Sharon v. SCC Pueblo Belmont Operating Co.

467 P.3d 1245

Leland SHARON, as Co-Special Administrator of the Estate of James Edmond Sharon, and Joyce Jones, as Co-Special Administrator of the Estate of James Edmond Sharon, Plaintiffs-Appellants and Cross-Appellees,

v.SCC PUEBLO BELMONT OPERATING COMPANY, LLC, d/b/a Belmont Lodge Health Care Center, and SavaSeniorCare, Consulting LLC, Defendants-Appellees and Cross-Appellants.

Court of Appeals No. 18CA1559

Colorado Court of Appeals, Division VII.

Announced December 5, 2019

Reddick Moss, PLLC, Brent L. Moss, Brian D. Reddick, Robert W. Francis, Little Rock, Arkansas, for Plaintiffs-Appellants and Cross-Appellees

Gordon & Rees, LLP, John R. Mann, Thomas B. Quinn, Denver, Colorado, for Defendants-Appellees and Cross-Appellants

Opinion by JUDGE J. JONES

¶ 1 Colorado's survival statute, section 13-20-101, C.R.S. 2019, provides that a person's claims against another (except those for slander or libel) survive that person's death. But the damages a decedent's representative can recover may be limited: as now relevant, a representative can recover damages for economic losses but can't recover damages for the decedent's "pain, suffering, or disfigurement" if the action is one for personal injuries. So if a person brings a personal injury action but dies before recovery of damages, the result under the statute is plain enough — the representative can recover damages for loss of earnings and expenses, but not damages for pain, suffering, or disfigurement. Likewise, when a person brings such an action and recovers damages for pain, suffering, or disfigurement before he dies, he dies while the judgment is on appeal, and the judgment is later affirmed on appeal, the result is equally plain — the previous recovery stands. But what if, in the latter situation, the judgment isn't affirmed but is instead reversed on appeal? Can the decedent's representative recover damages for pain, suffering, or disfigurement in the event of a new trial? This case presents that question.

¶ 2 Relying on the statute's plain language, as well as settled law on the effect of a reversed judgment, we answer that question "no." We therefore affirm the district court's judgment for defendants, SCC Pueblo Belmont Operating Company, LLC, doing business as Belmont Lodge Health Care Center (Belmont Lodge), and its affiliate SavaSeniorCare Consulting, LLC (Consulting), and against plaintiffs, Leland Sharon and Joyce Jones, as co-special administrators of James Edward Sharon's estate.

I. Background

¶ 3 Mr. Sharon suffered multiple ailments during his stay at Belmont Lodge, a nursing facility. He sued Belmont Lodge; Consulting; and SavaSeniorCare Administrative Services, LLC (Administrative Services) for negligence.¹ A jury ruled in Mr. Sharon's favor, finding that all three defendants operated the nursing facility as a joint venture, and that, as a joint venture, they had been negligent. But, pursuant to the court's instruction, the jury didn't determine which particular defendant had been negligent. It awarded Mr. Sharon noneconomic ($300,000) and punitive ($3,000,000) damages on his negligence claim based primarily on his pain and suffering.²

¶ 4 Defendants appealed. They contended that Administrative Services and Consulting couldn't be liable to Mr. Sharon as joint venturers and didn't independently owe him a duty of care. During that appeal, Mr. Sharon died, and the current plaintiffs were substituted as the plaintiffs in the case. A division of this court reversed the judgment, concluding that a joint venture didn't exist between defendants and that Administrative Services didn't owe an independent duty of care to Mr. Sharon. Because the division wasn't able to determine from the jury's verdict if the jury had found any particular defendant independently negligent, the division reversed the entire judgment and ordered a retrial of Mr. Sharon's negligence claim against only Belmont Lodge and Consulting. Sharon v. SCC Pueblo Belmont Operating Co. , 2016 WL 4720003 (Colo. App. No. 14CA2006, Sept. 8, 2016) (not published pursuant to C.A.R. 35(e) ).

¶ 5 On remand, Belmont Lodge and Consulting moved for summary judgment and for a determination of a question of law, arguing that under Colorado's survival statute, the representatives could not recover noneconomic or punitive damages, the only types of damages Mr. Sharon had sought. Ultimately, the district court agreed with them, and after plaintiffs stipulated that they sought only noneconomic and punitive damages, the court entered judgment for Belmont Lodge and Consulting.

