COLORADO COURT OF APPEALS                                       2016COA167


Court of Appeals No. 14CA2423
Pueblo County District Court No. 12CV740
Honorable David W. Crockenberg, Judge


Estate of Michael Dean Casper, by and through Nick Casper, personal
representative,

Plaintiff-Appellee,

v.

Guarantee Trust Life Insurance Company, an Illinois corporation,

Defendant-Appellant.


                       JUDGMENT AFFIRMED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division II
                         Opinion by JUDGE HARRIS
                         Webb and Ashby, JJ., concur

                        Announced November 17, 2016


Levin Rosenberg PC, Bradley A. Levin, Nelson A. Waneka, Denver, Colorado;
Keating Wagner Polidori Free PC, Zachary C. Warzel, Denver, Colorado, for
Plaintiff-Appellee

Hall & Evans, LLC, Kevin E. O’Brien, Alan Epstein, Malcolm S. Mead, Cristin J.
Mack, Denver, Colorado, for Defendant-Appellant
¶1    Under Colorado law, the death of a plaintiff in a personal

 injury action extinguishes his entitlement to recover noneconomic

 and punitive damages. But what happens when the plaintiff dies

 after those damages have been awarded by a jury but before the

 district court has entered a judgment? This question had never

 been answered in Colorado.

¶2    Michael Dean Casper bought a cancer insurance policy from

 defendant, Guarantee Trust Life Insurance Company (GTL); when

 he was diagnosed with cancer seven months later, GTL refused to

 pay his claims. Casper sued GTL for breach of contract, bad faith

 breach of an insurance contract, and statutory unreasonable denial

 of benefits. A jury awarded him more than $4,500,000 in punitive

 and other noneconomic damages.

¶3    The trial court immediately entered an oral order making the

 verdict a judgment. But Casper died nine days later, before the

 court had reduced its oral order entering judgment to a written

 judgment as required by C.R.C.P. 58. After resolving attorney fees

 and interest issues, the court entered a signed and dated written

 judgment in favor of plaintiff, the Estate of Michael Dean Casper




                                  1
 (the Estate), in the amount of $1,997,996.40, nunc pro tunc to the

 date of verdict.

¶4    GTL says that as a matter of law the delay in entering the

 written judgment means that under the Colorado survival statute,

 § 13-20-101, C.R.S. 2016, the Estate is entitled only to the $50,000

 awarded as economic damages for the breach of contract claim. We

 disagree. Because the verdict resolved the merits of the case, and

 judgment would necessarily follow, the survival statute did not

 extinguish Casper’s right to damages. We therefore affirm the

 judgment.

                           I.   Background

¶5    Casper bought a “First Diagnosis” cancer insurance policy in

 August 2010. According to his testimony, he was sold the policy by

 Joanna Gaylord, a door-to-door insurance salesperson who worked

 for Platinum Supplemental Insurance, Inc. (Platinum), an agency

 with exclusive rights to sell GTL’s policy. Casper listened to

 Gaylord’s presentation but expressed concern about his ability to

 qualify for benefits, based on prior arterial blockages in his legs.

 Gaylord assured him that, as long as he had not been diagnosed

 with, or been advised to seek treatment for, AIDS, cancer, a heart


                                    2
 attack, or a stroke, he would be covered by the policy. Casper

 answered truthfully that he had not been diagnosed with or advised

 to seek treatment for any of those conditions. He filled out the

 application, authorized GTL to obtain ten years’ of medical records,

 and agreed to monthly electronic premium payments. A month

 later, GTL approved his application.

¶6    In March 2011, Casper was diagnosed with prostate cancer.

 He submitted claims to GTL, which denied them. According to page

 twelve of the policy, cancer was not a covered condition “when

 advice or treatment is received . . . prior to the Effective Date, and

 such advice or treatment results in the First Diagnosis of Cancer.”

 GTL maintained that Casper had received such advice, in

 connection with his treatment for a non-cancerous condition

 involving an enlarged prostate, which had ultimately resulted in the

 detection of Casper’s prostate cancer.

¶7    In 2012, Casper sued GTL for breach of contract, bad faith

 breach of insurance contract, and unreasonable denial of benefits

 in violation of sections 10-3-1115 and -1116, C.R.S. 2016. He also

 sued, but then settled with, Gaylord and Platinum on claims for




                                    3
  negligent misrepresentation and fraud based on their role in

  marketing the policy on behalf of GTL.

¶8     Trial was originally scheduled to begin in February 2014. But

  in October 2013, the court, on its own motion, reset the trial to July

  2014.

¶9     During trial, the court directed a verdict for Casper on his

  breach of contract claim, finding that the exclusion provision was

  ambiguous and, therefore, as a matter of law, the policy had to be

  construed as covering Casper’s cancer. On July 15, 2014, the jury

  returned a verdict in favor of Casper on all claims. It awarded

  Casper $50,000 for breach of contract, $50,000 for unreasonable

  denial of benefits, $150,000 in economic damages for bad faith

  breach of the contract, $550,000 in noneconomic damages for bad

  faith breach of the contract, and $4,000,000 in punitive damages.1

¶ 10   Because Casper was in hospice care by then, his lawyer

  requested that the court immediately enter judgment on the verdict

  to avoid any limitation on recovery under Colorado’s survival


  1 The parties later agreed that the economic damages awards for the
  breach of contract, bad faith breach of an insurance contract, and
  statutory unreasonable denial of benefits claims were duplicative
  and that economic damages totaled $50,000.

                                    4
  statute. The court attempted to oblige, announcing that it was

  entering judgment. It directed the clerk to receive and enter the

  verdict in the court registry. Then it entered an unsigned minute

  order reflecting that it had ordered judgment to be entered.

¶ 11   When Casper died nine days later, GTL moved to set aside the

  verdict in part and to limit the recoverable damages. It argued that

  because attorney fees and prejudgment interest had not been

  determined and statutory caps had not been applied, Casper had

  died before final judgment had been entered. Thus, according to

  GTL, the statutory bad faith denial of benefits claim was

  extinguished, as was Casper’s entitlement to recover noneconomic

  and punitive damages. GTL requested that the court enter final

  judgment on the breach of contract claim in the amount of $50,000.

  In the alternative, GTL requested that the court impose statutory

  caps on the noneconomic and punitive damages.

¶ 12   Casper’s attorneys, in the meantime, moved to substitute the

  Estate as plaintiff, and then they requested an award of attorney

  fees under section 10-3-1116 and prejudgment interest to July 15,

  2014, the date the court had orally entered judgment.




