BG's, Inc. v. Gross ex rel. Gross, 99SC873.

• Decision Date: 14 May 2001
• Docket Number: No. 99SC873.,99SC873.
• Parties: B.G.'S, INC., d/b/a Drink-n-Dawg, Petitioner, v. Marla GROSS, individually, and as surviving spouse of Gary A. Gross, Respondent.
• Court: Colorado Supreme Court

23 P.3d 691

B.G.'S, INC., d/b/a Drink-n-Dawg, Petitioner, v. Marla GROSS, individually, and as surviving spouse of Gary A. Gross, Respondent.

No. 99SC873.

Supreme Court of Colorado, En Banc.

May 14, 2001.

As Modified May 21, 2001.

Rehearing Denied June 4, 2001.

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Michael Brice Sullivan, Englewood, CO, Attorneys for Petitioner.

J.J. Vick, Fort Collins, CO, Attorney for Respondent.

Justice COATS delivered the Opinion of the Court.

B.G.'s, Inc., the defendant in the underlying wrongful-death action, sought review of the court of appeals' decision in Gross v. B.G.'s, Inc., 7 P.3d 1003 (Colo.App.1999), by writ of certiorari. The court of appeals reversed the district court's judgment in favor of B.G.'s, holding instead that the plaintiff, Marla Gross, the surviving spouse of the decedent, was entitled to judgment against B.G.'s and that the solatium award she elected in lieu of establishing noneconomic loss or injury was not subject to reduction by operation of comparative fault principles. Because the plain language of the solatium statute does not allow for a reduction of the $50,000 award, and because the solatium statute is the later and more specific enactment, a solatium award is not subject to reduction by operation of either the comparative negligence statute, § 13-21-111, 5 C.R.S. (2000), or the pro-rata liability statute, § 13-21-111.5, 5 C.R.S. (2000). The judgment of the court of appeals is therefore affirmed.

I.

The events giving rise to Respondent Marla Gross's wrongful-death action on behalf of her decedent husband occurred on September 26, 1994. Having consumed a combination of beer and liquor at B.G.'s establishment, the "Drink-N-Dawg," three patrons — the decedent, Michael Mintz, and Kirk Rossman — became intoxicated in the presence of B.G.'s employee. While still intoxicated, all three left the bar in a vehicle driven by Rossman and ultimately were involved in a one-car accident in which the decedent was killed.

In the wrongful death action that followed, Gross alleged that an employee of B.G.'s served the three visibly-intoxicated men without substantial interruption, in violation of section 12-47-801, 4 C.R.S. (2000), and that such service was a cause of decedent's death.¹ Before trial Gross elected, in the event of a finding or admission of B.G.'s liability, to recover a solatium award of $50,000 in lieu of noneconomic damages, as authorized under section 13-21-203.5, 5 C.R.S. (2000).² Also before trial, B.G.'s designated Rossman a nonparty at fault pursuant to section 13-21-111.5, 5 C.R.S. (2000).

A jury ultimately found that an employee of B.G.'s willfully and knowingly served an alcoholic beverage to Rossman while he was visibly intoxicated, and that such service was a cause of the decedent's death. As the jury also found negligence on the part of Rossman and the decedent to have been contributing causes to the accident and consequent death, it attributed percentages of fault to the respective parties and the nonparty in the following manner: Rossman — 55%; the decedent — 25%; B.G.'s — 20%. In response to B.G.'s motion for determination of a question of law before commencement of the trial, the district court indicated that the solatium would not be subject to reduction; however, because the jury found the decedent more at fault than B.G.'s, the district court entered judgment in favor of B.G.'s and therefore did not reach the issue of damages.

The court of appeals reversed, holding that Gross was entitled to judgment against B.G.'s because the combined negligence of the nonparty at fault (55%) and the defendant B.G.'s (20%) was greater than that of the decedent. In addition, the court of appeals rejected B.G.'s contention that Gross's solatium award was subject to reduction by operation of comparative fault principles and accordingly remanded the case to the district court for entry of judgment in favor of Gross for the amount of $50,000. This court rejected B.G.'s challenge to entry of judgment in favor of the plaintiff on the basis of the jury's apportionment of fault but granted its petition for writ of certiorari as to the amount of its liability to the plaintiff.³ Therefore, the sole issue before this court is whether Colorado's solatium statute, § 13-21-203.5, which provides wrongful-death plaintiffs with the option of electing a $50,000 award in lieu of establishing noneconomic loss or injury, is subject to reduction by operation of either the comparative negligence statute, § 13-21-111, or the pro-rata liability statute, § 13-21-111.5.

