Slack v. Farmers Ins. Exchange, 98SC812.

• Docket Nº: No. 98SC812.
• Citation: 5 P.3d 280
• Case Date: June 19, 2000
• Court: Supreme Court of Colorado

5 P.3d 280

Julie SLACK and Brett Slack, Petitioners,
v.
FARMERS INSURANCE EXCHANGE, a California corporation, Respondent

No. 98SC812.

Supreme Court of Colorado, En Banc.

June 19, 2000.

Rehearing Denied July 31, 2000.¹

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Burg, Simpson, Eldredge, Hersh & Houlistan, P.C., Michael S. Burg, Diane Vaksdal Smith, Rosemary Orsini, Englewood, Colorado, Attorneys for Petitioners

Patterson, Nuss & Seymour, P.C., Franklin D. Patterson, Englewood, Colorado, Attorneys for Respondent.

Campbell, Latiolais & Ruebel, P.C., Jeffrey Clay Ruebel, Denver, Colorado, Attorneys for Amicus Curiae for Colorado Defense Lawyers Association.

Breit, Bosch, Levin & Coppola, P.C., Bradley A. Levin, Denver, Colorado, Roberts & Zboyan, P.C. Thomas L. Roberts, Denver, Colorado, Attorneys for Amicus Curiae for the Colorado Trial Lawyers Association.

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Justice KOURLIS delivered the Opinion of the Court

The question in this case is whether section 13-21-111.5, 5 C.R.S. (1999) requires the pro rata distribution of civil liability among intentional and negligent tortfeasors who jointly cause indivisible injuries.² Section 13-21-111.5(1) states that a tortfeasor shall only be liable for damages to the extent of her negligence or fault. The court of appeals, in Harvey v. Farmers Insurance Exchange, 983 P.2d 34 (Colo.App.1998) concluded that the statute as drafted by the General Assembly contemplates that liability may be apportioned between a negligent tortfeasor and an intentional tortfeasor. 983 P.2d 34, 39 (Colo.App.1998).³ The Petitioner here contends that when one of the tortfeasors has committed an intentional act, the negligent tortfeasor should bear the risk of the full loss, rather than having the benefit of an apportioned degree of loss. We disagree, and hold that the plain meaning of the statutory language requires apportionment of liability among negligent and intentional tortfeasors who contributed to an indivisible injury, and thus, we affirm the court of appeals.

I.

On September 8, 1992, Juliette Diane Slack suffered injuries in an automobile accident. Slack, driving a minivan, was stopped at a stoplight waiting to make a right turn. When she began to make the turn, a young man in a small, green car ran the stoplight and forced Slack to slam on the brakes. The abrupt stop caused Slack to strike her chin on the steering wheel and then to hit the back of her head on the headrest.

The following day, Slack visited her chiropractor, Dr. Steven Lee Schuster, for treatment of her neck and back pain caused by the accident.⁴ Dr. Schuster submitted all charges for treatment to Slack's insurer, Farmers Insurance. In accordance with her policy, and at the request of Farmers Insurance, Slack signed and delivered to Farmers Insurance an Application for Benefits and Proof of Loss requesting Personal Injury Protection (PIP) benefits under her automobile insurance policy. Farmers Insurance elected to obtain a second opinion regarding the nature of Slack's injuries from an independent medical examiner (an IME).

Farmers Insurance scheduled an appointment for Slack with Dr. Lloyd Lachow, a chiropractor. At that time, another one of Farmers' insureds, Jodi Lynn Harvey, had claimed that Lachow sexually assaulted her during an examination.⁵ Slack testified that during her exam, Lachow touched her clothed breast and pushed his pelvis into her back. In addition, she testified that he pulled hard on her neck and shook her head violently from side-to-side, putting her in additional pain.

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Immediately thereafter, Slack drove to Dr. Schuster's office to confirm that her IME acted inappropriately. She then contacted an attorney and reported the incident to the City of Aurora police department. Later that same day, Slack contacted Farmers Insurance to inform it of the events

Following an investigation, the Colorado Department of Regulatory Agencies (the Agency) suspended Lachow's license effective March 31, 1993. Lachow admitted in a Stipulation and Final Agency Order that the State Board of Chiropractic Examiners, a Board contained within the Agency, would be able to establish a prima facie case of unprofessional conduct during the examinations of Slack and Harvey.

