COLORADO COURT OF APPEALS                                         2016COA142

Court of Appeals No. 15CA0072
City and County of Denver District Court No. 13CV32833
Honorable Kenneth M. Laff, Judge


Naema Alhilo,

Plaintiff-Appellee,

v.

Daniel Kliem,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division II
                          Opinion by JUDGE WEBB
                         Ashby and Nieto*, JJ., concur

                          Announced October 6, 2016


Zaner Harden Law LLP, Kurt Zaner, Marc Harden, Elliot Singer, Denver,
Colorado; Levin Rosenberg PC, Michael J. Rosenberg, Nelson A. Waneka,
Denver, Colorado, for Plaintiff-Appellee

Campbell, Latiolais & Averbach, LLC, Colin C. Campbell, Kirstin M. Dvorchak,
Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    Abdul Alhilo died in a collision between his motorcycle and a

 car driven by defendant, Daniel Kliem. The deceased’s mother,

 plaintiff Naema Alhilo, brought a wrongful death action against

 Kliem. The jury allocated fifty-five percent of the fault to Kliem and

 forty-five percent to the deceased. It awarded $750,000 in

 noneconomic damages and $1,500,000 in exemplary damages.

 Kliem appeals the judgment entered on the verdict. We affirm.

                I. Background and Procedural History

¶2    The accident occurred on Federal Boulevard in Denver. Kliem

 drove out of a car wash across the southbound lanes, intending to

 turn left and drive north. The deceased, going south, sought to

 avoid a collision by moving to the inside lane, but still hit the side of

 Kliem’s car. He died at the scene.

¶3    When the accident occurred, the deceased was traveling at an

 estimated speed of between seventy-five and eighty-six miles per

 hour. The speed limit was forty miles per hour. His driving

 privileges had been suspended several years earlier based on his

 status as a habitual traffic offender (HTO).

¶4    After the collision, Kliem drove off. He stopped his car a few

 blocks away and fled on foot, despite having been injured. From


                                    1
 the car, the police recovered several beer cans — three of them

 opened — a bottle of vodka, and a pipe containing marijuana. The

 crash occurred on June 26th and Kliem turned himself in on June

 28th. Several years earlier, he had been convicted of two driving

 while impaired (DWI) offenses.

¶5    During pretrial proceedings, the parties raised, and the trial

 court ruled on, all of the evidentiary issues argued in this appeal.

¶6    After the jury returned its verdict, plaintiff calculated Kliem’s

 share of the noneconomic damages at $412,500 and sought

 judgment in that amount, correctly pointing out that it was less

 than the cap in section 13-21-203, C.R.S. 2016. Kliem responded

 that the court should apply the cap first, then apportion liability,

 which would result in a judgment of $239,838.50. The trial court

 agreed with plaintiff. The court denied Kliem’s post-trial motions

 for a judgment notwithstanding the verdict on exemplary damages,

 alleging insufficient evidence, and for a new trial on liability,

 alleging evidentiary errors.

                          II. Evidentiary Issues

¶7    Kliem contends the trial court made three evidentiary errors:

 excluding evidence of the deceased’s driving record and his status


                                     2
 as an HTO; admitting evidence of Kliem’s two prior DWI offenses;

 and admitting evidence that Kliem fled the accident scene. We

 address each one in turn but discern no ground for reversal.

                    A. Standard of Review and Law

¶8    Evidentiary rulings are reviewed for an abuse of discretion.

 Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16.

 “[A] trial court necessarily abuses its discretion if it bases its ruling

 on an erroneous view of the law or on a clearly erroneous

 assessment of the evidence.” People v. Segovia, 196 P.3d 1126,

 1129 (Colo. 2008).

¶9    To begin, under CRE 401, evidence is logically relevant if it

 has “any tendency to make the existence of [a material fact] more

 probable or less probable than it would be without the evidence.”

 In general, then, “[a]ll relevant evidence is admissible,” unless the

 United States Constitution, the Colorado Constitution, a state

 statute, the evidence rules, or other rule prescribed by the supreme

 court prohibits its admission. CRE 402; Murray, ¶ 19. Even so,

 relevant evidence may be excluded “if its probative value is

 substantially outweighed by the danger of unfair prejudice,

 confusion of the issues, or misleading the jury, or by considerations


                                     3
  of undue delay, waste of time, or needless presentation of

  cumulative evidence.” CRE 403. In weighing those dangers and

  considerations, the proffered evidence “should be given its maximal

  probative weight and its minimal prejudicial effect.” Murray, ¶ 19

  (quoting People v. Dist. Court, 869 P.2d 1281, 1285 (Colo. 1994)).

        B. The Deceased’s Driving Record and His HTO Status

¶ 10   Plaintiff moved in limine to preclude evidence of the deceased’s

  driving record and his status as an HTO, arguing that this evidence

  — while uncontroverted — was not relevant. The trial court agreed

  and granted the motion. Now Kliem argues, as he did below, that

  the exception in section 42-4-1713, C.R.S. 2016, required the trial

  court to admit this evidence. We read the statute differently and

  conclude that the trial court acted within the scope of its broad

  discretion.

                    1. Statutory Standard of Review

¶ 11   Whether section 42-4-1713 requires the admission of a

  driver’s HTO status and associated driving record in any civil trial is

  a question of statutory interpretation subject to de novo review.

  Granite State Ins. Co. v. Ken Caryl Ranch Master Ass’n, 183 P.3d

  563, 567 (Colo. 2008).


                                     4
¶ 12   When construing a statute, a court strives to “ascertain and

  effectuate the legislative intent, which is to be discerned . . . from

  the plain and ordinary meaning” of the text. People v. Frazier, 77

  P.3d 838, 839 (Colo. App. 2003), aff’d, 90 P.3d 807 (Colo. 2004). If

  the language is plain, the court must apply the text as written and

  not force or strain its interpretation. Williams v. Dep’t of Pub.

