020

2020COA144

No. 19CA0804, Suydam v LFI Fort Pierce — Agency — Respondeat Superior; Civil Procedure — Voluntary Dismissal

A division of the court of appeals analyzes the scope of the

“going-and-coming” rule, which addresses whether an employer

may be held liable for damages caused by the negligence of one of

its employees while the employee is commuting between work and

home or another personal destination. The division affirms the

district court’s denial of a jury instruction on the going-and-coming

rule because the evidence presented at trial did not support the

instruction. In addition, the division examines novel procedural

issues arising from the voluntary dismissal of a plaintiff’s claims

against fewer than all defendants before or during trial under

C.R.C.P. 41(a)(1)(A) and the district court’s change in a party’s

status from defaulted defendant to nonparty at fault during trial. The division concludes that the change in the party’s status did not

prejudice the appealing defendant because the district court

instructed the jury that the nonparty was liable to plaintiffs. Lastly,

the division concludes that the appellant did not preserve its

challenge to the jury’s damage award. COLORADO COURT OF APPEALS 2020COA144

Court of Appeals No. 19CA0804 City and County of Denver District Court No. 17CV33350 Honorable Stephen M. Munsinger, Judge

Gary W. Suydam and Lisa Linch-Suydam,

Plaintiffs-Appellees,

v.

LFI Fort Pierce, Inc.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE LIPINSKY Navarro and Tow, JJ., concur

Announced October 8, 2020

Mann & Maximon, LLC, Stuart Mann, Joshua Maximon, Boulder, Colorado; Connelly Law, LLC, Sean Connelly, Denver, Colorado, for Plaintiffs-Appellees

Gibson, Dunn & Crutcher LLP, Gregory Kerwin, Julie Hamilton, Denver, Colorado; Wheeler Trigg O’Donnell LLP, Frederick R. Yarger, Denver, Colorado, for Defendant-Appellant ¶1 Appellee Gary W. Suydam was severely injured when he was

struck by two cars while riding his bicycle through an intersection.

As a result of the collisions, he was rendered a quadriplegic and

requires help with nearly every aspect of daily living. The driver of

the first car was Chelsea Brewer, an employee of appellant LFI Fort

Pierce, Inc. The driver of the second car was Stephen Tecmire.

¶2 Suydam and his wife, Lisa Linch-Suydam, filed a lawsuit

against Brewer, LFI, Tecmire, and other defendants not relevant to

this appeal. In their complaint, the Suydams alleged that LFI was

liable for any damages awardable against Brewer because she was

performing job duties for LFI at the time of the accident. The

Suydams sought damages in three categories — economic loss,

physical impairment or disfigurement, and loss of consortium.

They obtained a default against Tecmire after he failed to respond to

their complaint.

¶3 At the conclusion of a six-day trial, a jury awarded the

Suydams more than $54 million in damages, including more than

$32 million in damages for physical impairment or disfigurement.

The jury determined that Brewer (and thus LFI, as Brewer’s

1 employer at the time) was responsible for ninety percent, and

Tecmire was responsible for ten percent, of the Suydams’ damages.

¶4 On appeal, LFI challenges the verdict and the damage award

on three grounds.

¶5 First, LFI asserts that the trial court erred by failing to give the

jury a separate instruction on the “going-and-coming” rule, which

addresses when an employer is liable for the actions of an employee

who is traveling between work and home or another personal

destination. We decide that LFI was not entitled to an instruction

on the going-and-coming rule because the scope of work instruction

the court gave the jury was supported by the evidence presented at

trial, while LFI’s proffered instructions were not. The evidence

showed that, at the time of the incident, Brewer was engaged in an

act or performing a duty under the express or implied direction of

LFI. Moreover, Brewer never testified that she was driving home or

to another personal destination when her vehicle collided with Gary

Suydam.

¶6 Second, LFI argues that the trial court erred by changing

Tecmire’s status from a defaulted defendant to a nonparty on the

second day of trial, and that the error is grounds for a new trial.

2 We disagree because the trial court’s determination regarding

Tecmire’s status did not prejudice LFI.

¶7 Third, LFI challenges the jury’s damage award on two

grounds. LFI contends that the Suydams’ counsel impermissibly

argued that the jury should calculate damages for physical

impairment or disfigurement on a per diem basis. In addition, LFI

contends that the damage award must be set aside because

Colorado law does not draw a meaningful distinction between those

noneconomic damages that are subject to a statutory cap and

noneconomic damages for physical impairment or disfigurement,

which are not capped. We need not address these arguments,

however, because LFI did not preserve them.

¶8 For the above reasons, we affirm the judgment.

I. The Going-and-Coming Rule

¶9 LFI contends that the trial court reversibly erred by declining

to instruct the jury on the going-and-coming rule, and thereby

failed to provide the jury with the applicable legal rule for assessing

LFI’s principal defense at trial — that Brewer had been driving

home and was not working for LFI when she struck Gary Suydam.

We are not persuaded.

3 A. Standard of Review

¶ 10 A trial court must correctly instruct the jury on all matters of

law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). We review

de novo whether “a particular jury instruction correctly states the

law” and whether the “instructions as a whole accurately informed

the jury of the governing law.” Id. Because trial courts have broad

discretion to fashion the form and style of instructions, we review

“for abuse of discretion a trial court’s decision not to give a

particular jury instruction.” Schuessler v. Wolter, 2012 COA 86,

¶ 10, 310 P.3d 151, 158; see Vista Resorts, Inc. v. Goodyear Tire &

Rubber Co., 117 P.3d 60, 70 (Colo. App. 2004) (“When instructing

the jury in a civil case, the trial court shall use those instructions

contained in the Colorado Jury Instruction (CJI) that apply to the

evidence under the prevailing law. The court’s rejection of

instructions not contained in CJI is reviewed for abuse of

discretion.”) (citation omitted). “A court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, unfair, or when it

misapplies the law.” Nibert v. Geico Cas. Co., 2017 COA 23, ¶ 8, ___

P.3d ___, ___.

