Estаte of Michael Dean Casper, by and through Nick Casper, personal representative, Plaintiff-Appellee, v. Guarantee Trust Life Insurance Company, an Illinois corporation, Defendant-Appellant.
Court of Appeals No. 14CA2423
COLORADO COURT OF APPEALS
Announced November 17, 2016
2016COA167
Honorable David W. Crockenberg, Judge
Pueblo County District Court No. 12CV740; Division II; Opinion by JUDGE HARRIS; Webb and Ashby, JJ., concur
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Hall & Evans, LLC, Kevin E. O‘Brien, Alan Epstein, Malcolm S. Mead, Cristin J. Mack, Denver, Colorado, for Defendant-Appellant
¶ 1 Under Colorado law, the death of a plaintiff in a personal injury action extinguishes his entitlement to recover noneconomic and punitive damages. But what happens when the plaintiff dies after those damages have been awarded by a jury but before the district court has entered a judgment? This question had never been answered in Colorado.
¶ 2 Michael Dean Casper bought a cancer insurance policy from defendant, Guarantee Trust Life Insurance Company (GTL); when
¶ 3 The trial court immediately entered an oral order making the verdict a judgment. But Casper died nine days later, before the court had reduced its oral order entering judgment to a written judgment as required by
¶ 4 GTL says that as a matter of law the delay in entering the written judgment means that under the Colorado survival statute,
I. Background
¶ 5 Casper bought a “First Diagnosis” cancer insurance policy in August 2010. According to his testimony, he was sold the policy by Joanna Gaylord, a door-to-door insurance salesperson who worked for Platinum Supplemental Insurance, Inc. (Platinum), an agency with exclusive rights to sell GTL‘s policy. Casper listened to Gaylord‘s presentation but expressed concern about his ability to qualify for benefits, based on prior arterial blockages in his legs. Gaylord assured him that, as long as he had not been diagnosed with, or been advised to seek treatment for, AIDS, cancer, a heart attack, or a stroke, he would be covered by the policy. Casper answered truthfully that he had not been diagnosed with or advisеd to seek treatment for any of those conditions. He filled out the application, authorized GTL to obtain ten years’ of medical records, and agreed to monthly electronic premium payments. A month later, GTL approved his application.
¶ 6 In March 2011, Casper was diagnosed with prostate cancer. He submitted claims to GTL, which denied them. According to page twelve of the policy, cancer was not a covered condition “when advice or treatment is received . . . prior to the Effective Date, and such advice or treatment results in the First Diagnosis of Cancer.” GTL maintained that Casper had received such advice, in connection with his treatment for a non-cancerous condition involving an enlarged prostate, which had ultimately resulted in the detection of Casper‘s prostate cancer.
¶ 7 In 2012, Casper sued GTL for breach of contract, bad faith breach of insurance contract, and unreasonable denial of benefits in violation of sections
¶ 8 Trial was originally scheduled to begin in February 2014. But in October 2013, the court, on its own motion, reset the trial to July 2014.
¶ 9 During trial, the court directed a verdict for Casper on his breach of contract claim, finding that the exclusion provision was ambiguous and, therefore, as a matter of law, the policy had to be construed as covering Casper‘s cancer. On July 15, 2014, the jury returned a verdict in favor of Casper on all claims. It awarded Casper $50,000 for breach of contract, $50,000 for unreasonable denial of benefits, $150,000 in economic damages for bad faith breach of the contract, $550,000 in noneconomic damages for bad faith breach of the contract, and $4,000,000 in punitive damages.1
¶ 10 Because Casper was in hospice care by then, his lawyer requested that the court
¶ 11 When Casper died nine days later, GTL moved to set aside the verdict in part and to limit the recoverable damages. It argued that because attorney fees and prejudgment interest had not been determined and statutory caps had not been applied, Casper had died before final judgment had been entered. Thus, according to GTL, the statutory bad faith denial of benefits claim was extinguished, as was Casper‘s entitlement to recover noneconomic and punitive damages. GTL requested that the court enter final judgment on the breach of contract claim in the amount of $50,000. In the alternative, GTL requested that the court impose statutory caps on the noneconomic and punitive damages.
