Miller v. Hancock
Miller v. Hancock
Opinion of the Court
*822¶ 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.
*823II. 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 ,
¶ 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 ,
¶ 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 ,
¶ 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 *824require 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 ,
¶ 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 ,
¶ 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.
¶ 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."
B. The Trial Court Erred by Not Considering Miller's Pre-Offer Costs When Awarding Hancock Costs Pursuant to Section 13-17-202
¶ 20 Following trial, Aragon and Hancock each moved for an award of their post-settlement offer costs pursuant to section 13-17-202, arguing that their respective offers exceeded Miller's final judgment. In response to Aragon's and Hancock's motions, Miller argued that his pre-offer costs should be included in the calculation of his final judgment when the trial court determined whether his final judgment exceeded the respective offers.
¶ 21 The trial court, however, separately analyzed Aragon's and Hancock's offers. With respect to Aragon's offer, the trial court concluded that because the offer included the language "including all ... costs," Miller's pre-offer costs should be included in the final judgment for comparison purposes, and that when such costs were included, Miller's final judgment exceeded Aragon's statutory offer of settlement. Accordingly, the trial court denied Aragon's motion for costs pursuant to section 13-17-202.
¶ 22 The trial court analyzed Hancock's offers differently. The trial court concluded that because Hancock's offers did not "contain[ ] or mention[ ] the word 'costs,' " Miller's final judgment for comparison purposes must also exclude his pre-offer costs. Based on this framing, the trial court concluded that both of Hancock's offers exceeded Miller's judgment against her.
¶ 23 With respect to the cost award in favor of Hancock pursuant to section 13-17-202, Miller contends that the trial court erroneously excluded his pre-offer costs when it calculated his final judgment for purposes of section 13-17-202. Miller makes two arguments in this regard. First, he argues that the statute, as amended in 2008, requires inclusion of these costs when determining if the final judgment amount exceeded the amount a defendant offered in a statutory offer of settlement. In the alternative, Miller argues that regardless of how we interpret the 2008 amendment to section 13-17-202(1)(a)(II), based on the broad language of Hancock's settlement offers, the trial court should have included Miller's pre-offer costs for comparison purposes. We disagree with the first proposition, but agree with the second.
1. Section 13-17-202(1)(a)(II) Does Not Require that Pre-Offer Costs be Included in the Final Judgment When Compared to a Statutory Settlement Offer
¶ 24 Statutory interpretation involves legal questions, which we review de novo. Smith v. Exec. Custom Homes, Inc. ,
*826¶ 25 Section 13-17-202(1)(a)(II) provides as follows:
If the defendant serves an offer of settlement in writing at any time more than fourteen days before the commencement of the trial that is rejected by the plaintiff, and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff. However, as provided in section 13-16-104, if the plaintiff is the prevailing party in the action, the plaintiff's final judgment shall include the amount of the plaintiff's actual costs that accrued prior to the offer of settlement.
(Emphasis added.) The General Assembly added the italicized portion of the statute in 2008, effective July 1st of that year. Ch. 5, secs. 1-2, § 13-17-202(1)(a)(II),
¶ 26 The parties offer two competing interpretations of the 2008 amendatory language. Miller argues that it could mean that in calculating a prevailing plaintiff's judgment for comparison purposes, a trial court must include a plaintiff's pre-offer costs, regardless of the language used by the defendant in his or her offer of settlement. See Catlin v. Tormey Bewley Corp. ,
¶ 27 Both interpretations of the 2008 amendment are plausible readings of the amendatory language. On the one hand, the new language references a "plaintiff's final judgment," which is, after all, what the defendant's offer is being compared to when determining whether a defendant is entitled to recover his or her post-offer costs. This interpretation accords "final judgment" the same meaning in both portions of the same subsection. See People v. Dist. Court ,
¶ 28 When statutory language is ambiguous, "we consider the statute's legislative history, the state of the law prior to its enactment, the problem addressed, and the statutory remedy." Lombard v. Colo. Outdoor Educ. Ctr., Inc. ,
¶ 29 The legislative history of House Bill 08-1020 provides considerable insight into the problem that the legislature was addressing with the 2008 amendment. The only statutory change enacted by House Bill 08-1020 was *827the addition of the italicized language discussed above. And the only case that was specifically discussed during the legislative debate over House Bill 08-1020 was Bennett . See Hearings on H.B. 08-1020 before the H. Judiciary Comm., 66th Gen. Assemb., 1st Sess. (Jan. 16, 2008) (remarks of the bill's sponsor, Representative Alice Madden); Hearings on H.B. 08-1020 before the S. Judiciary Comm., 66th Gen. Assemb., 1st Sess. (Jan. 28, 2008) (remarks of the bill's sponsor, Senator Jennifer Veiga).
