Henisse v. First Transit, Inc.

Decision Date11 June 2009
Docket NumberNo. 08CA0962.,08CA0962.
PartiesPatricia HENISSE, Plaintiff-Appellant, v. FIRST TRANSIT, INC., an Ohio corporation licensed to do business in Colorado; and Eric Victor Cotton, Defendants-Appellees.
CourtColorado Court of Appeals

Cook & Jeffress, P.C., Stephen H. Cook, Christopher W. Jeffress, Boulder, Colorado, for Plaintiff-Appellant.

Wood Ris & Hames, P.C., William A. Rogers, III, Brendan L. Loy, Mark J. Jachimiak, Denver, Colorado, for Defendants-Appellees.

Sears & Swanson, P.C., Victoria C. Swanson, Colorado Springs, Colorado, for Amicus Curiae Colorado Trial Lawyers Association.

Opinion by Judge J. JONES.

Plaintiff, Patricia Henisse, was injured in an automobile accident when her vehicle was struck by a bus driven by defendant Eric Victor Cotton (the bus driver). She sued the bus driver and his employer, First Transit, Inc. The district court determined as a matter of law that the bus driver was also an employee of the Regional Transportation District (RTD), and therefore his potential liability was capped at $150,000 by virtue of the Colorado Governmental Immunity Act (CGIA), sections 24-10-101 to -120, C.R.S. 2008. The court also determined that First Transit, which Ms. Henisse had sued solely on a theory of respondeat superior, could not be held liable for an amount greater than the bus driver's potential liability. Ms. Henisse appeals those rulings, as well as the district court's subsequent judgment dismissing her claims against defendants after First Transit deposited $150,000, the maximum amount of defendants' potential liability, into an interest bearing account for Ms. Henisse. We affirm.

I. Background

At the time of the accident, the bus driver was driving a bus owned by RTD and operated by First Transit, which had contracted with RTD to operate certain of RTD's bus routes. While making a left turn, the bus driver turned in front of Ms. Henisse's car. Ms. Henisse's car struck the side of the bus. Ms. Henisse sustained significant injuries, and consequently filed suit against the bus driver and First Transit seeking compensation for those injuries. Ms. Henisse's complaint asserted a claim of negligence against the bus driver and a respondeat superior claim against First Transit.

Defendants filed a motion for determination of law under C.R.C.P. 56(h) requesting that the court (1) declare that the bus driver's liability, if any, is capped at $150,000 pursuant to section 24-10-114(1)(a) of the CGIA because he was a "public employee" (i.e., an employee of RTD); and (2) declare that First Transit's potential liability is also capped at $150,000 because its liability under the respondeat superior doctrine cannot exceed that of its responsible employee. Defendants also requested, pursuant to C.R.C.P. 67, leave to deposit $150,000 into an interest bearing account for Ms. Henisse's benefit, with payment conditioned on a favorable ruling for defendants on appeal, and dismissal of Ms. Henisse's claims upon deposit of the funds.

In response, Ms. Henisse argued that the CGIA does not limit her potential recovery because First Transit is an independent contractor of RTD and First Transit's employees are not employees of RTD.

The court granted defendants' motion. The court determined that, for purposes of the CGIA, the bus driver, although an employee of First Transit, was also an employee of RTD, and therefore, the bus driver's maximum potential liability under the CGIA is $150,000. The court further determined that, because under the doctrine of respondeat superior the employer's liability cannot be greater than that of its employee, First Transit's maximum potential liability is also $150,000. The court granted defendants' request to deposit $150,000 into an interest bearing account for Ms. Henisse, subject to defendants' prevailing in any appeal brought by Ms. Henisse. After defendants deposited the funds, the court dismissed Ms. Henisse's claims with prejudice.

II. Limitation on Defendants' Liability

Ms. Henisse contends that the district court erred in granting judgment as a matter of law in defendants' favor because (1) there is at least a genuine issue of material fact as to whether the bus driver was an employee of RTD (and therefore a public employee), (2) the court effectively applied the CGIA to a private entity, First Transit, in derogation of the CGIA and public policy, and (3) she was entitled to conduct additional discovery on the issues raised by defendants' motion. We address, and reject, each of these contentions in turn.

A. Standard of Review

C.R.C.P. 56(h) permits a party to move for a determination of a question of law at any time after all required pleadings have been filed. The rule expressly provides that the court may grant such a motion only if "there is no genuine issue of any material fact necessary for the determination of the question. . . ."

