Barnhart v. Am. Furniture Warehouse Co.

• Decision Date: 21 November 2013
• Docket Number: Court of Appeals No. 13CA0085
• Citation: 2013 COA 158,338 P.3d 1027
• Parties: Matthew V. BARNHART, Plaintiff–Appellant, v. AMERICAN FURNITURE WAREHOUSE COMPANY, Defendant–Appellee.
• Court: Colorado Court of Appeals

338 P.3d 1027
2013 COA 158

Matthew V. BARNHART, Plaintiff–Appellant
v.
AMERICAN FURNITURE WAREHOUSE COMPANY, Defendant–Appellee.

Court of Appeals No. 13CA0085

Colorado Court of Appeals, Div. III.

Announced November 21, 2013

Pipis Marsh Law LLP, Richard A. Marsh, Longmont, Colorado; William E. Peters, P.C., William E. Peters, Denver, Colorado, for Plaintiff–Appellant.

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Cesilie J. Garles, Englewood, Colorado, for Defendant–Appellee.

Opinion

Opinion by JUDGE J. JONES

¶ 1 Plaintiff, Matthew V. Barnhart (son), appeals the district court's summary judgment in favor of defendant, American Furniture Warehouse Company (AFW), on his wrongful death claim.

¶ 2 We must decide whether, under Colorado's Wrongful Death Act (the Act), sections 13–21–201 to –204, C.R.S.2013, an heir may bring a wrongful death claim after a decedent's surviving spouse has settled such a claim without filing suit. We conclude that a spouse's earlier settlement precludes an heir's subsequent claim, and therefore affirm the district court's judgment.

I. Background

¶ 3 On January 19, 2011, Mildred Mae Fernandez sustained injuries in an accident at an AFW store. She died shortly thereafter. Mrs. Fernandez is survived by her husband, Ezekiel Fernandez (husband), and son.

¶ 4 Husband retained counsel in connection with his wife's death. On February 22, husband's

338 P.3d 1029

counsel informed AFW's insurer that he had been retained by husband. Husband's counsel subsequently told the insurance company that husband was asserting a wrongful death claim under the Act. Negotiations ensued. In December 2011, husband agreed to settle his claim in return for $400,000, and in February 2012 he executed a release of all claims against AFW.

¶ 5 Son then brought this action, also asserting a wrongful death claim under the Act. AFW moved for summary judgment on the ground that son's claim was barred by the Act's limitation that “only one civil action” may be brought for recovery of damages for the wrongful death of any one decedent. § 13–21–203(1)(a).

¶ 6 In a thorough and well-reasoned order, the district court granted the motion. The court concluded that the Act's “only one civil action” provision barred son's action because, within one year of Mrs. Fernandez's death, husband had asserted a wrongful death claim.

II. Discussion

¶ 7 Son contends that his claim was not barred by husband's out-of-court settlement because the settlement was not an “action” within the meaning of subsection 13–21–203(1)(a). We are not persuaded.

A. Standard of Review

¶ 8 We review an order granting summary judgment de novo. Berenson v. USA Hockey, Inc. , 2013 COA 138, ¶ 12, ––– P.3d ––––. Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c) ; Berenson, ¶ 13.

B. Analysis

¶ 9 Wrongful death claims could not be brought at common law and may be maintained in Colorado only pursuant to the Act. Hopper v. Denver & R.G.R. Co., 155 F. 273, 275 (8th Cir.1907) (applying Colorado law) ; Clint v. Stolworthy, 144 Colo. 597, 600, 357 P.2d 649, 651 (1960) ; Estate of Kronemeyer v. Meinig, 948 P.2d 119, 121 (Colo.App.1997).

¶ 10 The Act addresses which parties may bring an action for wrongful death, and in what order. Campbell v. Shankle, 680 P.2d 1352, 1353–54 (Colo.App.1984) ; see also Clint, 144 Colo. at 600–01, 357 P.2d at 651–52. As relevant here, a decedent's surviving spouse has the exclusive right to bring such an action within the first year after the date of death. See § 13–21–201(1)(a) ; Campbell, 680 P.2d at 1354. During the second year, a decedent's spouse and heirs have equal rights to bring an action. See § 13–21–201(1)(b). However, “only one civil action” may be brought to recover damages for the wrongful death of any one decedent. § 13–21–203(1)(a).

