Suydam v. LFI Fort Pierce, Inc.
| Decision Date | 08 October 2020 |
| Docket Number | Court of Appeals No. 19CA0804 |
| Citation | 490 P.3d 930 |
| Court | Colorado Court of Appeals |
| Parties | Gary W. SUYDAM and Lisa Linch-Suydam, Plaintiffs-Appellees, v. LFI FORT PIERCE, INC., Defendant-Appellant. |
Mann & Maximon, LLC, Stuart Mann, Joshua Maximon, Boulder, Colorado; Connelly Law, LLC, Sean Connelly, Denver, Colorado, for Plaintiffs-Appellees
Gibson, Dunn & Crutcher LLP, Gregory Kerwin, Julie Hamilton, Denver, Colorado; Wheeler Trigg O'Donnell LLP, Frederick R. Yarger, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE LIPINSKY
¶ 1 Appellee Gary W. Suydam was severely injured when he was struck by two cars while riding his bicycle through an intersection. As a result of the collisions, he was rendered a quadriplegic and requires help with nearly every aspect of daily living. The driver of the first car was Chelsea Brewer, an employee of appellant LFI Fort Pierce, Inc. The driver of the second car was Stephen Tecmire.
¶ 2 Suydam and his wife, Lisa Linch-Suydam, filed a lawsuit against Brewer, LFI, Tecmire, and other defendants not relevant to this appeal. In their complaint, the Suydams alleged that LFI was liable for any damages awardable against Brewer because she was performing job duties for LFI at the time of the accident. The Suydams sought damages in three categories — economic loss, physical impairment or disfigurement, and loss of consortium. They obtained a default against Tecmire after he failed to respond to their complaint.
¶ 3 At the conclusion of a six-day trial, a jury awarded the Suydams more than $54 million in damages, including more than $32 million in damages for physical impairment or disfigurement. The jury determined that Brewer (and thus LFI, as Brewer's employer at the time) was responsible for ninety percent, and Tecmire was responsible for ten percent, of the Suydams’ damages.
¶ 4 On appeal, LFI challenges the verdict and the damage award on three grounds.
¶ 5 First, LFI asserts that the trial court erred by failing to give the jury a separate instruction on the "going-and-coming" rule, which addresses when an employer is liable for the actions of an employee who is traveling between work and home or another personal destination. We decide that LFI was not entitled to an instruction on the going-and-coming rule because the scope of work instruction the court gave the jury was supported by the evidence presented at trial, while LFI's proffered instructions were not. The evidence showed that, at the time of the incident, Brewer was engaged in an act or performing a duty under the express or implied direction of LFI. Moreover, Brewer never testified that she was driving home or to another personal destination when her vehicle collided with Gary Suydam.
¶ 6 Second, LFI argues that the trial court erred by changing Tecmire's status from a defaulted defendant to a nonparty on the second day of trial, and that the error is grounds for a new trial. We disagree because the trial court's determination regarding Tecmire's status did not prejudice LFI.
¶ 7 Third, LFI challenges the jury's damage award on two grounds. LFI contends that the Suydams’ counsel impermissibly argued that the jury should calculate damages for physical impairment or disfigurement on a per diem basis. In addition, LFI contends that the damage award must be set aside because Colorado law does not draw a meaningful distinction between those noneconomic damages that are subject to a statutory cap and noneconomic damages for physical impairment or disfigurement, which are not capped. We need not address these arguments, however, because LFI did not preserve them.
¶ 8 For the above reasons, we affirm the judgment.
¶ 9 LFI contends that the trial court reversibly erred by declining to instruct the jury on the going-and-coming rule, and thereby failed to provide the jury with the applicable legal rule for assessing LFI's principal defense at trial — that Brewer had been driving home and was not working for LFI when she struck Gary Suydam. We are not persuaded.