II.

With regard to negligence actions generally, Colorado statutes prescribe a comparative negligence scheme under which a plaintiff can recover notwithstanding some negligence attributable to the person for whose injury recovery is sought, as long as that negligence was less than the negligence of the person against whom recovery is sought. See § 13-21-111; Gordon v. Benson, 925 P.2d 775, 777 (Colo.1996) ("The purpose of comparative negligence is to ameliorate the harshness of the complete bar resulting from common law contributory negligence."). While not a bar to recovery, negligence charged to the injured person that is less than that of the person against whom recovery is sought operates to reduce proportionately the damages awarded to the plaintiff. § 13-21-111; Lira v. Davis, 832 P.2d 240, 242 (Colo.1992).

Where multiple defendants are named in an action, this court has previously construed the statute to intend that the negligence of the injured person be measured against the combined negligence of the defendants, rather than separately against each individual defendant. Mountain Mobile Mix, Inc. v. Gifford, 660 P.2d 883, 890 (Colo. 1983). Furthermore, a defendant is permitted to name nonparties whom he believes to be wholly or partially at fault in producing the injury, see § 13-21-111.5(3), and any fault attributable to designated nonparties is similarly considered in the aggregate with the defendants' negligence for purposes of determining whether the plaintiff is entitled to recovery. Inland/Riggle Oil Co. v. Painter, 925 P.2d 1083, 1086 (Colo.1996). A plaintiff may therefore recover as long as the combined fault of all named tortfeasors, whether joined as defendants or designated as nonparties, is more than that attributable to the person for whose injury recovery is sought. Colorado's adoption of this "combined comparison approach" reflects among other things concern for the inequity that would result from barring recovery on behalf of an injured person who was less than fifty percent negligent merely because the injury was caused by multiple tortfeasors, no one of whom was individually as much at fault as the injured person. Mountain Mobile Mix, 660 P.2d at 888.

As a corollary, or perhaps counterpoint, to the comparative negligence statute, which seeks to eliminate the inequity resulting from the prior contributory negligence approach that barred recovery upon a finding of any fault by the injured party, Colorado's pro-rata liability provision, § 13-21-111.5, seeks to eliminate the inequity often present in the imposition of joint liability on defendants. It 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." § 13-21-111.5(1). In much the same way that compensatory damages are reduced by operation of the comparative negligence provision, section 13-21-111.5 is designed to avoid holding defendants liable for an amount of compensatory damages reflecting more than their respective degrees of fault. Lira, 832 P.2d at 242. Included among the types of damages subject to apportionment under either comparative negligence or pro-rata liability principles are damages for noneconomic loss or injury. See §§ 13-21-102.5(2)(b), -203. In wrongful-death actions, these noneconomic damages reflect the surviving party's nonpecuniary harm, which may include among other things grief, loss of companionship, pain and suffering, and emotional stress. § 13-21-203.

As an alternative to establishing these noneconomic damages, the general assembly has provided wrongful-death plaintiffs with the option of electing a $50,000 award, referred to as a "solatium." Section 13-21-203.5 is entitled, "Alternative means of establishing damages — solatium amount," and provides:

In any case arising under section 13-21-202, the persons entitled to sue under the provisions of section 13-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this section. Such solatium amount shall be in lieu of noneconomic damages recoverable under section 13-21-203 and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death.

Because the solatium statute characterizes itself as an alternative means of establishing damages, and it provides for a solatium award of a specific, predetermined amount, without reference to sections 13-21-111 or 111.5, the question arises whether the solatium award was intended to substitute for the amount the plaintiff would ultimately be entitled to recover as noneconomic damages by operation of the general damage provisions or whether it is merely an alternate way of determining the plaintiff's total noneconomic loss or injury, subject to further reduction according to the comparative fault provisions.

In determining the meaning of statutes, an effort must be made to effectuate the legislative intent. Slack v. Farmers Ins. Exch., 5 P.3d 280, 284 (Colo.2000); Swieckowski v. City of Fort Collins, 934 P.2d...