4 B. Legal Authority

1. Nonstandard Jury Instructions

¶ 11 A trial court does not abuse its discretion by rejecting a

tendered jury instruction lacking evidentiary support. Melton v.

Larrabee, 832 P.2d 1069, 1072 (Colo. App. 1992). “A party is

entitled to a jury instruction only when it is supported by the

evidence . . . . Further, there must be more than a mere scintilla of

evidence to support an instruction.” Id. (citations omitted); see

Devenyns v. Hartig, 983 P.2d 63, 70 (Colo. App. 1998) (affirming

trial court’s refusal to give a jury instruction that lacked evidentiary

support).

¶ 12 Moreover, “[t]he trial court may not assume the role of an

advocate and bears no responsibility to redraft tendered civil

instructions to correct errors in those instructions.” Garhart ex rel.

Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 587 (Colo.

2004); see Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380,

1384-85 (Colo. 1998) (holding that requiring a trial court to redraft

incorrect civil instructions “would be tantamount to interjecting the

trial judge into the strategic decision-making of both parties in

every trial”); cf. Short v. Kinkade, 685 P.2d 210, 211-12 (Colo. App.

5 1983) (reversing trial court’s refusal to modify pattern instruction

because the proposed modification “sufficiently informed the trial

court of plaintiff’s position to trigger the trial court’s duty to modify

the draft instruction and to instruct the jury correctly on the

applicable law”).

2. The Respondeat Superior Doctrine and the “Going-and-Coming” Rule

¶ 13 Under the doctrine of respondeat superior, an employer is

liable for torts committed by its employee while acting within the

scope of his or her employment. Stokes v. Denver Newspaper

Agency, LLP, 159 P.3d 691, 693 (Colo. App. 2006). “The employer is

liable if the employee’s conduct was motivated by an intent to serve

the employer’s interests and connected to acts the employee was

authorized to perform.” Id.

¶ 14 Respondeat superior rests on the theory that “the employee

acts on behalf of the employer when the employee is within the

scope of his or her employment.” Raleigh v. Performance Plumbing

& Heating, 130 P.3d 1011, 1019 (Colo. 2006). Because an

“employer has the right to control the employee’s performance”

within the scope of employment, the employer is held liable for the

6 employee’s acts. Daly v. Aspen Ctr. for Women’s Health, Inc., 134

P.3d 450, 452 (Colo. 2005).

¶ 15 “The question of whether an employee [wa]s acting within the

scope of the employment is a question of fact . . . .” Raleigh, 130

P.3d at 1019.

¶ 16 Respondent superior cases often involve a factual dispute

regarding whether the employee was acting within the scope of his

or her employment at the time of the act that injured the plaintiff.

¶ 17 The going-and-coming rule informs the scope of the

employment relationship in cases where the employee was

commuting between work and home or another personal

destination at the time of the injury to the plaintiff. Stokes, 159

P.3d at 693; Beeson v. Kelran Constructors, Inc., 43 Colo. App. 505,

507, 608 P.2d 369, 371 (1979); see Pierson v. Helmerich & Payne

Int’l Drilling Co., 209 Cal. Rptr. 3d 222, 230 (Ct. App. 2016) (“The

going and coming rule is used in tort law to determine the scope of

employment for purposes of respondeat superior liability.”).

¶ 18 The Colorado version of the going-and-coming rule provides

that “an employee traveling from . . . work to his home or other

personal destination, after completing his day’s work, cannot

7 ordinarily be regarded as acting in the scope of his employment so

as to charge the employer for the employee’s negligence in the

operation of the [employee’s] car.” Beeson, 43 Colo. App. at 507,

608 P.2d at 371 (quoting Balise v. Underwood, 428 P.2d 573, 577

(Wash. 1967)).

¶ 19 The rule has several exceptions, including when “the employee

was engaged in an[] act connected to his work or [was] furthering

[the employer’s] interests” at the time of the injury-causing conduct.

Stokes, 159 P.3d at 696; see also Engler v. Gulf Interstate Eng’g,

Inc., 258 P.3d 304, 310 n.9 (Ariz. Ct. App. 2011) (holding that the

going-and-coming rule does not apply where “the employee’s trip

was of such character or importance that it would have

necessitated a trip by someone else if the employee had not handled

it in combination with his otherwise personal journey to or from

work”), aff’d, 280 P.3d 599 (Ariz. 2012); Anderson v. Pac. Gas &

Elec. Co., 17 Cal. Rptr. 2d 534, 536 (Ct. App. 1993) (“Generally, an

exception to the going-and-coming rule will be found when the

employer derives some incidental benefit from the employee’s trip.”).

8 C. The Evidence Showed that Brewer Was Acting Within the Scope of Her Employment, and Was Not Driving Home or to Another Personal Destination, at the Time Her Vehicle Struck Gary Suydam

1. The Testimony Regarding Brewer’s Actions on the Day of Gary Suydam’s Injury

¶ 20 A significant portion of the trial focused on whether Brewer

was acting within the scope of her employment with LFI when her

vehicle struck Gary Suydam. LFI is a temporary employment

company that provides workers for LFI’s customers. The parties

agreed that, at the time of the accident, Brewer was driving from the

job site of an LFI customer to one of LFI’s offices.

¶ 21 The undisputed evidence showed that, at that time, Brewer

was transporting two other LFI employees, LFI equipment, and a

work order documenting the number of hours the three LFI

employees had worked that day and containing information about

the customer. Most significantly, the work order included the

customer’s personnel requirements for the following day. Brewer

testified as follows:

• On the date of the incident, she arrived at LFI’s office and

waited for a job assignment. Initially, she told LFI that

she did not have a vehicle, but after waiting for work for

9 approximately three hours while other employees with

vehicles received assignments, she informed LFI that she

had a vehicle. LFI promptly gave her an assignment.