  Safety, 2015 COA 180, ¶ 22. “Only where the statute’s language is

  ambiguous may we turn to other principles of statutory

  construction and consider the consequences of a certain

  construction, the end to be achieved by the statute, and legislative

  history.” People v. Vigil, 2013 COA 102, ¶ 14 (citing Bostelman v.

  People, 162 P.3d 686, 690 (Colo. 2007)).1


  1 At oral argument, plaintiff advanced an interpretation of the
  statute similar to the one that we adopt, noting that the legislative
  history supported it. Kliem claimed surprise because this
  interpretation had not been presented in plaintiff’s answer brief and
  asked for leave to submit a supplemental brief. We afforded the
  parties an opportunity to submit supplemental briefs. As presented
  in those briefs, the legislative history is at best equivocal.
  Therefore, we decline to consider cases such as Lot Thirty-Four
  Venture, L.L.C. v. Town of Telluride, 976 P.2d 303, 306 (Colo. App.
  1998) (“If the statutory language is clear and unambiguous, the
  statute should be applied as written. . . . Nevertheless, we may also
  consider other indicia of legislative intent, such as the object to be
  attained, the legislative history, and the consequences of the
  particular construction.”), aff’d, 3 P.3d 30 (Colo. 2000).

                                      5
                                    2. Law

¶ 13      Section 42-4-1713 provides:

               Except as provided in sections 42-2-201 to
               42-2-208, no record of the conviction of any
               person for any violation of this article [Article 4
               — the “Regulation of Vehicles and Traffic”]
               shall be admissible as evidence in any court in
               any civil action.

  (Emphasis added.) See Bullock v. Wayne, 623 F. Supp. 2d 1247,

  1254 (D. Colo. 2009) (Section 42-4-1713 “prohibits any mention of

  convictions for violating the vehicle and traffic statutes in Article

  4.”).

¶ 14      More than fifty years ago, our supreme court said about a

  prior version of section 42-4-1713: “the intent and purpose of such

  a statute is too obvious to require discussion.” Ripple v. Brack, 132

  Colo. 125, 129, 286 P.2d 625, 627 (1955). Since then, no Colorado

  court has examined this statute in depth.

¶ 15      Still, in Bullock, 623 F. Supp. 2d at 1256, the United States

  District Court expounded on that obviousness. It explained that

  because traffic convictions “tend to be minor in nature, informally

  adjudicated, and often uncontested,” by enacting section

  42-4-1713, “[t]he Colorado legislature presumably did not want



                                        6
  these relatively small infractions to have grave consequences in civil

  actions where significantly more could be at stake.” The court

  further explained that by prohibiting evidence of these convictions

  in civil actions, section 42-4-1713 “ameliorates docket congestion in

  traffic courts.” Bullock, 623 F. Supp. 2d at 1256. This is so

  because “were traffic convictions to carry with them the threat of

  res judicata, the incentive to fight a traffic ticket would grow

  dramatically and, along with it, the caseload of traffic courts.” Id.;

  see Warren v. Marsh, 11 N.W.2d 528, 531 (Minn. 1943) (Because

  “often citizens will plead guilty to minor offenses under the traffic

  act rather than suffer loss of valuable time and the expense of a

  trial . . . the legislature apparently concluded that a plea of guilty

  should not prejudice one in any way in any civil proceeding, even

  one involving the same facts out of which the violation of the traffic

  act arose.”) (cited with approval in Ripple, 132 Colo. at 129, 286

  P.2d at 627).

                                3. Analysis

¶ 16   Kliem concedes that section 42-4-1713 broadly prohibits

  evidence of Article 4 convictions in civil actions. Even so, he argues

  that the exception (“as provided in sections 42-2-201 to 42-2-208”)


                                      7
  allows a party in any civil action “to present evidence that the

  adverse party has been deemed a danger to other motorists by

  virtue of the party’s prior conviction as an habitual traffic offender.”

  Here, because the proffered evidence consisted of both the

  deceased’s status as an HTO and his associated driving convictions,

  separate analysis is required. But this case does not support

  admitting either type of evidence.

¶ 17   First, as to the deceased’s convictions that led to his HTO

  status, the text unambiguously limits the exception: “as provided in

  sections 42-2-201 to 42-2-208.” Id. The cross-referenced sections

  make up the HTO statute, which “defin[es] who is an habitual

  offender, authority for revocation, appeals, and other related

  matters.” Lawrence v. Taylor, 8 P.3d 607, 610 (Colo. App. 2000).2

¶ 18   The administrative appeal described in section 42-2-203 for

  challenging revocation of a driver’s license based on a determination

  of HTO status by the Department of Revenue, Motor Vehicles

  Division (DMV), is a civil proceeding. State v. Laughlin, 634 P.2d


  2 To the extent Kliem argues Lawrence v. Taylor, 8 P.3d 607, 610
  (Colo. App. 2000), supports his interpretation, the court merely
  held, without discussion, that the decedent was not an HTO and his
  traffic convictions were “not admissible in this negligence action.”

                                       8
  49, 51 (Colo. 1981). But without the exception in section

  42-4-1713, evidence of Article 4 convictions would be prohibited.

  And without this evidence, a hearing officer could not decide “[t]he

  only issue to be determined at the license revocation hearing . . .

  whether the licensee has sustained the requisite number of

  convictions for specified traffic offenses within the prescribed period

  of time.” Id.; see also People v. McKnight, 200 Colo. 486, 490, 617

  P.2d 1178, 1181 (1980) (An HTO is defined “as one having a

  designated number of convictions for specified traffic offenses

  within a prescribed period of time.”).

¶ 19   Thus, providing an exception under these sections — to allow

  evidence of Article 4 convictions in an HTO proceeding — is

  necessary. By any fair reading, the exception does not apply to any

  other civil action. Nor should it be interpreted more broadly. See

  Brodak v. Visconti, 165 P.3d 896, 898 (Colo. App. 2007) (When a

  “statute establishes a general rule, subject to [an] exception[], we

  must construe the exception[] narrowly to preserve the primary

  operation of the general rule.”).

