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Estate of Kronemeyer11/13/1997
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED WITH DIRECTIONS
Sternberg, C.J. and Roy, J. concur
Plaintiffs, Estate of Daniel Kronemeyer (decedent) and his natural children, Barbara Clark and Daniel Jayson Bud Kronemeyer, appeal the summary judgment dismissing with prejudice the plaintiffs' entire action based on medical malpractice against defendants, Richard P. Meinig, M.D., James M. Larkin, M.D., and Penrose-St. Francis Healthcare Systems, Inc.
We affirm the summary judgment on the wrongful death claims and remand for re-instatement of claims based on the Survival Statute.
On April 13, 1995, Daniel Kronemeyer initiated a personal injury action against the driver of an automobile which had struck him, a pedestrian. When Kronemeyer died on April 15, 1995, the case was amended to be a wrongful death action on behalf of Kronemeyer's natural children and a claim for the Estate of Daniel Kronemeyer.
The Kronemeyer Estate and children reached a settlement with the driver for $50,000, in exchange for the release of all claims against the driver and her insurance company. The release provided:
It is further understood and agreed that the undersigned is contemplating the filing of a medical negligence suit relating to the death of Daniel Kronemeyer. This Release is not a general release and is not to be construed as barring the bringing or maintenance of these actions as the claims asserted in them are specifically excepted from this Release.
That action was then dismissed with prejudice in October 1995.
In March 1996, the plaintiffs initiated the instant medical malpractice action against the defendants. The plaintiffs' claims of medical malpractice in this case are based on the defendants' treatment of the injuries that the decedent had sustained in the pedestrian-automobile accident. The plaintiffs sought non-economic damages on behalf of the decedent's children under the Wrongful Death Statute, Section13-21-201, et seq., C.R.S. 1997, for loss of the decedent's companionship and emotional stress, and damages on behalf of the estate for medical and funeral expenses under the Survival Statute, Section13-20-101, C.R.S. 1997.
The Wrongful Death Statute provides, in Section13-21-203(1), C.R.S. 1997, that: "There shall be only one civil action under this part for recovery of damages for the wrongful death of any one decedent."
In granting summary judgment in favor of the defendants and dismissing the plaintiffs' case, the trial court concluded that Section13-21-203(1) barred this action because the plaintiffs had already initiated, settled, and voluntarily dismissed, a civil action for wrongful death of the same decedent.
I.
The plaintiffs argue that the trial court erred in dismissing the wrongful death action without due consideration for the legislative history and purpose of Section13-21- 203(1). The plaintiffs assert that the legislative history indicates that the General Assembly did not intend that this claim be barred by the provisions of Section13-21-203(1). We disagree.
Wrongful death actions did not exist at common law. A wrongful death claim may be maintained in Colorado only by virtue of the Wrongful Death Statute. Section 13-21- 201, et seq., C.R.S. 1997. And, because the statute is in derogation of common law, it must be strictly construed. Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo. App. 1997).
The plaintiffs argue that the prior and present actions together effect an ongoing resolution of a single wrongful death claim against different defendants. This characterization ignores the plain,
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