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Tucker v. Gorman3/6/1997
ease government's claim).
While we recognize that the General Assembly may well have gone beyond the requirements of federal law in enacting § 26-4-403(3) and § 26-4-403(4), we know of no reason that would prevent that body from doing so. And, quite aside from any federal law requirements, we conclude that the pertinent state statutes as they presently exist compel our Conclusion here.
However, our Conclusion that the negligence of the recipient cannot defeat the state's claim does not lead to the further Conclusion that such negligence can play no part in determining the extent of the third party's liability. On the contrary, so long as such negligence is not "imputed" to the state, as the statute prohibits, it is a valid consideration in determining that claim.
In this respect, § 13-21-111.5(1), C.R.S. (1987 Repl. Vol. 6A) specifically limits the liability of any defendant to an amount no "greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant . . . ." Hence, under this statute, the negligence of a non-party may be considered in determining the extent of the defendant's liability, although the negligence of such a party is not imputed to the plaintiff. See § 13-21-111.5(3)(b), C.R.S. (1996 Cum. Supp.).
The CMAA requires the state to be treated as a party separate and independent from the recipient; the latter's negligence cannot be "imputed" to the state so as to deny its claim. However, this does not prevent the recipient's negligence from being considered in determining the degree or percentage of the defendant's fault. And, because such consideration for this purpose does not involve imputing the recipient's negligence to the state, its consideration for this purpose is not prohibited by § 26-4-403.
Here, because the recipient was the assignee of the state's claim and the court concluded that her negligence could be imputed to the state, the issue of the percentage of her contributory negligence, as compared to that of defendant, was submitted to and determined by the jury. By its verdict, the jury determined defendant to be 30% at fault. While the CMAA prohibits the percentage of the recipient's negligence from being used to defeat the state's claim under § 13-21-111(1), it does not prevent application of § 13-21-111.5; therefore, defendant is liable for only 30% of the state's expenditures. Hence, upon remand, a judgment in that amount should be entered.
The judgment of the district court is reversed, and the cause is remanded to the trial court for entry of a judgment for plaintiff in accordance with the views expressed in this opinion.
JUDGE PLANK and JUDGE KAPELKE concur.
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