The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 8, 2020
2020COA144
No. 19CA0804, Suydam v LFI Fort Pierce — Agency —
Respondeat Superior; Civil Procedure — Voluntary Dismissal
A division of the court of appeals analyzes the scope of the
“going-and-coming” rule, which addresses whether an employer
may be held liable for damages caused by the negligence of one of
its employees while the employee is commuting between work and
home or another personal destination. The division affirms the
district court’s denial of a jury instruction on the going-and-coming
rule because the evidence presented at trial did not support the
instruction. In addition, the division examines novel procedural
issues arising from the voluntary dismissal of a plaintiff’s claims
against fewer than all defendants before or during trial under
C.R.C.P. 41(a)(1)(A) and the district court’s change in a party’s
status from defaulted defendant to nonparty at fault during trial.
The division concludes that the change in the party’s status did not
prejudice the appealing defendant because the district court
instructed the jury that the nonparty was liable to plaintiffs. Lastly,
the division concludes that the appellant did not preserve its
challenge to the jury’s damage award.
COLORADO COURT OF APPEALS 2020COA144
Court of Appeals No. 19CA0804
City and County of Denver District Court No. 17CV33350
Honorable Stephen M. Munsinger, Judge
Gary W. Suydam and Lisa Linch-Suydam,
Plaintiffs-Appellees,
v.
LFI Fort Pierce, Inc.,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur
Announced October 8, 2020
Mann & Maximon, LLC, Stuart Mann, Joshua Maximon, Boulder, Colorado;
Connelly Law, LLC, Sean Connelly, Denver, Colorado, for Plaintiffs-Appellees
Gibson, Dunn & Crutcher LLP, Gregory Kerwin, Julie Hamilton, Denver,
Colorado; Wheeler Trigg O’Donnell LLP, Frederick R. Yarger, Denver, Colorado,
for Defendant-Appellant
¶1 Appellee Gary W. Suydam was severely injured when he was
struck by two cars while riding his bicycle through an intersection.
As a result of the collisions, he was rendered a quadriplegic and
requires help with nearly every aspect of daily living. The driver of
the first car was Chelsea Brewer, an employee of appellant LFI Fort
Pierce, Inc. The driver of the second car was Stephen Tecmire.
¶2 Suydam and his wife, Lisa Linch-Suydam, filed a lawsuit
against Brewer, LFI, Tecmire, and other defendants not relevant to
this appeal. In their complaint, the Suydams alleged that LFI was
liable for any damages awardable against Brewer because she was
performing job duties for LFI at the time of the accident. The
Suydams sought damages in three categories — economic loss,
physical impairment or disfigurement, and loss of consortium.
They obtained a default against Tecmire after he failed to respond to
their complaint.
¶3 At the conclusion of a six-day trial, a jury awarded the
Suydams more than $54 million in damages, including more than
$32 million in damages for physical impairment or disfigurement.
The jury determined that Brewer (and thus LFI, as Brewer’s
1
employer at the time) was responsible for ninety percent, and
Tecmire was responsible for ten percent, of the Suydams’ damages.
¶4 On appeal, LFI challenges the verdict and the damage award
on three grounds.
¶5 First, LFI asserts that the trial court erred by failing to give the
jury a separate instruction on the “going-and-coming” rule, which
addresses when an employer is liable for the actions of an employee
who is traveling between work and home or another personal
destination. We decide that LFI was not entitled to an instruction
on the going-and-coming rule because the scope of work instruction
the court gave the jury was supported by the evidence presented at
trial, while LFI’s proffered instructions were not. The evidence
showed that, at the time of the incident, Brewer was engaged in an
act or performing a duty under the express or implied direction of
LFI. Moreover, Brewer never testified that she was driving home or
to another personal destination when her vehicle collided with Gary
Suydam.
¶6 Second, LFI argues that the trial court erred by changing
Tecmire’s status from a defaulted defendant to a nonparty on the
second day of trial, and that the error is grounds for a new trial.
2
We disagree because the trial court’s determination regarding
Tecmire’s status did not prejudice LFI.
¶7 Third, LFI challenges the jury’s damage award on two
grounds. LFI contends that the Suydams’ counsel impermissibly
argued that the jury should calculate damages for physical
impairment or disfigurement on a per diem basis. In addition, LFI
contends that the damage award must be set aside because
Colorado law does not draw a meaningful distinction between those
noneconomic damages that are subject to a statutory cap and
noneconomic damages for physical impairment or disfigurement,
which are not capped. We need not address these arguments,
however, because LFI did not preserve them.
¶8 For the above reasons, we affirm the judgment.
I. The Going-and-Coming Rule
¶9 LFI contends that the trial court reversibly erred by declining
to instruct the jury on the going-and-coming rule, and thereby
failed to provide the jury with the applicable legal rule for assessing
LFI’s principal defense at trial — that Brewer had been driving
home and was not working for LFI when she struck Gary Suydam.
We are not persuaded.
3
A. Standard of Review
¶ 10 A trial court must correctly instruct the jury on all matters of
law. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). We review
de novo whether “a particular jury instruction correctly states the
law” and whether the “instructions as a whole accurately informed
the jury of the governing law.”
Id. Because trial courts have broad
discretion to fashion the form and style of instructions, we review
“for abuse of discretion a trial court’s decision not to give a
particular jury instruction.” Schuessler v. Wolter,
2012 COA 86,
¶ 10,
310 P.3d 151, 158; see Vista Resorts, Inc. v. Goodyear Tire &
Rubber Co.,
117 P.3d 60, 70 (Colo. App. 2004) (“When instructing
the jury in a civil case, the trial court shall use those instructions
contained in the Colorado Jury Instruction (CJI) that apply to the
evidence under the prevailing law. The court’s rejection of
instructions not contained in CJI is reviewed for abuse of
discretion.”) (citation omitted). “A court abuses its discretion when
its ruling is manifestly arbitrary, unreasonable, unfair, or when it
misapplies the law.” Nibert v. Geico Cas. Co.,
2017 COA 23, ¶ 8, ___
P.3d ___, ___.