¶ 20   Second, the DMV determination that a driver is an HTO does

  not itself constitute a separate conviction. Rather, under the HTO


                                      9
  statute, the DMV has the authority to “immediately revoke the

  license of any person whose record brings such person within the

  definition of an habitual offender . . . .” § 42-2-203, C.R.S. 2016.

  In doing so, the DMV must “immediately notify the licensee,” who,

  in turn, may request a hearing. § 42-2-125(3), (4), C.R.S. 2016.

¶ 21   But at that hearing, “[t]he hearing officer’s determination is

  made by reference to the licensee’s driving record, as reflected in

  the department’s records.” Laughlin, 634 P.2d at 51. And while “it

  is the licensee’s responsibility to challenge alleged mistakes in the

  records of the department as to his driving history,” the licensee

  “may not relitigate the issue of guilt as to the offenses shown on his

  record.” Id.

¶ 22   Given all this, allowing evidence of the Article 4 convictions in

  any other civil action — merely because those convictions formed

  the basis of a person’s HTO status — would defeat the purpose of

  section 42-4-1713, as explained in Bullock, 623 F. Supp. 2d at

  1254. Specifically, such an interpretation would allow evidence of

  traffic convictions that may have been uncontested and thus invite




                                    10
  challenges to many traffic convictions that could later have serious

  consequences in civil actions.3

¶ 23   Turning to the admissibility of a driver’s status as an HTO,

  that status is an administrative determination, not a separate or

  additional conviction. Kliem cites no authority, nor are we aware of

  any in Colorado, treating such an administrative determination as a

  conviction. See McKnight, 200 Colo. at 493, 617 P.2d at 1183 (“The

  administrative proceeding to revoke a driver’s license because of

  habitual traffic offender status is a civil one.”); cf. People v. Kiniston,

  262 P.3d 942, 944 (Colo. App. 2011) (discussing various uses of

  “conviction”). Thus, the broad prohibition in section 42-4-1713

  does not limit evidence of HTO status. Instead, the admissibility of

  HTO status evidence remains subject to the rules of evidence,

  primarily CRE 401 and CRE 403. And here, both rules weigh

  against admission.


  3 See generally Jay M. Zitter, Annotation, Admissibility of Traffic
  Conviction in Later State Civil Trial, 73 A.L.R.4th 691 § 2[a]
  (originally published in 1989) (Courts that generally preclude
  evidence of traffic convictions “have reasoned that since tickets and
  other traffic violations involve relatively small sums of money,
  drivers often pay the fines or plead guilty rather than waste time in
  court attempting to present a defense, and thus the reliability of the
  conviction is certainly suspect.”).

                                      11
¶ 24   As to CRE 401, the trial court found that evidence of the

  deceased’s status as an HTO was not relevant. This finding is

  supported by the fact that evidence of the deceased’s fault —

  traveling at nearly double the posted speed limit — was undisputed.

  Thus, even accepting Kliem’s position that the HTO statute reflects

  a legislative determination of likely future irresponsible driving

  behavior, whatever inference of irresponsibility the jury might draw

  from evidence of the deceased’s HTO status would have added very

  little. And the verdict shows that the jury gave considerable weight

  to the undisputed evidence of the deceased’s proportionate fault.

¶ 25   The trial court did not address CRE 403. However, even

  assuming that status evidence had some minimal probative value,

  admission of evidence of HTO status — and its attendant license

  revocation — might have led the jury to conclude that had the

  deceased abided by the restriction, he would not have been

  operating his motorcycle. And as a result, the accident would never

  have occurred. But this inference is legally impermissible. See

  Weaver v. Blake, 454 F.3d 1087, 1094 (10th Cir. 2006) (“Colorado’s

  appellate courts appear to follow the majority rule that whether or

  not a person has a valid driver’s license is irrelevant to the question


                                    12
  whether that person was driving negligently at the time of the

  accident.”). Thus, any probative value was outweighed by the risk

  of unfair prejudice.

¶ 26   In sum, we conclude the trial court did not abuse its

  discretion by precluding evidence of the deceased’s status as an

  HTO and his associated driving record.

       C. Admitting Evidence of Kliem’s Two Prior DWI Offenses

¶ 27   Plaintiff moved to add a request for exemplary damages based

  in part on Kliem’s “prior alcohol convictions and . . . his reckless

  decision to consume alcohol and drugs the night of the crash and

  then get behind the wheel of a car.” The trial court granted the

  motion. Kliem then moved in limine to preclude any evidence of

  those offenses.

¶ 28   The court denied Kliem’s motion. It held that Kliem’s prior

  alcohol offenses were “clearly relevant to the determination of

  exemplary damages.” Citing out-of-state authority, the court

  explained:

               Certainly there’s a knowledge that someone
               gains from having lived through a DUI that
               ought to influence their decision to drink and
               drive in the future. Obviously, I’m not
               reaching the conclusion that [Kliem] had the


                                     13
             alcohol that day or was impaired at the time of
             the accident. It’s going to be for the jury based
             on the evidence, but if they believe he was,
             then those priors are clearly relevant to
             exemplary damages.

¶ 29   Kliem tendered a limiting instruction on the prior offenses to

  which plaintiff objected, arguing “I don’t believe that [Kliem’s] prior

  driving offenses are only for the issue of [exemplary] damages.” The

  court disagreed and told plaintiff’s counsel it would not allow him to

  “try[] to prove [Kliem was] drunk by the fact that he has prior

  [offenses].” Then, when the prior offenses were mentioned during

  opening statement, the court instructed the jury:

             Ladies and gentlemen, in certain
             circumstances evidence may be admitted for a
             limited purpose only. And the evidence that
             [counsel] indicated you would hear during the
             trial is an example of such evidence. It’s
             evidence of . . . Kliem’s prior driving offenses.
             It is offered solely for the limited purpose of
             your evaluation of [plaintiff’s] punitive
             damages claim against . . . Kliem. The
             evidence is not to be considered by you in
             deciding the facts of what occurred on June
             26th, 2011, including the . . . second issue of
             whether or not . . . Kliem ingested alcohol or
             was impaired by alcohol at the time of the
             June 26th, 2011, collision or whether or not
             he drove negligently at the time of the collision.




