City of Arvada ex rel. Arvada Police Department v. Denver Health and Hospital Authority , 403 P.3d 609 ( 2017 )

1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
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6 ADVANCE SHEET HEADNOTE
7 October 10, 2017
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9 2017 CO 97
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1 No. 16SC184, City of Arvada ex rel. Arvada Police Department v. Denver Health and
2 Hospital Authority—Prisons—Costs of Incarceration
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4 Arvada police arrested a severely injured man and sent him to Denver Health.
5 Denver Health sued Arvada for the cost of care, claiming that section 16-3-401, C.R.S.
6 (2017), which says that persons in custody “shall be . . . provided . . . medical
7 treatment,” required Arvada to pay the hospital for the detainee’s care. The supreme
8 court clarifies (1) that whether a statute provides a private right of action is a question
9 of standing and (2) that the same test for a private right of action under Allstate
0 Insurance Co. v. Parfrey, 830 P.2d 905 (Colo. 1992) applies for claims against both
1 governmental and non-governmental defendants. Applying Parfrey to Denver Health’s
2 statutory claim here, the supreme court holds that section 16-3-401 does not provide
3 hospitals a private right of action to sue police departments for the cost of providing
4 healthcare to persons in custody. Accordingly, it concludes, the trial court erred by
5 granting summary judgment to Denver Health on the statutory claim. The supreme
6 court remands for consideration of Denver Health’s unjust enrichment claim based on
7 Arvada’s statutory duty to provide care for persons in custody.
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1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2017 CO 97
4 Supreme Court Case No. 16SC184
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 15CA164
7 Petitioners:
8 City of Arvada ex rel. Arvada Police Department,
9 v.
0 Respondent:
1 Denver Health and Hospital Authority.
2 Judgment Reversed
3 en banc
4 October 10, 2017
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6 Attorneys for Petitioners:
7 Christopher K. Daly, City Attorney
8 Arvada, Colorado
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0 Vaughan & DeMuro
1 David R. DeMuro
2 Denver, Colorado
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4 Attorneys for Respondent:
5 Ruegsegger Simons Smith & Stern, LLC
6 Jeff C. Staudenmayer
7 Denver, Colorado
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9 Attorneys for Amici Curiae The Cities of Black Hawk and Northglenn and the Towns
0 of Hudson, Mountain View, and Parker:
1 Hoffmann, Parker, Wilson & Carberry, P.C.
2 Corey Y. Hoffmann
3 Hilary M. Graham
4 Denver, Colorado
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6 Attorneys for Amicus Curiae City and County of Denver:
7 Kristin Bronson, City Attorney
1 T. Shaun Sullivan, Assistant City Attorney
2 Tracy A. Davis, Assistant City Attorney
3 Joshua L. Roberts, Assistant City Attorney
4 Denver, Colorado
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6 Attorneys for Amicus Curiae Colorado Hospital Association:
7 Polsinelli PC
8 Gerald A. Niederman
9 Ann McCullough
0 Bennett L. Cohen
1 Denver, Colorado
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3 Attorneys for Amici Curiae Colorado Intergovernmental Risk Sharing Agency and
4 the Cities of Lakewood and Aurora:
5 Senter Goldfarb & Rice, LLC
6 Eric M. Ziporin
7 Denver, Colorado
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0 JUSTICE HOOD delivered the Opinion of the Court.
1 JUSTICE GABRIEL concurs.
2 JUSTICE COATS concurs in the judgment in part, and JUSTICE EID joins in the
3 concurrence in the judgment in part.
4 JUSTICE MÁRQUEZ does not participate.
2
¶1 When Arvada police officers responded to a reported domestic disturbance in
Terry Ross’s home, Ross slipped into a bedroom and shot himself. Severely injured but
still alive, he needed immediate medical care. Officers radioed for an ambulance whose
crew delivered him to Denver Health Medical Center, a public hospital. There, doctors
treated Ross’s wounds as Arvada officers kept watch over him. When Ross, and later
his estate, could not pay for his care, Denver Health billed Arvada nearly $30,000. The
question presented is essentially whether Arvada must pay the tab.
¶2 The trial court and court of appeals said yes; both read Colorado’s “Treatment
while in custody” statute as entitling Denver Health to relief. Relying on Poudre Valley
Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), the trial court
decided the statute assigned police departments (or any agency that detains people) a
duty to pay healthcare providers for treatment of those in custody. The court of appeals
affirmed on essentially the same grounds.
¶3 We conclude the statute does not create any duty to a healthcare provider. We
further conclude, however, that Denver Health’s claim for unjust enrichment survives.