II. Discussion

¶ 6 Plaintiffs contend that the district court erred by applying the survival statute, for two primary reasons. First, they say that applying this statute in these circumstances allows "the very same common law result that the survival statute was intended to modify." Second, they argue that under the language of the statute, the restrictions on recovery don't apply where a party recovers before dying, even if that judgment is later reversed on appeal.

¶ 7 We reject both arguments.

A. Standard of Review

¶ 8 At bottom, both of plaintiffs’ arguments turn on our interpretation of the survival statute. We review such issues de novo. Colo. Oil & Gas Conservation Comm'n v. Martinez , 2019 CO 3, ¶ 19, 433 P.3d 22.

B. Applicable Law

¶ 9 Colorado's survival statute provides in relevant part as follows:

All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued, but punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed; and, in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death.

§ 13-20-101(1).

¶ 10 The survival statute limits the damages that a representative of a deceased party can recover "in two primary scenarios: (1) when punitive damages and penalties are at issue (‘penalty limitation’); and (2) in tort actions based on personal injury (‘personal-injury limitation’)." Guarantee Tr. Life Ins. Co. v. Estate of Casper , 2018 CO 43, ¶ 8, 418 P.3d 1163. The penalty limitation applies only after the defendant's death, while the personal-injury limitation applies only after the plaintiff's death. Id. at ¶ 11. Because no defendant (or tortfeasor) in this case has died, the penalty limitation is irrelevant to the issues before us. (Plaintiffs’ recovery of punitive damages is barred for a different reason discussed below.) We construe only the personal-injury limitation, which precludes a decedent's representative from recovering damages for pain, suffering, or disfigurement, commonly referred to as noneconomic damages.

¶ 11 In construing a statute, we begin by looking to the statute's language, applying the plain and ordinary meanings of the words and phrases used therein. Martinez , ¶ 19. When the language is clear, we apply it as written, without resorting to other principles of statutory interpretation. Id.

C. Analysis

¶ 12 "At very early common law all actions died with the actors." Publix Cab Co. v. Colo. Nat'l Bank of Denver , 139 Colo. 205, 214, 338 P.2d 702, 707 (1959). "[T]o blunt [this] common law rule on abatement," the General Assembly enacted the survival statute. Estate of Casper , ¶ 5. The express language of the survival statute provides that all actions, except actions for defamation, survive the plaintiff's death. And the statute allows the decedent's estate or personal representative to stand in his shoes "to prevent certain actions or causes of action already accrued from abating by reason of the death of either of the parties."

Brown v. Stookey , 134 Colo. 11, 14, 298 P.2d 955, 957 (1956) (emphasis omitted).

¶ 13 But the survival statute doesn't entirely abrogate the common law rule, at least insofar as damages are concerned. "[I]n tort actions based upon personal injury," the damages available to a successful litigant are subject to the personal-injury limitation, which limits recoverable damages to "loss of earning and expenses sustained or incurred" before the injured party's death. § 13-20-101(1). And the statute expressly bars recovery of "damages for pain, suffering, or disfigurement" and "prospective profits or earnings after" the plaintiff's death. Id. ; Estate of Casper , ¶ 11.

¶ 14 "A different rule applied at common law, however, when the plaintiff died after judgment[.]" Sullivan v. Delta Air Lines, Inc. , 15 Cal.4th 288, 63 Cal.Rptr.2d 74, 935 P.2d 781, 784 (1997). Under that rule, "the death of the plaintiff after judgment, and pending disposition of a writ of error or appeal in the nature of a writ of error, will not affect the judgment." Ahearn v. Goble , 90 Colo. 173, 176, 7 P.2d 409, 410 (1932) (quoting Fowden v. Pac. Coast S.S. Co. , 149 Cal. 151, 86 P. 178, 179 (1906) ). So any damages recovered before the plaintiff's death remained recoverable (subject to the important caveat discussed below). This rule rested on the notion that

"an action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. In such case, the doctrine of abatement does not apply."

Sullivan , 63 Cal.Rptr.2d 74, 935 P.2d at 784 (quoting 1 C.J.S. Abatement and Revival § 127, at 172) ; see also Ahearn , 90 Colo. at 177, 7 P.2d at 410 ("A cause of action ceases to exist on being merged in a judgment or decree, and so long as the judgment or decree remains in force the doctrine of abatement is without application." (quoting F.A....