Opinion
No. 07SA249.
May 12, 2008. Rehearing Denied June 2, 2008.
Justice Rice, Justice Coats, and Justice Eid would grant the Petition.
Appeal from the District Court, El Paso County, Timothy J. Simmons, J.
The Waltz Law Firm, Richard A. Waltz, John G. Simmonds, K. Brandon Cline, Denver, CO, Attorneys for Petitioner.
Retherford, Mullen, Johnson Bruce, LLC, Jerry A. Retherford, Anthony A. Johnson, Kelly M. Telfeyan, James C. Duve, P.C., James C. Duve, Colorado Springs, CO, Attorneys for Respondents.
Kennedy Childs Fogg, P.C., John R. Mann, Jennifer C. Madsen, Denver, CO, Attorneys for Amicus Curiae Colorado Defense Lawyers Association.
Benson Associates, PC, Jesse Howard, Witt Golden, CO Sears Swanson, P.C., Victoria Swanson, Colorado Springs, CO, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.
In this original proceeding pursuant to C.A.R. 21, we consider whether evidence concerning a decedent's future income tax liability is admissible for purposes of calculating the net pecuniary loss to a plaintiff in a wrongful death suit brought pursuant to Colorado's Wrongful Death Act ("the WDA"), sections 13-21-201 to -204, C.R.S. (2007). The defendant in the trial court, Pioneer Sand Company, Inc. ("Pioneer Sand"), brought this original proceeding and argues that the future income tax liability of the decedent in this matter, Arbuth Jay Hoyal ("decedent husband"), should be taken into account when calculating the net pecuniary loss to the plaintiff, Dawn E. Hoyal ("Hoyal"). We hold that evidence of a decedent's future income tax liability should not be considered when calculating net pecuniary loss to a plaintiff in a wrongful death action. Accordingly, we discharge the rule to show cause.
I.
This case involves a wrongful death suit instituted by Hoyal, surviving spouse of decedent husband. Defendant Pioneer Sand is in the business of selling landscaping and other building supplies. On August 21, 2004, decedent husband visited Pioneer Sand's facility, located in Colorado Springs, in order to purchase firewood. As he began loading firewood into his pickup truck, a concrete block wall behind him collapsed and concrete blocks fell on him, killing him.
Asserting that her husband's death was the result of Pioneer Sand's tortious conduct, Hoyal brought suit pursuant to the WDA requesting damages for economic and non-economic losses resulting from his death. Both Hoyal and Pioneer Sand retained experts who prepared reports calculating the economic losses Hoyal sustained. Hoyal's expert estimated that her economic losses ranged from $4,566,922 to $10,695,027. Pioneer Sand's expert estimated that Hoyal's economic losses ranged from $1,010,000 to $1,162,000.
Pioneer Sand's expert accounted for the decedent husband's projected future income tax liability. Hoyal's expert did not consider the decedent husband's potential future income tax liability.
Hoyal subsequently filed a motion in limine with the trial court, requesting that Pioneer Sand be barred from presenting any evidence concerning the decedent husband's income tax liability. The trial court granted Hoyal's motion in limine. Pioneer Sand then filed this original proceeding.
Pioneer Sand's argument in favor of using decedent husband's projected future income tax liability in calculating Hoyal's economic losses from his wrongful death is: (1) Hoyal is entitled to compensation only for economic benefits she reasonably would have expected to receive from her husband had he lived and (2) his future income would have been subject to income taxes.
Hoyal counters that Colorado law does not allow the jury to consider the decedent's future tax liability in calculating the economic damages due to plaintiff in a wrongful death action. We agree with Hoyal and uphold the trial court's order excluding such evidence.
II.
We hold that evidence of a decedent's future income tax liability should not be considered when calculating net pecuniary loss to a plaintiff in a wrongful death action. Accordingly, we discharge the rule to show cause.
A. Wrongful Death Actions and Damages for Economic Loss
The WDA is governed by sections 13-21-201 to -204. Section 13-21-203 provides in such actions that the jury "may give such damages as they may deem fair and just." § 13-21-203.
