DeCicco v. Trinidad Area Health Ass'n

• Decision Date: 15 September 1977
• Docket Number: No. 76-307,76-307
• Citation: 573 P.2d 559,40 Colo.App. 63
• Parties: Joe DeCICCO, Plaintiff-Appellant and Cross-Appellee, v. TRINIDAD AREA HEALTH ASSOCIATION and Louis Foubare, Defendants-Appellees and Cross-Appellants. . I
• Court: Colorado Court of Appeals

Page 559

573 P.2d 559

40 Colo.App. 63

Joe DeCICCO, Plaintiff-Appellant and Cross-Appellee, v. TRINIDAD AREA HEALTH ASSOCIATION and Louis Foubare,

Defendants-Appellees and Cross-Appellants.

No. 76-307.

Colorado Court of Appeals, Div. I.

Sept. 15, 1977.

Rehearing Denied Oct. 13, 1977.

Certiorari Denied Jan. 3, 1978.

Lopez & Collins, James R. Collins, Trinidad, for plaintiff-appellant and cross-appellee.

Saunders, Snyder, Ross & Dickson, Denver, Kane, Donley & Wills, Lee Wills, Colorado Springs, for defendants-appellees and cross-appellants.

SMITH, Judge.

Plaintiff, Joe DeCicco, sued defendants, Trinidad Area Health Association and Louis Foubare for the wrongful death of plaintiff's wife, Carol DeCicco, and for outrageous conduct relative to her death. At trial the wrongful death claim was dismissed, and, although plaintiff had sought only $20,000 actual and $30,000 exemplary damages in his complaint, the jury awarded him $30,000 actual and $70,000 exemplary damages. Thereafter, the trial court granted defendants' motion to reduce the verdict to conform to the amount stated in the complaint, and plaintiff appeals that ruling. Defendants cross-appeal, claiming first, that the trial court should have granted their motion for a directed verdict because dismissal of plaintiff's wrongful death claim precluded an award for outrageous conduct, and also that the evidence was insufficient to go to the jury on outrageous conduct. We reverse and remand with directions to the trial court to reinstate the original verdict.

On the morning of her death, Mrs. DeCicco, while in apparent good health at the family home in Trinidad, suddenly lapsed into a coma. Mr. DeCicco immediately called the family doctor, Frank Visconti. Dr. Visconti determined that Mrs. DeCicco was suffering from a cerebrovascular disorder, and that the closest hospital whose facilities were adequate to treat her condition was St. Mary Corwin in Pueblo. He thereupon called Mt. San Rafael Hospital in Trinidad for an ambulance. The ambulance from Mt. San Rafael Hospital was the only ambulance service in Las Animas County. The city and the county owned the ambulances and contracted with defendant, Trinidad Area Health Association, to operate the service.

Because Dr. Visconti had recently resigned from the staff of the hospital, the use of the ambulance was denied by the hospital administrator, defendant Foubare, unless Dr. Visconti would consent to having the patient brought to the hospital to be examined by staff doctors in order that they might determine whether further transportation was necessary. At that point, Mr. DeCicco spoke on the phone to see if he could persuade Foubare to send an ambulance, explaining that his wife was employed at the hospital and that often the ambulance had even been used to transport her to and from work. Mr. DeCicco's request was also denied.

Because of the refusal, Dr. Visconti had to request an ambulance from Raton, New Mexico, in excess of twenty miles, to transport Mrs. DeCicco to Pueblo. This resulted in a substantial delay. Mrs. DeCicco died about one hour after arriving at the Pueblo hospital.

Excessiveness of Verdict

To support their position that it was proper for the trial court to reduce the verdict to the amount requested in the complaint, defendants rely on Liber v. Flor, 160 Colo. 7, 415 P.2d 332 (1966) in which it was held that the damages instruction should have included the amount of damages sought in the ad damnum clause. At the time that case was decided, Colo.J.I. 6:1 made such a recommendation. However, since then the form of instruction has been changed to omit any reference to amount of damages. See Rodrigue v. Hausman, 33 Colo.App. 305, 519 P.2d 1216 (1974); Colo.J.I. 6:1 (1976 Supp.). Thus, no amount was specified in the jury instruction below, and no objection was made by defendants as to the form of the instruction.

C.R.C.P. 54(c) provides in part that:

"Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." (Emphasis supplied)

This rule, coupled with C.R.C.P. 15(b), provides some guidance as to the spirit with which the trial court should view a technical motion by defendants to alter the jury's verdict to conform to the pleadings. Pleadings are to be construed so as to do substantial justice, and have as their purpose merely the giving of notice of the issues to be litigated. See Berryman v. Berryman, 115 Colo. 281, 172 P.2d 446 (1946); Snell v. Public Utilities Comm., 108 Colo. 162, 114 P.2d 563 (1941). No allegation was made by defendants that undue surprise or prejudice resulted from the verdict. Hence, to insist that the verdict conform to the pleadings is to defeat the purposes of the modern day rules of procedure.

Accordingly, to further the underlying policy of the rules that the substance of the claim, rather than the form of the pleadings, controls, we hold that where the damages to which plaintiff is entitled can only be estimated at the pleading stage and the defendant is given notice of the various elements of the damages claim, then recovery is not to be limited to the amount listed in the complaint. Accord, Dupona v. Benny, 130 Vt. 281, 291 A.2d 404. See Equity Capital Co. v. Sponder, 414 F.2d 317 (5th Cir. 1969); Stroud v. B-W Acceptance...