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Alhilo v. Kliem

Court of Appeals of Colorado, Second Division

October 6, 2016

Naema Alhilo, Plaintiff-Appellee,
Daniel Kliem, Defendant-Appellant.

         City and County of Denver District Court No. 13CV32833 Honorable Kenneth M. Laff, Judge

          Zaner Harden Law LLP, Kurt Zaner, Marc Harden, Elliot Singer, Denver, Colorado; Levin Rosenberg PC, Michael J. Rosenberg, Nelson A. Waneka, Denver, Colorado, for Plaintiff-Appellee.

          Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirstin M. Dvorchak, Denver, Colorado, for Defendant-Appellant.


          WEBB JUDGE.

         ¶ 1 Abdul Alhilo died in a collision between his motorcycle and a car driven by defendant, Daniel Kliem. The deceased's mother, plaintiff Naema Alhilo, brought a wrongful death action against Kliem. The jury allocated fifty-five percent of the fault to Kliem and forty-five percent to the deceased. It awarded $750, 000 in noneconomic damages and $1, 500, 000 in exemplary damages. Kliem appeals the judgment entered on the verdict. We affirm.

         I. Background and Procedural History

         ¶ 2 The accident occurred on Federal Boulevard in Denver. Kliem drove out of a car wash across the southbound lanes, intending to turn left and drive north. The deceased, going south, sought to avoid a collision by moving to the inside lane, but still hit the side of Kliem's car. He died at the scene.

         ¶ 3 When the accident occurred, the deceased was traveling at an estimated speed of between seventy-five and eighty-six miles per hour. The speed limit was forty miles per hour. His driving privileges had been suspended several years earlier based on his status as a habitual traffic offender (HTO).

         ¶ 4 After the collision, Kliem drove off. He stopped his car a few blocks away and fled on foot, despite having been injured. From the car, the police recovered several beer cans - three of them opened - a bottle of vodka, and a pipe containing marijuana. The crash occurred on June 26th and Kliem turned himself in on June 28th. Several years earlier, he had been convicted of two driving while impaired (DWI) offenses.

         ¶ 5 During pretrial proceedings, the parties raised, and the trial court ruled on, all of the evidentiary issues argued in this appeal.

         ¶ 6 After the jury returned its verdict, plaintiff calculated Kliem's share of the noneconomic damages at $412, 500 and sought judgment in that amount, correctly pointing out that it was less than the cap in section 13-21-203, C.R.S. 2016. Kliem responded that the court should apply the cap first, then apportion liability, which would result in a judgment of $239, 838.50. The trial court agreed with plaintiff. The court denied Kliem's post-trial motions for a judgment notwithstanding the verdict on exemplary damages, alleging insufficient evidence, and for a new trial on liability, alleging evidentiary errors.

         II. Evidentiary Issues

         ¶ 7 Kliem contends the trial court made three evidentiary errors: excluding evidence of the deceased's driving record and his status as an HTO; admitting evidence of Kliem's two prior DWI offenses; and admitting evidence that Kliem fled the accident scene. We address each one in turn but discern no ground for reversal.

         A. Standard of Review and Law

         ¶ 8 Evidentiary rulings are reviewed for an abuse of discretion. Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16. "[A] trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." People v. Segovia, 196 P.3d 1126, 1129 (Colo. 2008).

         ¶ 9 To begin, under CRE 401, evidence is logically relevant if it has "any tendency to make the existence of [a material fact] more probable or less probable than it would be without the evidence." In general, then, "[a]ll relevant evidence is admissible, " unless the United States Constitution, the Colorado Constitution, a state statute, the evidence rules, or other rule prescribed by the supreme court prohibits its admission. CRE 402; Murray, ¶ 19. Even so, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." CRE 403. In weighing those dangers and considerations, the proffered evidence "should be given its maximal probative weight and its minimal prejudicial effect." Murray, ¶ 19 (quoting People v. Dist. Court, 869 P.2d 1281, 1285 (Colo. 1994)).

         B. The Deceased's Driving Record and His HTO Status

         ¶ 10 Plaintiff moved in limine to preclude evidence of the deceased's driving record and his status as an HTO, arguing that this evidence - while uncontroverted - was not relevant. The trial court agreed and granted the motion. Now Kliem argues, as he did below, that the exception in section 42-4-1713, C.R.S. 2016, required the trial court to admit this evidence. We read the statute differently and conclude that the trial court acted within the scope of its broad discretion.

