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holding that "[t]he cause of action created by [the Wrongful Death Act] arises out of tortious acts which injured the decedent and resulted in the decedent's death; the survivors' right of action is derivative of and dependent upon the right of action which the decedent would have had, had she survived the injuries."
Summary of this case from In re Xarelto (Rivaroxaban) Prods. Liab. Litig. 2:19-Cv-13139Opinion
No. 93SC251
Decided June 30, 1995
Certiorari to the Colorado Court of Appeals.
JUDGMENT AFFIRMED.
Fortune Law Firm, P.C., Lowell Fortune, Denver, Colorado, Attorneys for Petitioners.
James D. King Associates, P.C., James F. Scherer, Denver, Colorado, Attorneys for Respondents.
Turner and Meiklejohn, P.C., Scott A. Meiklejohn, Denver, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.
The respondents Ray and Paula Keefe brought this action against Pizza Hut of America, Inc., Orson Thomas and Ronald Pulda (collectively "petitioners" or "Pizza Hut"), seeking damages for the wrongful death of their child, Shanae Keefe. The trial court ruled that the damage claims were barred by the exclusive remedy provision of the Colorado Workers' Compensation Act, section 8-41-102, 3B C.R.S. (1994 Supp.) (the "Act"). The court of appeals held that the exclusive remedy provision did not apply to the wrongful death claim because the wrongful death of the child was not "for and on account of" the personal injury of the employee, and the judgment was reversed and cause remanded with directions.
We granted certiorari to determine whether the exclusive remedy provision of the Act bars a tort claim against an employer for prenatal injury occurring in the workplace. Because we find that a non-employee child who suffered prenatal injuries as the result of the negligence of the mother's employer is not limited to remedies available under our workers' compensation law, we affirm the judgment of the court of appeals.
Our order granting certiorari set forth the following question for review: "Does the exclusive remedy provision of the Colorado Workers' Compensation Act bar a tort claim against an employer for prenatal injury occurring in the workplace?"
I
Paula Keefe was employed by Pizza Hut from August 1990 to March 1991 as an assistant manager. Orson Thomas and Ronald Pulda were Paula Keefe's supervisors. Paula Keefe learned she was pregnant in August 1990 and in October 1990 she began suffering medical complications related to her pregnancy. In response to these complications, her treating physician imposed a series of work restrictions, limiting her hours of work and the types of tasks she was allowed to perform. Despite those and other medical precautions, her daughter Shanae Keefe, was born three months prematurely and died ten days later of medical complications arising from her premature birth. The Keefes claim that Pizza Hut coerced Paula to work hours and perform tasks in violation of her medical work restrictions, resulting in Shanae's premature birth and subsequent death.
On April 18, 1991, respondents brought a wrongful death action against Pizza Hut, Orson Thomas and Ronald Pulda in the District Court for the City and County of Denver under section 13-21-202, 6A C.R.S. (1987). In their complaint respondents alleged that Pizza Hut coerced Paula to perform her normal work despite knowing about her medical restrictions. Respondents claimed damages for the premature birth and subsequent death of their child. In addition, respondents sought personal damages for emotional distress under an outrageous conduct theory. The complaint alleged that the mother sustained "bodily injury of a severe and permanent nature" because of the employer's wrongful conduct.
Section 13-21-202 provides in relevant part:
Action notwithstanding death. When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages not withstanding the death of the party injured.
Pizza Hut filed a motion for summary judgment claiming that the Keefes' wrongful death action was barred by the exclusivity provisions of the Act. The trial court awarded summary judgment to Pizza Hut on all counts, concluding that Pizza Hut was immune from liability under the Act.
The court of appeals reversed the judgment of the trial court in Keefe v. Pizza Hut of America, Inc., No. 91CA2005 (Colo.App. Jan. 28, 1993) (not selected for publication), and remanded the case to the trial court with directions. The court of appeals found that the workers' compensation statute by its terms did not operate to bar a tort claim against an employer for the wrongful death of an employee's child. The court of appeals reasoned that "section 8-41-102 would not bar a claim against an employer by an employee's child for injuries sustained while visiting the employee at the work place because there would be no injury to the employee." Id. slip op. at 3. For similar reasons, the court of appeals found that the exclusive remedy provision would not bar an employee's claim for the death of a child visiting the workplace, reasoning that a wrongful death claim is not "for and on account of" the personal injury or death of the employee, but rather is for and on account of the child's death. Id. slip op. at 3-4. Finding that the wrongful death claim derived from the injuries and death of a non-employee, the Keefes' child, and not an injury to Paula Keefe, the employee the court of appeals concluded that the claim was not barred by the exclusive remedy provision. Id.
