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,
SCC Pueblo Belmont Operating Company, LLC, d/b/a Belmont Lodge Health Care Center, and SavaSeniorCare, Consulting LLC, Defendants-Appellees and Cross-Appellants.
County District Court No. 13CV30574 Honorable Jill S.
Reddick Moss, PLLC, Brent L. Moss, Brian D. Reddick, Robert
W. Francis, Little Rock, Arkansas, for Plaintiffs-Appellants
& 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.
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.
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. 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 negligent. It awarded Mr.
Sharon noneconomic ($300, 000) and punitive ($3, 000, 000)
damages on his negligence claim based primarily on his pain
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.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.
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 ...