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Dewey v. Hardy9/14/1995
In this wrongful death action, defendants, Charlene and William G. Hardy, appeal a judgment entered upon a jury verdict in favor of plaintiff, William Dewey. Plaintiff cross-appeals a post-verdict reduction of his damages. We affirm in part, vacate the judgment in part, and remand to the trial court for further proceedings.
Plaintiff instituted this action against the defendants under § 13-21-202, C.R.S. (1987 Repl. Vol. 6A), seeking damages for the wrongful death of his daughter. Prior to the filing of this action, on or about March 28, 1992, decedent's mother, who was the custodial parent of the decedent, had settled her claim for the wrongful death. Plaintiff was not involved in any way in that settlement agreement and decedent's mother is not a party to this suit.
Upon completion of discovery, plaintiff moved to amend his claim for wrongful death under § 13-21-202 and elected to recover a solatium in the amount of $50,000 pursuant to § 13-21-203.5, C.R.S. (1994 Cum. Supp.). Its basic purpose being to allow an award for solace of the grieved, this statutory provision states:
In any case arising under § 13-21-202, the persons entitled to sue under the provisions of § 13-21-201 (1) may elect in writing to sue for and recover a solatium in the amount of
$50,000. Such solatium amount shall be in addition to economic damages and to reasonable funeral, burial, interment, or cremation expenses, which expenses may also be recovered in an action under this section.
Such solatium amount shall be in lieu of non-
economic damages recoverable under § 13-21-203
and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death.
Plaintiff's motion to elect recovery of solatium was granted and the trial began seven months later to determine if defendants were liable.
Prior to trial, defendants challenged the constitutionality of the solatium statute by filing a motion for declaration of unconstitutionality. The record reflects that the trial court did not rule on that motion and commenced the trial on February 7, 1994. Pursuant to its interpretation of the solatium statute, the trial court limited the trial to a determination of defendants' liability. No evidence or testimony was presented regarding plaintiff's damages.
The jury found the defendants 65% at fault and the decedent 35% at fault for decedent's death. The trial court denied defendants' request that it reduce the $50,000 damage award in proportion to the amount of negligence attributable to the decedent in accordance with the comparative fault statute, § 13-21-111, C.R.S. (1987 Repl. Vol. 6A). The trial court did, however, reduce plaintiff's solatium award by $25,000 based upon its view that the decedent's mother had a right to 50% of the solatium award which she had essentially assigned to GEICO as defendants' insurer, pursuant to her settlement agreement with that company.
I.
Defendants contend that the solatium statute is unconstitutional because it deprives them of property without due process of law and, therefore, is contrary to the Fourteenth Amendment and Colo. Const. art. II, § 25. Specifically, the defendants contend that by setting a fixed solatium award in the amount of $50,000, the statute denies them the right to a full hearing. We disagree.
In considering this contention, we presume that, in not ruling upon the motion for declaration of unconstitutionali
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