A surviving spouse in a wrongful death action may recover both economic and non-economic losses incurred as a result of the negligently caused death of his or her spouse. See id.; see also Lanahan v. Chi Psi Fraternity, 175 P.3d 97, 99 (Colo. 2008) (noting that the WDA, originally enacted in 1877, was amended in 1989 to allow recovery for noneconomic damages as well as economic damages). In addition to being entitled to compensation for economic damages such as funeral expenses, a surviving spouse is entitled to compensation for the loss of financial benefits he or she reasonably would have expected to receive from the decedent had the decedent lived. See CJI-Civ.4th 10:3 (2008). The measure of the latter category of economic damages is known as net pecuniary loss.
The substance of the net pecuniary loss rule is not defined by statute, but rather has developed through cases interpreting provisions of the WDA. One of the first cases to describe the nature of net pecuniary loss as a measure of damages for wrongful death cases is Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). In Pierce, we stated that "the true measure of compensatory relief in [a wrongful death action] is a sum equal to the net pecuniary benefit which plaintiff might reasonably have expected to receive from the deceased had his life not been terminated by the wrongful act, neglect or default of the defendant." Id. at 182, 37 P. at 722.
The terra "net pecuniary loss" has sometimes been used interchangeably with the term "pecuniary loss" when referring to economic damages sustained by a plaintiff in a wrongful death case. See, e.g., Morrison v. Bradley, 655 P.2d 385, 388 (Colo. 1982) (noting damages in a wrongful death action are limited to the "net pecuniary loss suffered by the survivor," and stating that the role of the jury was to place a dollar value on "pecuniary loss suffered" by the survivor); McEntyre v. Jones, 128 Colo. 461, 463, 263 P.2d 313, 314 (1953) (referring to jury instructions in two wrongful death cases in which damages were alternately described using the term "net pecuniary loss" and "pecuniary loss," and concluding that the jury instructions in both cases described the proper measure of damages); Moffatt v. Tenney, 17 Colo. 189, 197, 30 P. 348, 351 (1892) (describing surviving spouse's damages as "pecuniary loss" suffered as a consequence of decedent's death).
Factors relevant to determining net pecuniary loss include: the age, health, and life expectancy of both the decedent and the plaintiff; the decedent's industriousness and ability to earn money; the decedent's willingness to assist the plaintiff; the kinship or legal relationship between the decedent and the plaintiff; and the nature of the relationship between the decedent and plaintiff as evidenced by the decedent's actions. Id., 37 P. at 722.
Accordingly, with respect to the calculation of economic losses, the pertinent civil jury instruction, CJI-Civ.4th 10:3 (2008), recites as follows:
In determining such damages, you shall consider the following:
* * *
(2. any economic losses, including reasonable funeral, burial, internment, or cremation expenses, and any net financial loss which the Plaintiff [and those the plaintiff represents] have had because of the death of [ name of decedent]. The net financial loss is the same as the financial benefit the plaintiff [and those the plaintiff represents] might reasonably have expected to receive from [ name of decedent] had [he][she] lived.)
In determining these damages, if any, you should consider the age, health, and life expectancy of ( name of decedent), the age, health, and life expectancy of the plaintiff (and those the plaintiff represents), the ( name of decedent's) industriousness, ability to earn money, willingness to assist the plaintiff (and those the plaintiff represents), and the nature of the relationship between ( name of decedent) and the plaintiff (and between [ name of decedent] and those the plaintiff represents).
Absent from these economic loss factors enunciated in the case law and the jury instruction is a consideration of the decedent's future tax liability in calculating the plaintiffs economic losses.
