Reid v. Berkowitz, Court of Appeals No. 14CA2400

• Decision Date: 25 February 2016
• Docket Number: Court of Appeals No. 14CA2400
• Citation: 370 P.3d 644
• Parties: Rodney Tyler REID, Plaintiff–Appellee, v. Daniel BERKOWITZ, d/b/a/ Shimon Builders, Defendant–Appellant.
• Court: Colorado Court of Appeals

370 P.3d 644

Rodney Tyler REID, Plaintiff–Appellee,

v.Daniel BERKOWITZ, d/b/a/ Shimon Builders, Defendant–Appellant.

Court of Appeals No. 14CA2400

Colorado Court of Appeals, Div. VII.

Announced February 25, 2016

Crawford Weiss, LLC, Jason Crawford, Brian Weiss, Denver, Colorado, for Plaintiff–Appellee.

The Ross–Shannon Law Firm, P.C., Bradley Ross–Shannon, Justin H. Zouski, Lakewood, Colorado, for Defendant–Appellant.

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Daniel Berkowitz, appeals the district court's judgment and order finding him liable for two default judgments entered against codefendants Steve Hernandez and Gonzalo Batuello, and a subsequent order adding prejudgment interest. We reverse and remand the case with directions.

I. Background and Procedural History

¶ 2 Plaintiff, Rodney Tyler Reid, sustained injuries after falling through an unsecured guardrail at a construction site where Berkowitz was the general contractor and Hernandez and Batuello were subcontractors.

¶ 3 Reid sued Berkowitz, a landowner as defined by the Colorado Premises Liability Act (PLA), section 13–21–115, C.R.S.2015, pursuant to that statute. Berkowitz answered, demanded a jury trial, and designated the subcontractors as nonparties at fault. Reid then amended his complaint to add common law negligence claims against the subcontractors and to name them as defendants. His claim against Batuello sought "Indemnity, Contribution and Liability," and his claim against Hernandez was captioned "Improper Installation of Railing."

¶ 4 The district court granted entries of default against the subcontractors after each failed to answer the amended complaint. After a damages hearing to the bench, the court entered judgments against the subcontractors. It concluded that Reid's total damages before interest were $832,783.20 for economic damages (including future medical expenses), noneconomic damages, physical impairment, and disfigurement. The court apportioned 80% liability to Batuello and 20% to Hernandez, as requested by Reid's attorney. After adding 9% per annum simple interest, the court entered a default judgment of $844,308.92 against Batuello and a default judgment of $211,077.23 against Hernandez. At the hearing, there was discussion of whether Berkowitz might be vicariously liable for judgments against the subcontractors, but, as detailed below, the district court made no finding on the issue.

¶ 5 Reid later moved to amend his complaint to add claims for relief against Berkowitz for the alleged negligence of Batuello and Hernandez under a theory of respondeat superior. The court allowed an amendment over Berkowitz's objection, but noted that "[t]his does not mean that defendant is bound by the damages determination made after hearing in connection with the earlier default judgments; this is a separate issue."

¶ 6 The PLA claim against Berkowitz proceeded with a different judge to a jury trial in which, at the request of Reid's attorney, the default judgments were not mentioned to the jurors.¹ The respondeat superior claims were not submitted to the jury. The jury awarded Reid $400,000 in damages for noneconomic losses, economic losses, physical impairment, and disfigurement. Despite Berkowitz's request, the jury was not instructed to apportion fault to the subcontractors nor to evaluate Reid's comparative negligence.

¶ 7 Berkowitz's appeal of the jury verdict was decided by a division of this court in Reid v. Berkowitz, 2013 COA 110, 185 P.3d 315 (Reid I ). As relevant here, Berkowitz contended that the district court erred in refusing to instruct the jury that it could apportion liability and fault to the subcontractors. Reid I, ¶ 18. A division of this court agreed that refusing the apportionment instruction was error, but concluded that the error was harmless because the subcontractors' fault is imputable to Berkowitz who, as a landowner, had a nondelegable duty of care to Reid, a licensee. Id. at ¶¶ 17, 30, 37.

¶ 8 The division further found that the district court had erred in refusing to instruct the jury on Reid's comparative negligence.

Id. at ¶¶ 67–68. It ordered a retrial solely to determine a fault allocation between Reid and Berkowitz. Id. at ¶¶ 67–68. A second jury allocated the fault 90% to Berkowitz and 10% to Reid. The $400,000 judgment was reduced accordingly, and Berkowitz paid the amount due.

