author: Judge ROY.

text:
    Mark SMIT and Jana Smit, Plaintiffs-Appellees and Cross-Appellants, v. Darwin ANDERSON, d/b/a Eagle View Homes, Defendant-Appellant and Cross-Appellee.
    No. 01CA0122.
    Colorado Court of Appeals, Div. V.
    June 20, 2002.
    Certiorari Dismissed Aug. 29, 2002.

      Kenneth Dresner, Colorado Springs, Colorado; Walter H. Sargent, P.C., Walter H. Sargent, Colorado Springs, Colorado, for Plaintiffs-Appellees and Cross-Appellants.
    Jones & Waters, LLC., Michael R. Waters, Colorado Springs, Colorado, for Defendant-Appellant and Cross-Appellee.
   Opinion by

Judge ROY.

In this tort action, defendant, Darwin Anderson, d/b/a Eagle View Homes (contractor), a general contractor, appeals from a jury verdiet in favor of plaintiffs, Mark Smit (Smit) and his wife Jana Smit, awarding damages. Plaintiffs cross-appeal from the trial court's pretrial order dismissing their negligence per se and vicarious liability claims. We affirm.

Douglas Koldenhoven (homeowner) decided to build his own house. He approached a lender for financing and was informed that he would need a general contractor in order to qualify for a construction loan. Homeowner contacted contractor, an acquaintance, and told him that he intended to build the house himself, but needed a general contractor in order to obtain a building permit and secure construction financing. Contractor agreed to act as general contractor for the identified purposes, but told homeowner that he was too busy to do any work on the project and homeowner would have to find his own subcontractors. Homeowner assented.

Contractor then represented to the lender that he was the general contractor on the job and signed blank construction loan disbursement requests certifying that labor and materials had been contributed to the project so that homeowner could draw on the construction loan. He applied for and received the building permit, which listed his company, Eagle View Homes, as the general contractor. Contractor was not otherwise involved in the construction of the home.

During construction, homeowner used friends and acquaintances, including Smit, many if not all without construction experience, to raise a twenty-four-foot-high wall. As the friends and acquaintances raised the wall, they reached a point beyond which they could not proceed because of the size and weight of the wall, and the wall fell back on them. Smit suffered serious injuries, including a broken back, broken ribs, a broken leg, and some permanent paralysis.

Plaintiffs sued homeowner and contractor on a number of negligence theories. On a motion for summary judgment, the trial court dismissed plaintiffs' negligence per se and vicarious liability claims against contractor. The matter went to trial on plaintiffs' direct negligence claim.

The trial was bifurcated on the issues of liability and damages pursuant to C.R.C.P. 42(b). The jury concluded that contractor was fifteen percent at fault, homeowner sixty-four percent at fault, and Smit seven percent at fault, with the remaining Hability assigned to other participants in the raising of the wall. The jury, after a subsequent hearing, found that plaintiffs' damages were $3,764,350, resulting in judgment against contractor in the amount of $845,221 with interest and costs.

I.

Contractor contends that the trial court erred in concluding that he owed a duty to Smit based solely on his having obtained the building permit. We disagree.

A.

To recover on a claim of negligence, a plaintiff must establish the existence of a legal duty on the defendant's part, defendant's breach of that duty, causation, and damages. See Davenport v. Community Corrections of Pikes Peak Region, Inc., 962 P.2d 963 (Colo.1998). A negligence claim therefore must fail if based upon cireum-stances for which the law imposes no duty of care upon the defendant. See Martinez v. Lewis, 969 P.2d 213 (Colo.1998).

The initial determination of whether a defendant owes a duty to the plaintiff, as well as the seope of that duty, is a question of law for the court. See Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo.1993). If a court determines that the defendant owed the plaintiff a legal duty, the question of whether the defendant has breached that duty and thereby caused the plaintiff damage is for the jury. See Perreira v. State, 768 P.2d 1198 (Colo.1989).

In determining whether a defendant owes a duty to a particular plaintiff, the law distinguishes between acting and failure to act, that is, misfeasance, which is active misconduct that injures others, and nonfea-sance, which is a failure to take positive steps to protect others from harm. See University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987). The reason for this distinction is that a misfeasant creates a risk of harm; while the nonfeasant, although not creating a risk of harm, merely fails to benefit the injured party by interfering in his or her affairs. See Perreira v. State, supra. Thus, because in misfeasance the actor has created a new risk, and in nonfeasance the actor has simply preserved the status quo, the situations in which nonfeasance leads to lability are more cireumseribed than those for misfeasance. See Lego v. Schmidt, 805 P.2d 1119 (Colo.App.1990).

Courts therefore apply different tests to establish whether a defendant owed a duty to the injured party depending on whether the alleged negligence is misfeasance or nonfea-sance. See Lewis v. Emil Clayton Plumbing Co., 25 P.3d 1254 (Colo.App.2000).

In nonfeasance cases, the existence of a duty has been recognized only in a limited number of special relationships between the parties such that social policy justifies the imposition of a duty to act. See University of Denver v. Whitlock, supra; Lewis v. Emil Clayton Plumbing Co., supra. Hence, there exists a duty to control the conduct of a third person to prevent him from causing physical harm to another only if a special relation exists between the nonfeasant and either the wrongdoer or the victim. See Perreira v. State, supra; Lego v. Schmidt, supra.

Relying primarily on University of Denver v. Whitlock, supra, contractor argues that he had no duty because he had no special relationship with Smit,. Contractor's argument focuses on the breach of his obligation to supervise and maintain a safe construction site, in other words, on nonfeasance.

No special relationship is required, however, because we conclude that contractor was a misfeasant. Contractor "pulled" the building permit on homeowner's behalf and represented to both the county and the lender that he would act as general contractor, despite his express intent not to be involved in the project and his awareness of the unusual hazards associated with the raising of the wall. It therefore cannot be said that contractor merely maintained an existing circumstance, as would be the case were he a nonfeasant. - Rather, Smit was put at risk of injury precisely because of contractor's actions. By representing himself as general contractor to secure financing and the building permit for an inexperienced builder, he created the cireumstances that placed Smit at risk of harm.

B.

In determining whether to recognize a duty in a misfeasance case, courts must consider many factors, including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden on the actor. See Casebolt v. Cowan, 829 P.2d 852 (Colo.1992); Taco Bell, Inc. v. Lannon, 744 P.2d 48 (Colo.1987). In addition, other considerations particular to the case may be relevant. No one factor is controlling, and the question of whether a duty should be imposed is essentially one of fairness under contemporary standards, as foreseeability includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take it into account in guiding his or her practical conduct. See Hilberg v. FW. Woolworth Co., 761 P.2d 236 (Colo.App.1988), overruled in part by Casebolt v. Cowan, supra. Thus, a conclusion that a duty does or does not exist is an expression of policy considerations that lead the law to say whether a plaintiff is entitled to protection. See Casebolt v. Co-wan, supra.

It is evident from the testimony that raising this "balloon framed" wall involved considerable and foreseeable risk and should not have been undertaken by inexperienced persons. Contractor admitted that he recognized the dangers in raising the wall, as would have any reasonable and prudent contractor. He also stated that the task required an experienced leader or experienced workers. Contractor's act of using his license as a general contractor to pull a building permit for homeowner despite the fact that he never intended to work on or supervise the construction has little social utility. The same, of course, can be said for contractor's misrepresentations to the lender.

Contractor easily could have guarded against injury by refusing to represent himself as the general contractor, supervising the riskier parts of construction, or conditioning his agreement on the use of a specialist subcontractor or a crane to raise the wall These relatively simple acts would have substantially reduced the risk of injury to Smit with little or no adverse impact on contractor.

Under prevailing contemporary standards of fairness, we are convinced that reasonable persons would recognize and agree that contractor owed a direct duty to supervise this construction project for the safety of those working there, including Smit. Contractor assumed substantial responsibility for initiating and sustaining the project, and he admitted that a general contractor has a responsibility for the safety of the construction site. Contractor has this responsibility even though Smit was not aware of the nature and extent of contractor's involvement.

Finally, any remoteness in contractor's breach of his duty in causing the injuries was reflected in the jury's allocation to him of only fifteen percent of the fault.

We therefore perceive no error in the trial court's conclusion that contractor owed a duty to Smit for the safety of the construction site.

II.

We reject contractor's assertion that the trial court erroneously instructed the jury that he had a duty to supervise the work regardless of any side agreement or accommodation with homeowner.

At the outset, it is contractor's duty to Smit which is at issue here, not his duty to homeowner. Contractor relies on Sewell v. Public Service Co., 882 P.2d 994 (Colo.App.1991), for the proposition that a court may not decide as a matter of law the existence and scope of a duty when different reasonable inferences may be drawn about the foreseeability of harm resulting from the defendant's conduct. This reliance is misplaced.

Sewell states only that a court must deny a motion for summary judgment based upon an assertion of the lack of existence of a duty of care if the evidence is insufficient to allow the court to determine the issue of foreseeability as a matter of law. The trial court here in fact denied contractor's motion for summary judgment, which asserted a lack of duty. Nothing in Sewell constrains a court's right to determine, as a matter of law, the existence and scope of a duty. See Bath Excavating & Construction Co. v. Wills, supro.

An injury occurring on an inadequately supervised construction site is certainly a foreseeable event. An injury was especially foreseeable here when, according to contractor's own testimony, there were special hazards associated with the erection of the wall.

IIL

Contractor also contends that the trial court erred by admitting testimony about the nature and extent of Smit's injuries during the liability trial. We disagree.

