General Elec. Co. v. Niemet, s. 92SC552

• Decision Date: 10 January 1994
• Docket Number: 92SC767,Nos. 92SC552,s. 92SC552
• Citation: 866 P.2d 1361
• Parties: , Prod.Liab.Rep. (CCH) P 13,849 GENERAL ELECTRIC COMPANY, a New York corporation, doing business in Colorado, Petitioner, v. Donald L. NIEMET and Connie Niemet, Respondents. PARAHO DEVELOPMENT CORPORATION and Development Engineering, Inc., Petitioners, v. Dennis Wayne COOLEY, Respondent.
• Court: Colorado Supreme Court

Page 1361

866 P.2d 1361

62 USLW 2463, Prod.Liab.Rep. (CCH) P 13,849

GENERAL ELECTRIC COMPANY, a New York corporation, doing

business in Colorado, Petitioner, v. Donald L. NIEMET and Connie Niemet, Respondents.

PARAHO DEVELOPMENT CORPORATION and Development Engineering, Inc., Petitioners, v. Dennis Wayne COOLEY, Respondent.

Nos. 92SC552, 92SC767.

Supreme Court of Colorado En Banc.

Jan. 10, 1994.

Watson, Nathan & Bremer, P.C., Mark H. Dumm, Heidi J. Hugdahl, Denver, for petitioner General Electric Co.

Bill E. Landsberg, Kenneth A. Matthews, Colorado Springs, for respondents Donald and Connie Niemet.

Colorado Trial Lawyers Ass'n, Amicus Curiae Committee, Douglas E. Bragg, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

White and Steele, P.C., Glendon L. Laird, Joseph R. King, Denver, for amicus curiae Colorado Defense Lawyers Ass'n.

Hall & Evans, L.L.C., Alan Epstein, Mann & Shappell, W. Berkeley Mann, Jr., Denver, for petitioners Paraho Development Corp. and Development Engineering, Inc. Nicholas W. Goluba, Jr., Glenwood Springs, for respondent Dennis Wayne Cooley.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to determine the relationship between section 13-21-102.5, 6A C.R.S. (1987 & 1993 Supp.), which limits noneconomic damages in a civil action, and section 13-21-111.5, 6A C.R.S. (1987 & 1993 Supp.), the pro rata liability statute. Specifically, we now decide, in cases involving multiple defendants or where the plaintiff is partially at fault, whether the cap imposed by section 13-21-102.5 shall be applied to individual defendants after liability has been apportioned or whether it shall be applied first to the plaintiff's total award before pro rata liability is apportioned.

We consolidated two separate actions for review and concurrently address both appeals, since each raises the same issue. In the first case, General Electric Co. v. Niemet, No. 92SC552, General Electric appeals from the court of appeals' decision upholding the trial court, which first calculated each party's pro rata share of damages and then applied the statutory cap to each defendant. 843 P.2d 87. In Paraho Development Corp. v. Cooley, No. 92SC767, Paraho appeals from the court of appeals' decision correcting the trial court's error and directing the trial court to apportion the percentages of fault before applying the statutory cap. 851 P.2d 207.

We affirm the decisions of the court of appeals and hold that a trial court shall apportion liability according to the degree of fault before it applies the statutory cap on noneconomic damages. We hold that the cap in section 13-21-102.5 applies to the liability share of each defendant in a case, and does not act as a cap on the total amount a plaintiff may recover.

I.

A.

Donald Niemet is employed by the Electric Utilities Division of the City of Colorado Springs. On August 21, 1987, after nine years of employment with the City, Niemet was injured in an explosion and fire caused by a defective and improperly grounded transformer manufactured by General Electric. Niemet suffered severe burns and dislocation of both shoulders. At trial in November 1990, a jury determined that Niemet suffered $1 million in noneconomic damages, $120,000 in economic damages, and $75,000 in damages for physical impairment or disfigurement. The jury apportioned the liability three ways: the City of Colorado Springs was found to be fifty-five percent at fault; General Electric, thirty-five percent at fault; and Niemet, ten percent at fault. The court apportioned thirty-five percent of the damages to General Electric, or $350,000. Because the court found that clear and convincing evidence justified raising the cap on noneconomic damages to $500,000, the cap was not used to reduce the noneconomic award further. The court of appeals affirmed the decision of the trial court.

B.

