v. Spalding Rehabilitation

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 20, 2019

2019COA93

No. 18CA1067, Ferguson v. Spalding Rehabilitation —
Wrongful Death; Damages for Death by Negligence — Damages
for Death — Recovery by Heir or Heirs of the Deceased

A division of the court of appeals holds that an adult adoptee

is a “lineal descendant” of the adoptive parent and therefore an

“heir” of that parent within the meaning of section 13-21-

201(1)(b)(I)(B), C.R.S. 2018, of the Wrongful Death Act. Thus, an

adult adoptee can assert a wrongful death claim on behalf of the

decedent parent in the second year after that person’s death.
COLORADO COURT OF APPEALS 2019COA93

Court of Appeals No. 18CA1067
City and County of Denver District Court No. 17CV33101
Honorable Brian R. Whitney, Judge

Marty Ferguson, individually and as Personal Representative of the Estate of
Ann Marilyn Ferguson, deceased,

Plaintiff-Appellant,

v.

Spalding Rehabilitation, LLC; Sundeep Viswanathan, M.D.; Orhan Sancaktar,
M.D.; Jason D. Dewees, M.D.; Aleksandra Basheer Kamal, M.D.; Maryann
Bucani-Go, M.D.; Thomas A. Haffey, D.O.; and Bakorp LLC, d/b/a Pacific
Mobile Diagnostics,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE J. JONES
Román and Lipinsky, JJ., concur

Announced June 20, 2019

Wormington & Bollinger, Edwin P. Krieger, McKinney, Texas, for Plaintiff-
Appellant

Hall Prangle & Schoonveld, LLC, Jacqueline B. Sharuzi-Brown, Todd J.
Stalmack, Donna Bakalor, Denver, Colorado, for Defendants-Appellees
Spalding Rehabilitation, LLC; Sundeep Viswanathan, M.D.; and Orhan
Sancaktar, M.D.

Jaudon & Avery LLP, David H. Yun, Jared R. Ellis, Denver, Colorado, for
Defendants-Appellees Jason D. Dewees, M.D.; Aleksandra Basheer Kamal,
M.D.; Maryann Bucani-Go, M.D.; and Thomas A. Haffey, D.O.
Gordon & Rees LLP, John R. Mann, Thomas B. Quinn, Heather M. Gwinn
Pabon, Denver, Colorado, for Defendant-Appellee Bakorp LLC
¶1 Section 13-21-201(1)(b)(I)(B), C.R.S. 2018, a part of the

Wrongful Death Act (WDA), says that a wrongful death suit may be

brought in the second year after a decedent’s death “[b]y the heir or

heirs of the deceased.” But is a person adopted as an adult by the

decedent considered the decedent’s “heir” under this provision of

the WDA? The district court answered this question “no,” and

therefore dismissed plaintiff Marty Ferguson’s negligence lawsuit

against various medical professionals and providers — a lawsuit

that she brought on behalf of her late, adoptive parent, Ann Marilyn

Ferguson. 1 We, however, answer this question “yes,” and therefore

reverse the district court’s judgment.

I. Background

¶2 Ann and Jim Ferguson adopted Marty in 1995 when Marty

was twenty-five years old. Ann died in October 2015 after being

examined or treated by defendants. (Jim had died some time

before.)

1 Because plaintiff and decedent share the same last name, we refer
to them as Marty and Ann, without intending any disrespect.

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¶3 Marty’s complaint alleges that defendants, Spalding

Rehabilitation, LLC; Sundeep Viswanathan, M.D.; Orhan

Sancaktar, M.D.; Jason D. Dewees, M.D.; Aleksandra Basheer

Kamal, M.D.; Maryann Bucani-Go, M.D.; Thomas A. Haffey, D.O.;

and Bakorp LLC, d/b/a Pacific Mobile Diagnostics, caused Ann’s

death by failing to properly diagnose and treat her illness.

Defendants moved to dismiss under C.R.C.P. 12(b)(5), contending

that Marty doesn’t have standing to file a wrongful death suit on

Ann’s behalf because an adult adoptee isn’t an “heir” within the

meaning of the WDA. After converting the motion to dismiss into a

motion for summary judgment, the court granted the motion,

agreeing with defendants’ position that Marty isn’t an “heir” as that

term is used in section 13-21-201(1)(b)(I)(B). The court also ruled

that Marty isn’t Ann’s “designated beneficiary,” see §§ 15-22-101 to

-112, C.R.S. 2018, a different status that would allow Marty to sue

on Ann’s behalf under the WDA. See § 13-21-201(1)(b)(I)(D).

