Radil v. Sanborn Western Camps, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

SEP 22 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JENNIFER RADIL,

Plaintiff - Appellant,
v. No. 03-1343
SANBORN WESTERN CAMPS,
INC., a Colorado corporation,

Defendant - Appellee,
_______________________________

COLORADO TRIAL LAWYERS
ASSOCIATION,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 01-MK-536 (MSK))

Thomas L. Roberts (Bradley A. Levin, Daniel W. Patterson, and Michael J.
Rosenberg with him on the briefs), Roberts Levin & Patterson, P.C., Denver,
Colorado, for Plaintiff-Appellant.

Diane Vaksdal Smith (Peter W. Burg and David K. TeSelle with her on the brief)
Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, Colorado, for
Defendant-Appellee.
James M. Wagstaffe and Ivo LaBar, Kerr & Wagstaffe LLP, San Francisco,
California, filed an Amicus Curiae brief on behalf of the Colorado Trial Lawyers
Association, in support of Plaintiff-Appellant.

Before SEYMOUR , McKAY , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

Plaintiff-appellant Jennifer Radil was seriously injured in an automobile

accident during an outing with her coworkers. She applied for and was denied

Colorado workers’ compensation benefits. She then filed this respondeat superior

diversity suit against her employer under 28 U.S.C. § 1332 (2000). The district

court dismissed her suit for lack of subject matter jurisdiction under Federal Rule

of Civil Procedure 12(b)(1) because it concluded that her exclusive remedy was

through state workers’ compensation proceedings. The district court found that

because Radil was injured in the scope of her employment, the negligence claims

against her employer were barred by state law.

We take jurisdiction of Radil’s appeal under 28 U.S.C. § 1291 (2000). In

this appeal, we have to decide whether the district court erred in concluding that

it lacked subject matter jurisdiction to hear Radil’s negligence claims. We

conclude the court has jurisdiction, and, therefore reverse and remand.

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 I. Factual and Procedural Background

A. Factual Background

During the summer of 2000, Radil worked as an assistant counselor for

High Trails Camp, a girls’ summer camp owned and operated by defendant

Sanborn Western Camps, Inc. (“Sanborn”) in Western Colorado. All of the

assistant counselors were young women who had finished their first year in

college. Their employment term consisted of two five-week summer camp

sessions.

The assistant counselors performed many duties, including preparing and

cleaning up after meals, assisting with camp activities, and helping counselors

supervise campers. In addition, they were on call at all times to provide

leadership and supervision, as well as to respond to “current and emergency

situations.” App. at 1370. Their time off during the summer included four days

of general leave and alternating weekend leave.

Katie Pigott supervised the assistant counselors. Her supervisors were

Camp Director Janet Sanborn Van West and Assistant Camp Director Julie

Richardson. These three leaders designated July 10, a day approximately halfway

through the summer, as “Assistant Counselor Appreciation Day.” According to

Pigott, Van West, and Richardson, the purpose of this special day was to improve

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morale. The assistant counselors were thus offered a choice of activities to do as

a group. The twelve women chose to participate in a white-water river-rafting

trip partially paid for by Sanborn.

Thereafter, Richardson selected a location and an outfitter for the rafting

trip and made a reservation. The camp agreed to pay fifteen dollars towards the

cost of the trip, leaving a fifteen dollar cost to be paid by each assistant

counselor. Although the camp initially agreed to provide transportation via camp

vans, later the camp informed the women that no vans would be available and that

they would have to provide their own transportation.

On the morning of the outing, only two of the twelve participating women

were able to drive personal vehicles. Four women climbed into one assistant

counselor’s car, while the other seven women rode in the other vehicle—a Jeep

Cherokee driven by Dana Richardson. Two women, including Radil, rode without

seatbelts in the rear cargo compartment of the Jeep. En route, Dana Richardson

lost control of her vehicle. It rolled and in the process ejected Radil, leaving her

a quadriplegic.

B. Procedural Background

Shortly after the accident, Radil filed a workers’ compensation claim

against Sanborn under Colorado law. In Colorado, workers’ compensation

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benefits enure only “[w]here, at the time of the injury, the employee is performing

service arising out of and in the course of the employee’s employment.” Colo.