Because that claim is contractual, we conclude the Colorado Governmental Immunity
Act does not prohibit it. We therefore reverse the judgment of the court of appeals in
part and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
¶4 Investigating a reported domestic disturbance, Arvada Police Officers Lechuga
and Schlesser arrived at Terry Ross’s home. He allowed them inside. After some
conversation, he escaped into a bedroom where, Officer Schlesser worried, he may have
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hidden a gun. She ran after him, drew her own gun, and yelled at him to stop.
Reaching the bedroom door just as it was closing, the officer saw Ross holding what she
thought might be a handgun and feared he might shoot her. She fired at him. The door
swung shut. When Officer Schlesser reopened the door and began to explore the room,
she discovered that although her shot had missed Ross, he had shot himself and was
bleeding from his head.
¶5 Officer Schlesser radioed to say she had detained Ross and that he needed
immediate medical attention for the gunshot wound. An ambulance transported Ross
to Denver Health. Arvada officers accompanied him to the hospital, where they
photographed and interviewed him. After Ross received treatment, an Arvada police
officer remained outside the room until the end of his shift, and the Denver Sheriff’s
Department, as part of its routine duty for Denver Health’s secure wing, monitored the
room for the balance of Ross’s brief stay.
¶6 The bill for Ross’s care at Denver Health totaled just under $35,000.
¶7 About a month after he left the hospital, Ross committed suicide. When he died,
he had not yet paid for his Denver Health treatment, but his estate contributed about
$6,000, bringing the remaining total to about $29,000. Denver Health then billed that
amount to Arvada.
¶8 Arvada refused to pay, and Denver Health sued the city to recover the funds.
The hospital alleged two theories of liability: First, Colorado’s “Treatment while in
custody” statute, § 16-3-401, C.R.S. (2017), entitled it to recover Ross’s remaining cost of
care from Arvada, and second, the common law implied a contract requiring Arvada to
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repay Denver Health. Arvada defended on three grounds: First, the statute did not
create a private right of action; second, it received no benefit from Denver Health to
support its implied-contract claim; and third, the Colorado Governmental Immunity
Act (“CGIA”), § 24-10-106(1), C.R.S. (2017), barred Denver Health’s claims because they
could sound in tort.
¶9 The parties stipulated to a set of operative facts and both sought summary
judgment, which the trial court granted in Denver Health’s favor. The court reasoned
that section 16-3-401 required Arvada to pay for Ross’s care, and that it therefore
entitled Denver Health to repayment. Because the trial court resolved the claim on
statutory grounds, it did not reach Denver Health’s equitable, implied-contract claim.
As to Arvada’s contention that the CGIA barred the suit, the trial court concluded
otherwise, reasoning Denver Health’s claims were contractual and therefore outside the
CGIA’s scope.
¶10 Arvada appealed. The division below, relying on Poudre Valley, concluded
section 16-3-401 required Arvada to pay for Ross’s medical expenses. Because the
statute imposed a duty to provide medical care, the division reasoned, it similarly
imposed a duty to pay for that care.
¶11 The division further rejected Arvada’s arguments that the statute did not
(1) express a clear intent to impose civil liability on government agencies for payment of
medical care, or (2) create a private right of action for medical providers. Like the
division in Poudre Valley, the division in this case reasoned that the traditional limits
on court-created civil private rights of action did not apply because Denver Health did
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not allege a statutory breach creating damages. Instead, the court of appeals observed,
“[T]he hospital helped Arvada fulfill its statutory obligations by providing medical
treatment to a person in Arvada’s custody.” Denver Health & Hosp. Auth. v. City of
Arvada ex. rel. Arvada Police Dep’t, 2016 COA 12, ¶ 36, ___ P.3d ___.
¶12 As to Arvada’s contention that, irrespective of the statutory issue, the CGIA
barred Denver Health’s claims, the division again disagreed. It concluded that Denver
Health’s theory of liability, however characterized, sounded solely in contract—not
tort—and thus the CGIA could not immunize Arvada from suit.
¶13 Concluding the trial court properly resolved the case in Denver Health’s favor,
the division upheld that court’s grant of summary judgment. Arvada petitioned this
court for certiorari. We granted the petition.1
II. Standard of Review
¶14 This court reviews a grant of summary judgment de novo. W. Elk Ranch, L.L.C.
v. United States, 65 P.3d 479, 481 (Colo. 2002). We also review de novo whether the
CGIA bars a particular claim because that determination raises a question of statutory
construction. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008).
1 We granted review of the following issues:
1. Whether the court of appeals erred by creating a civil private right of action in
the code of criminal procedure, benefitting medical providers against
government entities, where no mention of any civil remedy against government
exists.
2. Whether the court of appeals erred in failing to follow Colorado Supreme Court
law that a claim for unjust enrichment could lie in tort and is thereby governed
by the Colorado Governmental Immunity Act.
