2012 COA 88
Colo. Ct. App.2012Background
- Allied Waste Transportation, Inc. backed into the Hendrickses' house; Allied admitted liability.
- The trial focused on damages rather than liability.
- A structural engineer described extensive, non-repairable damage due to preexisting deficiencies (nonstandard framing, no permanent foundation).
- A city official testified a building permit was required and would not be issued due to the deficiencies; damaged portions would have to be torn down and rebuilt.
- Mrs. Hendricks detailed conditions after the collision (temporary plywood wall, no insulation, frozen pipes, slow hot water, loose bathroom frame, nonfunctional light) endured for about three years.
- The jury returned a general verdict for $160,100; the court amended to include prejudgment interest and costs; Allied challenged several aspects on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject matter jurisdiction/exhaustion | Exhaustion not required; action is private tort suit seeking damages. | Hendrickses must exhaust administrative remedies before judicial review. | Exhaustion not required; trial court correct; private-party dispute. |
| Noneconomic damages instruction and evidence | Damages may include use value and discomfort, not pure emotional distress. | Instruction and testimony improperly allowed emotional distress damages. | Instruction and evidence consistent with Slovek and allowed noneconomic damages. |
| Betterment instruction preservation | No issue; instruction properly given. | There was error because of the betterment instruction. | Waived; Allied affirmatively agreed to the instruction when court asked for input. |
| Costs and prejudgment interest | Costs and interest calculated properly under statutes and Yeiser. | Deserves a hearing on costs; interest from verdict date. | No hearing required for fixed-cost items; prejudgment interest from initial damage date approved. |
Key Cases Cited
- Board of Cnty. Comm'rs v. Slovek, 723 P.2d 1309 (Colo. 1986) (noneconomic damages may include use value and discomfort)
- Hawley v. Mowatt, 160 P.3d 421 (Colo.App.2007) ( Slovek principles apply to real-property tort damages)
- Webster v. Boone, 992 P.2d 1183 (Colo.App.1999) (noneconomic damages; distress limited to scope of annoyance and discomfort)
- Ferreligas, Inc. v. Goodyear Tire & Rubber Co., 961 P.2d 511 (Colo.App.1997) (hearing warranted for disputed cost damages absent fixed standards)
- Yeiser v. Ferrellgas, Inc., 247 P.3d 1022 (Colo.2011) (prejudgment interest dating from initial damage when damages are not apportionable)
- Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 (Colo.2010) (interest for cost-of-repair damages accrues from repair date for special verdicts)
- Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159 (Colo.App.2010) (distinguishes fixed-standard costs vs. disputed costs for interest calculation)