B. Colorado Case Law Pertaining to Taxation and Economic Damages 1. Taxation Not a Factor in Net Pecuniary Loss Calculations and Jury Instructions
In Gerbich v. Evans, 525 F.Supp. 817, 819 n. 4 (D.Colo. 1981), a diversity case discussing Colorado's net pecuniary loss rule in wrongful death actions, the United States District Court for Colorado observed that "income tax is not mentioned in the many factors that trial courts are supposed to consider in determining net pecuniary loss." In the absence of a Colorado Supreme Court case to the contrary, the federal court relied on Colorado Court of Appeals decisions precluding taxation evidence and instructions. Id. at 819 ( citing Hildyard v. W. Fasteners, Inc., 33 Colo.App. 396, 522 P.2d 596, 601 (1974); Polster v. Griff's of Amer., Inc., 32 Colo.App. 264, 514 P.2d 80, 83 (1973), rev'd on other grounds, 184 Colo. 418, 520 P.2d 745 (1974); Davis v. Fortino Jackson Chevrolet Co., 225, 32 Colo.App. 222, 510 P.2d 1376, 1378 (1973)).
The general rule in Colorado personal injury actions is that taxation instructions are not given to the jury. John W. Grund J. Kent Miller, Colorado Personal Injury Practice-Torts and Insurance, § 37.56 (2d ed. 2000). In Rego Co. v. McKown-Katy, 801 P.2d 536, 539 (Colo. 1990), we disapproved a trial court instruction addressing the nontaxability of an award for personal injury damages. In so doing, we were concerned about "speculation" and an "inevitable flood of cautionary instructions that would ensue" were we to sanction the use of such instructions. Id. We discussed and refused to follow the U.S. Supreme Court's decision in Norfolk Western Railway Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), construing a federal statute to the contrary. Rego, 801 P.2d at 538-39. In Liepelt, a wrongful death action under the Federal Employers' Liability Act, the Court held that income tax is a relevant factor in calculating the monetary loss suffered by a decedent's dependents. 444 U.S. at 493-94, 100 S.Ct. 755. We observed in Rego that Liepelt articulated a federal rule favoring nontaxability instructions and only a minority of states had been persuaded to apply this rule in state law cases. Rego, 801 P.2d at 538.
Section 6:10 of the Colorado Jury Instructions, captioned "Effect of Income Tax and Other Economic Factors on Award of Damages," contains a "Special Note" stating "No position has been taken by the Committee on the formulation of instructions dealing with 'economic factors' as they may affect an award of damages." CJI-Civ.4th 6:10 (2008).
2. Rationale for Excluding Taxation Evidence
The Washington Supreme Court's decision in Hinzman v. Palmanteer, 81 Wash.2d 327, 501 P.2d 1228, 1232 (1972), exemplifies the rationale employed by those jurisdictions that reject consideration of income tax on probable future earnings. The Hinzman court noted income tax liability or savings is: (1) not pertinent to the damage issue, being a matter between the plaintiff and the taxing authority and of no legal concern to the defendant; (2) the amount of income tax that might become due on one's prospective earnings in future years is too conjectural to be considered in fixing damages; and (3) to introduce an income tax matter into a lawsuit for damages would be unduly complicating and confusing. Id.; see also, e.g., Hicks v. Jones, 217 W.Va. 107, 617 S.E.2d 457, 464-65 (2005) (holding that, in calculating a plaintiffs damages for accrued loss of earnings or for impairment of future earning capacity because of personal injuries, the award of damages should be based on the plaintiffs gross earnings).
See also Canavin v. Pac. Sw. Airlines, 148 Cal. App.3d 512, 196 Cal.Rptr. 82, 100 (1983) (Staniforth, J., concurring) (stating that the "majority" rule in California and the United States is that income taxes "are of no relevance" in personal injury litigation); Klawonn v. Mitchell, 105 Ill.2d 450, 86 Ill.Dec. 478, 475 N.E.2d 857, 859 (1985) (excluding evidence and jury instructions concerning income tax in wrongful death and personal injury cases); Terveer v. Baschnagel, 3 Ohio App.3d 312, 445 N.E.2d 264, 269 (1982) ("Under Ohio law, the jury is to consider the gross income of the decedent and not the net income after taxes and deductions."); Girard Trust Com Exch. Bank v. Phila. Transp. Co., 410 Pa. 530, 190 A.2d 293, 298 (1963) (noting the majority rule is that income taxes should not be considered in fixing damages for a decedent's earning capacity).