II. Discussion

¶4 Marty raises two issues on appeal. First, she challenges the

district court’s ruling that because, as an adult adoptee, she’s not

an heir within the meaning of section 13-21-201(1)(b)(I)(B), she

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doesn’t have standing to sue under the WDA. Second, she

contends that the district court erred in finding that she isn’t Ann’s

designated beneficiary under the WDA.

¶5 Because we conclude that Marty is an heir with a right to sue

on Ann’s behalf under the WDA, we don’t address her second

contention.

A. Standard of Review

¶6 As noted, defendants labeled their motion as one under Rule

12(b)(5), and the district court treated it as one under C.R.C.P. 56

because the parties submitted evidence outside the complaint

(which the court considered). See C.R.C.P. 12(b). But because the

motion challenged Marty’s standing, it was really one under Rule

12(b)(1) contesting the district court’s subject matter jurisdiction.

See Hansen v. Barron’s Oilfield Serv., Inc., 2018 COA 132, ¶ 7. This

is so even though the court considered evidence outside the

complaint. See 2 James Wm. Moore et al., Moore’s Federal Practice

§ 12.30[3], at 12-42 (3d ed. 2015); 5B Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 1350, at 159-60 (3d ed.

2004).

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¶7 Whether a party has standing is a legal question that we

review de novo. Hansen, ¶ 8. And while we review a district court’s

factual findings for clear error and its legal conclusions de novo

when considering an order under Rule 12(b)(1), id., when, as in this

case, the relevant facts aren’t disputed, our review is entirely de

novo, see Asphalt Specialties Co. v. City of Commerce City, 218 P.3d

741, 744 (Colo. App. 2009); Hansen v. Long, 166 P.3d 248, 250-51

(Colo. App. 2007).

¶8 Resolving this case turns on the meaning of statutes. We also

decide such questions de novo. Hansen, ¶ 9; Traer Creek-EXWMT

LLC v. Eagle Cty. Bd. of Equalization, 2017 COA 16, ¶ 8.

B. Applicable Law

¶9 The WDA says that in the second year after the death of a

person, the “heir or heirs of the deceased” may sue to recover on

behalf of a decedent who died from an injury caused by another’s

negligence. §§ 13-21-201(1)(b)(I)(B), -202, -203(1)(a), C.R.S. 2018.

But because the WDA doesn’t define the term “heir,” we must turn

to familiar principles of statutory interpretation to determine the

term’s meaning.

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¶ 10 Of course, we strive to discern and give effect to the General

Assembly’s intent. Traer Creek, ¶ 9; Krol v. CF & I Steel, 2013 COA

32, ¶ 15.

We look first to the statutory language, giving
the words and phrases used therein their plain
and ordinary meanings. We read the language
in the dual contexts of the statute as a whole
and the comprehensive statutory scheme,
giving consistent, harmonious, and sensible
effect to all of the statute’s language.

Krol, ¶ 15 (citation omitted). If, after doing this, we conclude that

the statute isn’t ambiguous, we enforce it as written without

resorting to other rules of statutory interpretation. Id. But if we

conclude otherwise, we may consider other indicators of legislative

intent. See § 2-4-203, C.R.S. 2018; Bd. of Cty. Comm’rs v. Costilla

Cty. Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004).

C. Analysis

¶ 11 The commonly understood meaning of the word “heir” is “a

person who inherits real or personal property.” Allen v. Pacheco, 71

P.3d 375, 380 (Colo. 2003) (quoting Black’s Law Dictionary 727 (7th

ed. 1999)); see also § 15-10-201(24), C.R.S. 2018 (defining “heirs”

for purposes of the Colorado Probate Code as “persons . . . who are

entitled under the statutes of intestate succession to the property of

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a decedent”); Binkley v. Switzer, 75 Colo. 1, 3, 223 P. 757, 758

(1924) (“[T]he word ‘heir’ includes such persons as would take

under the statute of descent and distribution.”); Black’s Law

Dictionary 839 (10th ed. 2014) (defining “heir” as “[s]omeone who,

under the laws of intestacy, is entitled to receive an intestate

decedent’s property”); Webster’s Third New International Dictionary

1050 (2002) (defining “heir” as “one who inherits or is entitled to

succeed to the possession of property after the death of its owner”).