We review an order granting a motion for a determination of a question of law under Rule 56(h) de novo. Hopp & Flesch, LLC v. Backstreet, 123 P.3d 1176, 1180-81 (Colo.2005); Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1214 (Colo.App.2009). In so doing, we apply the same standards that governed the district court's determination of the motion. See Smith v. Boyett, 908 P.2d 508, 514 (Colo.1995). Thus, in determining whether a genuine issue of material fact exists, we bear in mind that the nonmoving party is entitled to all inferences that reasonably may be drawn from the undisputed facts, and we must resolve any doubt as to the existence of a genuine issue of material fact in the nonmoving party's favor. See West Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 480-81 (Colo.2002) (applying summary judgment standards to a Rule 56(h) motion). In this context, a material fact is one which would affect the outcome of the case. Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo.App.2008).

B. Public Employee

The CGIA governs the extent to which public entities and public employees may be found liable to another in tort. As relevant here, the CGIA waives immunity for injuries resulting from "[t]he operation of a motor vehicle, owned or leased by [a] public entity, by a public employee while in the course of employment. . . ." § 24-10-106(1)(a). When immunity is waived, "[t]he maximum amount that may be recovered under this article in any single occurrence, whether from one or more public entities and public employees, shall be . . . the sum of one hundred fifty thousand dollars." § 24-10-114(1)(a).

The parties agree that RTD is a public entity under the CGIA. See Brock v. Nyland, 955 P.2d 1037, 1040 (Colo.1998) (RTD is a public entity), overruled on other grounds by Finnie v. Jefferson County School Dist. R-1, 79 P.3d 1253 (Colo.2003). They also agree that RTD owned the bus that the bus driver was driving at the time of the accident. The parties disagree, however, whether the bus driver was a public employee within the meaning of the CGIA. The district court concluded as a matter of law that the bus driver was a co-employee of both First Transit and RTD, and we agree with that conclusion.

The CGIA defines a public employee as "an officer, employee, servant, or authorized volunteer of the public entity. . . ." § 24-10-103(4)(a). The CGIA does not define the term "employee." Therefore, we apply the common law meaning of the term. Norton v. Gilman, 949 P.2d 565, 567 (Colo.1997); Sereff v. Steedle, 148 P.3d 192, 195 (Colo.App.2005), rev'd on other grounds, 167 P.3d 135 (Colo. 2007).

"Under the common law, the most important factor in determining whether a worker qualifies as an employee is the alleged employer's right to control the details of performance." Norton, 949 P.2d at 567; see Allen Co., Inc. v. Indus. Comm'n, 762 P.2d 677, 681 (Colo.1988) (use of only those materials supplied by the employer to perform the work evidences control); Landis v. McGowan, 114 Colo. 355, 371, 165 P.2d 180, 187 (1946) (a worker is the employee of the person who has the right to control not merely the result, but also the progress and details of the work and the manner in which it is to be performed); Dana's Housekeeping v. Butterfield, 807 P.2d 1218, 1220 (Colo.App. 1990) (the most important factor in determining whether a person is an employee is the right to control, not the fact of control). A strong indication of the right to control is the employer's right to terminate the relationship with the worker without liability. Perkins v. Regional Transp. Dist., 907 P.2d 672, 674-75 (Colo.App.1995). Other relevant factors include the right to hire, the payment of a salary, and the right to dismiss. Norton, 949 P.2d at 567; see also Restatement (Second) of Agency § 220 (1958) (listing ten factors).1 These factors are not exhaustive, but in analyzing whether a person is an employee of a particular entity, we need only address the most relevant factors. Norton, 949 P.2d at 568.

The fact a person is an employee of one employer does not preclude a determination that he is also an employee of another employer for purposes of the CGIA. "[A] worker can simultaneously be the employee of two persons. . . ." Perkins, 907 P.2d at 675; accord Evans v. Webster, 832 P.2d 951, 954 (Colo.App.1991).

The contract between First Transit and RTD states that First Transit is an independent contractor. It also provides that "[t]he personnel performing services under the contract shall at all times be under [Fist Transit's] exclusive direction and control and shall be employees of [First Transit] and not employees of RTD." However, "how the parties refer to themselves in their contract is not dispositive," Perkins, 907 P.2d at 675; see also Restatement (Second) of Agency § 220 cmt. m ("It is not determinative that the parties believe or disbelieve that the relation of master and servant exists. . . ."), and we must therefore look to facts bearing on the nature of the parties' relationship in practice.

The following facts, all of which...

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