Because the child died after birth, leaving the parents with a wrongful death claim separate and distinct from any claim a parent may have for personal injuries, we affirm the judgment of the court of appeals.
II
It is well-settled in Colorado that an injured worker's exclusive remedy for injuries that arise out of or in the course of employment and are proximately caused by the employment is recovery under the workers' compensation statute, section 8-41-102, 3B C.R.S. (1994 Supp.), which reads as follows:
Liability of employer complying. An employer who has complied with the provisions of [the Colorado Worker's Compensation Act], including the provisions relating to insurance, shall not be subject to the provisions of section 8-41-101 [abrogating defenses of assumption of the risk and negligence of employee of fellow servant]; nor shall such employer or the insurance carrier, if any, insuring the employer's liability under said articles be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.
(Emphasis added.) The exclusivity provision effectively abolishes all claims accruing to any person on account of injury to an employee. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Continental Sales Corp. v. Stookesbury, 170 Colo. 16, 459 P.2d 566 (1969). Where the statutory bar applies, it constitutes a complete defense to civil tort liability of an employer.
Under the exclusive remedy provision of the Act, certain injuries or damages sustained by non-employees are barred if they "derive from" the injury to the employee. This principle, known as the derivative-injury doctrine, is based upon the language in the statute barring claims "for and on account of" death of or personal injury to an employee and "accruing to any person." Under the derivative-injury doctrine, a non-employee's claims may be barred even though the workers' compensation law provides no substitute remedy to the injured non-employee, as it does to the injured employee. See Bell v. Macy's California, 261 Cal.Rptr. 447, 455 n. 7 (Cal.Ct.App. 1989).
We have previously applied the derivative-injury doctrine to bar recovery by certain non-employees. For example, a wrongful death action brought against an employer by an employee's heirs, based upon the death of an employee which occurred in the course and scope of the employee's employment, is barred by the statute, since such an action is for and on account of the death of an employee. See Ryan v. Centennial Race Track, Inc., 196 Colo. 30, 35, 580 P.2d 794, 797 (1978). Similarly, the exclusive remedy provision of the Act bars contribution and indemnity claims against an employer by third parties who are liable to an injured employee, as these claims also arise out of the death of or personal injury to an employee. See Williams v. White Mountain Constr. Co. Inc., 749 P.2d 423, 428 (Colo. 1988); Hilzer v. MacDonald, 169 Colo. 230, 237, 450 P.2d 928, 931-32 (1969). The derivative-injury doctrine also precludes civil actions by an employee's spouse against an employer for loss of consortium arising out of personal injuries suffered by the employee in the course of his or her employment. The rationale of such preclusion is that the spouse's rights in such cases are strictly derivative of, and arise out of, the personal injury suffered by the employee. See Alexander v. Morrison-Knudsen Co., 166 Colo. 118, 124, 444 P.2d 397, 400 (1968), cert. denied, 393 U.S. 1063 (1969); Rodriguez v. Nurseries, Inc., 815 P.2d 1006 (Colo.App. 1991).
The exclusive remedy statute by its terms does not apply, however, to the civil tort liability of employers for negligence or wrongful acts resulting in injury or death to persons not employed when the non-employee's claims do not derive from the injury to the employee. Thus, we must determine whether the injuries and the subsequent death of Shanae Keefe derived from an injury to her mother.
Colorado, like other jurisdictions, recognizes a child's right to bring a cause of action for prenatal injuries. See Empire Casualty Co. v. St. Paul Fire and Marine Ins. Co., 764 P.2d 1191, 1196 (Colo. 1988); see generally Restatement (Second) of Torts § 869 (1979); William L. Prosser, Torts § 55 (5th ed. 1984); Roland F. Chase, Annotation, Liability for Prenatal Injuries, 40 A.L.R.3d 1222 (1971). If a child dies after birth as a result of prenatal injuries, a surviving parent may bring a wrongful death claim derived from the child's injuries. See Callaham v. Slavsky, 153 Colo. 291, 385 P.2d 674 (1963); Prosser § 55. Thus, for purposes of our analysis, it makes no difference that Shanae Keefe's injuries were sustained before her birth.
Pizza Hut contends that a fetus in utero is inseparable from its mother and any injury to the child therefore can only occur as the result of some injury to the mother. The facts of this case do not require us, however, to answer today the difficult question of whether a fetus is a separate and distinct person from the mother, since in this case, the baby was in fact born and hence was at the time of her death a separate person.
We also find that there is no difference, for the purpose of determining the applicability of the exclusive remedy statute, between an action for prenatal injury to an employee's child, and a wrongful death action for prenatal injury to an employee's child which results in the child's death. Therefore, the issue under consideration here is whether the Keefes' daughter would have had a right of action against Pizza Hut for her injuries had she survived those injuries.