And that appears to have been the commonly understood meaning

of the word when way back in the 1870s the General Assembly

adopted the first iteration of the WDA, which included the phrase

“by the heir or heirs of the deceased,” G.L. 1877, § 877. See Black’s

Law Dictionary 565 (1st ed. 1891) (defining “heir” as “[a] person who

succeeds, by the rules of law, to an estate in lands, tenements, or

hereditaments, upon the death of his ancestor, by descent and right

of relationship”).

¶ 12 Is an adult adoptee, such as Marty, an “heir” under this

commonly understood meaning? Most certainly. Such an adoptee

is an “heir at law . . . entitled to inherit from the [person adopting

the adult] in all respects as if such adopted person had been the

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[adoptive parent’s] child born in lawful wedlock.” § 14-1-101(2),

C.R.S. 2018. 2 Indeed, defendants don’t dispute that Marty is an

heir as the word is commonly understood.

¶ 13 Given the principles of statutory interpretation recited above,

that might seem to be the end of the matter. But it isn’t.

¶ 14 In 1897, the supreme court, looking to the whole of the WDA,

held that “heir or heirs” in the WDA means only “lineal

descendants” — the “child or children” of the deceased. Hindry v.

Holt, 24 Colo. 464, 466-67, 51 P. 1002, 1003-04 (1897). Ever since

then, Colorado courts have applied Hindry’s interpretative gloss to

cases brought by a variety of claimed heirs under the WDA. E.g.,

McGill v. Gen. Motors Corp., 174 Colo. 388, 389-91, 484 P.2d 790,

790-91 (1971) (parents of deceased not lineal descendants entitled

to sue under the WDA); Blom v. United Air Lines, Inc., 152 Colo.

486, 487-88, 382 P.2d 993, 994-95 (1963) (sister not a lineal

descendant); Martin v. Cuellar, 131 Colo. 117, 118, 121-22, 279

2 True, section 14-1-101(2), C.R.S. 2018, uses the term “heir at law”
rather than “heir.” But the commonly understood meanings of
those terms appear to be the same. See Black’s Law Dictionary 839
(10th ed. 2014); Black’s Law Dictionary 565-66 (1st ed. 1891).

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P.2d 843, 843-45 (1955) (adoptive mother of deceased adult adoptee

not a lineal descendant); McCord v. Affinity Ins. Grp., Inc., 13 P.3d

1224, 1227 (Colo. App. 2000) (daughter of deceased was a lineal

descendant); Ablin v. Richard O’Brien Plastering Co., 885 P.2d 289,

290-92 (Colo. App. 1994) (brother and sister of deceased not lineal

descendants).

¶ 15 So to answer the dispositive question whether Marty is an heir

under the WDA, we must decide whether an adult adoptee is a

“lineal descendant” of a decedent.

¶ 16 Lineal descendants are a subset of heirs. That subset is first

limited to heirs who are “lineal” — that is, “in a line; especially a

direct line, as from father to son.” Black’s Law Dictionary 724 (1st

ed. 1891); see Rocky Mountain Fuel Co. v. Kovaics, 26 Colo. App.

554, 556, 144 P. 863, 865 (1914) (“A lineal heir is one who inherits

in line either ascending or descending from the common source as

distinguished from a collateral heir.”). It is also limited to heirs who

are “descendants”: a descendant is “[o]ne who is descended from

another; a person who proceeds from the body of another, such as a

child, grandchild, etc., to the remotest degree.” Black’s Law

Dictionary 359 (1st ed. 1891). Combining these two limitations, we

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arrive at the following meaning of lineal descendant: “[o]ne who is in

the line of descent from the ancestor.” Black’s Law Dictionary 531

(4th ed. 1951); accord Black’s Law Dictionary 445 (6th ed. 1990);

see also Black’s Law Dictionary 539 (10th ed. 2014) (“A blood

relative in the direct line of descent. ● Children, grandchildren, and

great-grandchildren are lineal descendants.”). This meaning is

plainly what the Hindry court had in mind, as it equated “children”

with “lineal descendants.” 24 Colo. at 466, 51 P. at 1003.

¶ 17 Our conclusion on this point advances the ball, but we’re still

not over the goal line. Now we must answer a subsidiary question:

Is an adult adoptee a person in the direct line of descent from the

adoptive parent? We answer this question “yes” for two dependent

reasons and a third independent reason.