Rev. Stat. § 8-41-301(1)(b) (1999) (the “Colorado Act”). Pinnacol Assurance,

Sanborn’s workers’ compensation insurer, denied recovery after Sanborn

represented to Pinnacol that Radil’s injuries were not work-related and did not

occur in the scope and course of her employment. See App. at 1226. Therefore,

because she could not receive workers’ compensation, in March 2001 Radil filed

a federal diversity action against Sanborn in the District of Colorado, alleging that

Sanborn had been negligent in planning and organizing transportation for the

activity and that Sanborn was vicariously liable for Dana Richardson’s negligent

driving. 1

Sanborn filed three pretrial motions. In the first of these, a motion for

summary judgment filed in April 2002, Sanborn asserted that it was immune from

liability because either Radil’s injuries were work-related and therefore Colorado

workers’ compensation law provided Radil’s exclusive remedy or, alternatively,

Radil’s injuries were not work-related and Sanborn owed no duty of care to Radil.

See App. at 530. In September 2002, the district court denied this motion after

reviewing the record and concluding that genuine issues of material fact existed

Radil also included Dana Richardson as a defendant in her original
1

complaint, but claims against her are not at issue in this appeal.

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regarding whether Radil’s injuries arose out of and in the course of her

employment.

On February 17, 2003, Sanborn filed an Application for Hearing and

Notice to Set with the Colorado Division of Administrative Hearings (the

“Division”), seeking to reactivate Radil’s workers’ compensation proceedings and

to force the Division to rule again on the question of compensability in advance

of the federal jury trial scheduled to commence in June 2003. Id. at 561. Three

days later, Sanborn filed its second pretrial motion—a motion to stay the federal

trial pending the resolution of the newly reactivated state workers’ compensation

proceedings. Id. at 537. In the alternative, Sanborn asked the district court to

hold an evidentiary hearing to determine whether Radil’s injuries occurred within

the scope of her employment. Id.

This second attempt by Sanborn to eliminate the case from federal court

failed, however, because on May 2, 2003, the Division stayed the state workers’

compensation proceedings pending resolution of the district court case. Id. at

777. Then, on May 9, the district court denied Sanborn’s motion to stay. First, it

found that because the state agency had stayed its proceedings pending resolution

of the district court case, no reason existed for the district court to defer the

litigation. Id. at 806. Second, it held that it would violate Radil’s Seventh

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Amendment right to a jury trial to decide the scope of Radil’s employment after

only an evidentiary hearing. Id. at 814.

Finally, on April 22, 2003, Sanborn made its final attempt to extinguish the

case by filing a motion to dismiss for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(b)(1). Sanborn maintained that under Stuart

v. Colorado Interstate Gas Co., 271 F.3d 1221 (10th Cir. 2001), the district court

had no jurisdiction over the suit because Colorado workers’ compensation law

provided Radil’s exclusive remedy. 2 See App. at 752. In response, Radil

contended that whether state law barred her civil suit was a factually disputed

affirmative defense. Thus, it did not present a jurisdictional question and

Sanborn bore the burden of proving the defense at trial. Id. at 787.

At the final trial preparation conference on May 14, 2003, the district court

addressed the parties’ arguments and concluded under Stuart that whether

Colorado workers’ compensation law provided Radil’s exclusive remedy was a

jurisdictional issue. Because a court must be satisfied that jurisdiction exists

before proceeding to the merits of a case, the district court determined that it had

to resolve the issue prior to trial. Id. at 824–25. It asked Radil what sort of a

2
When an employee qualifies for workers’ compensation under Colorado
law, the Colorado Act provides the exclusive remedy and bars civil tort actions
against the employer. Horodyskyj v. Karanian, 32 P.3d 470, 474 (Colo. 2001)
(citing Colo. Rev. Stat. §§ 8-41-102, 8-41-104 (2000)).

