Welch v. George, No. 99SC964.

• Docket Nº: No. 99SC964.
• Citation: 19 P.3d 675
• Case Date: November 28, 2000
• Court: Supreme Court of Colorado

19 P.3d 675

Wade Michael WELCH, Petitioner,
v.
Edwin Bruce GEORGE, Respondent

No. 99SC964.

Supreme Court of Colorado, En Banc.

November 28, 2000.

Wick, Campbell, Bramer, Ukasick & Trautwein, LLC, Troy A. Ukasick, Kimberly B. Schutt, Fort Collins, CO, Attorneys for Petitioner.

J.J. Vick, Greeley, CO, Attorney for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' decision in George v. Welch, 997 P.2d 1248 (Colo.App.1999). In that decision, the court of appeals held that a loss of consortium claim, arising out of an automobile accident, can be brought without meeting the threshold requirements of section 10-4-714, 3 C.R.S. (2000). The court of appeals also held that a trial court may award a prevailing

19 P.3d 676

party costs for a witness's traveling expenses even if the witness testified voluntarily and was not subpoenaed

We reverse and remand for proceedings consistent with this opinion. In reaching our decision, we conclude that the requirements of section 10-4-714 do apply to a loss of consortium claim arising out of an automobile accident. Therefore, we remand the case with directions to return it to the trial court to determine whether the injuries to the respondent's wife met the requirements of section 10-4-714 and, thus, whether the respondent's loss of consortium claim was actionable. Furthermore, we hold that a prevailing party may not be awarded costs for the travel mileage of a witness who testifies voluntarily.

I.

The petitioner, Wade Michael Welch ("Welch"), was involved in an automobile accident in which the vehicle he was driving collided with a vehicle driven by the respondent, Edwin Bruce George ("George"). Billie Sue Schexnaydre, George's wife, was also in the automobile when it was struck by Welch's vehicle. George and his wife both sued Welch to recover damages for their personal injuries, asserting claims of negligence, negligence per se, and loss of consortium.

Shortly after commencing legal action against Welch, George's wife separated from George and moved to Louisiana. At about the same time as the separation, George's wife entered into a settlement agreement with Welch. George, however, did not reach a similar agreement with Welch and continued with his claim for relief.

Before trial, Welch filed a motion to preclude George's loss of consortium claim. Welch asserted that George's loss of consortium claim was not actionable because it was derivative of his wife's personal injury claims and George could not establish that his wife's injuries met one of the threshold requirements of the Colorado Auto Accident Reparations Act, sections 10-4-701 to -726, 3 C.R.S. (2000)("No-Fault Act"). The trial court denied the motion.

A jury trial was held to determine the merits of George's claim. George's wife traveled from Louisiana to Colorado in order to testify at the trial on her husband's behalf. At the conclusion of the trial, the jury returned a verdict in favor of George awarding him damages in the amount of $120,000. The verdict did not distinguish between George's personal injury and loss of consortium claims. Further, the trial court awarded George $5,022.19 in costs including $1,087.13 for the travel expenses his wife incurred testifying at trial.

On appeal Welch contended that the trial court erred by: (1) allowing the jury to consider George's loss of consortium claim when the claim was derivative of his wife's bodily injuries and no evidence was produced to show that her injuries met the threshold requirements of the No-Fault Act; and (2) awarding George costs for the travel expenses of his wife because she testified voluntarily and was not subpoenaed. The court of appeals affirmed the trial court's holding. See George, 997 P.2d at 1249. In doing so it held that George's loss of consortium claim was not derivative of his wife's bodily injury claim for purposes of the No-Fault Act, and that the trial court did not err when it awarded George his wife's travel expenses. See id. at 1251, 1254.

We granted certiorari to consider whether the court of appeals appropriately interpreted the No-Fault Act, and whether a trial court may award a witness's travel expenses as costs when the witness testifies at trial voluntarily.¹ We now hold that George's loss of consortium claim was derivative of his wife's bodily injury claims. Furthermore, we hold that a trial court does not have the discretion to award costs for the mileage traveled by a witness in order to testify at

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trial when the witness testifies voluntarily and is not subpoenaed

II.

In this case, both issues before us are questions of statutory interpretation and, therefore, are subject to de novo review. See Fogg v. Macaluso, 892 P.2d 271, 273 (Colo. 1995).

Welch contends that Colorado's No-Fault Act, specifically section 10-4-714, applies to loss of consortium claims. Therefore, he argues that George's loss of consortium claim is barred unless George can prove that his wife's injuries meet the statute's threshold requirements.² We agree. In reaching our conclusion, we first analyze whether the use of the language "bodily injury" in section 10-4-714 should be read so as to exclude claims for loss of consortium. We then consider whether a loss of consortium claim is an independent claim that is not required to meet the threshold requirements of section 10-4-714.

A.

The No-Fault Act creates an insurance benefit system that provides compensation to persons injured in an automobile accident without regard to fault. See Bushnell v. Sapp, 194 Colo. 273, 571 P.2d 1100, 1102 (1977). The intent of the No-Fault Act is to avoid the inadequate compensation of such victims. See § 10-4-702, 3 C.R.S. (2000).

One of the legislative purposes of the No-Fault Act is to eliminate litigation of minor claims, thus providing timely resolution of claims for major injuries. See Bushnell, 571 P.2d at 1106. The statute effectuates the latter purpose by precluding recovery for "damages for bodily injury caused by a motor vehicle" unless one of the threshold requirements enumerated in the statute is met. See § 10-4-714(1), 3 C.R.S. (2000). The threshold requirements are: (a) death, (b) dismemberment, (c) permanent disability, (d) permanent disfigurement, (e) medical and rehabilitative expenses in excess of two thousand five hundred dollars, or (f) loss of earnings that continue in excess of a specified amount of time. See id. The fifth threshold requirement is at issue in this case.

The court of appeals based its holding on the plain language of the statute, and found that because loss of consortium is not a "bodily injury," it is not covered by section 10-4-714. The court of appeals' narrow construction of the statute, however, is not supported by case law.

In Bushnell, a plaintiff claimed $25,000 in damages for pain and suffering but had only incurred medical expenses of $236, an amount below the then-applicable threshold of $500. See Bushnell, 571 P.2d at 1102. In analyzing the claim, we reasoned that the legislature did not set an independent threshold requirement for pain and suffering claims in section 10-4-714 because pain and suffering cannot be measured...