(LFI maintained separate lists for employees with and

without access to a vehicle.)

• As part of the assignment, she was to drive herself and

two other LFI employees to and from the job site.

• One of the other employees left an identification card at

LFI’s office as collateral for the equipment he borrowed

from LFI for the day.

• Before she concluded her work for the day, she was

required to return LFI’s equipment and the completed

work order to LFI’s office.

• LFI provided Brewer with directions from its office to the

job site. She was following those directions in the reverse

direction when her vehicle struck Gary Suydam.

• After the collision, she drove to LFI’s office to return the

equipment and pick up her paycheck.

¶ 22 During the defense case, LFI representatives testified that

10 • LFI does not favor employees with vehicles when

distributing job assignments and does not require

employees with vehicles to drive other employees without

vehicles to a job site.

• LFI’s written transportation policy, which Brewer signed,

stated that employees shall “provide transportation from

[LFI] to the customer’s premises or job site,” which LFI’s

witnesses interpreted to mean that it “is entirely up to

the employees” how they get to and from a job site.

• LFI does not control the route employees take while

commuting, reimburse them for mileage or the cost of

public transportation while commuting, or encourage

them to carpool.

• LFI pays its employees only for the time they are working

at a job site, and not for the time they spend traveling to

or from the site.

• LFI does not require its employees to return to its office

after they finish working for the day, even if the

employees are in possession of a completed work order or

LFI equipment.

11 • LFI’s employees can pick up their paychecks at any time.

• The job site at which Brewer and the other employees

had worked that day was approximately one mile from

LFI’s office.

• LFI’s office is near a major bus line and a light rail

station.

• Brewer’s possession of a vehicle was irrelevant to the job

assignment.

¶ 23 LFI’s counsel did not ask Brewer about her next destination

after she stopped at LFI’s office following the incident. No evidence

at trial showed that Brewer was heading home or to another

personal destination at the time her vehicle struck Gary Suydam.

2. LFI’s Proposed Instructions on the Going-and-Coming Rule

¶ 24 Following the close of evidence, LFI tendered two proposed

jury instructions on the going-and-coming rule. LFI’s first tendered

instruction addressed an exception to the going-and-coming rule:

An employee who has finished her duties and is driving home from work at the time of the collision is engaged in an act furthering her employer’s interests when the benefit to her employer is of such character or importance that it would have necessitated a trip by someone else if the employee had not been

12 able to do it in combination with traveling home from work.

¶ 25 LFI’s second tendered instruction read,

An employee is not within the scope and course of employment when she has finished with her duties and is driving home from work at the time of the collision unless at the time of the collision she is also engaged in an act furthering her employer’s interests.

As these quotes indicate, both of LFI’s proposed instructions

referred to “driving home from work.”

¶ 26 After the Suydams’ counsel objected that LFI’s proposed

instructions did not fit the evidence because Brewer was not driving

home at the time of the accident, the trial court summarily rejected

LFI’s tendered instructions. Instead, the trial court gave an

instruction based on the standard scope of work instruction.

CJI-Civ. 8:9 (2020) (stock instruction on “Scope of Authority of

Agent”). The court’s scope of work instruction stated that

Chelsea Brewer was acting within the scope of her employment with [LFI] when Chelsea Brewer was doing work that was:

1. Assigned by [LFI]; or

2. Proper, usual, and necessary to accomplish the assigned work; or

13 3. Customary in the particular trade or business to accomplish the assigned work.

¶ 27 The court also gave an instruction on the parties’ claims and

defenses. That instruction stated, in part, that

LFI Fort Pierce denies that Chelsea Brewer was acting within the course and scope of her employment at the time of the accident.

....

You are to determine whether Chelsea Brewer was acting in the course and scope of her employment with LFI Fort Pierce at the time of the accident.

¶ 28 The jury expressly found that Brewer was acting within the

scope of her employment with LFI at the time her vehicle struck

Gary Suydam.

D. The Trial Court Did Not Abuse Its Discretion by Declining to Instruct the Jury on the Going-and-Coming Rule

¶ 29 The trial court did not abuse its discretion by rejecting LFI’s

tendered going-and-coming instructions for two reasons. First, the

evidence introduced at trial showed that Brewer was not driving

home or to another personal destination at the time her vehicle

struck Gary Suydam and thus did not support LFI’s proposed

instructions. Second, the scope of work instruction that the trial

court gave the jury accurately stated the law applicable to the issue

14 of whether Brewer had been acting within the scope of her

employment at the time of the collision.

1. The Evidence at Trial Did Not Support LFI’s Proposed Jury Instructions

¶ 30 LFI’s proposed jury instructions referred to “[a]n employee

[who] . . . has finished with her duties [and] is driving home from

work at the time of the collision . . . .” But the evidence showed

that Brewer was not driving home (or to another personal

destination) at the time of the collision. Rather, as noted above, she

was returning to LFI’s office from a job site to which LFI had

assigned her with two other LFI employees, LFI equipment, and a

work order. The work order contained the customer’s personnel

requirements for the following day, which informed LFI how many

employees to send to the customer’s job site the next day.

Obtaining the work order thus provided a more than incidental

benefit to LFI.

¶ 31 The trial court acted within its discretion by rejecting LFI’s

proposed jury instructions because they assumed facts not in the

record evidence. See Devenyns, 983 P.2d at 70; Melton, 832 P.2d at

1072. LFI could not draft a going-and-coming instruction that

15 conformed to the facts because, as noted above, that rule applies

only when an employee is “traveling from . . . work to his home or

other personal destination, after completing his day’s work.”

