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Miller v. Hancock

Court of Appeals of Colorado, Fourth Division

November 16, 2017

Steven A. Miller, Plaintiff-Appellant,
v.
Rebecca R. Hancock and Stephanie P. Maiolo, a/k/a Stephanie P. Aragon, Defendants-Appellees.

         City and County of Broomfield District Court No. 11CV273 Honorable C. Scott Crabtree, Judge

          Bendinelli Law Firm, P.C., Marco F. Bendinelli, Westminster, Colorado, for Plaintiff-Appellant

          Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Temple & Associates, Christopher J. Witte, Lone Tree, Colorado, for Defendant-Appellee Rebecca R. Hancock

          Campbell, Latiolais & Averbach, LLC, Rebecca K. Wagner, Denver, Colorado, for Defendant-Appellee Stephanie P. Maiolo, a/k/a Stephanie P. Aragon

          OPINION

          WELLING JUDGE

          ¶ 1 Plaintiff, Steven A. Miller, was involved in an automobile accident with defendants, Stephanie P. Aragon and Rebecca R. Hancock. Miller sued Aragon and Hancock to recover economic and noneconomic damages that he suffered as a result of that accident, but the jury awarded him only economic damages. Prior to trial, both Aragon and Hancock made statutory offers of settlement to Miller pursuant to section 13-17-202, C.R.S. 2017.

         ¶ 2 Among the issues raised on appeal is an issue of first impression - namely, whether the 2008 amendment to section 13-17-202(1)(a)(II) requires a trial court to always include a plaintiff's actual costs incurred prior to a statutory offer of settlement in the plaintiff's final judgment when determining whether that final judgment exceeds the defendant's statutory offer of settlement. Although we conclude that the answer to that question is "no, " we conclude that the language of the offers at issue did require the court to do so. For that reason and others explained below, we reverse the trial court's award of costs, in part, and remand the case for further proceedings.

         I. Background

         ¶ 3 The car accident in this case occurred when Hancock rear-ended Miller, after which Aragon rear-ended Hancock, causing Hancock to once again rear-end Miller. Miller sued Aragon and Hancock seeking economic damages for past and future medical expenses and noneconomic damages for pain and suffering and physical impairment. Before trial, both defendants made settlement offers to Miller. Hancock made an initial settlement offer of $7000 and a second settlement offer of $12, 000. Aragon made one settlement offer of $6000. All three offers were made in accordance with section 13-17-202. Miller did not accept any of the settlement offers, and the case proceeded to trial.

         ¶ 4 The scope, extent, and cause of Miller's injuries were hotly contested at trial. During trial Miller sought $107, 744 in economic damages for past and future medical expenses and an unspecified sum in noneconomic damages for his pain and suffering and physical impairment.

         ¶ 5 Following a four-day trial, a jury awarded Miller $8024 in economic damages, but no noneconomic damages. The jury concluded that Aragon and Hancock were each negligent in equal proportion for the accident, and so each was liable to Miller for 50% of the total damages award.

         ¶ 6 Following trial, Miller filed a motion for new trial on damages. He argued that the jury's failure to award noneconomic damages was inconsistent with its award of economic damages because the latter necessarily compensated him for treatment and alleviation of pain, and therefore his entitlement to noneconomic damages - to compensate for pain and suffering - had necessarily also been proved. The trial court denied Miller's motion for a new trial.

         ¶ 7 Each of the parties also moved to recover their costs. Miller sought to recover his costs as the prevailing party pursuant to section 13-16-104, C.R.S. 2017. Aragon and Hancock each sought to recover their post-offer costs pursuant to section 13-17-202, arguing that the final judgment Miller recovered did not exceed their respective pretrial settlement offers.