         1. Statutory Standard of Review

         ¶ 11 Whether section 42-4-1713 requires the admission of a driver's HTO status and associated driving record in any civil trial is a question of statutory interpretation subject to de novo review. Granite State Ins. Co. v. Ken Caryl Ranch Master Ass'n, 183 P.3d 563, 567 (Colo. 2008).

         ¶ 12 When construing a statute, a court strives to "ascertain and effectuate the legislative intent, which is to be discerned . . . from the plain and ordinary meaning" of the text. People v. Frazier, 77 P.3d 838, 839 (Colo.App. 2003), aff'd, 90 P.3d 807 (Colo. 2004). If the language is plain, the court must apply the text as written and not force or strain its interpretation. Williams v. Dep't of Pub. Safety, 2015 COA 180, ¶ 22. "Only where the statute's language is ambiguous may we turn to other principles of statutory construction and consider the consequences of a certain construction, the end to be achieved by the statute, and legislative history." People v. Vigil, 2013 COA 102, ¶ 14 (citing Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007)).[1]

         2. Law

         ¶ 13 Section 42-4-1713 provides:

Except as provided in sections 42-2-201 to 42-2-208, no record of the conviction of any person for any violation of this article [Article 4 - the "Regulation of Vehicles and Traffic"] shall be admissible as evidence in any court in any civil action.

(Emphasis added.) See Bullock v. Wayne, 623 F.Supp.2d 1247, 1254 (D. Colo. 2009) (Section 42-4-1713 "prohibits any mention of convictions for violating the vehicle and traffic statutes in Article 4.").

         ¶ 14 More than fifty years ago, our supreme court said about a prior version of section 42-4-1713: "the intent and purpose of such a statute is too obvious to require discussion." Ripple v. Brack, 132 Colo. 125, 129, 286 P.2d 625, 627 (1955). Since then, no Colorado court has examined this statute in depth.

         ¶ 15 Still, in Bullock, 623 F.Supp.2d at 1256, the United States District Court expounded on that obviousness. It explained that because traffic convictions "tend to be minor in nature, informally adjudicated, and often uncontested, " by enacting section 42-4-1713, "[t]he Colorado legislature presumably did not want these relatively small infractions to have grave consequences in civil actions where significantly more could be at stake." The court further explained that by prohibiting evidence of these convictions in civil actions, section 42-4-1713 "ameliorates docket congestion in traffic courts." Bullock, 623 F.Supp.2d at 1256. This is so because "were traffic convictions to carry with them the threat of res judicata, the incentive to fight a traffic ticket would grow dramatically and, along with it, the caseload of traffic courts." Id.; see Warren v. Marsh, 11 N.W.2d 528, 531 (Minn. 1943) (Because "often citizens will plead guilty to minor offenses under the traffic act rather than suffer loss of valuable time and the expense of a trial . . . the legislature apparently concluded that a plea of guilty should not prejudice one in any way in any civil proceeding, even one involving the same facts out of which the violation of the traffic act arose.") (cited with approval in Ripple, 132 Colo. at 129, 286 P.2d at 627).

         3. Analysis

         ¶ 16 Kliem concedes that section 42-4-1713 broadly prohibits evidence of Article 4 convictions in civil actions. Even so, he argues that the exception ("as provided in sections 42-2-201 to 42-2-208") allows a party in any civil action "to present evidence that the adverse party has been deemed a danger to other motorists by virtue of the party's prior conviction as an habitual traffic offender." Here, because the proffered evidence consisted of both the deceased's status as an HTO and his associated driving convictions, separate analysis is required. But this case does not support admitting either type of evidence.

