Parker v. Usaa

• Decision Date: 03 May 2007
• Docket Number: No. 05CA2569.,No. 05CA2361.,05CA2361.,05CA2569.
• Citation: 216 P.3d 7
• Parties: Richard Ernest PARKER, Plaintiff-Appellee and Cross-Appellant, v. USAA, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

216 P.3d 7

Richard Ernest PARKER, Plaintiff-Appellee and Cross-Appellant, v. USAA, Defendant-Appellant and Cross-Appellee.

No. 05CA2361.

No. 05CA2569.

Colorado Court of Appeals, Div. III.

May 3, 2007.

Lloyd C. Kordick & Associates, Lloyd C. Kordick, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Retherford, Mullen, Johnson & Bruce, LLC, Lori M. Moore, Colorado Springs, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge TAUBMAN.

Defendant, USAA, appeals the order for prejudgment interest entered in favor of plaintiff, Richard Ernest Parker, asserting the trial court erred in applying a nine percent statutory interest rate to a judgment arising from a claim for underinsured motorist (UIM) benefits. Parker cross-appeals the denial of interest on an amount paid by the tortfeasor's insurer and the denial of certain costs. We affirm the order as to interest and affirm in part and reverse in part as to costs.

Parker and others were injured in a motor vehicle chain reaction accident caused by Steven Maxwell, whose liability insurance was limited to $50,000. Several weeks after the accident, Parker notified his own insurer, USAA, of his UIM claim. He later filed a complaint against Maxwell, alleging Maxwell drove negligently and caused his injuries, and he filed a third-party complaint against USAA for UIM coverage.

Maxwell's insurer paid the $50,000 liability limit into the court's registry fund, and, pursuant to a settlement among the injured parties, $12,500 of this amount was later distributed to Parker.

During trial, a juror requested time to visit a family member in the hospital. The court postponed the trial for several days, and Parker was forced to reschedule three expert witnesses, incurring additional witness fees.

After a mistrial was declared, the parties stipulated that the court would determine liability and damages based upon the trial transcript.

The court ruled in favor of Parker, holding USAA was liable for $201,000, plus nine percent prejudgment interest and certain costs, but denying other costs requested by Parker. After filing its notice of appeal regarding prejudgment interest, USAA paid the entire judgment, including prejudgment interest at nine percent.

Parker then filed a motion in this court, requesting an order to show cause why USAA's appeal of the judgment was not moot because it had already satisfied the judgment, including the disputed interest. USAA filed a response, and a motions division of this court denied Parker's motion.

According to USAA, the amount of disputed interest is about $42,000.

I. Mootness

As a preliminary matter, Parker maintains this case is moot because USAA satisfied the judgment, including the contested amount of interest and, therefore, we should revisit the motions division's ruling on that issue. We agree with the motions division that this case is not moot.

Although we generally decline to revisit rulings by the motions division, we may reconsider jurisdictional issues. FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260, 1262 (Colo.App.2004) (holding court of appeals could review decision of motions division). Here, because Parker's contention, if correct, would lead to the conclusion that satisfaction of the judgment would render the appeal moot, see Van Schaack Holdings, Ltd. v. Fulenwider, 768 P.2d 740 (Colo.App.1988), and the motions division did not explain its ruling, we address the issue of mootness.

The acceptance-of-benefits doctrine provides that a party who accepts an award under a judgment waives the right to any review of the adjudication which would put at issue the right to the benefit accepted. HealthONE v. Rodriguez, 50 P.3d 879, 886-87 (Colo.2002); see also Potter v. State Farm Mut. Auto. Ins. Co., 21 P.3d 874, 875 (Colo. App.2001). However, there are several exceptions to the acceptance-of-benefits doctrine. HealthONE v. Rodriguez, supra, 50 P.3d at 887.

As relevant here, the doctrine does not apply unless the parties intended to settle their claims. Main Elec., Ltd. v. Printz Servs. Corp., 980 P.2d 522, 528 (Colo.1999). The Colorado Supreme Court explained that where a party accepts an award "it is `the mutual manifestation of an intention to bring the litigation to a definite conclusion upon a basis acceptable to all parties' which bars a subsequent appeal, and not the fact, standing alone, that benefits under the judgment were accepted." Main Elec., Ltd. v. Printz Servs. Corp., supra, 980 P.2d at 528 (quoting United States ex rel. H & S Indus., Inc. v. F.D. Rich Co., 525 F.2d 760, 764 (7th Cir.1975)).

