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Reid v. Berkowitz

Court of Appeals of Colorado, Seventh Division

February 25, 2016

Rodney Tyler Reid, Plaintiff-Appellee,
Daniel Berkowitz, d/b/a/ Shimon Builders, Defendant-Appellant.

City and County of Denver District Court No. 10CV3320 Honorable Herbert L. Stern, III, Judge

Crawford Weiss, LLC, Jason Crawford, Brian Weiss, Denver, Colorado, for Plaintiff-Appellee

The Ross-Shannon Law Firm, P.C., Bradley Ross-Shannon, Justin H. Zouski, Lakewood, Colorado, for Defendant-Appellant



¶1 Defendant, Daniel Berkowitz, appeals the district court's judgment and order finding him liable for two default judgments entered against codefendants Steve Hernandez and Gonzalo Batuello, and a subsequent order adding prejudgment interest. We reverse and remand the case with directions.

I. Background and Procedural History

¶2 Plaintiff, Rodney Tyler Reid, sustained injuries after falling through an unsecured guardrail at a construction site where Berkowitz was the general contractor and Hernandez and Batuello were subcontractors.

¶3 Reid sued Berkowitz, a landowner as defined by the Colorado Premises Liability Act (PLA), section 13-21-115, C.R.S. 2015, pursuant to that statute. Berkowitz answered, demanded a jury trial, and designated the subcontractors as nonparties at fault. Reid then amended his complaint to add common law negligence claims against the subcontractors and to name them as defendants. His claim against Batuello sought "Indemnity, Contribution and Liability, " and his claim against Hernandez was captioned "Improper Installation of Railing."

¶4 The district court granted entries of default against the subcontractors after each failed to answer the amended complaint. After a damages hearing to the bench, the court entered judgments against the subcontractors. It concluded that Reid's total damages before interest were $832, 783.20 for economic damages (including future medical expenses), noneconomic damages, physical impairment, and disfigurement. The court apportioned 80% liability to Batuello and 20% to Hernandez, as requested by Reid's attorney. After adding 9% per annum simple interest, the court entered a default judgment of $844, 308.92 against Batuello and a default judgment of $211, 077.23 against Hernandez. At the hearing, there was discussion of whether Berkowitz might be vicariously liable for judgments against the subcontractors, but, as detailed below, the district court made no finding on the issue.

¶5 Reid later moved to amend his complaint to add claims for relief against Berkowitz for the alleged negligence of Batuello and Hernandez under a theory of respondeat superior. The court allowed an amendment over Berkowitz's objection, but noted that "[t]his does not mean that defendant is bound by the damages determination made after hearing in connection with the earlier default judgments; this is a separate issue."

¶6 The PLA claim against Berkowitz proceeded with a different judge to a jury trial in which, at the request of Reid's attorney, the default judgments were not mentioned to the jurors.[1] The respondeat superior claims were not submitted to the jury. The jury awarded Reid $400, 000 in damages for noneconomic losses, economic losses, physical impairment, and disfigurement. Despite Berkowitz's request, the jury was not instructed to apportion fault to the subcontractors nor to evaluate Reid's comparative negligence.

¶7 Berkowitz's appeal of the jury verdict was decided by a division of this court in Reid v. Berkowitz, 2013 COA 110 (Reid I). As relevant here, Berkowitz contended that the district court erred in refusing to instruct the jury that it could apportion liability and fault to the subcontractors. Reid I, ¶18. A division of this court agreed that refusing the apportionment instruction was error, but concluded that the error was harmless because the subcontractors' fault is imputable to Berkowitz who, as a landowner, had a nondelegable duty of care to Reid, a licensee. Id. at ¶¶17, 30, 37.

¶8 The division further found that the district court had erred in refusing to instruct the jury on Reid's comparative negligence. Id. at ¶¶67-68. It ordered a retrial solely to determine a fault allocation between Reid and Berkowitz. Id. at ¶¶67-68. A second jury allocated the fault 90% to Berkowitz and 10% to Reid. The $400, 000 judgment was reduced accordingly, and Berkowitz paid the amount due.

ΒΆ9 Shortly thereafter, Reid moved for declaratory relief, asking that the district court find Berkowitz liable under his nondelegable duty for 90% of the default judgments entered against the subcontractors, plus simple interest. Reid asked the court to enter judgment against Berkowitz in the amount of $1, 169, 821.22. Berkowitz opposed the motion. After a hearing, the court held Berkowitz ...

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