         ¶ 17 First, as to the deceased's convictions that led to his HTO status, the text unambiguously limits the exception: "as provided in sections 42-2-201 to 42-2-208." Id. The cross-referenced sections make up the HTO statute, which "defin[es] who is an habitual offender, authority for revocation, appeals, and other related matters." Lawrence v. Taylor, 8 P.3d 607, 610 (Colo.App. 2000).[2]

         ¶ 18 The administrative appeal described in section 42-2-203 for challenging revocation of a driver's license based on a determination of HTO status by the Department of Revenue, Motor Vehicles Division (DMV), is a civil proceeding. State v. Laughlin, 634 P.2d 49, 51 (Colo. 1981). But without the exception in section 42-4-1713, evidence of Article 4 convictions would be prohibited. And without this evidence, a hearing officer could not decide "[t]he only issue to be determined at the license revocation hearing . . . whether the licensee has sustained the requisite number of convictions for specified traffic offenses within the prescribed period of time." Id.; see also People v. McKnight, 200 Colo. 486, 490, 617 P.2d 1178, 1181 (1980) (An HTO is defined "as one having a designated number of convictions for specified traffic offenses within a prescribed period of time.").

         ¶ 19 Thus, providing an exception under these sections - to allow evidence of Article 4 convictions in an HTO proceeding - is necessary. By any fair reading, the exception does not apply to any other civil action. Nor should it be interpreted more broadly. See Brodak v. Visconti, 165 P.3d 896, 898 (Colo.App. 2007) (When a "statute establishes a general rule, subject to [an] exception[], we must construe the exception[] narrowly to preserve the primary operation of the general rule.").

         ¶ 20 Second, the DMV determination that a driver is an HTO does not itself constitute a separate conviction. Rather, under the HTO statute, the DMV has the authority to "immediately revoke the license of any person whose record brings such person within the definition of an habitual offender . . . ." § 42-2-203, C.R.S. 2016. In doing so, the DMV must "immediately notify the licensee, " who, in turn, may request a hearing. § 42-2-125(3), (4), C.R.S. 2016.

         ¶ 21 But at that hearing, "[t]he hearing officer's determination is made by reference to the licensee's driving record, as reflected in the department's records." Laughlin, 634 P.2d at 51. And while "it is the licensee's responsibility to challenge alleged mistakes in the records of the department as to his driving history, " the licensee "may not relitigate the issue of guilt as to the offenses shown on his record." Id.

         ¶ 22 Given all this, allowing evidence of the Article 4 convictions in any other civil action - merely because those convictions formed the basis of a person's HTO status - would defeat the purpose of section 42-4-1713, as explained in Bullock, 623 F.Supp.2d at 1254. Specifically, such an interpretation would allow evidence of traffic convictions that may have been uncontested and thus invite challenges to many traffic convictions that could later have serious consequences in civil actions.[3]

         ¶ 23 Turning to the admissibility of a driver's status as an HTO, that status is an administrative determination, not a separate or additional conviction. Kliem cites no authority, nor are we aware of any in Colorado, treating such an administrative determination as a conviction. See McKnight, 200 Colo. at 493, 617 P.2d at 1183 ("The administrative proceeding to revoke a driver's license because of habitual traffic offender status is a civil one."); cf. People v. Kiniston, 262 P.3d 942, 944 (Colo.App. 2011) (discussing various uses of "conviction"). Thus, the broad prohibition in section 42-4-1713 does not limit evidence of HTO status. Instead, the admissibility of HTO status evidence remains subject to the rules of evidence, primarily CRE 401 and CRE 403. And here, both rules weigh against admission.

         ¶ 24 As to CRE 401, the trial court found that evidence of the deceased's status as an HTO was not relevant. This finding is supported by the fact that evidence of the deceased's fault - traveling at nearly double the posted speed limit - was undisputed. Thus, even accepting Kliem's position that the HTO statute reflects a legislative determination of likely future irresponsible driving behavior, whatever inference of irresponsibility the jury might draw from evidence of the deceased's HTO status would have added very little. And the verdict shows that the jury gave considerable weight to the undisputed evidence of the deceased's proportionate fault.

         ¶ 25 The trial court did not address CRE 403. However, even assuming that status evidence had some minimal probative value, admission of evidence of HTO status - and its attendant license revocation - might have led the jury to conclude that had the deceased abided by the restriction, he would not have been operating his motorcycle. And as a result, the accident would never have occurred. But this inference is legally impermissible. See Weaver v. Blake, 454 F.3d 1087, 1094 (10th Cir. 2006) ("Colorado's appellate courts appear to follow the majority rule that whether or not a person has a valid driver's license is irrelevant to the question whether that person was driving negligently at the time of the accident."). Thus, any probative value was outweighed by the risk of unfair prejudice.

         ¶ 26 In sum, we conclude the trial court did not abuse its discretion by precluding evidence of the deceased's ...

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