Hernandez v. Downing, 06SA211.

• Decision Date: 26 March 2007
• Docket Number: No. 06SA211.,06SA211.
• Citation: 154 P.3d 1068
• Parties: In re Pascual HERNANDEZ, Gloria Smith, Janet Hernandez, Mike Hernandez, Anthony Hernandez, Ralph Hernandez, Annette Terrones and Chris Cauldwell, Plaintiffs. v. Samuel DOWNING, IV, M.D. and Parkview Medical Center, Defendants.
• Court: Colorado Supreme Court

154 P.3d 1068

In re Pascual HERNANDEZ, Gloria Smith, Janet Hernandez, Mike Hernandez, Anthony Hernandez, Ralph Hernandez, Annette Terrones and Chris Cauldwell, Plaintiffs. v. Samuel DOWNING, IV, M.D. and Parkview Medical Center, Defendants.

No. 06SA211.

Supreme Court of Colorado, En Banc.

March 26, 2007.

Irwin & Boesen, P.C., Brad R. Irwin, Chris L. Ingold, Asher M.B. Ritmiller, Denver, Colorado, Attorneys for Plaintiffs.

Kennedy Childs & Fogg, P.C., Barbara H. Glogiewicz, Ronald H. Nemirow, Denver, Colorado, Attorneys for Defendant Parkview Medical Center.

Justice EID delivered the Opinion of the Court.

Today we hold that Colorado's Wrongful Death Statute, section 13-21-203(1), C.R.S. (2006), means what it says when it limits wrongful death claims to "only one civil action" for the death of one decedent. In this case, Plaintiffs have sued two Co-Defendants in Prowers County District Court for the death of Vera Hernandez based on separate torts allegedly committed in different counties. One of the Defendants, Parkview Medical Center ("Parkview"), moved to sever Plaintiffs' claim against it and have venue over that claim transferred to Pueblo County, where Parkview is located. The trial court granted Parkview's motion.

We issued a rule to show cause to determine whether severance and transfer would violate the Wrongful Death Statute by creating a second civil action. We hold that it does and make the rule absolute. When a plaintiff files a wrongful death action against multiple co-defendants, the satisfaction of venue requirements as to one defendant is sufficient to establish proper venue as to all other co-defendants.

I.

Plaintiffs are the successors to Vera Hernandez, who in April 2003 was admitted to the Prowers Medical Center, located in Prowers County. At the Prowers Medical Center, Dr. Samuel Downing performed exploratory surgery on Hernandez. Plaintiffs allege that, during the course of the surgery, Downing perforated Hernandez's intestines.

Days after the surgery, Hernandez was admitted to Parkview Medical Center in Pueblo County for continuing treatment. Plaintiffs allege that, while at Parkview, Hernandez received inadequate medical care from Parkview's nursing staff, causing her to suffer respiratory failure. Hernandez died a month later.

Plaintiffs sued Downing and Parkview in Prowers County District Court for the wrongful death of Hernandez. In their action, Plaintiffs brought two claims of negligence: one against Downing arising from his treatment of Hernandez at the Prowers Medical Center, and the other against Parkview arising from the treatment of Hernandez by its nursing staff. Plaintiffs claim that Hernandez died from a combination of injuries caused by the separate negligence of Downing and Parkview.

Plaintiffs' complaint does not contain an allegation of venue. Nevertheless, since neither Downing nor Parkview resides in Prowers County, it appears that the only basis for venue in Prowers County is C.R.C.P. 98(c)(5), which establishes venue "in the county where the tort was committed."

Parkview moved to sever Plaintiffs' negligence claims and to transfer venue over Plaintiffs' negligence claim against Parkview to Pueblo County. Parkview argued that venue was improper because the tort allegedly committed by Parkview occurred in Pueblo County, not Prowers County. Plaintiffs opposed the motion on the grounds that transferring venue over their claim against Parkview to Pueblo County would create a second cause of action arising from Hernandez's death, thereby violating the "only one civil action" provision of the Wrongful Death Statute.

