v. SCC Pueblo , 2019 COA 178 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 5, 2019
2019COA178
No. 18CA1559, Sharon v. SCC Pueblo — Damages — Survival of
Actions — Personal Injury Limitation
A division of the court of appeals addresses whether, under
Colorado’s survival statute, section 13-20-101, C.R.S. 2019, a
decedent’s estate or representative can recover damages for the
decedent’s “pain, suffering, or disfigurement” in a personal injury
action, when a person brings such an action and recovers such
damages before he dies, he dies while the judgment is on appeal,
and the judgment is later reversed on appeal. The division
concludes that those noneconomic damages are not recoverable by
the estate or representative in a new trial because the prior recovery
has been nullified and the survival statute bars recovery of such
damages by or on behalf of a deceased plaintiff.
COLORADO COURT OF APPEALS 2019COA178
Court of Appeals No. 18CA1559
Pueblo County District Court No. 13CV30574
Honorable Jill S. Mattoon, Judge
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.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE J. JONES
Fox and Tow, JJ., concur
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
¶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.
1
¶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,
SSC 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
1 Mr. Sharon initially asserted four claims against defendants, but
the court dismissed the other three claims.
2
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., (Colo.
2The district court reduced the punitive damages award to
$300,000. See § 13-21-102(1), C.R.S. 2019.
3
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.
4
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.
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’);
5
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. 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
6
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., 935
P.2d 781, 784 (Cal. 1997). Under that rule, “the death of the
7
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., 86 P. 178, 179 (Cal. 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, 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. Mfg. Co.
v. Hayden & Clemons, Inc., 273 F. 374, 378 (1st Cir. 1921))); Akers
v. Akers, 84 Tenn. 7, 12 (1885) (the judgment is merely “suspended
and is presumed to be valid until it is shown to be erroneous” and
vacated or annulled). The California Supreme Court has held that
8
California’s survival statute, which is similar to ours, doesn’t
abrogate this common law rule. Sullivan, 935 P.2d at 792. And the
Colorado Supreme Court appears to have taken the same view in
Estate of Casper, ¶ 16 (“[T]he personal-injury limitation limits only
damages ‘recoverable’ after the death of the plaintiff. And if the
damages at issue were ‘recovered’ prior to the death of the plaintiff,
then those damages would no longer be ‘recoverable,’ rendering the
personal-injury limitation irrelevant.”).
¶ 15 But note the caveat to this rule: it applied only so long as the
judgment allowing recovery stood. Sullivan, 935 P.2d at 785;
Ahearn, 90 Colo. at 177, 7 P.2d at 410. In this case, the judgment
embodying Mr. Sharon’s recovery did not stand; it was reversed. 3
So if the common law rule applied, Mr. Sharon’s representatives
could no longer pursue his negligence claim at all. See Sullivan,
3The survival statute makes no mention of “judgment.” § 13-20-
101(1), C.R.S. 2019; Guarantee Tr. Life Ins. Co. v. Estate of Casper,
2018 CO 43, ¶ 16. Instead of obtaining a judgment, the plaintiff
must “recover” before his death. Estate of Casper, ¶ 17. The
plaintiff in Estate of Casper recovered “within the meaning of the
survival statute” when he “obtain[ed] a verdict through legal
process, namely a complete trial during which the jury awarded him
substantial damages under his claim[.]” Id.
9
935 P.2d at 785 n.1 (“[t]he plaintiff’s death during an appeal
nevertheless abate[s] a cause of action for personal tort” if the
judgment in the plaintiff’s favor is reversed on appeal (citing 1
C.J.S. Abatement and Revival § 127, at 173)); Fowden, 86 P. at 179
(“[T]he effect of such reversal would be to vacate the judgment, and
the case would then stand in the same position as though no
judgment had ever been given, in which event defendant might
successfully contend that no further proceedings could be had.”);
Hetfield v. Mortimer, 210 N.W. 326, 327 (Mich. 1926) (the plaintiff’s
death pending appeal, paired with reversal of the judgment on the
tort claim, abated the plaintiff’s claim). 4
4 Plaintiffs misread the California Supreme Court’s decisions in
Sullivan v. Delta Air Lines, Inc., 935 P.2d 781 (Cal. 1997); Sherwin v.