Slack filed suit against Lachow claiming assault, battery, negligence, extreme and outrageous conduct/intentional infliction of emotional distress, negligent infliction of emotional distress, and malpractice. In the same suit, she claimed negligence, breach of contract, bad faith breach of contract, and outrageous conduct against Farmers Insurance. Slack claimed that Farmers Insurance acted improperly by sending her to a chiropractor it knew or should have known would injure her. Brett Slack, her husband, brought a loss of consortium claim.

Before trial, the Slacks settled their claims with Lachow. Farmers Insurance, however, designated Lachow a nonparty pursuant to section 13-21-111.5(3), 5 C.R.S. (1999).⁶ Following a trial, the jury returned a verdict in favor of the Slacks and against Farmers Insurance on the negligence claim, bad faith breach of contract claim, and on Brett's loss of consortium claim. The jury also found that Farmers Insurance acted willfully and wantonly. The jury awarded Slack $40,000 for her injuries and $16,000 in exemplary damages. It awarded Brett $6000 for his loss and $2400 in exemplary damages. The jury apportioned sixty percent of the fault for Slack's injuries to Lachow and forty percent to Farmers Insurance. In accordance with section 13-21-111.5(1), the trial court reduced Slack's award to $16,000 in compensatory damages and $16,000 in exemplary damages. The trial court did not reduce the compensatory portion of Brett's damage award.

Slack appealed the reduction of her award to the court of appeals. Farmers Insurance cross-appealed the trial court's refusal to apportion the damages awarded to Brett. The court of appeals held in favor of Farmers Insurance on both issues. This appeal followed.

II.

A.

Slack first argues that section 13-21-111.5(1) does not require apportionment between a negligent actor and an intentional tortfeasor. We disagree.

Slack asserts that an IME owes no duty to a patient who has been referred by an insurance company, and that therefore, Lachow cannot be a nonparty tortfeasor in this case. She cites Martinez v. Lewis, 969 P.2d 213 (Colo.1998) to this effect where we held that an IME does not owe a duty of care to the examinee to diagnose the examinee's condition correctly because no physician-patient relationship arises from the examination. 969 P.2d 213, 219 (Colo.1998). Slack misinterprets our holding in Martinez. As we stated explicitly in Greenberg v. Perkins, 845 P.2d 530, 536 (Colo.1993), "the [independent medical] examination itself may be said to create a relationship between the parties and impose upon the physician a duty to exercise a level of care that is consistent with his professional training and expertise." See also Martinez, 969 P.2d at 217-18. Therefore, an IME remains liable for any injury he negligently or intentionally inflicts on a patient during an examination, but does not owe the examinee a duty to diagnose correctly his or her condition. It goes without saying that a physician owes all examinees a

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duty not to assault them sexually, and would be liable for such conduct. Hence, Lachow was a proper nonparty.

B.

We move then to the question of whether the jury could properly apportion Slack's damages between Lachow and Farmers Insurance.⁷ As part of the tort reform movement in Colorado, the General Assembly eliminated joint and several liability wherein one tortfeasor might be liable in damages for the acts of another tortfeasor, and adopted a several liability scheme, wherein a tortfeasor is responsible only for the portion of the damages that he or she caused. See Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo.1995); Robert E. Benson, Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes, 23 Colo. Law. 1717, 1717 (1994). Section 13-21-111.5(1) states:

In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss. . . .

(Emphasis added.) The General Assembly also provided that the negligence or fault of a nonparty who settled with the plaintiff could be considered in the apportionment of damages. See §§ 13-21-111.5(2), -111.5(3).

We are called upon to determine whether the General Assembly intended that liability may be apportioned only between negligent tortfeasors, or also between a negligent and an intentional tortfeasor. In other words, may a jury apportion fault among tortfeasors who were merely negligent and others who intended to do wrong?

When interpreting a statute, we proceed in accordance with a number of time-honored principles. First, we adopt the construction that best gives effect to the legislative scheme. See Water Rights Of Park County Sportsmen's Ranch LLP v. Bargas, 986 P.2d 262, 268 (Colo.1999). In doing so we must look to the plain meaning of the words employed. See id.; see also § 2-4-101, 1 C.R.S. (1999). We construe a statute so as to give effect to every word, and we do not adopt a construction that renders any term superfluous. See Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 790 P.2d 827, 830 (Colo.1990). Where the statutory language is clear and unambiguous, we do not resort to other rules of statutory construction. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997). The court will not create an exception to a statute that the plain language does not suggest or demand. See Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo.1994) ("We will not judicially legislate by reading a statute to accomplish something the plain...