Guarantee Trust Life Ins. Co. v. Estate, Supreme Court Case No. 17SC2

• Decision Date: 29 May 2018
• Docket Number: Supreme Court Case No. 17SC2
• Parties: GUARANTEE TRUST LIFE INSURANCE COMPANY, an Illinois corporation, Petitioner, v. The ESTATE OF Michael Dean CASPER, BY AND THROUGH Nick CASPER, personal representative, Respondent.
• Court: Colorado Supreme Court

418 P.3d 1163

GUARANTEE TRUST LIFE INSURANCE COMPANY, an Illinois corporation, Petitioner,

v.The ESTATE OF Michael Dean CASPER, BY AND THROUGH Nick CASPER, personal representative, Respondent.

Supreme Court Case No. 17SC2

Supreme Court of Colorado.

May 29, 2018

Attorneys for Petitioner: Hall & Evans, L.L.C., Kevin E. O'Brien, Alan Epstein, Malcolm S. Mead, Denver, Colorado

Attorneys for Respondent: Levin Sitcoff PC, Bradley A. Levin, Nelson A. Waneka, Denver, Colorado, Keating Wagner Polidori Free PC, Zachary C. Warzel, Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association, The Gold Law Firm, LLC, Michael J. Rosenberg, Greenwood Village, Colorado

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶1 In this case, we consider the operation of section 13-20-101, C.R.S. (2017), Colorado's survival statute, and section 10-3-1116(1), C.R.S. (2017), a statutory cause of action for the unreasonable delay or denial of insurance benefits. We also consider the scope of the trial court's authority to enter a final judgment nunc pro tunc. The original plaintiff, Michael Dean Casper, now deceased, received a favorable jury verdict awarding damages for breach of contract, bad-faith breach of insurance contract, and unreasonable delay or denial of insurance benefits under section 10-3-1116(1). The jury also awarded Casper substantial punitive damages. Nine days after the jury returned its verdict—but before the trial court reduced that verdict to a written and signed judgment—Casper died. Consequently, the defendant, Guarantee Trust Life Insurance Company ("GTL"), moved to substantially reduce the verdict, arguing that the survival statute barred certain damages. The trial court denied the motion, and the court of appeals affirmed. We granted GTL's petition to review the court of appeals' decision.¹ We now conclude that the survival statute does not limit the jury's verdict in favor of Casper. We also conclude that an award of attorney fees and costs under section 10-3-1116(1) is a component of the "actual damages" of a successful claim under that section. Finally, we conclude that although the survival statute does not limit the damages awarded by the jury, the trial court abused its discretion by entering a final judgment on October 30, 2014, nunc pro tunc to July 15, 2014. Therefore, we affirm the court of appeals' decision in part and reverse in part.

I. Facts and Procedural History

¶2 Casper sued GTL alleging breach of contract, bad-faith breach of an insurance contract, and statutory unreasonable delay or denial of insurance benefits under section 10-3-1116(1). On July 15, 2014, the jury returned a verdict in favor of Casper on each claim; in addition to compensatory damages, it awarded him substantial punitive and non-economic damages. The same day it received the verdict, the trial court recognized that Casper, who was suffering from cancer

, was in poor health and immediately made an oral order indicating the court's intent that the verdict become a judgment. Specifically, the trial court stated, "[T]he verdict is received by the court and the clerk of the court is instructed to enter the verdict in the court registry.... I'm entering judgment." Nine days later—before the oral order of the court had been entered as a written and signed order as required by C.R.C.P. 58 —Casper died. Casper's Estate was then substituted as the plaintiff in place of Casper. On October 30, 2014, the trial court entered a signed and written judgment in favor of Casper's Estate for nearly two million dollars; it dated this written judgment nunc pro tunc to July 15, 2014, the date the jury returned the verdict in favor of Casper.

¶3 After Casper's death, GTL filed a motion to amend the judgment and asked the court to exclude attorney fees and costs in its calculation of "actual damages" and also argued that the survival statute required a severe reduction in the award by the jury. The trial court disagreed and GTL appealed. The court of appeals affirmed the trial court's decisions. Now, GTL asks us to reverse the court of appeals and hold that Casper's Estate is entitled only to $50,000 in damages under the breach-of-contract claim. GTL also reiterates its argument that the trial court erred by including the award of attorney fees granted under section 10-3-1116(1) in its calculation of punitive damages and that the trial court erred by entering final judgment nunc pro tunc to the date of verdict.