Southern Pacific Co., 145 P. 92 (Cal. 1914); and Fowden v. Pacific
Coast Steamship Co., 86 P. 178 (Cal. 1906), as holding that, under
the common law, if a plaintiff dies while a case is on appeal and the
judgment in his favor is reversed on appeal, the plaintiff’s
representative may prosecute the claim on remand. Those cases,
however, say that the judgment stands if it is upheld on appeal; if it
isn’t, the plaintiff’s claim is abated. Sullivan, 935 P.2d at 784-86 &
n.1 (in the case of death after judgment, the action is not abated
“while the judgment stands”; it is abated if the judgment “was
reversed on the appeal”); Sherwin, 145 P. at 93 (if an order granting
a defendant’s motion for a new trial is reversed on appeal, the
judgment in the plaintiff’s favor stands); Fowden, 86 P. at 179
(reversal of the judgment on appeal puts “the case . . . in the same
10
¶ 16 Under the survival statute, however, Mr. Sharon’s negligence
claim survived his death. But did the damages his representatives
seek to recover? They did not. We reach this conclusion by
applying the well-settled law on the effect of a reversal of a
judgment to the language of the statute.
¶ 17 Under Colorado law, if a judgment is reversed, the parties are
put in the same position they were in before the judgment was
rendered. Schleier v. Bonella, 77 Colo. 603, 605, 237 P. 1113, 1113
(1925); Bainbridge, Inc. v. Douglas Cty. Bd. of Comm’rs, 55 P.3d
271, 274 (Colo. App. 2002) (reversing a judgment returns the
parties to “the same positions they were in before the filing of the
first action”). Thus, when an appellate court reverses a judgment,
“upon remand, that judgment no longer exists.” Bainbridge, 55
P.3d at 274. Indeed, a reversed judgment is “without any validity,
force, or effect, and ought never to have existed.” Butler v. Eaton,
141 U.S. 240, 244 (1891); see also Shilts v. Young, 643 P.2d 686,
688 (Alaska 1981); Cent. Mont. Stockyards v. Fraser, 320 P.2d 981,
position as though no judgment had ever been given, in which event
defendant might successfully contend that no further proceedings
could be had”).
11
991 (Mont. 1957) (“To reverse a judgment or order means to
overthrow it by a contrary decision, to make it void. When a
judgment or order is reversed it is as if never rendered or made.”);
Burns v. Daily, 683 N.E.2d 1164, 1171 (Ohio Ct. App. 1996); Moore
v. N. Am. Van Lines, 462 S.E.2d 275, 276 (S.C. 1995) (a reversal of a
judgment on appeal nullifies the judgment below, leaving the case
as if no judgment had been rendered). And critically, the reversal of
the judgment also nullifies “an award that is dependent on that
judgment for its validity.” Bainbridge, 55 P.3d at 274; see also
Oster v. Baack, 2015 COA 39, ¶ 18. Therefore, as a legal matter,
when a judgment is reversed on appeal, it is as if no recovery was
had.
¶ 18 In this case, then, the prior division’s reversal of the judgment
put the parties in the same position they were in before the entry of
the original judgment — the prior judgment (and underlying
recovery) had no continuing legal effect. 5
5 This is what is meant when the courts say that reversing a
judgment puts the parties in the position they were in before
judgment. It doesn’t mean that the court treats a deceased plaintiff
as if he is still alive.
12
¶ 19 Plaintiffs argue that applying this understanding of a reversed
judgment to the survival statute has the same practical effect as the
common law rule of abatement (i.e., all actions die with the parties).
