Church v. American Standard Ins. Co. of Wisconsin, 87CA0472

• Decision Date: 20 October 1988
• Docket Number: No. 87CA0472,87CA0472
• Citation: 764 P.2d 405
• Parties: Ronald W. CHURCH and Violet Church, Plaintiffs-Appellees, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 405

764 P.2d 405

Ronald W. CHURCH and Violet Church, Plaintiffs-Appellees, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant.

No. 87CA0472.

Colorado Court of Appeals Div. III.

Oct. 20, 1988.

Stacy Carpenter, Grand Junction, for plaintiffs-appellees.

Dickinson & Herrick-Stare, P.C., Richard L. Everstine, Denver, for defendant-appellant.

TURSI, Judge.

Defendant, American Standard Insurance Company of Wisconsin (American), appeals a judgment rendered against it based on its refusal to pay insurance claims asserted by plaintiff, Ronald Church. As grounds for its appeal, American asserts four errors: (1) an erroneous determination by the trial court of when personal injury protection benefits became due under § 10-4-708, C.R.S. (1987 Repl.Vol. 4A) and the improper use of a post-trial affidavit for that purpose; (2) the application of an improper rate of interest to the judgment; (3) an improper award of costs for medical narrative reports; and (4) an improper post-trial reversal of a directed verdict and award of treble damages. We affirm the judgment in part and reverse in part.

Church was injured in an automobile accident. He submitted his medical bills to American, his insurer, for payment. American began making payments pursuant to the policy, but it stopped all payments after it received the results of an independent medical examination performed on Church. The examination was authorized under the terms and conditions of the policy and took place at American's insistence.

Church subsequently sued American for breach of the insurance contract, willful and wanton failure to pay personal injury protection benefits pursuant to § 10-4-708, and a bad faith breach of the insurance contract.

I

American first objects to the trial court's assessment of interest under § 10-4-708. In particular, American argues the trial court improperly relied on a post-trial affidavit submitted by Church's chiropractor in determining when benefits became due. American claims the trial court's assessment was otherwise unsupported by the record.

When interest becomes due in accordance with the provisions of a statute is a matter to be assessed by the trial court, not the jury. See Hayes v. North Table Mountain Corp., 43 Colo.App. 467, 608 P.2d 830 (1980). Although the trial court's reliance on the post-trial affidavit may have been improper, there was other documentary evidence in the record to support the assessment. Thomas v. Bove, 687 P.2d 534 (Colo.App.1984) (findings of trial court which have support in the record may not be disturbed on review). Therefore, the assessment is affirmed.

II

American next contends that the trial court's award of interest at the rate of nine percent was in error. We agree. Interest should have been applied pursuant to § 5-12-102, C.R.S. (1987 Cum.Supp.) which provides for a statutory rate of eight percent. Accordingly, the trial court's award of post-judgment interest may not stand.

American has already paid post-judgment interest at a rate of 8% on that part of the judgment comprised of the jury verdict, costs, attorney fees, plus 18% interest as required by § 10-4-708. However, the 18% interest paid by American in its partial satisfaction of judgment was improperly calculated. The 18% interest due on the verdict under § 10-4-708 was to be applied as of the date benefits became due which the trial court correctly determined to be November 12, 1983 (see discussion in part I). Instead, American used the date of August 11, 1984 in determining the interest it owed under § 10-4-708. In view of American's misplaced reliance on the latter date, interest under § 10-4-708 remains due and owing for the period between November 12, 1983 and August 11, 1984. In addition, post-judgment interest on that amount must be calculated pursuant to § 5-12-106, C.R.S. (1987 Cum.Supp.).

III

American next contends that the trial court erred by including the expense of medical reports in the award of costs. Absent a specific prohibition, the trial court has discretion over the awarding of costs. See Rossmiller v. Romero, 625 P.2d 1029 (Colo.1981). Because the list of expenses that may be awarded as costs under § 13-16-122, C.R.S. ...