C.R.C.P. 42(b) allows for bifurcated trials "in furtherance of convenience, or to avoid prejudice, or when separate trials will be conducive to expedition or economy" (emphasis added). Contractor fails to direct us to, nor are we able to find, any record concerning the trial court's hearing or findings on bifurcation. See Westrac, Inc. v. Walker Field, 812 P2d 714 (Colo.App.1991)(party must cite to portions of record that contain error). However, uncontested trial testimony establishes that plaintiffs had opposed bifurcation and that the trial court ordered bifurcation with an understanding that Smit would be allowed to describe briefly to the jury the nature of the injuries.

Absent a record demonstrating that contractor objected to that understanding, we must presume the trial court correctly admitted Smit's brief description of his injuries during the liability trial. See Schuster v. Zwicker, 659 P.2d 687 (Colo.1983)(party asserting error must present record that discloses error, because judgment presumed correct until contrary affirmatively appears).

IV.

Contractor next contends that the trial court erred in not discharging a juror who informed the court during the damages trial that she may have been involved in treating Smit's injuries, or, alternatively, in not declaring a mistrial. We disagree.

The decision to excuse a juror will not be disturbed absent a gross abuse of discretion. See People v. Christopher, 896 P.2d 876 (Colo.1995). In determining whether to replace a juror with an alternate juror, the court considers: (1) the juror's assurance of impartiality; (2) the nature of the information withheld in voir dire; (8) whether the nondisclosure was deliberate; (4) any prejudicial effect the undisclosed information would have had on either party, including the parties' rights to exercise peremptory challenges; and (5) the practical remedies available when the nondisclosure is revealed. See People v. Meis, 837 P.2d 258 (Colo.App.1992)

A trial court has broad discretion to decide whether to grant a mistrial, and its decision will not be overturned absent an abuse of discretion and prejudice to a party. A mistrial is a drastic remedy, warranted only if the prejudice to a party cannot be remedied by other means,. See People v. Fears, 962 P.2d 272 (Colo.App.1997).

Here, the juror revealed during voir dire her employment history at the hospital where Smit was treated and the possibility that she treated him. She also stated that she did not remember Smit, was unfamiliar with the doctors in the case, and would not let her employment relationship affect her judgment. Contractor did not seek to remove her from the panel.

After the juror heard testimony about the time frame in the case, she promptly informed the court that the chanees were good that she had seen or somehow been involved in Smit's care. She still did not remember Smit and remained unconcerned about her ability to be fair and impartial.

The juror's assurances of impartiality, the fact that she did not deliberately withhold information, and the marginal difference between her voir dire and later testimony weighed against discharging her, particularly because she did not recall Smit or know the doctors in the case. Contractor's claims of prejudice because of the juror's outside knowledge, despite her assurances that she had not discussed with other jurors anything relating to the evidence in the case, are, at best, speculative.

The court instructed the juror not to divulge to the other jurors any of the information revealed during the hearing on the extent of her knowledge and treatment of Smit. Absent a contrary showing, the juror is presumed to have understood and heeded the trial court's instructions. See Technical Computer Services, Inc. v. Buckley, 844 P.2d 1249 (Colo.App.1992).

Under these circumstances, we perceive no abuse of discretion in the trial court's refusal to discharge the juror or grant a mistrial.

v.

On cross-appeal, plaintiffs contend that the trial court erred in dismissing their negli-genee per se and vicarious liability claims against contractor. Plaintiffs further assert that, if their contention is correct, the fact that we affirm with respect to their direct negligence claim does not render the error harmless because a revival of these claims could impact the allocation of fault. Therefore, so goes the argument, it was error to dismiss either or both of these claims, and the matter should be remanded for a jury trial on negligence per se and vicarious liability without disturbing the first jury's conclusions on the direct negligence claim or damages. We disagree with the first contentions and therefore need not address the latter.

A.

To establish a claim of negligence per se, the plaintiff must show that: (1) he or she is a member of the class the statute or ordinance was designed to protect; (2) the injuries suffered were of the kind the statute was enacted to prevent; and (8) the defendant violated the statute. See Trinity Universal Insurance Co. v. Streza, 8 P.3d 613 (Colo.App.2000); Lego v. Schmidt, supra.

A statute should not be construed in a manner that defeats its legislative intent. See City of Westminster v. Dogan Construction Co., 930 P.2d 585 (Colo.1997).

The Pikes Peak Regional Building Code states its purpose as follows:

The purpose of this building code is to provide minimum standards to protect the public health and safety by regulating and controlling buildings, structures, and equipment and adopting uniform codes, consistent with and generally conforming to similar ordinances and regulations throughout the Pikes Peak region, and to effect said purpose by acting with other governmental bodies in the Pikes Peak region in the promulgation of measures and procedures, and the establishment of committees and boards as herein provided, and establishing procedures for licensing contractors.

Pikes Peak Regional Building Code, art. 1, § 16-1-102 (1994).

To support their negligence per se claim, plaintiffs rely on a code provision penalizing the use of a contractor's license "to obtain permits required under this Code for work that will not be performed by or supervised by the contractor." Pikes Peak Regional Building Code, art. I, § 16-6-109(C)(8) (1994).

In light of its announced purpose, we conclude that the particular section of the code relied upon by plaintiffs is designed primarily to ensure the construction of safe buildings, and not the safe construction of buildings. Thus, although we disagree with the trial court's reasoning, the dismissal of plaintiffs' negligence per se claim was not error because Smit was not a member of the class the legislation was designed to protect. See Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1301 (Colo.App.1988)(correct judgment not disturbed on review even though reason for decision wrong).

B.

Plaintiffs argue that contractor effectively subcontracted with homeowner to construct the residence, and, because there were inherent dangers associated with that construction, including the erection of the wall, contractor is vicariously liable for the negligence of homeowner. We disagree.

This argument fails in the absence of any contract between homeowner and contractor obligating contractor to construct the residence, and we decline to infer such a contract.

The evidence was undisputed that there was no contract between homeowner and contractor that obligated contractor to construct or supervise the construction of the residence. Indeed, it was undisputed that there was an agreement or understanding between homeowner and contractor that contractor had no such obligation. Plaintiffs therefore are unable to establish that homeowner was hired as an independent contractor for whose acts contractor could be vicariously liable. See Grease Monkey International, Inc. v. Montoya, 904 P.2d 468 (Colo.1995); Moses v. Diocese of Colorado, 863 P.2d 310 (Colo.1993).

Therefore, we conclude contractor is not vicariously liable to plaintiffs for the negli-genee of homeowner.

Accordingly, the judgment is affirmed.

Chief Judge HUME and Judge MARQUEZ concur.


source: Caselaw Access Project

author: Judge DAILEY. Judge TAUBMAN

license: Public Domain

text:
    Lisa SERNA, Plaintiff-Appellant and Cross-Appellee, v. KINGSTON ENTERPRISES, a Nebraska corporation, Defendant-Appellee and Cross-Appellant.
    No. 01CA0537.
    Colorado Court of Appeals, Div. II.
    Sept. 26, 2002.
    Certiorari Denied June 23, 2003.

      Norton Frickey, P.C., L. Dan Rector, Colorado Springs, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    McClain, Drexler & Matthews, LLC, Michael E. Oldham, Michael J. Decker, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VIL, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge DAILEY.

In this indemnification action, plaintiff, Lisa Serna, appeals from a summary judgment and an award of attorney fees and costs to defendant, Kingston Enterprises. Defendant cross-appeals the trial court's determination that Serna's lawyers are not personally liable for its attorney fees. We affirm in part and reverse in part.

Serna was fifteen years old when defendant, her employer, instructed her to drive from one of its franchise locations to another. En route, Serna's car collided with another car, resulting in serious injury to the passengers of the other car.

The passengers sued both Serna and defendant, alleging that Serna was negligent and that, as her employer, defendant was liable based on a respondeat superior theory. The passengers, who initially failed to complete service of process on Serna, settled with defendant for $850,000. After serving process upon Serna, they also settled with her.

Under her settlement with the passengers, Serna agreed to: (1) allow entry of a $1.5 million judgment against her; (2) employ the passengers' attorneys to sue defendant in an indemnity action; (8) allow the passengers to make all decisions with respect to her lawsuit against defendant; (4) refuse to settle with defendant without the passengers' prior approval; and (5) pay monies recovered from defendant to the passengers. In return, the passengers accepted $40,000 from Serna's insurance carrier, agreed not to execute on the remainder of the $1.5 million judgment against Serna, and promised to pay Serna half of any monies recovered from defendant in excess of $1 million.

Pursuant to her settlement, Serna instituted the present action against defendant. The trial court, however, granted defendant's motion for summary judgment, holding that, as a matter of law, Serna's claim was barred by the exclusivity provision of the Workers' Compensation Act (WCA), § 8-40-101, et seq., C.R.98.2002, and by the Uniform Contribution Among Tortfeasors Act (UCATA), § 18-50.5-102, C.R.8.2002. The trial court awarded defendant attorney fees and costs under § 18-17-102, C.R.8.2002.

I. Summary Judgment

Serna contends that the trial court erred in dismissing her claims. We disagree, but base our decision on grounds somewhat different from those relied upon by the trial court.

Summary judgment is only appropriate if there is no genuine issue as to any material fact. Polk v. Hergert Land & Cattle Co., 5 P.3d 402, 404 (Colo.App.2000). On appeal, we review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251, 1256 (Colo.1995).

Because the material facts in this case are not in dispute, we can resolve this appeal as a matter of law.

