State v. Nieto

Justice HOBBS,

concurring in part and ■ dissenting in part:

I concur with the judgment of the court that: (1) the Governmental Immunity Act, section 24-10-106(1), 7 C.R.S. (1999), waives the state’s immunity with regard to operation of a correctional facility; (2) the state was not immune from respondeat superior liability for Nieto’s injuries under the Governmental Immunity Act, sections 24-10-106(2) and (3), 7 C.R.S. (1999), for the negligent actions of guard Farrell; and (3) the trial court should not have dismissed Nieto’s claims under 42 U.S.C. § 1983 against nurse Norman and guard Farrell. I dissent from that portion of the majority’s opinion and judgment requiring dismissal for failure to file a certificate of review of Nieto’s respondeat superior medical negligence claim against the state based on Norman’s conduct.

I. Construction of the Waiver of Immunity and Certificate of Review Statutes

First, I take issue with the majority’s application of the rules of statutory construction from which it launches its resort to legislative history. While I agree that to ascertain legislative intent in construing a statute, we look first to the statute’s plain meaning, see Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997), the majority fails to follow that rule here. As the majority correctly notes, if courts can apply the “ordinary meaning of words used by the legislature, the statute should be construed as written, giving full effect to the words chosen.” Maj. op. at 500.

Our prevailing rule of construction is that “we are not to presume that the legislative body used the language idly and with no intent that meaning should be given to its language.” See Colorado Ground Water Comm’n v. Eagle Peak Farms, 919 P.2d 212, 218 (Colo.1996)(quoting McMillin v. Colorado, 158 Colo. 183, 188, 405 P.2d 672, 674 (1965)). We must respect the words chosen by the General Assembly. See Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332, 1341 (1997). When interpreting two statutory sections, we must attempt to harmonize them in order to give effect to their purposes. See Ragsdale Bros. Roofing, Inc. v. United Bank, 744 P.2d 750, 752 (Colo.App.1987); Ortega v. Industrial Comm’n, 682 P.2d 511, 512 (Colo.App.1984).

The danger of too readily undertaking ambiguity analysis is that we may engage in result-oriented policy choice, rather than construing statutes based upon their provisions, or, when there are seemingly contradictory provisions, reconciling them to effectuate the General Assembly’s purpose. In the case at issue here, we can give effect to the plain meaning of the legislature’s words, without discovering an ambiguity or absurd result that requires resort to legislative history. Moreover, even if we were to consult legislative history, the majority’s use of it here is selective. First, the legislative history of the 1987 debates about the certificate of review statute does not support the majority’s conclusion, in my view. Second, the majority fails to address the more recent and relevant 1998 clarifying amendment or its legislative history. This places the court in the curious position of ignoring the act of clarification that the legislature undertook in response to the court of appeals opinion in this very case.

I agree with the majority that the Assembly has waived the state’s immunity for injuries arising from the state’s operation of a correctional facility. See Maj. op. at 506. Although I join the court in its decision to return this case for retrial on the 42 U.S.C. § 1983 claims against Norman and Farrell, *511the court could and should let stand the trial court’s award of $150,000.00 in regard to the state’s respondeat superior liability for the negligent conduct of Fan-ell and Norman. In my view, the plain meaning of the statute as it existed at the time of the occurrences in the case, and the language of the Assembly’s 1998 amendments— by which it clarified its intent to apply the certificate of review requirement to a “firm” or “company” employing medical professionals, see section 13-20-602(l)(b), 5 C.R.S. (1998)— does not include the state.

The terms “company or firm” are specific terms describing particular legal entities and do not embrace the state or its political subdivisions. The legislature did not opt to employ a broader term such as “person,” “public entity,” “state,” or “employer” in this amendment; terms it normally uses when it intends to refer to the state. The Assembly’s word choice is especially significant because, in contemplating the amendment, the legislature had before it the court of appeals’ opinion in this case, to which the State is a party.

Thus, I would remand for trial only the section 1983 claims, and I would uphold the jury’s $1.8 million damages award on the respondeat superior negligence claims, as reduced to $150,000.00 by the trial judge under the damages limitation provisions of the Governmental Immunity Act, section 24-10-114(l)(a), 7 C.R.S. (1999).

