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Serna v. Kingston Enterprises9/26/2002
JUDGMENT AFFIRMED IN PART, REVERSED IN PART
Plank, J., concurs
Taubman, J., specially concurs
In this indemnification action, plaintiff, Lisa Serna, appeals from a summary judgment and an award of attorney fees and costs to defendant, Kingston Enterprises. Defendant cross-appeals the trial court's determination that Serna's lawyers are not personally liable for its attorney fees. We affirm in part and reverse in part.
Serna was fifteen years old when defendant, her employer, instructed her to drive from one of its franchise locations to another. En route, Serna's car collided with another car, resulting in serious injury to the passengers of the other car.
The passengers sued both Serna and defendant, alleging that Serna was negligent and that, as her employer, defendant was liable based on a respondeat superior theory. The passengers, who initially failed to complete service of process on Serna, settled with defendant for $850,000. After serving process upon Serna, they also settled with her.
Under her settlement with the passengers, Serna agreed to: (1) allow entry of a $1.5 million judgment against her; (2) employ the passengers' attorneys to sue defendant in an indemnity action; (3) allow the passengers to make all decisions with respect to her lawsuit against defendant; (4) refuse to settle with defendant without the passengers' prior approval; and (5) pay monies recovered from defendant to the passengers. In return, the passengers accepted $40,000 from Serna's insurance carrier, agreed not to execute on the remainder of the $1.5 million judgment against Serna, and promised to pay Serna half of any monies recovered from defendant in excess of $1 million.
Pursuant to her settlement, Serna instituted the present action against defendant. The trial court, however, granted defendant's motion for summary judgment, holding that, as a matter of law, Serna's claim was barred by the exclusivity provision of the Workers' Compensation Act (WCA), § 8-40-101, et seq., C.R.S. 2002, and by the Uniform Contribution Among Tortfeasors Act (UCATA), § 13-50.5-102, C.R.S. 2002. The trial court awarded defendant attorney fees and costs under § 13-17-102, C.R.S. 2002.
I. Summary Judgment
Serna contends that the trial court erred in dismissing her claims. We disagree, but base our decision on grounds somewhat different from those relied upon by the trial court.
Summary judgment is only appropriate if there is no genuine issue as to any material fact. Polk v. Hergert Land & Cattle Co., 5 P.3d 402, 404 (Colo. App. 2000). On appeal, we review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251, 1256 (Colo. 1995).
Because the material facts in this case are not in dispute, we can resolve this appeal as a matter of law.
A. Workers' Compensation
Initially, Serna contends that the trial court erred in determining that the WCA's exclusivity provision barred her claim. We agree.
The WCA is an employee's exclusive remedy for compensation by an employer for certain work-related injuries. See Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86, 88 (Colo. App. 1998)("if an injury comes within the coverage of the Act, an action for damages is barred even though a particular element of damages is not compensated for").
Under the WCA, an employee surrenders, as against his or her employer, "any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of [his or her] personal injuries or death." Section
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