A. Workers' Compensation

Initially, Serna contends that the trial court erred in determining that the WCA's exclusivity provision barred her claim. We agree.

The WCA is an employee's exclusive remedy for compensation by an employer for certain work-related injuries. See Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86, 88 (Colo.App.1998)("if an injury comes within the coverage of the Act, an action for damages is barred even though a particular element of damages is not compensated for").

Under the WCA, an employee surrenders, as against his or her employer, "any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of [his or her] personal injuries or death." - Section 8-41-104, C.R.S.2002 (emphasis added); see also § 8-41-102, C.R.S.2002 (abolishing employee's remedies against employer for or on account on employee's "death" or "personal injury"). '

Conversely, however, an employee does not, under the WCA, surrender any cause of action for injuries apart from "personal injuries." See Lord v. Souder, 748 A.2d 393, 403 (Del.2000)(workers' compensation "exclusivity provision does not apply to all injuries arising out of and in the course of employment but, rather, only to 'personal' injuries").

No Colorado appellate opinion has determined the precise meaning of the terms "personal injury" or "personal injuries" in §§ 8-41-102 and 8-41-104. Their meaning may, however, be discerned from the type of injuries for which the WCA provides a remedy. The express purpose of the WCA is to provide "quick and efficient delivery of disability and medical benefits," § 840-102(1), C.R.98.2002, for job-related physical or mental injuries. See §§ 8-41-801(2)(a) (mental impairment), 842-107 (physical injuries), C.R.8.2002; Lucero v. Climax Molybdenum Co., 782 P.2d 642, 647 (Colo.1987)(WCA provides compensation for "specified physical or mental injuries"). j

We conclude that, as used in the WCA, the terms "personal injury" and "personal injuries" refer to the job-related physical or mental injuries of an employee, see 3 Larson's Workers' Compensation Law ch. 55 at 55-1 (2002)(" 'Personal injury' includes any harmful change in the body"), and that, consequently, the WCA's exclusivity provision bars actions for or on account of such injuries of an employee.

Here, Serna seeks redress from defendant not on account of physical or mental injuries she sustained, but, rather, on account of the economic lability she incurred after she injured others. Because this economic lability does not qualify as a compensable "personal injury" under the WCA, her indemnity action against defendant is not barred by the WCA. See, eg., Williams v. Caruso, 966 F.Supp. 287, 294 (D.Del.1997)("claims for injuries to [employee's] economic interests" were not preempted by Delaware's workers' compensation statute); Gomez v. Acquistapace, 50 Cal.App.4th 740, 749, 57 Cal.Rptr.2d 821, 826 (1996)("injuries which trigger application of the exclusive remedy rule are injuries 'to the worker's person, as opposed to his property? "), Lord v. Souder, supra, 748 A.2d at 403 (harm affecting "a proprietary or financial interest" is "not a 'personal injury' within the purview of the Workers' Compensation statute"); Cole v. Chandler, 752 A.2d 1189, 1196 (Me.2000)("economic or reputational injuries, if any, do not constitute personal injuries, as they are not physical or mental injuries," and "recovery of such damages is not precluded by the exclusivity provision").

Defendant cites United Cable Television of Jeffeo, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1232-88 (Colo.App.1996), for the proposition that employers are immune under the WCA for common law indemnity claims. However, that case dealt with a third-party suit against an employer seeking indemnification for monies paid out in connection with an employee's physical injury. Further, the division in that case stated that "there is an exception to the [WCA's] exclusive remedy clause where an express contract or preexisting legal relationship exists." - United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., supra, 942 P.2d at 12838.

Here, defendant and Serna, as employer and employee, had a pre-existing legal relationship, which allowed Serna to bring her indemnity claim despite the WCA.

B. Contribution Among Joint Torifeasors

Serna next contends that the trial court erred in concluding that her indemnification action was barred by UCATA. We agree.

In dismissing Serna's indemnification claim, the trial court relied upon Brochner v. Western Insurance Co., 724 P.2d 1293, 1296 (Colo.1986), in which the supreme court held that UCATA had abrogated some indemnity actions, namely those which would require "one of two joint tortfeasors to reimburse the other for the entire amount paid by the other as damages to a party injured as the result of the negligence of both joint tortfeasors." Brochner v. Western Insurance Co., supra, 724 P.2d at 1299.

Here, in their initial complaint against defendant and Serna, the passengers alleged that defendant was liable based only on a theory of respondeat superior, not negligence. Therefore, defendant and Serna were not joint tortfeasors within the meaning of UCATA, and thus, UCATA would not bar Serna's indemnity action against defendant. See Arnold v. Colorado State Hospital, 910 P.2d 104, 107 (Colo.App.1995); McCall v. Roper, 685 P.2d 230, 232 (Colo.App.1984).

C. _ Common Low Indemnity

Defendant argues that, even if not barred by the WCA or UCATA, Serna's indemnity claim must nonetheless fail because there is no realistic prospect of the passengers executing on the judgment entered against her. We agree.

On appeal, a party may defend the judgment of the trial court on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court. People v. Eppens, 979 P.2d 14, 22 (Colo.1999); see also Olsen & Brown v. City of Englewood, 867 P.2d 96, 99 (Colo.App.1993)("A party may defend the trial court's judgment on grounds not decided by the trial court, as long as the party's rights are not increased."), aff'd, 889 P.2d 673 (Colo.1995).

Serna's indemnity claim is based not on contract, but on the common law duty of a principal to indemnify its agent for losses incurred by the agent while acting on the principal's behalf. See Johnson Realty v. Bender, 39 P.3d 1215, 1218 (Colo.App.2001).

"As a general rule, a cause of action for indemnity does not arise until the liability of the party seeking indemnity results in his damage, either through payment of a sum clearly owed or through the injured party's obtaining an enforceable judgment." Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 218 (Utah 1984).

In this case, Serna has not paid the judgment against her, and, under the terms of her agreement with the passengers, there is no reason to believe that she ever will. Her settlement agreement stipulated that the passengers would not "execute on any portion of the judgment exceeding the $40,000 tendered through [Serna's insurance provider] so long as [Serna) proceeds with her legal remedies" against defendant. The passengers even agreed to "pay all costs associate{d] with prosecuting Serna's claim, including any attorney's fees incurred."

Serna asserts that her agreement is of a type permitted under Bashor v. Northland Insurance Co., 29 Colo.App. 81, 83-84, 480 P.2d 864, 866 (1970), aff'd, 177 Colo. 463, 494 P.2d 1292 (1972). A Bashor agreement is "a settlement reached between opposing parties after a judgment has been obtained," wherein the "prevailing party agrees not to execute on the judgment in exchange for the defendant's agreement not to appeal the judgment and instead to pursue claims against third parties (and share any recovery with the original plaintiff)." Stone v. Satriana, 41 P.3d 705, 708 n.2 (Colo.2002).

In the reported Colorado cases to date, Bashor agreements have been used only in cases involving allegations of a breach of an insurer's contractual duty to indemnify an insured. See Stone v. Satriana, supro; Daugherty v. Allstate Insurance Co., 55 P.3d 224, 2002 WL 464801 (Colo.App. No. 01CA0130, Mar. 28, 2002); Pike v. American States Preferred Insurance Co., 55 P.3d 212, 2002 WL 282494 (Colo.App. No. 00CA0A4O00, Feb. 28, 2002); Bernhard v. Farmers Insurance Exchange, 885 P.2d 265, 270-71 (Colo. App.1994), affd, 915 P.2d 1285 (Colo.1996). Further, the "shared recovery" contemplated by Bashor agreements encompasses only the return, on a full or pro rata basis, of the amount of money a Bashor defendant had already paid to the injured party. See Bashor v. Northland Insurance Co., supra, 29 Colo.App. at 88, 480 P.2d at 866.

Here, any duty on defendant's part to indemnify Serna arose not under contract but under common law. Further, Serna's agreement with the passengers was more akin to a profit-sharing agreement; her share of any recovery against defendant was not limited to recouping only the losses she or her insurance company sustained. Indeed, under the agreement, the passengers promised to give Serna half of any monies recovered from defendant in exeess of $1 million. If, then, she were able to obtain a $1.5 million dollar judgment against defendant, she would be entitled to $250,000.

Finally, and perhaps most important, unlike the Bashkor situation, there has never been a judgment enforceable against Serna; indeed, the only judgment against her is one to which she stipulated, along with conditions virtually ensuring her that it would never be enforced against her.

Because, under the particular cireum-stances of this case, we discern no danger that Serna will ever sustain a monetary loss or otherwise be subjected to an enforceable judgment against her, we affirm the trial court's dismissal of her indemnification claim against defendant. See Midwest Commerce Banking Co. v. Elkhart City Centre, 4 F.3d 521, 526 (7th Cir.1998)(one cannot "seek indemnity ... without any basis for supposing that there will ever be any indemnifiable loss").

II. Attorney Fees and Costs

Next, Serna contends that the trial court erred in awarding attorney fees and costs. We agree.

Initially, we note that the trial court awarded fees and costs not only against Ser-na, but also against the passengers. Because the passengers are not parties to this appeal, we have no occasion to consider or disturb the award against them.

Section 1817-102 requires that the trial court award reasonable attorney fees and costs in any case when a party's claim lacks "substantial justification," meaning the claim is substantially frivolous, groundless, or vexatious. However, where there is a rational basis grounded in law and evidence for a party's position, the trial court's finding that the position was substantially frivolous is not sustainable. Hart & Trinen v. Surplus Electronics Corp., 7I2 P.2d 491, 498 (Colo.App.1985).