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hearing it should have regarding subject matter jurisdiction, and Radil initially

asserted that a jury was required. Id. at 825. However, she ultimately “agree[d]

to the Court determining the issue” when the court advised her that by insisting on

a jury trial for the issue of subject matter jurisdiction, she would force the court

to conduct two trials (one to determine the scope of employment to decide

whether exclusivity and consequently subject matter jurisdiction existed and one

to address the merits). Id. at 825–26. Nevertheless, in a pretrial brief she

submitted one month before the evidentiary hearing, Radil again contended that

Sanborn bore the burden of proving as an affirmative defense at trial that

workers’ compensation was Radil’s exclusive remedy. Id. at 856 n.2.

The district court held an evidentiary hearing on July 8, 2003, to determine

if it had subject matter jurisdiction over Radil’s suit. To that end, it made

findings regarding the state workers’ compensation bar. This inquiry turned on

whether the activity arose out of and in the course of Radil’s employment, which

depended in part on the voluntary or involuntary nature of Radil’s participation in

the activity. After the evidentiary hearing, the court found that all assistant

counselors were required to attend the trip and therefore that Radil’s injuries

arose out of and in the course of her employment. Thus, it concluded that

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workers’ compensation was Radil’s exclusive remedy and dismissed the suit

under Stuart for lack of jurisdiction. Id. at 1389. Radil appealed.

II. Analysis

A. Subject Matter Jurisdiction

We review the district court’s dismissal for lack of subject matter

jurisdiction de novo. Marcus v. Kan. Dept. of Revenue, 170 F.3d 1305, 1309

(10th Cir. 1999). Subject-matter jurisdiction involves a court’s authority to hear a

given type of case, United States v. Morton, 467 U.S. 822, 828 (1984), and may

not be waived. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)

(citing Ins. Corp. v. Compagnie des Bauxites, 456 U.S. 694, 702 (1982)). The

party invoking federal jurisdiction bears the burden of establishing such

jurisdiction as a threshold matter. Marcus, 170 F.3d at 1309; see also Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). Where a party attacks the

factual basis for subject matter jurisdiction, the court does not presume the

truthfulness of factual allegations in the complaint, but may consider evidence to

resolve disputed jurisdictional facts. Pringle v. United States, 208 F.3d 1220,

1222 (10th Cir. 2000).

Subject matter jurisdiction is “the courts’ statutory or constitutional power

to adjudicate the case.” United States v. Cotton, 535 U.S. 625, 630 (2002)

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(quoting Steel Co., 523 U.S. at 89); see also 16 James Wm. Moore, Moore’s

Federal Practice § 108.04 (3d ed. 2003). District and appellate courts have

limited subject matter jurisdiction and may only hear cases “when empowered to

do so by the Constitution and by act of Congress.” Moore, supra, § 108.04(2).

To establish subject matter jurisdiction under 28 U.S.C. § 1332, a party must

show that complete diversity of citizenship exists between the parties and that the

amount in controversy exceeds $75,000. Id. See generally 13B Charles Alan

Wright et al., Federal Practice and Procedure § 3602 (2d ed. 1984) (describing

the requirements of diversity jurisdiction).

The district court determined that no subject matter jurisdiction existed

under Stuart because state workers’ compensation law barred Radil’s suit. Radil

argues that the district court misconstrued Stuart, which she argues should not

have applied in her case since whether her claims against her employer were

barred by state law was a factually disputed issue.

In Stuart, a Wyoming resident was injured at a work site in Colorado.

After he applied for and received Wyoming workers compensation benefits, he

filed a federal diversity action against his employer’s contractor. The main issue

at trial was whether Wyoming or Colorado law applied, and the parties agreed

that if Colorado law were to apply, no cognizable cause of action would exist

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because the plaintiff had already obtained workers compensation benefits.

Therefore, after the district court held that Colorado law did apply, it dismissed

the case for lack of subject matter jurisdiction.

