Howlett v. Greenberg, s. 72--224

Decision Date10 September 1974
Docket Number73--327,Nos. 72--224,s. 72--224
Citation34 Colo.App. 356,530 P.2d 1285
PartiesMary Ann HOWLETT, surviving spouse of Decedent, Louis U. Howlett, Plaintiff, v. David GREENBERG, Defendant-Appellee, Lynn Gonzales (nee Howlett), Conservatrix of the Estate of Terry Lu Howlett, a mental incompetent, and Lynn Gonzales (nee Howlett), Individually, Intervenors-Appellants. Lynn GONZALES (nee Howlett), Conservatrix of the Estate of Terry Lu Howlett, a mental incompetent, and Lynn Gonzales, (nee Howlett), Individually, Plaintiffs-Appellants, v. David GREENBERG, Defendant-Appellee. . I
CourtColorado Court of Appeals

Hochstadt & Straw, Jordan Hochstadt, Denver, for intervenors-appellants.

Friedman, Bader & Dufty, Charles A. Griedman, Denver, for plaintiffs-appellants.

Warren B. Bosch, Robert W. Hansen, Denver, for defendant-appellee.

SMITH, Judge.

Lynn Gonzales, individually, and as conservatrix of the estate of Terry Lu Howlett, a mental incompetent, brings this consolidated appeal as intervenor in No. 72--224 and as plaintiff in No. 73--327. The individual appeals arise from a denial of a motion to intervene in No. 72--224 and from the granting of defendant David Greenberg's motion for summary judgment in No. 73--327.

The facts are briefly as follows: On May 19, 1970, Louis U. Howlett died as a result of the alleged negligence of the defendant, David Greenberg. He was survived by his spouse, Mary Ann Howlett, a non-participating plaintiff herein, and two children by a previous marriage, Lynn Ann Gonzales and Terry Lu Howlett. Pursuant to C.R.S. 1963, 41--1--1, Mary Ann Howlett filed a wrongful death action against David Greenberg and others in the District Court of Jefferson County. On March 10, 1972, a jury returned a verdict in that action in favor of defendant David Greenberg and final judgment was entered thereon.

Plaintiff Mary Ann Howlett thereafter refused to appeal that judgment. Thereupon, Lynn Gonzales, for herself and for her ward Terry Lu Howlett, filed a motion to intervene for the purpose of taking an appeal. The trial court denied the motion, which denial was the subject of appeal No. 72--224.

Appellants Lynn Gonzales and Terry Lu Howlett then commenced a separate suit against defendant in the Denver district court, alleging essentially the same cause of action as in the Jefferson County civil action initiated by Mary Ann Howlett. Subsequently, appellants filed a motion to amend their complaint which was granted, adding an additional claim which asserted breach of contract arising out of alleged settlement negotiations with defendant. Defendant then filed and was granted a motion for summary judgment as to all the claims. In granting the summary judgment, the trial court held that all issues of negligence were barred by the doctrines of res judicata and collateral estoppel, and that, as to the contract claim, since appellants had not tendered any consideration to defendant, the appellants had not made a prima facie case.

Consolidation of these two cases presents two questions to be resolved upon review:

(1) Does a decedent's surviving spouse who commences a timely wrongful death action pursuant to C.R.S. 1963, 41--1--1, have the sole and exclusive control of the lawsuit such that decedent's children, as heirs at law, cannot intervene to appeal an adverse judgment entered against the surviving spouse?

(2) Was appellants' claim alleging breach of a settlement contract between the appellants and defendant properly dismissed by the trial court?

Intervention In the Wrongful Death Action

C.R.S. 1963, 41--1--1, provides that a surviving spouse shall have the right, to the exclusion of all others, to bring an action against the defendant for the wrongful death of the deceased spouse for a period of one year from the date of death; and that the right of any children of decedent to bring an action is wholly dependent upon the fact that there either be no spouse surviving, or that he or she shall have elected not to sue within the statutory one year period. Hindry v. Holt, 24 Colo. 464, 51 P. 1002. The statute also provides that heirs at law have a proprietary interest in the judgment resulting from the lawsuit in accordance with the applicable rules of descent and distribution. Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649. Heirs at law, as that term is used in C.R.S. 1963, 41--1--1(2), has been construed to mean lineal descendants, Hindry v. Holt, Supra, and thus in the instant suit, appellants, as children of the deceased, would have a one-half share in the judgment of the surviving spouse.

Appellants urge that to place the lawsuit within the exclusive control of the spouse, allowing her to waive the right to appellate review, would compromise their proprietary interest in the judgment. Appellee, on the other hand, cites authority from the state of Missouri, construing a wrongful death statute 1 similar to Colorado, which placed the sole control of the lawsuit exclusively with the electing spouse. The rationale underlying this line of cases is that the legislative intent of the statute giving the spouse the exclusive right to sue within the statutory period implies that the spouse has the sole control of all elements of all elements of the litigation. Spencer v. Bradley, 351 S.W.2d 202 (Mo.). Other authority points out that intervention by the heirs at law would open the spouse's lawsuit to diversity opinion and conflicts among the litigants on various questions of how the lawsuit should be prosecuted. See State v. District Court, 139 Mont. 367, 364 P.2d 739.

We agree with the line of authority which holds that to allow all parties whose interests are represented by the surviving spouse an automatic right of intervention in pending litigation would be contrary to the intent of the statute vesting the surviving spouse with the exclusive right to sue, and would result in confusion and controversy in litigating a wrongful death action. However, we disagree with the appellee's contention that, under the circumstances of this case, the surviving spouse has the exclusive control of the lawsuit.

C.R.S. 1963, 41--1--1, authorizes the surviving spouse to sue in his or her own name without joining the decedent's children, who are, under subsection (2) of the statute, real parties in interest. See C.R.C.P. 17(a). Implicit in the statute is a presumption that the surviving spouse will make a good faith effort to represent adequately the rights of all decedent's children, regardless of whether the surviving spouse is their natural parent. While we are in basic agreement with this presumption, there has been no showing that the legislature intended the presumption to grant exclusive control of the litigation to the spouse where there is a showing of inadequate representation of the children's rights.

C.R.C.P. 24(a) states:

'Upon timely application anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.'

The question of adequacy of...

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