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Slack v. Farmers Insurance Exchange6/19/2000
Certiorari to the Colorado Court of Appeals
EN BANC
AND CASE REMANDED
JUSTICE RICE dissents, and CHIEF JUSTICE MULLARKEY and JUSTICE BENDER join in the dissent.
The question in this case is whether section 13-21-111.5, 5 C.R.S. (1999) requires the pro rata distribution of civil liability among intentional and negligent tortfeasors who jointly cause indivisible injuries. Section 13-21-111.5(1) states that a tortfeasor shall only be liable for damages to the extent of her negligence or fault. The court of appeals, in Harvey v. Farmers Insurance Exchange, concluded that the statute as drafted by the General Assembly contemplates that liability may be apportioned between a negligent tortfeasor and an intentional tortfeasor. 983 P.2d 34, 39 (Colo. App. 1998). The Petitioner here contends that when one of the tortfeasors has committed an intentional act, the negligent tortfeasor should bear the risk of the full loss, rather than having the benefit of an apportioned degree of loss. We disagree, and hold that the plain meaning of the statutory language requires apportionment of liability among negligent and intentional tortfeasors who contributed to an indivisible injury, and thus, we affirm the court of appeals.
I.
On September 8, 1992, Juliette Diane Slack suffered injuries in an automobile accident. Slack, driving a minivan, was stopped at a stoplight waiting to make a right turn. When she began to make the turn, a young man in a small, green car ran the stoplight and forced Slack to slam on the brakes. The abrupt stop caused Slack to strike her chin on the steering wheel and then to hit the back of her head on the headrest.
The following day, Slack visited her chiropractor, Dr. Steven Lee Schuster, for treatment of her neck and back pain caused by the accident. Dr. Schuster submitted all charges for treatment to Slack's insurer, Farmers Insurance. In accordance with her policy, and at the request of Farmers Insurance, Slack signed and delivered to Farmers Insurance an Application for Benefits and Proof of Loss requesting Personal Injury Protection (PIP) benefits under her automobile insurance policy. Farmers Insurance elected to obtain a second opinion regarding the nature of Slack's injuries from an independent medical examiner (an IME).
Farmers Insurance scheduled an appointment for Slack with Dr. Lloyd Lachow, a chiropractor. At that time, another one of Farmers' insureds, Jodi Lynn Harvey, had claimed that Lachow
sexually assaulted her during an examination. Slack testified that during her exam, Lachow touched her clothed breast and pushed his pelvis into her back. In addition, she testified that he pulled hard on her neck and shook her head violently from side-to-side, putting her in additional pain.
Immediately thereafter, Slack drove to Dr. Schuster's office to confirm that her IME acted inappropriately. She then contacted an attorney and reported the incident to the City of Aurora police department. Later that same day, Slack contacted Farmers Insurance to inform it of the events.
Following an investigation, the Colorado Department of Regulatory Agencies (the Agency) suspended Lachow's license effective March 31, 1993. Lachow admitted in a Stipulation and Final Agency Order that the State Board of Chiropractic Examiners, a Board contained within the Agency, would be able to establish a prima facie case of unprofessional conduct during the examinations of Slack and Harvey.
Slack filed suit against Lachow claiming assault, battery, negligence, extreme and outrageous conduct/intentional infliction of emotional distress, negligent infliction of emoti
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