                                    5
¶ 13   The district court denied GTL’s motion to set aside the verdict,

  ruling that the survival statute was not implicated because Casper

  had died after entry of judgment on the verdict. It did, however,

  grant GTL’s motion to enforce the statutory caps on damages.

¶ 14   On October 30, 2014, after reducing the noneconomic and

  punitive damages pursuant to statutory caps and awarding

  approximately one-third of the fees requested by Casper’s attorneys,

  the district court entered an amended final judgment, nunc pro

  tunc to July 15, 2014, in favor of the Estate in the amount of

  $1,997,996.40.

¶ 15   On appeal, GTL contends that the district court erred by

  failing to vacate all of the damages (with the exception of the

  $50,000 breach of contract damages), by characterizing the

  attorney fees awarded under section 10-3-1116 as compensatory

  damages for purposes of calculating punitive damages, by failing to

  further reduce the attorney fees award, and by instructing the jury

  on an insurance regulation related to the standard of care for the

  sale and marketing of insurance policies. We take up each of these

  contentions, reject them, and therefore affirm.




                                     6
                    II.   Colorado’s Survival Statute

¶ 16   At common law, claims based on personal torts abated upon

  the death of either party. To ameliorate the harsh effects of this

  rule, Colorado, like most other states, enacted a survival statute in

  the late 1800s. Its current iteration — section 13-20-101 —

  provides:

              All causes of action, except actions for slander
              or libel, shall survive and may be brought or
              continued notwithstanding the death of the
              person in favor of or against whom such action
              has accrued, but punitive damages shall not
              be awarded nor penalties adjudged after the
              death of the person against whom such
              punitive damages or penalties are claimed;
              and, in tort actions based upon personal
              injury, the damages recoverable after the death
              of the person in whose favor such action has
              accrued shall be limited to loss of earnings and
              expenses sustained or incurred prior to death
              and shall not include damages for pain,
              suffering, or disfigurement, nor prospective
              profits or earnings after date of death. An
              action under this section shall not preclude an
              action for wrongful death under part 2 of
              article 21 of this title.

¶ 17   GTL contends that because Casper died before a final,

  appealable judgment was entered, the Estate may recover only the

  $50,000 awarded as economic damages.




                                     7
        A. Standard of Review and Principles of Interpretation

¶ 18   Resolution of this case turns on the interpretation of a statute,

  an issue of law subject to de novo review. Kyle W. Larson Enters.,

  Inc. v. Allstate Ins. Co., 2012 COA 160M, ¶ 9.

¶ 19   Our primary task when construing a statute is to ascertain

  and give effect to the legislature’s intent based on its chosen

  language. Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11; see

  also State v. Nieto, 993 P.2d 493, 502 (Colo. 2000) (“Legislative

  intent is the polestar of statutory construction.” (quoting Schubert v.

  People, 698 P.2d 788, 793 (Colo. 1985))). We give words and

  phrases their plain and ordinary meanings, and we read the statute

  as a whole, giving consistent, harmonious, and sensible effect to all

  of its parts. Young, ¶ 11. We must choose a construction that

  serves the purpose of the legislative scheme and avoids absurd

  results. Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo. 2001).

¶ 20   If the statutory language is unambiguous, we apply it as

  written. Reno v. Marks, 2015 CO 33, ¶ 20. If a statute is

  ambiguous, however, we may consider indicia of legislative intent

  such as the object to be attained, the circumstances under which

  the statute was enacted, the common law, and the consequences of


                                     8
  a particular construction. § 2-4-203, C.R.S. 2016; see also State

  Eng’r v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo. 1993)

  (listing indicators of legislative intent). “Because we also presume

  that legislation is intended to have just and reasonable effects, we

  must construe statutes accordingly and apply them so as to ensure

  such results.” Castle Meadows, Inc., 856 P.2d at 504; see also § 2-

  4-201(1)(c), C.R.S. 2016.

                              B. Discussion

¶ 21   The survival statute sets forth a broad rule, with two

  exceptions. As relevant here, all causes of action survive the death

  of a party. But, neither punitive damages nor penalties shall be

  “awarded” or “adjudged” after the death of a party,2 and in personal

  injury cases, the damages “recoverable” after the death of the


  2 The statute prohibits the award of punitive damages or penalties
  “after the death of the person against whom such punitive damages
  or penalties are claimed,” § 13-20-101, C.R.S. 2016 (emphasis
  added), but the supreme court has interpreted this limitation on
  damages to apply not just when the tortfeasor dies, but also when
  the plaintiff dies. See Kruse v. McKenna, 178 P.3d 1198, 1200
  (Colo. 2008); see also Warren v. Liberty Mut. Fire Ins. Co., Civ. A. No.
  05-cv-01891-PAB-MEH, 2011 WL 1103160, at *9 (D. Colo. 2013
  Mar. 24, 2011) (Although the statutory language appears to bar
  recovery of punitive damages or penalties only after the death of the
  tortfeasor, “[t]his interpretation of the statute . . . has been
  foreclosed by the Colorado Supreme Court.”).

                                     9
  plaintiff are limited to economic damages suffered before death and

  shall not include noneconomic damages or future earnings. § 13-

  20-101.

¶ 22   GTL maintains that the survival statute precludes recovery of

  punitive or noneconomic damages if the plaintiff dies before his

  claims merge into a final judgment, an event that prevents

  abatement. And, it argues, the judgment that was entered in July

  2015, days before Casper’s death, was not final because it did not

  include an award of attorney fees or prejudgment interest.

  Therefore, the jury’s award of damages became a nullity when

  extinguished by Casper’s death nine days later.

¶ 23   We agree with GTL that, as a general matter, claims merge

  into a judgment and a judgment does not abate, even if the cause of

  action would not have survived the party’s death. Ahearn v. Goble,

  90 Colo. 173, 176, 7 P.2d 409, 410 (1932). And, neither the court’s

  oral pronouncement nor the minute order constituted a “judgment”

  within the meaning of C.R.C.P. 58(a) because the rule requires

  entry of a written, dated, and signed judgment. But we do not

  believe that these propositions lead inexorably to a conclusion that

  the survival statute precludes recovery of punitive and other


                                   10
  noneconomic damages if the plaintiff dies after the verdict is

  returned but before judgment is entered. We conclude that, based

  on the language, history, and purpose of the statute, the legislature

  did not intend to draw such a bright line between verdict and

  judgment. Rather, in our view, one naturally leads to the other, so

  that a party who survives to verdict and obtains an entitlement to a

  judgment may recover punitive and other noneconomic damages,

  regardless of whether the party is alive when the resulting judgment

  is entered.