¶ 18 First, the term lineal descendant has been historically

understood to include adopted children. See Black’s Law

Dictionary 445 (6th ed. 1990); Black’s Law Dictionary 531 (4th ed.

1951); see also In re Cadwell’s Estate, 186 P. 499, 500-01 (Wyo.

1920) (an adopted child is a “lineal descendant”). Colorado’s

statutes pertaining to intestate succession reflect that

understanding. § 15-10-201(11) (“descendant” includes all “lineal

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descendants of all generations, with the relationship of parent and

child at each generation” determined as set forth in the Probate

Code); § 15-11-103, C.R.S. 2018 (dictating when “descendants”

share in an intestate estate); § 15-11-116, C.R.S. 2018 (with

exceptions not relevant in this case, “if a parent-child relationship

exists . . . the child is a child of the parent for the purpose of

intestate succession”); § 19-5-211(1), C.R.S. 2018 (“After the entry

of a final decree of adoption, the person adopted is, for all intents

and purposes, the child of the [adopting parent].”).

¶ 19 Second, section 14-1-101 places persons adopted as adults on

the same footing as persons adopted as children, indeed, as natural

born children, for purposes of intestate succession. It says that an

adult adoptee is “entitled to inherit from the [adoptive parent] any

property in all respects as if such adopted person had been the

[adoptive parent’s] child born in lawful wedlock.” § 14-1-101(2). As

we have seen, it is the right to inherit as a direct line descendant

that makes one a “lineal descendant.” Adopted children, including

adults adopted under section 14-1-101, have that right: they are

children of a descendant for purposes of intestate succession.

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¶ 20 And third, deeming an adult adoptee a lineal descendant of a

decedent comports with Hindry’s rationale. The Hindry court

reasoned that “heirs” are limited to lineal descendants in part

because the WDA seeks to limit recovery to those individuals most

likely to suffer pecuniary loss as a result of a decedent’s death. 24

Colo. at 466-67, 51 P. at 1003; see also McGill, 174 Colo. at 391,

484 P.2d at 791; Ablin, 885 P.2d at 291. As a direct descendant of

Ann by law, Marty is such an individual: she is one who would have

derived “pecuniary benefit from the continuance of the life of [the]

deceased,” Hindry, 24 Colo. at 466, 51 P. at 1003, through the

continued building up of Ann’s estate.

¶ 21 Urging a contrary conclusion, defendants rely on several

cases, all of which we conclude are distinguishable.

¶ 22 Martin concerned a claim by the adoptive mother of the

decedent, whom the mother had adopted when the decedent was an

adult. The court held that the predecessor statute to section 14-1-

101 didn’t give adopting parents the status of father or mother

under the WDA. 131 Colo. at 119-22, 279 P.2d at 844-45. But as

discussed, section 14-1-101 does give the adoptee the status of a

lineal descendant.

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¶ 23 Ablin holds only that a brother of a decedent is a collateral

descendant, not a lineal descendant of the decedent. The division

rejected the brother’s argument that amendments to the WDA had,

in effect, abrogated the court’s decision in Hindry. 885 P.2d at 290-

92.

¶ 24 In Herrera v. Glau, the division declined to extend the meaning

of lineal descendant to the decedent’s stepbrother. After the

decedent’s death, a probate court ruled that the stepbrother had

been “equitably adopted” by the decedent. 772 P.2d 682, 683-84

(Colo. App. 1989). Whatever the merits of that decision, it didn’t

involve, as this case does, a statute expressly making the adoptee a

lineal descendant of a decedent. 3

¶ 25 To sum up, we hold that an adult adoptee is a lineal

descendant of a decedent, and therefore an “heir” as that term, as

construed in Hindry, is used in section 13-21-201(1)(b)(I)(B). It

3 Certain defendants also cite Brunton v. International Trust Co., 114
Colo. 298, 164 P.2d 472 (1945), for the proposition that adopted
children aren’t lineal descendants. But that case only interpreted
the particular language of a trust document; it didn’t announce a
broader rule.

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follows that the district court erred in concluding to the contrary

and dismissing Marty’s complaint.

III. Defendants’ Requests for Attorney Fees

¶ 26 Because we have concluded that the judgment must be

reversed, we necessarily deny defendants’ requests for attorney fees

incurred on appeal under section 13-17-201, C.R.S. 2018.

IV. Conclusion

¶ 27 The judgment is reversed, and the case is remanded for

further proceedings.

JUDGE ROMÁN and JUDGE LIPINSKY concur.

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