                                     14
  During direct examination of Kliem — when he was asked about the

  prior offenses — the court again gave this instruction.

¶ 30   Kliem argues, as he did before the trial court, that evidence of

  his prior alcohol offenses was not relevant, even as to exemplary

  damages, and any “probative value is far outweighed by the

  potential to inflame or mislead the jury.”4

                                 1. Law

¶ 31   Under CRE 404(b), “[e]vidence of other crimes, wrongs, or acts

  is not admissible to prove the character of a person in order to show

  that he acted in conformity therewith.” Thus, evidence of prior

  similar incidents “cannot alone establish a prima facie case of

  negligence.” Jacobs v. Commonwealth Highland Theatres, Inc., 738

  P.2d 6, 9 (Colo. App. 1986) (noting that evidence of prior accidents

  may be admissible “when relevant to a material issue, and when its

  probative value outweighs any prejudice resulting from its

  admission”).




  4 Kliem did not argue below, nor has he argued in this court, that
  the DWI evidence should have been excluded under section
  42-4-1713. Therefore, we do not express any opinion on this
  question.

                                    15
¶ 32   Still, evidence of prior offenses may be admissible to support

  an award of exemplary damages. Cf. Bennett v. Greeley Gas Co.,

  969 P.2d 754, 761 (Colo. App. 1998) (recognizing a difference

  between admissibility under CRE 404(b) and admissibility for

  exemplary damages). These damages arise under section

  13-21-102(1)(a), C.R.S. 2016, which provides:

            In all civil actions in which damages are
            assessed by a jury for a wrong done to the
            person . . . and the injury complained of is
            attended by circumstances of fraud, malice, or
            willful and wanton conduct, the jury, in
            addition to the actual damages sustained by
            such party, may award him reasonable
            exemplary damages.

  (Emphasis added.) Under this section, “willful and wanton

  conduct” means “conduct purposefully committed which the actor

  must have realized as dangerous, done heedlessly and recklessly,

  without regard to consequences, or of the rights and safety of

  others, particularly the plaintiff.” § 13-21-102(1)(b); see Jacobs,

  738 P.2d at 10 (evidence of prior accidents admissible to show the

  defendant’s “awareness of the hazard” for purposes of “wanton and

  reckless disregard”).




                                    16
                                2. Analysis

¶ 33   Kliem argues that because the trial court found evidence of his

  prior alcohol offenses was irrelevant as to negligence, “then such

  evidence must be equally inadmissible for purposes of exemplary

  damages.” He relies on Bennett, 969 P.2d at 761, where the

  division held that “acts of the wrongdoer occurring after the event

  creating liability ordinarily are not material to the jury’s award of

  exemplary damages.”

¶ 34   But unlike in Bennett, Kliem’s alcohol offenses occurred before

  the accident at issue. Kliem cites no Colorado authority, nor have

  we found any, addressing the admissibility of such evidence for

  purposes of exemplary damages. Other jurisdictions to have done

  so, however, generally hold that prior alcohol offenses are relevant

  as to whether a defendant acted with willful and wanton conduct —

  the standard for exemplary damages. See generally Danny R.

  Veilleux, Annotation, Intoxication of Automobile Driver as Basis for

  Awarding Punitive Damages, 33 A.L.R.5th 303 (originally published

  in 1995).

¶ 35   In Davidson v. Bailey, 826 N.E.2d 80, 86 (Ind. Ct. App. 2005),

  for example, the court explained that “[a]n award of punitive


                                     17
damages . . . is predicated on the intentional conduct of a defendant

and asks the fact-finder to focus on that defendant’s state of mind.”

As such, while a defendant’s “subsequent DUI convictions would

have no bearing on his state of mind the night of the accident, and

were, thus, properly excluded, the same cannot be said of his four

previous DUI convictions.” Id. Similarly, the court in Thompson v.

Moore, 329 S.E.2d 914, 916 (Ga. Ct. App. 1985), aff’d in part, rev’d

in part, 336 S.E.2d 749 (Ga. 1985), superseded by statute as stated

in Webster v. Boyett, 496 S.E.2d 459, 462 (Ga. 1998), explained:

           We can think of no circumstance more willful
           and wanton, more indicative of a conscious
           indifference to consequences, than repeated
           occurrences of driving while intoxicated. The
           fact that no injuries had previously occurred is
           largely irrelevant; the question for the jury
           would be whether in this particular case the
           appellee, having plead[ed] guilty to two
           instances of driving while intoxicated, acted in
           conscious disregard of consequences by again
           driving while intoxicated.

See also Webster, 496 S.E.2d at 462 (“We agree . . . that . . . a

defendant’s prior . . . acts of driving under the influence are

relevant to whether the defendant acted with conscious indifference

to the consequences in again driving under the influence.”);

Angeron v. Martin, 649 So. 2d 40, 44 (La. Ct. App. 1994) (For


                                  18
  exemplary damages, “evidence of [the defendant’s] knowledge of

  past acts [DWI offenses], and his disregard of the danger in the face

  of that knowledge is admissible.”).

¶ 36   Consistent with the rationales in these cases, the trial court’s

  finding that Kliem’s prior alcohol offenses were relevant for

  exemplary damages was supported by Kliem’s testimony during

  trial. He admitted that through attending alcohol education classes

  and victim impact panels — as required by the sentences for his

  prior offenses — he had learned about the dangers and

  consequences of alcohol impairing the ability to drive safely. See

  Flockhart v. Wyant, 467 N.W.2d 473, 478 (S.D. 1991) (Conduct was

  willful and wanton where the defendant “had been through drunk-

  driving classes, and in-patient alcoholic treatment programs [and]

  [s]he must have known, with substantial certainty, the danger

  which her conduct engendered.”); Huffman v. Love, 427 S.E.2d 357,

  360 (Va. 1993) (Conduct was willful and wanton where defendant

  “drove his vehicle in this highly intoxicated state, notwithstanding

  the fact he had received court-ordered education, on the dangers of

  drinking and driving, as a result of each of his prior drunk driving

  convictions.”).