The plaintiff appealed the choice-of-law question to this Court. We

affirmed the district court’s choice-of-law decision and also explained that

dismissal was proper because “there are cases where, even if diversity of

citizenship exists, a federal court ‘will not take jurisdiction [] unless the plaintiff

has asserted a claim cognizable in the state courts.’” Stuart, 271 F.3d at 1225

(quoting 13B Wright, supra, § 3602). Because the parties had conceded that

workers’ compensation was the exclusive remedy for the plaintiff’s injuries under

Colorado law, it was undisputed that the plaintiff’s claim was not cognizable in

Colorado state court. Thus, because federal courts will not exercise diversity

jurisdiction over non-cognizable state claims, dismissal of the case was the

obvious and necessary outcome.

In contrast, the parties here have disputed the factual basis supporting the

exclusivity defense throughout the proceedings. Under Colorado law, the

defendant bears the burden of proving as a waivable, affirmative defense that

workers’ compensation is a plaintiff’s exclusive remedy. See Popovich v.

Irlando, 811 P.2d 379, 385 (Colo. 1991) (holding that a defendant bears the

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burden of establishing affirmative defenses under the workers’ compensation

statute); Lancaster v. C.F.& I. Steel Corp., 548 P.2d 914, 916 (Colo. 1976)

(referring to workers’ compensation immunity as an “affirmative defense”); Bigby

v. Big 3 Supply Co., 937 P.2d 794, 799 (Colo. Ct. App. 1996) (holding that “the

exclusivity of workers’ compensation is an affirmative statutory defense which

must be timely raised, or it is waived”). As a waivable defense, this issue does

not implicate the federal courts’ subject matter jurisdiction. See Laughlin, 50

F.3d at 873 (citing Compagnie des Bauxites, 456 U.S. at 702) (noting that subject

matter jurisdiction cannot be waived); 2 Moore’s, supra, § 8.07[3] (noting that

affirmative defenses are waivable); see also Denver & Rio Grande W. R. Co. v.

Blackett, 538 F.2d 291, 294 (10th Cir. 1976) (“[T]he application of affirmative

defenses offer[s] no jurisdictional question.”). 3

While it is true, as Sanborn points out, that Colorado courts have barred

civil suits against employers when workers’ compensation was available, in none

of these cases did the parties dispute the existence of the state law bar, as they

have done in the current case. See, e.g., Kandt v. Evans, 645 P.2d 1300, 1305-06

3
Sanborn apparently agrees. In its motion for stay of proceedings, Sanborn
asserted that exclusivity is an affirmative defense. App. at 538 (“Sanborn filed a
Motion for Summary Judgment based upon its affirmative defense that the injury
arose in the course and scope of Plaintiff’s employment and that this action was
therefore barred under Colorado’s worker’s compensation exclusivity rule.”).

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(Colo. 1982) (affirming grant of summary judgment because plaintiff had already

received workers’ compensation benefits and the fact that plaintiff was acting

within scope of employment was not disputed); Hilzer v. MacDonald, 454 P.2d

928, 931-32 (Colo. 1969) (affirming district court’s dismissal of suit against

employer because plaintiff had already received benefits); McKelvy v. Liberty

Mut. Ins. Co., 983 P.2d 42, 43–44 (Colo. Ct. App. 1998) (affirming dismissal for

lack of jurisdiction where plaintiff admitted injury occurred in the scope of

employment); Colo. Comp. Ins. Auth. v. Baker, 955 P.2d 86 (Colo. Ct. App. 1998)

(affirming dismissal for lack of jurisdiction where claimants had already received

benefits).

On the other hand, in cases where the parties have challenged the existence

of the state law bar, the issue has always been sent to the trier of fact. See J&K

Constr. Co. v. Molton, 390 P.2d 68, 73–74 (Colo. 1964) (holding that the disputed

issue with respect to the state law bar was properly submitted to the jury); United

Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1234

(Colo. Ct. App. 1996) (holding that factual issues essential to determining

whether state law bar applied should be submitted to a jury); cf. Massie v.

Godfather’s Pizza, Inc., 844 F.2d 1414, 1421 (10th Cir. 1988) (finding that the

case was properly submitted to a jury because the parties disputed the exclusive

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nature of workers’ compensation proceedings under Utah law). Thus, under

Colorado law, where the application of the state law bar is conceded, workers’

compensation law provides the exclusive remedy and civil tort suits against the

employer are barred (thus making such claims non-cognizable in state and federal

courts). Conversely, where the application of the exclusivity defense bar is

disputed, as it is here, the issue must be determined by the trier of fact.