¶ 24   To begin, the statute does not set the date of judgment as the

  time when a claim for noneconomic damages is no longer subject to

  abatement. Nor does it mention the date of verdict. Some other

  states’ survival statutes do explain more explicitly when the party’s

  death extinguishes a right to recover damages. See, e.g., Cal. Prob.

  Code § 573 (West 1991) (“Where a person having a cause of action

  dies before judgment, the damages recoverable . . . are limited to

  the loss or damage the decedent sustained or incurred prior to

  death, including any penalties or punitive or exemplary damages

  . . . but not including any damages for pain, suffering, or

  disfigurement.”) (repealed 1992); Nev. Rev. Stat. § 41.100 (2016)


                                    11
  (“[W]hen a person who has a cause of action dies before judgment,

  the damages recoverable by the decedent’s executor . . . include all

  losses or damages which the decedent incurred or sustained before

  the decedent’s death, including any penalties or punitive and

  exemplary damages . . . and damages for pain, suffering or

  disfigurement . . . .”); Or. Rev. Stat. § 121.010 (1964) (“An action for

  a wrong shall not abate by the death of any party, after a verdict

  has been given therein, but the action shall proceed thereafter in

  the same manner as in cases where the cause of action survives.”)

  (repealed 1965).

¶ 25   The General Assembly’s decision to forego an explicit selection

  of either the date of verdict or the date of judgment as the

  controlling date for survival purposes shows that it did not consider

  the distinction relevant. The General Assembly has distinguished

  between the verdict and the judgment in a number of other

  statutes. See, e.g., § 8-2-203, C.R.S. 2016 (“[T]he verdict of the jury

  and the judgment of the court shall specify the amount of damages

  awarded to each person . . . .”); § 13-64-205, C.R.S. 2016 (setting

  forth the procedure to determine “what judgment is to be entered on

  a verdict requiring findings of special damages”); § 38-1-113, C.R.S.


                                     12
  2016 (“The court shall cause the verdict of the jury and the

  judgment of said court to be entered upon the records of said

  court.”). Thus, had the General Assembly intended to bar a party’s

  recovery of noneconomic damages in the event of death after the

  verdict but before judgment, it could have said so. See Specialty

  Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010) (“[T]he

  General Assembly’s failure to include particular language is a

  statement of legislative intent.”).

¶ 26   Turning to the language that does appear in the survival

  statute, we conclude that it supports an interpretation that survival

  to verdict suffices for a party to recover noneconomic damages.

  With respect to punitive damages, the statute instructs that a

  plaintiff cannot be “awarded” punitive damages after his death or

  the death of the tortfeasor. Because punitive damages are awarded

  by the jury, an “award” of punitive damages necessarily occurs at

  the time of the verdict. See § 13-21-102, C.R.S. 2016 (jury may

  award exemplary damages in addition to actual damages).

  Accordingly, the legislature’s choice of the word “awarded” indicates

  that a punitive damages award is not extinguished if the plaintiff

  dies after a verdict is returned. See People v. Guenther, 740 P.2d


                                        13
  971, 976 (Colo. 1987) (In construing a statute, the court assumes

  that the legislative choice of language is a “deliberate one calculated

  to obtain the result dictated by the plain meaning of the words.”).

¶ 27   Though the General Assembly used another term —

  “recoverable” — when referring to other types of noneconomic

  damages, we do not read the statute as imposing different rules

  depending on the type of noneconomic damages at issue. In other

  words, we do not believe that the legislature intended to allow a

  party to recover punitive damages if he survived to verdict, but to

  allow recovery of other noneconomic damages only if he survived to

  entry of judgment. The creation of separate standards within the

  same provision of a statute would be unusual enough that we

  would expect the legislature to delineate that distinction more

  explicitly. And, if the statute creates a single standard, we believe

  that the word “awarded” is a more clear description of the relevant

  event than the word “recoverable.”

¶ 28   Even so, because the language could reasonably be interpreted

  to support both Casper and GTL, we conclude that the statute is

  ambiguous. Thus, we must look to other tools of statutory

  construction to ascertain legislative intent.


                                    14
¶ 29   Under the common law of England, causes of action did not

  abate upon the death of a party once a verdict was returned as long

  as the judgment followed within a prescribed period of time. See,

  e.g., Isley’s Case (1589) 74 Eng. Rep. 172 (K.B.) (where the plaintiff

  died after verdict but before judgment was entered, cause of action

  was not abated but instead judgment related back to date of

  verdict); see also 17 Car. 2 c. 8 (1665) (“[I]n all Actions Personall (’)

  Reall or mixt the death of either partie betweene the Verdict and the

  Judgement shall not hereafter be alleadged for Error soe as such

  Judgement be entred within Two Termes after such Verdict.”);

  Skidaway Shell-Road Co. v. Brooks, 77 Ga. 136, 138 (1886) (under

  English common law, return of a verdict before the death of a party

  prevented abatement). In other words, because the judgment

  followed from the verdict, the verdict was ordinarily sufficient to

  prevent abatement.

¶ 30   GTL points out that while Colorado adopted the common law

  of England, it did not adopt statutes enacted after 1607. See § 2-4-

  211, C.R.S. 2016. But under the common law, as well as the pre-

  1607 statutes that codified it, the death of a party after verdict did

  not result in an abatement of the claims.


                                      15
¶ 31   C.R.C.P. 58(a) also codifies this concept. Under the rule,

  “upon a general or special verdict of a jury, or upon a decision by

  the court, the court shall promptly prepare, date, and sign a written

  judgment.” Rule 58(a), then, contemplates that the verdict and

  judgment go hand in hand. And C.R.C.P. 54(f) instructs that “[i]f a

  party dies after a verdict or decision upon any issue of fact, and

  before judgment, the court may, nevertheless, render judgment

  thereon.” This rule confirms that, once a verdict is returned, the

  judgment shall follow, even if the party dies before judgment is

  entered. See Bates v. Burns, 274 P.2d 569, 570 (Utah 1954)

  (interpreting equivalent rule and concluding that the plaintiff’s

  action did not abate where the plaintiff died after verdict but before

  judgment because purpose of rule is to “preserve the verdict until a

  judgment can be entered thereon”).

