Dupont v. Preston

• Decision Date: 27 April 2000
• Docket Number: No. 98CA2480.,98CA2480.
• Parties: Renee DUPONT, Plaintiff-Appellee, v. James M. PRESTON, D.D.S., Defendant-Appellant.
• Court: Colorado Court of Appeals

9 P.3d 1193

Renee DUPONT, Plaintiff-Appellee, v. James M. PRESTON, D.D.S., Defendant-Appellant.

No. 98CA2480.

Colorado Court of Appeals, Div. V.

April 27, 2000.

As Modified on Denial of Rehearing July 20, 2000.

Certiorari Granted October 10, 2000.

The Leventhal Law Firm, P.C., Beth L. Krulewitch, Denver, Colorado, for Plaintiff-Appellee.

Joel N. Varnell & Associates, J. Gregory Morrell, Greenwood Village, Colorado, for Defendant-Appellant.

McDermott and Hansen, William J. Hansen, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.

Opinion by Judge CASEBOLT.

In this dental malpractice action arising under the Health Care Availability Act (HCAA), defendant, James M. Preston, D.D.S., appeals the judgment entered on a jury verdict in favor of plaintiff, Renee Dupont. We modify the judgment and, as modified, affirm.

Plaintiff commenced this action to recover damages for injuries she sustained as a result of the dental care defendant provided to her. The jury found in favor of plaintiff and awarded her $240,000 for noneconomic losses, $22,000 for physical impairment, and $34,933.12 for medical expenses. The trial court awarded prejudgment interest and entered judgment on the verdict.

I.

Defendant first contends the trial court erred in denying his challenge for cause to a prospective juror. We disagree.

Challenges for cause in a civil case are governed by C.R.C.P. 47(e), and are limited to instances in which the potential juror: (1) is incompetent to be a juror; (2) is related within the third degree to any party; (3) is involved in certain relationships with any party; (4) has previously served on a jury or been a witness in a previous trial between the same parties for the same cause of action; (5) has an interest in the outcome of the action; (6) has formed or expressed an unqualified opinion as to the merits of the action; or (7) exhibits enmity or bias concerning either party.

If a potential juror falls within any one of the first five categories listed above, the bias of the juror is implied and the trial court must dismiss the juror. Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337 (1975). However, a challenge for cause under the remaining two categories requires a showing that the juror is biased in fact. Action Realty v. Brethouwer, 633 P.2d 522 (Colo.App.1981).

Sustaining a challenge for cause on grounds other than those provided for in C.R.C.P. 47(e) has the effect of giving the challenging party an additional peremptory challenge, and constitutes reversible error. Faucett v. Hamill, 815 P.2d 989 (Colo.App. 1991).

Here, the challenged juror stated that, as a recent law school graduate, he had knowledge concerning provisions of the HCAA, specifically its limitations on damages and the provisions that prevent disclosure of such limitations to the jury. See § 13-64-302(1), C.R.S.1999. However, during in camera questioning, this juror stated that he would not disclose that information to the other jurors and would be able to disregard the limitations in determining whether to award damages, and the amount, if any, to award.

Defendant nevertheless requested that this juror be excused from the panel for cause because he had specific knowledge of the damage limitations that were not to be disclosed to the jury. The trial court denied defendant's request.

We perceive no error in the trial court's rejection of defendant's challenge for cause. Despite the fact that the HCAA prohibits disclosure of the limitations on damages to the jury, defendant's basis for the challenge is not one of the enumerated reasons contained in C.R.C.P. 47 for dismissing a potential juror. Thus, the trial court properly denied defendant's request. See Faucett v. Hamill, supra (fact that potential juror was a lawyer was not sufficient ground to dismiss for cause because that reason is not listed in C.R.C.P. 47(e)).

II.

Defendant next contends the trial court erred in instructing the jury that it could make a separate damage award for physical impairment. Specifically, he asserts that § 13-64-204, C.R.S.1999, specifies the categories for which a jury may make an award, and that this statute does not contain a separate category for physical impairment. Therefore, he contends, the General Assembly must have intended to exclude physical impairment as an item of recoverable damage under the HCAA. We disagree.

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. To discern legislative intent, we look first to the statutory language. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo.1997).