4
B. Legal Authority
1. Nonstandard Jury Instructions
¶ 11 A trial court does not abuse its discretion by rejecting a
tendered jury instruction lacking evidentiary support. Melton v.
Larrabee, 832 P.2d 1069, 1072 (Colo. App. 1992). “A party is
entitled to a jury instruction only when it is supported by the
evidence . . . . Further, there must be more than a mere scintilla of
evidence to support an instruction.”
Id. (citations omitted); see
Devenyns v. Hartig,
983 P.2d 63, 70 (Colo. App. 1998) (affirming
trial court’s refusal to give a jury instruction that lacked evidentiary
support).
¶ 12 Moreover, “[t]he trial court may not assume the role of an
advocate and bears no responsibility to redraft tendered civil
instructions to correct errors in those instructions.” Garhart ex rel.
Tinsman v. Columbia/Healthone, L.L.C.,
95 P.3d 571, 587 (Colo.
2004); see Hansen v. State Farm Mut. Auto. Ins. Co.,
957 P.2d 1380,
1384-85 (Colo. 1998) (holding that requiring a trial court to redraft
incorrect civil instructions “would be tantamount to interjecting the
trial judge into the strategic decision-making of both parties in
every trial”); cf. Short v. Kinkade,
685 P.2d 210, 211-12 (Colo. App.
5
1983) (reversing trial court’s refusal to modify pattern instruction
because the proposed modification “sufficiently informed the trial
court of plaintiff’s position to trigger the trial court’s duty to modify
the draft instruction and to instruct the jury correctly on the
applicable law”).
2. The Respondeat Superior Doctrine and
the “Going-and-Coming” Rule
¶ 13 Under the doctrine of respondeat superior, an employer is
liable for torts committed by its employee while acting within the
scope of his or her employment. Stokes v. Denver Newspaper
Agency, LLP, 159 P.3d 691, 693 (Colo. App. 2006). “The employer is
liable if the employee’s conduct was motivated by an intent to serve
the employer’s interests and connected to acts the employee was
authorized to perform.”
Id.
¶ 14 Respondeat superior rests on the theory that “the employee
acts on behalf of the employer when the employee is within the
scope of his or her employment.” Raleigh v. Performance Plumbing
& Heating,
130 P.3d 1011, 1019 (Colo. 2006). Because an
“employer has the right to control the employee’s performance”
within the scope of employment, the employer is held liable for the
6
employee’s acts. Daly v. Aspen Ctr. for Women’s Health, Inc., 134
P.3d 450, 452 (Colo. 2005).
¶ 15 “The question of whether an employee [wa]s acting within the
scope of the employment is a question of fact . . . .” Raleigh,
130
P.3d at 1019.
¶ 16 Respondent superior cases often involve a factual dispute
regarding whether the employee was acting within the scope of his
or her employment at the time of the act that injured the plaintiff.
¶ 17 The going-and-coming rule informs the scope of the
employment relationship in cases where the employee was
commuting between work and home or another personal
destination at the time of the injury to the plaintiff. Stokes,
159
P.3d at 693; Beeson v. Kelran Constructors, Inc.,
43 Colo. App. 505,
507,
608 P.2d 369, 371 (1979); see Pierson v. Helmerich & Payne
Int’l Drilling Co.,
209 Cal. Rptr. 3d 222, 230 (Ct. App. 2016) (“The
going and coming rule is used in tort law to determine the scope of
employment for purposes of respondeat superior liability.”).
¶ 18 The Colorado version of the going-and-coming rule provides
that “an employee traveling from . . . work to his home or other
personal destination, after completing his day’s work, cannot
7
ordinarily be regarded as acting in the scope of his employment so
as to charge the employer for the employee’s negligence in the
operation of the [employee’s] car.” Beeson, 43 Colo. App. at 507,
608 P.2d at 371 (quoting Balise v. Underwood,
428 P.2d 573, 577
(Wash. 1967)).
¶ 19 The rule has several exceptions, including when “the employee
was engaged in an[] act connected to his work or [was] furthering
[the employer’s] interests” at the time of the injury-causing conduct.
Stokes,
159 P.3d at 696; see also Engler v. Gulf Interstate Eng’g,
Inc.,
258 P.3d 304, 310 n.9 (Ariz. Ct. App. 2011) (holding that the
going-and-coming rule does not apply where “the employee’s trip
was of such character or importance that it would have
necessitated a trip by someone else if the employee had not handled
it in combination with his otherwise personal journey to or from
work”), aff’d,
280 P.3d 599 (Ariz. 2012); Anderson v. Pac. Gas &
Elec. Co.,
17 Cal. Rptr. 2d 534, 536 (Ct. App. 1993) (“Generally, an
exception to the going-and-coming rule will be found when the
employer derives some incidental benefit from the employee’s trip.”).
8
C. The Evidence Showed that Brewer Was Acting Within the
Scope of Her Employment, and Was Not Driving Home or to
Another Personal Destination, at the Time Her Vehicle Struck
Gary Suydam
1. The Testimony Regarding Brewer’s Actions on the Day of Gary
Suydam’s Injury
¶ 20 A significant portion of the trial focused on whether Brewer
was acting within the scope of her employment with LFI when her
vehicle struck Gary Suydam. LFI is a temporary employment
company that provides workers for LFI’s customers. The parties
agreed that, at the time of the accident, Brewer was driving from the
job site of an LFI customer to one of LFI’s offices.
