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Ablin v. Richard O''Brien Plastering Co.6/2/1994
In this wrongful death action to recover damages for the death of their brother, plaintiffs, David Ablin and Debrah Ablin Ferley, appeal the summary judgment entered in favor of defendants. We affirm.
In their complaint, plaintiffs alleged that their brother, Bruce Ablin, was riding his bicycle when he was struck and killed by a truck driven by an employee of Richard O'Brien Concrete Pumping, Inc. Ablin left no surviving spouse or children, and neither of his parents survived him. Plaintiffs, who are Ablin's closest living relatives, filed this action naming as defendants the driver of the truck, Richard O'Brien Concrete Pumping, Inc., and two related corporate entities.
Defendants filed a motion for summary judgment arguing that plaintiffs, as siblings of the deceased, lacked standing to bring suit under the Colorado Wrongful Death Act, § 13-21-201, et seq., C.R.S. (1987 Repl. Vol. 6A). The trial court granted the motion.
I.
Plaintiffs first contend that the trial court erred in interpreting the Wrongful Death Act to preclude siblings from maintaining wrongful death actions. We disagree.
At the outset, we note that summary judgment is a drastic remedy and should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Roberts v. Holland & Hart, 857 P.2d 492 (Colo. App. 1993).
At common law, there was no cause of action for wrongful death. Therefore, such suits may be maintained in Colorado only by virtue of the Wrongful Death Act. Because that act is in derogation of common law, it has been strictly construed. See Herrera v. Glau, 772 P.2d 682 (Colo. App. 1989).
Before its amendment in 1988, § 13-21-201(1), C.R.S. (1987 Repl. Vol. 6A) allowed wrongful death actions to be brought by
(a) . . . the husband or wife of deceased; or
(b) If there is no husband or wife, or he or she fails to sue within one year after such death, then by the heir or heirs of the deceased; or
(c) If the deceased is a minor or unmarried, then by the father or mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them is dead, then by the survivor. (emphasis added)
The term "heir" as used in the Wrongful Death Act has been narrowly defined. In Hindry v. Holt, 24 Colo. 464, 51 P. 1002 (1897), a niece sought damages for the wrongful death of her uncle upon whom she was financially dependent. Although the niece was an heir at law under the laws of descent and distribution, our supreme court rejected the argument that she was an "heir" as that term is used in the Wrongful Death Act. The court held that, for purposes of that statute, the phrase "heir or heirs" refers solely to lineal descendants of the decedent:
By construing the words 'heir or heirs,' as used in the second subdivision, to mean 'child or children,' the purpose of this character of legislation is carried out, which is to compensate those who suffer pecuniary loss by reason of the death. While, on the other hand, if the words 'heir or heirs' are to be construed as meaning all those who, under the statute of descents and distribution, would be entitled to inherit, then collateral kindred, however remote, who would derive no pecuniary benefit from the continuance of the life of deceased, as well as the direct descendants, may maintain the action, -- a result wholly inconsistent with the plain purport and object of the statute. And
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