Here, the trial court awarded Parker $201,000 plus nine percent interest from the date of the occurrence and costs. Pursuant to C.R.C.P. 62(d), USAA filed a supersedeas bond in the amount of $93,000 to stay the execution of the judgment pending appeal. Several months later, USAA paid Parker the entire judgment ($201,000), two interest payments totaling $69,074.23 ($13,556 and $55,518.23), and costs of $13,111, and moved the court to release the supersedeas bond. USAA did not mention the pending appeal in its motion for release of the supersedeas bond.

Parker acknowledged receipt of the $201,000 in a partial satisfaction of judgment, stating, "This does not represent full payment of the judgment and does not include interest or costs, but is a partial satisfaction."

In a second partial satisfaction of judgment, Parker acknowledged receipt of $13,556 in interest.

Finally, he filed a third partial satisfaction of judgment acknowledging receipt of $55,518.23 in interest, but stating, "The proper calculations of the judgment and interest are pending on appeal. This Partial Satisfaction of Judgment does not include these calculations that are currently on appeal."

Under these circumstances, we conclude the appeal is not moot, because Parker proceeded as though the proper rate of prejudgment interest was still in dispute. See Main Elec., Ltd. v. Printz Servs. Corp., supra, 980 P.2d at 528.

II. USAA's Appeal of Prejudgment Interest

USAA asserts the trial court erred in determining the amount of prejudgment interest it owed Parker. We disagree. Here, the dispositive issue is whether a UIM claim is contractual, accruing interest at a rate of eight percent from the date the monies were owed, or based on tort, accruing interest at the rate of nine percent from the date of the accident. We agree with the trial court that Parker's claim was based on a tort, and thus, he is entitled to prejudgment interest at the rate of nine percent.

This case presents a question of statutory construction which we review de novo. Dillard v. Indus. Claim Appeals Office, 134 P.3d 407 (Colo.2006). The issue presented here does not appear to have been addressed squarely in reported appellate cases. Cf. Schnacker v. State Farm Mut. Auto. Ins. Co., 843 P.2d 102, 104 (Colo.App.1992) (citing both statutes at issue here, but in context of bad faith insurance claim where plaintiff was third-party claimant).

In interpreting a statute, a reviewing court must determine and put into effect the intent of the legislature. People v. Banks, 9 P.3d 1125, 1127 (Colo.2000). We start with the language of the statute. If its language is clear, we interpret the statute according to its plain and ordinary meaning. Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997). In so doing, we construe the statute as a whole, in an effort to give "consistent, harmonious and sensible effect to all its parts." Carlson v. Ferris, 85 P.3d 504, 508 (Colo.2003) (quoting People v. Luther, 58 P.3d 1013, 1015 (Colo.2002)).

A. Plain Language

Section 5-12-102, C.R.S.2006, provides a statutory interest rate for the accrual of damages and has generally been applied to actions for contract and property damage. Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119, 133 (Colo.2005). It states:

(1) Except as provided in section 13-21-101, C.R. S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:

(a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant,

(b) Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.

Section 5-12-102 (emphasis added). Thus, a prevailing party on a claim for wrongful withholding is entitled to eight percent interest from the date the property was wrongfully withheld or monies were owed.

However, the statute's first sentence states that it does not apply if § 13-21-101, C.R.S. 2006, applies. That statute, in turn, provides:

In all actions brought to recover damages for personal injuries sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of such other person, corporation, association, or partnership and whether such injury has resulted fatally or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged from the date said suit is filed .... When such interest is so claimed, it is the duty of the court in entering judgment for the plaintiff in such action to add to the amount of damages assessed by the verdict of the jury, or found by the court, interest on such amount calculated at the rate of nine percent per annum .... On and after January 1, 1983, if a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, interest, whether prejudgment or postjudgment, shall be...