¶ 30 In Bennett , a division of this court held that section 13-17-202(1)(a)(II), C.R.S. 1998, not only entitled a defendant who made an offer in excess of a plaintiff's recovery at trial to recover his or her post-offer costs, but also barred an otherwise prevailing plaintiff from recovering his or her pre-offer costs pursuant section 13-16-104.
¶ 31 Next, looking at the overall structure of the statutory offer statute further supports the proposition that the 2008 amendatory language was not intended to reach as far as Miller urges. See Dist. Court ,
¶ 32 Based upon the statutory language, legislative history, and overall structure of the statute, we conclude that the 2008 amendment entitles a prevailing plaintiff to recover pre-offer costs if he or she prevails at trial, but it has no bearing on how a final judgment is compared to a statutory settlement offer. In other words, we conclude that the 2008 amendment to *828section 13-17-202(1)(a)(II) abrogated Bennett , but nothing more.
¶ 33 Our resolution of this question of statutory interpretation does not, however, end our inquiry into whether the trial court nevertheless erred when it compared Miller's final judgment to Hancock's offers. To resolve that issue, we need to look at the language used in Hancock's offers and the trial court's treatment of those offers, which is where we turn next.
2. The Trial Court Erroneously Excluded Miller's Pre-Offer Costs From the Amount of His Final Judgment for the Purpose of Comparison
¶ 34 "The purpose of section 13-17-202 is to encourage the settlement of litigation by encouraging reasonable settlement offers by all parties." Strunk v. Goldberg ,
¶ 35 We interpret the meaning of a statutory offer of settlement de novo, applying ordinary principles of contract interpretation. See Bumbal v. Smith ,
¶ 36 We now turn to the language that Hancock used in each of her offers. Hancock's first offer provided: "Defendant[,] pursuant to C.R.S. § 13-17-202 [,] offers SEVEN THOUSAND DOLLARS ($7,000) to settle all issues in the above matter." (Emphasis added.) Similarly, the offer she extended two years later provided: "Defendant[,] pursuant to C.R.S. § 13-17-202 [,] offers TWELVE THOUSAND DOLLARS ($12,000) to settle all issues in the above matter." (Emphasis added.)
¶ 37 The trial court relied on Ferrellgas, Inc. v. Yeiser ,
¶ 38 In Ferrellgas , the supreme court granted certiorari to address three questions: (1) whether a defendant is entitled to a postjudgment setoff for the full value of a resolved *829subrogation claim; (2) whether a plaintiff's final verdict for comparison purposes under section 13-17-202 must include the setoff; and (3) how pre-offer prejudgment interest should be calculated under such circumstances.
¶ 39 We now turn to the question of whether Hancock's offers included costs. We conclude that they did and that they did so unambiguously. Both offers were extended to settle "all issues." "All issues" is capacious in scope. Indeed, " '[a]ll' is an unambiguous term and means the whole of, the whole number or sum of, or every member or individual component of, and is synonymous with 'every' and 'each.' " Bumbal ,
¶ 40 To conclude otherwise would mean that Miller could have accepted either offer and then sought to recover his pre-offer costs on top of the sum indicated in the offer. See Carpentier v. Berg ,
¶ 41 This argument, if taken to its logical conclusion, would have the interpretation accorded to a statutory offer depend on whether the offer is accepted or rejected. If the offer is accepted it includes costs, but if it's rejected it excludes costs. But a statutory offer of settlement is not Schrödinger's cat.
¶ 42 This understanding comports with the overall purpose of the statutory scheme, which is "to encourage the settlement of litigation by increasing the cost of proceeding with a lawsuit after the opposing party has made a reasonable settlement offer." Taylor v. Clark ,
¶ 43 In summary, whether a statutory offer includes pre-offer costs turns on the language of the offer. Even against the headwinds of a presumption in favor of excluding pre-offer costs, we conclude that Hancock's use of the phrase "to settle all issues" unambiguously included costs. Because both of Hancock's offers included costs, Miller was entitled to have his pre-offer costs included in his final judgment for the purpose of determining whether either of Hancock's offers entitled her to recover her post-offer costs pursuant to section 13-17-202. Thus, the trial court erred by interpreting Hancock's offers to exclude costs. But whether this error was harmless turns, at least in part, on whether the trial court erred in its calculation of Miller's recoverable costs, which is where we turn next.
C. The Trial Court Erred by Reducing Miller's Recoverable Costs Without Determining Their Reasonableness and Necessity
¶ 44 Miller contends that the trial court erroneously disallowed the majority of his claimed costs. We conclude, based on our review of the record, that the trial court abused its discretion in reducing the amount of Miller's recoverable costs without adequate findings as to their reasonableness and necessity.