¶ 21 The undisputed evidence showed that, at that time, Brewer
was transporting two other LFI employees, LFI equipment, and a
work order documenting the number of hours the three LFI
employees had worked that day and containing information about
the customer. Most significantly, the work order included the
customer’s personnel requirements for the following day. Brewer
testified as follows:
• On the date of the incident, she arrived at LFI’s office and
waited for a job assignment. Initially, she told LFI that
she did not have a vehicle, but after waiting for work for
9
approximately three hours while other employees with
vehicles received assignments, she informed LFI that she
had a vehicle. LFI promptly gave her an assignment.
(LFI maintained separate lists for employees with and
without access to a vehicle.)
• As part of the assignment, she was to drive herself and
two other LFI employees to and from the job site.
• One of the other employees left an identification card at
LFI’s office as collateral for the equipment he borrowed
from LFI for the day.
• Before she concluded her work for the day, she was
required to return LFI’s equipment and the completed
work order to LFI’s office.
• LFI provided Brewer with directions from its office to the
job site. She was following those directions in the reverse
direction when her vehicle struck Gary Suydam.
• After the collision, she drove to LFI’s office to return the
equipment and pick up her paycheck.
¶ 22 During the defense case, LFI representatives testified that
10
• LFI does not favor employees with vehicles when
distributing job assignments and does not require
employees with vehicles to drive other employees without
vehicles to a job site.
• LFI’s written transportation policy, which Brewer signed,
stated that employees shall “provide transportation from
[LFI] to the customer’s premises or job site,” which LFI’s
witnesses interpreted to mean that it “is entirely up to
the employees” how they get to and from a job site.
• LFI does not control the route employees take while
commuting, reimburse them for mileage or the cost of
public transportation while commuting, or encourage
them to carpool.
• LFI pays its employees only for the time they are working
at a job site, and not for the time they spend traveling to
or from the site.
• LFI does not require its employees to return to its office
after they finish working for the day, even if the
employees are in possession of a completed work order or
LFI equipment.
11
• LFI’s employees can pick up their paychecks at any time.
• The job site at which Brewer and the other employees
had worked that day was approximately one mile from
LFI’s office.
• LFI’s office is near a major bus line and a light rail
station.
• Brewer’s possession of a vehicle was irrelevant to the job
assignment.
¶ 23 LFI’s counsel did not ask Brewer about her next destination
after she stopped at LFI’s office following the incident. No evidence
at trial showed that Brewer was heading home or to another
personal destination at the time her vehicle struck Gary Suydam.
2. LFI’s Proposed Instructions on the Going-and-Coming Rule
¶ 24 Following the close of evidence, LFI tendered two proposed
jury instructions on the going-and-coming rule. LFI’s first tendered
instruction addressed an exception to the going-and-coming rule:
An employee who has finished her duties and
is driving home from work at the time of the
collision is engaged in an act furthering her
employer’s interests when the benefit to her
employer is of such character or importance
that it would have necessitated a trip by
someone else if the employee had not been
12
able to do it in combination with traveling
home from work.
¶ 25 LFI’s second tendered instruction read,
An employee is not within the scope and
course of employment when she has finished
with her duties and is driving home from work
at the time of the collision unless at the time of
the collision she is also engaged in an act
furthering her employer’s interests.
As these quotes indicate, both of LFI’s proposed instructions
referred to “driving home from work.”
¶ 26 After the Suydams’ counsel objected that LFI’s proposed
instructions did not fit the evidence because Brewer was not driving
home at the time of the accident, the trial court summarily rejected
LFI’s tendered instructions. Instead, the trial court gave an
instruction based on the standard scope of work instruction.
CJI-Civ. 8:9 (2020) (stock instruction on “Scope of Authority of
Agent”). The court’s scope of work instruction stated that
Chelsea Brewer was acting within the scope of
her employment with [LFI] when Chelsea
Brewer was doing work that was:
1. Assigned by [LFI]; or
2. Proper, usual, and necessary to
accomplish the assigned work; or
13
3. Customary in the particular trade or
business to accomplish the assigned work.
¶ 27 The court also gave an instruction on the parties’ claims and
defenses. That instruction stated, in part, that
LFI Fort Pierce denies that Chelsea Brewer was
acting within the course and scope of her
employment at the time of the accident.
....
You are to determine whether Chelsea Brewer
was acting in the course and scope of her
employment with LFI Fort Pierce at the time of
the accident.
¶ 28 The jury expressly found that Brewer was acting within the
scope of her employment with LFI at the time her vehicle struck
Gary Suydam.
D. The Trial Court Did Not Abuse Its Discretion by Declining to
Instruct the Jury on the Going-and-Coming Rule
¶ 29 The trial court did not abuse its discretion by rejecting LFI’s
tendered going-and-coming instructions for two reasons. First, the
evidence introduced at trial showed that Brewer was not driving
home or to another personal destination at the time her vehicle
struck Gary Suydam and thus did not support LFI’s proposed
instructions. Second, the scope of work instruction that the trial
court gave the jury accurately stated the law applicable to the issue
14
of whether Brewer had been acting within the scope of her
employment at the time of the collision.
1. The Evidence at Trial Did Not Support LFI’s Proposed Jury
Instructions
¶ 30 LFI’s proposed jury instructions referred to “[a]n employee
[who] . . . has finished with her duties [and] is driving home from
work at the time of the collision . . . .” But the evidence showed
that Brewer was not driving home (or to another personal
destination) at the time of the collision. Rather, as noted above, she
was returning to LFI’s office from a job site to which LFI had
assigned her with two other LFI employees, LFI equipment, and a
work order. The work order contained the customer’s personnel
requirements for the following day, which informed LFI how many
employees to send to the customer’s job site the next day.
Obtaining the work order thus provided a more than incidental
benefit to LFI.
¶ 31 The trial court acted within its discretion by rejecting LFI’s
proposed jury instructions because they assumed facts not in the
record evidence. See Devenyns, 983 P.2d at 70; Melton,
832 P.2d at
1072. LFI could not draft a going-and-coming instruction that
15
conformed to the facts because, as noted above, that rule applies
only when an employee is “traveling from . . . work to his home or
other personal destination, after completing his day’s work.”
