Mathew Barnhart v. American Furniture Warehouse Co, 2013COA158 (Nov. 21, 2013)

“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.


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