2012 COA 215
Colo. Ct. App.2012Background
- Rear-end collision at low speed caused by Prester; Banning incurred about $139,050 in medical expenses and $5,425 in out-of-pocket costs; Prester admitted liability but disputed damages and raised mitigation defense; trial jury awarded $30,000 economic and $50,000 noneconomic damages; trial court awarded Prester costs under a separate judgment and a separate judgment for Banning including interest; this appeal and cross-appeal challenge the mitigation instruction and costs allocation.
- Banning argued the mitigation instruction incorrectly framed a duty to cease expensive treatment not resolving pain; the jury was instructed to deduct expenses if mitigation failure found; the court also instructed to determine reasonableness and necessity of medical expenses separately.
- Prester cross-appealed seeking offset of costs against judgment rather than two separate judgments; trial court entered two judgments and later denied net judgment.
- The issue of whether evidence of insurer payments and liens violated collateral source rules was raised; the court remanded, with instructions to apply collateral source rule on remand.
- Dr. Lambden testified on delta forces and delayed recovery syndrome, with Banning objecting; the court ruled on admissibility, allowing some relevant medical testimony while limiting abuse details.
- On remand, the court will again consider damages, including the reasonableness and necessity of medical expenses, without instructing a mitigation deduction tied to expensive treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mitigation instruction correct? | Banning claims instruction misstates mitigation law. | Prester argues proper to mitigate per instruction. | Reversed; new trial on damages. |
| Admission of collateral-source evidence? | Banning argues insurer payments/liens violate collateral source rule. | Prester contends admissibility. | Remand; direct applying collateral source rule if raised again. |
| Preservation of lien-evidence issue? | Banning failed to preserve lien evidence challenge. | Prester asserts proper admission as collateral source. | Not reviewed on merits; remand guidance possible. |
| Admission of delta forces and domestic abuse testimony? | Lambden testimony on delta forces/domestic abuse should be excluded or limited. | Evidence relevant to mechanism of injury and delayed recovery. | No abuse of discretion; limited admissibility found. |
| Costs offset vs. separate judgments? | Costs should be offset against judgment per statute. | Two separate judgments were appropriate. | Moot; remand for new trial on damages also defeats prior cost ruling. |
Key Cases Cited
- Lascano v. Vowell, 940 P.2d 977 (Colo.App.1996) (mitigation inaction and reasonable medical advice standard)
- Hildyard v. Western Fasteners, Inc., 33 Colo.App. 396, 522 P.2d 596 (Colo.App.1974) (mitigation not require surgery with hazard or limited cure)
- Williams v. Chrysler Ins. Co., 928 P.2d 1375 (Colo.App.1996) (prejudicial instruction requires showing impact on substantial rights)
- Yampa Valley Elec. Ass'n v. Telecky, 862 P.2d 252 (Colo.1993) (court duty to align instruction with prevailing law)
- Kepley v. Kim, 843 P.2d 133 (Colo.App.1992) (injury damages for pain involves economic/noneconomic consistency)