¶ 10 A trial court must correctly instruct the jury on all matters of law. Day v. Johnson , 255 P.3d 1064, 1067 (Colo. 2011). We review de novo whether "a particular jury instruction correctly states the law" and whether the "instructions as a whole accurately informed the jury of the governing law." Id. Because trial courts have broad discretion to fashion the form and style of instructions, we review "for abuse of discretion a trial court's decision not to give a particular jury instruction." Schuessler v. Wolter , 2012 COA 86, ¶ 10, 310 P.3d 151, 158 ; see Vista Resorts, Inc. v. Goodyear Tire & Rubber Co. , 117 P.3d 60, 70 (Colo. App. 2004) ( ) (citation omitted). "A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, unfair, or when it misapplies the law." Nibert v. Geico Cas. Co. , 2017 COA 23, ¶ 8, 488 P.3d 142, 145.
¶ 11 A trial court does not abuse its discretion by rejecting a tendered jury instruction lacking evidentiary support. Melton v. Larrabee , 832 P.2d 1069, 1072 (Colo. App. 1992). Id. (citations omitted); see Devenyns v. Hartig , 983 P.2d 63, 70 (Colo. App. 1998) ().
¶ 12 Moreover, "[t]he trial court may not assume the role of an advocate and bears no responsibility to redraft tendered civil instructions to correct errors in those instructions." Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C. , 95 P.3d 571, 587 (Colo. 2004) ; see Hansen v. State Farm Mut. Auto. Ins. Co. , 957 P.2d 1380, 1384-85 (Colo. 1998) (); cf. Short v. Kinkade , 685 P.2d 210, 211-12 (Colo. App. 1983) ().
¶ 13 Under the doctrine of respondeat superior, an employer is liable for torts committed by its employee while acting within the scope of his or her employment. Stokes v. Denver Newspaper Agency, LLP , 159 P.3d 691, 693 (Colo. App. 2006). "The employer is liable if the employee's conduct was motivated by an intent to serve the employer's interests and connected to acts the employee was authorized to perform." Id.
¶ 14 Respondeat superior rests on the theory that "the employee acts on behalf of the employer when the employee is within the scope of his or her employment." Raleigh v. Performance Plumbing & Heating , 130 P.3d 1011, 1019 (Colo. 2006). Because an "employer has the right to control the employee's performance" within the scope of employment, the employer is held liable for the employee's acts. Daly v. Aspen Ctr. for Women's Health, Inc. , 134 P.3d 450, 452 (Colo. 2005).
¶ 15 "The question of whether an employee [wa]s acting within the scope of the employment is a question of fact ...." Raleigh , 130 P.3d at 1019.
¶ 16 Respondent superior cases often involve a factual dispute regarding whether the employee was acting within the scope of his or her employment at the time of the act that injured the plaintiff.
¶ 17 The going-and-coming rule informs the scope of the employment relationship in cases where the employee was commuting between work and home or another personal destination at the time of the injury to the plaintiff. Stokes , 159 P.3d at 693 ; Beeson v. Kelran Constructors, Inc. , 43 Colo. App. 505, 507, 608 P.2d 369, 371 (1979) ; see Pierson v. Helmerich & Payne Int'l Drilling Co. , 4 Cal.App.5th 608, 209 Cal. Rptr. 3d 222, 230 (2016) ().
¶ 18 The Colorado version of the going-and-coming rule provides that "an employee traveling from ... work to his home or other personal destination, after completing his day's work, cannot ordinarily be regarded as acting in the scope of his employment so as to charge the employer for the employee's negligence in the operation of the [employee's] car." Beeson , 43 Colo. App. at 507, 608 P.2d at 371 (quoting Balise v. Underwood , 71 Wash.2d 331, 428 P.2d 573, 577 (1967) ).
¶ 19 The rule has several exceptions, including when "the employee was engaged in an[ ] act connected to his work or [was] furthering [the employer's] interests" at the time of the injury-causing conduct. Stokes , 159 P.3d at 696 ; see also Engler v. Gulf Interstate Eng'g, Inc. , 227 Ariz. 486, 258 P.3d 304, 310 n.9 (Ariz. Ct. App. 2011) (), aff'd , 230 Ariz. 55, 280 P.3d 599 (2012) ; Anderson v. Pac. Gas & Elec. Co. , 14 Cal.App.4th 254, 17 Cal. Rptr. 2d 534, 536 (1993) ().
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