Beeson, 43 Colo. App. at 507,
608 P.2d at 371 (quoting Balise,
428
P.2d at 577).
¶ 32 The going-and-coming rule, by definition, could not apply here
because no evidence showed that Brewer was driving home or to
another personal destination at the time her vehicle struck Gary
Suydam. And the trial court had no duty to rewrite LFI’s tendered
jury instructions, even if they could have been salvaged through
editing. See Garhart,
95 P.3d at 587.
2. The Court’s Scope of Work Instruction Accurately Stated the
Law and Applied to the Evidence
¶ 33 The trial court’s instruction on scope of work accurately stated
the law and was supported by the evidence introduced at trial. The
instruction properly instructed the jury on the law governing scope
of work and “as a whole accurately informed the jury of the
governing law.” Day, 255 P.3d at 1067.
¶ 34 And, as explained above, the evidence showed that LFI derived
a benefit from Brewer’s use of her vehicle at the time of the
16
incident, including Brewer’s delivery of the work order advising LFI
how many employees the customer needed the next day. See
Stokes, 159 P.3d at 693 (“The employer is liable if the employee’s
conduct was motivated by an intent to serve the employer’s
interests and connected to acts the employee was authorized to
perform.”).
¶ 35 For these reasons, we hold that the trial court did not abuse
its discretion by rejecting LFI’s tendered instructions on the
going-and-coming rule.
II. The Change in Tecmire’s Status from Defaulted Defendant to
Nonparty at Fault
¶ 36 LFI argues that the trial court reversibly erred when, on the
second day of trial, it changed Tecmire’s status from a defaulted
defendant to a nonparty at fault (the Tecmire ruling). LFI asserts
that the Tecmire ruling unfairly prejudiced LFI, and requires a new
trial, because the ruling improperly (1) shifted the burden of proving
Tecmire’s liability from the Suydams to LFI; (2) gave the Suydams
the opportunity “to excuse Tecmire for his negligence through
expert opinion and argument”; and (3) enabled the Suydams’
17
counsel “to make prejudicial arguments in closing urging the jury to
maximize the share of damages apportioned vicariously to LFI.”
¶ 37 We disagree that the trial court erred because, at the
beginning of trial, the trial court instructed the jury that Tecmire
was liable to the Suydams and a cause of their damages. In light of
this instruction, the Tecmire ruling did not prejudice LFI.
A. Standard of Review
¶ 38 We review de novo a trial court’s determination of whether a
person is a defendant or a nonparty. See Pedge v. RM Holdings,
Inc., 75 P.3d 1126, 1128 (Colo. App. 2002) (holding that appellate
courts review de novo whether a defendant was properly designated
a nonparty at fault).
B. Legal Authority
1. Designation of a Nonparty at Fault
¶ 39 In Colorado, defendants in negligence actions are generally
liable only for their own percentage share of the damages awardable
to the plaintiff. Stone v. Satriana, 41 P.3d 705, 708-09 (Colo. 2002).
¶ 40 Colorado abolished the concept of joint and several liability in
tort cases. Under that concept, each defendant, regardless of fault,
could be held liable for the entire amount of the plaintiff’s damages.
18
Slack v. Farmers Ins. Exch., 5 P.3d 280, 286 (Colo. 2000). In place
of the doctrine of joint and several liability, the General Assembly
adopted section 13-21-111.5(1), C.R.S. 2019, which provides that
[i]n an action brought as a result of a death or
an injury to person or property, no defendant
shall be liable for an amount greater than that
represented by the degree or percentage of the
negligence or fault attributable to such
defendant that produced the claimed injury,
death, damage, or loss . . . .
See Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 187-88 (Colo.
2009). (The doctrine of joint liability survives in conspiracy cases.
Defendants who “consciously conspire and deliberately pursue a
common plan or design to commit a tortious act” may still be held
jointly liable. § 13-21-111.5(4). But joint liability is not an issue in
this case because the Suydams did not allege a conspiracy.)
¶ 41 Under section 13-21-111.5(3), a jury may consider the
percentage fault of a nonparty in determining the percentage fault
of a defendant. In negligence cases involving multiple defendants,
“each of [the] several wrongdoers is liable for only a portion of a
plaintiff’s injuries, calculated according to that wrongdoer’s
percentage of fault,” even if one or more of the wrongdoers is not a
19
party. Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215, 217
(Colo. App. 1992); see Martin,
209 P.3d at 187-88.
¶ 42 If the plaintiff chooses not to join a potentially liable
wrongdoer as a defendant, section 13-21-111.5(3)(b) allows a
defendant to designate the wrongdoer as a nonparty at fault for the
purpose of apportioning liability. See Thompson v. Colo. & E. R.R.
Co.,
852 P.2d 1328, 1329 (Colo. App. 1993). A defendant has a
financial incentive to minimize its own percentage of negligence or
fault by informing the jury of all persons who are potentially liable
for the plaintiff’s damages.
¶ 43 To designate a nonparty, a defendant must file a notice
identifying the nonparty and providing a brief statement of the basis
for believing the nonparty is at fault. Id.; see § 13-21-111.5(3)(b).
The notice must be filed “within ninety days following
commencement of the action unless the court determines that a
longer period is necessary.” § 13-21-111.5(3)(b). “The designation
requirement has been strictly construed.” Thompson,
852 P.2d at
1329.
¶ 44 An argument that a nonparty is at fault is an affirmative
defense because it allows the defendant to reduce its liability by
20
“proving that the blameworthy conduct of other parties or
nonparties also caused the injury.” Ronald M. Sandgrund &
Jennifer A. Seidman, Deconstructing Construction Defect Fault
Allocation and Damages Apportionment—Part I, 40 Colo. Law. 37,
40-41 (Nov. 2011); Ochoa v. Vered,
212 P.3d 963, 972 (Colo. App.
2009).
