 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Martinez v. St. Joseph Hospital and Nursing Home of Del Norte Inc.12/30/1993
In this premises liability action, plaintiff, Larry Martinez, appeals the judgment of the trial court which reduced his award of damages in favor of intervenor, State Compensation Insurance Authority (SCIA). We reverse and remand with instructions.
Plaintiff was working as a volunteer fireman when he slipped and fell in the parking lot of defendant, St. Joseph Hospital and Nursing Home of Del Norte, Inc. As a result of his injuries, he was paid in excess of $100,000 in workers' compensation benefits.
He subsequently brought the underlying action, claiming that, because of defendant's negligence, he sustained noneconomic damages. SCIA intervened to secure its right of subrogation to plaintiff's economic damages.
At trial, the jury awarded $70,000 to plaintiff and $50,000 to SCIA. However, because the jury also determined that the comparative negligence of plaintiff was 49%, the awards were reduced by that percentage to $35,700 and $25,500 respectively.
Thereafter, in response to a post-trial motion, the trial court concluded that SCIA was "entitled to be reimbursed from the plaintiff for the reduction in its award as a result of plaintiff's comparative negligence." In consequence, the award to plaintiff was reduced, and the amount of the reduction was awarded to SCIA as reimbursement. This appeal followed.
I.
Plaintiff contends that the trial court erred by its invasion of his recovery. We agree.
A.
As a threshold matter, we reject the contention of plaintiff that this "cost claim" by SCIA was not properly before the trial court.
Plaintiff bases this contention upon the lack of inclusion in SCIA's disclosure certificate of its intention to seek reimbursement based upon a finding of comparative negligence. However, § 8-41-203(1), C.R.S. (1993 Cum. Supp.) provides statutory notice that an insurer is entitled to seek recovery of all funds it has paid as workers' compensation benefits. Furthermore, the right of an insurer to recover is not predicated upon its participation at trial. See County Workers Compensation Pool v. Davis, 817 P.2d 521 (Colo. 1991).
B.
At issue here is the interpretation of § 8-41-203(1), C.R.S. (1993 Cum. Supp.), which reads in pertinent part:
The payment of compensation shall operate as and be an assignment of the cause of action . . . to the Colorado compensation insurance authority . . . . [To the extent of compensation for which it is liable] said carrier shall be subrogated to the rights of the injured employee against said third party causing the injury . . . . The right of subrogation provided by this section shall apply to and include all compensation . . . to which the employee entitled . . . or for which employee's employer or insurance carrier is liable . . . . [The section does not limit the injured employee's right to] proceed against the third party causing the injury to recover any damages in excess of the subrogation rights described in this section.
SCIA maintains that the statute entitles it to reimbursement from any recovery by plaintiff, regardless of the basis of that recovery, for all monies expended on plaintiff's behalf. Consequently, SCIA contends that the trial court correctly ordered plaintiff to compensate it for the amount deducted from its award as attributable to plaintiff's negligence. Plaintiff asserts that the statute limits SCIA to the award it received at trial as subrogee. We agree with plaintiff.
To justify the trial court's reimbursement from plaintiff's recovery for noneconomic damages, SCIA relies
Page 1 2 3 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|