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III. Analysis
¶15 We resolve the issues raised in three steps. First, we clarify our framework for
implied-private-right-of-action analysis, and then, applying that framework, we
conclude section 16-3-401 does not create a claim entitling Denver Health to relief. The
statute does not identify a duty owed to healthcare providers, does not indicate a
legislative intent to create a right of action, and does not suggest that imputing one
would comport with the legislative scheme. Second, we note that although Denver
Health’s statutory claim fails, its unjust-enrichment claim remains. Third, because
Denver Health’s unjust-enrichment claim sounds in contract, we conclude the CGIA
presents no bar to that claim. Therefore, we reverse and remand for consideration of
Denver Health’s unjust-enrichment claim.
A. Section 16-3-401 Does Not Entitle Denver Health to
Repayment
¶16 Both the trial court and the division below concluded section 16-3-401 entitles
Denver Health to collect the remaining cost of Ross’s care from Arvada. We disagree.
Our analysis, though, begins with a detour in which we explain that courts must
consider whether a statute creates a private right of action as a matter of standing, and
that they must apply the same analysis irrespective of whether the alleged right of
action reaches a government or private defendant. Then, we outline the required
analysis, apply that test, and conclude the statute does not create a private right of
action.
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1. Whether a Statute Creates a Private Right of Action Is a
Question of Standing
¶17 Denver Health urges us to conclude section 16-3-401 entitles the hospital to a
judgment against Arvada without first deciding whether the statute creates a claim a
court can resolve. But we cannot avoid that preliminary issue, so we take it up now.
¶18 The law does not supply a remedy for every wrong, and the courts may redress a
right abridged or a duty breached only if the plaintiff has standing—the right to raise a
legal argument or claim. See City of Greenwood Vill. v. Petitioners for the Proposed
City of Centennial, 3 P.3d 427, 436 (Colo. 2000). A court considering standing in effect
asks, “Is a court the proper place to resolve this dispute?”
¶19 In Colorado, a plaintiff seeking to demonstrate standing must have suffered
(1) an injury-in-fact to (2) a legally protected interest. Ainscough v. Owens, 90 P.3d 851,
855 (Colo. 2004) (citing Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977)). This
two-element analysis—the Wimberly test—ensures that the power to create prospective
laws remains vested in the General Assembly. Id. at 856. A court can often resolve a
dispute, but so too can the legislature, and safeguarding each institution’s integrity
requires the judiciary to refrain from answering those questions better addressed by
another branch of government. See Davis v. Passman, 442 U.S. 228, 253 (1979).
¶20 Under the Wimberly test, proving injury alone does not suffice. The plaintiff
must hold a legal interest protecting against the injury alleged, and courts must
therefore ask “whether the plaintiff has a claim for relief under the constitution, the
common law, a statute, or a rule or regulation.” Ainscough, 90 P.3d at 856. Stated
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differently, the court must conclude the injury is actionable. Cloverleaf Kennel Club,
Inc. v. Colo. Racing Comm’n, 620 P.2d 1051, 1058 (Colo. 1980).
¶21 When a statute does not specify what constitutes an actionable injury, we look to
the law of implied private rights of action to determine whether the statute might still
create a claim conferring standing.2 See id. We don’t often find such a claim. To the
contrary, our reluctance to speak over legislative silence unites our implied-private-
right-of-action opinions.
¶22 Making that point nearly a half-century ago, we said, “If the General Assembly
has the intent that [private parties] use [a] statute as the basis for civil liability, then its
expression of this intent should be loud and clear, I.e., by authorizing the remedy. This
is not a subject in which we should attempt to infer such a legislative intent.” Quintano
v. Indus. Comm’n, 495 P.2d 1137, 1139 (Colo. 1972). More recently, we have required a
“clear expression” of legislative intent before installing a private right of action in a
statute otherwise silent on the matter. State v. Moldovan, 842 P.2d 220, 227 (Colo. 1992)
(discussing Quintano, 495 P.2d at 1138–39 and Bd. of Cty. Comm’rs v. Moreland, 764
P.2d 812, 818–19 (Colo. 1988)).
2 We do not intend for this observation to cast doubt on our well-established law
regarding taxpayer standing, a doctrine not implicated here. E.g., Conrad v. City and
Cty. of Denver, 656 P.2d 662, 668 (Colo. 1982) (observing taxpayers enjoy an “economic
interest in having their tax dollars spent in a constitutional manner” and that
unconstitutional spending can therefore contribute to injury-in-fact under the Wimberly
test).
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2. The Same Implied-Private-Right-of-Action Analysis Applies
to Governmental and Non-governmental Defendants
¶23 We have expressed the same concerns no matter the legal theory and no matter
the defendant. Although our implied-private-right-of-action cases typically concern
torts, e.g., Moldovan, 842 P.2d at 226–27, we have analyzed other implied statutory
claims as well, e.g., Bd. of Cty. Comm’rs v. Pfeifer, 546 P.2d 946, 948–49 (Colo. 1976)
(holding statute did not create claim to set aside improper conveyance). We similarly
hesitate to imply a private right of action irrespective of whether the defendant is a state
actor or a private party. See Moldovan, 842 P.2d at 226–27 (state actor); Allstate Ins. Co.
v. Parfrey, 830 P.2d 905, 910 (Colo. 1992) (private party).