Having concluded that Serna's indemnity claim was not barred by the WCA or UCA-TA, we must necessarily conclude that "substantial justification" existed for the positions she took with respect to those issues. Thus, we cannot sustain the trial court's award of attorney fees and costs against Serna.

Because we reverse that award, we need not consider defendant's cross-appeal.

Accordingly, the judgment is affirmed, except that the award of attorney fees and costs against Serna is reversed.

PLANK , J., concurs.

TAUBMAN, J., specially concurs.

Judge TAUBMAN

specially concurring.

While I agree with the majority's analysis, I write separately to express my agreement with Kingston that, as a matter of public policy, this action should be precluded because under the settlement agreement between Serna and the passengers, the passengers control all aspects of this litigation on behalf of Serna, and Serna's lawyer also represents the passengers, who are third-party defendants here.

I am troubled by a number of ethical issues presented by the settlement agreement and believe that it extends beyond what was deemed acceptable by the court of appeals and the supreme court in Bashor v. Northland Insurance Co., 29 Colo.App. 81, 480 P.2d 864 (1970), affd, 177 Colo. 463, 494 P.2d 1292 (1972). The trial court was similarly troubled. In its summary judgment, it indicated that representation of different clients with different interests here was contrary to the Rules of Professional Conduct. The trial court concluded that although parties on opposite sides of a lawsuit conceivably could have common interests in a second lawsuit, such was not the case here. Indeed, the trial court stated that it was referring its opinion to "the Office of Disciplinary Counsel," now the Office of Attorney Regulation Counsel. See C.R.C.P. 251.1 to 251.34.

According to Kingston, "the adversarial process has been disfigured to the point that the original plaintiffs are now defendants, a settling defendant is now the plaintiff, and the attorneys representing the original plaintiffs are now representing the settling defendant acting as the new plaintiff as well as the original plaintiffs who are now defendants." Indeed, the passengers, who were plaintiffs in the first lawsuit, are now third-party defendants here. Serna, the settling defendant in the first lawsuit, is now the plaintiff here, and she is represented by the passengers' original attorney, who continues to represent the passengers as third-party defendants.

As summarized in the majority opinion, the agreement between the passengers and Ser-na included the following terms:

(1) Serna stipulated to an entry of a judgment against her in the amount of $1.5 million, an amount based upon the previously vacated default judgment in the first lawsuit;

(2) Serna would pursue her claims against Kingston to recover the full amount of the $1.5 million stipulated judgment against her, and the passengers would have the right to select the attorney to represent her either in the first lawsuit or in a new lawsuit;

(3) The passengers agreed to pay all of Serna's attorney fees, costs, and expenses in the additional litigation and further agreed to indemnify her from any costs or attorney fees that might be awarded against her;

(4) Serna agreed to the selection of the passengers' present attorneys to represent her;

(5) Serna agreed not to settle her lawsuit against Kingston without the consent of the passengers, and Serna further agreed to accept any settlement in this lawsuit which is approved by the passengers;

(6) Serna agreed to pursue and exhaust all legal remedies she might have against Kingston, including appeal, without an independent right to determine whether an appeal is appropriate;

(7) The passengers agreed not to execute any of the confessed $1.5 million judgment against Serna (except for $40,000 paid by her insurer), as long as she pursued the action against Kingston;

(8) In the event of settlement or judgment, the passengers would receive all sums up to $1 million, with any excess shared equally with Serna;

(9) The passengers would have sole discretion to pursue, settle, or appeal the litigation brought by Serna.

This agreement was entered into after the passengers had settled the first lawsuit against Kingston for $850,000. Initially, the passengers had obtained a default judgment in the amount of $2,350,000 against Kingston, which was vacated when the claim against Kingston was settled. Nevertheless, the difference between the default judgment, $2,350,000, and the settlement amount, $850,000, was the amount of the judgment to which Serna confessed as part of the agreement at issue here.

The parties here dispute the validity of the settlement agreement. Kingston asserts that it contains the same evils as a traditional "Mary Carter" agreement, but is even more damaging to the integrity of the judicial process. Under a Mary Carter agreement, a settling defendant typically agrees to guarantee the plaintiff a minimum payment, the plaintiff agrees not to enforce a judgment against the settling defendant, and the settling defendant's exposure is reduced in proportion to any liability found against other codefendants. Often, this agreement is not revealed to the nonsettling defendant. See Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct.App.1967).

The Colorado Supreme Court has expressly declined to rule on the permissibility of Mary Carter agreements. See Copper Mountain, Inc. v. Poma of America, Inc., 890 P.2d 100, 108 n. 183 (Colo.1995). Nevertheless, courts in Florida, Nevada, New Mexico, Oklahoma, Texas, and Wisconsin have declared such agreements to be contrary to public policy and do not permit them. See Dosdourian v. Carsten, 624 So.2d 241 (Fla.1993); Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971); Watson Truck & Supply Co. v. Males, 111 NM. 57, 801 P.2d 689 (1990); Cox v. Kelsey-Hayes Co., 594 P.2d 354 (Okla.1978); Elbaor v. Smith, 845 S.W.2d 240 (Tex.1992); Trampe v. Wisconsin Tel Co., 214 Wis. 210, 252 N.W. 675 (1984).

Serna asserts that these cases are inappo-site because no Mary Carter agreement is involved here, particularly because a second lawsuit was filed and the agreement was revealed to Kingston. Instead, Serna asserts that the agreement here was based upon the supreme court's opinion in Bashkor, and therefore was proper.

Although the supreme court held the Bo-shor agreement was not illegal, void, or contrary to public policy, it did not consider whether the agreement contravened the then-existing ethical rules.

As the majority opinion notes, Baskor has been applied only in the context of bad faith insurance litigation. Additionally, a comparison of the cireumstances in Bashor with those here reveals significant differences.

In Bashor, the injured party entered into an agreement with Bashor, whose negligence had caused a car accident. The injured party received an assignment from Bashor, thereby permitting her to sue Bashor's insurer for part of the amount of the judgment she had already obtained against Bashor. Here, in contrast, Serna was effectively prosecuting a second lawsuit on behalf of the passengers, under which the passengers stood to gain a substantial amount of money (up to $1,250,000) in addition to the $850,000 settlement they had already achieved.

Although the Bashor agreement provided that the injured party would select the attorney for Bashor with Bashor's consent, there is no indication that the attorney for both parties was the same. Here, however, the same attorney represented both Serna as plaintiff and the passengers as third-party defendants in the same litigation. This arrangement appears to violate Colo. RPC 1.7(a). See Colo. RPC 1.7 emt. ("(a) prohibits representation of opposing parties in litigation").

Serna asserts that this arrangement is permissible because her interests coincide with those of the passengers, but that is not nee-essarily so. While Serna has an interest in obtaining a judgment against Kingston so that the $1.5 million judgment against her will be released, she has no interest in litigating the applicability of the settlement between the passengers and Kingston, which is disputed by those parties.

Additionally, while Bashor agreed to prosecute fully his lawsuit, including appeal, if he was unsuccessful in the trial court, here it appears that Serna was required to prosecute an appeal regardless of whether she independently believed there was a legitimate basis for pursuing an appeal. Indeed, her attorney has an irreconcilable conflict of interest, because the passengers' interest in pursuing an appeal is different from Serna's interest.

Another ethical concern is that the agreement here may run afoul of Colo. RPC 1.2(a), which provides in pertinent part that "(al lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter." A client's right to settle a case is absolute and unqualified. Any provision in a fee agreement that would deprive a client of the right to control settlement is unenforceable as against public policy. See Jones v. Feiger, Collison & Killmer, 903 P.2d 27 (Colo.App.1994), rev'd on other grounds, 926 P.2d 1244 (Colo.1996).

Here, Serna gave her right to settle this litigation to the passengers, and the same attorney represented both them and Serna. It is not difficult to imagine a circumstance where Kingston might make a sizeable offer to settle, which Serna herself might be in-dined to accept, but could not do so under the agreement, because either the passengers or the lawyer concluded that the proposal was insufficient.

Further, because the attorney here was proceeding under a contingent fee agreement, his interest was in achieving the highest possible settlement. Accordingly, from that perspective, he might have conflicting loyalties to the passengers and Serna.

In short, the agreement between Serna and the passengers here resulted in real or apparent conflicts of interest and possible violations of the Rules of Professional Conduct, and it allowed the passengers to seek further remuneration from Kingston after they had already fully and finally settled their initial lawsuit against it.

For these reasons, I would also affirm the trial court because the agreement between Serna and the passengers contravenes public policy.


text:
    William DeFORREST, individually, and William DeForrest, as Executor and Personal Representative of the Estate of Julie DeForrest, Plaintiffs-Appellants, v. CITY OF CHERRY HILLS VILLAGE, City of Greenwood Village, and Officer Glenn Bailey, Jr., Defendants-Appellees.
    No. 01CA1795.
    Colorado Court of Appeals, Div. II.
    Nov. 21, 2002.
    Certiorari Denied June 30, 2003.

      Robinson Waters & O'Dorisio, P.C., Otto K. Hilbert, II, Denver, Colorado, for Plaintiffs-Appellants.
    Brooks & Schluter, LLP, Leslie L. Schlu-ter, Sue Ann Haskell, Denver, Colorado, for Defendants-Appellees.

