Curry v. Brewer.
2025 COA 28. No. 24CA0364. Workers’ Compensation—Coverage and Liability—Independent Contractors—Cause of Action Brought Against Another Not in the Same Employ—Evidence of Negligence.
March 13, 2025
Curry and Brewer are both Georgia residents. They worked under separate independent contracts for Ideal Transport, LLC, a Texas-based transportation company with an office in Georgia. Home Depot contracted with Ideal Transport for delivery services to and from their Aurora, Colorado, store. Brewer backed a truck up to a Home Depot loading dock. Curry unloaded a refrigerator from Brewer’s truck, but Brewer prematurely pulled away from the loading dock, and Curry was injured. After the incident, Curry filed a workers’ compensation claim against Ideal Transport’s insurer, but Curry’s claim was denied. Curry filed a personal injury suit against Ideal Transport and, as relevant here, named Brewer as a defendant. Ultimately, all defendants and claims, except the negligence claim against Brewer, were dismissed. Before trial, Brewer’s counsel moved to limit damages to $15,000 pursuant to CRS §§ 8-41-401(3) and 8-40-202(2) of the Colorado Workers’ Compensation Act (WCA). While the court found that Brewer and Curry worked for the same employer, Ideal Transport, and were therefore “in the same employ,” the court denied the motion and found that the damages limitation did not apply to Curry’s claim, as Curry was not an employee as defined by the WCA. A jury found Brewer liable for Curry’s injuries and awarded Curry noneconomic damages of $219,000 and physical impairment and disfigurement damages in the amount of $734,152.50.
On appeal, Brewer argued that the trial court erred by denying his motion to limit Curry’s damages under § 8-41-401(3). He maintained that Curry chose to opt out of WCA coverage, so the statutory limitation on damages applies to Curry because it applies to independent contractors who have work-related injuries after electing not to obtain workers’ compensation coverage. First, Brewer failed to cite any authority requiring independent contractors to secure coverage for the negligence of other independent contractors with whom they work. Under the WCA, individuals excluded from the definition of employee have no cause of action pursuant to § 8-40-202(2), which excludes independent contractors from the definition of employee. The court of appeals thus held that an independent contractor who is injured on the job by another independent contractor’s negligence may recover damages in excess of the $15,000 WCA limit because they are third parties to each other, not co-employees “in the same employ.” The court concluded that Curry and Brewer are such third parties, so the trial court erred by finding that Curry and Brewer were in the same employ. However, the court nonetheless properly found that the damages limitation did not apply.
Brewer also contended that the trial court erroneously excluded evidence of other injuries Curry sustained before and after the incident, so the jury was deprived of its ability to determine the cause of the decline in Curry’s quality of life. However, the trial court did not abuse its discretion by finding that Curry’s previous and subsequent injuries were irrelevant to the injuries he suffered during the incident and thus were not admissible.
Brewer further asserted that the trial court erroneously permitted Curry’s counsel to call Chavez, an eyewitness to the accident, because her identity was not disclosed until three days before the trial began, which was beyond the witness disclosure deadline. Here, Curry’s deposition testimony stated that there was a female witness that he could not identify at that time, so Brewer’s counsel could anticipate Chavez’s potential testimony. Curry immediately disclosed Chavez’s identity on the same day that his counsel discovered her identity through another witness, and the record shows that Brewer’s counsel spoke to Chavez right before the trial began. Further, Chavez’s testimony was generally consistent with Curry’s testimony and Brewer was able to cross-examine her extensively about the incident, so Brewer was not deprived of any substantial right. Therefore, the trial court did not abuse its discretion by allowing Chavez to testify.
Brewer additionally contended that the trial court erroneously admitted Curry’s medical bills and a CRE 1006 summary of Curry’s medical bills on hearsay and foundational grounds. Here, the admissibility requirements were not met, so the court erred by admitting the medical records for the purpose of proving the truth of their contents. And because the records constitute inadmissible hearsay, the Rule 1006 summary was inadmissible for the same reasons. However, reversal is not required because the medical records and summary were cumulative of Curry’s testimony on the noneconomic damages he incurred and the expenses he incurred for medical treatment.
The judgment was affirmed.