Miller v. Brannon

• Decision Date: 05 March 2009
• Docket Number: No. 08CA0581.,08CA0581.
• Citation: 207 P.3d 923
• Parties: Susan D. MILLER, Plaintiff-Appellant, v. Carol L. BRANNON, Defendant-Appellee.
• Court: Colorado Court of Appeals

207 P.3d 923

Susan D. MILLER, Plaintiff-Appellant, v. Carol L. BRANNON, Defendant-Appellee.

No. 08CA0581.

Colorado Court of Appeals, Div. VI.

March 5, 2009.

Law Office of Chris D. Hefty, Chris D. Hefty, Loveland, Colorado, for Plaintiff-Appellant.

The Ukasick Law Firm, LLC, Troy A. Ukasick, Loveland, Colorado, for Defendant-Appellee.

Opinion by Judge J. JONES.

In this negligence action involving an automobile accident, plaintiff, Susan D. Miller, appeals the district court's judgment entered on a jury verdict finding that defendant, Carol L. Brannon, was negligent and thereby caused Ms. Miller injuries, damages, or losses, but awarding Ms. Miller no damages. Specifically, Ms. Miller challenges certain of the district court's orders and jury instructions, which Ms. Miller contends improperly denied her the ability to collect damages for past and future medical expenses and lost earnings.

We conclude that the district court did not err in prohibiting Ms. Miller from presenting evidence of past medical expenses or in denying her request for a continuance of the trial to seek additional medical treatment and the recovery of damages therefor. However, we also conclude that the district court erred by applying the repealed Colorado Auto Accident Reparations Act (No-Fault Act) (formerly codified, as amended, at §§ 10-4-701 to -725; repealed effective July 1, 2003, ch. 189, sec. 1, § 10-4-726, 2002 Colo. Sess. Laws 649), by instructing the jury to subtract from Ms. Miller's claimed damages for lost earnings fifty-two weeks of wage-loss reimbursements she received under the personal injury protection (PIP) benefits of her automobile insurance policy. Therefore, we reverse the judgment in part and remand the case for a new trial on Ms. Miller's claim for lost earnings. In all other respects, we affirm.

I. Background

On July 7, 2003, six days after the effective date of the repeal of the No-Fault Act, Ms. Brannon was driving her car in Loveland when she failed to stop at a red light. She rear-ended Ms. Miller's vehicle, and Ms. Miller suffered neck injuries as a result.

At the time of the accident, Ms. Miller was the named insured on an insurance policy that ran from March 21, 2003, through September 21, 2003. Ms. Miller's insurer renewed the policy prior to the repeal of the No-Fault Act. As required by the No-Fault Act, see § 10-4-706(1)(d)(I) (repealed), Ms. Miller's policy provided a basic level of PIP benefits that included, as applicable here, fifty-two weeks of wage-loss reimbursements and payment for medical expenses up to $50,000. As particularly relevant here, the No-Fault Act also provided that when losses resulting from an automobile accident were eligible for PIP coverage under an insurance policy, such losses were not recoverable in a tort action against the tortfeasor who caused the losses. See § 10-4-713(1) (repealed).

Almost three years after the accident, Ms. Miller sued Ms. Brannon, asserting claims for negligence and negligence per se. The trial was eventually set to begin on January 29, 2008.

On January 9, 2008, the parties filed a joint Trial Management Order. Therein, Ms. Miller did not show past medical expenses as a category of damages she intended to attempt to recover at trial. Ms. Miller did show future medical expenses as a category of damages, but at a hearing the same day, her counsel stated that she would not seek such damages unless (1) her new doctor "confirmed" the need for future medical treatment, and (2) the court granted a continuance of the trial to permit her to receive additional medical treatment and to permit the doctor, whom she had not previously identified as a potential witness, to testify.

One week before trial, Ms. Miller filed a motion to continue the trial to allow the parties to conduct discovery "regarding [Ms. Miller's] current medical condition and the need for surgery to correct the condition," and to permit her to present evidence of such treatment at trial. Ms. Brannon opposed the motion.

The court denied the motion for a continuance. The court concluded that Ms. Miller had not explained sufficiently the need for seeking additional medical treatment so shortly before trial, particularly since it did not appear the additional treatment was needed because of any sudden or unexpected change in her condition, and therefore she had not established good cause for a continuance.

