

Suydam v. LFI Fort Pierce, Inc.

2020 COA 144. No. 19CA0804. Employment Law—Going and Coming Rule—Jury Instruction—Voluntary Dismissal—Non-Party at Fault.

October 8, 2020

Suydam was struck by two cars while riding his bicycle through an intersection and was rendered a quadriplegic. Brewer, an employee of LFI Fort Pierce, Inc. (LFI), was the driver of the first car, and Tecmire was the driver of the second car.

Suydam and his wife filed a lawsuit against Brewer, LFI, and Tecmire, alleging that LFI was liable for any damages awarded against Brewer because she was performing job duties for LFI at the time of the accident. They obtained a default against Tecmire after he failed to respond to their complaint. Following a six-day trial, a jury awarded the Suydams more than $54 million in damages, including more than $32 million for physical impairment or disfigurement. The jury determined that Brewer (and LFI) was responsible for 90% of the damages and Tecmire was responsible for the remaining 10%.

On appeal, LFI argued that the trial court erred by failing to give the jury a separate instruction on the “going and coming” rule, which addresses when an employer is liable for the actions of an employee who is traveling between work and home or another personal destination. LFI’s principal defense at trial was that Brewer was driving home and not working for LFI when she struck Suydam, and both of LFI’s proposed jury instructions referred to “driving home from work.” However, the evidence showed that at the time of the incident Brewer was engaged in an act or performing a duty under the express or implied direction of LFI. Further, the scope of work instruction the court gave the jury was supported by the evidence at trial. Accordingly, the trial court did not abuse its discretion by rejecting LFI’s tendered going-and-coming instructions.

LFI also argued it was error to change Tecmire’s status from a defaulted defendant to a nonparty on the second day of trial and that error is grounds for a new trial. However, the change in status did not prejudice LFI because the trial court instructed the jury at the beginning of trial that Tecmire was liable to the Suydams and a cause of their damages. Thus, the trial court did not err.

LFI also challenged the damages award on grounds that (1) the Suydams’ counsel impermissibly argued that the jury should calculate damages for physical impairment or disfigurement on a per diem basis, and (2) the damages award must be set aside because Colorado law does not draw a meaningful distinction between those noneconomic damages that are subject to a statutory cap and noneconomic damages for physical impairment or disfigurement, which are not capped. The court declined to address these arguments because they were not properly preserved.

The judgment was affirmed.


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