II. Standard of Review

¶4 This case presents several questions of statutory interpretation, which we review de novo. Goodman v. Heritage Builders, Inc., 2017 CO 13, ¶ 5, 390 P.3d 398, 401. And we review the trial court's entry of final judgment nunc pro tunc for an abuse of discretion. See Perdew v. Perdew, 99 Colo. 544, 64 P.2d 602, 604 (1936) ("Application for ... a judgment [nunc pro tunc ] is addressed to the sound discretion of the court.").

III. Analysis

¶5 We begin by considering the survival statute itself. Next, we measure each claim for relief brought by Casper against that statute and conclude that the survival statute, which was enacted to blunt the common law rule on abatement, does not bar any of Casper's original claims for relief, nor does it require any limitations on damages. We then consider the award of attorney fees and court costs available pursuant to section 10-3-1116(1) and determine that such an award constitutes "actual damages" within the meaning of section 13-21-102(1)(a), C.R.S. (2017), the punitive damages statute. Finally, we consider the trial court's decision to enter final judgment on October 30, 2014, nunc pro tunc to July 15, 2014, the date the jury returned its verdict. We conclude that, because an award of attorney fees and court costs under section 10-3-1116(1) is considered actual damages, and those actual damages were not fixed by the trial court by July 15, 2014, the trial court could not have entered final judgment nunc pro tunc to that date.

A. The Survival Statute

¶6 In considering the operation of the survival statute, we begin, as we must, with the text of the statute itself. Goodman, ¶ 7, 390 P.3d at 401. The survival statute provides that:

All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued, but punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed; and, in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death.

§ 13-20-101(1) (emphases added). We note that the survival statute provides that all actions survive the death of either party except actions for slander or libel. Id. Casper brought multiple claims for relief, none of which were for slander or libel, so the actions themselves clearly survived his death. However, the survival statute also limits the damages that are available in two scenarios, even when the underlying action survived. It is those damages limitations that are most relevant to our decision in this case.

¶7 Because Casper brought multiple claims for relief, we ask first whether the survival statute and its damages limitations apply broadly over entire lawsuits or more narrowly over individual claims. We conclude that the survival statute acknowledges that a plaintiff's suit can contain multiple categories of claims, some of which may wholly survive and others of which may be limited. Our system of adversarial litigation certainly permits, if not encourages, the inclusion of multiple theories of liability within a particular lawsuit. See C.R.C.P. 8(e)(2) ("A party may also state as many separate claims or defenses as he has...."). Of course, the survival statute speaks of "causes of action," not theories of liability or claims for relief. However, we conclude that "cause of action" as used in the survival statute references individual claims with individual remedies, not a lawsuit as a whole. Indeed, the legislature characterized the claim under section 10-3-1116, for example, as an "action" and explicitly created that action "in addition to ... other actions available." § 10-3-1116(4). GTL itself appears to share our view of the survival statute, as it concedes that the Estate may receive the damages for GTL's breach of contract, suggesting that the survival statute addresses each theory of liability individually.²

¶8 Although the survival statute permits all but two causes of action to survive the death of either party, it does limit the damages available to a successful litigant in two primary scenarios: (1) when punitive damages and penalties are at issue ("penalty limitation"); and (2) in tort actions based on personal injury ("personal-injury limitation"). § 13-20-101(1). We address these two limitations in turn.

¶9 The penalty limitation affects punitive damages and penalties and states that "punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed." Id. (emphasis added). So, by the statute's plain terms, this limitation could not possibly apply in this case because GTL—the party "against whom such punitive damages or penalties" were claimed—still exists.³

¶10 We recognize that in Kruse v. McKenna, 178 P.3d 1198, 1200 (Colo. 2008), we intimated that the statute's limitation on penalties and punitive damages applies when either party dies. If we were to apply that interpretation of the survival statute, Casper's recovery, or at least portions of it, would be barred by the survival statute. See Warren v. Liberty Mut. Fire Ins. Co.,...