¶24 To be sure, some of our earlier cases suggested a two-track analysis—one for
governmental defendants and another for private defendants—perhaps as the vestige of
a time when sovereign immunity remained a question for the courts. But those paths
have since converged. So, although in Parfrey we addressed our analysis to
“nongovernmental defendants,” 830 P.2d at 911, later that year, we conducted the
functional equivalent of that analysis with the state as the defendant in Moldovan, 842
P.2d at 226–27. And in Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo.
1997), a private-defendant case, we drew from both our governmental- and
private-defendant opinions without noting any distinction—a distinction we perceive
as existing more in word than in deed. We therefore take this opportunity to make
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explicit the approach implicit in our opinions: The same implied-private-right-of-action
analysis applies irrespective of the defendant’s governmental status.3
3. Under the Parfrey Test, Section 16-3-401 Does Not Create an
Implied Private Right of Action
¶25 As with all matters of statutory interpretation, our fundamental task must be to
discern and effectuate the legislature’s intent. When, as here, “a claimant alleges that a
statute, ordinance, or regulation implicitly creates a private right of action, the critical
question is whether the legislature intended such a result.” Magness, 946 P.2d at 923.
¶26 Generally, if the legislature includes a remedy in the statute at issue, we will
conclude it did not intend for the courts to create others. See Parfrey, 830 P.2d at 910;
Pfeifer, 546 P.2d at 948–49. But if the statute “is totally silent on the matter of remedy,”
then the court “must determine whether a private civil remedy reasonably may be
implied.” Parfrey, 830 P.2d at 910.
¶27 Answering that question requires the court to examine three factors: (1) “whether
the plaintiff is within the class of persons intended to be benefitted by the legislative
enactment”; (2) “whether the legislature intended to create, albeit implicitly, a private
right of action”; and (3) “whether an implied civil remedy would be consistent with the
purposes of the legislative scheme.” Id. at 911. Only after a court has determined a
3 Two years ago, we reached the same conclusion in Taxpayers for Public Education v.
Douglas County School District, 2015 CO 50, 351 P.3d 461 (2015). The Supreme Court
subsequently vacated that opinion, however, in Douglas County School District v.
Taxpayers for Public Education, 137 S. Ct. 2327 (2017). Because we perceive that
decision as unrelated to our implied-private-right-of-action analysis, and because our
vacated opinion no longer holds precedential value, we have revisited this issue and
reach the same conclusion.
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statute has satisfied these factors can it conclude the legislature clearly expressed its
intent to create a cause of action conferring standing on the claimant.
¶28 Here, the parties dispute whether we should read a private right of action into
the following language:
Persons arrested or in custody shall be treated humanely and provided
with adequate food, shelter, and, if required, medical treatment. Anyone
receiving medical treatment while held in custody may be assessed a
medical treatment charge as provided in section 17-26-104.5, C.R.S.
§ 16-3-401(2). Because the statute does not already identify a remedy for breach of its
provisions, we begin with the Parfrey analysis.4
¶29 The case for a claim falters from the first step: Section 16-3-401 does not reveal
legislative intent to benefit healthcare providers like Denver Health. Instead, titled
“Treatment while in custody,” it describes the duties owed to a person in custody,
medical care numbering one among several. Id. And that section appears within a
larger enactment concerning “Rights of persons in custody.” Tit. 16, art. 3, pt. 4, C.R.S.
(2017). Both that section and the larger enactment focus solely on the rights and duties
of a confining state entity with respect to the person in its custody—not on the third
parties who might incidentally assist a detaining government in fulfilling its statutory
duties.
4 Although section 16-3-401(2) allows a confining entity to assess a treatment charge as
provided in section 17-26-104.5, C.R.S. (2017), that remedy concerns a duty distinct from
the one alleged here. That is, although section 17-26-104.5 plausibly places on a
detainee the duty to repay a county jail for treatment the jail provided on his behalf, it
does not illuminate whether the legislature intended to create (1) a duty requiring local
governments to repay medical providers or (2) a remedy for the breach of that duty.
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¶30 As to Parfrey’s second factor, the legislature’s silence regarding any duty owed
to medical providers suggests it did not intend to create a right of action in favor of
those providers. Moreover, the legislation here lacks other indicia of intent to create a
private right of action.
¶31 In Moldovan, 842 P.2d at 221, a motorist injured after crashing into a cow on a
state highway asked us to impute a private right of action into Colorado’s Fence Law.