¶ 12 Casper‘s attorneys, in the meantime, moved to substitute the Estate as plaintiff, and then they requested an award of attorney fees under section
¶ 13 The district court denied GTL‘s motion to set aside the verdict, ruling that the survival statute was not implicated because Casper had died after entry of judgment on the verdict. It did, however, grant GTL‘s motion to enforce the statutory caps on damages.
¶ 14 On October 30, 2014, after reducing the noneconomic and punitive damages pursuant to statutory caps and awarding approximately one-third of the fees requested by Casper‘s attorneys, the district court entered an amended final judgment, nunc pro tunc to July 15, 2014, in favor of the Estate in the amount of $1,997,996.40.
¶ 15 On appeal, GTL contends that the district court erred by failing to vacate all of the damages (with the exception of the $50,000 breach of contract damages), by characterizing the attorney fees awarded under section
II. Colorado‘s Survival Statute
¶ 16 At common law, claims based on personal torts abated upon the death of either party. To ameliorate the harsh effects of this rule, Colorado, like most other states, enacted a survival statute in the late 1800s. Its current iteration — section
All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the рerson in favor of or against whom such action has accrued, but punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed; and, in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death. An action under this section shall not preclude an action for wrongful death under part 2 of article 21 of this title.
¶ 17 GTL contends that because Casper died before a final, appealable judgment was entered, the Estate may recover only the $50,000 awarded as economic damages.
A. Standard of Review and Principles of Interpretation
¶ 18 Resolution of this case turns on the interpretation of a statute, an issue of law subject to de novo review. Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA 160M, ¶ 9.
¶
¶ 20 If the statutory language is unambiguous, we apply it as written. Reno v. Marks, 2015 CO 33, ¶ 20. If a statute is ambiguous, however, we may consider indicia of legislative intent such as the object to be attained, the circumstances under which the statute was enacted, the common law, and the consequences of a particular construction.
B. Discussion
¶ 21 The survival statute sets forth a broad rule, with two exceptions. As relevant here, all causes of action survive the death of a party. But, neither punitive damages nor penalties shall be “awarded” or “adjudged” after the death of a party,2 and in personal injury cases, the damages “recoverable” after the death of the
plaintiff are limited to economic damages suffered before death and shall not include noneconomic damages or future earnings.
¶ 22 GTL maintains that the survival statute precludes recovery of punitive or noneconomic damages if the plaintiff dies before his claims merge into a final judgment, an event that prevents abatement. And, it argues, the judgment that was entered in July 2015, days before Casper‘s death, was not final because it did not include an award of attorney fees оr prejudgment interest. Therefore, the jury‘s award of damages became a nullity when extinguished by Casper‘s death nine days later.
¶ 23 We agree with GTL that, as a general matter, claims merge into a judgment and a judgment does not abate, even if the cause of action would not have survived the party‘s death. Ahearn v. Goble, 90 Colo. 173, 176, 7 P.2d 409, 410 (1932). And, neither the court‘s oral pronouncement nor the minute order constituted a “judgment” within the meaning of
¶ 24 To begin, the statute does not set the date of judgment as the time when a claim
¶ 25 The General Assembly‘s decision to forego an explicit selection of either the date of verdict or the date of judgment as the controlling date for survival purposes shows that it did not consider the distinction relevant. The General Assembly has distinguished between the verdict and the judgment in a number of other statutes. See, e.g.,
¶ 26 Turning to the language that does appear in the survival statute, we conclude that it supports an interpretation that survival to verdict suffices for a party to recover noneconomic damages. With respect to punitive damages, the statute instructs that a plaintiff cannot be “awarded” punitive damages after his death or the death of the tortfeasor. Because punitive damagеs are awarded by the jury, an “award” of punitive damages necessarily occurs at the time of the verdict. See
¶ 27 Though the General Assembly used another term — “recoverable” — when referring to other types of noneconomic damages, we do not read the statute as imposing different rules depending on the type of noneconomic damages at issue. In other words, we do not believe that the legislature intended to allow a party to recover punitive damages if he survived to verdict, but to allow recovery of other noneconomic damages only if he survived to entry of judgment. The creation of separate standards within the same provision of a statute would be unusual enough that we would expect the legislature to delineate that distinction more explicitly. And, if the statute creates a single standard, we believe that the word “awarded” is a more clear description of the relevant event than the word “recoverable.”