¶ 45 We review an award of costs for an abuse of discretion and will disturb the award only if it is manifestly arbitrary, unreasonable, *831or unfair. Archer v. Farmer Bros. Co. ,
¶ 46 A trial court's award of costs must be supported by findings that, considered together with the record, are sufficient to permit a reviewing court to determine the basis for the award. Foster v. Phillips ,
¶ 47 Miller sought $29,699.52 in total costs, separated into eight categories. His motion for costs in the trial court was accompanied by a two-part exhibit that included the underlying invoices. Part one of Miller's exhibit included forty-eight pages of invoices for e-filing fees. Part two included fifty-one pages of invoices for the other seven categories of costs. Aragon filed objections to seven categories of Miller's costs. Miller's response to Aragon's objections described, among other things, the work the experts performed and their billing rates. Miller also attached affidavits from his experts attesting to the nature and extent of their work on the case. Miller's response further noted that neither defendant raised any objection to his claimed court reporter fees. Miller's claimed costs and the amount ultimately awarded, along with Aragon's objections and the trial court's rationale for awarding or denying the costs, are set forth below.
Claimed Trial Court Category (Awarded) Aragon's Objection Disposition and Rationale "The statute does not $1234.50 allow the recovery of E-Filing ($1234) each and every court Recoverable filing fee incurred, just the docket fee." "The claimed courier $136.27 fees were unnecessary Courier ($136) and not incurred Recoverable pursuant to any Court Order."
*832"The sole recoverable service of process fee is Reduced for the $55.00 the plaintiff unnecessary Service of $788.60 incurred to have this rush service fee Process ($697) defendant served with ($91) the summons and complaint." Court $3486.27 No objection Not addressed Reporter ($0) "Since the mediation was not Court-Ordered, Denied - $685.00 and since the plaintiff is Parties not Mediation ($0) not the `prevailing ordered to party,' the mediation fee mediate is not recoverable." "This Court will note Denied - No that none of the `expert page numbers Expert $21,181.67 witness fees' claimed by for receipts; and Witness ($0) the plaintiff were failed to incurred for this jury demonstrate trial, which took place that each fee in July of 2015." was reasonably necessary "Because the plaintiff failed to introduce his Document medical records as Denied - No and $2101.44 exhibits at trial, any page numbers Exhibit ($0) costs he may have for receipts Production incurred obtaining them are not recoverable per the cost statute."
*833"Finally, plaintiff's claimed `parking' expenses seem more like ordinary course of Denied - No Misc. $85.77 business expenses, and page numbers ($0) not necessarily incurred for receipts; and for the trial, such as the receipts non-testifying witness's disorganized alleged `parking' expenses." $29,699.52 Total ($2067)
¶ 48 The trial court, in a combined order ruling on both Miller's and Hancock's requests for costs, summarily denied several categories of Miller's claimed costs, including $21,181.67 in expert witness expenses. The trial court denied Miller's document and exhibit production expenses without addressing their reasonableness or necessity. The trial court denied all of Miller's expert witness expenses because "[n]o reference was made to any page number in the attached exhibits where the supporting documentation could be found," and because "plaintiff has failed to demonstrate that each of the expert fees was reasonably necessary for the development of the case in light of the facts known to counsel at the time they were taken." The trial court did not address at all Miller's claimed court reporter costs, and it excluded them entirely from its costs award without explanation. Altogether, the trial court denied $27,632.52, or roughly 93%, of Miller's claimed costs.
¶ 49 We conclude that the trial court abused its discretion by disallowing expert costs, court reporter costs, and document and exhibit production costs without making adequate findings concerning the reasonableness or necessity of the denied costs. Because the trial court failed to make findings sufficient to disclose the basis for its decision to award some costs while denying others, we cannot adequately assess the propriety of the award. Brody v. Hellman ,
¶ 50 Furthermore, the trial court's denial of the entire amount of Miller's expert witness expenses in particular contrasts unfavorably with its disparate treatment of Hancock's request for costs. The record shows that Miller and Hancock documented their respective expert witness fees in substantially the same manner. However, with less than one page of analysis, and with no discussion of reasonableness or necessity, the trial court awarded Hancock all of her claimed costs, including $9093.75 in expert witness expenses.
¶ 51 The trial court provided no adequate explanation for this disparity in its rulings. While the trial court observed that "Plaintiff's Response did not address any of Hancock's costs," Miller does not bear the burden to establish that Hancock's costs were not reasonable. See Brody ,
¶ 52 Nor was Miller's supporting documentation so disorganized that it would have been unduly burdensome for the trial court to confirm the amounts claimed against the attachments. The trial court properly observed that "[a] party seeking costs must *834provide the court with sufficient information and supporting documentation to allow a judge to make a reasoned decision for each cost item presented."