¶ 32   A number of courts share our view that once the merits of the

  case have been decided by a verdict and the plaintiff is entitled to a

  judgment, the action or claim for damages will not abate, even if

  judgment has not been entered at the time of the party’s death.

¶ 33   In Tunnell v. Edwardsville Intelligencer, Inc., 252 N.E.2d 538

  (Ill. 1969), for example, the jury returned a verdict for the plaintiff


                                     16
  on his defamation action. The court entered judgment

  notwithstanding the verdict for defendant and plaintiff appealed,

  but while the appeal was pending, the plaintiff died. After reversal

  by the court of appeals, the defendant objected to reinstatement of

  the verdict, arguing that the defamation claim did not survive the

  plaintiff’s death. The Illinois Supreme Court disagreed, holding that

  an action does not abate when the plaintiff dies after obtaining a

  verdict in his favor:

                What is significant in such cases, in our
                opinion, is not any metaphysical notion of
                merger of the cause of action into the verdict,
                but rather the circumstance that all factual
                questions had been resolved before the plaintiff
                died. . . . The present case was ripe for
                judgment when the plaintiff died, and the
                appellate court properly held that his death
                did not abate the action.

  Id. at 541.

¶ 34   An analogous situation arose in Reed v. United States, 891

  F.2d 878 (11th Cir. 1990). In that case, the parents of a child who

  was born with birth defects asserted negligence claims against the

  government under the Federal Tort Claims Act. The parties reached

  a settlement; shortly thereafter, the lawyer for the government

  notified the plaintiffs that the settlement had been approved. The


                                      17
  following day, the government’s lawyer prepared a stipulation and

  sent it to the plaintiffs’ lawyer for signature. The child had died,

  however, the day before, just after the parties had confirmed

  approval of the settlement. The government attempted to withdraw

  from the settlement, contending that, under Florida’s survival

  statute in effect at the time, the negligence action abated upon the

  child’s death.

¶ 35   The Eleventh Circuit affirmed the district court’s enforcement

  of the agreement. It reasoned that the period between settlement

  and final judgment was similar to the period between verdict and

  judgment because, in both situations, the dispute had been

  “conclusively resolved.” Id. at 881-82; Variety Children’s Hosp., Inc.

  v. Perkins, 382 So. 2d 331 (Fla. Dist. Ct. App. 1980) (cause of action

  does not abate during period between verdict and judgment). The

  settlement entitled the plaintiffs to a judgment and, thus, the cause

  of action did not abate between settlement and final judgment. Id.

  at 882; see also Parker v. Parker, 319 A.2d 750, 751 (N.J. Super. Ct.

  App. Div. 1974) (husband’s death after resolution of parties’ dispute

  but before judgment did not abate divorce action because trial court

  had “made a definitive adjudication of the controversy, reflecting its


                                    18
  conclusive determination that each party be granted a divorce”);

  Garrett v. Byerly, 284 P. 343, 358 (Wash. 1930) (concluding that

  cause of action does not abate when party dies after the verdict

  because party is “entitled to a judgment” at the time of his death

  (quoting Fitzgerald v. Stewart, 53 Pa. 343, 346 (1866))); Wilson v.

  Coop. Transit Co., 30 S.E.2d 749, 753 (W. Va. 1944) (negligence

  claim did not abate where the plaintiff died after verdict but before

  entry of judgment).

¶ 36   Undaunted, GTL contends that Casper was not entitled to a

  “final judgment” at the time of his death because the court had not

  yet computed attorney fees and prejudgment interest. To be sure,

  when attorney fees and prejudgment interest constitute

  compensatory damages — as they do in this case — a final,

  appealable judgment cannot be entered until the calculations are

  complete. See Grand Cty. Custom Homebuilding, LLC v. Bell, 148

  P.3d 398, 400-01 (Colo. App. 2006). But that does not mean that

  the court could not enter a judgment pursuant to C.R.C.P. 58(a)

  before it performed the calculations necessary to enter an amended

  judgment that would be final and appealable under C.R.C.P. 54(a).

  A “final judgment” is simply a type of judgment from which an


                                    19
  appeal may lie. See C.R.C.P. 54(a) (“‘Judgment’ as used in these

  rules includes a decree and order to or from which an appeal lies.”);

  C.R.C.P. 58 (“The term ‘judgment’ includes an appealable decree or

  order as set forth in C.R.C.P. 54(a).”); see also Musick v. Woznicki,

  136 P.3d 244, 251 (Colo. 2006) (distinguishing judgments from

  final, appealable judgments under C.R.C.P. 54); cf. In re Estate of

  Becker, 32 P.3d 557, 559-60 (Colo. App. 2000) (judgment in

  dissolution of marriage case could have been entered after initial

  hearing, even though court had not yet ruled on child custody

  issues). We therefore reject GTL’s argument that Casper’s claim

  abated merely because he was not entitled to a final, appealable

  judgment.

¶ 37   Here, entry of judgment under C.R.C.P. 58(a) was surely

  proper, as the jury had returned a general verdict. Indeed, the

  dispute had been fully and finally resolved, all issues of liability had

  been determined, and the jury had awarded all damages based on

  the evidence presented at trial. See, e.g., Kaufman v. Herrman, 748

  So. 2d 310, 312 (Fla. Dist. Ct. App. 1999) (The personal injury

  action did not abate upon death of the plaintiff before entry of

  judgment because the “dispute in this case had been conclusively


                                     20
  decided in favor of [plaintiff] by the rendition of the verdict prior to

  [plaintiff’s] death.”).3

¶ 38    In any event, we are not persuaded that the General Assembly

  intended the extinguishment of a jury verdict to turn on whether

  attorney fees are characterized as costs or compensatory damages,

  particularly where the legislature itself created the special remedy

  that allows for reimbursement of attorney fees. Under GTL’s

  reasoning, its own egregious conduct in unreasonably denying

  benefits (which turns attorney fees otherwise treated as costs into

  compensatory damages) would cause the delay that then renders

  the jury’s award of noneconomic damages unrecoverable. We

  3 The Estate contends that, not only was it entitled to a judgment
  after the jury verdict under C.R.C.P. 58, but that judgment was
  actually entered at this time because, when the court entered its
  later written judgment, it did so nunc pro tunc to the date of the
  verdict. “Nunc pro tunc judgments operate retrospectively and are
  given the same force and effect as if entered at the time the court’s
  decision was originally rendered.” Dill v. County Court, 37 Colo.
  App. 75, 76 541 P.2d 1272, 1273 (1975). However, a court may
  only enter a judgment nunc pro tunc to a date on which the
  judgment legally could have entered. Robbins v. A.B. Goldberg, 185
  P.3d 794, 797 (Colo. 2008). Because we conclude that the
  judgment legally could have entered on the date of the verdict, we
  agree with the Estate that judgment was validly entered nunc pro
  tunc to that date. But this conclusion is not necessary to the
  resolution of the Estate’s claim: even if the court had not entered
  the judgment nunc pro tunc, Casper’s claim would not have abated
  because he was entitled to a judgment.