At 4:43 p.m. on the Saturday before the trial (scheduled to begin on Tuesday), Ms. Miller filed a motion objecting to the application of the No-Fault Act to her damages claims and objecting to certain jury instructions, to which she had previously stipulated, addressing the No-Fault Act's requirement of proving damages in excess of a threshold amount. See § 10-4-714 (repealed). The court took up the motion the morning of the first day of trial. The court ruled that the threshold requirement did not apply because the accident occurred after the effective date of the repeal of the No-Fault Act. However, the court ruled that Ms. Miller would not be permitted to recover damages covered by the PIP benefits, including lost earnings and past medical expenses, effectively applying repealed section 10-4-713(1) of the No-Fault Act to her claims.

The court also denied Ms. Miller's motion to call a witness to testify as to her past medical expenses because her late endorsement of the new witness was untimely and inexcusable. The court ruled that because Ms. Miller had not identified past medical expenses in the Trial Management Order, and Ms. Brannon was not otherwise on notice that she would be seeking such damages, she would not be allowed to introduce evidence of such damages at trial.

Ms. Brannon admitted liability for the accident, and the only issues at trial were the cause and extent of Ms. Miller's claimed injuries and damages. Over Ms. Miller's objection, and consistent with its earlier decision to apply repealed section 10-4-713(1), the court instructed the jury that in awarding damages it must exclude amounts Ms. Miller would have earned in the first fifty-two weeks after the accident had she not been injured in the accident. As noted, the jury did not award any damages to Ms. Miller.

II. Discussion

A. Disallowance of Evidence of Past Medical Expenses

Ms. Miller contends that the district court abused its discretion when it precluded her from presenting evidence of her past medical expenses. We disagree.

As noted, the district court prohibited Ms. Miller from presenting evidence of past medical expenses (which totaled approximately $4,800) for two reasons: (1) Ms. Miller's past medical expenses did not exceed the amount that she received pursuant to her PIP benefits, and repealed section 10-4-713(1) prohibited the recovery of damages for benefits the No-Fault Act required the insurer to provide; and (2) Ms. Miller did not identify damages for past medical expenses in the Trial Management Order

As discussed below, we disagree with the district court's application of repealed section 10-4-713(1) of the No-Fault Act to Ms. Miller's damages claims. However, we conclude that the district court did not err in prohibiting Ms. Miller from introducing evidence of past medical expenses because she did not identify such damages in the Trial Management Order. Therefore, we will not disturb the district court's ruling precluding the evidence. See Wagner v. Hilkey, 914 P.2d 460, 462 (Colo.App.1995) ("A correct judgment will not be disturbed on review, even if our analysis differs from that of the trial court."), aff'd sub nom. Wagner v. Bd. of County Comm'rs, 933 P.2d 1311 (Colo.1997); LaFond v. Basham, 683 P.2d 367, 369-70 (Colo. App.1984) (appellate court "will not disturb the trial court's decision merely because it assigned one incorrect reason for it").

Although Ms. Miller requested damages for "medical expenses" in her complaint, her damages itemization in the Trial Management Order listed damages only for (1) lost earnings totaling $109,649; (2) pain and suffering totaling $696,420; and (3) future medical expenses totaling $225,000.

C.R.C.P. 16(f)(3)(V) requires the parties to a civil lawsuit to file a trial management order in which "[e]ach claiming party shall set forth a detailed description of the categories of damages or other relief sought and a computation of any economic damages claimed." The official committee comment to the rule indicates that this requirement "facilitate[s] preparation and trial of the case." C.R.C.P. 16 committee comment (c).

C.R.C.P. 16(f)(5) provides that "[t]he Trial Management Order shall control the subsequent course of the trial. Modification to or divergence from the Trial Management Order, whether prior to or during trial, shall be permitted upon a demonstration that the modification or divergence could not with reasonable diligence have been anticipated."

Here, Ms. Miller failed to demonstrate that a modification permitting her to claim damages for past medical expenses could not have been anticipated. There is no evidence in the record demonstrating that at the time the parties submitted the Trial Management Order, Ms. Miller was unaware that she had incurred past medical expenses or that they totaled $4,800. Rather, it appears that her counsel made an error in judgment by assuming that the No-Fault Act applied to her case. Therefore, the district court did not abuse its discretion in prohibiting Ms. Miller from presenting evidence of her past medical expenses. Cf. Polk v. Denver Dist. Court, 849 P.2d 23, 25-27 (Colo.1993) (court did not abuse its discretion in denying request to amend answer where request was untimely, amendment would have raised new issues requiring additional discovery, and a continuance of the trial would have been required).

B. Application of the Repealed No-Fault Act

Ms. Miller contends that the district court erred in applying repealed section 10-4-713(1) of the No-Fault Act to her claim for lost earnings by...