¶ 9 Shortly thereafter, Reid moved for declaratory relief, asking that the district court find Berkowitz liable under his nondelegable duty for 90% of the default judgments entered against the subcontractors, plus simple interest. Reid asked the court to enter judgment against Berkowitz in the amount of $1,169,821.22. Berkowitz opposed the motion. After a hearing, the court held Berkowitz liable for the entirety of the default judgments with compound interest, which amounted to $1,457,149.10.

II. Issues on Appeal

¶ 10 Berkowitz first asserts that the district court erred in concluding that he is liable for the amount of the default judgments entered against the subcontractors. He further contends that the court erroneously amended the default judgments beyond the permissible period and, in the alternative, incorrectly calculated the amount of the judgments. We discuss the first issue below, and do not reach the second issue.

III. Liability for Default Judgments

¶ 11 Berkowitz argues multiple theories supporting his assertion that the district court erred by finding him liable for the default judgments. First, he argues that he cannot be liable for damages under the PLA and also be vicariously liable for damages under a common law theory of negligence because the PLA provides an exclusive remedy against landowners. Second, Berkowitz argues that he cannot be held liable for the default judgments because to do so would deprive him of his right to have a jury decide whether he is liable and the amount of damages. Third, he argues that Reid waived the right to enforce the default judgments against him by proceeding to a jury trial for a separate determination of liability and damages. And finally, Berkowitz argues that assigning him liability for the default judgments improperly awards Reid a double recovery for his damages.

¶ 12 We address the only the first argument. We consider whether Berkowitz may be simultaneously liable for damages as a landowner under the PLA and vicariously liable for a default judgment under common law negligence theories against his subcontractors. We conclude that he cannot, because the PLA provides an exclusive remedy against a landowner for injuries which occur as a result of conditions, activities, or circumstances on the landowner's property.

A. Preservation

¶ 13 At the outset, we reject Reid's assertion that we may not consider whether Berkowitz is liable for the default judgments because Berkowitz did not preserve the issue by appealing Reid I . Reid I was an appeal of the judgment entered against him following the jury verdict, and the division in Reid I did not determine liability for the default judgments. Id. at ¶¶ 1, 44–46. Berkowitz opposed Reid's motion for declaratory relief in the district court using the same argument we consider here. Accordingly, the issue is preserved for our review.

B. Standard of Review and Applicable Law

¶ 14 We review de novo questions of statutory interpretation. Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010) ; Legro v. Robinson, 2012 COA 182, ¶ 10, 328 P.3d 238. "Our primary duty in construing statutes is to give effect to the intent of the General Assembly, looking first to the statute's plain language." Vigil v. Franklin, 103 P.3d 322, 327 (Colo.2004). If the statutory language is clear and unambiguous, we will not resort to any other tools of statutory construction, and we must apply the statute as written. Id. at 328 ; Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA 160, ¶ 10, 305 P.3d 409.

¶ 15 The PLA provides as follows:

(1.5) The general assembly hereby finds and declares:

...(d) That the purpose of this section is also to create a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability of insurance.

(e) [T]hat its purpose is to protect landowners from liability in some circumstances when they were not protected at common law....

(2) In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section....²

§ 13–21–115 (emphasis added).

¶ 16 On its face, the language of subsection (2) of the PLA unambiguously evinces the General Assembly's intent to provide an exclusive remedy against a landowner for injuries which occur as a result of conditions, activities, or circumstances on the landowner's property. This language is supported by the statute's purpose recited in subsection (1.5). To protect landowners, and to promote the availability of affordable insurance, a landowner is liable only as provided in the statute because the General Assembly intended to "completely occupy the field and supercede the existing law in the area." Vigil, 103 P.3d at 328.

¶ 17 It is well established that subsection 13–21–115(2) abrogates common law negligence claims against landowners for injuries caused by the conditions, activities, or circumstances on a landowner's premises. See id. at 330–32 (the open and obvious danger defense to landowner liability does not apply to a premises liability claim); Lucero v. Ulvestad, 2015 COA 98, ¶ 12, –––P.3d –––– ("[T]he General Assembly indicated its intent to completely occupy the field and supersede the existing law in the area, such that the PLA ‘leaves no room for application of common law tort duties.’ ") (citation omitted); Rieger v. Wat Buddhawararam of Denver, Inc., 2013 COA 156, ¶...