(That law required the state highway department to erect fencing to prevent errant
animals from venturing onto its roads. Id. at 225–26.) We concluded the legislature
intended for the statute to create a private right of action against the state because
(1) the state owed a duty directly to the plaintiff and (2) the legislature had waived
sovereign immunity for dangerous conditions on public roads. Id. at 228.
¶32 Similarly, in Parfrey, 830 P.2d at 911, we concluded the legislature implicitly
intended to create a private right of action for an insured against his insurance company
when (1) doing so would incentivize the insurer to perform its express statutory
obligation to the insured, and (2) failing to create a cause of action would have left an
insured without any of the benefits promised under the statute.
¶33 Here, at most, the legislature has chosen against extending sovereign immunity
to contractual claims. See § 24-10-106(1); Colo. Dep’t of Transp. v. Brown Grp. Retail,
Inc., 182 P.3d 687, 690–91 (Colo. 2008). But it has not created a duty to medical
providers similar to the state’s duty to motorists in Moldovan or the insurer’s duty to
the insured in Parfrey. See § 16-3-401.
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¶34 Furthermore, we need not find a right of action for hospitals to ensure the
detaining government fulfills its duty to supply its detainees with medical care. As
Denver Health explains, federal law requires it to treat patients needing emergency care
and prevents it from asking whether or how the patient will pay. See 42 U.S.C.
§ 1395dd(a), (b) (2016). Finding a private right of action, then, wouldn’t change the
hospital’s decision to provide care or the city’s ability to procure care in an emergency.
In other, less dire situations, a government could contract with a provider for the care it
must deliver—and if it opted not to pay, the case would be based on the contract, not
the statute. Thus, we cannot say that to ensure a detainee receives the care the statute
promises him we must impute a private right of action for hospitals.
¶35 Finally, we cannot conclude that imputing a private right of action would be
consistent with the purposes of the legislative scheme. The provision of section
16-3-401 at issue was introduced in the 1972 enactment of the Colorado Code of
Criminal Procedure. Ch. 44, sec. 1, § 39-3-401, 1972 Colo. Sess. Laws 190, 202. The
overall purpose of the Code is “to provide for the just determination of every criminal
proceeding.” § 16-1-103, C.R.S. (2017). Implementing section 16-3-401 served that
broad purpose by codifying the common law rule that prisoners must be cared for by
the public who sanctions their detention. See, e.g., Spicer v. Williamson, 132 S.E. 291,
293 (N.C. 1926) (“It is but just that the public be required to care for the prisoner, who
cannot, by reason of the deprivation of his liberty, care for himself.”).5 It likewise
5This rule has since been recognized as constitutionally required under the Eighth
Amendment for convicted prisoners, Estelle v. Gamble, 429 U.S. 97, 103 (1976), and
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served the Code’s more specific purpose of preserving “the fundamental human rights
of individuals.” § 16-1-103. These purposes don’t jibe with an intent to create a private
right of action for medical providers.
¶36 We therefore decline to read a private right of action into section 16-3-401 and
disapprove of the analysis below concluding otherwise. We similarly overrule Poudre
Valley to the extent it conflicts with our conclusion here.
B. Denver Health Might Still Recover on a Theory of Unjust
Enrichment
¶37 Although we conclude that the court of appeals erred in finding section 16-3-401
creates a private right of action, Denver Health could still prevail on its
implied-contract/unjust-enrichment claim. As a judicially created, equitable cause of
action, an unjust-enrichment claim does not depend on any contract, written or oral, but
instead arises from a “contract implied in law.” Lewis v. Lewis, 189 P.3d 1134, 1141
(Colo. 2008) (quoting DCB Constr. Co. v. Cent. City Dev. Co., 965 P.2d 115, 119 (Colo.
1998)). To recover under an unjust-enrichment theory, a plaintiff must prove three
elements: “(1) [T]he defendant received a benefit (2) at the plaintiff’s expense (3) under
circumstances that would make it unjust for the defendant to retain the benefit without
commensurate compensation.” Id. Denver Health argues that Arvada received a
benefit at Denver Health’s expense because the statute obligated Arvada to provide the
medical treatment that Denver Health provided to Ross. Neither the trial court nor the
court of appeals reached this claim, and we decline to do so in the first instance.
under the Due Process Clause for pretrial detainees, City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983).
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¶38 So, the implied-contract/unjust-enrichment claim remains, but is it barred by the
CGIA? We turn now to that question.
C. The Colorado Governmental Immunity Act Does Not Bar
Denver Health’s Claim
¶39 The CGIA bars public liability for all claims for injury that lie in tort or could lie
in tort, unless the claim falls within an exception to that immunity. § 24-10-106(1);
Robinson, 179 P.3d at 1003. The CGIA does not, however, grant immunity to public
entities for non-tort claims, including claims based on “contractual relations or a
distinctly non-tortious statutorily-imposed duty.” Brown Grp., 182 P.3d at 691.