Beeson, 43 Colo. App. at 507, 608 P.2d at 371 (quoting Balise, 428

P.2d at 577).

¶ 32 The going-and-coming rule, by definition, could not apply here

because no evidence showed that Brewer was driving home or to

another personal destination at the time her vehicle struck Gary

Suydam. And the trial court had no duty to rewrite LFI’s tendered

jury instructions, even if they could have been salvaged through

editing. See Garhart, 95 P.3d at 587.

2. The Court’s Scope of Work Instruction Accurately Stated the Law and Applied to the Evidence

¶ 33 The trial court’s instruction on scope of work accurately stated

the law and was supported by the evidence introduced at trial. The

instruction properly instructed the jury on the law governing scope

of work and “as a whole accurately informed the jury of the

governing law.” Day, 255 P.3d at 1067.

¶ 34 And, as explained above, the evidence showed that LFI derived

a benefit from Brewer’s use of her vehicle at the time of the

16 incident, including Brewer’s delivery of the work order advising LFI

how many employees the customer needed the next day. See

Stokes, 159 P.3d at 693 (“The employer is liable if the employee’s

conduct was motivated by an intent to serve the employer’s

interests and connected to acts the employee was authorized to

perform.”).

¶ 35 For these reasons, we hold that the trial court did not abuse

its discretion by rejecting LFI’s tendered instructions on the

going-and-coming rule.

II. The Change in Tecmire’s Status from Defaulted Defendant to Nonparty at Fault

¶ 36 LFI argues that the trial court reversibly erred when, on the

second day of trial, it changed Tecmire’s status from a defaulted

defendant to a nonparty at fault (the Tecmire ruling). LFI asserts

that the Tecmire ruling unfairly prejudiced LFI, and requires a new

trial, because the ruling improperly (1) shifted the burden of proving

Tecmire’s liability from the Suydams to LFI; (2) gave the Suydams

the opportunity “to excuse Tecmire for his negligence through

expert opinion and argument”; and (3) enabled the Suydams’

17 counsel “to make prejudicial arguments in closing urging the jury to

maximize the share of damages apportioned vicariously to LFI.”

¶ 37 We disagree that the trial court erred because, at the

beginning of trial, the trial court instructed the jury that Tecmire

was liable to the Suydams and a cause of their damages. In light of

this instruction, the Tecmire ruling did not prejudice LFI.

A. Standard of Review

¶ 38 We review de novo a trial court’s determination of whether a

person is a defendant or a nonparty. See Pedge v. RM Holdings,

Inc., 75 P.3d 1126, 1128 (Colo. App. 2002) (holding that appellate

courts review de novo whether a defendant was properly designated

a nonparty at fault).

B. Legal Authority

1. Designation of a Nonparty at Fault

¶ 39 In Colorado, defendants in negligence actions are generally

liable only for their own percentage share of the damages awardable

to the plaintiff. Stone v. Satriana, 41 P.3d 705, 708-09 (Colo. 2002).

¶ 40 Colorado abolished the concept of joint and several liability in

tort cases. Under that concept, each defendant, regardless of fault,

could be held liable for the entire amount of the plaintiff’s damages.

18 Slack v. Farmers Ins. Exch., 5 P.3d 280, 286 (Colo. 2000). In place

of the doctrine of joint and several liability, the General Assembly

adopted section 13-21-111.5(1), C.R.S. 2019, which provides that

[i]n 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 fault attributable to such defendant that produced the claimed injury, death, damage, or loss . . . .

See Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 187-88 (Colo.

2009). (The doctrine of joint liability survives in conspiracy cases.

Defendants who “consciously conspire and deliberately pursue a

common plan or design to commit a tortious act” may still be held

jointly liable. § 13-21-111.5(4). But joint liability is not an issue in

this case because the Suydams did not allege a conspiracy.)

¶ 41 Under section 13-21-111.5(3), a jury may consider the

percentage fault of a nonparty in determining the percentage fault

of a defendant. In negligence cases involving multiple defendants,

“each of [the] several wrongdoers is liable for only a portion of a

plaintiff’s injuries, calculated according to that wrongdoer’s

percentage of fault,” even if one or more of the wrongdoers is not a

19 party. Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215, 217

(Colo. App. 1992); see Martin, 209 P.3d at 187-88.

¶ 42 If the plaintiff chooses not to join a potentially liable

wrongdoer as a defendant, section 13-21-111.5(3)(b) allows a

defendant to designate the wrongdoer as a nonparty at fault for the

purpose of apportioning liability. See Thompson v. Colo. & E. R.R.

Co., 852 P.2d 1328, 1329 (Colo. App. 1993). A defendant has a

financial incentive to minimize its own percentage of negligence or

fault by informing the jury of all persons who are potentially liable

for the plaintiff’s damages.

¶ 43 To designate a nonparty, a defendant must file a notice

identifying the nonparty and providing a brief statement of the basis

for believing the nonparty is at fault. Id.; see § 13-21-111.5(3)(b).

The notice must be filed “within ninety days following

commencement of the action unless the court determines that a

longer period is necessary.” § 13-21-111.5(3)(b). “The designation

requirement has been strictly construed.” Thompson, 852 P.2d at

1329.

¶ 44 An argument that a nonparty is at fault is an affirmative

defense because it allows the defendant to reduce its liability by

20 “proving that the blameworthy conduct of other parties or

nonparties also caused the injury.” Ronald M. Sandgrund &

Jennifer A. Seidman, Deconstructing Construction Defect Fault

Allocation and Damages Apportionment—Part I, 40 Colo. Law. 37,

40-41 (Nov. 2011); Ochoa v. Vered, 212 P.3d 963, 972 (Colo. App.

2009).