¶ 45 Where a defendant has designated one or more nonparties at
fault, the “finder of fact is required to return a special verdict . . .
determining the percentage of negligence or fault attributable to
each of the parties” and any properly designated nonparties.
Thompson,
852 P.2d at 1329; see § 13-21-111.5(2).
2. Entry of Default
¶ 46 When “a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend . . ., the clerk shall
enter his default.” C.R.C.P. 55(a). “[A]n entry of default establishes
a party’s liability [and] [t]he allegations in the plaintiff’s complaint
[concerning the defaulting party] are also deemed admitted.”
Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M, ¶ 22,
378 P.3d
797, 804 (citations omitted). An entry of default, however, is not
“an admission regarding damages.” Id. at ¶ 23,
378 P.3d at 804.
21
And an entry of default is not a default judgment, which a party can
obtain by following the procedures described in C.R.C.P. 55(b) and
C.R.C.P. 121, section 1-14.
¶ 47 A court may set aside an entry of default for “good cause.”
C.R.C.P. 55(c).
3. Dismissal of Defendants by Notice
¶ 48 “[A] plaintiff is the master of his complaint,” Gadeco, LLC v.
Grynberg, 2018 CO 22, ¶ 17,
415 P.3d 323, 329, and has the option
to name as defendants any or all potentially liable parties, see, e.g.,
C.R.C.P. 20(a). A plaintiff may also dismiss “an action . . . without
order of court . . . [b]y filing a notice of dismissal at any time before
filing or service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs.” C.R.C.P. 41(a)(1)(A). If
Rule 41(a)(1)(A) does not apply, and the parties do not stipulate to
dismissal of the defendant, a plaintiff must obtain a court order
under Rule 41(a)(2) to dismiss the action.
¶ 49 Because Rule 41(a)(1)(A) refers to dismissal of “an action,” it is
unclear whether a plaintiff may dismiss by notice fewer than all the
defendants in a case. Prior Colorado cases do not address whether
a plaintiff may dismiss claims against certain, but not all,
22
defendants in an action through a Rule 41(a)(1)(A) notice. The
federal circuits have split on this issue when interpreting the
analogous federal rule. Compare Harvey Aluminum, Inc. v. Am.
Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953) (“Rule 41(a)[(1)]
provides for the voluntary dismissal of an ‘action’ not a ‘claim’; the
wor[d] ‘action’ as used in the Rules denotes the entire controversy,
whereas ‘claim’ refers to what has traditionally been termed ‘cause
of action.’”), and Philip Carey Mfg. Co. v. Taylor,
286 F.2d 782, 785
(6th Cir. 1961) (following the reasoning of Harvey Aluminum), with
Marex Titanic, Inc. v. Wrecked & Abandoned Vessel,
2 F.3d 544, 547
(4th Cir. 1993) (“[W]e reject the Harvey Aluminum exception to the
plain meaning of Rule 41(a)(1)(i)’s text.”), and Plains Growers v.
Ickes-Braun Glasshouses, Inc.,
474 F.2d 250, 255 (5th Cir. 1973)
(stating that the cases rejecting Harvey Aluminum’s interpretation of
Fed. R. Civ. P. 41 took the “better view” and holding that a party
may dismiss by notice “such of the defendants as have not served
an answer or motion for summary judgment, despite the fact that
the case might remain pending against other defendants”). See
Grear v. Mulvihill,
207 P.3d 918, 922 (Colo. App. 2009) (holding that
cases interpreting a Federal Rule of Civil Procedure that is
23
analogous to a Colorado Rule of Civil Procedure are persuasive
authority).
C. The Suydams’ Efforts to Change Tecmire’s Status from a
Defaulted Defendant to a Nonparty
¶ 50 Although the procedural history of the Suydams’ efforts to
change Tecmire’s status from that of defaulted defendant to
nonparty is convoluted, a summary of that history is necessary to
understand why LFI contends that the change in Tecmire’s status
resulted in prejudice to LFI and is grounds for a new trial.
¶ 51 In the months leading up to, and during, the trial, the
Suydams took several steps, detailed below, to dismiss Tecmire as a
defendant. Recall that, early in the case, the Suydams obtained an
entry of default against Tecmire pursuant to C.R.C.P. 55(a) after he
failed to respond to their complaint.
¶ 52 The sequence of events began with the Suydams’ designation
of Anne Stodola as an expert witness on engineering, mechanical
engineering, and accident reconstruction. LFI moved to exclude
Stodola’s opinion testimony that Tecmire “had insufficient time to
avoid the collision,” which, LFI argued, would establish that
Tecmire was not negligent. LFI asserted that this opinion testimony
24
was inconsistent with the legal effect of the entry of default against
Tecmire — that he was liable to the Suydams — and improperly
raised a defense on behalf of Tecmire. The court granted the
motion.
¶ 53 Four days later, the Suydams filed a motion to dismiss
Tecmire as a defendant under C.R.C.P. 41(a)(2), which, as explained
above, allows for dismissal of actions by court order. LFI opposed
the motion. LFI argued that, if the court dismissed Tecmire as a
party, the court should “impose as a reasonable term and condition
of dismissal the continued effect of the entry of default . . . as law of
the case.” This meant the court should rule that Tecmire was liable
to the Suydams even though he was no longer a defaulted
defendant. See Dickinson, ¶ 22, 378 P.3d at 804.
¶ 54 After LFI filed its opposition to the Suydams’ motion for
dismissal of their claims against Tecmire, the Suydams withdrew
the motion. In its place, the Suydams filed a notice to dismiss
Tecmire as a party pursuant to Rule 41(a)(1)(A). As explained
above, this type of notice effectuates the dismissal of actions (and
possibly individual claims) without the need for a court order.