       Justice KOURLIS would grant as to the following issue:
      Whether the court of appeals erred in concluding that the Respondent pled a willful and wanton claim against an officer.
      Whether the court of appeals erred in concluding that the issue of willful and wanton conduct was "tired by consent.” Whether the court of appeals erred in concluding that the trial court had already determined that there were genuine issues of material fact regarding whether an officer’s conduct was willful and wanton.

   Opinion by

Judge ROY.

Plaintiff, William DeForrest (husband), individually and as executor and personal representative of the Estate of Julie DeForrest, appeals from a partial summary judgment in favor of defendants, City of Cherry Hills Village, City of Greenwood Village, and Officer CHenn Bailey, Jr., and entry of judgment in the amount of $120,000. We affirm in part, reverse in part, and remand for further proceedings.

On October 6, 1995, husband's wife died in a traffic accident at the intersection of Belle-view and South Holly Street. Belleview is an east-west state highway that forms the border between Cherry Hills Village and Greenwood Village, and Holly is a north-south street that transverses both towns.

Before the collision, the traffic signals at the intersection were not functioning properly as a result of a power failure. In response, Greenwood Village Public Works placed six portable stop signs at the intersection to control traffic.

Subsequently, Officer Bailey went to the intersection and found that the signal lights were functioning properly. He thereafter removed two portable stop signs controlling westbound traffic on Belleview and then removed the single stop sign controlling southbound traffic on Holly. Before the police officer could remove the remaining signs, a vehicle traveling northbound on Holly entered the intersection and collided with Julie DeForrest's vehicle, which was traveling westbound on Belleview.

Husband brought this action for wrongful death against defendants, the State of Colorado, and the manufacturer of the car. He reached pretrial settlements with the state and the manufacturer, and each was dismissed. As pertinent here, husband settled with the state for $30,000.

Defendants then filed motions for summary judgment based on immunity under the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.8.2002. The trial court denied the motions, and defendants filed an interlocutory appeal to this court. A division of this court held that defendants' sovereign immunity was waived pursuant to an express immunity waiver under the GIA, § 24-10-106(1)(d)(I1), C.R.S.2002. DeFor-rest v. City of Cherry Eilis Village, 990 P.2d 1139 (Colo.App.1999).

After remand, defendants served husband with a statutory offer of settlement in the amount of $120,001, based on the GIA's $150,000 limitation on damages, § 24-10-114(1), C.R.S.2002, minus the settlement received from the state. After husband rejected the offer, defendants filed a motion for partial summary judgment on the application of the GIA damages limitation. The trial court granted the motion, concluding that the GIA limited husband's maximum recovery against these defendants to $120,000. Defendants then confessed judgment in the amount of $120,000, and the trial court entered judgment in that amount.

I.

Our review of an order granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995). Summary judgment is a drastic remedy and should be granted only upon a clear showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Compass Insurance Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

IL.

Husband asserts that the trial court erred in concluding that his recovery is limited to $150,000. Specifically, he asserts that there are two plaintiffs, each with a separate claim: (1) himself, as an individual, bringing a claim for wrongful death as permitted by § 13-21-2022, C.R.8.2002; and (2) himself, in a representative capacity, bringing a survival action on behalf of his wife's estate, as permitted by § 18-20-101(1), C.R.S.2002. Because the estate gave no notice pursuant to § 2410-109, C.R.S8.2002, the trial court did not have jurisdiction over any claim the estate might have brought. Therefore, we need not address whether the estate may bring a separate claim.

Compliance with the GIA notice requirement is jurisdictional. Brock v. Ny-land, 955 P.2d 1087 (Colo.1998).

Section 24-10-109(1), C.R.8.2002, states: Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willfil and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action. (emphasis added.)

Here, only one notice of claim, by husband individually, was served on the governmental entities and the police officer. The notice did not name the estate, nor did it assert that claims would be brought on behalf of an estate or by husband in any representative capacity. In addition, the notice sought only one damage award for the statutory limit of $150,000.

Woodsmall v. Regional Tramsportation District, 800 P.2d 63 (Colo.1990), relied upon by husband, does not dictate a contrary result. In that case, both plaintiffs, although they brought separate claims, were named as claimants in a single notice.

We conclude that any action by wife's estate for damages is barred for failure to give the requisite notice pursuant to the GIA. Therefore, the trial court did not err in concluding that only one party had perfected a claim and limiting husband to the damages allowed pursuant to § 24-10-114(1) against the governmental entities.

TIL

Next, husband asserts that the trial court erred in entering the confession of judgment in favor of all defendants, limiting husband's damages to $120,000, because the trial court had previously concluded that there were genuine issues of material fact as to whether the police officer's conduct was willful and wanton. We agree.

A.

Section 24-10-118(1), states that: C.R.98.2002,

Any action against a public employee ... which lies in tort or could lie in tort ... and which arises out of injuries sustained from an act or omission of such employee ... during the performance of his duties and within the scope of his employment, unless the act or omission causing such injury was willful and wanton, shall be subject to the following requirements and limitations, regardless of whether or not such action against a public employee is one for which the public entity might be liable for costs of defense, attorney fees, or payment of judgment or settlement under section 24-10-110:
(b) The maximum amounts that may be recovered in any such action against a public employee shall be as provided in section 24-10-114(1), (2), and (8).
(e) A public employee shall not be liable for punitive or exemplary damages arising out of an act or omission occurring during the performance of his duties and within the scope of his employment, unless such act or omission was willful and wanton.
(d) The fact that a plaintiff sues both a public entity and a public employee shall not be deemed to increase any of the maximum amounts that may be recovered in any such action as provided in this section or in section 24-10-114. (emphasis added.)

This provision clearly states that if the public employee's actions were willful and wanton, the cap on damages is not applicable and punitive damages may be allowed. Therefore, if the officer's conduct here is ultimately found to be willful and wanton, husband's damages are not limited to the cap.

Because the trial court had already determined that there were genuine issues of material fact regarding whether the police officer's conduct was willful and wanton, the trial court erred in entering the confession of judgment in favor of all defendants and applying the damages cap.

B.

Defendants argue that the issue of the police officer's willful and wanton conduct was not adequately raised in the pleadings. We disagree.

Although the issue was not raised in the original or amended complaints, it was alleged that the officer's conduct "caus[ed] a serious and unreasonable risk of harm to passengers traveling through the intersection." In the trial management order, which was approved by the parties and signed by the trial court, one of the legal issues is "[rleckless and willful and wanton behavior of Officer Bailey."

Thus, it appears that defendants had notice of, and consented to, the issue of whether the officer's conduct was willful and wanton. Under these circumstances, we conclude that the issue was adequately raised as if it had been specifically alleged in the pleadings. See CRCP. 15(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."); see also Tovrea v. Denver & Rio Grande Western RR. Co., 698 P.2d 1016 (Colo.App.1984)(if the issue raised by the pleadings is not objected to, the parties' consent is implied).

Accordingly, the trial court erred in entering the confession of judgment and limiting husband's damages to $120,000 as to all defendants.

IV.

Husband asserts that the trial court erred in deducting the state's $30,000 settlement from his maximum recovery from the remaining defendants. Specifically, husband asserts that because § 24-10-114 is entitled "Limitations on Judgments," the statutory cap provided by this section applies only to Judgments and not to settlements. Because it may arise on remand, we address the issue, and we disagree.

Our review of a trial court's interpretation of a statute is de novo. Rowell v. Clifford, 976 P.2d 368 (Colo.App.1998). When the language of the statute is plain and the meaning is clear, it should be interpreted and applied as written. Southard v. Miles, 714 P.2d 891 (Colo.1986).

The GIA unambiguously limits the recovery that a victim may receive from public entities or employees regardless of whether the recovery was obtained by settlement or judgment, absent a finding that the public employee acted in a willful and wanton manner. Thus, the GIA limits the "maximum amount that may be recovered ... whether from one or more public entities and public employees" to $150,000 for "any injury to one person in any single occurrence," without regard to when or how recovery is obtained. Section 24-10-114(1)(a), C.R.8.2002.

The statutory scheme clearly evidences a legislative intent to protect taxpayers against excessive fiscal burdens by protecting the government entity from the consequences of unlimited liability. See § 24-10-102, C.R.98.2002. This legislative purpose adequately refutes the notion that a victim should be permitted to cumulate an award beyond the $150,000 limitation according to the number of public entities and public employees who are joined or settle. Moreover, the statute clearly limits the total recovery by a claimant, not individual judgments obtained by a claimant.

Accordingly, the $30,000 settlement with the state should be deducted from husband's ultimate recovery, except for punitive damages, against all defendants.

v.

Finally, husband asserts that the GIA permits a jury to enter a verdict and judgment in excess of the statutory limitations and the trial court erred in determining the statutory cap on a pretrial motion. We disagree.

Section 24-10-114(5), states: Notwithstanding the maximum amounts that may be recovered from a public entity set forth in subsection (1) of this section, a judgment or judgments may be claimed and rendered against the state in excess of the maximum amounts only if the general assembly acting by bill authorizes payment of all or a portion of the judgment which exceeds the maximum amount. Any claimant may present proof of judgment to the general assembly and request payment of that portion of the judgment which exceeds the maximum amount. (emphasis added.)

This provision clearly applies only to claims against the state and not to those against individual cities, other political subdivisions, or public employees.

Accordingly, because the claim against the state was dismissed and only claims against the cities and the public employee remain, we conclude that the trial court did not err in determining the maximum amount that husband may recover on a pretrial motion.

That portion of the judgment limiting plaintiff's damages against the police officer is reversed, and the matter is remanded for further proceedings as to that issue. That portion of the judgment limiting plaintiff's damages as against the municipal defendants and requiring that the settlement with the state be credited against his recovery against all the defendants, except for punitive damages, is affirmed.