The petitioners contend that since the mother also claimed an injury in this case, it follows that immunity is grounded upon the employee mother's injury in the workplace. We conclude, however, that regardless of whether the mother was injured, the injury to the child was separate and distinct and subjects the employer to separate liability. In this case, the child's right of action arises out of and on account of her own personal injuries, and not any personal injury suffered by the mother. The mother and child happened to be injured at the same time — the fact that the mother may have been injured, however, is not a bar to tort recovery for the child or a basis for limiting the child's recovery to the workers' compensation law. The exclusivity provisions do not constitute a bar to a claim asserted by a third-party victim, even though both the employee and the victim were injured together as a result of the same negligent act in a single transaction.
Legally, the child, when born, stands in the same position as any other non-employee member of the public. Civil actions for recovery of damages for personal injuries to non-employees whose injuries are not derivative of an employee's injuries, including non-employee children of employees, are not affected by the language of section 8-41-102. For example, section 8-41-102 would not bar a claim against an employer by an employee's child or any other non-employee for injuries sustained while visiting the employee at the workplace, because there would be no injury to the employee. See Thompson v. Pizza Hut of America, Inc., 767 F. Supp. 916, 918 (N.D. Ill. 1991); Bell, 261 Cal.Rptr. at 453 (1989); Cushing v. Time Saver Stores, Inc., 552 So.2d 730, 732 (La.App. 1989), cert. denied, 556 So.2d 1281 (La. 1990). It follows that section 8-41-102 does not bar a claim by a non-employee child who sustained prenatal injuries at the workplace. While we agree with the petitioners that the underlying policy of the exclusivity provisions of the Act is to provide a no-fault system of compensation which limits the employer's overall liability, we note that the Act does not alter the employer's liability to non-employees so injured as the result of the employer's negligence. Accordingly, we conclude that the exclusionary language of section 8-41-102 does not apply to Shanae Keefe.
Our holding is consistent with a majority of other jurisdictions which have addressed this issue. See, e.g., Thompson, 767 F. Supp. at 918-19 ("to have status to bring the cause of action it makes no difference whether or not the fetus is viable at the time the injury occurs"); Namislo v. Akzo Chemicals, Inc., 620 So.2d 573, 575 (Ala. 1993) (exclusivity provisions of Workers' Compensation Act did not bar personal injury action of employee's daughter against employer for injuries daughter claimed to have sustained in utero as a result of employer's negligence); Cushing, 552 So.2d at 732 (a child who sustains injuries while in utero "is entitled to assert a cause of action in tort against his mother's employer in the same way that a child already born, who was injured on the mother's job site, could assert such a claim"); Womack v. Buchhorn, 187 N.W.2d 218, 222 (Mich. 1971) (common law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy); Witty v. American General Capital Distributors, Inc., 697 S.W.2d 636, 641 (Tex.App. 1985) (Texas Worker's Compensation Act does not bar a claim asserted by a third-party victim, including an unborn fetus, even though both the employee and the victim were injured together as the result of the same negligent act of the employer), rev'd on other grounds, 727 S.W.2d 503 (Tex. 1987). But see Bell, 261 Cal. Rptr. at 454 (fetus in utero is inseparable from its mother, and any injury to it can only occur as a result of some condition affecting its mother). Although the workers' compensation exclusive remedy statutes from other jurisdictions are not always worded in precisely the same way as the Colorado statute, the analysis applied in those cases typically does not turn on the exact language of the statute, but rather depends on the scope of the derivative-injury doctrine. The appellate decisions of other states are therefore helpful.
III
The Keefes' wrongful death claim was brought pursuant to the provisions of section 13-21-202, 6A C.R.S. (1987). Section 13-21-201 transfers the cause of action created by section 13-21-202 to the decedent's heirs, who in this case are the decedent's parents. The cause of action created by this statute arises out of tortious acts which injured the decedent and resulted in the decedent's death; the survivors' right of action is derivative of and dependent upon the right of action which the decedent would have had, had she survived her injuries. The derivative nature of the wrongful death action here places it outside the parameters of the exclusionary language contained in section 8-41-102, because the claim against the employer is not derivative of any personal injury to the employee mother herself, but rather is derived from, and based upon, an injury to the employee's child. Thus, the Keefes are not barred from bringing suit against Pizza Hut on their daughter's behalf. Accordingly, we affirm the judgment of the court of appeals.
CHIEF JUSTICE ROVIRA dissents, and JUSTICE ERICKSON and JUSTICE VOLLACK join in the dissent.