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Whitenhill v. Kaiser Permanente6/26/1997
anding upon parents if their deceased child's spouse elects not to sue within the first year after death. Again, we are not persuaded.
If the General Assembly had intended for parents to be included as heirs, then ยง 13-21-201(1)(c) quoted above would be superfluous. McGill v. General Motors Corp., supra, 174 Colo. at 391, 484 P.2d at 791 ("To construe the words 'heir or heirs' to include the parents of a decedent would be to ignore the fact that the legislature has already provided a separate category for them . . . ."). Accordingly, to the extent that Ablin is inconsistent with the result we reach here, we decline to follow that decision.
II
Plaintiffs next argue that questions of fact concerning the existence of the decedent's common law marriage precluded the dismissal of their action premised on the determination that Taylor was her husband. We agree.
A summary judgment is appropriate under C.R.C.P. 56(c) when the pleadings, affidavits, and discovery reveal that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Civil Service Commission v. Pinder, 812 P.2d 645 (Colo. 1991). However, entry of summary judgment is not warranted absent a clear showing that there exists no genuine issue as to any material fact. Graven v. Vail Associates, Inc., 909 P.2d 514 (Colo. 1995).
The moving party has the burden to show that there is no issue of material fact. Once the moving party has met that burden, the nonmoving party must then demonstrate that there is a triable issue. In determining whether the nonmoving party has satisfied this requirement, "the nonmoving party must receive the benefit of all favorable inferences that may be reasonably drawn from the undisputed facts," and "we must resolve all doubts against the moving party." Mancuso v. United Bank, 818 P.2d 732, 736 (Colo. 1991).
A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship. People v. Lucero, 747 P.2d 660 (Colo. 1987). Absent an express agreement, the two factors considered the most reliable in determining whether an intent to be married has been established are cohabitation and a general reputation in the community that the parties hold themselves out as husband and wife.
Here, the affidavit primarily relied upon by defendants in effect states that the marriage of decedent and Taylor commenced the same day the affidavit was signed and notarized. Conversely, defendants offered neither evidence of cohabitation nor of a general understanding in the community that the parties were husband and wife. Indeed, the affidavits relied upon by plaintiffs indicate just the opposite. Certainly, one might reasonably infer that any marriage would have been disclosed to the decedent's parents.
Accordingly, giving the benefit of all doubts to plaintiffs, we conclude that there exists a genuine issue of fact as to whether any marriage in fact existed.
The judgment of dismissal is reversed, and the cause is remanded for further proceedings consistent with this opinion.
JUDGE ROTHENBERG and JUDGE TAUBMAN concur.
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