Judge JONES and Judge CASEBOLT concur.


author: Judge DAILEY.

text:
    Lana L. DAVISON, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, City of Loveland Police Department, and CIRSA, Respondents.
    No. 02CA0922.
    Colorado Court of Appeals, Div. IV.
    Jan. 2, 2003.
    Certiorari Granted June 30, 2003.

      Jan A. Larsen, P.C., Jan A. Larsen, Fort Collins, Colorado, for Petitioners.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office. ~
    Nathan, Bremer, Dumm & Myers, P.C., Anne Smith Myers, Michelle N. Young, Denver, Colorado, for Respondents City of Love-land Police Department and CIRSA.
   Opinion by

Judge DAILEY.

In this workers' compensation proceeding against the City of Loveland Police Department and its insurer, CIRSA (collectively employer), Lana L. Davison (claimant), the widow of David A. Davison (decedent), seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her claim for death benefits. We affirm.

Decedent, a police department captain, committed suicide in 1996. Claimant sought death benefits, alleging that decedent suffered from depression caused by job-related stress. Claimant asserted that decedent was troubled by the duty of imposing discipline on other officers and was particularly disturbed when he learned, shortly before his death, that police officers under his command engaged in improper conduct during a sting operation designed to apprehend prostitutes.

Claimant presented the testimony of a psychiatrist, who opined that decedent suffered from a major depressive disorder that was the result of a "combination of things," including job pressures which had been building over four to five years. The psychiatrist expressly stated that the "chief factor" in decedent's depression was job pressure, including the sting operation.

Employer presented the testimony of its psychiatrist, who stated that in a person with a major depressive disorder, the precipitating event is usually found in the first episode, while subsequent major depressive episodes "occur out of the blue." He also testified that he did not believe that decedent's death was triggered by his employment and that by the time of decedent's suicide, "external events wouldn't be nearly as important" as biological changes resulting from the untreated depression.

This case was remanded twice by the Panel, the first time after the Administrative Law Judge (ALJ) denied the claim, and the second time after benefits were awarded.

On the second remand, the ALJ again found that claimant was entitled to death benefits. The Panel set aside the order, however, concluding that claimant did not prove her claim because her psychiatrist did not testify that decedent experienced a traumatic event that would evoke significant symptoms of distress in a worker in similar cireumstances.

Claimant now contends that a psychiatrist need not provide such testimony in support of a work-related mental impairment claim. We disagree.

The mental impairment statute applicable to this claim provided:

A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), "mental impairment" means a disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in a similar circumstances.

Colo. Sess. Laws 1991, ch. 219, § 8-41-301(2)(a) at 1294-95; see Oberle v. Indus. Claim Appeals Office, 919 P2d 918, 919 (Colo. App.1996)(interpreting the provision applicable here); of § 8-41-801(2)(a), C.R.S. 2002 (applicable to injuries occurring on or after July 1, 1999).

Claimant argues that only the first part of the definition in § 841-801(2)(a)-"disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury" is logically susceptible of medical or psychological testimony because it involves the diagnosis and causation of a condition. According to claimant, the second part of the definition-'"a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in a similar cireumstances"-is not susceptible of this type of expert testimony. We are not persuaded.

In construing statutes, courts must give effect to the underlying legislative intent. To do so, courts first look to the statutory language itself, giving words and phrases their commonly accepted and understood meanings. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Therefore, if courts can give effect to the ordinary meaning of the words adopted by the General Assembly, the statute should be construed as written, because it may be presumed that the General Assembly meant what it clearly said. Spracklin v. Indus. Claim Appeals Office, 66 P.3d 176, -, 2002 WL 31387313 (Colo.App. No. 02CA0274, Oct. 24, 2002).

Section 8-41-801(2)(a) clearly states that the testimony of a physician or psychologist must support a claim for mental impairment. The definition of "mental impairment," under the statute, includes both parts referred to by claimant. Thus, we are bound to construe the statute as written because we can give effect to the requirement that a physician or psychologist testify as to whether a psychologically traumatic event is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in a similar circumstance. See Spracklin v. Indus. Claim Appeals Office, swpra.

To hold otherwise would ignore the clear intent of the statute. The mental impairment statute was enacted to eliminate frivolous mental impairment claims by requiring an enhanced quality of proof, because these claims are less subject to direct proof and more susceptible of being frivolous in nature. Oberle v. Indus. Claim Appeals Office, supra, 919 P.2d at 920. The proof required is the work product of a licensed physician or psychologist on the issue of mental impairment as defined in the statute, in addition to any other evidence the claimant presents on behalf of the claim. See State Dep't of Labor & Employment v. Es-ser, 30 P.3d 189, 196 (Colo.2001).

Thus, we are not persuaded by claimant's assertion that requiring the testimony of a physician or psychologist only on the issue of diagnosis and causation, as set forth in the first part of the definition, adequately addresses the prevention of frivolous claims. Although claimant argues that physicians and psychologists are simply unequipped to testify as to the usual experiences of workers in various types of employment or the symptoms of distress a psychologically traumatic event would cause similarly situated workers, the General Assembly did not agree. Because we cannot say that such topics are necessarily beyond the expertise or specialized knowledge of physicians or psychologists, we apply the statute as written. See People v. Banks, 9 P.3d 1125, 1131 (Colo. 2000)(courts must "effectuate the General Assembly's choice of wording if the result of doing so is not absurd"); see also Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.2002)(courts may not "substitute [their] own public policy determinations for those of the General Assembly").

Finally, we decline to address those issues claimant raises for the first time in her reply brief. See Bd. of County Comm'rs v. City of Greenwood Village, 30 P.3d 846, 849 (Colo.App.2001).

The Panel's order is affirmed.

Judge DAVIDSON and Judge VOGT concur.


author: Judge DAVIDSON.

text:
    Susan P. WILLIAMS, Plaintiff Appellant, v. Dennis BOYLE, M.D., Defendant, Appellee.
    No. 02CA0037.
    Colorado Court of Appeals, Div. IV.
    Jan. 2, 2003.
    As Modified on Denial of Rehearing Feb. 6, 2008.
    Certiorari Denied June 30, 2003.

      Susan P. Williams, Pro Se.
    McConnell, Siderius, Fleischner, Christine A. Craigmile, Troy R. Rackham, Denver, Colorado, for Defendant-Appellee.

       Justice COATS would grant as to the following issue:

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.$.2002.
      Whether the trial court erred when it found each of Petitioner's claims required a certificate of review pursuant to Section 13-20-602 and summarily dismissed the claims without granting an opportunity to argue good cause or an extension of time to comply with the statute.

   Opinion by

Judge DAVIDSON.

In this medical malpractice action, plaintiff, Susan P. Williams, appeals from the trial court's dismissal of her complaint against defendant, Dennis Boyle, M.D., for failure to file a certificate of review. We affirm.

Plaintiff, proceeding pro se, filed a complaint against defendant, asserting claims for medical malpractice, breach of confidential relationship and nondisclosure, fraudulent concealment and fraud, and defamation.

In her complaint, plaintiff alleged that defendant prescribed medications that caused an adverse reaction leading to kidney damage. She alleged that defendant failed to review her past medical records, which she claims documented her known allergies, and that he failed to inform her of this risk. Plaintiff also alleged that, after taking the medication, she informed defendant of the allergic reactions, but he denied the reactions occurred in an attempt to conceal his own negligence and then discharged her from his practice. Plaintiff alleged that defendant wrote in her medical records that she was experiencing a mental health disorder, that he knew the diagnosis was false, and that he then gave these records to other medical care providers.

Defendant filed an answer denying the claims, and both parties submitted initial disclosures, which were each contested by the other party as inadequate.

Defendant then filed a motion to dismiss for failure to file a certificate of review. Plaintiff requested additional time to respond, arguing that defendant had not provided all of his initial disclosures and that those disclosures were necessary for plaintiff to respond to the motion. The court ordered defendant to supplement his disclosures and gave plaintiff additional time to respond.

After plaintiff did not respond to the motion to dismiss in the time allowed by the court, and after the parties briefed the issue of whether a certificate of review was required, the court dismissed all of plaintiff's claims for failure to file a certificate of review.

I.

Plaintiff contends that she was not required to file a certificate of review because defendant had not fully complied with the initial disclosure requirements of C.R.C.P. 26(a). Defendant argues that the requirement that a plaintiff file a certificate of review is independent of the requirement of initial disclosures. We agree with defendant.

A.

First, we find no support for plaintiff's contention in the plain language of the statute, the timing of the certificate of review, or the policy behind the certificate of review requirement.

Although the certificate of review statute states that the professional consulted must give his opinion after reviewing the "known facts," the statute does not mention a defendant's disclosure requirements. 20-602, C.R.98.2002. See § 13-

Further, the initial disclosures are not necessarily due before the certificate of review. Section 18-20-602 requires that the certificate of review be filed within sixty days of the service of the complaint, and C.R.C.P. 26(a)(1) requires that initial disclosures be filed within thirty days after the case is at issue. A case becomes at issue when all pleadings permitted by C.R.C.P. 7 have been filed. See C.R.C.P. 16(b). An in-state defendant generally has twenty days after service of the complaint to file an answer. If an answer with no counterclaim is filed within that time period, the initial disclosures would potentially be due no more than fifty days after the filing of the complaint. However, disclosures would not be due before the certificate of review if the at-issue date is extended by, for instance, a defendant seeking an extension of time within which to answer or filing counterclaims, cross-claims, third-party claims, or a motion to dismiss; or the plaintiff filing a reply to a counterclaim or an affirmative defense. See CRCP. 12(a). Such filings do not alter the deadline for a certificate of review. See § 13-20-602.