¶40 The key question, then, is whether the claim here lies in tort or could lie in tort.
To answer it, we look first to “the nature of the injury and the relief sought” in the case
at bar. Robinson, 179 P.3d at 1003. If the alleged injury requiring relief results from
tortious conduct or breach of a tort duty, then, it likely falls within the CGIA, even if the
claimant has characterized its cause of action as contractual. Id. at 1003, 1005.
¶41 Applying these considerations to the unjust-enrichment claim discussed above,
we conclude it does not and cannot lie in tort, and thus the CGIA presents no bar to
suit. Arvada offers only an implausible hypothetical to support its contention that the
facts here amount to a tort claim—that Denver Health could have argued Arvada
misrepresented its intention to pay for Ross’s care and thereby induced the hospital to
care for him. But as we observed above, federal law already required Denver Health to
treat Ross. And once he arrived on the hospital steps, Arvada’s representations no
longer dictated whether Ross would receive care. Regardless, the facts do not disclose
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misrepresentation. When the hospital presented an Arvada Officer with a “Guarantee
of Payment for Patient/Inmate” form, the officer signed it but noted next to the medical
expenses, “suspect is responsible—he shot self.”
¶42 We will not shoehorn contractual facts into a tort theory. See id. at 1007
(explaining that we apply a “case-by-case analysis” to determine whether an unjust
enrichment claim could lie in tort); cf. Bd. of Cty. Comm’rs v. DeLozier, 917 P.2d 714,
717 (Colo. 1996) (holding estoppel claim could not lie in tort where “the facts that
support [the] claim could not support a claim for fraud or misrepresentation”). Denver
Health, by virtue of its statutory obligation, performed a service normally covered
under contract. Arvada never promised to pay for that service, and has in fact refused
to pay, but it may have received a benefit. We therefore concluded above that the law
supplies a relationship that could require Arvada to compensate Denver Health for
Ross’s care—a relationship we described as arising from a “contract implied in law.”
Supra, maj. op. at ¶ 37. This equitable claim therefore more closely resembles one
sounding in contract and cannot lie in tort. As a result, the CGIA does not stand in its
way.
IV. Conclusion
¶43 Colorado’s “Treatment while in custody” statute does not create a claim a court
may hear, in large part because it does not create any duty owed to a healthcare
provider, much less a claim to recover for a breach of that duty. Still, having concluded
as much, we further conclude that Denver Health’s request for relief potentially finds
purchase in the equitable remedy of unjust enrichment. And because Arvada may have
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had a statutory duty to care for Ross that it placed on Denver Health—an institution
which could not refuse the task—the district court should address whether it would be
unjust for Arvada to retain the benefit, if any, of Denver Health’s performance without
paying for it. Finally, because that remedy is contractual and could not lie in tort, we
conclude the Colorado Governmental Immunity Act does not stand in its way. We
therefore reverse the judgment of the court of appeals to the extent it held the statute
supplied a right of action to Denver Health, and we remand for further proceedings
consistent with this opinion.
JUSTICE GABRIEL concurs.
JUSTICE COATS concurs in the judgment in part, and JUSTICE EID joins in the
concurrence in the judgment in part.
JUSTICE MÁRQUEZ does not participate.
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JUSTICE GABRIEL, concurring.
¶44 I join the majority’s opinion in full. I write separately, however, to explain why I
believe that the conclusion that the law dictates with respect to section 16-3-401(2),
C.R.S. (2017), may lead to unfair results and thus cries out for legislative clarification.
I. Analysis
¶45 The principal issue in this case boils down to this: when Arvada brought a
person in its custody to Denver Health for treatment and Denver Health provided such
treatment, does section 16-3-401(2) require Arvada to pay for the cost of that treatment,
or should Denver Health, and ultimately Denver taxpayers, bear this cost?
¶46 In my view, the intuitive answer to this question is clear: Arvada, as the party
that requested the treatment, should pay, just like it must pay for the adequate food and
shelter that section 16-3-401(2) requires it to provide to persons who are arrested or in
its custody. I do not believe that anyone disputes that Arvada would be required to pay
for medical treatment if that treatment were provided to a person in custody in an
Arvada institution. I see no reason why the result should be different were Arvada to
transport the same person to Denver Health for treatment. The person remains in
Arvada’s custody, and the statutory duty to provide treatment remains the same. See
§ 16-3-401(2). Indeed, concluding that Denver Health must bear the costs in such a
scenario creates a perverse incentive for cities having custody over persons in need of
treatment to transport such persons to Denver Health in order to avoid incurring the
costs. Such a result makes little sense to me, and it seems particularly unjust to Denver
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taxpayers, who could end up bearing costs that should rightly be borne by the
taxpayers of the cities holding the persons in need of treatment.
