Ablin v. Richard O'Brien Plastering Co.

• Decision Date: 02 June 1994
• Docket Number: No. 93CA0880,93CA0880
• Parties: David ABLIN and Debrah Ablin Ferley, Plaintiffs-Appellants, v. RICHARD O'BRIEN PLASTERING COMPANY, O'Brien Construction Services, Inc., Richard O'Brien Concrete Pumping, Inc., d/b/a O'Brien Construction Services, Inc., Richard O'Brien Companies, Inc. and Steven Darrell Holland, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 289

885 P.2d 289

David ABLIN and Debrah Ablin Ferley, Plaintiffs-Appellants, v. RICHARD O'BRIEN PLASTERING COMPANY, O'Brien Construction

Services, Inc., Richard O'Brien Concrete Pumping, Inc.,

d/b/a O'Brien Construction Services, Inc., Richard O'Brien

Companies, Inc. and Steven Darrell Holland, Defendants-Appellees.

No. 93CA0880.

Colorado Court of Appeals,

Div. III.

June 2, 1994.

Rehearing Denied July 7, 1994.

Certiorari Denied Dec. 5, 1994.

Sears, Anderson & Swanson, P.C., Victoria C. Swanson, Colorado Springs, for plaintiffs-appellants.

Burg & Eldredge, P.C., Michael S. Burg, Tom Van Buskirk, James D. Kilroy, Denver, for defendants-appellees.

Opinion by Judge KAPELKE.

In this wrongful death action to recover damages for the death of their brother, plaintiffs, David Ablin and Debrah Ablin Ferley, appeal the summary judgment entered in favor of defendants. We affirm.

In their complaint, plaintiffs alleged that their brother, Bruce Ablin, was riding his bicycle when he was struck and killed by a truck driven by an employee of Richard O'Brien Concrete Pumping, Inc. Ablin left no surviving spouse or children, and neither of his parents survived him. Plaintiffs, who are Ablin's closest living relatives, filed this action naming as defendants the driver of the truck, Richard O'Brien Concrete Pumping, Inc., and two related corporate entities.

Defendants filed a motion for summary judgment arguing that plaintiffs, as siblings of the deceased, lacked standing to bring suit under the Colorado Wrongful Death Act, § 13-21-201, et seq., C.R.S. (1987 Repl.Vol. 6A). The trial court granted the motion.

I.

Plaintiffs first contend that the trial court erred in interpreting the Wrongful Death Act to preclude siblings from maintaining wrongful death actions. We disagree.

At the outset, we note that summary judgment is a drastic remedy and should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Roberts v. Holland & Hart, 857 P.2d 492 (Colo.App.1993).

At common law, there was no cause of action for wrongful death. Therefore, such suits may be maintained in Colorado only by virtue of the Wrongful Death Act. Because that act is in derogation of common law, it has been strictly construed. See Herrera v. Glau, 772 P.2d 682 (Colo.App.1989).

Before its amendment in 1988, § 13-21-201(1), C.R.S. (1987 Repl.Vol. 6A) allowed wrongful death actions to be brought by

(a) ... the husband or wife of deceased; or

(b) If there is no husband or wife, or he or she fails to sue within one year after such death, then by the heir or heirs of the deceased; or

(c) If the deceased is a minor or unmarried, then by the father or mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them is dead, then by the survivor. (emphasis added)

The term "heir" as used in the Wrongful Death Act has been narrowly defined. In Hindry v. Holt, 24 Colo. 464, 51 P. 1002 (1897), a niece sought damages for the wrongful death of her uncle upon whom she was financially dependent. Although the niece was an heir at law under the laws of descent and distribution, our supreme court rejected the argument that she was an "heir" as that term is used in the Wrongful Death Act. The court held that, for purposes of that statute, the phrase "heir or heirs" refers solely to lineal descendants of the decedent:

By construing the words 'heir or heirs,' as used in the second subdivision, to mean 'child or children,' the purpose of this character of legislation is carried out, which is to compensate those who suffer pecuniary loss by reason of the death. While, on the other hand, if the words 'heir or heirs' are to be construed as meaning all those who, under the statute of descents and distribution, would be entitled to inherit, then collateral kindred, however remote, who would derive no pecuniary benefit from the continuance of the life of deceased, as well as the direct descendants, may maintain the action,--a result wholly inconsistent with the plain purport and object of the statute. And furthermore, such construction would render the third subdivision wholly useless and unnecessary, since the father and mother would, by our act of descents and distribution, be the heirs in case the deceased was a minor, or unmarried, and, consequently, included within the class of beneficiaries described in the second subdivision.

24 Colo. at 466-67, 51 P. at 1003.

Since Hindry, our supreme court has twice considered the standing of siblings to sue under the Wrongful Death Act. In both Grogan v. Denver & Rio Grande R.R. Co., 56 Colo. 450, 138 P. 764 (1914); and Blom v. United Air Lines, 152 Colo. 486, 382 P.2d 993 (1963), the court held that siblings lack such standing. Thus, since 1897, our supreme court has consistently interpreted the Wrongful Death Act as conferring standing only upon spouses, descendants, and parents of the deceased. See also Herrera v. Glau, supra (decedent's step-brothers, who had been equitably adopted by him, were held not to be "heirs" within the meaning of the Wrongful Death Act).

The General Assembly amended the Wrongful Death Act in 1988 and 1989. The 1988 amendments clarified the provisions of § 13-21-201(1) with respect to a spouse's preferred right to file a wrongful death action during the first year after the death of the deceased. However, neither the language of the amendment nor the legislative history suggests that the amendment was intended to expand the class of persons who have standing. Section 13-21-201(1), C.R.S. (1993 Cum.Supp.).

The 1989 amendments to the Wrongful Death Act created a right to recover non-economic damages in addition to pecuniary damages. Section 13-21-203, C.R.S. (1993 Cum.Supp.). Like the 1988 amendments, however, the 1989 amendments did not enlarge the class of persons who may bring wrongful death actions.

The purpose of the Wrongful Death Act is to provide death benefits to those individuals most likely to suffer pecuniary loss upon the decedent's death. Hindry v. Holt, supra; McGill v. General Motors Corp., 174 Colo. 388, 484 P.2d 790 (1971). The 1989 amendments merely reflect the General Assembly's recognition that survivors are also likely to suffer non-economic losses, which should be compensable in appropriate circumstances.

When the General Assembly reenacts or amends a statutory provision which has been judicially construed, but does not substantively alter the terms of the provision, it is presumed that the General Assembly is familiar with the judicial interpretation and has adopted it as part of the law. Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242 (1979).

Thus, when the 1988 and 1989 amendments to the Wrongful Death Act were adopted, the General Assembly was presumably aware of our supreme court's interpretation of the phrase "heir or heirs" in the context of wrongful death actions. While the General Assembly could, of course, have legislatively modified or abrogated the judicial interpretation of the term "heir or heirs," it did not do so.

Plaintiffs contend, nevertheless, that, because the Wrongful Death Act was amended after the General Assembly had enacted the Colorado Probate Code, the General Assembly must have intended to incorporate into that act the definition of "heirs" contained in the Probate Code, §§ 15-10-210(20) and 15-11-103, C.R.S. (1987 Repl.Vol. 6B). We disagree.

In Hindry v. Holt, supra, our supreme court specifically rejected the contention that the definition of the word "heirs" used in the statute of descent and distribution determines standing to bring wrongful death actions. For the reasons expressed in that opinion, we also reject the contention.

Moreover, if the...