                                     21
  decline to read the survival statute to require that result. Castle

  Meadows, Inc., 856 P.2d at 504 (court should construe a statute in

  a way that promotes the just and reasonable result the legislature

  surely intended).

¶ 39   Finally, our interpretation of the statute advances its overall

  goal of preserving claims and remedies. GTL says that we should

  construe the statute in favor of abatement. But the supreme court

  has explained that the statute indicates “an intention to create

  remedies rather than to kill or suppress them.” Publix Cab Co. v.

  Colo. Nat’l Bank of Denver, 139 Colo. 205, 220, 338 P.2d 702, 710

  (1959).

¶ 40   For these reasons, we conclude that the claims for

  noneconomic damages, including punitive damages, did not abate

  upon Casper’s death.

       III.   Attorney Fees and Costs Under Section 10-3-1116

¶ 41   Under section 13-21-102(1)(a), the amount of “actual

  damages” awarded to a plaintiff determines the amount of punitive

  damages the plaintiff may recover. GTL asserts that attorney fees

  and costs awarded by the trial court under section 10-3-1116 do

  not constitute actual damages. Thus, GTL contends that the


                                    22
  district court erred when calculating both actual and punitive

  damages. We disagree.

                         A. Standard of Review

¶ 42   Although we typically review a district court’s decision to

  award attorney fees for an abuse of discretion, we review the legal

  conclusions that provided the basis for that decision de novo.

  Jorgensen v. Colo. Rural Props., LLC, 226 P.3d 1255, 1259 (Colo.

  App. 2010); see also Sch. Dist. No. 12 v. Sec. Life of Denver Ins. Co.,

  185 P.3d 781, 787 (Colo. 2008). And because the district court

  awarded attorney fees pursuant to section 10-3-1116(1), we also

  review its interpretation of this statute de novo. Kisselman v. Am.

  Family Mut. Ins. Co., 292 P.3d 964, 969 (Colo. App. 2011).

¶ 43   Our ultimate task when examining statutes is to give effect to

  the intent of the legislature, as expressed through the plain

  language of the statute. Kyle W. Larson Enters., Inc., ¶ 10. Even

  so, we may still examine legislative history when there is

  substantial legislative discussion that bolsters our plain language

  interpretation. Kisselman, 292 P.3d at 972; see Welby Gardens v.

  Adams Cty. Bd. of Equalization, 71 P.3d 992, 995 (Colo. 2003)




                                     23
  (discussing legislative history despite concluding that “the plain

  language of the statute is clear”).

                              B. Discussion

¶ 44   Pursuant to section 10-3-1116, the district court awarded

  attorney fees and costs as part of the Estate’s actual damages.

  Relying on Hall v. American Standard Insurance Co. of Wisconsin,

  2012 COA 201, which determined that attorney fees are damages

  (but did not specify whether they were actual, i.e., compensatory,

  damages), the district court concluded that attorney fees and costs

  were a component of actual damages and not a penalty, as GTL

  asserted.

¶ 45   We agree with the district court and conclude that under the

  plain meaning of section 10-3-1116, reasonable attorney fees and

  court costs in this context are actual damages and do not constitute

  penalties or other types of damages. Hall, ¶ 20. Although Hall does

  not explicitly say that such damages constitute “actual damages,”

  we find Hall’s analysis and reasoning lead to that conclusion.

¶ 46   Section 10-3-1116, which became effective August 5, 2008,

  concerns “[r]emedies for unreasonable delay or denial of [insurance]

  benefits.” The language provides, in pertinent part, that “[a] first-


                                        24
  party claimant . . . whose claim for payment of benefits has been

  unreasonably delayed or denied may bring an action . . . to recover

  reasonable attorney fees and court costs and two times the covered

  benefit.” § 10-3-1116(1); Kisselman, 292 P.3d at 967. Additionally,

  subsection (4) provides that the “action authorized in this section is

  in addition to, and does not limit or affect, other actions available

  by statute or common law, now or in the future.” § 10-3-1116(4).

¶ 47   The plain language of the statute lists two components of

  recovery: “reasonable attorney fees and court costs” and “two times

  the covered benefit.” § 10-3-1116(1); see also Hall, ¶ 20. Unlike

  other statutes permitting the recovery of attorney fees, such as

  sections 13-40-123, 24-34-402.5(2)(b)(I), and 38-33.3-123(1)(c),

  C.R.S. 2016, section 10-3-1116 does not separate or place in a

  distinct subsection the provision providing for the recovery of

  attorney fees and costs. Hall, ¶¶ 13, 20. This structure evinces the

  legislature’s intent to make the award of attorney fees and costs a

  primary remedy, and not an additional or ancillary remedy. See id.;

  compare § 13-40-123 (separating and distinguishing attorney fees

  and costs from other “recover[able] damages”), with § 10-3-1116(1)




                                    25
  (listing nothing to recover other than “reasonable attorney fees and

  court costs and two times the covered benefit”).

¶ 48   Further, “[c]lassification of attorney fees as either costs or

  damages depends on context, and turns on the nature of the

  requested attorney fees in a particular case.” Hall, ¶ 15. When

  attorney fees and costs are part of the substance of the lawsuit,

  that is, when they are the “legitimate consequences” of the tort or

  breach of contract sued upon, attorney fees are clearly damages.

  Id. at ¶¶ 15, 20 (quoting Ferrell v. Glenwood Brokers, Ltd., 848 P.2d

  936, 941 (Colo. 1993)). Accordingly, we agree with Hall’s conclusion

  that attorney fees and costs are “a ‘legitimate consequence’ of

  bringing. . . an action to remedy an insurer’s unreasonable

  conduct” and that this interpretation “is consistent with the

  statutory authorization” in section 10-3-1116. Id. at ¶ 20; see also

  Stresscon Corp. v. Travelers Prop. Cas. Co. of Am., 2013 COA 131,

  ¶¶ 119-20 (relying on Hall to conclude attorney fees are damages

  under section 10-3-1116), rev’d on other grounds, 2016 CO 22M.