¶ 45 Where a defendant has designated one or more nonparties at

fault, the “finder of fact is required to return a special verdict . . .

determining the percentage of negligence or fault attributable to

each of the parties” and any properly designated nonparties.

Thompson, 852 P.2d at 1329; see § 13-21-111.5(2).

2. Entry of Default

¶ 46 When “a party against whom a judgment for affirmative relief

is sought has failed to plead or otherwise defend . . ., the clerk shall

enter his default.” C.R.C.P. 55(a). “[A]n entry of default establishes

a party’s liability [and] [t]he allegations in the plaintiff’s complaint

[concerning the defaulting party] are also deemed admitted.”

Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M, ¶ 22, 378 P.3d

797, 804 (citations omitted). An entry of default, however, is not

“an admission regarding damages.” Id. at ¶ 23, 378 P.3d at 804.

21 And an entry of default is not a default judgment, which a party can

obtain by following the procedures described in C.R.C.P. 55(b) and

C.R.C.P. 121, section 1-14.

¶ 47 A court may set aside an entry of default for “good cause.”

C.R.C.P. 55(c).

3. Dismissal of Defendants by Notice

¶ 48 “[A] plaintiff is the master of his complaint,” Gadeco, LLC v.

Grynberg, 2018 CO 22, ¶ 17, 415 P.3d 323, 329, and has the option

to name as defendants any or all potentially liable parties, see, e.g.,

C.R.C.P. 20(a). A plaintiff may also dismiss “an action . . . without

order of court . . . [b]y filing a notice of dismissal at any time before

filing or service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs.” C.R.C.P. 41(a)(1)(A). If

Rule 41(a)(1)(A) does not apply, and the parties do not stipulate to

dismissal of the defendant, a plaintiff must obtain a court order

under Rule 41(a)(2) to dismiss the action.

¶ 49 Because Rule 41(a)(1)(A) refers to dismissal of “an action,” it is

unclear whether a plaintiff may dismiss by notice fewer than all the

defendants in a case. Prior Colorado cases do not address whether

a plaintiff may dismiss claims against certain, but not all,

22 defendants in an action through a Rule 41(a)(1)(A) notice. The

federal circuits have split on this issue when interpreting the

analogous federal rule. Compare Harvey Aluminum, Inc. v. Am.

Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953) (“Rule 41(a)[(1)]

provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the

wor[d] ‘action’ as used in the Rules denotes the entire controversy,

whereas ‘claim’ refers to what has traditionally been termed ‘cause

of action.’”), and Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785

(6th Cir. 1961) (following the reasoning of Harvey Aluminum), with

Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 547

(4th Cir. 1993) (“[W]e reject the Harvey Aluminum exception to the

plain meaning of Rule 41(a)(1)(i)’s text.”), and Plains Growers v.

Ickes-Braun Glasshouses, Inc., 474 F.2d 250, 255 (5th Cir. 1973)

(stating that the cases rejecting Harvey Aluminum’s interpretation of

Fed. R. Civ. P. 41 took the “better view” and holding that a party

may dismiss by notice “such of the defendants as have not served

an answer or motion for summary judgment, despite the fact that

the case might remain pending against other defendants”). See

Grear v. Mulvihill, 207 P.3d 918, 922 (Colo. App. 2009) (holding that

cases interpreting a Federal Rule of Civil Procedure that is

23 analogous to a Colorado Rule of Civil Procedure are persuasive

authority).

C. The Suydams’ Efforts to Change Tecmire’s Status from a Defaulted Defendant to a Nonparty

¶ 50 Although the procedural history of the Suydams’ efforts to

change Tecmire’s status from that of defaulted defendant to

nonparty is convoluted, a summary of that history is necessary to

understand why LFI contends that the change in Tecmire’s status

resulted in prejudice to LFI and is grounds for a new trial.

¶ 51 In the months leading up to, and during, the trial, the

Suydams took several steps, detailed below, to dismiss Tecmire as a

defendant. Recall that, early in the case, the Suydams obtained an

entry of default against Tecmire pursuant to C.R.C.P. 55(a) after he

failed to respond to their complaint.

¶ 52 The sequence of events began with the Suydams’ designation

of Anne Stodola as an expert witness on engineering, mechanical

engineering, and accident reconstruction. LFI moved to exclude

Stodola’s opinion testimony that Tecmire “had insufficient time to

avoid the collision,” which, LFI argued, would establish that

Tecmire was not negligent. LFI asserted that this opinion testimony

24 was inconsistent with the legal effect of the entry of default against

Tecmire — that he was liable to the Suydams — and improperly

raised a defense on behalf of Tecmire. The court granted the

motion.

¶ 53 Four days later, the Suydams filed a motion to dismiss

Tecmire as a defendant under C.R.C.P. 41(a)(2), which, as explained

above, allows for dismissal of actions by court order. LFI opposed

the motion. LFI argued that, if the court dismissed Tecmire as a

party, the court should “impose as a reasonable term and condition

of dismissal the continued effect of the entry of default . . . as law of

the case.” This meant the court should rule that Tecmire was liable

to the Suydams even though he was no longer a defaulted

defendant. See Dickinson, ¶ 22, 378 P.3d at 804.

¶ 54 After LFI filed its opposition to the Suydams’ motion for

dismissal of their claims against Tecmire, the Suydams withdrew

the motion. In its place, the Suydams filed a notice to dismiss

Tecmire as a party pursuant to Rule 41(a)(1)(A). As explained

above, this type of notice effectuates the dismissal of actions (and

possibly individual claims) without the need for a court order.

