VITETTA v. CORRIGAN

• Citation: 240 P.3d 322
• Decision Date: 15 October 2009
• Docket Number: No. 07CA0687.,07CA0687.
• Parties: Andrew VITETTA and Janine Vitetta, individually and as parents and next friends for K.M.V., a Minor, Plaintiffs-Appellants and Cross-Appellees, v. Kevin CORRIGAN, M.D. and Colorado Springs Health Partners, P.C., Defendants-Appellees and Cross-Appellants and Fortis Insurance Company, Intervenor-Appellee and Cross-Appellant.
• Court: Court of Appeals of Colorado

240 P.3d 322

Andrew VITETTA and Janine Vitetta, individually and as parents and next friends for K.M.V., a Minor, Plaintiffs-Appellants and Cross-Appellees,

v.Kevin CORRIGAN, M.D. and Colorado Springs Health Partners, P.C., Defendants-Appellees and Cross-AppellantsandFortis Insurance Company, Intervenor-Appellee and Cross-Appellant.

No. 07CA0687.

Colorado Court of Appeals,Div. VII.

Aug. 20, 2009.

As Modified on Denial of Rehearing Oct. 15, 2009.

COPYRIGHT MATERIAL OMITTED.

Leventhal, Brown & Puga, P.C., Jim Leventhal, Benjamin Sachs, Denver, Colorado, for Plaintiffs-Appellants and Cross-Appellees.

Montgomery, Little, Soran & Murray, P.C., C. Gregory Tiemeier, C. Todd Drake, Greenwood Village, Colorado, for Defendant-Appellee and Cross-Appellant Kevin Corrigan, M.D.

Jaudon & Avery, LLP, Joseph C. Jaudon, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendant-Appellee and Cross-Appellant Colorado Springs Health Partners, P.C.

Burg Simpson Eldredge Hersh & Jardine, P.C., Diane Vaksdal Smith, Englewood, Colorado, for Intervenor-Appellee and Cross-Appellant.

Opinion by Judge CONNELLY.

Plaintiffs, Andrew and Janine Vitetta, obtained a multi-million dollar negligence verdict for post-natal injuries to their minor daughter (“the child”). We decide two issues in their appeal as to defendants, Kevin Corrigan, M.D., and Colorado Springs Health Partners, P.C. (CSHP). First, we hold an amended statute authorizing legal representatives of disabled persons to elect a lump sum in lieu of periodic payments applies to this case and is constitutional as applied. Second, we uphold the district court's discretionary ruling declining to find good cause to exempt the future lost earnings award from the statutory cap. We also decide subrogation issues involving plaintiffs and intervenor, Fortis Insurance Company. We affirm in part, reverse in part, and remand for entry of a lump-sum judgment in favor of plaintiffs.

I. Background

Plaintiffs sued several health care professionals and entities. They ultimately settled claims against Penrose Community Hospital (Penrose) and other defendants. Their claims against three defendants-Dr. Corrigan, another doctor, and CSHP-were tried to a jury. Those defendants designated Penrose as a nonparty at fault.

The jury's special verdict found Dr. Corrigan and CSHP fifty-five percent at fault, the other doctor not at fault, and nonparty Penrose forty-five percent at fault for the child's serious injuries. All told, it found the child had suffered and would suffer some $12 million in specified damages.

The court then imposed statutory caps and apportioned the jury award. It divided the damages in three categories: (1) roughly $4.3 million that had to be capped at $1 million; (2) roughly $6.7 million for future “life care” and medical expenses that could be awarded upon a good cause finding; and (3) $970,000 for future lost earnings that likewise could be awarded upon a good cause finding.

The court began with a $1 million award and (without objection from defendants) found good cause to add the $6.7 million in future life care and medical expenses. As to the $970,000 in future lost earnings, however, the court declined to find good cause for exceeding the caps.

These rulings yielded post-cap damages of some $7.7 million, which then had to be apportioned based on the jury's fault findings. Apportioning fifty-five percent of the damages to defendants left them responsible for almost $4.3 million in damages.

The court entered judgment in favor of plaintiffs and against defendants for just under $4.3 million. Over plaintiffs' objections, it ordered the roughly $4.1 million comprising future damages paid periodically by defendants' insurer. Over defendants' objections, however, the court carved out the forty percent of this amount (some $1.6 million) to which plaintiffs' attorneys were entitled under their contingent fee agreement and ordered it paid immediately. The final judgment thus requires that the remaining future damages be satisfied by defendants' insurer making monthly payments of prescribed amounts (increasing each year) over the next twenty-five years.