  Thus, under section 10-3-1116, attorney fees and costs are actual

  damages. Cf. Bunnett v. Smallwood, 793 P.2d 157, 160 (Colo. 1990)

  (Attorney fees are not considered “actual damages” when “they are


                                    26
  not the legitimate consequences of the tort or breach of contract

  sued upon.” (quoting Taxpayers for the Animas-LaPlata Referendum

  v. Animas-LaPlata Water Conservancy Dist., 739 F.2d 1472, 1480

  (10th Cir. 1984))); see Ferrell, 848 P.2d at 941-42 (attorney fees

  should be considered actual damages when they are part of the

  substance of the lawsuit); Double Oak Constr., L.L.C. v. Cornerstone

  Dev. Int’l, L.L.C., 97 P.3d 140, 150 (Colo. App. 2003) (Attorney fees

  are actual damages when “but for defendants’ obdurate conduct,

  plaintiff would not have incurred attorney fees in pursuing its

  judgment.”).

¶ 49   True enough, this interpretation of section 10-3-1116 is a

  departure from the common law rule that attorney fees are not

  recoverable as damages for a first-party insurance bad faith claim.

  See Bernhard v. Farmers Ins. Exch., 915 P.2d 1285 (Colo. 1996).

  But when the General Assembly enacted this statute it created “a

  new private right of action for insureds in addition to and different

  from a common law bad faith claim.” Kisselman, 292 P.3d at 975.

  In stating that the “action authorized in this section is in addition to

  . . . other actions available by statute or common law,” § 10-3-

  1116(4), the statute makes clear that it imposes upon insurers


                                    27
  additional liabilities and provides for additional means of recovery

  for plaintiffs. See Kisselman, 292 P.3d at 972-73.

¶ 50   Despite this language, GTL contends that Bernhard should

  control, and to hold otherwise would create a conflict between

  Bernhard and the statute. We perceive no conflict.

¶ 51   While, under Bernhard, attorney fees in this case would not be

  considered actual damages, it is axiomatic that the legislature can,

  and frequently has, abrogated various common law tort doctrines.

  Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 187 (Colo. 2009); see,

  e.g., Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1176 (Colo. 1993)

  (recognizing the legislature’s abrogation of the common law rule

  that the release of one tortfeasor operated to release all tortfeasors

  from liability for the same tort).

¶ 52   Section 10-3-1116 was enacted nearly twelve years after

  Bernhard was announced; Bernhard simply has no bearing on how

  attorney fees should be treated under a later-enacted statute that

  explicitly departs from the common law. And the court in Bernhard

  expressly recognized that deviations from the common law rule

  preventing the recovery of attorney fees as damages could be

  properly established by the legislature; it merely concluded that at


                                       28
  that time — before the enactment of section 10-3-1116 — the

  legislature had not yet created such an exception. 915 P.2d at

  1288 (“Permitting Bernhard to recover attorney fees would

  represent the creation of a new exception to the American rule: a

  function better addressed by the legislative than the judicial branch

  of government.”).

¶ 53   Thus, because section 10-3-1116 created a new statutory right

  of action separate and apart from common law bad faith claims,

  Bernhard, which discusses common law bad faith claims, is not

  dispositive. Kisselman, 292 P.3d at 975; see also Vaccaro v. Am.

  Family Ins. Grp., 2012 COA 9M, ¶ 35 (“As the Kisselman division

  observed, common law bad faith precedent is helpful, but not

  dispositive, when interpreting a statutory right of action expressly

  intended to apply ‘in addition to . . . other actions available by

  statute or common law.’” (quoting § 10-3-1116(4))).

¶ 54   Moreover, following Bernhard would be contrary to the clear

  intent of the legislature. Section 10-3-1116 expanded the causes of

  action against insurance companies and provided for additional

  remedies. Kisselman, 292 P.3d at 972-73. It is clear from both the

  plain meaning of the statute and the legislative history behind it


                                     29
  that the legislature intended to carve out exceptions to the common

  law, including an exception to the common law rule that attorney

  fees were not recoverable as actual damages. Id.; see § 10-3-

  1116(1). The legislature made clear that insureds should not be

  forced to sue their insurers to obtain the benefit of their bargain.

  Thus, the General Assembly departed from the common law to

  enact new protections for individuals that would permit the

  recovery of reasonable attorney fees and court costs as actual

  damages. See Kisselman, 292 P.3d at 972-73.

¶ 55   GTL further contends that, even if Bernhard does not control,

  attorney fees and costs are a penalty, and not damages, because

  section 10-3-1116 is penal in nature. Thus, GTL argues, attorney

  fees and costs cannot be included in the calculation of actual

  damages.

¶ 56   But we disagree that the statute is penal and instead conclude

  that section 10-3-1116 is remedial in nature. See Stresscon Corp.,

  ¶ 121. In Stresscon, a division of this court determined that the

  attorney fees under section 10-3-1116 were damages, not costs,

  and “this request for damages is part of a remedial statutory

  scheme.” Id. at ¶ 121. After examining the legislative history and


                                    30
  comparing the statute to other similar statutory schemes, the

  division concluded that “section 10-3-1116 was enacted as a

  remedial measure, intended ‘to curb perceived abuses in the

  insurance industry.’” Id. at ¶ 124 (quoting Kisselman, 292 P.3d at

  976). Thus, the fee-shifting component of the statute has a

  “compensatory purpose” and is not a penalty. Id. at ¶ 122.

¶ 57   Even assuming some aspect of the statute is penal, GTL’s

  argument is too broad: statutes may be both remedial and penal in

  nature. See Moeller v. Colo. Real Estate Comm’n, 759 P.2d 697, 701

  (Colo. 1988). Although section 10-3-1116 may be penal in the

  sense that the General Assembly intended for it to punish

  insurance companies and deter them from unreasonably denying

  the claims of their insureds, see Kisselman, 292 P.3d at 972, the

  penal nature of the statute only manifests itself in the ability to

  recover two times the amount of the covered benefit. See Gerald H.

  Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., Civ. A. No. 14-CV-

  01642-PAB-KLM, 2015 WL 5047640, at *2 (D. Colo. Aug. 27, 2015)

  (noting that the ability to recover “two times the covered benefit . . .

  reflects the imposition of a penalty”). But this double recovery has

  no bearing on whether the attorney fees and costs are a penalty and


                                     31
  therefore not actual damages. Cf. Moeller, 759 P.2d at 701 (“When

  a statute is both remedial and penal in nature, the remedial and

  penal elements are separated and the appropriate standard is

  applied to each.”).

¶ 58   Although section 10-3-1116 does not explicitly label attorney

  fees and costs as “actual damages,” we conclude that the statute

  intended to classify them as actual or compensatory damages.

  Thus, the district court did not err in its calculation of both actual

  and punitive damages.

           IV.   Supplemental Award of Attorney Fees and Costs

¶ 59   GTL next asserts that the district court erred by not reducing

  by two-thirds the supplemental request for attorney fees. We

  disagree.

                         A. Additional Background

¶ 60   Casper’s attorneys filed two requests for fees. In their first

  motion, they sought $396,180 in fees, plus a lodestar enhancement

  of fifty percent, for a total of $594,270, as well as costs in the

  amount of $57,840.55. They later filed a supplemental fee request,

  seeking an additional $123,925 in post-trial fees and $15,105.24 in

  costs.


                                     32
¶ 61      GTL opposed both fee requests. Regarding the initial fee

  request, GTL asserted that no fees were recoverable, but, at most,

  Casper’s lawyers could recover only those fees attributable to the

  statutory unreasonable denial of benefits claim, without any

  lodestar enhancement. GTL attached an affidavit from an expert,

  who recommended that the court award no more than $75,000 in

  fees.

¶ 62      GTL made the same apportionment argument with respect to

  the supplemental fee request and attached an exhibit that set forth

  its objections to specific time entries. It identified numerous entries

  that it claimed were attributable to work on a related probate

  matter, but it only identified two entries as being otherwise

  unrelated to the statutory claim, and those entries amounted to

  approximately $800 in fees. It did not provide an expert affidavit

  related to apportionment or reasonableness of the supplemental fee

  request.

¶ 63      The hearing on attorney fees was conducted by telephone and

  neither party called any witnesses or introduced any evidence

  beyond the expert affidavits that had previously been submitted by

  both parties. Casper’s lawyers reiterated their request for fees plus


                                     33
  a fifty percent lodestar enhancement, and GTL reiterated its request

  that the court award only those fees attributable to the statutory

  claim, though it did not suggest any particular percentage or

  amount. At the hearing, GTL did not reassert its specific objections

  to the time entries or protest that the vagueness of the entries

  prevented additional specific objections.

¶ 64   The court determined that, as a rough estimate, only one-third

  of the fees in the initial request were attributable to the statutory

  bad faith claim. It denied Casper’s lawyers a fifty percent lodestar

  enhancement and instead applied a twenty percent enhancement to

  the reduced fee amount. As for the supplemental fees, the court

  examined the time entries, concluded that — with the exception of

  work on the probate case — the entries related to the statutory bad

  faith claim, and approved the remaining fees. After those

  reductions, the attorney fee award totaled $281,197, a sixty percent

  overall decrease from the request of approximately $718,000

  ($594,270 in the initial motion for fees plus the $123,925 requested

  in the supplemental motion).

¶ 65   On appeal, GTL contends that the district court erred in

  awarding all of the fees requested in the supplemental fee request,


                                     34
  insisting that the court should have reduced the overall request of

  $123,925 by two-thirds. It specifically objects to the award of fees

  related to the motion to amend the judgment and research on

  abatement, which GTL says were matters unrelated to the statutory

  claim.

                         B. Standard of Review

¶ 66   The determination of what constitutes reasonable attorney fees

  is a question of fact for the trial court and will not be disturbed on

  review unless it is patently erroneous and unsupported by the

  evidence. Melssen v. Auto-Owners Ins. Co., 2012 COA 102, ¶ 67;

  see also Planning Partners Int’l, LLC v. QED, Inc., 2013 CO 43, ¶ 12.

  We therefore review the reasonableness of the amount of attorney

  fees awarded for an abuse of discretion. Melssen, ¶ 67.

                              C. Discussion

¶ 67   The parties disagree as to whether apportionment of fees is

  necessary in this case. GTL maintains that the court could award

  fees only for work directly related to the statutory unreasonable

  denial of benefits claim. The Estate, however, argues that

  apportionment is not required under section 10-3-1116 and that, in

  any event, Casper’s statutory claim was intertwined with the


                                    35
  common law claim, rendering apportionment unnecessary. We

  need not resolve this dispute because we determine that, even if

  apportionment was required, the district court did not clearly err in

  its award of supplemental fees.

¶ 68   GTL did not request a two-thirds reduction in the

  supplemental fees until after the court had reduced the initial

  request for fees by two-thirds. Indeed, it never suggested any

  percentage reduction based on an apportionment theory. Its

  argument, then, is simply that the court was required to apportion

  the supplemental fees in precisely the same manner as the initial

  fees. We discern no such requirement.

¶ 69   Rather than applying a rough, across-the-board reduction in

  fees, as it had with the primary motion for attorney fees, the district

  court examined the entries included in the supplemental fee

  petition and the parties’ related exhibits to determine whether those

  entries were sufficiently related to the statutory claim. We perceive

  no abuse of discretion in the use of this more precise methodology

  for apportionment. See Planning Partners, ¶ 23 (“‘[T]here is no

  precise rule or formula’ for determining attorney’s fees.” (quoting

  Evans v. Jeff D., 475 U.S. 717, 736 (1986))); cf. Haystack Ranch,


                                    36
  LLC v. Fazzio, 997 P.2d 548, 557 (Colo. 2000) (observing that

  because the trial court made no attempt to parse the billing

  statements and timesheets, the allocation was unsupported by the

  evidence).

¶ 70   That leaves GTL’s specific objections to two time entries: work

  related to (a portion of) the motion to amend the judgment and

  research concerning abatement. GTL did not object to Casper’s

  lawyers’ recovery of their fees for research on abatement until after

  the court had issued its order on attorney fees. But even if it had

  made an earlier objection, the district court did not clearly err in

  determining that research on abatement of claims was related to

  Casper’s statutory bad faith claim. GTL’s motion to set aside the

  verdict argued that Casper’s statutory claim had abated upon his

  death. Research conducted in response to that argument would

  relate to the statutory claim. As for the motion to amend the

  judgment, GTL concedes that at least some portion of the motion

  was attributable to that claim. Even where apportionment is

  warranted, we do not require the kind of surgical precision

  demanded by GTL. The trial court’s goal when awarding attorney

  fees and costs “is to do rough justice, not to achieve auditing


                                    37
  perfection.” Payan v. Nash Finch Co., 2012 COA 135M, ¶ 35

  (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)).

