Dewey v. Hardy, 94CA0490

• Decision Date: 14 September 1995
• Docket Number: No. 94CA0490,94CA0490
• Citation: 917 P.2d 305
• Parties: William DEWEY, Plaintiff-Appellee and Cross-Appellant, v. Charlene HARDY and William G. Hardy, Defendants-Appellants and Cross-Appellees. . III
• Court: Colorado Court of Appeals

Page 305

917 P.2d 305

William DEWEY, Plaintiff-Appellee and Cross-Appellant, v. Charlene HARDY and William G. Hardy, Defendants-Appellants and Cross-Appellees.

No. 94CA0490.

Colorado Court of Appeals Div. III.

Sept. 14, 1995.

Rehearing Denied Oct. 19, 1995.

Certiorari Denied May 28, 1996.

Warren, Mundt & Martin, P.C., Reid B. Kelly, Colorado Springs, for plaintiff-appellee and cross-appellant.

White and Steele, P.C., Glendon L. Laird, Monty L. Barnett, John M. Lebsack, Denver, for defendants-appellants and cross-appellees.

Opinion by Judge JONES.

In this wrongful death action, defendants, Charlene and William G. Hardy, appeal a judgment entered upon a jury verdict in favor of plaintiff, William Dewey. Plaintiff cross-appeals a post-verdict reduction of his damages. We affirm in part, vacate the judgment in part, and remand to the trial court for further proceedings.

Plaintiff instituted this action against the defendants under § 13-21-202, C.R.S. (1987 Repl.Vol. 6A), seeking damages for the wrongful death of his daughter. Prior to the filing of this action, on or about March 28, 1992, decedent's mother, who was the custodial parent of the decedent, had settled her claim for the wrongful death. Plaintiff was not involved in any way in that settlement agreement and decedent's mother is not a party to this suit.

Upon completion of discovery, plaintiff moved to amend his claim for wrongful death under § 13-21-202 and elected to recover a solatium in the amount of $50,000 pursuant to § 13-21-203.5, C.R.S. (1994 Cum.Supp.). Its basic purpose being to allow an award for solace of the grieved, this statutory provision states:

In any case arising under § 13-21-202, the persons entitled to sue under the provisions of § 13-21-201(1) may elect in writing to sue for and recover a solatium in the amount of $50,000. 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 non-economic damages recoverable under § 13-21-203 and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death.

Plaintiff's motion to elect recovery of solatium was granted and the trial began seven months later to determine if defendants were liable.

Prior to trial, defendants challenged the constitutionality of the solatium statute by filing a motion for declaration of unconstitutionality. The record reflects that the trial court did not rule on that motion and commenced the trial on February 7, 1994. Pursuant to its interpretation of the solatium statute, the trial court limited the trial to a determination of defendants' liability. No evidence or testimony was presented regarding plaintiff's damages.

The jury found the defendants 65% at fault and the decedent 35% at fault for decedent's death. The trial court denied defendants' request that it reduce the $50,000 damage award in proportion to the amount of negligence attributable to the decedent in accordance with the comparative fault statute, § 13-21-111, C.R.S. (1987 Repl.Vol. 6A). The trial court did, however, reduce plaintiff's solatium award by $25,000 based upon its view that the decedent's mother had a right to 50% of the solatium award which she had essentially assigned to GEICO as defendants' insurer, pursuant to her settlement agreement with that company.

I.

Defendants contend that the solatium statute is unconstitutional because it deprives them of property without due process of law and, therefore, is contrary to the Fourteenth Amendment and Colo. Const. art. II, § 25. Specifically, the defendants contend that by setting a fixed solatium award in the amount of $50,000, the statute denies them the right to a full hearing. We disagree.

In considering this contention, we presume that, in not ruling upon the motion for declaration of unconstitutionality, the trial court, in effect, denied the motion.

A.

A statute is presumed constitutional and, therefore, the party challenging the statute must prove beyond a reasonable doubt that the statute is unconstitutional. Bollier v. People, 635 P.2d 543 (Colo.1981). It is within this context that we proceed to analyze defendants' contentions.