                                    19
¶ 37   Still, Kliem argues that even if his prior alcohol offenses were

  relevant to exemplary damages, the court should not have allowed

  the jury to hear about them when determining negligence.

¶ 38   True, some courts have allowed evidence of prior alcohol

  offenses only in a separate proceeding on exemplary damages. See,

  e.g., Webster, 496 S.E.2d at 462 (recognizing that “although

  relevant, the evidence [of prior alcohol offenses] is highly prejudicial

  to the issue of the defendant’s liability in the underlying negligence

  case”). But Kliem did not ask for a bifurcated trial. Nor does he

  cite any Colorado authority supporting the notion that the trial

  court should have bifurcated the issues sua sponte.

¶ 39   Instead, the trial court acknowledged the potential for

  prejudice and gave an appropriate limiting instruction. And “absent

  evidence to the contrary, we presume that a jury follows a trial

  court’s instructions.” Qwest Servs. Corp. v. Blood, 252 P.3d 1071,

  1088 (Colo. 2011). Kliem does not point to any such evidence.

¶ 40   For these reasons, we discern no abuse of the trial court’s

  discretion in allowing evidence of Kliem’s prior alcohol offenses for

  purposes of exemplary damages.




                                     20
       D. Admitting Evidence that Kliem Fled the Accident Scene

¶ 41   Kliem moved in limine to preclude evidence that he had fled

  the accident scene. He argued that this evidence was “irrelevant to

  the determination of which driver caused the accident.” The trial

  court denied the motion, finding that the evidence was “relevant to

  the state of mind and nature of driving . . . at the time of the

  accident.”

                                  1. Law

¶ 42   “Negligence may be established by facts and circumstances

  surrounding an accident rather than by direct evidence.” Lindauer

  v. LDB Drainlaying, Inc., 38 Colo. App. 266, 269, 555 P.2d 197, 199

  (1976); see Holmes v. Gamble, 624 P.2d 905, 906 (Colo. App. 1980)

  (“The facts constituting negligent conduct, however, like any other

  facts, may be proven by circumstantial evidence.”), aff’d, 655 P.2d

  405 (Colo. 1982). The relevancy of evidence — i.e., “whether it

  renders the claimed inference more probable than it would be

  without the evidence” — and not its stand-alone sufficiency

  determines admissibility. Bush v. Jackson, 191 Colo. 249, 251, 552

  P.2d 509, 511 (1976); see People v. Summitt, 132 P.3d 320, 324

  (Colo. 2006).


                                     21
¶ 43   One inference that may be drawn from “evidence of flight” is

  “consciousness of guilt.” Bush, 191 Colo. at 251, 552 P.2d at 511.

  This inference usually arises in criminal cases. See Summitt, 132

  P.3d at 324. Yet, in Bush, the supreme court applied a similar

  inference in a civil case. The court held that evidence of a property

  transfer — its flight, at the owner’s behest — “after an occurrence

  which may render that person liable in damages” was admissible “to

  show a consciousness of liability and a purpose to evade

  satisfaction of it.” Bush, 191 Colo. at 251, 552 P.2d at 511.

                                2. Analysis

¶ 44   Initially, Kliem argues that evidence of his post-accident flight

  should not have been admitted because consciousness of guilt “is

  not a material consideration in a civil case.” True, an actor’s

  mental state when the act occurred — mens rea, in criminal cases

  — is not relevant to proving negligence because the actor may have

  intended to act reasonably and still failed to do so. But the

  difference is timing, not substance. As explained in Bush, evidence

  of concealing assets after an event potentially creating liability “is

  admissible to show a consciousness of liability.” Id.




                                     22
¶ 45   The modern view among courts that have addressed flight

  evidence in civil cases supports this analysis. In Karl v. C. A. Reed

  Lumber Co., 79 Cal. Rptr. 852, 854 (Cal. Ct. App. 1969), for

  example, the court explained that “flight immediately after an

  accident is a circumstance that may be considered with other facts

  in the case as tending to show a consciousness of responsibility for

  the accident.” Similarly, in Peterson v. Henning, 452 N.E.2d 135,

  138 (Ill. App. Ct. 1983), the court explained that “[a] defendant’s

  flight from the scene of the accident can be interpreted as an

  admission of his negligence for if he were ‘guilt free’ it is reasonable

  to assume he would stop to ascertain the nature of the accident or

  the extent of the victim’s injuries.” See also Birch v. Birch, 755

  N.W.2d 144, at *2 (Iowa Ct. App. 2008) (table) (“[A] driver’s failure to

  stop creates an inference in the minds of reasonable people that the

  driver does not wish to be identified and that his wish to be

  unidentified stems from a fear of the consequences of being

  known.”) (citation and alteration omitted); Rock v. McHenry, 115

  S.W.3d 419, 421 (Mo. Ct. App. 2003) (“[I]n civil cases, other courts

  have held that flight evidence is admissible upon a showing that a

  defendant fled for the purpose of escaping liability.”).


                                     23
¶ 46   Even so, Kliem argues that evidence of his flight “is simply not

  probative of which party caused the accident in the first instance.”

  Of course, a person’s “conduct in leaving the scene b[ears] no

  causal connection to the collision.” Bellamy v. Edwards, 354

  S.E.2d 434, 438 (Ga. Ct. App. 1987); accord Miller ex rel. Miller v.

  Lewis, 963 N.Y.S.2d 533, 535 (N.Y. Sup. Ct. 2013) (“There can be

  little dispute that conduct following the accident indeed bears little

  if any ‘proximate relation’ to the cause of the accident.”). Still, such

  evidence may be admitted “in connection with [the person’s] other

  acts preceding the injury, as tending to establish [their] conduct in

  causing the injury as being negligence.” Bellamy, 354 S.E.2d at

  438; see Miller, 963 N.Y.S.2d at 536 (Evidence the defendant

  “continued to drive further down the block, failed to call 911 and

  placed and received numerous phone calls . . . are all admissible as

  evidence of [the defendant’s] consciousness of liability.”).