¶ 28 Even so, because the language could reasonably be interpreted to support both Casper and GTL, we conclude that the statute is ambiguous. Thus, we must look to other tools of statutory construction to ascertain legislative intent.
¶ 30 GTL points out that while Colorado adopted the common law of England, it did not adopt statutes enacted after 1607. See
¶ 31
¶ 32 A number of courts share our view that once the merits of the case have been decided by a verdict and the plaintiff is entitled to a judgment, the action or claim for damages will not abate, even if judgment has not been entered at the time of the party‘s deаth.
¶ 33 In Tunnell v. Edwardsville Intelligencer, Inc., 252 N.E.2d 538 (Ill. 1969), for example, the jury returned a verdict for the plaintiff on his defamation action. The court entered judgment notwithstanding the verdict for defendant and plaintiff appealed, but while the appeal was pending, the plaintiff died. After reversal by the court of appeals, the defendant objected to reinstatement of the verdict, arguing that the defamation claim did not survive the plaintiff‘s death. The Illinois Supreme Court disagreed, holding that an action does not abate when the plaintiff dies after obtaining a verdict in his favor:
What is significant in such cases, in our opinion, is not any metaphysical notion of merger of the cause of action into the verdict, but rather the circumstance that all factual questions had been resolved before the plaintiff died. . . . The present case was ripe for judgment when the plaintiff died, and the appellate court properly held that his death did not abate the action.
¶ 34 An analogous situation arose in Reed v. United States, 891 F.2d 878 (11th Cir. 1990). In that case, the parents of a child who was born with birth defects asserted negligence claims against the government under the Federal Tort Claims Act. The parties reached a settlement; shortly thereafter, the lawyer for the government notified the plaintiffs that the settlement had been approved. The following day, the government‘s lawyer prepared a stipulation and sent it to the plaintiffs’ lawyer for signature. The child had died, however, the day before, just after the parties had confirmed approval of the settlement. The government attempted to withdraw from the settlement, contending that, under Florida‘s survival statute in effect at the time, the negligence action abated upon the child‘s death.
¶ 36 Undaunted, GTL contends that Casper was not entitled to a “final judgment” at the time of his death because the court had not yet computed attorney fees and prejudgment interest. To bе sure, when attorney fees and prejudgment interest constitute compensatory damages — as they do in this case — a final, appealable judgment cannot be entered until the calculations are complete. See Grand Cty. Custom Homebuilding, LLC v. Bell, 148 P.3d 398, 400-01 (Colo. App. 2006). But that does not mean that the court could not enter a judgment pursuant to
appeal may lie. See
¶ 37 Here, entry of judgment under
¶ 38 In any event, we are not persuaded that the General Assembly intended the extinguishment
¶ 39 Finally, our interpretation of the statute advances its overall goal of preserving claims and remedies. GTL says that we should construe the statute in favor of abatement. But the supreme court has explained that the statute indicates “an intention to create remedies rather than to kill or suppress them.” Publix Cab Co. v. Colo. Nat‘l Bank of Denver, 139 Colo. 205, 220, 338 P.2d 702, 710 (1959).
¶ 40 For these reasons, we conclude that the claims for noneconomic damages, including punitive damages, did not abate upon Casper‘s death.
III. Attorney Fees and Costs Under Section 10-3-1116
¶ 41 Under
A. Standard of Review
¶ 42 Although we typically review a district court‘s decision to award attorney fees for an abuse of discretion, we review the legal conclusions that provided the basis for that decision de novo. Jorgensen v. Colo. Rural Props., LLC, 226 P.3d 1255, 1259 (Colo. App. 2010); see also Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co., 185 P.3d 781, 787 (Colo. 2008). And because the district court awarded attorney fees pursuant to
¶ 43 Our ultimate task when examining statutes is to give effect to the intent of the legislature, as expressed through the plain language of the statute. Kyle W. Larson Enters., Inc., ¶ 10. Even so, we may still examine legislative history when there is substantial legislative discussion that bolsters our plain language interpretation. Kisselman, 292 P.3d at 972; see Welby Gardens v. Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003) (discussing legislative history despite concluding that “the plain language of the statute is clеar“).
