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