Van Waters & Rogers, Inc. v. Keelan

840 P.2d 1070, 16 Brief Times Rptr. 1839, 1992 Colo. LEXIS 1096, 1992 WL 345829
CourtSupreme Court of Colorado
DecidedNovember 23, 1992
DocketNo. 91SC549
StatusPublished
Cited by96 cases

This text of 840 P.2d 1070 (Van Waters & Rogers, Inc. v. Keelan) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 16 Brief Times Rptr. 1839, 1992 Colo. LEXIS 1096, 1992 WL 345829 (Colo. 1992).

Opinions

Justice LOHR

delivered the Opinion of the Court.

This case arises from an accident in which plaintiff Patrick K. Keelan1 was injured when he was struck by a pallet jack that rolled off the back of a delivery truck. Patrick and Bonnie Keelan brought a negligence action in Denver District Court against Van Waters & Rogers, Inc. (Van Waters), the company that owned the jack. Van Waters conceded liability at trial, and the jury subsequently returned a verdict awarding Patrick Keelan $411,000 and Bonnie Keelan $10,000 in damages. Van Waters opposed the entry of judgment, contending that under section 13-21-111.6, 6A C.R.S. (1987), the verdict should be reduced by the amount that Patrick Keelan would receive in disability benefits pursuant to the State Fire and Police Pension Plan as set out in section 31-30-1007, 12B C.R.S. (1986 & 1992 Supp.).

The trial court rejected Van Waters’ argument and entered a final judgment for $463,284.90, including costs and interest. The Colorado Court of Appeals affirmed the entry of judgment after it determined that Keelan’s disability benefits resulted from a contract that was “entered into and paid for” by both Keelan and the State of Colorado on Keelan’s behalf and, thus, were exempt from the setoff requirement in section 13-21-111.6. Keelan v. Van [1072]*1072Waters & Rogers, Inc., 820 P.2d 1145 (Colo.App.1991). We granted certiorari to review the court of appeals’ interpretation and application of section 13-21-111.6 and now affirm its judgment denying a setoff against the jury’s verdict.

I

Since 1976, Patrick Keelan had worked as a firefighter for the City of Denver. He and his wife had also owned and operated a swimming pool maintenance business, part of which included ordering and supervising the delivery of swimming pool chemicals. Defendant Van Waters is a distributor of swimming pool chemicals. On April 30, 1987, a Van Waters employee delivered chemical supplies to a swimming pool construction site that Keelan was monitoring. As the supplies were being unloaded, a pallet jack weighing approximately 1,200 pounds rolled off the back of the delivery truck and struck Keelan on the head, shoulder, and foot. As a result of his injuries, Keelan was declared occupationally disabled by the Fire and Police Pension Association (FPPA) and began receiving disability payments from a pension fund that the State of Colorado had established for police officers and firefighters. See §§ 31-30-1001 to -1019, 12B C.R.S. (1986 & 1992 Supp.).

In April 1989, the Keelans instituted a negligence action against Van Waters2 in which Patrick Keelan sought damages for medical and therapy expenses, pain and suffering, and loss of his firefighter and swimming pool maintenance careers, and Bonnie Keelan sought damages for loss of consortium. Van Waters conceded its liability at trial and the jury returned a verdict awarding Patrick Keelan $411,000 and Bonnie Keelan $10,000 on their claims against Van Waters. Under section 13-21-111.6, 6A C.R.S. (1987), Van Waters moved that the trial court offset this award by $335,255.81, the then present value of Kee-lan’s disability benefits. The trial court denied the motion after it determined that the disability payments resulted from a contract that was “entered into and paid for” by both Keelan and by the State’s pension fund on Keelan’s behalf and that they were therefore exempt from the set-off requirement of section 13-21-111.6. Consequently, the court entered judgment for the Keelans in the total amount of $463,284.90, including costs and interest.

The court of appeals agreed that Kee-lan’s benefits were within the express exception to the setoff requirement of section 13-21-111.6 and therefore affirmed the trial court’s judgment. Van Waters, 820 P.2d at 1149. The court of appeals specifically determined that Keelan had an employment contract with the City of Denver and that the disability benefits arose from this contract. Id. at 1148. Since it further determined that the benefit was paid for by Keelan, in that he gave consideration in the form of services to the fire department, the court concluded that the setoff under section 13-21-111.6 was correctly denied. Id. at 1149.

Van Waters seeks reversal of that decision, contending that the court of appeals misinterpreted section 13-21-111.6 and erred in holding that Keelan's disability benefits were exempt from the statute’s setoff requirement. We disagree with Van Waters’ argument. We hold that the court of appeals properly construed and applied section 13-21-111.6, and therefore affirm its judgment.

II

A critical factor in determining the impact of section 13-21-111.6 on the jury’s award is the nature of the pension plan from which Keelan’s disability benefits derive. We therefore review those aspects of the State’s pension system that are relevant to our decision.

At the time Keelan began working with the Denver Fire Department in 1976, the firefighter pension system was governed [1073]*1073by sections 31-30-501 to -523, 12B C.R.S. (1986 & 1992 Supp.). Under these statutes, a local “firemen’s pension fund” was established in each city that had a paid fire department and a population of over one hundred thousand people. § 31-30-501. This pension system provided for both regular retirement and disability retirement benefits, §§ 31-30-508; -511, and was funded by several sources, including assessments that were deducted from the salaries of fire department employees. §§ 31-30-503; -504.

In 1979, the Colorado General Assembly created a new pension system called the State Fire and Police Pension Plan (the Plan). Ch. 316, sec. 1, §§ 31-30-1001 to - 1016, 1979 Colo.Sess.Laws 1189-1203. This was a legislative response to a concern that the previous system was actuarially unsound and in need of additional funding to cover accrued liabilities and ongoing service costs. See Peterson v. Fire & Police Pension Ass’n, 759 P.2d 720, 722-23 (Colo.1988), and City of Colorado Springs v. State, 626 P.2d 1122, 1124-25 (Colo.1981), for a review of the statutory history and financial studies leading up to this legislation. The Plan was designed to cover, with limited exceptions, all full-time police officers and firefighters in the state of Colorado who were hired after April 7, 1978. § 31-30-1003(6). Employers had the option of electing affiliation with the new plan. § 31-30-1003(3)(a). In the event that an employer made such an election, the assets of the former local pension sys-tern were transferred to the Plan’s statewide fund. . § 31-30-1003(3)(c). Thereafter, any benefits due to an employee under the former system became payable by the FPPA. Id. Employees who were hired before April 7, 1978, and who worked for an affiliating employer could continue with their existing coverage or could switch to the Plan’s coverage. § 31-30-1003(3)(b). If they chose to switch, however, they waived their rights to receive benefits from their local system.3 Id.

The Plan is administered by the FPPA’s nine-member governing board, which is appointed by the governor and confirmed by the senate. § 31-30-1004(2).

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840 P.2d 1070, 16 Brief Times Rptr. 1839, 1992 Colo. LEXIS 1096, 1992 WL 345829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-waters-rogers-inc-v-keelan-colo-1992.