Pulsifer v. Pueblo Professional Contractors

• Decision Date: 25 June 2007
• Docket Number: No. 07SA24.,07SA24.
• Citation: 161 P.3d 656
• Parties: In re Gordon PULSIFER, Plaintiff v. PUEBLO PROFESSIONAL CONTRACTORS, INC., a Colorado Corporation; D & W Custom Builders, Inc., a Colorado Corporation; and Woodbusters Construction, Defendants.
• Court: Colorado Supreme Court

161 P.3d 656

In re Gordon PULSIFER, Plaintiff v. PUEBLO PROFESSIONAL CONTRACTORS, INC., a Colorado Corporation; D & W Custom Builders, Inc., a Colorado Corporation; and Woodbusters Construction, Defendants.

No. 07SA24.

Supreme Court of Colorado, En Banc.

June 25, 2007.

Koncilja & Koncilja, P.C., James Koncilja, Laurence Saunders, Pueblo, Colorado, Attorneys for Plaintiff.

Davis, Graham & Stubbs, L.L.P., Andrew M. Low, Richard P. Holme, Elizabeth H. Titus, Denver, Colorado, Attorneys for Defendant Pueblo Professional Contractors.

No appearance by or on behalf of defendants D & W Custom Builders, Inc., a Colorado Corporation, and Woodbusters Construction.

RULE MADE ABSOLUTE

Justice MARTINEZ delivered the Opinion of the Court.

We issued a rule to show cause to determine whether the trial court's ruling that the plaintiff's maximum recovery for a work related injury is not limited to fifteen thousand dollars under the Workers' Compensation Act was correct. We now make the rule absolute and hold that the plaintiff is within the category of individuals subject to the statutory limit and that he is not excepted from the limit.

I. Facts and Procedural History

The respondent Gordon Pulsifer ("Pulsifer") is a painter. He was hired as a subcontractor to work on the construction of the Stonegate Village Apartments in Pueblo, Colorado by the petitioner, Pueblo Professional Contractors, Inc. ("PPC"), a general contractor. Pulsifer was injured at the construction site when he stepped on stairs that slipped away from the building causing what he alleges are severe injuries, substantial medical expenses, and the loss of past and future income and earnings.

Pulsifer did not provide workers' compensation insurance for himself under Colorado's Workers' Compensation Act ("WCA"). Also, both parties agree that Pulsifer was not eligible for workers' compensation coverage under PPC's policy. Pulsifer was thus permitted to file a common law action for negligence against PPC and two other defendants, D & W Custom Builders and Woodbusters Construction.¹

Following the close of discovery, PPC moved for summary judgment dismissing the claim, or in the alternative, partial summary judgment on the question of whether the WCA's statutory limit on common law tort damages of fifteen thousand dollars applies to Pulsifer's claim. The trial court denied both motions and PPC's motions for reconsideration.

In its order certifying the petition for C.A.R. 21 review, the trial court noted that determining when the fifteen thousand dollar statutory limit applies under the WCA is an important issue likely to recur with some frequency. Further, the parties anticipate a lengthy trial with 25-30 witnesses, including numerous experts. The trial court and both parties therefore urged us to accept the petition. We agreed and issued a rule to show cause why the Workers' Compensation Act's fifteen thousand dollar statutory limit on damages should apply in this case. We now make the rule absolute, and return this case to the trial court for further proceedings consistent with this opinion.

II. Analysis

When interpreting a comprehensive legislative scheme, we construe the statutory provisions to further the intent of the General Assembly. Wolford v. Pinnacol Assurance, 107 P.3d 947, 951 (Colo.2005). We determine legislative intent primarily from the plain language of the statute. I.C.A.O. v. Ray, 145 P.3d 661, 668 (Colo.2006). If statutory language is ambiguous, we may look to other rules of statutory construction or the legislative history as indications of the legislature's intent. Grant v. People, 48 P.3d 543, 546 (Colo.2002). A comprehensive regulatory scheme such as the Workers' Compensation Act also requires that the language be construed so as to give effect and meaning to all its parts. Wolford, 107 P.3d at 951. Finally, we construe the WCA liberally to accomplish its remedial and beneficent purpose. Davison v. I.C.A.O., 84 P.3d 1023, 1029 (Colo.2004).

