Colorado Legislature Overturns Ferrer, Permits Direct Negligence Claims Alongside Respondeat Superior Claim

Denver, Colo. (September 20, 2021) – In May 2021, Colorado Governor Jared Polis signed HB21-1188, which explicitly overturned the Colorado Supreme Court’s ruling in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017). This law went into effect on September 7, 2021.

Under Ferrer, plaintiffs were prohibited from asserting direct negligence claims – such as negligent hiring, supervision, retention, and training – if the defendant company admitted vicarious liability for its driver at the time of the accident. As such, plaintiffs generally stopped asserting these claims or agreed to dismiss such claims after a defendant company filed an answer to the complaint admitting course and scope of employment. This significantly limited the discovery into companies that did not dispute their driver was acting in the course and scope of his employment.

Following aggressive lobbying by the plaintiffs’ bar (Colorado Trial Lawyers Association), the Colorado legislature proposed and passed HB21-1188, which states: “[W]hen an employer… acknowledges vicarious liability for an employee’s negligence, a plaintiff’s direct negligence claims against the employer… are not barred. A plaintiff may bring such claims, and conduct associated discovery, in addition to claims and discovery based on respondeat superior.” The bill further clarified, “It is the intent of the General Assembly to reverse the holding in Ferrer v. Okbamicael, 390 P.3d 836 (Colo. 2017), that an employer's admission of vicarious liability for any negligence of its employees bars a plaintiff's direct negligence claims against the employer.”

Lewis Brisbois’ national team of on-call transportation attorneys are prepared to defend against these claims and protect insured parties as discovery expands pursuant to this new law. For more information, contact the authors of this alert or visit our Transportation Practice page to find additional alerts in this area.

Authors:

Katherine L. Vaughn, Partner

Amy Johnson, Associate