A. Waiver of State Immunity for Respon-deat Superior Liability in the Operation of Correctional Facilities

I begin by concurring with the majority’s application of the plain meaning rule to section 24~10-106(l)(b), 7 C.R.S. (1999); this provision waives governmental immunity for liability and damages for injuries arising from the negligent operation of a correctional facility. As the court holds, this statute provides that governmental immunity for common law negligence claims “is waived by a public entity in an action for injuries resulting from ... the operation of any ... correctional facility,” Maj. op. at 507; § 24-10-106(l)(b). Section 24-10-118(2), 7 C.R.S. (1999), must therefore be construed as not intending the immunity of public employees Farrell and Norman. Indeed, applying both of these statutory provisions, the majority determines that “the individual defendants,” 1.e., Farrell and Norman, “are not immune from liability.” See Maj. op. at 506.

I agree that the State’s waiver of sovereign immunity is intact for the negligent conduct of the nurse and the guard.1 The legislature’s choice to waive immunity for negligence suits arising from the operation of correctional facilities is plain and its purpose apparent. The legislature’s waiver of immunity recognizes that prisoners have no choice in the provision of basic necessities of life, such as food, clothing, and medical care. I read the majority’s holding as acknowledging that, in the correctional facility setting, the state has accepted respondeat superior liability for the negligence of its employees, including the failure to provide necessary medical care.

Yet, while the majority upholds the state’s respondeat superior liability for the negligence of guard Farrell, who is not a medical practitioner and to whom the certificate of review statute does not apply under the majority’s own analysis, it nonetheless requires a new trial on both liability and damages with regard to guard Farrell’s negligent conduct. The jury found the state negligent based upon the actions of both Farrell and Norman. See Jury’s Answer 2 to Special Verdict Form B.2 I would uphold the reduced $150,000.00 award for the respondeat *512superior negligence of the state based on the jury’s finding.3

B. Inapplicability of the Certificate of Review Requirement to the State

The majority apparently concludes that state liability would exist under the facts of this case, and the jury verdict as to nurse Norman’s conduct would be valid, were it not for the certificate of review requirement. Because the majority does not apply the plain meaning of the certificate of review statute, prior to and after the 1998 clarifying amendment, I explicate my view of the statute’s meaning.

In my view, as the court of appeals correctly determined, the lack of a certificate of review is not a valid defense for the state under the facts of this case. See Nieto v. State, 952 P.2d 834, 838 (Colo.App.1997). The requirement that a plaintiff file a certificate of review prior to initiating a lawsuit applied only to “each licensed professional named as a party.” See § 13-20-602(1), 5 C.R.S. (1989). As the court of appeals ascertained, the state is not a licensed professional within the ordinary meaning of the statute. The court reasoned that section 13-20-602 requires a certificate of review to be filed in an action based on professional negligence only “for each licensed professional named as a party,” within sixty days of service “against such” licensed professional. Nieto, 952 P.2d at 838.

Unlike the doctrine of immunity, which, when applicable, bars the lawsuit, the certification requirement operates as a legal defense for licensed professionals accused of medical malpractice. See, e.g., Lakewood v. Brace, 919 P.2d 231, 245 (Colo.1996)(distin-guishing immunity from suit from defenses to liability). As the majority correctly notes, “[ijmmunity means that the person or entity is incapable of being sued, regardless of fault or wrongdoing,” whereas “an affirmative defense is a legal argument that a defendant ... may assert to require dismissal of a suit.” Maj. op. at 507 (citations omitted). Under the statute as it existed when the facts of this case arose, only licensed professionals could move to dismiss the complaint for “failure to file a certificate of review.” See § 13-20-602(2),(4), 5 C.R.S. (1989).

I reach this conclusion because: (1) section 13-20-602(1), as it existed in 1991 at the time of the events in this action, established that the certificate of review shall be filed for “each licensed professional named as a party ... within sixty days after the service of the complaint ... against such licensed professional,” see ch. 129, sec. 1, § 13-20-602, 1989 Colo. Sess. Laws 750; and (2) section 13-20-602(2) provided that “the licensed professional defending the claim” may move the court for an order “requiring filing of such a certificate” if the licensed professional “believes that an expert is necessary to prove the claim of professional negligence.” Section 13-20-602(4) then provided for dismissal of the claim for failure to file a certificate of review “in accordance with this section.” The majority opinion fails to acknowledge that 13-20-602(2) was a part of the section to which subparagraph (4) refers. Subpara-graph (2) is quite specific: the licensed professional defending the claim alone has standing to seek the court’s order for filing of the certificate if the plaintiff did not accomplish this within sixty days of the service of the complaint upon that party, as provided in subparagraph (1).

