dissenting:
I respectfully dissent. Claimant, in his brief, concedes that the protected person was mentally incompetent at the time of the hearing on his claim. And, as to claims against mental incompetents, the statute unambiguously precludes testimony such as that proffered here. Thus, I would affirm the ruling and judgment of the trial court.
In DeLeon v. Tompkins, 40 Colo.App. 241, 576 P.2d 563 (1977), the plaintiff, allegedly injured as a result of decedent’s negligence, was prohibited by the trial court from testifying concerning his pain, suffering, and medical care occurring prior to decedent’s death. A majority of a division of this court reversed the trial court, holding that:
“Because the purpose of the Colorado Dead Man’s Statute [§ 13-90-102(1), C.R.S.] is not undermined by the admission of testimony which the decedent could not have contradicted of his own knowledge, we hold that the statute does not operate to bar admission of such testimony.”
On certiorari, our Supreme Court reversed this court and affirmed the ruling of the trial court, stating:
“The statute clearly prevents the [plaintiff] from testifying regarding any events occurring prior to [decedent’s] death. The court of appeals’ decision creates a judicial exception additional to those set forth in the statute and contradicts the purpose of subsection (a) thereof. As the statute is clear and unambiguous and as the competency of witnesses falls within the area of legislative prerogative, there is no room for judicial modification here.
“The majority of the court of appeals relied in part upon the belief that admission of the contested testimony would not subvert the purpose of the statute. ... Nonetheless, we agree with the dissenting opinion of the court of appeals that the courts have an obligation to apply the clear language of the statute.”
Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242 (1979) (Tompkins).
The statute in effect when Tompkins was decided by the trial court was amended in 1975 to preclude an interested party from testifying when an adverse party sues or defends as the trustee or conservator of a mentally incompetent person. Colo.Sess.Laws 1975, ch. 251 at 925.
Then, as pointed out by the majority, after Tompkins had been announced, the general assembly in 1981 amended the statute again, broadening the stated exceptions such that § 13-90-102(l)(a) now provides:
“(I) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring after the death of such deceased person.
“(II) In any such action, suit, or proceeding, a party or interested person may testify to facts occurring prior to the death of such deceased person concerning events which occurred outside such deceased person’s presence and about which such deceased person could not have testified of his own knowledge had he survived.” (emphasis supplied)
The 1981 amendment clearly and unambiguously applies only to actions in which an adverse party sues or defends as the representative of a deceased person. It does not apply to actions in which, as in the instant case, the adverse party sues or defends as the trustee and conservator of a mentally incompetent person. The general assembly, in enacting the 1981 amendment, could have included mental incompetents, but it did not do so. Therefore, as stated by the supreme court in Tompkins, “[TJhere is no room for judicial modification here,” and “the courts have an obligation to apply the clear language of the statute.”