¶47 Nonetheless, under existing law, I cannot conclude that section 16-3-401(2)
evinces a clear legislative intent to allow Denver Health to assert a statutory claim for
the costs at issue.
¶48 We have long held that we will not infer a private right of action based on a
statutory violation unless we discern a clear legislative intent to create such a cause of
action. See, e.g., Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 923 (Colo. 1997); Bd.
of Cty. Comm’rs v. Moreland, 764 P.2d 812, 817 (Colo. 1988); Quintano v. Indus.
Comm’n, 495 P.2d 1137, 1139 (Colo. 1972).
¶49 Here, I cannot say that section 16-3-401(2) evinces the requisite clear legislative
intent to recognize a statutory cause of action. This is particularly true given that
section 16-3-401(2) itself expressly provides for the assessment of costs to the person
receiving treatment. See § 16-3-401(2) (“Anyone receiving medical treatment while
held in custody may be assessed a medical treatment charge as provided in section
17-26-104.5, C.R.S.”); see also § 17-26-104.5(3), C.R.S. (2017) (“When a person is held in
custody in a county jail, the person shall be primarily responsible for the payment of the
cost of medical care provided to the person for a self-inflicted injury or a condition that
was preexisting prior to the person’s arrest and shall be charged for the medical care by
the provider of care.”).
¶50 The fact that in section 16-3-401(2), the General Assembly assessed certain costs
to persons receiving treatment shows that the legislature knew how to allocate the
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burden of payment when it intended to do so. In these circumstances, I cannot read
into section 16-3-401(2) a clear legislative intent to require Arvada to bear the costs in
the scenario presented in this case.
¶51 In reaching this conclusion, I am unpersuaded by Denver Health’s assertion that
cases like Gerrity Oil, Moreland, and Quintano are distinguishable because they
concerned breaches of statutory duties whereas in the present case, Denver Health
assisted Arvada in complying with its statutory duty. Although I acknowledge this
distinction, I do not believe that our case law regarding implied statutory rights of
action has drawn so fine a line. In any event, the question of whether we may infer
from a statute a private right of action must turn on the legislature’s intent, and here, it
is what I perceive to be a lack of clarity as to the legislature’s intent that compels me to
concur in the majority’s decision.
II. Conclusion
¶52 For the foregoing reasons, I believe that settled law requires me to conclude that
section 16-3-401(2) does not support Denver Health’s statutory claim to recover the
costs of services that it provided to Mr. Ross. It is not clear to me, however, that this is
the legislature’s intended result, particularly given the inequitable outcomes that could
flow from such a conclusion.
¶53 Accordingly, although I join in the majority’s opinion, I echo the sentiments
expressed by Judge Vogt in her special concurrence below that the issues in this case cry
out for resolution by the General Assembly. Denver Health & Hosp. Auth. v. City of
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Arvada ex rel. Arvada Police Dep’t, 2016 COA 12, ¶ 50, ___ P.3d ___, ___ (Vogt, J.,
specially concurring). I hope it will take up the mantle.
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JUSTICE COATS, concurring in the judgment in part.
¶54 Unlike the majority, I would reverse the judgment of the court of appeals and
order that the case be returned to the district court for entry of an order granting
Arvada’s motion for summary judgment. I do not believe the judgment of the court of
appeals implicates our jurisprudence concerning the statutory creation of private rights
of action at all, much less requires us to separately address the question of standing.
Furthermore, I would find that section 16-3-401 of the revised statutes not only fails to
impose upon Arvada a duty to bear the ultimate cost of Ross’s medical treatment but, in
fact, expressly absolves Arvada of any such responsibility. And finally, even if the
statute actually did impose such a duty on custodians, as the court of appeals held, I
would find it to be a duty implied in law, for the breach of which and corresponding
damages for which the assertion of governmental immunity would be available. I
therefore do not join the majority opinion, and I concur only in that portion of its
judgment reversing the judgment of the court of appeals.
¶55 Notwithstanding Arvada’s characterization, I believe the court of appeals finds a
statutory duty of custodians to shoulder the expense of caring for those in its custody
but not a statutorily created right of action by providers against that custodian. While I
disagree that the statute imposes liability on custodians for this expense, I do so from a
simple construction of sections 16-3-401(2) and 17-26-104.5.
¶56 I believe the majority’s analysis goes awry from its very inception by
understanding Denver Health to be claiming, and the court of appeals judgment as
upholding, an entitlement to a statutorily created, implied private right of action for the
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violation of a statutory obligation. Our jurisprudence upon which the majority relies,
see, e.g., Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992); Bd. of Cty. Comm’rs v.