As previously noted, the district court held twice in this case that whether

workers’ compensation provided Radil’s exclusive remedy was a disputed jury

question. Even at the evidentiary hearing, the court acknowledged that deciding

if Radil’s participation in the rafting trip was voluntary was a “difficult question.”

App. 1386. At the hearing, Radil presented numerous facts supporting her claim

that the outing did not occur within the scope of her employment, including

evidence that the trip was voluntary and the day was merely an extra day off, App.

at 941–42, 955, 978–79, 1056–57, 1071, 1085, 1180, 1194, 1196–1200; that the

one assistant counselor who stayed behind was not required to do any work, id. at

1181–82; and that the assistant counselors coordinated details of the trip,

including what they would do, who would drive, who would ride in which

vehicle, and how they would spend the rest of the day following the conclusion of

the rafting trip in early afternoon, id. at 939, 957, 980, 1180, 1183, 1186.

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Furthermore, throughout the course of the litigation Sanborn’s witnesses

consistently took the position that Radil was not entitled to benefits because the

accident happened on time off when Radil was relieved of employment duties.

See App. at 440, 442, 457, 965–66, 1036, 1157, 1334, 1335, 1336.

There is no doubt the parties hotly disputed the fact of whether Radil’s

injuries arose in the course of her employment. Consequently, under Colorado

law Sanborn should have been required to prove the state law bar to Radil’s civil

suit to a jury as an affirmative defense.

B. Waiver

Sanborn also argues that Radil has waived her argument that the district

court improperly determined whether workers’ compensation was her exclusive

remedy because she agreed to have the district court decide the issue of subject

matter jurisdiction at the May 14 pretrial conference. See App. at 825–26. We

find Sanborn’s argument unpersuasive.

It is the general rule, of course, that a federal appellate court will not

consider an issue not passed upon below. Lyons v. Jefferson Bank & Trust, 994

F.2d 716, 720 (10th Cir. 1993) (citing Singleton v. Wulff, 428 U.S. 106, 120

(1976)). Furthermore, subject to narrow exceptions not applicable here, a party

may not raise an issue on appeal unless he or she objected to the issue in the

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district court. See Farmers Ins. Co., Inc. v. Hubbard , 869 F.2d 565, 570 (10th

Cir. 1989). Although it is true that Radil eventually acquiesced to an evidentiary

hearing on the court’s subject matter jurisdiction, both Sanborn and the court

were well aware of Radil’s contention throughout the proceedings that a jury was

required to decide whether the state law bar applied. See App. 266 (Answer Br.

in Opp’n to Sanborn’s Mot. for Summ. J.), 579 (Opp’n to Sanborn’s Mot. for

Stay), 782 (Resp. in Opp’n to Sanborn’s Rule 12(b)(1) Mot.). In fact,

approximately one month prior to the evidentiary hearing, Radil stated her

objection in the following terms:

In light of the Court’s determination over Plaintiff’s objection that the
question of workers’ compensation exclusivity challenges the Court’s
subject matter jurisdiction, Plaintiff agreed to a determination of that
question by the Court rather than jury. Plaintiff submits this Trial Brief
without waiving its position that the issue is an affirmative defense for
which Defendants, not Plaintiff, bear the burden of proof and which should
be decided by the jury , along with liability and damages.

App . 856 n.2 (emphasis added) (Resp. in Opp’n to Sanborn’s Rule 12(b)(1)

Mot .). Thus, on this record we find that Radil sufficiently objected to the

evidentiary hearing. Radil therefore did not waive her argument that a jury

should have decided whether her negligence claims were barred by the workers’

compensation statute.

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C. Conclusion

Accordingly, we REVERSE the district court decision and REMAND for

further proceedings consistent with this opinion. Appellant’s motion to certify

question of state law to the Colorado Supreme Court is denied.

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