25 ¶ 55 The next relevant step occurred when the Suydams moved for

reconsideration of the court’s order excluding Stodola’s expert

testimony. The court reversed itself and granted the motion, ruling

that Stodola’s testimony was of “central importance to the disputed

claims and affirmative defenses in this action.” Despite the

Suydams’ filing of the Rule 41(a)(1)(A) notice, in granting the

Suydams’ motion for reconsideration, the court referred to Tecmire

as a defendant and stated that it “would be improper for an expert

to misrepresent . . . Tecmire’s defaulted status pursuant to

C.R.C.P. 55(a) to the jury . . . .” The court concluded that any

potential prejudice resulting from Stodola’s testimony could be

“effectively resolved through appropriate jury instructions.”

¶ 56 On the first day of trial, counsel for the Suydams and counsel

for Brewer and LFI presented arguments on the admissibility of

Tecmire’s alleged statement to a police officer that Gary Suydam

had run into Brewer. The admissibility of the statement, which

LFI’s counsel said contradicted Stodola’s opinion that Tecmire had

no time to stop before colliding with Gary Suydam, rested on

whether Tecmire was still a defendant. LFI’s counsel asserted that

Tecmire remained a defendant and, therefore, Tecmire’s out-of-

26 court statement was an admissible admission by a party-opponent.

Counsel for the Suydams disagreed, asserting that the statement

was inadmissible hearsay because they had dismissed Tecmire from

the case. (The admissibility of the statement is not an issue in this

appeal.)

¶ 57 The court said that Tecmire remained a party because he had

not been dismissed from the case. Later that day, counsel for the

Suydams asked the court to rule that Tecmire was no longer a

defendant. The court took the matter under advisement and the

trial proceeded.

¶ 58 One of the court’s first statements to the jury addressed

Tecmire’s fault. The court read the jury this instruction before the

lawyers made their opening statements:

The Court has determined as a matter of law that [Brewer] and [Tecmire] are at fault and a cause of the injuries and the losses claimed by the [Suydams]. Because the Court has determined these issues as a matter of law, you must accept them as true. The only issue to remain for the jury to determine as to [Brewer]’s fault and [Tecmire]’s fault is the nature and extent of injuries and amount of damages caused by [Brewer’s and Tecmire’s] fault, if any.

27 ¶ 59 In his opening statement, LFI’s counsel reminded the jury that

the court had already determined that Tecmire was at fault for the

Suydams’ injuries and that the jury’s task was to apportion

damages between Brewer (and, thus, LFI) and Tecmire.

¶ 60 The following day, the court issued the Tecmire ruling, stating,

I believe it’s necessary for this jury to be able to make a determination of relevant fault between [Brewer and Tecmire]. [They] were both . . . causes — or contributors of causing the injuries to the plaintiff. . . . It’s up to the jury to determine the relevant fault of each of those individuals. . . . As I understand, at [the Suydams’] request, I have to treat him as a nonparty. So that will be my order as to that.

¶ 61 As of the Tecmire ruling, if not when the Suydams filed their

Rule 41(a)(1)(A) notice, Tecmire was a nonparty and no longer a

defaulted defendant. After making the Tecmire ruling, the court did

not rescind or modify the instruction it had given the jury the

previous day regarding Tecmire’s liability and role in causing the

Suydams’ damages. By instructing the jury that Tecmire, now a

nonparty, was liable to the Suydams, the court, in effect, designated

Tecmire as a nonparty at fault after the deadline for designating

nonparties at fault had passed.

28 ¶ 62 Later in the trial, Stodola opined that Tecmire “did not have

time to stop at all [before colliding with Suydam]. He didn’t even

have time to stop and react to it.” She testified that Brewer, and

not Tecmire, was at fault for the collision. On cross-examination,

however, she acknowledged that the trial court had determined that

Tecmire was negligent, and thus at fault, for the accident.

¶ 63 During closing argument, the Suydams’ counsel minimized

Tecmire’s role in the accident by asserting that Brewer had placed

Tecmire in an “emergency situation that did not give him adequate

time to avoid [Suydam].” Counsel for the Suydams told the jury

that “the percentage you assign to Chelsea Brewer is the percentage

for which LFI is responsible. Any portion that you assign to Mr.

Tecmire, LFI is not responsible for.”

¶ 64 LFI’s counsel reminded the jury in his closing argument that

the trial court “ha[d] already determined that Mr. Tecmire was

negligent or at fault” and specifically referenced the jury instruction

the court had given on the first day of trial. LFI’s counsel asked the

jury to apportion the majority of the Suydams’ damages to Tecmire,

arguing that his collision with Gary Suydam, and not his collision

with Brewer, had caused Gary Suydam’s injuries.

29 ¶ 65 In its special verdict form, the jury first found that Brewer was

acting within the scope of her employment with LFI at the time her

vehicle struck Gary Suydam and, second, found that LFI was liable

for Brewer’s negligence. The jury apportioned ninety percent fault

to Brewer (and by extension LFI) and ten percent fault to Tecmire.

D. Even if the Trial Court Erred by Changing Tecmire’s Status from a Defaulted Defendant to a Nonparty at Fault, the Error Did Not Prejudice LFI

1. The Tecmire Ruling Did Not Shift the Burden of Proving Tecmire’s Liability from the Suydams to LFI

¶ 66 LFI argues that the Tecmire ruling improperly shifted its

burden of proof in the middle of the trial. LFI contends that,

because the designation of a nonparty at fault operates as an

affirmative defense, once Tecmire became a nonparty at fault,

rather than a defaulted defendant, LFI bore the burden of proving

Tecmire’s liability. See § 13-21-111.5(1). For this reason, LFI

argues that the Tecmire ruling “reversed the burden of proof on

Tecmire’s liability” and forced LFI to “to prove Tecmire’s negligence

and liability, facts the parties had assumed as established for more

than a year.” See Rains v. Barber, 2018 CO 61, ¶ 14, 420 P.3d 969,

973 (explaining that shifting a party’s burden of proof can

30 constitute an “irregularity warranting a new trial” under C.R.C.P.

