Lee v. Colorado Dept. of Health

• Decision Date: 31 March 1986
• Docket Number: No. 83SA414,83SA414
• Citation: 718 P.2d 221
• Parties: Lawrence Wayne LEE and Carol Lee, and Carol Lee, on Behalf of the minor children, Tammy Lee, Shana Lee, Jered Lee, Jeremiah Lee, and Joshua Lee, Plaintiffs-Appellants, v. The COLORADO DEPARTMENT OF HEALTH, a State Agency for the State of Colorado, and Dennis John Plog, individually, Defendants-Appellees and Cross-Appellants.
• Court: Colorado Supreme Court

Page 221

718 P.2d 221

Lawrence Wayne LEE and Carol Lee, and Carol Lee, on Behalf

of the minor children, Tammy Lee, Shana Lee, Jered

Lee, Jeremiah Lee, and Joshua Lee, Plaintiffs-Appellants, v. The COLORADO DEPARTMENT OF HEALTH, a State Agency for the

State of Colorado, and Dennis John Plog,

individually, Defendants-Appellees and

Cross-Appellants.

No. 83SA414.

Supreme Court of Colorado,

En Banc.

March 31, 1986.

Rehearing Denied April 14, 1986.

As Modified on Denial of Rehearing May 2, 1986.

James C. Anesi, Durango, for plaintiffs-appellants.

Hamilton, Shand & McLachlan, Michael E. McLachlan, Keith Newbold, Durango, for defendants-appellees and cross-appellants.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H Forman, Sol. Gen., Laura E. Udis, Asst. Atty. Gen., Denver, for amicus curiae, Colorado Atty. Gen.'s Office.

Susan K. Griffiths, Tami A. Tanoue, Denver, for amicus curiae, Colorado Mun. League.

QUINN, Chief Justice.

This appeal raises several questions concerning the construction and application of the Colorado Governmental Immunity Act, §§ 24-10-101 to -118, 10 C.R.S. (1982 & 1985 Supp.), and a number of other issues as well. The appellants, Lawrence Wayne Lee (Wayne Lee), his wife Carol Lee, and the Lees' five children were plaintiffs in a negligence action filed against the Colorado Department of Health (Department) and its employee, Dennis Plog, as a result of a motor vehicle collision between a pickup truck operated by Wayne Lee and a pickup truck operated by Plog in the course of his employment with the Department. The trial court submitted to the jury the claim of Wayne Lee for personal injuries, the claim of his wife for loss of consortium, and the claim on behalf of the Lee children for loss of their father's companionship and support. After the jury returned verdicts in favor of the Lees, the trial court made various rulings and entered judgment on the basis of those rulings, some of which are now challenged by the Lees as appellants and others by the Department and Plog as cross-appellants. ¹ We affirm in part and reverse in part, and we remand the case to the district court for a determination of the amount of costs and interest, if any, that should be added to the judgment in favor of Wayne Lee.

I.

A brief summary of the factual and procedural history of the case will provide the context for the issues raised on appeal. On November 20, 1979, a pickup truck owned by the Department and driven by Dennis Plog collided with a vehicle driven by Wayne Lee on County Road 234 in La Plata County, Colorado. The Department had a liability policy in effect on the date of the accident insuring itself and its employees in the amount of $150,000 for each person and $400,000 for each occurrence and also containing a "Supplementary Payments" provision with respect to costs and interest. ² As a result of the accident Lee allegedly suffered serious and disabling injuries. On February 26, 1980, Lee filed a negligence action against the Department and Plog and demanded judgment in the amount of $228,000. Lee's wife Carol also sued in the same complaint and requested an award of $25,000 for loss of consortium. The Department and Plog answered the original complaint and, while admitting that the accident occurred while Plog was operating the pickup truck in the course of his employment with the Department, denied any negligence on Plog's part and asserted the negligence of Lee as an affirmative defense to the claims.

The Lees subsequently filed a motion to amend their complaint, and the court granted the motion. The amended complaint increased Wayne Lee's demand for judgment to $1,128,000, increased his wife Carol's demand on her loss of consortium claim to $150,000, and included claims in the amount of $150,000 on behalf of each of the Lees' five children for loss of the companionship and support of their father. Although the Department and Plog did not file an answer to the amended complaint, they did file, shortly before trial, a partial summary judgment motion requesting that any judgment be limited to $150,000 as provided in section 24-10-114(1)(a), 10 C.R.S. (1982), and be entered only against the state. The trial court deferred ruling on the defendants' motion until the completion of the trial.

