Ceja v. Lemire

• Decision Date: 04 May 2006
• Docket Number: No. 05CA0335.,05CA0335.
• Parties: Terry D. CEJA, Plaintiff-Appellant and Cross-Appellee, v. Robert B. LEMIRE, Defendant-Appellee and Cross-Appellant, and The Board of County Commissioners of Arapahoe County, Defendant-Appellee.
• Court: Colorado Court of Appeals

143 P.3d 1093 Terry D. CEJA, Plaintiff-Appellant and Cross-Appellee,
v.
Robert B. LEMIRE, Defendant-Appellee and Cross-Appellant, and
The Board of County Commissioners of Arapahoe County, Defendant-Appellee. No. 05CA0335. Colorado Court of Appeals, Div. IV. May 4, 2006.

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Hayes, Phillip, Hoffmann & Carberry, P.C., Herbert C. Phillips, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee.

Roseman & Kazmierski, L.L.C., Stefan Kazmierski, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

Kathryn L. Schroeder, County Attorney, Kirsten J. Crawford, Assistant County Attorney, Littleton, Colorado, for Defendant-Appellee.

CASEBOLT, J.

This action arises out of an automobile accident caused by a county employee using his personal vehicle while acting in the course and scope of his employment. Plaintiff, Terry D. Ceja, appeals the order determining that defendant, the Board of County Commissioners of Arapahoe County (County), is immune from liability under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2005. Defendant Robert B. Lemire, the county employee, cross-appeals the determination that he is not entitled to immunity. We affirm in part, reverse in part, and remand with directions.

Ceja was operating a motorcycle when he was involved in an accident with Lemire, who was driving his personal automobile on County business. It is undisputed that at the time of the accident, Lemire was being reimbursed by the County for the use of his personal automobile at a set rate per mile.

Ceja asserted a negligence claim against Lemire and against the County based on respondeat superior. Asserting governmental immunity under the GIA, the County filed a motion to dismiss. It argued that its immunity was not waived under § 24-10-106(1)(a), C.R.S.2005, which waives a public entity's immunity for the operation of a motor vehicle "owned or leased by the public entity," because Lemire was using his own vehicle at the time of the accident. The County also argued that its payment of mileage reimbursement to Lemire did not constitute a lease of Lemire's vehicle for purposes of the GIA. Lemire joined the County's motion, asserting that he was entitled to immunity on the same basis.

In response, Ceja asserted that by reimbursing its employees for the use of their private vehicles, the County effectively leased those vehicles, resulting in a waiver of immunity under § 24-10-106(1)(a). Ceja also argued that, in any event, a public employee does not have immunity under the GIA while using his or her personal vehicle.

The trial court determined that the County was immune under the GIA because the payment of mileage reimbursement did not constitute a lease of Lemire's vehicle. Accordingly, it granted the County's motion to dismiss. However, it held that Lemire was not entitled to immunity under § 24-10-106(1)(a) and denied his motion to dismiss. This appeal followed.

I. County's Immunity

Ceja contends the trial court erred in dismissing his claim against the County. We disagree.

The GIA establishes immunity from tort actions filed against public entities or their employees and then provides exceptions and waivers under which injured plaintiffs may maintain certain actions. See Finnie v. Jefferson County Sch. Dist. R-1, 79 P.3d 1253 (Colo.2003).

Whether governmental immunity applies to bar a claim presents a question of subject matter jurisdiction that, if raised before trial, is properly addressed by the trial

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court pursuant to a C.R.C.P. 12(b)(1) motion to dismiss. Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003).

If the jurisdictional issue involves a factual dispute, a reviewing court employs a clear error standard of review. However, when, as here, the facts are undisputed and the issue is one of law, we review de novo. Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000).

Because governmental immunity under the GIA derogates Colorado's common law, we strictly construe the statute's immunity provisions. Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000). We construe the provisions that waive immunity broadly in the interest of compensating victims of governmental negligence. Springer v. City & County of Denver, supra; Walton v. State, 968 P.2d 636 (Colo.1998).

In interpreting the GIA, our primary purpose is to ascertain and give effect to the intent of the General Assembly. Springer v. City & County of Denver, supra. Thus, we look first to the language of the statute itself and give the words and phrases their plain and ordinary meaning. Tidwell v. City & County of Denver, supra. We should avoid a strained or forced construction of a statutory term and look to the context in which the term is used. See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995).

As pertinent here, § 24-10-106(1)(a) provides that "[s]overeign immunity is waived by a public entity in an action for injuries resulting from . . . [t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment."

The term "lease" is not defined in the GIA. It is commonly defined as "a contract by which one conveys lands, tenements, or hereditaments for life, for a term of years, or at will or for any less interest than that of the lessor." Webster's Third New International Dictionary 1286 (1986); see also Black's Law Dictionary 907 (8th ed.2004)(defining "lease" as a "contract by which the rightful possessor of personal property conveys the right to use that property in exchange for consideration"); cf. § 4-2.5-103(1)(j), C.R.S.2005 (Uniform Commercial Code defines the term "lease" as "a transfer of the right to possession and use of goods for a term in return for consideration").

Hence, the common meaning of the term "lease" contemplates the transfer or conveyance of an interest in, and the right to possession, control, and use of, the property subject to the lease. See Schneiker v. Gordon, 732 P.2d 603 (Colo.1987)(a modern lease is a conveyance of an interest in the property as well as a contract); Sundheim v. Bd. of County Comm'rs, 904 P.2d 1337 (Colo.App.1995)(absent some agreement to the contrary, a tenant is entitled to the possession of the leased premises to the exclusion of the landlord), aff'd, 926 P.2d 545 (Colo.1996); Am. Coin-Meter, Inc. v. Poole, 31 Colo.App. 316, 503 P.2d 626 (1972)(a lease gives the right of possession of the property leased and exclusive use or occupation of it for all purposes not prohibited by its terms).

A "lease" also contemplates that the transfer will be effective for a particular term. See Van Dorn Retail Mgmt., Inc. v. City & County of Denver, 902 P.2d 383 (Colo.App. 1994)(a lease normally provides that the lessor retains title to the property and reacquires possession of the property at the end of the lease term). Consequently, the lessee generally acquires a property right together with the right to use or control the property for the duration of the lease.

Here, the record does not demonstrate that the County acquired possession, control, or the right to use Lemire's car. He certainly did not transfer any possession or control, as nothing in the record indicates that the County could allow others besides Lemire to use that vehicle. The County merely agreed that Lemire would use his own car when he was transacting the County's business. But even that agreement simply reflects a policy that the County would reimburse employees at a fixed rate per mile for the employees' use of their personal vehicles in connection with their employment.

As well, there is no indication that Lemire in any sense conveyed or transferred any property interest in the vehicle to the County. The travel-meal-mileage reimbursement

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