2017 COA 141
Colo. Ct. App.2017Background
- Miller was rear-ended in a three-car collision; he sued Aragon and Hancock for economic and noneconomic damages. Defendants each served statutory offers under Colo. Rev. Stat. § 13-17-202 before trial.
- At trial Miller sought substantial medical (economic) damages and unspecified noneconomic damages; the jury awarded $8,024 in economic damages and zero noneconomic damages, apportioning liability 50/50 between Aragon and Hancock.
- Defendants moved under § 13-17-202 to recover post-offer costs on the ground that Miller’s final judgment did not exceed their offers; Miller sought recovery of prevailing-party costs under § 13-16-104 and argued his pre-offer costs should count when comparing his judgment to the offers.
- The trial court denied Miller’s new-trial motion on damages, excluded Miller’s pre-offer costs when comparing his judgment to Hancock’s offers (but included them for Aragon because her offer said “including all … costs”), awarded Hancock post-offer costs, and drastically reduced Miller’s claimed costs without detailed findings.
- On appeal the court affirmed denial of a new trial, held the 2008 amendment to § 13-17-202 did not automatically require including pre-offer costs in the comparison, but concluded Hancock’s offers (which promised to “settle all issues”) unambiguously included costs and thus the trial court erred by excluding Miller’s pre-offer costs; it also found the trial court abused its discretion by denying most of Miller’s costs without adequate findings and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury’s award of economic but no noneconomic damages required a new trial | Miller: awarding economic damages but no noneconomic damages is legally inconsistent and mandates a new trial | Defendants: jury could reasonably find noneconomic injury de minimis despite economic award | Denied: court upheld verdict; actual injury can be de minimis and jury could credit pre/post-accident causes and resolve evidence against noneconomic recovery (Lee’s Mobile Wash and Steele controlling) |
| Whether 2008 amendment to § 13-17-202(1)(a)(II) requires courts always to include a plaintiff’s pre-offer costs when comparing judgment to a defendant’s offer | Miller: 2008 amendment mandates inclusion of pre-offer costs in the plaintiff’s final judgment for comparison | Hancock: amendment merely preserved prevailing-plaintiff recovery of pre-offer costs and does not change how comparisons are made | Held: statute ambiguous; legislative history and structure show amendment abrogated Bennett but does not change comparison rule—pre-offer costs are not automatically included for comparison purposes |
| Whether Hancock’s offers should be interpreted to include pre-offer costs | Miller: regardless of statutory amendment, Hancock’s offers used broad language (“to settle all issues”) so costs are included | Hancock: offers did not expressly mention “costs,” so costs should be excluded for comparison | Held: "all issues" unambiguously included costs; trial court erred by excluding pre-offer costs when comparing the judgment to Hancock’s offers |
| Whether trial court properly reduced Miller’s claimed costs without findings | Miller: trial court improperly denied most costs (experts, reporter, exhibits) without adequate findings on reasonableness/necessity | Defendants: challenged specific categories; trial court largely accepted defendants’ objections | Held: abuse of discretion—court must make findings explaining reasonableness and necessity; remanded to determine recoverable costs and then whether Hancock’s offers exceed the adjusted final judgments (2013 and 2015 dates) |
Key Cases Cited
- Lee’s Mobile Wash v. Campbell, 853 P.2d 1140 (Colo. 1993) (jury may reasonably award economic but no noneconomic damages where noneconomic injury is de minimis)
- Bennett v. Hickman, 992 P.2d 670 (Colo. App. 1999) (pre-amendment rule barring a prevailing plaintiff from recovering pre-offer costs when defendant’s offer exceeded recovery)
- Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022 (Colo. 2011) (discussion that costs are not presumptively included in offers; if offer expressly includes costs they should be counted)
- Rubio v. Farris, 51 P.3d 992 (Colo. App. 2002) (judgment and offer must be compared in a like manner; interpret offer language to determine whether costs are included)