¶ 47   This bridge between pre-accident and post-accident conduct

  carries particular weight here. Evidence of Kliem’s flight was

  relevant to explain why plaintiff was unable to present any direct

  proof of Kliem having been impaired by alcohol, such as a breath

  test or blood draw shortly after the accident had occurred. See


                                     24
  Edwards v. Cross, 64 S.E.2d 6, 7 (N.C. 1951) (“By rendering the

  plaintiff unconscious and running away the motorist has forced her

  to rely on circumstantial evidence.”).

¶ 48   Undaunted, Kliem argues that evidence of his flight should not

  have been admitted because his “panicked reaction . . . could have

  been triggered by any number of influences unrelated to

  intoxication.” To be sure, as recognized in Johnson v. Austin, 280

  N.W.2d 9, 13 (Mich. 1979), “it is possible that for personal reasons,

  innocent as far as the law is concerned, a driver may wish to avoid

  identifying himself.” See also Fisher By & Through Fisher v. Trapp,

  748 P.2d 204, 207 (Utah Ct. App. 1988) (“Trapp’s flight could have

  indicated fear or remorse just as easily as consciousness of guilt.”).

  But when testing for relevancy, “it does not matter that other

  inferences may be equally probable.” Bush, 191 Colo. at 251, 552

  P.2d at 511. And Kliem was free to “present evidence to explain his

  failure to stop.” Peterson, 452 N.E.2d at 138. Indeed, Kliem

  testified that he drove away because he did not know what he had

  hit and then he fled on foot because he panicked.




                                    25
¶ 49    For these reasons, we discern no abuse of the trial court’s

  considerable discretion in allowing evidence of Kliem’s post-accident

  flight.

  III. Sufficiency of the Evidence to Support the Exemplary Damages
                                  Award

¶ 50    Kliem next contends that because “plaintiff’s theory that Kliem

  had been intoxicated is built upon speculation and conjecture

  alone” and “there was nothing improper about Kliem’s left turn,”

  plaintiff failed to prove, beyond a reasonable doubt, that she was

  entitled to exemplary damages. We conclude that the evidence was

  sufficient.

                     A. Standard of Review and Law

¶ 51    The party requesting exemplary damages must prove the

  statutory requirements beyond a reasonable doubt. See

  § 13-25-127(2), C.R.S. 2016. The “reasonable doubt burden is by

  definition a heavy one,” Tri-Aspen Constr. Co. v. Johnson, 714 P.2d

  484, 486 (Colo. 1986), and “whether the evidence was sufficient to

  justify an award of exemplary damages is one of law that we review

  de novo,” Qwest Servs. Corp., 252 P.3d at 1092. Still, an appellate

  court views the evidence in the light most favorable to the party



                                    26
  awarded exemplary damages. Id. And exemplary damages may be

  awarded based on evidence that “the accident occurred while the

  defendant was driving under the influence of alcohol.” Ortivez v.

  Davis, 902 P.2d 905, 911 (Colo. App. 1995).

                                 B. Analysis

¶ 52     Plaintiff sought exemplary damages based on circumstantial

  evidence that Kliem was intoxicated at the time of the accident. As

  related to the sufficiency of this evidence, Kliem’s two arguments

  are unpersuasive.

¶ 53     Kliem’s first argument — that the evidence is insufficient to

  support an inference that he was intoxicated at the time of the

  accident — falls short.

¶ 54     True enough, no direct evidence showed that Kliem was

  intoxicated. Yet, from the following circumstantial evidence, a

  reasonable jury could have concluded that he was.

        Kliem testified that he learned in his “alcohol classes” that a

         person’s blood alcohol content “reduces by 0.01 in an hour.”

        Photographs of Kliem’s vehicle after the accident showed seven

         bottles of beer, some empty, and a single-serving bottle of

         vodka in the driver’s cup holder.

                                      27
        Kliem testified that he “was in severe pain” from “two broken

         ribs and . . . one fractured rib,” yet he did not seek medical

         attention until after he turned himself in.

        The investigator testified that had Kliem not fled the scene,

         part of the investigation would have been “to find out if [Kliem]

         had anything in his body that may have affected the crash.”

        Kliem testified that he “saw . . . on the news” that the police

         were looking for him and had come “to [his] parents’ house the

         night of the accident,” but still did not turn himself in until

         two days after the accident.

¶ 55     Still persisting, Kliem argues that both passengers testified in

  their depositions that the open beer bottles belonged to them and

  Kliem did not consume any alcohol. But the jury could have

  rejected this testimony entirely. See Vaccaro v. Am. Family Ins.

  Grp., 2012 COA 9M, ¶ 34 (“The credibility of the witnesses, the

  sufficiency, probative effect and weight of the evidence, and the

  inferences and conclusions to be drawn therefrom are all within the

  province of the fact finder.”). For example, the jury could have

  discounted their testimony because neither passenger appeared at

  trial, even though one of them had been served with a subpoena.

                                        28
¶ 56   Kliem’s suggestion that exemplary damages can be awarded

  only based on direct evidence of intoxication finds no support in

  Colorado law. Imposing such a requirement would be especially

  improper where the driver — like Kliem — fled the scene. As the

  court in Owens v. Anderson, 631 So. 2d 1313, 1317-18 (La. Ct.

  App. 1994), explained:

            [I]n cases such as the instant one where the
            driver fled the scene and was not apprehended
            or otherwise timely tested, blood alcohol
            evidence is not available. Does this mean that
            all an intoxicated driver need do to avoid
            [exemplary damages] liability is to successfully
            flee the accident scene? We think not. . . .
            Blood alcohol level is not the only way in which
            intoxication can be established in a civil case.
            The triers of fact can look to the totality of the
            circumstances.

  See also Matalon v. Lee, 847 So. 2d 1077, 1080 (Fla. Dist. Ct. App.

