“Death is a very dull, dreary affair, and my advice to you is to have nothing whatever to do with it.” – Somerset Maugham. This case involves Colorado’s Wrongful Death Act CRS 13-21-201, which allows a decedent’s surviving spouse the exclusive right to bring such an action within the first year after the date of death; heirs have a right to bring an action after the second year, but there may be “only one civil action.” Here, husband settled a wrongful death claim without bringing an action; son then brought an action. Defendant claims the earlier settlement bars the later action. The court of appeals construed the word “action” to include settlement and not just a judicial proceeding. The court also construed the word “shall” to be directory (should, may, will) and not mandatory. Thus, the out-of-court settlement by a beneficiary with the primary right to sue binds later beneficiaries.
Monthly Archives: November 2013
In re the Estate of Carol S. Gattis, deceased. Scott M. Gattis, Linda L. Spreitzer, and Amy G. Goeden, as Personal Representatives, v. John E. McNutt; Timothy A. McNutt; and Christopher L. Boortz, 2013COA145 (Nov. 7, 2013)
This is a case of how NOT to flip a house. Defendants bought a house, repaired damage caused by expansive soils, and then sold it to Plaintiffs. In the standardized Seller Property Disclosure form, Defendants claimed no knowledge of expansive soils. Plaintiffs brought a nondisclosure tort claim after the soils damaged the home. Defendants asserted the Economic Loss Rule as a defense, which was rejected by the trial court. As a matter of first impression, the court of appeals held the economic loss rule does not bar nondisclosure tort claims arising from a house built on expansive soils. First, home sellers owe home buyers an independent duty to disclose latent defects of which they are aware. Second, common law duties remain with standardized form contracts that do not set out a standard of care, limit rights to specific disclosures, or provide express remedies for nondisclosure.
Effective September 5, 2013, Colorado Rule of Civil Procedure 4 (and a reference in Rule 15) has been amended to add a completely new section stating that a case may be dismissed if a defendant is not served within 63 days after the complaint is filed. A copy of the text is below, as well as a link to the court’s official rule change.
Rule 4. Process
(a) through (k) [NO CHANGE]
(l) No Colorado Rule.
(m) TIME LIMIT FOR SERVICE. IF A DEFENDANT IS NOT SERVED WITHIN 63 DAYS (NINE WEEKS) AFTER THE COMPLAINT IS FILED, THE COURT–ON MOTION OR ON ITS OWN AFTER NOTICE TO THE PLAINTIFF–SHALL DISMISS THE ACTION WITHOUT PREJUDICE AGAINST THAT DEFENDANT OR ORDER THAT SERVICE BE MADE WITHIN A SPECIFIED TIME. BUT IF THE PLAINTIFF SHOWS GOOD CAUSE FOR THE FAILURE, THE COURT SHALL EXTEND THE TIME FOR SERVICE FOR AN APPROPRIATE PERIOD. THIS SUBDIVISION (m) DOES NOT APPLY TO SERVICE IN A FOREIGN COUNTRY UNDER RULE 4(d).
Effective as of October 10, 2013, the form for a summons has also been changed to add specific language explaining the rules governing the next steps after a summons is served:
Form 1. SUMMONS
Caption and body of the Summons form [NO CHANGE]
This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be served with this Summons. This form should not be used where service by publication is desired.
WARNING: A VALID SUMMONS MAY BE ISSUED BY A LAWYER AND IT NEED NOT CONTAIN A COURT CASE NUMBER, THE SIGNATURE OF A COURT OFFICER, OR A COURT SEAL. THE PLAINTIFF HAS 14 DAYS FROM THE DATE THIS SUMMONS WAS SERVED ON YOU TO FILE THE CASE WITH THE COURT. YOU ARE RESPONSIBLE FOR CONTACTING THE COURT TO FIND OUT WHETHER THE CASE HAS BEEN FILED AND OBTAIN THE CASE NUMBER. IF THE PLAINTIFF FILES THE CASE WITHIN THIS TIME, THEN YOU MUST RESPOND AS EXPLAINED IN THIS SUMMONS. IF THE PLAINTIFF FILES MORE THAN 14 DAYS AFTER THE DATE THE SUMMONS WAS SERVED ON YOU, THE CASE MAY BE DISMISSED UPON MOTION AND YOU MAY BE ENTITLED TO SEEK ATTORNEY’S FEES FROM THE PLAINTIFF.
TO THE CLERK: If the summons is issued by the clerk of the court, the signature block for the clerk or deputy should be provided by stamp, or typewriter, in the space to the left of the attorney’s name.