Chapter 53 - § 53.22 • CO-FIDUCIARIES' JOINT AND SEVERAL LIABILITY|COMPARATIVE FAULT

• Jurisdiction: Colorado

§ 53.22 • CO-FIDUCIARIES' JOINT AND SEVERAL LIABILITY/COMPARATIVE FAULT

For many years, there has been confusion regarding the liability of co-fiduciaries for breach of fiduciary duty. Some courts have made a distinction between equitable claims (i.e., surcharge) versus legal claims (i.e., tort) holding that pro rata liability under the comparative fault statute applied to tort claims, while joint and several liability applied to breach of fiduciary duty claims. Often, this leads to confusion when a plaintiff has asserted both negligence and surcharge claims against co-fiduciaries. The pro rata liability statute, C.R.S. § 13-21-111.5(1) provides:

In an action brought as a result of a death or an injury to a person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced that claimed injury, death, damage, or loss, except as provided in subsection (4) of this section.

Subsection (4) provides:

Joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act. Any person held jointly liable under this subsection (4) shall have a right of contribution from his fellow defendants acting in concert. A defendant shall be held responsible under subsection (4) only for the degree or percentage of fault assessed to those persons who are held jointly liable . . . . [Resolution Trust Corp. v. Heiserman, 898 P.2d 1049 (Colo. 1995).]

The Colorado Court of Appeals held in In re Becker, 405 P.3d 499 (Colo. App. 2017), that when co-fiduciaries are sued for breach of fiduciary duty, pursuant to C.R.S. §§ 15-10-501 through -505 of the Probate Code fiduciary oversight section, they are jointly and severally liable and the comparative fault statute, C.R.S. § 13-21-111.5, does not apply.

In Becker, Aaron Becker was appointed as conservator for his daughter Kylee. The Denver Probate Court ordered that a personal injury settlement be placed by the conservator in a restricted account for Kylee's benefit. In its order, the court stated that no funds could be withdrawn by the conservator without separate court order. Becker complied with the order and deposited the personal injury proceeds into a...