On September 6, 1980, Dennis Cooley was riding a motorcycle when he collided with a United States Postal Service vehicle driven by a Postal Service employee. Cooley was twelve years old at the time of the collision. In June 1988, Cooley filed this action against the Paraho Development Corporation and its subsidiary, Development Engineering, Inc., based on claims that Paraho had failed to remove certain rocks and natural vegetation in the area of the accident, which hindered or blocked drivers' vision at the intersection. ¹

Trial occurred in early November 1990. The jury apportioned twenty percent of the fault to Paraho; twenty-five percent to the driver of the Postal Service vehicle (who was not a party); twenty percent to the United States (which was not a party); five percent to the plaintiff's mother; five percent to the plaintiff's father; and twenty-five percent to the plaintiff. The jury further determined that Cooley sustained $350,000 in noneconomic losses, $350,000 in economic losses and no damages for physical impairment. The trial court initially reduced the verdict by eighty percent, representing the negligence of all non-parties and the plaintiff and his family, and entered judgment in the amount of $140,000 ($70,000 for noneconomic damages and $70,000 for economic damages). Pursuant to Paraho's post-trial motions, however, the trial court altered this formula by applying section 13-21-102.5 and reducing the noneconomic damage award to $250,000, and then reduced this sum by eighty percent. The trial court then entered judgment for plaintiff in the amount of $50,000, rather than for $70,000 for noneconomic damages.

On appeal, the court of appeals reversed the trial court's method of calculating noneconomic damages and held that the trial court should have assessed the percentages of fault before it applied the $250,000 statutory cap.

II.

We granted certiorari in this case to decide the relationship between section 13-21-102.5, 6A C.R.S. (1987 & 1993 Supp.), which limits noneconomic damages to $250,000, and section 13-21-111.5, 6A C.R.S. (1987 & 1993 Supp.), the pro rata liability statute. Subsection (3)(a) of section 13-21-102.5 states:

In any civil action in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of such damages exceed five hundred thousand dollars.

§ 13-21-102.5(3)(a), 6A C.R.S. (1987).

The pertinent parts of the pro rata liability statute, section 13-21-111.5, state:

(1) In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss....

(2) The jury shall return a special verdict, or, in the absence of a jury, the court shall make special findings determining the percentage of negligence or fault attributable to each of the parties and any persons not parties to the action.

§ 13-21-111.5(1), (2), 6A C.R.S. (1987).

The dilemma raised by Niemet and Cooley occurs when several defendants are found to be at fault and/or when the plaintiff himself bears some of the fault. In its most basic form, the issue is whether a trial court should apply the statutory cap on noneconomic damages before or after it rules on the pro rata liability of the defendants and the plaintiff.

An example is useful to illustrate these two alternatives and the effect on each of the parties. The Niemet jury determined that Niemet suffered $1 million in noneconomic damages and apportioned fifty-five percent of the fault to the City of Colorado Springs, thirty-five percent to General Electric, and ten percent to Niemet. Applying the finding of the jury, the trial court determined that General Electric was liable for $350,000. The trial court also found that clear and convincing evidence existed to raise the cap to $500,000. Because the amount of General Electric's liability was less than $500,000, the court did not apply the statutory cap. In this scenario, General Electric would be liable for $350,000. Alternatively, if the trial court had applied the cap before it apportioned liability, it would have begun by reducing Niemet's $1 million jury verdict to $500,000. It then would have apportioned thirty-five percent of $500,000, or $175,000, to General Electric. In this second situation, where the cap was applied to a plaintiff's jury verdict before pro rata liability is apportioned, General Electric would be liable for only half the amount it would in the first scenario.

General Electric and Paraho argue for applying the statutory cap on the plaintiff's total noneconomic damage award before pro rata liability is apportioned. Niemet and Cooley argue that the cap should act to limit the liability of individual defendants and should be applied to the defendants' pro rata shares. These different interpretations require an inquiry as to whether the language of the statute is ambiguous.

III.

When the language of a statute is clear and unambiguous, we apply the statute as written and do not need to employ the interpretive rules of statutory construction. Sigman v. Seafood Ltd. Partnership, 817 P.2d 527 (Colo.1991). Where a statute is unclear, however, and the language lends itself to alternative constructions, it is appropriate to look to the pertinent legislative history in determining which construction is in accordance with the objective sought by the legislature. People v. Terry, 791 P.2d 374 (Colo.1990); Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo.1989). Statutes susceptible to more than one interpretation are ambiguous and must be construed in light of their legislative intent and purpose. Estate of David v. Snelson, 776 P.2d 813 (Colo.1989). If the language of the statute is ambiguous, we may consider its legislative history to ascertain the...