Furthermore, to conclude that full disclosures must precede a certificate of review would contravene the purpose of the certificate of review requirement, which is to prevent the filing of frivolous professional malpractice actions, to avoid unnecessary time and costs in defending professional negligence claims, and to reduce the resulting costs to society through increased insurance premiums attributable to the expenses associated with such claims. See State v. Nieto, 993 P.2d 498 (Colo.2000).

The certificate requirement thus forces a plaintiff to obtain additional professional confirmation that the complaint is not frivolous early in the case, before the defendant begins to incur expenses in providing discovery, compiling privilege logs, and the like.

B.

Second, we disagree with plaintiff that defendant's allegedly inadequate disclosures constituted "good cause" for an extension under the statute and that the court thereby abused its discretion by dismissing the claims.

The court may extend the time for filing a certificate of review beyond the sixty day period for "good cause." See § 13-20-602(1)(a), C.R.98.2002.

Whether good cause has been shown is a matter within the sound discretion of the trial court. Hane v. Tubman, 899 P.2d 332 (Colo.App.1995). The court must consider whether the neglect that resulted in the failure to file was excusable, whether the defendant had alleged a meritorious defense or claim, and whether relief from the challenged order would be consistent with the equitable considerations, such as whether any prejudice would acerue to the defendant if the order were set aside. Hane v. Tubman, supra.

Here, the trial court did not abuse its discretion. Plaintiff was given additional time to file a certificate of review or otherwise respond to the motion to dismiss, and she failed to do so within the time allotted.

Moreover, plaintiff argued that she was unable to determine whether she needed a certificate of review because defendant did not complete his initial disclosures and that no physician would give her a certificate without seeing defendant's records. However, with record support, the trial court ruled that plaintiff had all the necessary documents.

In addition, defendant had alleged a meritorious defense and would 'have been prejudiced because a trial date was set and discovery was scheduled to begin. See Rosenberg v. Grady, 843 P.2d 25 (Colo.App.1992)(court did not abuse its discretion in deferring ruling on motion to compel until plaintiff filed certificate of review).

C.

Third, we disagree with plaintiff that after the trial court determined a certificate of review was required, it erroneously dismissed her claims without giving her an opportunity to file one. Plaintiff did not respond to defendant's motion to dismiss in the additional time allotted, and when she finally responded, she failed to demonstrate that no expert testimony was required or that the court, in its discretion, should have found good cause for her failure to file. See Martinez v. Badis, 842 P.2d 245 (Colo.1992).

IL

Plaintiff next contends that the court erred in dismissing her claims because each did not require a certificate of review. We disagree.

A certificate of review states that the plaintiff has consulted with an expert in the area who has concluded that the claim does not lack substantial justification. See § 13-20-602. The requirement applies to any claim against a licensed professional that is based upon allegations of professional negligence and that requires expert testimony to establish a prima facie case, regardless of the formal designation of such claim. See Martinez v. Badis, supra; Baumgarten v. Cop-page, 15 P.8d 304 (Colo.App.2000); Teiken v. Reynolds, 904 P.2d 18387 (Colo.App.1995). The statute should be broadly read and applied to all cases based upon the alleged professional negligence of a licensed professional. See State v. Nieto, supra.

A.

Plaintiffs medical negligence claim alleges that defendant owed a duty of care to plaintiff, which he breached by not giving appropriate diagnosis, treatment, and followup of plaintiff's health problems. This claim of professional negligence required expert testimony and, consequently, a certificate of review.

Expert testimony is required to establish a prima facie case of professional negligence in the great majority of cases. When a plaintiff's claim requires a showing that the licensed professional breached a duty of care and that duty of care cannot be understood by a lay person without expert testimony, the claim requires a certificate of review. See Martinez v. Badis, supra; Armbruster v. Edgar, 73l P2d 757 (Colo.App.1986)(expert testimony necessary to show precise seope of physicians' standard of care). o

Here, to prove medical negligence, plaintiff would have to show, through expert testimony, the nature of defendant's duty of care with regard to diagnosis and followup treatment, as well as how defendant breached that duty of care. Therefore, a certificate of review was required. See Armbruster v. Edgar, supra.

Moreover, we disagree with plaintiff that a certificate of review was not required because her negligence claim was premised on the doctrine of res ipsa loquitur.

In some instances, a claim relying on the doctrine of res ipsa loquitur will not require a certificate of review because the facts create a presumption of negligence and, therefore, expert testimony is not necessary. See Shelton v. Penrose/St. Francis Healthcare System, 984 P.2d 623 (Colo.1999).

To the extent defendant contends that plaintiff was required to plead res ipsa loqui-tur in her complaint, we disagree. See Holmes v. Gamble, 624 P.2d 905 (Colo.App.1980)(res ipsa loquitur is not a cause of action or claim for relief in itself, but is merely a rule of evidence that defines cireumstances under which a presumption of negligence will arise as a matter of law), aff'd, 655 P.2d 405 (Colo.1982). Moreover, plaintiff raised this issue to the trial court; therefore, we will address it.

In any event, however, plaintiff's complaint does not set forth sufficient facts to trigger the doctrine of res ipsa loquitur.

Res ipsa loquitur requires that a plaintiff present evidence that the event is the kind which ordinarily does not occur in the absence of negligence; responsible causes other than the defendant's negligence are sufficiently eliminated by the evidence; and the presumed negligence is within the scope of the defendant's duty to the plaintiff. See Ravin v. Gambrell, 788 P.2d 817 (Colo.1990).

Res ipsa loquitur applies to a medical malpractice claim only when it is judicially determined that a particular unexplained occurrence creates a prima facie case of negligence without proof of specific misconduct. See Shelton v. Penwrose/St. Francis Healthcare Systems, supra. The doctrine applies where the cause of injury is so apparent that a lay person is as able as an expert to conclude that such things do not happen in the absence of negligence. Holmes v. Gamble, supra.

Here, plaintiff alleged that her kidney damage was caused by the prescribed medication. However, the relationship between the kidney damage and the prescribed medication is not so clear that a lay person would be able to conclude that the medication caused the damage without expert testimony. Moreover, plaintiff admitted to having seen other physicians before and after seeing defendant, such that other possible causes could not be eliminated. Compare Holmes v. Gamble, supra (evidence insufficient to eliminate other possible responsible causes, including plaintiff's own conduct and conduct of third persons), with Mudd v. Dorr, 40 Colo. App. 74, 574 P.2d 97 (1977)(res ipsa loquitur applies where surgeon left cottonoid sponge inside patient).

B.

Plaintiff's second claim for relief was "Breach of Confidential Relationship-Nondisclosure," wherein plaintiff claimed that defendant "had a duty to disclose the material fact of [plaintiff's] drug injuries." Specifically, plaintiff alleged that her past adverse reaction to the prescribed medications was documented in her medical records and that defendant failed to inform her of that specific documented risk.

Defendant argues, and the trial court found, that this claim alleged lack of informed consent and required a certificate of review. Plaintiff argues that a certificate of review was not required because the burden of showing defendant's standard of care had shifted to defendant. Under the circumstances here, we agree with defendant.

To show lack of informed consent, a plaintiff must show that the defendant did not obtain informed consent from the patient, that a reasonable person would not have consented to the procedure if information had been given to the plaintiff, and that the defendant's negligent failure to inform caused the plaintiff's damages. See Gorab v. Zook, 943 P.2d 423 (Colo.1997); Mallett v. Pirkey, 171 Colo. 271, 466 P.2d 466 (1970); Stauffer v. Karabin, 80 Colo.App. 857, 492 P.2d 862 (1971).

Whether the physician obtained informed consent from the patient implicates his or her duty of care. See Espander v. Cramer, 908 P2d 1171 (Colo.App.1995). However, the plaintiff does not necessarily have the burden of showing the standard of care in all lack of informed consent claims. If a plaintiff shows that a physician failed to inform her of any risks when she consented to a medical procedure, she has met that element of her prima facie case. The burden would then shift to the defendant to present expert testimony to show that the nondisclosure conformed with community standards. Gorab v. Zook, supra; Greenwell v. Gill, 660 P.2d 1805 (Colo.App.1982); Martin v. Bralliar, 86 Colo.App. 254, 540 P.2d 1118 (1975).

However, when a plaintiff does not claim complete nondisclosure of the risks, but instead argues that there was incomplete disclosure or that a specific risk was misas-sessed, the plaintiff has the burden of presenting expert testimony to show that the specific risk was substantial and should have been disclosed in conformance with community standards. See Bloskas v. Murray, 646 P.2d 907 (Colo.1982)(substantiality of a particular risk must be shown by expert medical testimony); Mallett v. Pirkey, supra (physi-clan has duty to inform patient of any substantial risk of a procedure to be performed and of specific risks, if such risks are known or ought to be known by the physician); Espander v. Cramer, supra (requiring certificate of review for claim of misassessment of risk and distinguishing cases involving complete nondisclosure); Teiken v. Reynolds, su-pro (certificate of review necessary where deceptive trade practices claim amounts to incomplete disclosure of risk claim).