B. Discussion
¶ 44 Pursuant to
¶ 45 We agree with the district court and conclude that under the plain meaning of
¶ 46
¶ 47 The plain language of the statute lists two components of recovery: “reasonable attorney fees and court costs” and “two times the covered benefit.”
¶ 48 Further, “[c]lassification of attorney fees as either costs or damages depends on context, and turns on the nature of the requested attorney fees in a particular case.” Hall, ¶ 15. When attorney fees and costs are part of the substance of the lawsuit, that is, when they are the “legitimate consequences” of the tort or breach of contract sued upon, attorney fees are clearly damages. Id. at ¶¶ 15, 20 (quoting Ferrell v. Glenwood Brokers, Ltd., 848 P.2d 936, 941 (Colo. 1993)). Accordingly, we agree with Hall‘s conclusion that attorney fees and costs are “a ‘legitimate consequence’ of bringing. . . an action to remedy an insurer‘s unreasonable conduct” and that this interpretation “is consistent with the statutory authorization” in
¶ 49 True enough, this interpretation of
¶ 50 Despite this language, GTL contends that Bernhard should control, and to hold otherwise would create a conflict between Bernhard and the statute. We perceive no conflict.
¶ 51 While, under Bernhard, attorney fees in this case would not be considered actual damages, it is axiomatic that the legislature can, and frequently has, abrogated various common law tort doctrines. Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 187 (Colo. 2009); see, e.g., Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1176 (Colo. 1993) (recognizing the legislature‘s abrogation of the common law rule that the release of one tortfeasor operated to release all tortfeasors from liability for the same tort).
¶ 52
¶ 53 Thus, because
¶ 54 Moreover, following Bernhard would be contrary to the clear intent of the legislature.
¶ 55 GTL further contends that, even if Bernhard does not control, attorney fees and costs are a penalty, and not damages, because
¶ 56 But we disagree that the statute is penal and instead conclude that
¶ 57 Even assuming some aspect of the statute is penal, GTL‘s argument is too broad: statutes may be both remedial and penal in nature. See Moeller v. Colo. Real Estate Comm‘n, 759 P.2d 697, 701 (Colo. 1988). Although
¶ 58 Although
IV. Supplemental Award of Attorney Fees and Costs
¶ 59 GTL next asserts that the district court erred by not reducing by two-thirds the supplemental request for attorney fees. We disagree.
A. Additional Background
¶ 60 Casper‘s attorneys filed two requests for fees. In their first motion, they sought $396,180 in fees, plus a lodestar enhancement of fifty percent, for a total of $594,270, as well as costs in the amount of $57,840.55. They later filed a supplemental fee request, seeking an additional $123,925 in post-trial fees and $15,105.24 in costs.
¶ 61 GTL opposed both fee requests. Regarding the initial fee request, GTL asserted that no fees were recoverable, but, at most, Casper‘s lawyers could recover only those fees attributable to the statutory unreasonable denial of benefits claim, without any lodestar enhancement. GTL attached an affidavit from an expert, who recommended that the court award no more than $75,000 in fees.
¶ 62 GTL made the same apportionment argument with respect to the supplemental fee request and attached an exhibit that set forth its objections to specific time entries. It identified numerous entries that it claimed were attributable to work on a related probate matter, but it only identified two entries as being otherwise unrelated to the statutory claim, and those entries amounted to approximately $800 in fees. It did not provide an expert affidavit related to apportionment or reasonableness of the supplemental fee request.
¶ 63 The hearing on attorney fees was conducted by telephone and neither party called any witnesses or introduced any evidence beyond the expert affidavits that had previously been submitted by both parties. Casper‘s lawyers reiterated their request for fees plus a fifty percent lodestar enhancement, and GTL reiterated its request that the court award only those fees attributable to the statutory claim, though it did not suggest any particular percentage or amount. At the hearing, GTL did not reassert its specific objections to the time entries or protest that the vagueness of the entries prevented additional specific objections.