59(d)(1)).

¶ 67 At no time during the trial, however, did LFI bear the burden

of proving Tecmire’s “negligence and liability” because the trial

court instructed the jury on the first day of trial that Tecmire was

liable to the Suydams and a cause of their damages. Thus, from

the beginning of the trial, the jury knew that the court had

determined Tecmire’s liability and that its role as to Tecmire was

limited to deciding his percentage of liability for the Suydams’

damages. For this reason, LFI was not required to prove Tecmire’s

liability on the first day of trial, when the court treated Tecmire as a

defaulted defendant, or on the last day of trial, when the court

treated Tecmire as a nonparty at fault.

¶ 68 LFI’s counsel echoed the trial court’s initial instructions in his

opening statement. He reminded the jury that the court had

determined that Tecmire was “at fault for causing [the] accident,

and that his fault was a cause of and contributed to Mr. Suydam’s

injuries, life care needs, loss of income, all of the impairment, all of

that.” He told the jury that, because Tecmire’s negligence had been

established and there was no dispute he was a cause of the

31 Suydams’ injuries, the jury’s task was limited to “apportion[ing]

damages, meaning you determine what injuries were caused by the

first impact when [Suydam] ran into the side of Ms. Brewer’s car,

and which injuries . . . were the result of Mr. Tecmire[] . . . .”

¶ 69 Similarly, in his closing argument, LFI’s counsel told the jury

that the court “has determined as a matter of law that defendant

Chelsea Brewer and nonparty Stephen Tecmire are at fault and that

their fault was a cause of the injuries, damages, and losses claimed

by plaintiffs Gary Suydam and Lisa Linch-Suydam.” A comparison

of LFI’s opening statement and closing argument demonstrates that

the Tecmire ruling did not place any additional burdens on LFI.

¶ 70 Further, the Tecmire ruling alone did not require LFI to prove

Tecmire’s percentage of liability to the Suydams. At the time

Tecmire was a defaulting defendant, LFI had a significant financial

incentive to argue that Tecmire — and not Brewer, its employee —

was liable for the vast majority of the Suydams’ damages. And LFI

surely recognized that the Suydams would argue the opposite point

— that LFI, the only corporate defendant, should be held liable for

the vast majority of the Suydams’ damages. Thus, at all times

during the trial, LFI had a significant financial incentive to argue to

32 the jury that Tecmire was liable for the vast majority of the

Suydams’ damages.

¶ 71 Because the court instructed the jury at the beginning and the

end of the trial that Tecmire was negligent and a cause of the

Suydams’ injuries — points that LFI’s counsel echoed in his

opening statement and closing argument — we disagree with LFI

that the Tecmire ruling prejudiced LFI and is therefore grounds for

a new trial.

¶ 72 For these reasons, we conclude that, even if the court erred by

dismissing the Suydams’ claims against Tecmire on the second day

of trial, the error was harmless because it did not result in unfair

prejudice to LFI. See Clark v. Buhring, 761 P.2d 266, 268 (Colo.

App. 1988).

2. The Tecmire Ruling Did Not Excuse Tecmire for His Negligence

¶ 73 LFI additionally argues that, as a consequence of the Tecmire

ruling, Stodola was able to “opin[e] that Tecmire could not have

avoided the collision and was blameless for it.”

¶ 74 As explained above, Stodola’s testimony was the subject of two

pretrial motions. Shortly before trial, the trial court ruled that

Stodola could present her opinions at trial. In its ruling, the court

33 noted that Stodola’s testimony was of “central importance to the

disputed claims and affirmative defenses,” including the defendants’

respective liability to the Suydams.

¶ 75 LFI does not appear to challenge this ruling. But even if LFI

argues that the trial court erred by deciding before trial that

Stodola’s opinion testimony was admissible, the court made clear in

its ruling that it would not permit Stodola to misrepresent Tecmire’s

default. The court said that any potential prejudice to LFI resulting

from Stodola’s testimony could be “effectively resolved through

appropriate jury instructions.”

¶ 76 The court’s statements proved accurate. First, Stodola

acknowledged on cross-examination that the court had previously

determined that Tecmire was at fault for the accident. Second, the

court instructed the jurors that Tecmire was liable for, and a cause

of, the Suydams’ injuries.

¶ 77 For these reasons, Stodola’s testimony did not prejudice LFI,

regardless of whether Stodola was able to present her opinions only

because of the Tecmire ruling.

34 3. The Tecmire Ruling Did Not Allow the Suydams’ Counsel to Make Prejudicial Arguments in His Closing

¶ 78 LFI contends that, by virtue of the Tecmire ruling, counsel for

the Suydams was able to make prejudicial assertions about LFI’s

liability in his closing argument.

¶ 79 Specifically, LFI argues that the Tecmire ruling allowed the

Suydams’ counsel to violate section 13-21-111.5(5), which states

that “the jury shall not be informed as to the effect of its finding as

to the allocation of fault among two or more defendants.” LFI

contends that the court’s classification of Tecmire as a nonparty on

the second day of trial improperly opened the door to the Suydams’

counsel’s argument in closing that the jury should award the bulk

of damages against LFI. It asserts that, but for the Tecmire ruling,

the Suydams’ counsel could not have argued that “[a]ny portion

that you assign to Mr. Tecmire, LFI is not responsible for. So it is

only the percentage of fault of Chelsea Brewer for which LFI is

responsible.”

¶ 80 But even if the Tecmire ruling permitted counsel for the

Suydams to violate section 13-21-111.5(5) in his closing argument,

LFI’s counsel did not contemporaneously object when, in closing,

35 the Suydams’ attorney commented on Tecmire’s and LFI’s share of

the Suydams’ damages. “If a party fails to make a

contemporaneous objection to closing argument, objection to its

propriety is waived.” Salazar v. Am. Sterilizer Co., 5 P.3d 357, 368

(Colo. App. 2000). LFI cannot attack the Tecmire ruling based on a

statement in the Suydams’ closing argument to which its attorney

did not object.