Thus, the repeated references to a “licensed professional” in the statute had personal and specific procedural import. Prior to the clarifying amendment, the statute did not clearly indicate its intent to include the employers of licensed professionals. See Nieto, 952 P.2d at 838. The court of appeals opinion logically explains that the certificate of review provisions were originally intended by the legislature to address the deleterious effect that a malpractice case can have upon a licensed professional. See id. at 838-39.

Negligence lawsuits can impose many burdens upon a licensed professional defendant. First, the professional is subject to discipline if they fail to report to the appropriate li*513censing board a malpractice judgment or settlement. Second, the underlying facts of the claim can lead to discipline by the board. Employers of licensed professionals, on the other hand, are not subject to licensing board reporting requirements or discipline. In sum, requiring a certificate of review only as to suits against licensed professionals balances the unique impact of these lawsuits upon a licensed professional, when sued individually, against the burden on injury victims of complying with additional procedural requirements before discovery has even commenced. See id.

C. The Clarifying Amendment

In 1998, the General Assembly amended section 13-20-602(1) to require that a certificate of review be filed with respect to every action against “a company or firm that employed” the licensed health care professional “even if such person is not named as a party in such action.” § 13-20-602(l)(b), 5 C.R.S. (1998).4 The majority addresses only the pre-1998 statute, see Maj. op. at 503 n.6, and leaves the effect of the 1998 Amendment open to future interpretation. However, I believe we should view the 1998 legislation as a clarifying amendment controlling application of the statute to this case, because the General Assembly was specifically confronting the issue of employer liability in. the course of addressing the court of appeals’ decision in Nieto. At that point, the legislature chose to clarify the certificate of review requirement as applying only to the respon-deat superior liability of a “company or firm.” See section 13-20-602(l)(b). The state is neither of these entities.

We should give effect to the General Assembly’s word choices, particularly as the court is aware that the legislature had the matter of the state’s respondeat superior liability before it and chose to address instead only the potential liability of “firms” and “compan[ies]” employing licensed professionals. See Eagle Peak Farms, 919 P.2d at 218 (“Our inquiry must focus initially on the language” of the act).

The conscious choice of the legislature is even more evident when we consider that it has frequently distinguished the state from non-state legal entities when drafting regulatory statutes. For example, legislatively-prescribed statutory construction principles provide that the state is included within the meaning of the term “person” when that word is used in a statute. See § 2-4-401(8), 1 C.R.S. (1999)(“ ‘Person’ means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity”). Likewise, when the term “public entity” appears, as in the Governmental Immunity Act, it is defined to include the “state” and other governmental subdivisions. See § 24-10-103(5), 7 C.R.S. (1999). Thus, the state could have been included in the clarifying amendment if the Assembly had chosen to use the term “person,” “public entity,” or even “employer.” See, e.g., § 24-34-401(3), 7 C.R.S. (1999). Despite its frequent use of these terms throughout the Colorado Revised Statutes, it did not select any of them for the certificate of review statute.

To the contrary, the Assembly tailored narrower language; the phrase “firm or company.” This choice demonstrates that it intended an entity different from the state or its subdivisions. Typically in our statutes, the words “firm” and “company” are used separately from “governmental entity,” indicating that they are normally considered distinct from each other. For example, section 12-28-101(9) of the professions and occupations code defines “person” to include “an individual,, partnership, firm, company, association, corporation, or governmental entity.” § 12-28-101(9), 4 C.R.S. (1999)(emphasis added). Similarly, section 2-4-401 defines “person” broadly, but distinguishes “government or governmental subdivision or agency” from “corporation” or “association,” and includes a catch-all reference to any “other legal entity.” § 2-4-401(8). The certificate *514of review statute notably includes no catch-all phrase, or, indeed, any of the terminology commonly used in our statutes when inclusion of a governmental entity such as the state is intended.5