¶ 64 The court determined that, as a rough estimate, only one-third of the fees in the initial request were attributable to the statutory bad faith claim. It denied Casper‘s lawyers a fifty percent lodestar enhancement and insteаd applied a twenty percent enhancement to the reduced fee amount. As for the supplemental fees, the court examined the time entries, concluded that — with the exception of work on the probate case — the entries related to the statutory bad faith claim, and approved the remaining fees. After those reductions, the attorney fee award totaled $281,197, a sixty percent overall decrease from the request of approximately $718,000 ($594,270 in the initial motion for fees plus the $123,925 requested in the supplemental motion).
¶ 65 On appeal, GTL contends that the district court erred in awarding all of the fees requested in the supplemental fee request, insisting that the court should have reduced the overall request of $123,925 by two-thirds. It specifically objects to the award of fees related to the motion to amend the judgment and research on abatement, which GTL says were matters unrelated to the statutory clаim.
B. Standard of Review
¶ 66 The determination of what constitutes reasonable attorney fees is a question of fact for the trial court and will not be disturbed on review unless it is patently
C. Discussion
¶ 67 The parties disagree as to whether apportionment of fees is necessary in this case. GTL maintains that the court could award fees only for work directly related to the statutory unreasonable denial of benefits claim. The Estate, however, argues that apportionment is not required under
¶ 68 GTL did not request a two-thirds reduction in the supplemental fees until after the court had reduced the initial request for fees by two-thirds. Indeed, it never suggested any percentage reduction based on an apportionment theory. Its argument, then, is simply that the court was required to apportion the supplemental fees in precisely the same manner as the initial fees. We discern no such requirement.
¶ 69 Rather than applying a rough, across-the-board reduction in fees, as it had with the primary motion for attorney fees, the district court examined the entries included in the supplemental fee petition and the parties’ related exhibits to determine whether those entries were sufficiently related to the statutory claim. We perceive no abuse of discretion in the use of this more precise methodology for apportionment. See Planning Partners, ¶ 23 (“‘[T]here is no precise rule or formula’ for determining attorney‘s fees.” (quoting Evans v. Jeff D., 475 U.S. 717, 736 (1986))); cf. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 557 (Colo. 2000) (observing that because the trial court made no attempt to parse the billing statements and timesheets, the allocation was unsupported by the evidence).
¶ 70 That leaves GTL‘s specific objections to two time entries: work related to (a portion of) the motion to amend the judgment and research concerning abatement. GTL did not object to Casper‘s lawyers’ recovery of their fees for research on abatement until after the court had issued its order on attorney fees. But even if it had made an earlier objection, the district court did not clearly err in determining that research on abatement of claims was related to Casper‘s statutory bad faith claim. GTL‘s motion to set aside the verdict argued that Casper‘s statutory claim had abated upon his death. Research conducted in response to that argument would relate to the statutory claim. As for the motion to amend the judgment, GTL concedes that at least some portion of the motion was attributable to that claim. Even whеre apportionment is warranted, we do not require the kind of surgical precision demanded by GTL. The trial court‘s goal when awarding attorney fees and costs “is to do rough justice, not to achieve auditing perfection.” Payan v. Nash Finch Co., 2012 COA 135M, ¶ 35 (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).
¶ 71 Furthermore, the district court‘s apportionment of fees resulted in an overall reduction of more than sixty percent from the amount requested. Given that GTL did not suggest any particular apportionment method or percentage reduction, we discern no abuse of discretion in the district court‘s apportionment of the supplemental fees. See Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 384 (Colo. 1994) (reviewing court will uphold allocations of fees if the record affords sufficient support).
V. Jury Instruction 27
¶ 72 Finally, GTL asserts that the trial court erred by instructing the jury on Regulation 4-2-3, which regulates advertising by the insurance industry.
