Ferrer v. Okbamicael, Supreme Court Case No. 15SA340

• Docket Nº: Supreme Court Case No. 15SA340
• Citation: 390 P.3d 836
• Case Date: February 27, 2017
• Court: Supreme Court of Colorado

390 P.3d 836

In re Jessica FERRER, Plaintiff,
v.
Tesfamariam OKBAMICAEL and Colorado Cab Company, L.L.C., Defendants.

Supreme Court Case No. 15SA340

Supreme Court of Colorado.

February 27, 2017
As Modified on Denial of Rehearing March 27, 2017

Attorneys for Plaintiff: Leventhal & Puga, P.C., Benjamin I. Sachs, James E. Puga, Alex Wilschke, Bruce Braley, Denver, Colorado, The Buxton Law Firm, Tim Buxton, Colorado Springs, Colorado

Attorneys for Defendants: Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado

Attorneys for Amici Curiae Colorado Defense Lawyers Association and Colorado Civil Justice League: Fennemore Craig, P.C., Troy Rackham, Denver, Colorado, Taylor |Anderson LLP, Lee Mickus, Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Cross & Bennett, L.L.C., Joseph F. Bennett, Colorado Springs, Colorado

Attorneys for Amicus Curiae Copic Insurance Company: Davis Graham & Stubbs LLP, Shannon Wells Stevenson, Kyle W. Brenton, Denver, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 In this original proceeding under C.A.R. 21, we address whether an employer's admission of vicarious liability for an employee's negligence in response to a plaintiff's complaint forecloses a plaintiff's additional, direct negligence claims against the employer.

¶2 Plaintiff Jessica Ferrer and her companion, Kathryn Winslow, were injured when a taxicab driven by Tesfamariam Okbamicael struck them as they crossed a street in Denver, Colorado. Okbamicael worked for Colorado Cab Company ("Yellow Cab"), which owned the taxicab. Ferrer¹ brought this suit against Okbamicael and Yellow Cab (collectively, "Defendants"), alleging that Okbamicael was negligent and that Yellow Cab was vicariously liable for his negligence under the doctrine of respondeat superior. Ferrer also alleged that Yellow Cab was liable for her injuries suffered in the collision under theories of direct negligence, namely, negligence as a common carrier and negligent entrustment, hiring, supervision, and training.

¶3 In an amended answer to the complaint, Yellow Cab admitted that Okbamicael was an employee acting within the course and scope of his employment with Yellow Cab at the time of the accident. Defendants then moved for partial judgment on the pleadings, seeking to dismiss Ferrer's direct negligence claims against Yellow Cab. The trial court granted Defendants' motion, applying the rule articulated in McHaffie v. Bunch , 891 S.W.2d 822 (Mo. 1995), that an employer's admission of vicarious liability for an employee's negligence bars a plaintiff's direct negligence claims against the employer.

390 P.3d 840

¶4 Ferrer later moved to amend the complaint to add exemplary damages against both Okbamicael and Yellow Cab. The trial court denied Ferrer's motion because Ferrer failed to allege evidence of willful and wanton conduct by Okbamicael or by Yellow Cab sufficient to establish prima facie proof of a triable issue of exemplary damages, as required by section 13-21-102(1.5), C.R.S. (2016).

¶5 Ferrer petitioned for relief under C.A.R. 21, asking this court to vacate the trial court's orders dismissing her direct negligence claims against Yellow Cab and denying her motion to amend the complaint to add exemplary damages against Okbamicael and Yellow Cab. Ferrer likewise sought relief from the trial court's orders denying her motions for reconsideration.

¶6 We issued a rule to show cause to review the trial court's orders.² We now discharge the rule.

I. Facts and Procedural History

¶7 At approximately 10:40 p.m. on July 15, 2011, Okbamicael struck Ferrer and Winslow with his taxicab as they crossed an intersection in lower downtown Denver. Ferrer sustained significant injuries as a result of the collision.

¶8 In July 2014, Ferrer filed suit against Okbamicael and Yellow Cab, seeking damages for the injuries she suffered in the collision. Ferrer asserted claims against Okbamicael for negligence and negligence per se. She also alleged that Yellow Cab was liable for Okbamicael's negligence under the doctrine of respondeat superior. Finally, she asserted direct negligence claims against Yellow Cab, specifically, negligence as a common carrier, negligent entrustment, negligent hiring, negligent retention/ supervision, and negligent training.