The burden may shift to the defendant because a physician is not required to inform a patient of all known risks, only those that are substantial and which may affect the decision whether to proceed with a medication or procedure. See Mallett v. Pir-key, supra. Therefore, when a plaintiff claims a complete lack of disclosure of any risks, any substantial risks are subsumed within that claim. See Stauffer v. Karabin, supra.

Here, plaintiff did not allege a complete nondisclosure of risks, but rather argued that a substantial risk specific to her-her past allergic reaction-should have been disclosed before prescribing the medication.

Moreover, because this risk was specific to plaintiff, she must show that the risk existed and that defendant "knew or should have known" of the risk. Plaintiff must, therefore, present expert testimony showing that defendant had a duty to inspect past medical records for such information and that the medical records indeed revealed a known allergy to the drugs. CJL Baumgarten v. Coppage, supra (plaintiff's claim that brokers "should have known" and therefore should have disclosed information requires expert testimony and certificate of review).

C.

Plaintiff's "fraudulent concealment and fraud" claims also required a certificate of review. Plaintiff alleged fraudulent misrepresentation in that defendant knowingly misdiagnosed plaintiff with a mental health disorder to conceal his own negligence. Plaintiff also alleged fraudulent concealment in that defendant concealed material facts relating to plaintiff's injuries with the intent of creating a false impression that she did not have an allergic reaction to the medication.

1.

The elements of fraudulent misrepresentation are a knowing misrepresentation of material fact, reliance on the material misrepresentation, the right or justification in relying on the misrepresentation, and reliance resulting in damages. Nielson v. Scott, 58 P.3d 777 (Colo.App.2002).

Here, plaintiff must prove that defendant knew the diagnosis of a mental health disorder was incorrect or, in other words, that the misrepresentation was fraudulent. To do so, plaintiff must show that a . diagnosis of a mental health problem was unreasonable under the cireumstances, thereby ereating the inference that defendant knew it was false. Thus, plaintiff must show the standard of care for diagnosis and that defendant's conclusions could not have resulted from adherence to that standard. This showing must be made through expert testimony because a lay person would not be able to determine whether a particular diagnosis was reasonable. Cf Smith v. Boyett, 908 P.2d 508 (Colo.1995)(that physician knew diagnosis was incorrect usually must be shown by indirect evidence and inference).

2.

To prove a claim of fraudulent concealment, plaintiff must show concealment of a material fact that in equity and good conscience should be disclosed, knowledge on defendant's part that such a fact is being concealed, ignorance of that fact on plaintiff's part, the intention that the concealment be acted upon, and action on the concealment resulting in damages. See Nielson v. Scoff, supra.

Thus, to prove fraudulent concealment, plaintiff similarly must show, through indirect evidence in the form of expert testimony, that defendant was aware of a possible allergic reaction. An expert would not be able to show defendant's awareness circumstantially without analyzing standards for diagnosis and defendant's adherence to or disregard of those standards. See Smith v. Boyett, supra. i

Moreover, the fraudulent concealment claim also is based upon professional negli-genee because it requires plaintiff to show that defendant in equity and good conscience should have revealed the information or, in other words, that defendant had a duty to reveal the information. Thus, onee plaintiff establishes that defendant actually knew of the alleged concealed medical condition, plaintiff would then need to show whether defendant should have revealed that information to plaintiff, which showing requires expert testimony.

D.

Plaintiffs defamation claim alleged that defendant included in her medical records a statement regarding a "mental health problem," that this statement was false, and that it was intentionally published to subsequent treatment providers who received the records from defendant. The trial court found that the claim required a certificate of review, and we agree, but for reasons different from those relied upon by the trial court.

First, we disagree with the trial court's determination that plaintiff's defamation claim required a certificate of review because plaintiff had to show that defendant published the statement with fault amounting to at least negligence. Plaintiff could also prove a prima facie case by showing that defendant published the statement intentionally. See Williams v. District Court, 866 P.2d 908 (Colo.1998). And, even if defendant published the statement to other physicians inadvertently but with negligence, such negligence, in this context, would not necessarily implicate defendant's standard of care. See Martinez v. Badis, supra; cf. Siepierski v. Catholic Health Initiative Mountain Region, 37 P.3d 537 (Colo.App.2001)(assault and battery claims against hospital staff do not implicate standard of care).

However, we agree with defendant that the statement is subject to a privilege. Thus, on these grounds, we conclude that for plaintiff to establish a prima facie case, she needed a certificate of review.

Initially, we disagree with defendant that an absolute privilege protects statements made by persons in confidential relationships and that this privilege includes statements made by physicians in medical records. The class of absolutely privileged communications is necessarily narrow and is generally limited to situations that involve legislative, judicial, and quasi-judicial proceedings, and other acts of state. See Barakat v. Matz, 271 Ill.App.3d 662, 208 IIl.Dec. 111, 648 N.E.2d 1088 (1995).

Moreover, contrary to defendant's contention, the confidential relationship contemplated in the Restatement (Second) of Torts is that between husband and wife, not attorney and client or physician and patient. See Restatement (Second) of Torts § 592 (1977). And, the absolute privilege that exists for certain communications by an attorney to a third party is not the result of the confidential relationship between the attorney and the client but, rather, exists only when the attorney's statement is made in relation to a proposed or occurring judicial proceeding. See Restatement (Second) of Torts § 586, Club Valencia Homeowners Ass'n v. Valencia Associates, 712 P.2d 1024 (Colo.App.1985)(attorney's absolute privilege extends to statements preliminary to official proceedings).

However, we do agree with defendant that his statement is subject to a qualified privilege.

A qualified privilege exists for communications by a party with a legitimate interest or duty to persons having a corresponding interest or duty in communications promoting legitimate individual, group, or public interests. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Wigger v. McKee, 809 P24 999 (Colo.App.1990). Whether a qualified privilege exists is a question of law. See Churchey v. Adolph Coors Co., supra.

Physicians have a duty to provide adequate diagnosis and treatment to their patients. See McKay v. State Board of Medical Examiners, 108 Colo. 305, 86 P.2d 232 (1938)(malpractice consists of failure to exercise degree of care and skill in diagnosis or treatment). To fulfill that duty, physicians must be free to give their opinions and diagnoses and to share those diagnoses with other physicians when appropriate, without fear of being subject to a claim of liability in the event a diagnosis is displeasing to a patient. The physician receiving the information also has an interest in the previous opinions of other physicians, so as to better diagnose and treat the patients.

These corresponding interests result in a qualified privilege for a physician's diagnosis. Cf. Dominguez v. Babcock, 727 P.2d 8362 (Colo.1986)(supervisors have interest in comments concerning employee); Coopersmith v. Williams, 171 Colo. 511, 468 P2d 739 (1970)(letter from boy scout father to boy seout committee regarding trip leader subject to qualified privilege); Wigger v. McKee, supra (social worker's statements to therapist privileged); Barakat v. Matz, 271 IIl. App.8d 662, 208 Ill.Dec. 111, 648 N.E.2d 1033 (1995)(insurance carrier who received the alleged defamatory statement from a physician has interest in determining the validity of claim); Elia v. Erie Insurance Exchange, 430 Pa.Super. 384, 634 A.2d 657 (1998)(physi-clan's report to insurance carrier subject to conditional privilege).

A qualified privilege creates a presumption that the alleged defamatory communication was made in good faith and without malice. However, a plaintiff may overcome this presumption by showing, as a factual matter, that the defendant published the material with malice, that is, knowing the matter to be false or in reckless disregard of its truth. See Churchey v. Adolph Coors Co., supra (qualified privilege is a question of law, and malice is a question of fact); Domingues v. Babcock, supra.

Generally, in defamation cases, truth is an affirmative defense available to a defendant, and, therefore, it is not the plaintiffs initial burden to show that the statement is false. See Churchey v. Adolph Coors Co., supra; Gomba v. McLaughlin, 180 Colo. 2832, 504 P.2d 8387 (1972). However, it has been debated whether, in the absence of a qualified privilege, a plaintiff in a private defamation action may be required to show, as part of his or her prima facie case, that the statement was false. See CJI-Civ. 4th, ch. 22 (2000), Introductory Note, para. 5. In any event, certainly when, as here, the statement is subject to a qualified privilege, it is the plaintiff's burden to show not only that the statement was false, but that the defendant knew the statement was false. See Domingues v. Babcock, supra.

Thus, here, plaintiff was required to prove that defendant knew the statement was false, as she alleged in her complaint. And, as required for the fraudulent misrepresentation and fraudulent concealment claims already discussed, plaintiff thus was required to show by expert testimony that the mental health diagnosis was unreasonable under the circumstances, thus creating the inference that defendant knew it was false. CJL. Smith v. Boyett, supra (knowledge of falsity shown through indirect evidence). See generally State v. Nieto, supra (purpose of certificate of review statute calls for a broad reading and application to reach all cases based upon the alleged professional negligence of a licensed professional).

Here, the court correctly determined that plaintiff was required to file a certificate of review for all her claims, and its reasoning was correct as to the claims other than defamation. Moreover, the expert testimony required in a defamation claim when, as here, there is a qualified privilege, is similar to that required to prove a prima facie case of fraudulent concealment or fraudulent misrepresentation. Thus, a properly filed certificate of review on those latter claims necessarily would have sufficed as to the defamation claim as well. However, despite being giving considerable additional time to file any certificate of review, plaintiff failed to do so. Thus, because the court properly ruled that a certificate of review was required on all of plaintiffs claims, and because the court gave plaintiff ample time to file the certificate but plaintiff did not do so, the dismissal of the defamation claim was also proper.

Judgment affirmed.

Judge VOGT and Judge CRISWELL , concur.