Opinion
No. 83CA0387
Decided September 1, 1983.
Motion for Rehearing of Order of Dismissal of Petition for Review of an Order of the Industrial Commission of the State of Colorado
Sarney, Trattler Waitkus, Alan J. Waitkus, for petitioner.
Duane Woodard, Attorney General, William Levis, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado.
Zarlengo, Mott Zarlengo, Tama L. Levine, for respondents, United Parcel Service and Liberty Mutual Insurance.
Division III.
This matter is before the court on petitioner's Motion for Rehearing on an order of dismissal entered by this court because of the petitioner's failure to join a claimed indispensable party within the statutory time limit. As grounds for rehearing, the petitioner contends that the form as filed containing the statement that it was an appeal from the trial court and identifying the claim, adequately advised the Industrial Commission, the employer, and the insurer of the fact of the timely filing of the petition for review and, therefore, no prejudice to the rights of any responding party has occurred. We agree.
In Shaklee v. District Court, 636 P.2d 715 (Colo. 1981), the court held that the failure to name the court and judge as respondents in the caption of an original proceeding filed with it was a technical defect at most, and was appropriately remedied by later correction of the caption on the court's own motion. See Williams v. Fireman's Fund Insurance Co., 670 P.2d 453 (Colo.App. 1983).
Here, it is undisputed that the Industrial Commission received proper and timely service of the petition and designation of parties. Therefore, we hold that the defect in the caption was technical at most and the previous order to dismiss is vacated. The clerk of this court is instructed to amend the caption to show the Industrial Commission of Colorado as a party, and the caption is herewith so amended.
The motion for rehearing is granted, the order of dismissal is withdrawn, and the petition for review is hereby reinstated. The respondents are given ten days from the date of this order to file an answer to claimant's petition.
CHIEF JUDGE ENOCH and JUDGE BERMAN concur.