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Ferguson v. Spalding Rehabilitation, LLC

Court of Appeals of Colorado, Fourth Division

June 20, 2019

Marty Ferguson, individually and as Personal Representative of the Estate of Ann Marilyn Ferguson, deceased, Plaintiff-Appellant,
v.
Spalding Rehabilitation, LLC; Sundeep Viswanathan, M.D.; Orhan Sancaktar, M.D.; Jason D. Dewees, M.D.; Aleksandra Basheer Kamal, M.D.; Maryann Bucani-Go, M.D.; Thomas A. Haffey, D.O.; and Bakorp LLC, d/b/a Pacific Mobile Diagnostics, Defendants-Appellees.

          City and County of Denver District Court No. 17CV33101 Honorable Brian R. Whitney, Judge

          Wormington & Bollinger, Edwin P. Krieger, McKinney, Texas, for Plaintiff-Appellant

          Hall Prangle & Schoonveld, LLC, Jacqueline B. Sharuzi-Brown, Todd J. Stalmack, Donna Bakalor, Denver, Colorado, for Defendants-Appellees Spalding Rehabilitation, LLC; Sundeep Viswanathan, M.D.; and Orhan Sancaktar, M.D.

          Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for Defendants-Appellees Jason D. Dewees, M.D.; Aleksandra Basheer Kamal, M.D.; Maryann Bucani-Go, M.D.; and Thomas A. Haffey, D.O.

          Gordon & Rees LLP, John R. Mann, Thomas B. Quinn, Heather M. Gwinn Pabon, Denver, Colorado, for Defendant-Appellee Bakorp LLC

          OPINION

          JONES, JUDGE.

         ¶ 1 Section 13-21-201(1)(b)(I)(B), C.R.S. 2018, a part of the Wrongful Death Act (WDA), says that a wrongful death suit may be brought in the second year after a decedent's death "[b]y the heir or heirs of the deceased." But is a person adopted as an adult by the decedent considered the decedent's "heir" under this provision of the WDA? The district court answered this question "no," and therefore dismissed plaintiff Marty Ferguson's negligence lawsuit against various medical professionals and providers - a lawsuit that she brought on behalf of her late, adoptive parent, Ann Marilyn Ferguson.[1] We, however, answer this question "yes," and therefore reverse the district court's judgment.

         I. Background

         ¶ 2 Ann and Jim Ferguson adopted Marty in 1995 when Marty was twenty-five years old. Ann died in October 2015 after being examined or treated by defendants. (Jim had died some time before.)

         ¶ 3 Marty's complaint alleges that defendants, Spalding Rehabilitation, LLC; Sundeep Viswanathan, M.D.; Orhan Sancaktar, M.D.; Jason D. Dewees, M.D.; Aleksandra Basheer Kamal, M.D.; Maryann Bucani-Go, M.D.; Thomas A. Haffey, D.O.; and Bakorp LLC, d/b/a Pacific Mobile Diagnostics, caused Ann's death by failing to properly diagnose and treat her illness. Defendants moved to dismiss under C.R.C.P. 12(b)(5), contending that Marty doesn't have standing to file a wrongful death suit on Ann's behalf because an adult adoptee isn't an "heir" within the meaning of the WDA. After converting the motion to dismiss into a motion for summary judgment, the court granted the motion, agreeing with defendants' position that Marty isn't an "heir" as that term is used in section 13-21-201(1)(b)(I)(B). The court also ruled that Marty isn't Ann's "designated beneficiary," see §§ 15-22-101 to -112, C.R.S. 2018, a different status that would allow Marty to sue on Ann's behalf under the WDA. See § 13-21-201(1)(b)(I)(D).

         II. Discussion

         ¶ 4 Marty raises two issues on appeal. First, she challenges the district court's ruling that because, as an adult adoptee, she's not an heir within the meaning of section 13-21-201(1)(b)(I)(B), she doesn't have standing to sue under the WDA. Second, she contends that the district court erred in finding that she isn't Ann's designated beneficiary under the WDA.

         ¶ 5 Because we conclude that Marty is an heir with a right to sue on Ann's behalf under the WDA, we don't address her second contention. A. Standard of Review

         ¶ 6 As noted, defendants labeled their motion as one under Rule 12(b)(5), and the district court treated it as one under C.R.C.P. 56 because the parties submitted evidence outside the complaint (which the court considered). See C.R.C.P. 12(b). But because the motion challenged Marty's standing, it was really one under Rule 12(b)(1) contesting the district court's subject matter jurisdiction. See Hansen v. Barron's Oilfield Serv., Inc., 2018 COA 132, ¶ 7. This is so even though the court considered evidence outside the complaint. See 2 James Wm. Moore et al., Moore's Federal ...


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