II. Discussion

A. Lump Sum Versus Periodic Payment of Damages

The initial issues raised by these appeals stem from plaintiffs' claim that the future damages be paid in a present value lump sum rather than in twenty-five years of periodic payments. This claim raises issues of retroactivity because it relies on statutory amendments enacted after judgment was entered. We decide these legal issues of retroactivity and statutory construction de novo. People v. Chavarria-Sanchez, 207 P.3d 902, 904 (Colo.App.2009).

1. Statutory Overview

The Health Care Availability Act (HCAA) generally provides for medical malpractice judgments awarding future damages with a present value above $150,000 to “be paid by periodic payments rather than by a lump-sum payment.” § 13-64-203(1), C.R.S.2008. But at all relevant times, there were exceptions. Some plaintiffs could “elect to receive the immediate payment ... of the present value of the future damage award in a lump-sum amount in lieu of periodic payments.” § 13-64-205(1)(f), C.R.S.2008.

Prior to 2007, the HCAA predicated the right to immediate payment on a plaintiff personally being of sufficient age and capacity. The plaintiff had to be at least twenty-one years old, not be “incapacitated,” and “be making an informed decision” after having “been provided financial counseling.” Ch. 100, sec. 1, § 13-64-205(1)(f), 1988 Sess. Laws 615.

In 2007, the General Assembly broadened the class of plaintiffs entitled to elect immediate payments. Ch. 49, sec. 2, § 13-64-205(1)(f), 2007 Sess. Laws 172. It left intact the right of competent adults to make such elections, though it lowered the age of adulthood from twenty-one to eighteen. § 13-64-205(1)(f)(I).

The amended statute now extends election rights to “a person under disability who has a legal representative authorized to take action on his or her behalf.” § 13-64-205(1)(f)(II); see §§ 13-81-101(4) & -102(2)(b), C.R.S.2008 (legal representative's right to elect immediate payment of future damages on behalf of person under disability). Formerly, any election of a lump-sum payment had to be made “[w]ithin no more than three months after the entry of verdict by the trier of fact and before the court enters judgment for periodic payments.” Ch. 100, sec. 1, § 13-64-205(1)(f), 1988 Sess. Laws 615. That requirement was eliminated in 2007.

2. Procedural History

The trial court denied plaintiffs' requests for a lump-sum payment, holding the then-existing statute required periodic payments. Plaintiffs timely noticed their appeal from the final judgment entered in April 2007. The statutory amendments took effect in August 2007, whereupon plaintiffs moved the trial court to amend the judgment under C.R.C.P. 60(b)(5). A motions division of this court denied plaintiffs' motion for a limited remand, and the trial court quite properly has indicated it will not rule on the Rule 60(b) motion while this appeal remains pending.

3. Analysis

a. Plaintiffs may rely on the amended statute.

Defendants ask us not to apply the amended statute by following our general practice of not considering arguments “raised for the first time on appeal.” Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992); but cf. Robinson v. Colorado State Lottery Division, 179 P.3d 998, 1008-09 (Colo.2008) (appellate courts have discretion to relax this practice in rare cases). We hold that plaintiffs may rely on the amended statute.

We decline to create a catch-22 in which an appellant could never rely on a new statute that took effect during a pending appeal. Doing so would contravene a two-century-old rule that:

if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... [the appellate] court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

United States v. Schooner Peggy, 1 Cranch 103, 5 U.S. 103, 110, 2 L.Ed. 49 (1801) (Marshall, C.J.).

The rule is not as absolute as Chief Justice Marshall's language might suggest because courts now presume against retroactivity. Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); see § 2-4-202, C.R.S.2008 (“A statute is presumed to be prospective in its operation.”). It remains true, however, that “[w]hen a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 226, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), quoted in City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 444 (Colo.2000).

b. The amended statute was intended to apply here.

In deciding whether a new statute should be given retroactive effect, the first issue is “whether the General Assembly intended the challenged statute to operate retroactively.” City of Colorado Springs v. Powell, 156 P.3d 461, 465 (Colo.2007). Such intent may be discerned from either the statutory language or (more controversially) its legislative history. Id. at 465-68; see id. at 468-69 (Eid, J., with Coats, J., concurring in part and specially concurring in part) (criticizing consideration of legislative history).

The statutory language here makes pellucid the legislative intent that the amendments apply to pending cases such as this one. It directs that the new provisions “shall apply to civil actions pending on or after” the effective date of August 3, 2007. Ch. 49, sec. 5, 2007 Colo. Sess. Laws 173.

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