25
¶ 55 The next relevant step occurred when the Suydams moved for
reconsideration of the court’s order excluding Stodola’s expert
testimony. The court reversed itself and granted the motion, ruling
that Stodola’s testimony was of “central importance to the disputed
claims and affirmative defenses in this action.” Despite the
Suydams’ filing of the Rule 41(a)(1)(A) notice, in granting the
Suydams’ motion for reconsideration, the court referred to Tecmire
as a defendant and stated that it “would be improper for an expert
to misrepresent . . . Tecmire’s defaulted status pursuant to
C.R.C.P. 55(a) to the jury . . . .” The court concluded that any
potential prejudice resulting from Stodola’s testimony could be
“effectively resolved through appropriate jury instructions.”
¶ 56 On the first day of trial, counsel for the Suydams and counsel
for Brewer and LFI presented arguments on the admissibility of
Tecmire’s alleged statement to a police officer that Gary Suydam
had run into Brewer. The admissibility of the statement, which
LFI’s counsel said contradicted Stodola’s opinion that Tecmire had
no time to stop before colliding with Gary Suydam, rested on
whether Tecmire was still a defendant. LFI’s counsel asserted that
Tecmire remained a defendant and, therefore, Tecmire’s out-of-
26
court statement was an admissible admission by a party-opponent.
Counsel for the Suydams disagreed, asserting that the statement
was inadmissible hearsay because they had dismissed Tecmire from
the case. (The admissibility of the statement is not an issue in this
appeal.)
¶ 57 The court said that Tecmire remained a party because he had
not been dismissed from the case. Later that day, counsel for the
Suydams asked the court to rule that Tecmire was no longer a
defendant. The court took the matter under advisement and the
trial proceeded.
¶ 58 One of the court’s first statements to the jury addressed
Tecmire’s fault. The court read the jury this instruction before the
lawyers made their opening statements:
The Court has determined as a matter of law
that [Brewer] and [Tecmire] are at fault and a
cause of the injuries and the losses claimed by
the [Suydams]. Because the Court has
determined these issues as a matter of law,
you must accept them as true. The only issue
to remain for the jury to determine as to
[Brewer]’s fault and [Tecmire]’s fault is the
nature and extent of injuries and amount of
damages caused by [Brewer’s and Tecmire’s]
fault, if any.
27
¶ 59 In his opening statement, LFI’s counsel reminded the jury that
the court had already determined that Tecmire was at fault for the
Suydams’ injuries and that the jury’s task was to apportion
damages between Brewer (and, thus, LFI) and Tecmire.
¶ 60 The following day, the court issued the Tecmire ruling, stating,
I believe it’s necessary for this jury to be able
to make a determination of relevant fault
between [Brewer and Tecmire]. [They] were
both . . . causes — or contributors of causing
the injuries to the plaintiff. . . . It’s up to the
jury to determine the relevant fault of each of
those individuals. . . . As I understand, at [the
Suydams’] request, I have to treat him as a
nonparty. So that will be my order as to that.
¶ 61 As of the Tecmire ruling, if not when the Suydams filed their
Rule 41(a)(1)(A) notice, Tecmire was a nonparty and no longer a
defaulted defendant. After making the Tecmire ruling, the court did
not rescind or modify the instruction it had given the jury the
previous day regarding Tecmire’s liability and role in causing the
Suydams’ damages. By instructing the jury that Tecmire, now a
nonparty, was liable to the Suydams, the court, in effect, designated
Tecmire as a nonparty at fault after the deadline for designating
nonparties at fault had passed.
28
¶ 62 Later in the trial, Stodola opined that Tecmire “did not have
time to stop at all [before colliding with Suydam]. He didn’t even
have time to stop and react to it.” She testified that Brewer, and
not Tecmire, was at fault for the collision. On cross-examination,
however, she acknowledged that the trial court had determined that
Tecmire was negligent, and thus at fault, for the accident.
¶ 63 During closing argument, the Suydams’ counsel minimized
Tecmire’s role in the accident by asserting that Brewer had placed
Tecmire in an “emergency situation that did not give him adequate
time to avoid [Suydam].” Counsel for the Suydams told the jury
that “the percentage you assign to Chelsea Brewer is the percentage
for which LFI is responsible. Any portion that you assign to Mr.
Tecmire, LFI is not responsible for.”
¶ 64 LFI’s counsel reminded the jury in his closing argument that
the trial court “ha[d] already determined that Mr. Tecmire was
negligent or at fault” and specifically referenced the jury instruction
the court had given on the first day of trial. LFI’s counsel asked the
jury to apportion the majority of the Suydams’ damages to Tecmire,
arguing that his collision with Gary Suydam, and not his collision
with Brewer, had caused Gary Suydam’s injuries.
29
¶ 65 In its special verdict form, the jury first found that Brewer was
acting within the scope of her employment with LFI at the time her
vehicle struck Gary Suydam and, second, found that LFI was liable
for Brewer’s negligence. The jury apportioned ninety percent fault
to Brewer (and by extension LFI) and ten percent fault to Tecmire.
D. Even if the Trial Court Erred by Changing Tecmire’s Status
from a Defaulted Defendant to a Nonparty at Fault, the Error
Did Not Prejudice LFI
1. The Tecmire Ruling Did Not Shift the Burden of Proving
Tecmire’s Liability from the Suydams to LFI
¶ 66 LFI argues that the Tecmire ruling improperly shifted its
burden of proof in the middle of the trial. LFI contends that,
because the designation of a nonparty at fault operates as an
affirmative defense, once Tecmire became a nonparty at fault,
rather than a defaulted defendant, LFI bore the burden of proving
Tecmire’s liability. See § 13-21-111.5(1). For this reason, LFI
argues that the Tecmire ruling “reversed the burden of proof on
Tecmire’s liability” and forced LFI to “to prove Tecmire’s negligence
and liability, facts the parties had assumed as established for more
than a year.” See Rains v. Barber, 2018 CO 61, ¶ 14,
420 P.3d 969,
973 (explaining that shifting a party’s burden of proof can
30
constitute an “irregularity warranting a new trial” under C.R.C.P.
