Rocky Mountain Appellate Blog

Cap for Noneconomic Damages Under Colorado Wrongful Death Act Applies Per Claim, Not Per Defendant

On January 22, 2008, the Colorado Supreme Court issued an opinion in Lanahan v. Chi Psi Fraternity, Case No. 07SA113, clarifying the scope of the cap for noneconomic damages under the Colorado Wrongful Death Act, C.R.S. section 13-21-203(1)(a).  In Lanahan, the plaintiff's son died as a result of excessive drinking during a fraternity initiation.  The plaintiff brought a wrongful death action against the fraternity and several of its members, seeking both economic and noneconomic damages.  Prior to trial, one of the defendants moved for a determination of law that the damages cap for noneconomic damages under the Wrongful Death Act applies on a per claim basis, rather than on a per defendant basis, and as a result the plaintiff's recovery was limited to $341,250 for noneconomic damages (the $250,000 cap adjusted for inflation).  Plaintiff countered that she was entitled to recover the capped amount from each of the defendants.

The trial court agreed with the defendant, and the plaintiff sought review pursuant to the Colorado Supreme Court's original jurisdiction.  After issuing a rule to show cause, the Supreme Court upheld the trial court's ruling and discharged the rule.  The Supreme Court based its decision on the plain language of the statute imposing the cap, which states that there shall be only one civil action for the wrongful death of any one decedent, and that there "shall be no recovery under this part 2 for noneconomic loss or injury in excess of two hundred and fifty thousand dollars."

The Supreme Court distinguished its ruling in General Electric Co. v. Niemet, 866 P.2d 1361, 1368 (Colo. 1994), which held that the more general cap for noneconomic damages under C.R.S. section 13-21-102.5 applies on a per defendant basis, rather than a per claim basis.  The Supreme Court in General Electric found the language of section 102.5, stating that "[i]n any civil action . . . in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred and fifty thousand dollars," to be ambiguous, and concluded that applying the cap on a per defendant basis would serve the General Assembly's intent to protect individual defendants from excessive liability without unduly restricting a plaintiff's recovery.

The end result is that a plaintiff seeking noneconomic damages for injuries short of death can seek the capped amount from each defendant, whereas a plaintiff seeking noneconomic damages under the Wrongful Death Act can seek only the capped amount from all defendants collectively.

Chief Judge Henry's Investiture

Chief Judge Henry will be formally sworn in today as the new chief judge of the circuit, and I look forward to reading his remarks on the occasion of his investiture.  As anyone who has attended the biennial Tenth Circuit Bench & Bar Conference can attest, Chief Judge Henry's prepared remarks (usually in the form of an introduction of an honored guest speaker) are almost always remarkably funny and gracious.  I've often thought that a collection of all those great conference introductions should be published somewhere -- they would make for great reading.  If I find his remarks from today's ceremony anywhere, I'll be sure to post them.

UPDATE:  I couldn't find a transcript of Chief Judge Henry's remarks anywhere online this morning, but Howard Bashman posted this report on the investiture ceremony in this morning's Norman Transcript.  I thought the reporter nicely captured the essence of the ceremony:  "[T]he whole event seemed a bit like a group of dear friends getting together, teasing each other and praising one another’s accomplishments."

Ready For Their Close Up?

Last week the New York Times published an editorial criticizing the Supreme Court’s refusal to allow its proceedings to be televised or to release immediate audio recordings of the proceedings.  The editorial concluded that “[t]his disdain for openness and transparency by an institution central to the nation’s democracy is unacceptable.”

I think the Times makes an important point when it observes that there does not appear to be a clear justification for excluding cameras from the courtroom.  For example, the editorial quotes testimony by Justice Thomas at a Senate hearing that “televising the court . . . would raise security concerns ‘as members of the court who now have some degree of anonymity would lose their anonymity.’   The editorial noted that such concerned did not deter Justice Thomas from appearing on 60 Minutes to promote his autobiography.

At the same time, however, it is not as though these proceedings take place in secret.  They are open to the media and the public, and transcripts of the proceedings are readily available. I have trouble believing that any significant occurrence at an oral argument would go unreported. In my opinion, if there is going to be a campaign for “openness and transparency” in the judicial system it should be directed at an institution with more to hide, such as the nation’s immigration courts.

Chief Judge Tacha on Packing Your Briefcase

Chief Judge Tacha isn't technically the chief judge anymore, but it doesn't seem like it will really be official until Judge Henry's investiture ceremony this week in Oklahoma.  I just came across this address, "Packing Your Briefcase," given by Chief Judge Tacha at BYU Law School last spring.  As she exits the stage as chief judge, it seemed worth noting.  One of my favorite passages, and a nice personal glimpse:

I am the mother of four children, and when they were very young my briefcase was their favorite toy. I would dump it in the front hall, run off to get ready for dinner or take somebody to Scouts, and inevitably by the time I got back to ready my briefs or finish some little part of an opinion, the papers and briefs would be scattered, the scissors would have transformed some important document into a paper doll, and the pockets would be stuffed with a cornucopia of treasures. . . . On more than one occasion I would open my briefcase somewhere far from home and find a Cheerio or the remains of an Oreo sifting onto the bench. They were a bit of a nuisance, but those treasures became for me a symbol of the bits and pieces of our lawyer lives that inhabit our briefcases and speak volumes about who we are.