We presume that the legislature normally intends statutory amendments to effectuate a change in the pre-existing law. See People v. Davis, 794 P.2d 159, 181 (Colo.1990). However, a court may find that a legislative amendment was meant to clarify a previously existing statute when the legislative history, or the language of the statute as amended, clearly indicates an intent to do so. See Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1385 (Colo.1997). Here, the state has also argued that the legislature intended to clarify the existing law. See State’s Opening Brief at 10-11 (“C.R.S.13-20-602(l) was amended on April 22, 1998 when House Bill 98-1372 became law. This amendment makes it clear that this statute also applies to an action brought against companies or firms of licensed professionals. C.R.S. 13-20-602(l)(b). This new section was drafted to clarify an ambiguity rather than change the law and therefore it illustrates the proper interpretation of this earlier statute for the purpose of this action.”). By this argument the state either assumed, without analysis, that “firm” or “company” includes the state, or else it has candidly pointed out here that the statutory language encompasses only firms and companies employing licensed professionals.

In either event, the majority’s opinion ignores the plain language of the clarifying amendment, the focus and wording of which did not concern the state, although the state’s respondeat superior liability was plainly at issue in the Nieto decision it had before it. The legislature chose instead to clarify its intent to apply the certificate of review requirement to non-state employers of licensed professionals, e.g., to firms and companies.

D. Legislative History

I would not resort to legislative history in view of the plain wording of the Assembly’s statute. Because the majority has done so, however, I point out that at no point in the legislative history set forth in the majority opinion, or in the briefs by the parties, did the General Assembly focus upon the state’s respondeat superior liability. At the time of the 1998 clarifying amendment, because of the Nieto litigation, the testimony of witnesses and legislators addressed the problems faced by professional firms and companies that employ licensed professionals. For example, Representative Swenson, a sponsor of the amendment, testified that:

The purpose of this Bill is to clarify some of the language that has resulted in the statute not being uniformly applied by the courts. Some of [the] points of this Bill are [that] liability claims are most frequently filed against the firm, and occasionally principals or employees are named. In a professional liability insurance policy the named insured is defined as the firm, and all professional staff and employees. So when a professional engineer seals a drawing, it is done on behalf of the firm.

See Testimony of Representative Bill Swen-son Before the House Jud. Comm., Feb. 27, 1998, regarding H.B. 1372 (emphasis added). Several witnesses also testified about the meaning of the bill for their practice as licensed professionals in the private sector. Byrum Lee, an attorney, noted his interest in the bill because it “may apply to me and my firm.” Testimony of Byrum Lee Before the House Jud. Comm., Feb. 27, 1998. Lee argued to the Committee that “this measure that the legislature in its wisdom passed in 1984 to preclude those frivolous suits should extend to both the licensed professional and the firm, employing that professional." Id. (emphasis added). In response to his comments, Representative Kreutz asked him “how does someone write a certificate of review on a company? ” Testimony of Rep. *515Kreutz Before the House Jud. Comm., Feb. 27, 1998 (emphasis added). These passages show that the discussion prior to the passage of the clarifying amendment concerned non-state employers and their exposure to liability, rather than the state’s.

II.

Accordingly, I would affirm the court of appeals judgment, and I respectfully concur in part and dissent in part as to the court s opinion and judgment.

Justice MARTINEZ joins in this concurrence and dissent.

. Instruction No. 10 of the trial judge to the jury provided: "The nurse and employees of the Delta Correctional Center were the agents of the defendant, State of Colorado, Department of Corrections, at the time of this occurrence. Therefore, any act or omission of Ae agent, if it was wiAin Ae scope of the agents' auAority, was in law the act or omission of the defendant, State of Colorado, Department of Corrections.”

. The verdict form recites Ae following:

"2. Was Ae defendant, the State of Colorado Department of Corrections, negligent? (Yes or No)
ANSWER: Yes.”

. At most, remand should be on damages alone, rather than requiring a new trial as to the state's liability for Farrell’s conduct.

. The relevant provision, as revised, states: "(b) A certificate of review shall be filed with respect to every action described in paragraph (a) of this subsection (1) against a company or firm that employed a person specified in subsection (a) [the licensed professional] at the time of the alleged negligence, even if such person- is not named as a party in such action.”

. I also find it instructive in this regard that many other provisions of state law limit the state’s exposure to tort liability, both by limiting the subject matter of the cases considered, see section 24-10-106 (listing exceptions to the state’s immunity from suit), and by limiting the damages which may be awarded against the state. See § 24-10-114(l)(b), 7 C.R.S. (1999)(maximum award $150,000 for injury to one person in any single occurrence).