  2003) (“Although there was no direct proof of intoxication on

  [defendant’s] behalf (in no small part due to the fact that

  [defendant] fled the scene of the accident), there was a wealth of

  circumstantial evidence of intoxication.”).5


  5Nor does Kliem cite any authority that exemplary damages
  generally must be based on direct evidence. To the contrary, courts
  have held that “the plaintiff need not present direct evidence;
  punitive damages may be awarded based on circumstantial

                                    29
¶ 57     Kliem’s second argument — that exemplary damages were

  improper because his left-hand turn was legal — also misses the

  mark.

¶ 58     True enough, the investigating officer and experts for both

  Kliem and plaintiff all testified favorably about his initial decision to

  turn left across the southbound lanes. The investigator said Kliem

  could not have “anticipated the motorcycle as a hazard” in making

  his decision. Kliem’s expert opined that no traffic law violations

  had occurred in making the left-hand turn. And even plaintiff’s

  expert did not “express[] any criticism” with regard to Kliem’s

  “decision to make the left turn in the first instance.”

¶ 59     Yet, other evidence weighed against Kliem:

        Plaintiff’s expert testified that Kliem “could have and should

         have seen the oncoming motorcycle from a significant distance

         away.” And he should have “observed the fact [the motorcycle]

         was approaching faster than normal traffic.”

  evidence and the reasonable inferences drawn therefrom.” Newman
  v. Select Specialty Hosp.-Ariz., Inc., 374 P.3d 433, 437 (Ariz. Ct. App.
  2016). Indeed, by comparison, proof beyond a reasonable doubt in
  criminal cases can be solely circumstantial. See People v. Florez,
  179 Colo. 176, 178, 498 P.2d 1162, 1163 (1972) (“Although guilt of
  the crime of burglary may be established beyond a reasonable
  doubt solely by circumstantial evidence.”).

                                      30
        This expert also testified that even after Kliem had initiated

         the left turn, “[t]here was time for response.” Namely, “had the

         brakes been applied when [Kliem] got halfway across lane two,

         the vehicle could [have] stopped prior to entering lane number

         one,” where the collision occurred.

        The investigator testified that alcohol can “have a dramatic

         impact on perception”; “influence personality changes”;

         “increase[] risk judgment”; “affect muscular coordination”;

         “affect a person’s peripheral vision”; and “affect critical

         judgment.”

¶ 60     Kliem cites no authority, nor have we found any in Colorado,

  requiring that a traffic law violation be shown before exemplary

  damages can be awarded. Thus, viewing this testimony in a light

  most favorable to the judgment, a reasonable juror could have

  concluded that — even if the left-hand turn did not violate any

  traffic laws — Kliem ultimately failed to avoid the motorcycle

  because he was intoxicated.

¶ 61     Accordingly, we conclude that sufficient evidence supports the

  exemplary damages award.




                                       31
   IV. Reducing Noneconomic Damages for Comparative Fault Before
                         Applying the Cap

¶ 62   Finally, Kliem contends the noneconomic damages cap in

  section 13-21-203 must be applied to an award of noneconomic

  damages before comparative negligence is apportioned. Under this

  scenario, plaintiff’s noneconomic damages would be reduced to

  $436,070 — the current noneconomic damages cap — and then

  fifty-five percent of that amount would be apportioned to Kliem,

  resulting in a net judgment of $239,838.50.

¶ 63   The trial court disagreed. It first apportioned fifty-five percent

  of the total noneconomic damages to Kliem — $412,500.00 — and

  then, because that amount was less than the damages cap, it did

  not make a further reduction. We agree with the trial court.

                     A. Standard of Review and Law

¶ 64   This issue raises a question of statutory interpretation, which

  is reviewed de novo. Granite State Ins. Co., 183 P.3d at 567.

¶ 65   The Colorado Wrongful Death Act (WDA), sections 13-21-201

  to -204, C.R.S. 2016, allows a “decedent’s surviving spouse and

  heirs to seek damages if death was caused by negligence.” Lanahan

  v. Chi Psi Fraternity, 175 P.3d 97, 99 (Colo. 2008). Historically,



                                    32
  these damages “were limited to the net pecuniary loss suffered by

  the survivors.” Id. But in 1989, the General Assembly amended

  the WDA “to allow survivors to recover noneconomic damages as

  well.” Id.

¶ 66   The WDA caps recovery of noneconomic damages at a

  maximum of $250,000, adjusted for inflation. See id. at 100

  (explaining that unlike section 13-21-102.5, “section 13-21-203

  caps noneconomic damages at $250,000 even when there is clear

  and convincing evidence to support a higher award”). Specifically,

  section 13-21-203(1)(a) provides:

               There shall be only one civil action under this
               part 2 for recovery of damages for the wrongful
               death of any one decedent. Notwithstanding
               anything in this section or in section
               13-21-102.5 to the contrary, there shall be no
               recovery under this part 2 for noneconomic
               loss or injury in excess of two hundred fifty
               thousand dollars, unless the wrongful act,
               neglect, or default causing death constitutes a
               felonious killing . . . .

  (Emphasis added.)

¶ 67   In Lanahan, 175 P.3d at 100, the supreme court rejected the

  assertion that this section applies on a per defendant basis. It held

  that section 13-21-203 “permits one action per decedent to recover



                                      33
  a maximum of $250,000 in noneconomic damages . . . regardless of

  the number of Respondents from whom she may be entitled to

  recover such damages.” Id. at 100-01. The court explained that

  “the term ‘recovery,’ as used in section 13-21-203, is unambiguous

  and refers to plaintiff’s recovery, which is expressly limited to

  $250,000.” Id. at 101.

                                B. Analysis

¶ 68   Kliem argues that because in Lanahan the court applied the

  noneconomic damages cap “before pro rata allocation among

  defendants,” here plaintiff’s “comparative fault should be applied

  using the same measure.” Lanahan does not support this result.6

¶ 69   “The purpose of comparative negligence is to apportion

  negligence among those who caused the harm.” Nat’l Farmers

  Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056, 1059 (Colo.

