Draper v. DeFrenchi–Gordineer

• Decision Date: 01 September 2011
• Docket Number: No. 10CA1316.,10CA1316.
• Citation: 282 P.3d 489
• Parties: Robert DRAPER, Plaintiff–Appellant, v. Christie DeFRENCHI–GORDINEER, John Nelson, Gregory Nelson, and Cynthia Nelson, Defendants–Appellees.
• Court: Colorado Court of Appeals

282 P.3d 489

Robert DRAPER, Plaintiff–Appellant,

v.Christie DeFRENCHI–GORDINEER, John Nelson, Gregory Nelson, and Cynthia Nelson, Defendants–Appellees.

No. 10CA1316.

Colorado Court of Appeals, Div. IV.

Sept. 1, 2011.

James Grimaldi, Denver, Colorado, for Plaintiff–Appellant.

Patterson, Nuss & Seymour, P.C., Theresa W. Seymour, Greenwood Village, Colorado, for Defendant–Appellee Christie DeFrenchi–Gordineer.

Jones, Waters & Geislinger, L.L.C., Dawn R. Kubik, Colorado Springs, Colorado, for Defendants–Appellees John Nelson, Gregory Nelson, and Cynthia Nelson.

Opinion by Judge BERNARD.

This appeal concerns an order granting summary judgment in a case in which a man's wife was seriously injured. The husband filed suit, raising several tort claims. The trial court granted summary judgment against husband on all of them. We reverse and remand.

To resolve the first part of this appeal, we must answer questions concerning the intersection of the concepts of derivative claims, separate claims, and settlement agreements. Are claims for loss of consortium and negligent infliction of emotional distress derivative claims or independent claims? If they are derivative claims, are they also separate claims? What effect does an agreement settling the claims of an injured person have on a spouse's separate, derivative claim, or on a spouse's independent claim?

We arrive at the following answers. A claim for loss of consortium is a derivative claim, but it is also a separate claim that creates a distinct cause of action. Therefore, an agreement settling an injured person's personal injury claims does not necessarily bar the spouse's loss of consortium claim.

The claim of negligent infliction of emotional distress is an independent claim, not a derivative claim. Thus, an agreement settling the claims of an injured person does not necessarily bar the spouse's claim for negligent infliction of emotional distress.

We must also decide two other issues. We conclude, under the circumstances here, that

• the amendment of husband's complaint, after the statute of limitations had run, to include an additional allegation that defendants' negligence caused him bodily injury, related back to the original complaint; and • husband's claim of negligent entrustment of an automobile raises a question of material fact.

I. Background

On June 12, 2005, Gregory and Cynthia Nelson loaned their pickup truck to their nineteen-year-old son, John. John, in turn, allowed his friend, Christie DeFrenchi–Gordineer, to drive it. The friend was over eighteen years old.

The friend did not have a driver's license. The record is not entirely clear whether (1) she had been issued a learner's permit that allowed her to drive only while supervised by a parent, a guardian, or a designated person who was at least twenty-one years old; or (2) she previously had obtained a permit, but it had expired.

The friend drove the truck in downtown Colorado Springs. The son sat next to her in the truck's front seat.

At the same time, husband, Robert Draper, and his wife, Jean, were removing their children, an infant and a toddler, from opposite sides of their parked Jeep in downtown Colorado Springs. Husband testified at a deposition that he saw the truck approaching the Jeep in the lane closest to him. He decided to wait to remove the infant from the Jeep until the truck had passed.

The son and his friend looked for a place to park the truck. The son, apparently concerned that his friend was driving too fast, attempted to step on the brake pedal from his position next to the friend. He instead stepped on the accelerator.

According to husband's deposition, the truck angled toward the Jeep, its engine “roaring.” He yanked the infant from the Jeep. As he did so, the truck struck the Jeep from behind, “sh[ooting] through the back of” it.

The truck struck wife. She was severely injured, and part of her leg had to be amputated.

Husband and wife signed a settlement agreement releasing wife's claims against the parents, the son, and the friend. Husband subsequently filed suit naming all four as defendants. The suit raised three tort claims: loss of consortium; negligent infliction of emotional distress; and negligent entrustment. With the trial court's permission, he later amended his complaint to include claims for bodily injury.