59(d)(1)).
¶ 67 At no time during the trial, however, did LFI bear the burden
of proving Tecmire’s “negligence and liability” because the trial
court instructed the jury on the first day of trial that Tecmire was
liable to the Suydams and a cause of their damages. Thus, from
the beginning of the trial, the jury knew that the court had
determined Tecmire’s liability and that its role as to Tecmire was
limited to deciding his percentage of liability for the Suydams’
damages. For this reason, LFI was not required to prove Tecmire’s
liability on the first day of trial, when the court treated Tecmire as a
defaulted defendant, or on the last day of trial, when the court
treated Tecmire as a nonparty at fault.
¶ 68 LFI’s counsel echoed the trial court’s initial instructions in his
opening statement. He reminded the jury that the court had
determined that Tecmire was “at fault for causing [the] accident,
and that his fault was a cause of and contributed to Mr. Suydam’s
injuries, life care needs, loss of income, all of the impairment, all of
that.” He told the jury that, because Tecmire’s negligence had been
established and there was no dispute he was a cause of the
31
Suydams’ injuries, the jury’s task was limited to “apportion[ing]
damages, meaning you determine what injuries were caused by the
first impact when [Suydam] ran into the side of Ms. Brewer’s car,
and which injuries . . . were the result of Mr. Tecmire[] . . . .”
¶ 69 Similarly, in his closing argument, LFI’s counsel told the jury
that the court “has determined as a matter of law that defendant
Chelsea Brewer and nonparty Stephen Tecmire are at fault and that
their fault was a cause of the injuries, damages, and losses claimed
by plaintiffs Gary Suydam and Lisa Linch-Suydam.” A comparison
of LFI’s opening statement and closing argument demonstrates that
the Tecmire ruling did not place any additional burdens on LFI.
¶ 70 Further, the Tecmire ruling alone did not require LFI to prove
Tecmire’s percentage of liability to the Suydams. At the time
Tecmire was a defaulting defendant, LFI had a significant financial
incentive to argue that Tecmire — and not Brewer, its employee —
was liable for the vast majority of the Suydams’ damages. And LFI
surely recognized that the Suydams would argue the opposite point
— that LFI, the only corporate defendant, should be held liable for
the vast majority of the Suydams’ damages. Thus, at all times
during the trial, LFI had a significant financial incentive to argue to
32
the jury that Tecmire was liable for the vast majority of the
Suydams’ damages.
¶ 71 Because the court instructed the jury at the beginning and the
end of the trial that Tecmire was negligent and a cause of the
Suydams’ injuries — points that LFI’s counsel echoed in his
opening statement and closing argument — we disagree with LFI
that the Tecmire ruling prejudiced LFI and is therefore grounds for
a new trial.
¶ 72 For these reasons, we conclude that, even if the court erred by
dismissing the Suydams’ claims against Tecmire on the second day
of trial, the error was harmless because it did not result in unfair
prejudice to LFI. See Clark v. Buhring, 761 P.2d 266, 268 (Colo.
App. 1988).
2. The Tecmire Ruling Did Not Excuse Tecmire for His Negligence
¶ 73 LFI additionally argues that, as a consequence of the Tecmire
ruling, Stodola was able to “opin[e] that Tecmire could not have
avoided the collision and was blameless for it.”
¶ 74 As explained above, Stodola’s testimony was the subject of two
pretrial motions. Shortly before trial, the trial court ruled that
Stodola could present her opinions at trial. In its ruling, the court
33
noted that Stodola’s testimony was of “central importance to the
disputed claims and affirmative defenses,” including the defendants’
respective liability to the Suydams.
¶ 75 LFI does not appear to challenge this ruling. But even if LFI
argues that the trial court erred by deciding before trial that
Stodola’s opinion testimony was admissible, the court made clear in
its ruling that it would not permit Stodola to misrepresent Tecmire’s
default. The court said that any potential prejudice to LFI resulting
from Stodola’s testimony could be “effectively resolved through
appropriate jury instructions.”
¶ 76 The court’s statements proved accurate. First, Stodola
acknowledged on cross-examination that the court had previously
determined that Tecmire was at fault for the accident. Second, the
court instructed the jurors that Tecmire was liable for, and a cause
of, the Suydams’ injuries.
¶ 77 For these reasons, Stodola’s testimony did not prejudice LFI,
regardless of whether Stodola was able to present her opinions only
because of the Tecmire ruling.
34
3. The Tecmire Ruling Did Not Allow the Suydams’ Counsel to
Make Prejudicial Arguments in His Closing
¶ 78 LFI contends that, by virtue of the Tecmire ruling, counsel for
the Suydams was able to make prejudicial assertions about LFI’s
liability in his closing argument.
¶ 79 Specifically, LFI argues that the Tecmire ruling allowed the
Suydams’ counsel to violate section 13-21-111.5(5), which states
that “the jury shall not be informed as to the effect of its finding as
to the allocation of fault among two or more defendants.” LFI
contends that the court’s classification of Tecmire as a nonparty on
the second day of trial improperly opened the door to the Suydams’
counsel’s argument in closing that the jury should award the bulk
of damages against LFI. It asserts that, but for the Tecmire ruling,
the Suydams’ counsel could not have argued that “[a]ny portion
that you assign to Mr. Tecmire, LFI is not responsible for. So it is
only the percentage of fault of Chelsea Brewer for which LFI is
responsible.”
¶ 80 But even if the Tecmire ruling permitted counsel for the
Suydams to violate section 13-21-111.5(5) in his closing argument,
LFI’s counsel did not contemporaneously object when, in closing,
35
the Suydams’ attorney commented on Tecmire’s and LFI’s share of
the Suydams’ damages. “If a party fails to make a
contemporaneous objection to closing argument, objection to its
propriety is waived.” Salazar v. Am. Sterilizer Co., 5 P.3d 357, 368
(Colo. App. 2000). LFI cannot attack the Tecmire ruling based on a
statement in the Suydams’ closing argument to which its attorney
did not object.
