Blood v. Qwest Services Corp.
| Decision Date | 30 April 2009 |
| Docket Number | No. 08CA0134.,08CA0134. |
| Citation | 224 P.3d 301 |
| Parties | Andrew BLOOD and Carrie Blood, Plaintiffs-Appellees, v. QWEST SERVICES CORPORATION and Qwest Corporation, Defendants-Appellants, and Public Service Company of Colorado, d/b/a Xcel Energy, Third-Party Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Fogel, Keating, Wagner, Polidori & Shafner, P.C., William L. Keating, Kristin D. Sanko, Michael O'Brien Keating, Denver, Colorado, for Plaintiffs-Appellees.
Gibson, Dunn, & Crutcher, L.L.P., Gregory J. Kerwin, Robert C. Marshall, Denver, Colorado; Treece, Alfrey, Musat & Bosworth, P.C., Thomas N. Alfrey, Robert J. Zavaglia, Jr., Denver, Colorado, for Defendants-Appellants.
White and Steele, P.C., John Lebsack, David J. Nowak, Denver, Colorado, for Third-Party Defendant-Appellee.
John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Friedrick C. Haines, First Assistant Attorney General, Kathleen L. Spalding, Assistant Attorney General, Denver, Colorado, for Amicus Curiae, the State of Colorado.
Opinion by Judge WEBB.
In this personal injury action that raises questions of first impression concerning recovery of exemplary damages, defendants, Qwest Services Corporation and Qwest Corporation (collectively, Qwest), appeal the trial court's judgment entered on a jury verdict in favor of plaintiffs, Andrew Blood (Blood) and Carrie Blood, and third-party defendant Public Service Company of Colorado, doing business as Xcel Energy (Xcel), and its denial of Qwest's post-trial motions.
We vacate the trial court's order increasing exemplary damages and remand for an evidentiary hearing on Blood's motion to increase exemplary damages. In all other respects, the judgment and orders are affirmed.
Table of Contents
I. Introduction ...............................................................309
A. Facts ...................................................................309
B. Blood's Theory of the Case ..............................................309
C. Trial Court Rulings and Jury Verdict ....................................309
II. Exemplary Damages .........................................................310
A. Constitutionality of Section 13-21-102 .................................310
1. Exemplary Damages and Nonparty Harm .................................310
2. Facial Challenge ....................................................312
3. As Applied Challenge ................................................313
B. Sufficiency of the Evidence ............................................314
C. The Amount of the Jury's Exemplary Damages Award .......................315
1. Reprehensibility ....................................................315
2. Ratio ...............................................................316
3. Sanctions for Comparable Misconduct .................................317
D. Failure to Grant Qwest a Hearing .......................................318
III. Qwest's Post-Accident Conduct ............................................320
A. Violation of the In Limine Ruling .....................................320
B. Closing Argument ......................................................321
IV. The Joint Use Contract ....................................................322
A. References to JUC Article XII ..........................................322
B. Submitting Material Breach to Jury .....................................324
C. Jury's Verdict Holding Qwest 100% Culpable .............................325
D. Jury Instruction on Xcel's Responsibilities ............................326
V. Qwest's Affirmative Defenses ...............................................327
A. Worker's Compensation Act ...............................................327
1. Affirmative Defense or Jurisdictional Defense ........................327
2. Waiver ...............................................................328
B. Premises Liability Act ..................................................329
VI. Conclusion ................................................................330
Blood suffered severe and permanent injuries while working on a wood utility pole (P5905) within the course and scope of his employment as a lineman for Xcel. Qwest owned P5905, along with thousands of similar poles in Colorado. Since 1960, it has shared with Xcel use of its poles and has used poles owned by Xcel under a Joint Use Contract (JUC). The JUC made each party responsible for injuries to its employees arising from a jointly used pole, although indemnity was required if the injuries were caused "solely" by the other party's negligence or noncompliance with JUC specifications.
In anticipation of relocating P5905 at the request of the nonparty property owner, Xcel electric lines, Qwest telephone lines, and the sole supporting guy line had been removed shortly before the accident. On June 24, 2004, with the pole now unsupported, Blood climbed it to remove the last piece of Xcel equipment. The pole broke below ground where it had decayed, causing Blood to fall, and the pole came down on top of him.
Blood sued Qwest for negligence. His wife, Carrie, sued for loss of consortium. Blood asserted that Qwest's negligence in failing to have inspected P5905 since its installation in 1958, which would have detected the decay, was the sole cause of the accident. He sought exemplary damages on the basis that Qwest had no program periodically to inspect any of its poles, either before or after the accident.
Qwest asserted affirmative defenses including, as relevant here, Blood's comparative negligence; exclusivity under the Colorado Workers' Compensation Act, section 8-41-102, C.R.S.2008 (WCA), as Blood's statutory employer; and the Premises Liability Act, section 13-21-115(5)(b), C.R.S.2008 (PLA).
Qwest also pleaded third-party claims against Xcel for negligence, indemnity under the JUC, contribution, and breach of the JUC. Xcel counterclaimed against Qwest for negligence and breach of the JUC.
The trial court granted partial summary judgment for Xcel on Qwest's contribution claim, reasoning that the WCA abolished any tort duties of Xcel to Blood, and for Xcel on Qwest's negligence claim, applying economic loss rule. The court also granted Qwest's in limine motions to exclude evidence or argument regarding the indemnity provision in the JUC, Qwest's not having implemented a post-accident periodic pole inspection program, and potential harm to nonparties from lack of such a program. None of these rulings has been appealed.
The jury was instructed that it could award exemplary damages only if Qwest acted in a "willful and wanton manner," meaning conduct "purposefully committed by a person who must have realized that the conduct was dangerous, and which conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights and safety of others, particularly the plaintiff."
The jury found that Qwest was negligent, that Blood and Xcel were not negligent, and that Qwest was 100% at fault. It awarded $9,917,600 in economic losses, $1,000,000 in noneconomic losses, $10,000,000 for physical impairment and disfigurement, $750,000 for loss of consortium, and $18,000,000 in exemplary damages. The amount of compensatory damages is not contested on appeal. The jury also found that Qwest had breached the JUC. It returned a verdict in favor of Xcel on the JUC counterclaim.
Blood moved to increase exemplary damages under section 13-21-102(3)(a), C.R.S. 2008, because Qwest had not implemented a periodic pole inspection program between the date of the filing of this action and the trial. Without holding a hearing as requested by Qwest, the court granted the motion and increased the exemplary damages to three times the compensatory damages. The court denied Qwest's numerous post-judgment motions. After reducing the noneconomic damage awards under section 13-21-102.5(3)(a), C.R.S.2008, judgment was entered against Qwest for a total of $89,867,186, including prejudgment interest.
We conclude that Qwest was entitled to an evidentiary hearing before the trial court increased the exemplary damages award, but reject Qwest's other challenges to the exemplary damages award under both the federal constitution and state law.
Colorado's exemplary damages statute, section 13-21-102, C.R.S.2008, provides:
(1) (a) In all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party.
(b) As used in this section, "willful and wanton conduct" means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.
. . . .
(3) Notwithstanding the provisions of subsection (1) of this section, the court may increase any award of exemplary damages, to a sum not to exceed three times the amount of actual damages, if it is shown that:
(a) The defendant has continued the behavior or repeated the action which is the subject of the claim against the defendant in a willful and wanton manner, either against the plaintiff or another person or persons, during the pendency of the case....
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