Resolution of this case requires us to interpret the meaning of section 8-41-401(3), C.R.S. (2006).² This section limits the total recovery available to plaintiffs who bring a common law action for a work-related injury that would otherwise have been compensable under the WCA. It also excepts from those limits actions against "another not in the same employ." Therefore, as a preliminary matter we must first determine whether Pulsifer falls into the category of persons to whom the statutory limit applies. We then consider whether the "another not in the same employ" exception to the statutory limit applies.

A. Individuals Subject to the Statutory Limit

By its plain language, the statutory limit on damages applies to the category of persons who would otherwise have been compensated under the WCA. § 8-41-401(3). The final sentence of the section describes those persons subject to the statutory limit: "The total amount of damages recoverable pursuant to any cause of action resulting from a work-related injury brought by such individual that would otherwise have been compensable under articles 40 to 47 of this title shall not exceed fifteen thousand dollars ...." Id. Standing alone, it is impossible to determine who "such individual[s]" are and what "otherwise" would have made them eligible for workers' compensation. We therefore look to the rest of the subsection's language for contextual meaning and conclude that the individuals referred to in the last sentence are the individuals listed in the first sentence of this subsection of the statute.

The first sentence of subsection 8-41-401(3) begins: "Notwithstanding any . . . provisions to the contrary, any individual who is [identified in this statute] shall have no cause of action under [the WCA]." Id. (emphasis added). The "individual" who has no cause of action under the WCA is identified by the statute as a person who falls within one of three groups. The first group with no cause of action under the WCA is "any individual who is excluded from the definition of employee pursuant to section 8-40-202(2)" which generally describes independent contractors. Id. The second group is "a working general partner or sole proprietor who is not covered under a policy of workers' compensation insurance." Id. The third group is "a corporate officer or member of a limited liability company who executes and files an election to reject coverage under section 8-41-202(1)." Id. Thus, this sentence unambiguously states that individuals in these three groups, who can not make workers' compensation claims according other parts of the statute, are excluded from recovery under the WCA.

The individuals described in each group share the characteristic of being individuals who could have obtained coverage but did not because they either did not elect to cover themselves, see § 8-40-302(5), C.R.S. (2006) (allowing a person who is a sole proprietor or an independent contractor to voluntarily elect WCA coverage), or chose to opt out, see § 8-41-202(1), C.R.S. (2006) (permitting corporate officers to reject coverage). Thus, the first sentence of the statute describes individuals who have common law causes of action for work-related injuries who could have WCA protection but for their choice rejecting coverage. These are the individuals referred to in the third sentence.

The third sentence applies the statutory limitation on damages to any "such individual" who would otherwise have been compensated under the WCA. Therefore, it refers to "any individual" described in the first sentence. Thus, the statutory limit applies to "any individual who is excluded from the definition of employee pursuant to section 8-40-202(2)(b), or a working general partner or sole proprietor who is not covered under a policy of workers' compensation insurance, or a corporate officer or member of a limited liability company who executes and files an election to reject coverage under section 8-41-202(1)." § 8-41-401(3); see Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161, 1166 (Colo.1995) (holding that a rejecting officer is subject to the statutory limitation on damages in section 8-41-401(3)). This interpretation is also consistent with the legislative history.

In 1987, the General Assembly amended the WCA and created what is now section 8-41-401(3). 1987 Colo. Sess. Laws 399. The first sentence began, as the version of the statute we now interpret does, with a list of persons who "shall not have any cause of action [under the WCA]."³ Id. The third sentence began, as it does now: "[t]he total amount of damages recoverable by such individual ...," but then repeated the list and applied the statutory limitation to the individuals listed. Id. In 1988, the listed individuals were replaced with the words "independent contractor" in both sentences. 1988 Colo. Sess. Laws 374, 375. Then in 1993, the words "independent contractor" were replaced in the first sentence by the current language referring to an individual excluded from the definition of employee;⁴ while in the third sentence "independent contractor" was deleted and replaced with "individual," a word appearing in the original 1987 version of the statute. From this history it is clear that the General Assembly meant for the "individual" subject to the statutory limitations to be an individual in one of the listed groups in the first sentence.

Here, Pulsifer, as a sole proprietor and a person excluded from the definition of employee,⁵ is within the group of individuals generally subject to the statutory limit on damages. We now turn to the central issue presented in this appeal: whether Pulsifer is excepted from the statutory limit because PPC was "another not in the same employ" with Pulsifer.

B. Individuals Who Are "Another Not in the Same Employ"

The final phrase of the third sentence of section 8-41-401(3) states: "[the recoverable damages of members of the groups listed above] shall not exceed fifteen thousand dollars, except in any...