¶ 71   Furthermore, the district court’s apportionment of fees

  resulted in an overall reduction of more than sixty percent from the

  amount requested. Given that GTL did not suggest any particular

  apportionment method or percentage reduction, we discern no

  abuse of discretion in the district court’s apportionment of the

  supplemental fees. See Am. Water Dev., Inc. v. City of Alamosa, 874

  P.2d 352, 384 (Colo. 1994) (reviewing court will uphold allocations

  of fees if the record affords sufficient support).

                        V.   Jury Instruction 27

¶ 72   Finally, GTL asserts that the trial court erred by instructing

  the jury on Regulation 4-2-3, which regulates advertising by the

  insurance industry. Div. of Ins. Reg. 4-2-3, 3 Code Colo. Regs. 702-

  4. We are not persuaded.

                          A. Standard of Review

¶ 73   A trial court has substantial discretion in formulating and

  tendering jury instructions, so long as they include correct

  statements of the law and fairly and adequately cover the issues

  presented. Tricon Kent Co. v. Lafarge N. Am., Inc., 186 P.3d 155,


                                     38
  162 (Colo. App. 2008); Taylor v. Regents of Univ. of Colo., 179 P.3d

  246, 248 (Colo. App. 2007). Therefore, we review de novo the jury

  instruction at issue to assess whether the instruction correctly

  states the law, Bedor v. Johnson, 2013 CO 4, ¶ 8, and review for an

  abuse of discretion the trial court’s decision to give a particular jury

  instruction. Id.

                              B. Discussion

¶ 74   The duty of good faith and fair dealing implied in every

  insurance contract in Colorado extends to the advertisement and

  purchase of the policy. Ballow v. PHICO Ins. Co., 875 P.2d 1354,

  1362-63 (Colo. 1993). To determine whether an insurer has

  breached this duty, its conduct is measured objectively and is

  tested based on industry standards. Am. Family Mut. Ins. Co. v.

  Allen, 102 P.3d 333, 343 (Colo. 2004). Administrative rules and

  agency regulations may help establish the applicable standard of

  care. Id.; see also Giampapa v. Am. Family Mut. Ins. Co., 919 P.2d

  838, 842 (Colo. App. 1995). However, even if they do not, they “may

  nonetheless ‘be relevant evidence bearing on the issue of negligent

  conduct.’” Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 931

  (Colo. 1997) (quoting Restatement (Second) of Torts § 288B (Am.


                                     39
  Law Inst. 1965)). Thus, regulations may be “valid, but not

  conclusive, evidence” of an insurer’s breach of the duty of good faith

  and fair dealing. Id.

¶ 75   Regulation 4-2-3 was set forth in Instruction 27. The

  instruction first explained that “[a]t the time of the sale of the policy

  at issue in this case, the following regulations of the Division of

  Insurance . . . were in effect, and applied to the advertisement of

  policies like the one purchased by Mr. Casper.” The instruction

  then presented excerpts of Regulation 4-2-3, including

  requirements that all policy limitations and restrictions be “set out

  conspicuously,” and that advertisements not contain misleading

  representations.

¶ 76   The instruction concluded by stating that “[t]hese regulations

  are valid, but not conclusive evidence of insurance industry

  standards, and you may consider such regulations in determining

  whether the defendant acted unreasonably toward the Plaintiff.”

¶ 77   GTL objected to the instruction at trial, contending that it was

  irrelevant to Casper’s remaining claims, given the settlement with

  Platinum and Gaylord. The district court disagreed, concluding

  that the instruction related to Casper’s theory that GTL’s marketing


                                     40
  and sale of the insurance policy, through Platinum, was evidence of

  its bad faith. We perceive no abuse of the district court’s discretion.

¶ 78   One of Casper’s theories at trial was that GTL, through

  Platinum, intentionally misrepresented the nature of the insurance

  coverage by misleadingly calling the policy a “First Diagnosis” policy

  when, in fact, hidden and ambiguous language enabled the

  insurance company to deny benefits if the diagnosis was traceable

  in any way to advice given prior to the effective date of the policy.

¶ 79   Casper’s lawyers discussed advertising and marketing tactics

  in their opening statement. Many of Casper’s witnesses addressed

  GTL’s allegedly deceptive sales practices; one of his expert witnesses

  testified extensively about Regulation 4-2-3 and the connection

  between GTL’s sales practices and the denial of Casper’s claim.

  Additionally, two of GTL’s own witnesses discussed Regulation 4-2-

  3. They acknowledged that GTL’s duty to act in good faith extended

  to the advertising, marketing, and sale of the insurance policy, but

  they opined that GTL’s conduct had not violated the regulation.

¶ 80   We agree with the district court that the standard of care

  related to the sale and marketing of the policy was relevant to

  Casper’s claims, and it is undisputed that the instruction was a


                                     41
  correct statement of the law. Accordingly, we conclude that the

  district court did not abuse its discretion in giving the instruction.

                     VI.   Appellate Attorney Fees

¶ 81   Finally, the Estate asserts that it should be awarded its

  attorney fees and costs on appeal. We agree that under section

  10-3-1116, Casper’s estate is entitled to an award of its reasonable

  appellate attorney fees and costs. Stresscon, ¶ 136 (“When a party

  is awarded attorney fees for a prior stage of the proceedings, it may

  recover reasonable attorney fees and costs for successfully

  defending the appeal.” (quoting Melssen, ¶ 75)).

¶ 82   We exercise our discretion under C.A.R. 39.1 to remand this

  issue to the district court to determine the total amount of the

  Estate’s reasonable fees and costs incurred on appeal, and to award

  those fees. Payan, ¶ 63 (citing Martin v. Essrig, 277 P.3d 857, 862-

  63 (Colo. App. 2011)).

                           VII.   Conclusion

¶ 83   The judgment is affirmed, and the case is remanded to the

  district court to determine and award the total amount of the

  Estate’s reasonable appellate fees and costs allocable to the

  statutory claim.


                                    42
JUDGE WEBB and JUDGE ASHBY concur.




                     43