4. We Need Not Decide Whether the Rule 41(a)(1)(A) Notice or the
Tecmire Ruling Changed Tecmire’s Status from a Defaulted
Defendant to a Nonparty
¶ 81 Because we hold that the court’s jury instruction on Tecmire’s
liability avoided any prejudice to LFI resulting from the Tecmire
ruling, we need not determine whether the Suydams’ Rule
41(a)(1)(A) notice or the Tecmire ruling effected the change in
Tecmire’s status. Regardless of the date on which the Suydams’
claims against Tecmire were dismissed, the court instructed the
jury from the inception of the trial that Tecmire was liable for, and a
cause of, the Suydams’ damages.
¶ 82 For these reasons, we hold that the Tecmire ruling did not
prejudice LFI and, thus, was not an “irregularity in the proceedings”
that entitled LFI to a new trial. See C.R.C.P. 59(d)(1).
36
III. LFI Did Not Preserve Its Challenge to the Jury’s Award of
Damages for Physical Impairment and Disfigurement
¶ 83 LFI challenges the jury’s award of more than $32 million to
Suydam for “physical impairment or disfigurement” because (1) it
allegedly rests on an improper per diem argument and
(2) Colorado’s legal framework for physical impairment damages is
unconstitutionally vague. We do not consider these arguments
because LFI failed to preserve them.
A. The Suydams’ Per Diem Argument
¶ 84 LFI contends that the damages award was improper because
the jury relied “solely on an arbitrary ‘per diem’ argument” and,
therefore, the award was “unsupported by the evidence.”
¶ 85 In closing argument, the Suydams’ counsel asserted that Gary
Suydam should receive more than $32 million in damages as
compensation for his physical impairment or disfigurement.
Counsel noted that the experts who had testified made “somewhere
around $350 an hour to work on this case.” He then stated,
So let’s say we were to say, [Suydam], at $200
an hour, and we’ll say 16 hours a day. We
know that he has spasms in the middle of the
night and that he can’t control them, but we’ll
just say 16 hours, not 24 hours. And there
are 365 days in a year. And there is a life
37
expectancy in the instruction that you received
of 27.2 years. And I’ve already done the math
to multiply these: $31,769,600 for
impairment. . . . That is a fair and just
amount in this case.
¶ 86 LFI’s counsel did not contemporaneously object to this
argument, however. For this reason, LFI did not preserve its
challenge to the Suydams’ per diem damages argument. See
Salazar, 5 P.3d at 368.
B. The Colorado Statute Authorizing Awards for Physical
Impairment or Disfigurement
¶ 87 LFI asserts that, under Colorado law, there is no meaningful
distinction between damages for “nonpecuniary harm . . . including
pain and suffering, inconvenience, emotional stress, and
impairment of the quality of life,” which are subject to a cap, see
§ 13-21-102.5(2)(b), C.R.S. 2019, and damages for physical
impairment or disfigurement, which are not capped, see § 13-21-
102.5(5). Thus, LFI argues, juries and judges are forced “to
speculate whether damages should be assigned to ‘impairment of
the quality of life,’ on the one hand, or ‘physical impairment’ on the
other.” LFI asserts that this lack of clear standards allows plaintiffs
to “avoid statutory caps on noneconomic damages through a
38
‘labeling exercise’” to categorize damages for impairment of quality
of life as damages for physical impairment.
¶ 88 But, at trial, LFI did not challenge the award of damages for
physical impairment or disfigurement damages to Gary Suydam.
LFI’s counsel even acknowledged that such damages were
appropriate given Gary Suydam’s serious injuries.
¶ 89 During the jury instruction conference, LFI’s counsel did not
object to instructing the jury on damages for physical impairment
or disfigurement. LFI’s counsel’s objection to the Suydams’
proposed instruction on such damages narrowly focused on the
tone of the instruction, which LFI’s counsel argued read “like a
closing argument.”
¶ 90 Notably, during the instruction conference, LFI’s counsel said,
“[i]f you say permanent impairment is, and define it, we would be
amenable to that.” Counsel for LFI further asserted that, “in this
particular case, with Gary Suydam, it is so obvious that I don’t
think [a definitional instruction is] necessary.” Moreover, LFI’s
counsel did not object or otherwise respond when the judge said, “I
don’t think there is any dispute about damages.” And later during
the instruction conference, LFI’s counsel advised the court that LFI
39
had no objections regarding the instructions or verdict forms,
except as to the court’s rejection of LFI’s proposed instructions on
the going-and-coming rule.
¶ 91 The instructions and verdict forms broke down Gary Suydam’s
damages into only two categories — damages for economic loss and
damages for physical impairment or disfigurement. LFI’s counsel
did not tender a proposed instruction or verdict form that would
have allowed the jury to award the type of noneconomic damages
that are subject to the statutory cap, rather than damages for
physical impairment or disfigurement.
¶ 92 In light of this record, LFI failed to preserve its argument that
there is no meaningful distinction between the noneconomic
damages subject to the cap and damages for physical impairment
or disfigurement. “C.R.C.P. 51 requires parties to object to alleged
errors in instructions before they are given to the jury. ‘Only the
grounds so specified shall be considered . . . on appeal.’ Alleged
errors that are not objected to are waived.” Harris Grp., Inc. v.
Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009) (quoting C.R.C.P.
51).
40
¶ 93 For these reasons, we do not reach the merits of LFI’s
arguments regarding the damage award to the Suydams.
IV. Conclusion
¶ 94 The trial court’s judgment is affirmed.
JUDGE NAVARRO and JUDGE TOW concur.
41