Tenth Circuit Holds that the USOC Is Not Required To Provide Equal Support to Paralympic Athletes

In Hollonbeck v. United States Olympic Committee, Nos. 07-1053 and 07-1056, the Tenth Circuit held that § 504 of the Rehabilitation Act does not require the United States Olympic Committee to provide the same level of support to athletes competing in the Paralympic Games that it does to athletes competing in the Olympic or Pan-American Games.  The opinion is notable for its discussion of the definition of a “program or activity” under § 504 and for an emphatic dissent by Judge Holloway, arguing that “[d]enying benefits to Plaintiffs because they are athletes training for the Paralympic Games and not the Olympic or Pan American Games, is a proxy for discriminating against them because of their disabilities.”

Qwest Settlement in Question?

In New England Health Care Employees Pension Fund v. Woodruff, No. 06-1482, the Tenth Circuit considered an appeal by Joseph Nacchio and Robert Woodruff of the Qwest class action settlement.  The Tenth Circuit remanded the settlement approval to the district court “so that it might make appropriate findings and conclusions” with respect to the objections raised by Nacchio and Woodruff. 

Nacchio and Woodruff were not included in the settlement. However the settlement, among other things, purports to strip Nacchio and Woodruff of their rights to contribution and indemnification from Qwest for any judgments against them personally.  The district court overruled Nacchio and Woodruff’s objections to this settlement “based on the reasons stated, arguments advanced, and authorities cited by Qwest in its reply.”  The Tenth Circuit held that the defendants had standing to challenge the provisions because the provisions interfere with their preexisting legal rights and potential claims. With respect to the district court’s analysis, the Tenth Circuit held that the lack of “independent reasoning or analysis” required a remand.

"But Your Honor, My Client Hid the Drugs Really Well!"

One of yesterday's Tenth Circuit opinions, U.S. v. Martinez, is a Fourth Amendment decision.  It demonstrates once again how our Fourth Amendment jurisprudence leads to defense arguments that are less than inspiring.

In Martinez, the defendant's vehicle was stopped by a state trooper because the vehicle was missing its front license plate.  Because the defendant couldn't produce a drivers license, the trooper decided to have the car impounded and to issue a ticket to the defendant for driving without a license.  As the trooper collected the information from the defendant for purposes of the ticket, he became suspicious and asked for the defendant's consent to search the car, which was given.  Of course, the trooper found two pounds of meth in the car.

The defendant argued that his consent to have the car searched was the result of the initial traffic stop being unlawfully extended.  The facts, as described by the court, certainly don't fit with that argument (in fact, it looks like pretty good police work by the state trooper), but the court held that it didn't matter because under the "inevitable discovery doctrine," the drugs would have been discovered after the car was impounded, in an independent and lawful inventory search of the car.

This left the defendant's counsel in the position of having to argue that his client hid the drugs so well that they would not have been discovered in an inventory search.  The Tenth Circuit didn't buy it.

A DUI Case in the Supreme Court

Oral argument was held in the U.S. Supreme Court yesterday in United States v. Begay, in which the Court is reviewing the Tenth Circuit's conclusion that drunk driving can be considered a "violent felony" for purposes of sentencing under the Armed Career Criminal Act. I regard Begay as one of the most interesting Tenth Circuit decisions issued in the last 18 months or so, and I've discussed the case in multiple posts, here, here and here.

The transcript of oral argument has already been posted on the Supreme Court's website. The attorney for the defendant, Margaret Katze, started out brilliantly but by the end of her argument she appeared to have lost several of the justices, especially Kennedy and Souter. In addition, Chief Justice Roberts asked a question that encapsulates why I think Judge Hartz got it right: "What do you think presents the most serious potential risk of injury to all of us, that we are going to be a victim of arson [which is indisputably a "violent felony" under the ACCA] or that we are likely to get hit by a drunk driver?"

A Very Cool "Random" Panel Assignment

A friend and erstwhile colleague pointed out to me this morning that the panel assignments are out for next week's term of court in Oklahoma.  One of the panels on Thursday will include Justice O'Connor, together with the new chief judge and the outgoing chief judge.  The panel will hear four arguments, two of which are from Colorado.  It appears that an Assistant U.S. Attorney in Denver, Michael Johnson, is representing the government in both cases, so he may have the unique opportunity to argue two consecutive cases before Justice O'Connor.  (Unless, of course, U.S. Attorney Eid exercises his prerogative to take one of the arguments for himself -- and who could blame him if he did?)

Stare Stare Decisis*

In John R. Sand & Gravel Co. v. United States, No 06-1164 the United States Supreme Court addressed the question of whether the Court should overturn an “anomalous” line of old cases regarding the timeliness of a suit brought in the Court of Federal Claims.  (The earliest of these cases, from 1883, involved a former Confederate soldier who wanted the statue tolled for the period in which he was under a legal disability imposed by Congress)  These cases held that the statute of limitations for suits in the court of Federal Claims could not be waived or tolled except as provided by the statute because it was intended to achieve the broader goal of facilitating the administration of claims rather than protecting the defendant from stale claims.

Writing for the majority, Justice Breyer argued that even if the law now favored giving greater weight to equitable concerns when interpreting statutes of limitations applicable to the government,   the resulting conflict was not “critical” or “unworkable”.  He also rejected the proposition that the earlier cases should be overturned because the court no longer believed they were “right.”  As a result, he concluded, there was no basis on which to overturn the earlier line of cases. 

Justices Stevens and Ginsburg dissented.  Justice Stevens cited the famous remark by Oliver Wendell Holmes that “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”  Ginsburg noted that failing to reverse the older line of cases leads to inconstancy and incoherence in the law (in part by leading to potentially conflicting interpretations of identical language in different statutes)  She also notes that the Court’s approach makes it difficult to predict when the court will overturn cases and when it will rely on stare decisis.

* with apologies to Don McLean