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Waters v. Keelan11/23/1992
JUSTICE LOHR delivered the Opinion of the Court.
CHIEF JUSTICE ROVIRA specially concurs.
This case arises from an accident in which plaintiff Patrick K. Keelan was injured when he was struck by a pallet jack that rolled off the back of a delivery truck. Patrick and Bonnie Keelan brought a negligence action in Denver District Court against Van Waters & Rogers, Inc. (Van Waters), the company that owned the jack. Van Waters conceded liability at trial, and the jury subsequently returned a verdict awarding Patrick Keelan $411,000 and Bonnie Keelan $10,000 in damages. Van Waters opposed the entry of judgment, contending that under section 13-21-111.6, 6A C.R.S. (1987), the verdict should be reduced by the amount that Patrick Keelan would receive in disability benefits pursuant to the state Fire and Police Pension Plan as set out in section 31-30-1007, 12B C.R.S. (1986 & 1992 Supp.).
The trial court rejected Van Waters' argument and entered a final judgment for $463,284.90, including costs and interest. The Colorado Court of Appeals affirmed the entry of judgment after it determined that Keelan's disability benefits resulted from a contract that was "entered into and paid for" by both Keelan and the state of Colorado on Keelan's behalf and, thus, were exempt from the setoff requirement in section 13-21-111.6. Keelan v. Van Waters & Rogers, Inc., 820 P.2d 1145 (Colo. App. 1991). We granted certiorari to review the court of appeals' interpretation and application of section 13-21-111.6 and now affirm its judgment denying a setoff against the jury's verdict.
I
Since 1976, Patrick Keelan had worked as a firefighter for the City of Denver. He and his wife had also owned and operated a swimming pool maintenance business, part of which included ordering and supervising the delivery of swimming pool chemicals. Defendant Van Waters is a distributor of swimming pool chemicals. On April 30, 1987, a Van Waters employee delivered chemical supplies to a swimming pool construction site that Keelan was monitoring. As the supplies were being unloaded, a pallet jack weighing approximately 1,200 pounds rolled off the back of the delivery truck and struck Keelan on the head, shoulder, and foot. As a result of his injuries, Keelan was declared occupationally disabled by the Fire and Police Pension Association (FPPA) and began receiving disability payments from a pension fund that the State of Colorado had established for police officers and firefighters. See ยงยง 31-30-1001 to -1019, 12B C.R.S. (1986 & 1992 Supp.).
In April 1989, the Keelans instituted a negligence action against Van Waters in which Patrick Keelan sought damages for medical and therapy expenses, pain and suffering, and loss of his firefighter and swimming pool maintenance careers, and Bonnie Keelan sought damages for loss of consortium. Van Waters conceded its liability at trial and the jury returned a verdict awarding Patrick Keelan $411,000 and Bonnie Keelan $10,000 on their claims against Van Waters. Under section 13-21-111.6, 6A C.R.S. (1987), Van Waters moved that the trial court offset this award by $335,255.81, the then present value of Keelan's disability benefits. The trial court denied the motion after it determined that the disability payments resulted from a contract that was "entered into and paid for" by both Keelan and by the State's pension fund on Keelan's behalf and that they were therefore exempt from the setoff requirement of section 13-21-111.6. Consequently, the court entered judgment for the Keelans in the total amoun
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