¶ 53 While the trial court may have determined that Miller's denied costs were unreasonable or unnecessary, that rationale is not reflected in the record. Instead, the court denied entire categories of costs, including Miller's requested expert-related costs, without discussing either the arguments in Miller's motion and response or the attestations of his expert witnesses. Cf. Foster ,
¶ 54 We may reverse an award of costs if the award is "manifestly arbitrary, unreasonable, or unfair." Archer ,
¶ 55 Accordingly, we reverse the trial court's order on costs and remand the case to the trial court for further proceedings on the necessity and reasonableness of Miller's requested costs.
III. Procedure on Remand to Address Hancock's Motion for Costs Pursuant to Section 13-17-202
¶ 56 We think it may be helpful to lay out the procedure that the trial court should follow in addressing Hancock's motion for costs pursuant to section 13-17-202 on remand.
¶ 57 First, the trial court should separately determine Miller's reasonable recoverable costs accrued as of January 10, 2013, and January 16, 2015, the dates of Hancock's statutory offers. Next, the court should calculate two "final judgment" figures: (1) a "2013 final judgment" consisting of the portion of the verdict recoverable against Hancock plus prejudgment interest and recoverable costs taxable against Hancock as of January 10, 2013; and (2) a "2015 final judgment" consisting of the portion of the verdict recoverable against Hancock plus prejudgment interest and recoverable costs taxable against Hancock as of January 16, 2015.
¶ 58 If the 2013 final judgment is less than or equal to $7000, then Miller is only entitled to recover against Hancock his costs and prejudgment interest accrued as of January, 10, 2013, and Hancock is entitled to recover her costs accrued after that date. If, on the other hand, the 2013 final judgment is greater than $7000, then the trial court must perform a similar analysis with respect to the January 2015 offer. Specifically, if the 2015 final judgment is less than or equal to $12,000, then Miller is only entitled to recover against Hancock his costs and prejudgment interest accrued as of January, 16, 2015, and Hancock is entitled to recover her costs accrued after that date.
¶ 59 Finally, if both the 2013 final judgment exceeds $7000 and the 2015 final judgment exceeds $12,000, then Hancock's motion for costs should be denied, and Miller should be awarded his costs pursuant to section 13-16-104 and prejudgment interest pursuant to section 13-21-101, C.R.S. 2017.
IV. Conclusion
¶ 60 We affirm the trial court's order denying Miller's motion for a new trial on damages, but we reverse the trial court's awards of costs to Hancock against Miller and to Miller against both defendants. We remand to the trial court for further proceedings *835to determine, consistent with this opinion, the amount of costs Miller is entitled to recover, and whether, after determining Miller's costs, Hancock made a settlement offer pursuant to section 13-17-202 that exceeds the amount of Miller's final judgment, inclusive of pre-offer costs and interest.
JUDGE GRAHAM and JUDGE J. JONES concur.
In analyzing each of the offers, the court included prejudgment interest that had accrued to the date of the respective offer. No party takes issue with that part of the trial court's analysis. See § 13-17-202(2), C.R.S. 2017.
Aragon does not appeal the denial of her costs, and this opinion does not disturb that ruling.
The offers were made between January 2013 and January 2015.
The language of section 13-16-104, C.R.S. 2017, is the same now as when the division in Bennett considered it.
Although we are not persuaded by Miller's argument regarding the reach of the amendatory language in section 13-17-202(1)(a)(II), even our more limited reading of that section reveals an error by the trial court in its application. Specifically, not only did the trial court fail to include Miller's pre-offer costs in his judgment for comparison purposes, it failed to award those costs at all, notwithstanding the fact that he was the prevailing party pursuant to section 13-16-104, C.R.S. 2017. Accordingly, at a minimum, the trial court erred in denying Miller his pre-offer costs.
Because we concluded in Part II.B.1 above that the 2008 amendment did not effect a change with respect to how to compare an offer to a prevailing plaintiff's final judgment, we can look to pre-2008 case law when interpreting section 13-17-202 in this regard.
Admittedly, Ferrellgas, Inc. v. Yeiser ,
Erwin Schrödinger (1887-1961), a Viennese physicist instrumental in the early development of quantum mechanics, posed what has become known as the Schrödinger Cat Paradox. In this thought experiment, Schrödinger placed a cat inside of a box which contained an apparatus which would kill the cat fifty percent (50%) of the time and then, without opening the box, he pondered whether the cat was alive or dead. Schrödinger[ ] proposed that, until he actually opened the box, the cat was neither alive nor dead, but rather existed in "wave form" and in both states, alive and dead, simultaneously.
Hardin Cty. Sch. v. Foster ,
All of the amounts discussed in this paragraph are in addition to the $4012 verdict against Hancock and in favor of Miller.
Reference
- Full Case Name
- Steven A. MILLER v. Rebecca R. HANCOCK and Stephanie P. Maiolo, a/k/a Stephanie P. Aragon
- Cited By
- 2 cases
- Status
- Published