The case was tried to a jury. At the conclusion of the evidence, the trial court instructed the jury to consider the negligence of Wayne Lee not only in connection with his claim for personal injuries but also in regard to his wife's claim for loss of consortium and the children's claim for loss of parental companionship and support. The jury by special verdict found that Wayne Lee sustained total damages of $606,409.38 as a result of the combined negligence of Dennis Plog and himself, and attributed 51% of the negligence to Plog and the Department and 49% to Lee. The jury made an identical apportionment of negligence on Carol Lee's claim for loss of consortium and determined her total damages to be $100,000. The jury also returned verdicts in favor of the Lee children, apportioning the negligence at 51% to the defendants and 49% to Wayne Lee, and fixed the total damage sustained by each child at $10,000.

After the verdicts were returned, the trial court ruled that section 24-10-114(1), 10 C.R.S. (1982), limited the amount of damages recoverable by Wayne Lee to $150,000 and accordingly ordered the entry of judgment on his behalf for that amount plus interest at 9% from the filing of the complaint and some but not all of his requested costs. The court also ruled that the claim of Carol Lee for loss of consortium constituted a separate injury for purposes of the Governmental Immunity Act. Ruling that the 49% negligence which the jury attributed to her husband must be imputed to Carol Lee, the court reduced the jury award and entered judgment on her behalf in the amount of $51,000. Finally, the trial court ruled that the claim of the Lee children for loss of parental companionship and support was not cognizable in Colorado and accordingly set aside the jury verdicts entered in their favor ³.

On appeal, the Lees argue that the Department and Plog waived any right to limit the judgments to the amounts specified in the Governmental Immunity Act by failing to answer the amended complaint and by failing to present evidence and to tender jury instructions on the judgment limitations. They also argue that the Governmental Immunity Act does not limit the total judgment that may be entered against a public entity and its employee, but rather only limits the amount ultimately recoverable from each defendant, and that the trial court's interpretation of the Act limiting recovery from both the public entity and its employee to a single judgment of $150,000 violates equal protection of the laws. The Department and Plog, as cross-appellants, contend that the trial court erred in awarding interest and costs to Wayne Lee in excess of the statutory limit of $150,000. Carol Lee asserts that the trial court erred in attributing to her consortium claim the negligence of her husband, thereby reducing the jury's award on her claim by the percentage of her husband's negligence. Finally, the Lee children challenge the trial court's setting aside the jury awards entered on their claim for loss of parental companionship and support. We will consider these claims in the order stated.

II.

The Lees initially argue that the Department and Plog waived any right to limit the judgment established by sections 24-10-114 and 24-10-118(1)(b), 10 C.R.S. (1982), of the Governmental Immunity Act, because they failed to answer the amended complaint and also failed to present evidence and to tender jury instructions on the statutory limitations. We find their argument to be without merit.

Section 24-10-114 provides, in pertinent part, as follows:

(1) The maximum amount that may be recovered under this article shall be:

(a) For any injury to one person in any single occurrence, the sum of one hundred fifty thousand dollars;

(b) For an injury to two or more persons in any single occurrence, the sum of four hundred thousand dollars; except in such instance, no person may recover in excess of one hundred fifty thousand dollars.

Subsection (2) of section 24-10-114 authorizes a public entity to insure itself and its employees against all or any part of its liability in an amount in excess of the limits specified in subsection (1), in which event "recovery may be had in an amount not to exceed the limitations of insurance coverage." Section 24-10-118(1)(b) states that the maximum amounts that may be recovered in any such action against a public employee shall be as provided in section 24-10-114.

This court has previously held that the limitations on recovery set forth in these sections do not constitute a waivable affirmative defense, but rather serve as a limit on the jurisdiction of the court to enter judgment in an amount greater than the limits imposed by the Act. City of Colorado Springs v. Gladin, 198 Colo. 333, 599 P.2d 907 (1979). The jurisdictional limits to a court's authority are fixed by law and cannot be waived by the action or inaction of the parties. McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959); Solliday v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957). The statutory limits on governmental liability created by section 24-10-114(1), therefore, are self-executing provisions of law that the trial court is required to apply whenever a public entity is sued for an injury resulting from those activities or conditions which the General Assembly has decreed will render the public entity liable in an action for damages.

Section 24-10-106(1)(a), 10 C.R.S. (1982), creates legal liability for a public entity in a tort action for damages "for injuries resulting from ... [t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of his...