A statute must be construed as a whole and an interpretation must give consistent, harmonious, and sensible effect to all parts of the statute. City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

Section 13-64-204 provides, in relevant part:

(1) If liability is found in a trial under [§ 13-64-201, et seq.], the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:

(a) Any past damages for each of the following types:

(I) Medical and other costs of health care;

(II) Other economic loss except loss of earnings;

(III) Loss of earnings; and

(IV) Noneconomic loss.

(b) Any future damages and the period of time over which they will be paid, for each of the following types:

(I) Medical and other costs of health care;

(II) Other economic loss except loss of future earnings which would be incurred for the life of the claimant or any lesser period;

(III) Loss of future earnings which would be incurred for the work life expectancy of the claimant or a lesser period; and

(IV) Noneconomic loss which would be incurred for the life of the claimant or any lesser period.

We agree that this statute does not specifically list physical impairment as an element of recoverable damages. However, neither does the statute expressly describe pain and suffering, loss of enjoyment of life, emotional distress, or other elements of damages. Nevertheless, that does not mean that such damages are not recoverable. Instead, the statute describes "types" of damages that are recoverable, broadly separating four separate types of damage into past and future damages.

Under the plain language of the statute, a plaintiff may recover for "economic" and "noneconomic" past and future losses. Hence, the issue is whether physical impairment is either an economic or noneconomic loss within the meaning of this statute.

Section 13-64-202, C.R.S.1999, contains the definitions that are applicable to the provision at issue, and thus those specific definitions supply the meanings of the words and phrases contained in § 13-64-204. Section 13-64-202(5), C.R.S.1999, defines "noneconomic loss" as "nonpecuniary harm for which damages are recoverable under the laws of this state." Section 13-64-202(1), C.R.S. 1999, defines "economic loss" as "pecuniary harm for which damages are recoverable under the laws of this state." Hence, we must determine whether physical impairment is a recoverable item of damage under Colorado law. We conclude that it is.

For quite some time, Colorado case law has recognized "physical impairment" as a harm for which compensation may be sought and awarded. Cf. Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804 (1969)

; Heckman v. Warren, 124 Colo. 497, 238 P.2d 854 (1951); Cookman v. Caldwell, 64 Colo. 206, 170 P. 952 (1918). Further, as defendant admits, the General Assembly explicitly has recognized physical impairment or disfigurement as a separate element of personal injury damages recoverable in tort actions. See § 13-21-102.5(5), C.R.S.1999 ("nothing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement"); Herrera v. Gene's Towing, 827 P.2d 619 (Colo.App.1992).

We also note that the HCAA was adopted in 1988, two years after the General Assembly recognized physical impairment as a recoverable element of damages in § 13-21-102.5. Because the General Assembly is presumed to be aware of laws already existing on the subject when it passes new legislation, City & County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961), we may presume it intended to recognize physical impairment as a recoverable item of damage under the HCAA.

For these reasons, we conclude that damages for physical impairment are "recoverable under the laws of this state."

Physical impairment may be a harm that results in pecuniary loss. "Pecuniary" in this context means "of or relating to money;" that is, a monetary loss. Random House Webster's Unabridged Dictionary 1428 (2d ed.1998). Physical impairment may also be nonpecuniary. See Matthews v. Industrial Commission, 627 P.2d 1123 (Colo.App.1980)

(some anatomical impairments have no material effect on a person's status in the labor market).

For example, a professional football player whose leg is amputated sustains a physical impairment that would most certainly entail a pecuniary loss. However, the same injury to a theoretical physicist whose work involves primarily critical thinking and analysis might not involve a similar pecuniary loss, but if the scientist's hobby were playing tennis, it would certainly involve a nonpecuniary loss.

Accordingly, physical impairment does not necessarily result in exclusively pecuniary or exclusively nonpecuniary harm. Nonetheless, because it is an element of damages that is "recoverable under the laws of this state" as either economic or noneconomic loss, see § 13-64-202(1) & (5), we reject defendant's argument that § 13-64-204 prohibits recovery for physical impairment.

Defendant relies on Ledstrom v. Keeling, 10 F.Supp.2d 1195 (D.Colo.1998) to support his contention. We are not persuaded to follow the Ledstrom rationale.

In Ledstrom, the federal district court concluded that damages for physical impairment were included within...