Guarantee Trust Life Insurance Company, an Illinois corporation, Petitioner
The Estate of Michael Dean Casper, by and through Nick Casper, personal representative. Respondent
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA2423
Attorneys for Petitioner: Hall & Evans, L.L.C. Kevin E.
O'Brien Alan Epstein Malcolm S. Mead Denver, Colorado
Attorneys for Respondent: Levin Sitcoff PC Bradley A. Levin
Nelson A. Waneka Denver, Colorado
Keating Wagner Polidori Free PC Zachary C. Warzel Denver,
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association The Gold Law Firm, LLC Michael J. Rosenberg
Greenwood Village, Colorado
¶1 In this case, we consider the operation of section
13-20-101, C.R.S. (2017), Colorado's survival statute,
and section 10-3-1116(1), C.R.S. (2017), a statutory cause of
action for the unreasonable delay or denial of insurance
benefits. We also consider the scope of the trial court's
authority to enter a final judgment nunc pro tunc.
The original plaintiff, Michael Dean Casper, now deceased,
received a favorable jury verdict awarding damages for breach
of contract, bad-faith breach of insurance contract, and
unreasonable delay or denial of insurance benefits under
section 10-3-1116(1). The jury also awarded Casper
substantial punitive damages. Nine days after the jury
returned its verdict-but before the trial court reduced that
verdict to a written and signed judgment-Casper died.
Consequently, the defendant, Guarantee Trust Life Insurance
Company ("GTL"), moved to substantially reduce the
verdict, arguing that the survival statute barred certain
damages. The trial court denied the motion, and the court of
appeals affirmed. We granted GTL's petition to review the
court of appeals' decision.We now conclude that the survival
statute does not limit the jury's verdict in favor of
Casper. We also conclude that an award of attorney fees and
costs under section 10-3- 1116(1) is a component of the
"actual damages" of a successful claim under that
section. Finally, we conclude that although the survival
statute does not limit the damages awarded by the jury, the
trial court abused its discretion by entering a final
judgment on October 30, 2014, nunc pro tunc to July
15, 2014. Therefore, we affirm the court of appeals'
decision in part and reverse in part.
Facts and Procedural History
Casper sued GTL alleging breach of contract, bad-faith breach
of an insurance contract, and statutory unreasonable delay or
denial of insurance benefits under section 10-3-1116(1). On
July 15, 2014, the jury returned a verdict in favor of Casper
on each claim; in addition to compensatory damages, it
awarded him substantial punitive and non-economic damages.
The same day it received the verdict, the trial court
recognized that Casper, who was suffering from cancer, was in
poor health and immediately made an oral order indicating the
court's intent that the verdict become a judgment.
Specifically, the trial court stated, "[T]he verdict is
received by the court and the clerk of the court is
instructed to enter the verdict in the court registry . . . .
I'm entering judgment." Nine days later-before the
oral order of the court had been entered as a written and
signed order as required by C.R.C.P. 58-Casper died.
Casper's Estate was then substituted as the plaintiff in
place of Casper. On October 30, 2014, the trial court entered
a signed and written judgment in favor of Casper's Estate
for nearly two million dollars; it dated this written
judgment nunc pro tunc to July 15, 2014, the date
the jury returned the verdict in favor of Casper.
¶3 After Casper's death, GTL filed a motion to amend
the judgment and asked the court to exclude attorney fees and
costs in its calculation of "actual damages" and
also argued that the survival statute required a severe
reduction in the award by the jury. The trial court disagreed
and GTL appealed. The court of appeals affirmed the trial
court's decisions. Now, GTL asks us to reverse the court
of appeals and hold that Casper's Estate is entitled only
to $50, 000 in damages under the breach-of-contract claim.
GTL also reiterates its argument that the trial court erred
by including the award of attorney fees granted under section
10-3-1116(1) in its calculation of punitive damages and that
the trial court erred by entering final judgment nunc pro
tunc to the date of verdict.
Standard of Review
This case presents several questions of statutory
interpretation, which we review de novo. Goodman v.
Heritage Builders, Inc., 2017 CO 13, ¶ 5, 390 P.3d
398, 401. And we review the trial court's entry of final
judgment nunc pro tunc for an abuse of discretion.
See Perdew v. Perdew, 64 P.2d 602, 604 (Colo. 1936)
("Application for . . . a judgment [nunc pro
tunc] is addressed to the sound discretion of the
We begin by considering the survival statute itself. Next, we
measure each claim for relief brought by Casper against that
statute and conclude that the survival statute, which was
enacted to blunt the common law rule on abatement, does not
bar any of Casper's original claims for relief, nor does
it require any limitations on damages. We then consider the
award of attorney fees and court costs available pursuant to
section 10-3-1116(1) and determine that such an award
constitutes "actual damages" within the meaning of
section 13-21-102(1)(a), C.R.S. (2017), the punitive damages
statute. Finally, we consider the trial court's decision
to enter final judgment on October 30, 2014, nunc pro
tunc to July 15, 2014, the date the jury returned its
verdict. We conclude that, because an award of attorney fees
and court costs under section 10-3-1116(1) is considered
actual damages, and those actual damages were not fixed by
the trial court by July 15, 2014, the trial court could not
have entered final judgment nunc pro tunc to that
The Survival Statute
In considering the operation of the survival statute, we
begin, as we must, with the text of the statute itself.
Goodman, ¶ 7, 390 P.3d at 401. The survival
statute provides that:
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 ...