         ¶ 8 The trial court treated Miller's cost request differently with respect to each defendant. Miller requested a total of $29, 699.52 in costs against both defendants. The court did not award Miller any costs against Hancock because it concluded that, pursuant to section 13-17-202, the final judgment she owed was less than her previous offers of settlement. Pursuant to the same statute, the trial court awarded Hancock the entire amount of her claimed costs that accrued after her first offer. The court awarded costs in favor of Miller and against Aragon, but it reduced the amount to $2067. Aragon's request for costs was denied.

         II. Analysis

         ¶ 9 Miller raises three arguments on appeal. First, he argues that a jury's failure to award noneconomic damages is impermissible as a matter of law when the jury returns a verdict awarding economic damages. Second, he argues that the trial court should have included his pre-offer costs when determining whether Hancock's pretrial offers of settlement exceeded the amount Miller recovered from Hancock at trial. Third, he argues that the trial court erroneously reduced the costs he was entitled to recover, yet awarded Hancock the entire amount of her claimed costs without subjecting her costs to similar scrutiny.

         ¶ 10 We conclude that the trial court properly denied Miller's motion for a new trial. But we reverse as to the second and third issues. We conclude that the trial court improperly excluded Miller's pre-offer costs from its calculation of his final judgment for purposes of comparing his judgment to Hancock's statutory offers of settlement made pursuant to 13-17-202. We also conclude that the trial court abused its discretion when it sharply reduced the amount of Miller's recoverable costs without making adequate findings as to whether those costs were reasonable and necessary. Accordingly, we remand to the trial court for further proceedings to determine the amount of costs Miller is entitled to recover, and whether, after redetermining Miller's costs, either of Hancock's statutory offers of settlement exceeded Miller's final judgment inclusive of pre-offer costs and interest.

         A. The Trial Court Did Not Err by Denying Miller's Motion for a New Trial on Damages

         ¶ 11 Miller first contends that the trial court erred by denying his motion for a new trial on damages. Miller argues that the jury's failure to award noneconomic damages was impermissible as a matter of law because it was undisputed at trial that his injuries from the car accident were more than "de minimis, " thus distinguishing this case from Lee's Mobile Wash v. Campbell, 853 P.2d 1140 (Colo. 1993), and Steele v. Law, 78 P.3d 1124 (Colo.App. 2003), on which the trial court relied to deny his motion. We discern no error in the trial court's denial of Miller's motion for a new trial.

         ¶ 12 Whether to grant a new trial for inadequate damages is within the sound discretion of the trial court, and we will not disturb its ruling absent a showing of an abuse of that discretion. Steele, 78 P.3d at 1127. The standard governing motions for a new trial based on an alleged inadequacy of damages is "whether it can be said with certainty that the verdict is grossly and manifestly inadequate or so small as to indicate clearly and definitely that the jury neglected to consider the evidence" or was otherwise improperly influenced. Peterson v. Tadolini, 97 P.3d 359, 361 (Colo.App. 2004) (citing Steele, 78 P.3d 1124).

         ¶ 13 The trial court fairly relied on Lee's Mobile Wash and Steele to deny Miller's motion. Lee's Mobile Wash and Steele each affirmed the denial of a motion for a new trial on damages, concluding in each instance that the jury reasonably could have found that any pain and suffering or impairment the plaintiff suffered as a result of the defendant's culpable conduct was de minimis. See Lee's Mobile Wash, 853 P.2d at 1144; Steele, 78 P.3d at 1127. Because we reject Miller's contention that an award of economic damages must be accompanied by an award of noneconomic damages, the dispositive issue here is whether Lee's Mobile Wash and Steele are distinguishable. This issue, in turn, boils down to whether the jury at Miller's trial could have reasonably concluded that his injuries from the accident were de minimis. Miller argues that the jury could not have because, he contends, it was undisputed at trial that he suffered actual injury from the accident, and because defendants' expert "conceded" that his injuries were not de minimis. We are not persuaded by Miller's argument. Nor are we persuaded that Lee's Mobile Wash and Steele are distinguishable.

