Estate of Ross v. Public Service Co. of Colorado.
2025 COA 31. No. 23CA1537. Wrongful Death—Limitation on Damages—Felonious Killing Exception—Corporations—49 C.F.R. § 192.614.
March 20, 2025
Heather Gardens Association (Heather Gardens) operates a retirement community that has townhomes. It contracted with Comcast to install underground fiber optic cables for internet and television services, and Comcast contracted other companies to manage excavation and drilling work for the project (the excavators). Public Service Company of Colorado, d/b/a Xcel Energy (PSCo), operated natural gas pipelines underneath Heather Gardens and documented that the excavators damaged the gas lines six times as the project progressed. During the sixth incident, excavators were drilling near Ross’s home without first obtaining markers for underground pipelines when their drill ruptured one of the gas lines. The rupture caused a large explosion that killed Ross and destroyed her home. The estate of Ross by and through its personal representatives and Ross’s heirs (collectively, Ross) sued the excavators, Comcast, Heather Gardens, and PSCo. The excavators, Comcast, and Heather Gardens settled the claims against them. Ross’s claims against PSCo for wrongful death, negligence, negligence per se, strict liability, and extreme and outrageous conduct proceeded to trial. The district court entered judgment against PSCo by first apportioning Ross’s damages by fault allocation, awarding Ross 12% of the total $15 million in damages in accordance with PSCo’s apportioned fault, and then capped the damages at $436,070.
On appeal, Ross argued the district court erred by concluding that the felonious killing exception to the Wrongful Death Act’s (WDA) damages cap does not apply to corporations. Before trial, Ross petitioned the district court for a determination of a question of law that the “felonious killing exception” (the exception) to the noneconomic damages cap in CRS § 13-21-203(1)(a) of the WDA applied to Ross’s wrongful death claim. The district court concluded that the statute’s plain language does not allow an entity to be liable for a felonious killing. The court of appeals concluded that in the context of the WDA, the legislature intended to allow the damages cap to be lifted when both individuals and corporations commit felonious killings. Accordingly, the district court erred in interpreting the word “individual” in § 15-11-803(1)(b) of the Probate Code. And based on its interpretation, the district court refused to consider PSCo’s argument that any error would have been harmless because there was no evidence that it committed a felonious killing, so remand is warranted.
Ross also contended that the district court erred when it ruled that 49 C.F.R. § 192.614 (the inspection regulation) does not require an operator to inspect or regulate excavation activities near the pipeline. Before trial, PSCo moved for a determination of law that the inspection regulation did not require it to supervise the excavators at Heather Gardens. The court concluded that the inspection regulation required PSCo to inspect the pipeline to ensure that the excavators did not damage it, but it did not require PSCo to contemporaneously supervise the excavators’ actions. The court concluded that the inspection regulation requires operators to inspect pipelines to verify their integrity when necessary. Accordingly, the district court did not misinterpret the inspection regulation. It follows that its later decision to allow Ross’s expert to testify only broadly about the inspection regulation and to allow the jury to consider the inspection regulation as evidence of a standard of care were appropriate.
Ross also argued that the district court erred by separately listing nonparty defendants on the verdict form, asserting that these entities should have been listed together for one allocation of fault. Ross maintained that the instruction was erroneous because it allowed the jury to find multiple nonparty actors responsible for the same conduct (the actual line strike) and that there should not be an allocation of fault for “derivative” conduct. Ross also argued that only some of the nonparties should have been included on the verdict form. Here, the district court included the nonparties on the verdict form because of Instruction 26, which allowed the jury to determine if (1) the nonparties were negligent; and (2) the negligence caused Ross’s injuries, losses, or damages. Instruction 27 added that, if the jury found that the nonparties’ negligence caused Ross’s damages, it was also required to determine the extent to which the negligence of each contributed to the plaintiffs’ damages, “expressed as a percentage of 100 percent.” These instructions and the resulting verdict form reflect the requirements of CRS § 13-21-111.5(1)–(2), concerning the pro rata liability of defendants in civil liability cases and providing that the jury must return a special verdict regarding each defendant’s respective degree or percentage of negligence or fault.
On cross-appeal, PSCo argued that the district court improperly applied the WDA’s damages cap when it first apportioned liability. Under Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008), the WDA’s damages cap limits a plaintiff’s recovery on a per claim basis. Here, the district court’s ruling that the felonious killing exception did not apply led it to apply the WDA damages cap to limit Ross’s noneconomic damages to $436,070. The district court erred by first apportioning PSCo’s damages to its 12% of fault before applying the cap. On remand, if the district court finds that the felonious killing exception applies, then it must award Ross 12% of the $15 million noneconomic damages award ($1.8 million). But if it finds that the felonious killing exception does not apply, it must award Ross 12% of the total capped recovery award ($52,328.40).
The judgment was affirmed in part and reversed in part, and the case was remanded for the court to determine if the felonious killing exception applies and to recalculate Ross’s noneconomic damages with any appropriate interest.