¶9 Yellow Cab initially denied allegations in Ferrer's complaint that Okbamicael was an employee and instead asserted that he operated the taxicab as an independent contractor. Defendants later filed an amended answer, however, to admit that Okbamicael was an employee and that he was operating the taxicab within the course and scope of his employment with Yellow Cab at the time of the accident.

¶10 After filing their amended answer, Defendants moved in December 2014 for partial judgment on the pleadings, seeking dismissal of the direct negligence claims against Yellow Cab (negligence as a common carrier, negligent entrustment, negligent hiring, negligent retention/supervision, and negligent training). Defendants argued that under the McHaffie rule followed in other jurisdictions, direct negligence claims against an employer are barred where the employer has acknowledged the employee was acting within the course and scope of his employment at the time of the alleged tort.

¶11 On March 6, 2015, the trial court granted Defendants' motion for partial judgment on the pleadings and dismissed Ferrer's direct negligence claims against Yellow Cab. It simultaneously entered a protective order to preclude discovery regarding Okbamicael's hiring, supervision, retention, and training. The trial court noted that although no Colorado appellate court had addressed this issue, it was persuaded by several rulings by state and federal trial courts applying the McHaffie rule.

¶12 Ferrer moved for reconsideration, arguing that the McHaffie rule is inapplicable in a comparative fault jurisdiction such as Colorado. The trial court denied Ferrer's motion, reasoning that Ferrer "failed to demonstrate how the [trial court's] ruling is inconsistent with Colorado's adoption of comparative negligence."

¶13 Five months later, in August 2015, Ferrer moved to amend the complaint to add exemplary damages against both Okbamicael and Yellow Cab under section 13-21-102. As evidence of Defendants' willful and wanton conduct, Ferrer alleged that at the time of the collision, Okbamicael was driving in excess of the speed limit, was talking on his cell phone in violation of company policy, and had been driving more than ten hours in

390 P.3d 841

violation of Public Utilities Commission ("PUC") regulations. In addition, Ferrer alleged that Yellow Cab knew before the incident that Okbamicael was a "habitual hours of service violator"; that Yellow Cab intentionally destroyed its drivers' trip sheets; and that Yellow Cab "forced" its drivers to use cell phones by not using a dispatch system at the airport. Ferrer indicated that she would request a spoliation instruction regarding Yellow Cab's destruction of the trip sheets.

¶14 Defendants opposed Ferrer's motion to amend as untimely,³ and argued that Ferrer's late amendment to the complaint would significantly prejudice Defendants by requiring additional discovery and further delaying trial. Defendants also objected on grounds that Ferrer failed to set forth prima facie proof of a triable issue of exemplary damages, as required by section 13-21-102(1.5)(a).

¶15 Following a hearing, the trial court denied Ferrer's motion to amend the complaint to add exemplary damages. The trial court reasoned that Ferrer's allegations that Okbamicael was speeding and talking on his cell phone did not constitute willful and wanton conduct justifying punitive damages. The court further concluded that Ferrer's allegations that Yellow Cab destroyed Okbamicael's time sheets and that Okbamicael exceeded a ten-hour-maximum-driving-time rule on the day of the accident failed to establish prima facie evidence of willful and wanton conduct by Yellow Cab. Because PUC regulations require trip sheets to show the hours a driver was on duty, not his actual driving time, the missing trip sheets would not have shed light on Ferrer's contention that Okbamicael drove more than ten hours on the day of the accident. The trial court observed that Ferrer's allegations against Yellow Cab required "a lot of leaps of faith and a lot of connecting of inferences" and concluded that Ferrer had failed to establish prima facie proof of a triable issue of exemplary damages. The court therefore denied Ferrer's motion for leave to amend the complaint, and later denied Ferrer's motion for reconsideration.

¶16 Ferrer petitioned for relief under C.A.R. 21, asking this court to vacate the trial court's orders granting Defendants' motion for partial judgment on the pleadings and dismissing Ferrer's direct negligence claims against Yellow Cab, denying Ferrer's motion for leave to amend the complaint to add exemplary damages claims, and denying reconsideration of those rulings. We issued an order to show cause and now discharge the rule.

II. Original Jurisdiction

¶17 Original relief under C.A.R. 21 is an extraordinary remedy limited in purpose and...