         ¶ 14 First, we are not required to conclude that Miller is entitled to noneconomic damages even if we accept his contention that there was no dispute at trial over whether he suffered actual injuries from the car accident. Actual injury - severe enough to require medical treatment - and de minimis injury are not mutually exclusive concepts under the rationale of Lee's Mobile Wash and Steele. See Lee's Mobile Wash, 853 P.2d at 1144 (concluding that the jury could have reasonably found the plaintiff's injury to be de minimis, even though the plaintiff's injuries required medical treatment); Steele, 78 P.3d at 1127 (same). The supreme court in Lee's Mobile Wash held that it is incorrect to assume, as Miller urges here, that "once physical injury and causation are proved, noneconomic damages are proven as well and must be compensated." 853 P.2d at 1144. An award of noneconomic damages is not required by the fact of actual injury. Id.

         ¶ 15 Nor does the duration of Miller's medical treatment distinguish this case from Lee's Mobile Wash and Steele. Miller cites testimony from defendants' expert, Dr. Joel Carmichael, confirming that Miller received two and a half months of treatment for symptoms related to the injury he sustained in the car accident. Miller's argument seems to be that his injury cannot be de minimis because his symptoms persisted for longer than the plaintiff's injuries in either Lee's Mobile Wash or Gonzales v. Windlan, 2014 COA 176, ¶ 40. But Miller cites no legal authority for the proposition that an injury's severity is assessed by the duration of the symptoms. To the contrary, the division in Steele upheld a jury verdict awarding no noneconomic damages where the plaintiff "suffered only very minor injuries from a low impact collision . . . that were resolved within a year." 78 P.3d at 1127 (emphasis added).

          ¶ 16 Second, Miller's characterizations of the relevant facts and evidence in this case have thin - if any - support in the record. For example, Miller contends that Dr. Carmichael "only contested the extent of [Miller's] injuries and did not dispute the fact that [Miller] suffered actual injuries as a result of the collision." In his amended opening brief, Miller supports this contention with nothing more than a citation to his own motion for a new trial - which itself lacks any direct citation to the record. When Miller reiterates this claim in his reply brief, he does so without any citation to the record.

         ¶ 17 Miller also does not explain why the dispute at trial over "the extent of" his injuries could not have provided a basis for the jury to reasonably conclude that his injuries were de minimis. Indeed, the supreme court in Lee's Mobile Wash relied on the fact that "[t]he extent and nature of [plaintiff]'s brain injury . . . were hotly disputed at trial" to conclude that the jury reasonably could have determined that the plaintiff's injuries from the accident were only de minimis. 853 P.2d at 1144 (emphasis added).

         ¶ 18 Furthermore, Miller's claim that defendants' expert "conceded that [his] injuries were not de minimis" is without record support and seemingly inaccurate. Miller cites to an "admission" by Dr. Carmichael. In the testimony Miller characterizes as a purported "admission, " however, Dr. Carmichael simply repeated what Miller said to him at a pretrial consultation. Thus, Miller not only mischaracterizes the record, but also fails to point to any undisputed evidence that his injuries from the accident were more than de minimis.

         ¶ 19 Moreover, not unlike the jury in Lee's Mobile Wash, this jury considered evidence that Miller experienced - and was treated for - a neck injury that predated the car accident, and evidence of a subsequent incident, unrelated to the car accident, that caused an injury to his neck that required treatment. Where a party challenges the adequacy of a jury's verdict on damages, we have a "duty . . . to reconcile the [jury's] verdict with the evidence if at all possible." Id. at 1143. Here, the verdict and the evidence are not difficult to reconcile. The defense presented evidence at trial that Miller's symptoms were attributable to pre-existing or subsequent neck injuries, and also evidence that Miller's symptoms did not become evident until sometime after the car accident. Given this evidence, the jury here could have reasonably determined that the accident caused no more than de minimis injury to Miller. Thus, as in Lee's Mobile Wash and Steele, ...


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