The trial court granted summary judgment in favor of defendants on all of husband's claims. The court concluded that

• the claims for loss of consortium and negligent infliction of emotional distress were derivative of wife's personal injury claims, and, as result, husband had waived them by signing the settlement agreement;

• the claim that husband suffered bodily injury was barred by the statute of limitations; and

• there was no material question of fact whether the parents had negligently entrusted their car to their son.

II. Analysis

A. Standard of Review

We review a grant of summary judgment de novo. Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489, 491 (Colo.App.2008). Summary judgment is a drastic remedy that should be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” C.R.C.P. 56(c); Murry, 194 P.3d at 491.

“In determining whether summary judgment is proper, the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party.” Casebolt v. Cowan, 829 P.2d 352, 354 (Colo.1992).

B. The Release

We interpret a settlement agreement using common law contract principles. Yaekle v. Andrews, 195 P.3d 1101, 1107 (Colo.2008). Contract interpretation is a question of law we review de novo. Ad Two, Inc. v. City & County of Denver, 9 P.3d 373, 376 (Colo.2000). The primary goal of contract interpretation is to give effect to the intent of the parties, which is to be determined primarily from the language of the agreement itself. Id. We construe the language “in harmony with the plain and generally accepted meaning of the words employed.” Id.

As relevant here, the settlement agreement states:

• “[Wife] has asserted claims against [defendants].... The parties desire to settle the claim[s].”

• “[Wife] releases [defendants]....”

• “[Wife] represents and warrants that she has made no assignment of the injury claims released herein and that she has the sole and exclusive right to compromise, settle, and release same.”

• “[Wife] has represented to [defendants] and their insurers that no other person or entity has a lien upon or interest in the settlement proceeds.”

• “[Wife] admits that she may have incomplete or incorrect information and therefore may be wrong about [h]ow much she would recover from [defendants and whether she] now [has] or will have in the future other damages and other losses regarding her injury claims.”

• “[Wife] is entering into this settlement because she is willing to assume entirely on her own the risk that she is wrong about the amount she might be able to recover for her injury claims.”

• “This [r]elease completely sets forth the settlement of [wife's] injur[y] claims. No other promises have been made to [wife] by [defendants]. [Wife] is not relying on any statement made by [defendants] or by anyone acting on their behalf. [Wife] knows and accepts the fact that she will never be able to assert her claims or sue on [them] again. [Wife] knows and accepts the fact that [defendants] deny all liability to her.”

The settlement agreement repeatedly and unambiguously refers only to wife's claims. For example, it releases defendants from liability for “[wife's] injury claim” and claims for “[wife's] damages and losses.” Further, it does not mention any claims that husband may have had; it does not state that husband releases any claims; and it does not refer to any consideration that husband is to receive.

Husband and wife signed this agreement. Defendants contend that, by signing it, husband waived his claims. After conducting our de novo review, we disagree.

The release states that it “binds [wife] and all other individuals ... who are connected with her or have any interest in her injury claim including heirs.” When reading the document as a whole, we conclude that husband's signature is present on the document because he was “connected with [wife]”; he may have had an “interest in her injury claim”; and he was her “heir.” That husband satisfied these criteria does not mean that he waived his claims by signing the release. Rather, husband's signature indicated that he would no longer be able to pursue wife's claims.

We therefore conclude that the settlement agreement does not expressly release defendants from liability for any claims in husband's lawsuit.

However, we must still determine whether the agreement bars husband's loss of consortium and negligent infliction of emotional distress claims based on the argument that they are derivative of wife's claims. Defendants contend that the settlement agreement bars husband's derivative claims because (1) wife clearly released her claims; (2) husband's signature indicates that he understood the terms of the release; and (3) the release stated that it bound “all other individuals ... who are connected with [wife] or have any interest in her injury claim including heirs.”

C. Loss of Consortium

The trial court's determination that husband's claim for loss of consortium is derivative of wife's personal injury claim is a legal conclusion that we review de novo. E–470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo.2000).

“Derivative claims are unique in that they depend entirely upon the right of the injured person to recover.” Colorado Compensation Ins. Authority v. Jorgensen, 992 P.2d 1156, 1164 (Colo.2000). Generally, loss of consortium is a...