  1983). Under the comparative negligence statute, section


  6 We agree with Kliem that General Electric Co. v. Niemet, 866 P.2d
  1361, 1362 (Colo. 1994), which addressed section 13-21-102.5,
  C.R.S. 2016, is not instructive. As explained in Lanahan v. Chi Psi
  Fraternity, 175 P.3d 97, 102-03 (Colo. 2008), because “the language
  of section 13-21-203 expressly recognizes that the cap on
  noneconomic damages in wrongful death actions is to be given its
  own meaning, regardless of anything stated to the contrary in
  section 13-21-102.5 . . . Niemet’s rationale is inapposite.”).

                                     34
  13-21-111, C.R.S. 2016, “the relative degrees of the plaintiff’s and

  defendant’s fault must be ascertained to determine whether and

  what amount of recovery is proper.” Gordon v. Benson, 925 P.2d

  775, 777 (Colo. 1996) (emphasis added) (citation omitted).

¶ 70   To determine that recovery, section 13-21-111(1) requires that

  “any damages allowed shall be diminished in proportion to the

  amount of negligence attributable to the person for whose injury,

  damage, or death recovery is made.” (Emphasis added.) Thus,

  comparative negligence reduces the amount of damages found by

  the trier of fact, to determine the amount recoverable by a plaintiff.

¶ 71   Once the amount of a plaintiff’s recovery is determined, then

  the noneconomic damages cap in section 13-21-203 comes into

  play. Lanahan, 175 P.3d at 101 (Section 13-21-203 limits “the

  monetary amount to which the plaintiff is entitled.”) (emphasis

  added). The cap does not cause a plaintiff’s noneconomic damages

  to disappear — it merely limits a plaintiff’s recovery to a specified

  maximum amount. See McAdory v. Rogers, 264 Cal. Rptr. 71, 74

  (Cal. Ct. App. 1989) (The statutory cap “does not cause those

  noneconomic damages . . . suffered in excess of $250,000 to vanish.




                                     35
  Instead, that section merely reflects a legislative policy decision to

  bar the recovery of more than $250,000 of those damages.”).

¶ 72   Applying the noneconomic damages cap in section 13-21-203

  after damages have been reduced based on a plaintiff’s comparative

  negligence makes sense for two reasons.

¶ 73   First, if a plaintiff’s percentage of negligence is applied after

  damages have been reduced to the amount of the cap, “the jury’s

  damages finding in most instances would be meaningless.” Atkins

  v. Strayhorn, 273 Cal. Rptr. 231, 238 n.8 (Cal. Ct. App. 1990). This

  is so because the cap would affect the amount of damages more

  than the jury’s verdict. After all, the jury determines both the total

  amount of damages and the comparative fault. But by applying

  comparative negligence first, the amount of damages attributable to

  a defendant is determined consistent with the verdict, although the

  plaintiff is only entitled to recover up to the statutory cap. Cf.

  People v. Fuentes, 258 P.3d 320, 326 (Colo. App. 2011) (“[W]e must

  maximize the effect of the jury’s verdict.”).

¶ 74   Second, as recognized in McAdory, 264 Cal. Rptr. at 74,

  because of the cap, a plaintiff “is already receiving an amount less

  than the jury determined he was damaged by [the] tortious


                                     36
  conduct.” Atkins, 273 Cal. Rptr. at 238 (declining to apply

  comparative fault after damages cap). Further reducing the capped

  noneconomic damages based on the negligence of a plaintiff would

  create an even greater disparity between the actual loss and the

  recovery.

¶ 75   This reasoning was illustrated in McAdory, 264 Cal. Rptr. at

  74, where, like here, the court addressed the interplay between

  comparative fault and a damages cap that limited a plaintiff’s

  recovery of noneconomic damages. The court rejected the argument

  that comparative negligence should be applied after reducing the

  verdict based on the cap:

              [P]laintiff . . . is determined to be 10 percent
              comparatively at fault and is awarded $1
              million in noneconomic damages. [If
              comparative fault was applied after the
              damages cap], this plaintiff’s noneconomic
              damage award, already reduced to $250,000,
              will be further reduced by another $25,000
              even though the jury found that the fault of
              others proximately caused him $900,000 in
              noneconomic damages.

  Id. at 75.7 We consider McAdory well-reasoned and apply it here.


  7 Other courts are in accord. See McCart v. Muir, 641 P.2d 384, 394
  (Kan. 1982) (“In applying the comparative negligence statute . . . in
  an action for death by wrongful act . . . the percentage of causal

                                     37
¶ 76   Given all of this, we conclude the trial court properly

  determined the amount of plaintiff’s recovery by first apportioning

  the percentage of comparative negligence attributable to Kliem and

  then applying the noneconomic damages cap in section 13-21-203

  to that amount.

                             V. Conclusion

¶ 77   The judgment is affirmed.

       JUDGE ASHBY and JUDGE NIETO concur.




  fault attributable to decedent’s negligence plus the percentage of
  additional causal fault attributable to any direct negligence of the
  plaintiff are to be deducted from the amount of damages awarded
  by the court or jury for nonpecuniary damages, rather than from
  the maximum permissible recovery for nonpecuniary damages
  allowable . . . .”); Collins v. Commonwealth of Ky. Nat. Res. & Envtl.
  Prot. Cabinet, 10 S.W.3d 122, 127 (Ky. 1999) (Board “erroneously
  reduced for comparative negligence from the statutory maximum
  rather than from the total damages.”); see generally 4 John W.
  Chandler, Handling Motor Vehicle Accident Cases § 15:4, Westlaw
  (2d ed., database updated September 2016) (“One issue of some
  importance that has been litigated in a few cases and is not
  generally addressed explicitly by damages limitation statutes is the
  interaction between a damages cap and principles of comparative
  fault and allocation of liability. There have not been a large number
  of reported cases on this issue, but most cases have held that any
  reduction or allocation based on comparative fault must be done
  before applying the statutory cap.”).

                                    38
