Pollock v. City and County of Denver, 27418

• Decision Date: 19 December 1977
• Docket Number: No. 27418,27418
• Citation: 572 P.2d 828,194 Colo. 380
• Parties: Judith R. (DiLiello) POLLOCK, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, the Denver Board of Water Commissioners, JohnYelenick, Charles Brannan, William Temple, James B. Kenney, Jr., Richard S.Shannon, Jr., and the City of Aurora, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 828

572 P.2d 828

194 Colo. 380

Judith R. (DiLiello) POLLOCK, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, the Denver Board of Water Commissioners, JohnYelenick, Charles Brannan, William Temple, James B. Kenney, Jr., Richard S.Shannon, Jr., and the City of Aurora, Defendants-Appellees.

No. 27418.

Supreme Court of Colorado, En Banc.

Dec. 19, 1977.

Casey, Klene, Horan & Wegs, R. Paul Horan, David R. Reitsema, Denver, for plaintiff-appellant.

Duane O. Littell, Richard L. Everstine, Denver, for defendants-appellees.

GROVES, Justice.

This is an action for wrongful death of plaintiff's five-year old child in which judgment is asked for $2,300,798.93 plus costs, interest and attorneys fees. The court granted a motion striking the portions of plaintiff's complaint which alleged grounds for a recovery exceeding $45,000. This order was made a final judgment. There has been no objection that there has not been strict compliance with C.R.C.P. 54(b); and we proceed under the assumption that there has been substantial compliance with that rule. We affirm the district court.

Portions of the complaint read:

"9. The deceased son of the Plaintiff, but for the negligence of the Defendants would have earned $800,000.00 during his lifetime, and to which the Plaintiff is entitled.

"10. The Plaintiff, through the death of her son caused by the negligence of the Defendants, has suffered damages including mental anguish, loss of love and affection, the loss of the companionship of her son, and the loss of protection and comfort, in the amount of One Million Five Hundred Thousand Dollars.

"11. The Plaintiff has been damaged herein by the negligence of the Defendants in the sum of $798.93 for the funeral of her son.

"12. The statutory limitation on damages for wrongful death, 1973 C.R.S. 13-21-203(1), and specifically the portion thereof reading: 'Except if the decedent left neither a widow, widower, nor minor children, nor a dependent father or mother, the damages recoverable in any such action shall not exceed $45,000.00,' is a deliberate violation of the Colorado Constitution and of the Federal Constitution, to-wit: The Bill of Rights, the Due Process Clause, and the Equal Protection Clause."

The plaintiff's principal argument involves her equal protection claim. Her other contentions do not merit comment and except for our brief discussion of net pecuniary loss, we limit ourselves to the equal protection arguments.

Our death statute (section 13-21-201 et seq., C.R.S. 1973) permits the maintenance of actions and recovery of damages for wrongful death. Section 203 contains a limitation on damages that, "if the decedent left neither a widow, widower, nor minor children, nor a dependent father or mother, the damages recoverable in any such action shall not exceed forty-five thousand dollars."

Originally, by Act approved on March 7, 1877, the limit of recovery in all wrongful death actions was placed at $5,000. G.L. § 879. This was raised to $10,000 and $25,000 in 1951 and 1957, respectively. Colo.Sess.Laws 1951, ch. 148, section 3, chapter 50, at 339; Colo.Sess.Laws 1957, ch. 127, 41-1-3 at 338. The statute was amended to its present form in 1969. Colo.Sess.Laws 1969, ch. 127, 41-1-3 at 329.

Historically, the amount of recovery in all such actions has been limited to the net pecuniary loss sustained by the person seeking recovery. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). ¹

The plaintiff contends that the division into two classes of plaintiffs, one of which is subject to a $45,000 limitation on recovery while the other is not, is a denial of equal protection. In considering the equal protection claim, we look first to the type of classification being made. Clearly, the classification here is not a "suspect" one, i. e., it does not single out religious, racial, or other discrete and insular minorities. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The distinction is between (1) a class consisting of surviving spouses, minor children, and dependent parents, and (2) a class of all other people who are entitled to recover under the Act. The "discriminated against" class may consist of such diverse people as an adult child and a nondependent parent. Thus, we conclude that this legislation is not directed at any particular group of people in a "suspect" class. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Our Court has stated:

"Of course, where legislation challenged on an equal protection basis does not involve an intrinsically suspect classification, the test to be applied is whether the classification promulgated by the statute rationally furthers any legitimate state interest." People v. Taylor, Colo., 540 P.2d 320 (1975).

Thus, the proper test is whether this classification may rationally further any legitimate state interest. We hold that it does.

As stated, by the 1969 Act the General Assembly placed the limit at $45,000 if the decedent leaves "neither a widow,...