But that isn’t so. As discussed, under the statute, Mr. Sharon’s
negligence claim wasn’t extinguished upon his death, even though
he died while the judgment was on appeal. His damages were,
however, limited; the noneconomic damages sought by his
representatives aren’t recoverable.6
¶ 20 Plaintiffs’ reliance on Estate of Casper v. Guarantee Trust Life
Insurance Co., 2016 COA 167, ¶ 23, aff’d in part and rev’d in part,
6 The purpose of this limitation seems plain enough. Economic
damages compensate a plaintiff for expenses, lost income, and the
like. Unless the plaintiff’s estate or representative is able to recover
such damages, the plaintiff’s heirs will inherit less of the fruits of
the plaintiff’s life’s work than they would have absent the
defendant’s actions. But the same can’t be said about noneconomic
damages — those for pain and suffering and similar injuries. Such
damages are entirely personal to the plaintiff, and are intended to
make the plaintiff whole. “However, no amount of damages
intended to account for pain, suffering, or disfigurement, will act to
make a deceased party whole.” Estate of Casper, ¶ 11; see County
of Los Angeles v. Superior Court, 981 P.2d 68, 78 (Cal. 1999) (a
decedent’s estate can’t recover damages for a decedent’s pain,
suffering, or disfigurement because those “injuries [are] strictly
personal to the decedent and therefore not transmissible to the
estate”).
13
2018 CO 43, is misplaced. In that case, the plaintiff obtained a jury
verdict awarding him substantial damages. But before the district
court entered a final judgment, the plaintiff died. Id. at ¶ 3. As
discussed, the supreme court ultimately held that the plaintiff had
recovered before he died — the jury’s verdict was a recovery within
the meaning of the survival statute. 2018 CO 43, ¶ 17. Unlike in
this case, however, the judgment wasn’t reversed on appeal, and so
the recovery stood.
¶ 21 Plaintiffs offer several policy arguments for why
representatives of a plaintiff who survives through recovery of
noneconomic damages but dies pending the appeal should be able
to seek those same damages on retrial in the event the original
judgment is reversed. But they should direct those arguments to
the General Assembly. Our job isn’t to move or erase lines drawn
by the General Assembly, but to enforce them. See Samuel J.
Stoorman & Assocs., P.C. v. Dixon, 2017 CO 42, ¶ 11 (“When a
statute is unambiguous, public policy considerations beyond the
statute’s plain language have no place in its interpretation.”);
Ruybalid v. Bd. of Cty. Comm’rs, 2017 COA 113, ¶ 18 (“[M]atters of
14
public policy are better addressed by the General Assembly,” not
this court.), aff’d, 2019 CO 49.7
¶ 22 Because plaintiffs don’t seek recovery of any awardable actual
damages, they can’t recover punitive damages. Section 13-21-
102(1)(a), C.R.S. 2019, provides that a plaintiff must be awarded
actual damages before he may recover punitive damages. Harding
Glass Co. v. Jones, 640 P.2d 1123, 1127 (Colo. 1982) (“[B]y its own
terms section 13-21-102 has no application in the absence of a
successful underlying claim for actual damages.”); see Ferrer v.
Okbamicael, 2017 CO 14M, ¶ 44 (“Exemplary damages do not
present a separate, distinct cause of action, but rather, depend on
an underlying claim for actual damages.”); White v. Hansen, 837
P.2d 1229, 1236 (Colo. 1992) (Generally, “actual damages, even if
only nominal, must be shown by the evidence and awarded to the
plaintiff on the underlying negligence claim before there can be a
basis for an exemplary damage award.”) (emphasis added).
7 To the extent plaintiffs argue that the fact the case proceeded
under section 13-1-129, C.R.S. 2019 — which dictates preferential
trial dates in certain circumstances — has some effect on the
application of the survival statute, we don’t see any connection.
15
¶ 23 In sum, the survival statute bars the noneconomic damages
that plaintiffs seek. Plaintiffs’ inability to recover such damages,
coupled with their decision not to seek economic damages, in turn
bars their recovery of punitive damages.
III. Conclusion
¶ 24 The judgment is affirmed.
JUDGE FOX and JUDGE TOW concur.
16