The trial court granted the motion to transfer Plaintiffs' action against Parkview to Pueblo County, finding that section 13-21-203 inures only to the benefit of defendants, not plaintiffs, and therefore that Plaintiffs in this case could not rely on the Wrongful Death Statute's "only one civil action" language to preclude severance and transfer of their claim against Parkview. The trial court further held that this court's opinion in Spencer v. Sytsma, 67 P.3d 1 (Colo.2003), rendered venue improper in Prowers County as to Plaintiffs' claim against Parkview.

We issued a rule to show cause in order to consider whether the transfer of venue violated the Wrongful Death Statute.

II.

Plaintiffs' suit against Downing and Parkview implicates the Wrongful Death Statute, which provides in relevant part:

There shall be only one civil action under this part 2 for recovery of damages for the wrongful death of any one decedent.

§ 13-21-203(1)(a) (emphasis added). Plaintiffs argue that the severance of their negligence claim against Parkview and the concomitant transfer of this claim to Pueblo County has created two civil actions for wrongful death, thereby violating the terms of section 13-21-203(1)(a).

We agree with Plaintiffs. Specifically, we find that the language of section 13-21-203(1)(a) limits wrongful death actions to "only one civil action," and that by transferring venue and severing claims against Parkview and Downing, the trial court created a second wrongful death action. To the extent that the rules of venue set forth in C.R.C.P. 98 support Parkview's demand for a change of venue, those rules are subordinate to the statutory language applicable in unique cases where, as here, co-defendants are sued for the wrongful death of one decedent based on separate torts committed in different counties.

Beginning with the statutory language, section 13-21-203(1)(a) states that there "shall be only one civil action . . . for recovery of damages for the wrongful death of any one decedent." (emphasis added). The words "only" and "one" are self-evident, leaving no room for doubt that Colorado law forbids multiple actions for the recovery of damages for the wrongful death of a decedent.

The question then becomes whether the severance of Plaintiffs' claim against Parkview and the transfer of that claim to Pueblo County create a second "civil action" for purposes of the Wrongful Death Statute. Parkview argues that it does not, because the trial court only has mandated multiple trials of Plaintiffs' wrongful death action in separate counties, and has not thereby created separate civil actions.

We find this argument implausible under any generally-recognized notion of what constitutes a civil action. While this court has not had occasion to define a civil action, we think the court of appeals was correct long ago when it explained that an "action" is "a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or law." Clough v. Clough, 10 Colo. App. 433, 439, 51 P. 513, 515 (1897) (internal quotation marks omitted). This definition accords with others found in Colorado law and elsewhere. See § 4-1-201(b)(1), C.R.S. (2006) (defining "action" under the Uniform Commercial Code as "a judicial proceeding . . . in which rights are determined"); 1 Morris M. Estee, Estee's Pleadings, Practice, and Forms § 3 (3d ed. 1885) ("An action has been defined to be an ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."); 1A C.J.S. Actions § 7 (2005) ("A civil action has been defined as . . . an action which has for its object the recovery of private or civil rights or compensation for their infraction . . . .").

The singular nature of a civil action does not end with the filing of one complaint in one court. Because a civil action is the sum of its constituent parts, our rules contemplate that an action will remain a proceeding in one court, in that it will have one case management order, see C.R.C.P. 16(b), one period of discovery, see C.R.C.P. 26, and one trial on liability, see C.R.C.P. 39. Even C.R.C.P. 54(b), which permits the entry of multiple judgments for separate claims or parties, presupposes that the case will remain "an action"—meaning a single action— and that it will remain in the same court. See C.R.C.P. 54(b) ("[t]he court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties . . . .") (emphasis added). Similarly, C.R.C.P. 42(b) allows for multiple trials on "separate issue[s] or . . . claims," but presumes that only one court will hold these trials. Our rules, therefore, are consistent with the proposition that an "action" is a singular event taking place in one court.

If venue over Plaintiffs' claim against Parkview is transferred to Pueblo County, then the Prowers County trial court will lose all jurisdiction over Plaintiffs' claim against Parkview, but will retain jurisdiction over Plaintiffs' claim against Downing. See Millet v. Dist. Court, 951 P.2d 476, 477 (Colo.1998)...