¶ 73 A trial court has substantial discretion in formulating and tendering jury instructions, so long as they include correct statements of the law and fairly and adequately cover the issues presented. Tricon Kent Co. v. Lafarge N. Am., Inc., 186 P.3d 155, 162 (Colo. App. 2008); Taylor v. Regents of Univ. of Colo., 179 P.3d 246, 248 (Colo. App. 2007). Therefore, we review de novo the jury instruction at issue to assess whether the instruction correctly states the law, Bedor v. Johnson, 2013 CO 4, ¶ 8, and review for an abuse of discretion the trial court‘s decision to give a particular jury instruction. Id.
B. Discussion
¶ 74 The duty of good faith and fair dealing implied in every insurance contract in Colorado extends to the advertisement and purchase of the policy. Ballow v. PHICO Ins. Co., 875 P.2d 1354, 1362-63 (Colo. 1993). To determine whether an insurer has breached this duty, its conduct is measured objectively and is tested based on industry standards. Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333, 343 (Colo. 2004). Administrative rules and agency regulations may help establish the applicable standard of care. Id.; see also Giampapa v. Am. Family Mut. Ins. Co., 919 P.2d 838, 842 (Colo. App. 1995). However, even if they do not, they “may nonetheless ‘be relevant evidence bearing on the issue of negligent conduct.‘” Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 931 (Colo. 1997) (quoting Restatement (Second) of Torts § 288B (Am. Law Inst. 1965)). Thus, regulations may be “valid, but not conclusive, evidence” of an insurer‘s breach of the duty of good faith and fair dealing. Id.
¶ 75 Regulation 4-2-3 was set forth in Instruction 27. The instruction first explained that “[а]t the time of the sale of the policy at issue in this case, the following regulations of the Division of Insurance . . . were in effect, and applied to the advertisement of policies like the one purchased by Mr. Casper.” The instruction then presented excerpts of Regulation 4-2-3, including requirements that all policy limitations and restrictions be “set out conspicuously,” and that advertisements not contain misleading representations.
¶ 76 The instruction concluded by stating that “[t]hese regulations are valid, but not conclusive evidence of insurance industry standards, and you may consider such regulations in determining whether the defendant acted unreasonably toward the Plaintiff.”
¶ 77 GTL objected to the instruction at trial, contending that it was irrelevant to Casper‘s remaining claims, given the settlement with Platinum and Gaylord. The district court disagreed, concluding that the instruction related to Casper‘s theory that GTL‘s marketing and sale of the insurance policy, through Platinum, was evidence of its bad faith. We perceive no abuse of the district court‘s discretion.
¶ 78 One of Casper‘s theories at trial was that GTL, through Platinum, intentionally misrepresented the nature of the insurance coverage by misleadingly calling the policy a “First Diagnosis” policy when, in fact, hidden and ambiguous language enabled the insurance company to deny benefits if the diagnosis was traceable in any way to advice given prior to the effective date of the policy.
¶ 79 Casper‘s lawyers discussed advertising and marketing tactics in their opening statement. Many of Casper‘s witnesses addressed GTL‘s allegedly deceptive sales practices; one of his expert witnesses testified extensively about Regulation 4-2-3 and the connection between GTL‘s sales practices and the denial of Casper‘s claim. Additionally, two of GTL‘s own witnesses discussed Regulation 4-2-3. They acknowledged that GTL‘s duty to act in good faith extended to the advertising, marketing, and sale of the insurance policy, but they opined that GTL‘s conduct had not violated the regulation.
¶ 80 We agree with the district court that the standard of care related to the sale and marketing of the policy was relevant to Casper‘s claims, and it is undisputed that the instruction was a correct statement of the law. Accordingly, we conclude that the district court did not abuse its discretion in giving the instruction.
¶ 81 Finally, the Estate asserts that it should be awarded its attorney fees and costs on appeal. We agree that under
¶ 82 We exercise our discretion under
VII. Conclusion
¶ 83 The judgment is affirmed, and the case is remanded to the district court to determine and award the total amount of the Estate‘s reasonable appellate fees and costs allocable to the statutory claim.
JUDGE WEBB and JUDGE ASHBY concur.