Moreland, 764 P.2d 812 (Colo. 1988), addresses the question whether the violation of a
statutorily or administratively imposed obligation was intended by the enacting body
not only to have consequences in terms of governmental enforcement but also to permit
a private action by the intended beneficiaries of that obligation. Denver Health,
however, makes no claim to a statutorily created private right of action, asserting
instead merely a claim in the nature of restitution for satisfying or helping to satisfy
Arvada’s duty to provide medical treatment for those in its custody. By the same token,
the court of appeals expressly distinguishes our private right of action jurisprudence
from its holding on the grounds that it does not find any violation of what it interprets
to be Arvada’s statutorily imposed duty of care, but simply that the statute implicitly
imposes upon it a responsibility to bear the costs of such care, by whomever it is
provided.
¶57 Rather than the creation of a private right of action, the majority should have
been concerned with the question whether the clear duty of law enforcement authorities
to care for persons in their custody, whether imposed solely by statute or already
existing at law, implies an obligation to bear the cost of medical treatment provided
those persons, such that anyone providing that medical treatment would have a claim,
in the nature of restitution or unjust enrichment, for the recovery of its costs. Whether
the custodian would be expressly obligated to make restitution by the relationship
alone or, if not, that it would simply be unjust to permit the custodian to retain the
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benefit it received as the result of another having provided such treatment, any
entitlement to reimbursement by a provider would necessarily be dependent upon the
custodian’s having received a benefit, which in turn would be dependent upon the
exclusivity of the custodian’s obligation to provide medical care for its prisoners and
therefore its obligation to bear the cost of that care. Section 16-3-401(2) in no way
implies that custodians will be liable for the costs of medical care provided to persons
in their custody; to the contrary, it specifies that the person in custody himself shall be
ultimately responsible for the cost of such care, which may be assessed against him as
provided by statute. §16-3-401(2), C.R.S. (2017) (“Anyone receiving medical treatment
while held in custody may be assessed a medical treatment charge as provided in
section 17-26-104.5, C.R.S.”).
¶58 While I agree with the majority’s conclusions that section 16-3-401 does not
identify any duty of custodians to healthcare providers whatsoever or relieve those
providers of any separate duties they clearly have to treat patients needing emergency
care, without regard for payment, maj. op. ¶¶ 33–34, I do not agree that these
conclusions derive in any way from our statutorily created private right of action
jurisprudence, or even that the question whether a private right of action was intended
necessarily implicates the doctrine of standing. While the question whether a particular
claimant may bring a particular action may be said to involve standing, in the mundane
sense that any party asserting a claim must have standing to do so, the question
whether a private right of action has been statutorily created does not always implicate
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the doctrine of standing, and in Parfrey and those cases relying on it, we have not
addressed the creation of a private right of action in terms of the standing doctrine.
¶59 For the very reason that the statute not only fails to identify a duty owed to
healthcare providers but actually makes clear that the inmate being treated ultimately
bears the obligation for his own medical expenses, I also disagree with the majority’s
remand for consideration of Denver Health’s claim of unjust enrichment. Arvada could
have benefitted from Denver Health’s medical services, a necessary element of any
claim of unjust enrichment, only to the extent that Arvada was ultimately responsible
for the cost of the health care. In the absence of any such responsibility, Arvada could
not have been unjustly enriched.
¶60 Finally, even if the issue of unjust enrichment were not already disposed of for
this reason, I disagree with the majority’s determination that Denver Health’s unjust
enrichment claim would not be subject to our statutory provisions for governmental
immunity because it is based on “contractual relations” or “contractual facts.” Maj. op.
¶¶ 39, 42. While the majority does not appear to repeat the mistake of the court of
appeals in categorizing all implied contracts, including those implied in law along with
those implied in fact, as contractual rather than tortious in nature, see Robinson v. Colo.
State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008); see also Colo. Dep’t of Transp. v.
Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008), it nevertheless appears to suggest
that the officer’s signature on a hospital form implicates promissory estoppel or some
other contract-related, rather than tort-related, claim. Maj. op. ¶¶ 41–42. As Denver
Health itself conceded, the signed form was irrelevant and implied nothing about its
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claim for unjust enrichment. Whatever may have been the majority’s rationale for
finding that the claim could not lie in tort, I would find that even if the statutory
interpretation of Denver Health and the court of appeals were correct, the duty at issue
in section 16-3-401 would be one of general care, deriving not from any implicit
agreement or promise on the custodian’s part but strictly from its special relationship
with the persons restrained in its custody.
¶61 Despite fundamentally disagreeing with almost all of the majority opinion, I
share with it a common conclusion that section 16-3-401(2) does not impose upon
custodians any duty whatsoever with regard to healthcare providers. I therefore
respectfully concur in that part of its judgment.
I am authorized to state that JUSTICE EID joins in this concurrence in the
judgment in part.
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