In Johnson v. Manhattan Bronx Surface Transit Operating Authority, 71 N.Y.2d 198, 524 N.Y.S.2d 415, 519 N.E.2d 326, 329 (1988), the New York Court of Appeals observed in a wrongful death case that a majority of jurisdictions have stayed with a rule precluding evidence of after-tax income on the earnings damage issue to avoid "turning every negligence case into a trial (at least) of the future federal income tax structure involving a parade of tax experts." In fact, our decisions generally consider tax returns to be irrelevant and not discoverable on the question of present and future damages in personal injury actions. See Alcon v. Spicer, 113 P.3d 735, 742-43 (Colo. 2005); Corbetta v. Albertson's, Inc., 975 P.2d 718, 722-23 (Colo. 1999) (addressing exemplary damages). We have relied on the legislative policy of the Colorado General Assembly for such holdings. See Alcon, 113 P.3d at 743; Corbetta, 975 P.2d at 722-23.
C. Application to This Case
We agree with jurisdictions that do not include the effect of future income taxes in calculating economic damages in wrongful death and personal injury actions. A principal function of tort law is to compensate a victim for the wrongdoing of the tortfeasor. See Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 72 (Colo. 1998). Tax statutes, rules, and levies involve the relationship between the government and taxpayers, tied to shifting governmental policy and future economic conditions — matters the General Assembly and our court decisions have not previously factored into tort law damages calculations. A battle of the experts about what Congress or the General Assembly might effectuate in the future regarding tax policy and the amount individual tax payers will likely owe in the future would increase the expense of litigation and divert juries from the focus of their fact-finding and decisional responsibilities, as set forth in trial court instructions proper for wrongful death and personal injury actions.
We recognize that the General Assembly may choose in the future to adopt a rule of damages in tort cases contrary to our decision in this case. Here, we decline to institute a new case law rule in Colorado requiring the consideration of potential future tax liability when calculating economic damages. In doing so we recognize that our decision in Lewis v. Great Western Distributing Co. of Borger, 168 Colo. 424, 426-27, 451 P.2d 754, 755 (1969), can be read as hinting that the determination of net pecuniary loss in a wrongful death case contemplates deduction of income taxes. However, that case contained no analysis of the issue and simply recited, in passing, a given set of facts concerning after-tax income.
We conclude that the federal district court's later-in-time decision in Gerbich correctly stated Colorado law to the contrary, as illustrated by our decision in Rego. See also Stamp v. Vail Corp., 172 P.3d 437, 448 (Colo. 2007) (extending holding concerning exemplary damages requested pursuant to the Ski Safety Act ("SSA") in a personal injury action to exemplary damages requested pursuant to the SSA in a wrongful death action); Boettcher Co. v. Munson, 854 P.2d 199, 207 (Colo. 1993); Landsberg v. Hutsell, 837 P.2d 205, 210 (Colo.App. 1992) (applying Rego to a wrongful death case).
Accordingly, we decline to follow decisions that allow the consideration of potential taxes in calculating economic damages. See, e.g., United States v. Sommers, 351 F.2d 354, 359-60 (10th Cir. 1965) (taking income tax liability into account in Federal Tort Claims Act case applying Nevada law which provided for "fair and just damages" resulting from wrongful death); DeWeese v. United States, 419 F.Supp. 170, 172 (D.Colo. 1976), aff'd, 576 F.2d 802 (10th Cir. 1978); Ruff v. Weintraub, 105 N.J. 233, 519 A.2d 1384, 1388 (1987) (holding that proper measure of damages for lost future income in personal injury cases is net income after taxes and trial court commits error by not instructing jury of nontaxability of award sum if such instruction is requested).
In the case before us, we uphold the trial court's order excluding evidence of potential future income taxes in calculating economic damages in this wrongful death action.
III.
Accordingly, we discharge our rule to show cause and return this matter to the district court for further proceedings consistent with this opinion.
Justice RICE dissents, and Justice COATS and Justice EID join in the dissent.