The essence of procedural due process, as guaranteed by Colo. Const. art. II, § 25, and the Fourteenth Amendment, is basic fairness and procedure. deKoevend v. Board of Education, 688 P.2d 219 (Colo.1984). Thus, procedural due process protects an individual's use and possession of property from arbitrary encroachment and minimizes substantially unfair or mistaken deprivations of property. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976), the Supreme Court identified the specific criterion for consideration in regard to a challenged procedure, as follows:

First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved in the fiscal and administrative burdens that the additional or substitute procedural requirement (sic) would entail.

Since our supreme court has likewise used the Mathews test in determining whether a violation of due process under the Colorado Constitution has occurred, we proceed under the Mathews standard. See New Safari Lounge, Inc. v. Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977).

The private interest affected by the solatium statute is the obvious potential loss of $50,000. While this is most certainly a deprivation of property, we recognize that the protections offered by the due process clauses are not as stringent when a deprivation of property is involved as opposed to a deprivation of a personal liberty. Lamm v. Barber, 192 Colo. 511, 565 P.2d 538 (1977).

Under the second prong of the Mathews test, we must consider the procedures provided for in the solatium statute. Under the statute, a defendant is deprived of his or her property only after a finding or admission of liability. Section 13-21-203.5, C.R.S. (1994 Cum.Supp.). Thus, unless there is an admission of liability, the statute requires the trial court, as it did here, to conduct a full civil trial to determine liability.

Defendants argue, however, that a trial to determine liability does not satisfy their rights to due process when, as here, they are found liable but denied the opportunity to present evidence and testimony regarding the extent of the plaintiff's damages.

The constitutional provisions assuring due process, however, only guarantee the right to be heard at a meaningful time or in a meaningful manner. Mathews v. Eldridge, supra; New Safari Lounge, Inc. v. Colorado Springs, supra. Since the solatium statute requires a full civil trial to determine liability if the defendants do not admit such, defendants do have a substantial opportunity to be heard. Whether this comports with the constitutional due process provisions depends on what additional procedures could be used and how they would affect the State's interest.

At the behest of the insurance industry, through the American Insurance Association and many prominent Colorado insurance companies, the General Assembly enacted the solatium, or "solace," statute for numerous reasons. The General Assembly realized that wrongful death actions are emotionally painful experiences for surviving family members and can often translate into years of additional grief and suffering because of the protracted litigation involved in proving their non-economic loss: their feelings of mental anguish, bereavement, and sorrow. Hearings on S.B. No. 93 before the Senate Judiciary Committee, 57th General Assembly, First Session (February 1, 1989); Hearings on S.B. No. 93 on the Senate floor, 57th General Assembly, First Session (February 10, 1989).

By fixing what it considered to be a modest amount of damages for solatium in relation to the general limit on damages of five times that amount, i.e., $250,000, the General Assembly hoped to encourage the abbreviation of wrongful death actions through the "solatium" alternative, which, at most, would require only a trial to determine liability. The parties would avoid the trial process altogether if the defendant were to admit liability. Hearings on S.B. No. 93 before the House State of Affairs Committee, 57th General Assembly, First Session (March 14, 1989).

If we were to interpret the solatium statute to allow for a hearing on the issue of damages, in addition to those of liability, as the defendants urge, then the essential purpose of the statute would be defeated. In the face of such clear purpose and a rational basis for the legislation, we conclude that additional procedures beyond a determination of liability are not necessary to assure procedural due process.

Furthermore, with respect to the third prong of the Mathews test, we recognize, as did the General Assembly, that the statute could serve to unburden state trial court dockets, reduce the fiscal demands on the state for court resources, and allow the parties greatly to reduce or even avoid expensive legal fees.

Since no solatium damages can be awarded without a finding of the defendant's liability, and a party may effectively waive its due process rights to a hearing by admitting liability, D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972); Columbine Valley Construction Co. v. Board of Directors, 626 P.2d 686 (Colo.1981), we conclude that the solatium statute provides sufficient procedural due process to protect defendants against any unfair or mistaken deprivation of property.

B.

Defendants next contend that the solatium statute violates...