¶ 11 In the typical case, the decedent's surviving spouse brings a wrongful death case in court, which goes to judgment or is otherwise resolved. Thereafter, no other beneficiary may bring a claim. See, e.g., Niven v. Falkenburg, 553 F.Supp. 1021, 1024 (D.Colo.1983) (dismissing the children as plaintiffs from the husband's wrongful death action because the husband had the exclusive right to sue during the first year after his wife's death) (applying Colorado law).

¶ 12 In this case, husband, who by virtue of the Act had the exclusive right of action during the first year after his wife's death, settled his claim without filing suit. Son, relying on the following statutory language, contends that only a spouse's lawsuit (or settlement of a lawsuit) can bar a subsequent wrongful death claim under the Act:

• Section 13–21–202 says that a tortfeasor “shall be liable in an action for damages” (emphasis added);

• Subsection 13–21–203(1)(a) says that all damages under the Act “shall be sued for and recovered” (emphasis added); and

• Subsection 13–21–203(1)(a) also says that “only one civil action ” (emphasis added) may be brought.

¶ 13 Whether a prelitigation settlement of a claim is an “action” for purposes of subsection 203(1)(a) is an issue of statutory interpretation. We review that issue de novo. Sperry v. Field, 205 P.3d 365, 367 (Colo.2009) ;

338 P.3d 1030

Idaho Pac. Lumber Co. v. Celes tial Land Co. Ltd., 2013 COA 136, ¶ 7, ––– P.3d ––––.

¶ 14 Our primary task in interpreting a statute is to ascertain and give effect to the General Assembly's intent. Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 12, 303 P.3d 558 ; Krol v. CF & I Steel, 2013 COA 32, ¶ 15, 307 P.3d 1116. To do so, we look first to the statutory language, interpreting the words used therein according to their plain and ordinary meanings. State v. Nieto, 993 P.2d 493, 500 (Colo.2000) ; Carter v. Brighton Ford, Inc., 251 P.3d 1179, 1181 (Colo.App.2010). At the same time, we read the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all of its parts. Shaw v. 17 West Mill St., LLC, 2013 CO 37, ¶ 13, 307 P.3d 1046 ; Krol, ¶ 15. The General Assembly's intent will prevail over a literal interpretation of the statute that would lead to an absurd result. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo.2011) ; Colo. Div. of Ins. v. Trujillo , 2012 COA 54, ¶ 33, 337 P.3d 1210 (cert. granted Apr. 8, 2013); see also 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 46:7, at 253–57 (7th ed. 2009) (“[I]f the literal import of the text of an act is inconsistent with the legislative meaning or intent, or such interpretation leads to absurd results, the words of the statute will be construed to agree with the intention of the legislature.”).

¶ 15 Looking first to the plain language of the statute, we agree with son that “action” is commonly regarded as referring to a judicial proceeding. See Hernandez v. Downing, 154 P.3d 1068, 1070 (Colo.2007) ; Black's Law Dictionary 32 (9th ed. 2009) (defining “action” as a “civil or criminal judicial proceeding”). Likewise, the plain meaning of the word “sue” is to institute a proceeding against another party in a court of law. See Black's Law Dictionary 1570, 1572 (9th ed. 2009).

¶ 16 But son's proposed limiting interpretation would lead to an absurd result. Under that interpretation, a settlement would not be considered an “action” for purposes of the “only one civil action” limitation unless the settlement was reached in the context of a pending lawsuit. Thus, even where a beneficiary with a primary right of action had settled a wrongful death claim against a tortfeasor, other beneficiaries could still assert a second wrongful death claim, and obtain a second recovery, so long as the first beneficiary had never filed suit. Son offers no rational reason why the General Assembly would have intended to treat prelitigation and litigation settlements differently, and none is apparent to us.

¶ 17 Colorado courts have held that the legislative purpose of the “only one civil action” provision is to prevent multiple actions for the death of a single decedent, with the underlying goal of precluding multiple recoveries. See Steedle v. Sereff, 167 P.3d 135, 138 (Colo.2007) (the Act limits damages by requiring all claims pursuant to the death of one person to be combined into one civil action) (citing § 13–21–203(1)(a)); Hernandez, 154 P.3d at 1070 (“The words ‘only’ and ‘one’ are self-evident, leaving no room for doubt that Colorado law forbids multiple actions for the recovery of damages for...