4. We Need Not Decide Whether the Rule 41(a)(1)(A) Notice or the Tecmire Ruling Changed Tecmire’s Status from a Defaulted Defendant to a Nonparty

¶ 81 Because we hold that the court’s jury instruction on Tecmire’s

liability avoided any prejudice to LFI resulting from the Tecmire

ruling, we need not determine whether the Suydams’ Rule

41(a)(1)(A) notice or the Tecmire ruling effected the change in

Tecmire’s status. Regardless of the date on which the Suydams’

claims against Tecmire were dismissed, the court instructed the

jury from the inception of the trial that Tecmire was liable for, and a

cause of, the Suydams’ damages.

¶ 82 For these reasons, we hold that the Tecmire ruling did not

prejudice LFI and, thus, was not an “irregularity in the proceedings”

that entitled LFI to a new trial. See C.R.C.P. 59(d)(1).

36 III. LFI Did Not Preserve Its Challenge to the Jury’s Award of Damages for Physical Impairment and Disfigurement

¶ 83 LFI challenges the jury’s award of more than $32 million to

Suydam for “physical impairment or disfigurement” because (1) it

allegedly rests on an improper per diem argument and

(2) Colorado’s legal framework for physical impairment damages is

unconstitutionally vague. We do not consider these arguments

because LFI failed to preserve them.

A. The Suydams’ Per Diem Argument

¶ 84 LFI contends that the damages award was improper because

the jury relied “solely on an arbitrary ‘per diem’ argument” and,

therefore, the award was “unsupported by the evidence.”

¶ 85 In closing argument, the Suydams’ counsel asserted that Gary

Suydam should receive more than $32 million in damages as

compensation for his physical impairment or disfigurement.

Counsel noted that the experts who had testified made “somewhere

around $350 an hour to work on this case.” He then stated,

So let’s say we were to say, [Suydam], at $200 an hour, and we’ll say 16 hours a day. We know that he has spasms in the middle of the night and that he can’t control them, but we’ll just say 16 hours, not 24 hours. And there are 365 days in a year. And there is a life

37 expectancy in the instruction that you received of 27.2 years. And I’ve already done the math to multiply these: $31,769,600 for impairment. . . . That is a fair and just amount in this case.

¶ 86 LFI’s counsel did not contemporaneously object to this

argument, however. For this reason, LFI did not preserve its

challenge to the Suydams’ per diem damages argument. See

Salazar, 5 P.3d at 368.

B. The Colorado Statute Authorizing Awards for Physical Impairment or Disfigurement

¶ 87 LFI asserts that, under Colorado law, there is no meaningful

distinction between damages for “nonpecuniary harm . . . including

pain and suffering, inconvenience, emotional stress, and

impairment of the quality of life,” which are subject to a cap, see

§ 13-21-102.5(2)(b), C.R.S. 2019, and damages for physical

impairment or disfigurement, which are not capped, see § 13-21-

102.5(5). Thus, LFI argues, juries and judges are forced “to

speculate whether damages should be assigned to ‘impairment of

the quality of life,’ on the one hand, or ‘physical impairment’ on the

other.” LFI asserts that this lack of clear standards allows plaintiffs

to “avoid statutory caps on noneconomic damages through a

38 ‘labeling exercise’” to categorize damages for impairment of quality

of life as damages for physical impairment.

¶ 88 But, at trial, LFI did not challenge the award of damages for

physical impairment or disfigurement damages to Gary Suydam.

LFI’s counsel even acknowledged that such damages were

appropriate given Gary Suydam’s serious injuries.

¶ 89 During the jury instruction conference, LFI’s counsel did not

object to instructing the jury on damages for physical impairment

or disfigurement. LFI’s counsel’s objection to the Suydams’

proposed instruction on such damages narrowly focused on the

tone of the instruction, which LFI’s counsel argued read “like a

closing argument.”

¶ 90 Notably, during the instruction conference, LFI’s counsel said,

“[i]f you say permanent impairment is, and define it, we would be

amenable to that.” Counsel for LFI further asserted that, “in this

particular case, with Gary Suydam, it is so obvious that I don’t

think [a definitional instruction is] necessary.” Moreover, LFI’s

counsel did not object or otherwise respond when the judge said, “I

don’t think there is any dispute about damages.” And later during

the instruction conference, LFI’s counsel advised the court that LFI

39 had no objections regarding the instructions or verdict forms,

except as to the court’s rejection of LFI’s proposed instructions on

the going-and-coming rule.

¶ 91 The instructions and verdict forms broke down Gary Suydam’s

damages into only two categories — damages for economic loss and

damages for physical impairment or disfigurement. LFI’s counsel

did not tender a proposed instruction or verdict form that would

have allowed the jury to award the type of noneconomic damages

that are subject to the statutory cap, rather than damages for

physical impairment or disfigurement.

¶ 92 In light of this record, LFI failed to preserve its argument that

there is no meaningful distinction between the noneconomic

damages subject to the cap and damages for physical impairment

or disfigurement. “C.R.C.P. 51 requires parties to object to alleged

errors in instructions before they are given to the jury. ‘Only the

grounds so specified shall be considered . . . on appeal.’ Alleged

errors that are not objected to are waived.” Harris Grp., Inc. v.

Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009) (quoting C.R.C.P.

51).

40 ¶ 93 For these reasons, we do not reach the merits of LFI’s

arguments regarding the damage award to the Suydams.

IV. Conclusion

¶ 94 The trial court’s judgment is affirmed.

JUDGE NAVARRO and JUDGE TOW concur.