COLORADO COURT OF APPEALS                                         2017COA23


Court of Appeals No. 16CA0322
City and County of Denver District Court No. 15CV30089
Honorable Shelley I. Gilman, Judge


Denise G. Nibert,

Plaintiff-Appellee,

v.

Geico Casualty Company,

Defendant-Appellant.


                        JUDGMENT AND ORDER AFFIRMED
                      AND CASE REMANDED WITH DIRECTIONS

                                   Division V
                             Opinion by JUDGE FOX
                          Román and Booras, JJ., concur

                           Announced February 23, 2017


Franklin D. Azar & Associates, P.C., Michael Born, Aurora, Colorado, for
Plaintiff-Appellee

Deisch, Marion & Klaus, P.C., Gregory K. Falls, Denver, Colorado, for
Defendant-Appellant

Burg Simpson Eldredge Hersh & Jardine, P.C., Thomas W. Henderson, Brian
K. Matise, Nelson Boyle, Englewood, Colorado, for Amicus Curiae The Colorado
Trial Lawyers Association
¶1    Geico Casualty Company (Geico Casualty) appeals the trial

 court’s judgment entered against it on jury verdicts returned in

 favor of Denise G. Nibert on her claims of common law bad faith

 and violations of section 10-3-1116, C.R.S. 2016. Geico Casualty

 also appeals the trial court’s order awarding Nibert her attorney

 fees. We affirm.

                           I.   Background

¶2    Nibert and her husband were injured when a car collided with

 their motorcycle in October 2012, along Interstate Highway 25.1

 Nibert fractured her tibia and fibula and required surgery. The

 at-fault driver of the car was insured by Allstate Insurance

 Company (Allstate), and Allstate paid Nibert its insurance limits of

 $50,000, settling Nibert’s claims against the at-fault driver. Nibert

 had underinsured motorist (UIM) coverage on the motorcycle

 through Geico Indemnity Company (Geico Indemnity), and Geico

 Indemnity paid Nibert her UIM coverage limit of $50,000 before

 trial. Nibert had a separate UIM policy on the automobiles in her

 household through Geico Casualty, with a $25,000 coverage limit,


 1Nibert’s husband was the original plaintiff in the case but settled
 his claims before trial.

                                   1
 which was secondary to the motorcycle policy. On July 3, 2014,

 Geico Casualty offered Nibert $1500 to settle her claim under her

 secondary automobile UIM coverage.

¶3    On January 8, 2015, Nibert sued Geico Casualty for breach of

 contract, common law bad faith, and statutory delay under section

 10-3-1116. After discovery and before trial, Geico Casualty paid

 Nibert the $25,000 UIM coverage limit to settle Nibert’s claims for

 breach of contract.

¶4    Following trial on Nibert’s remaining claims of bad faith and

 statutory delay, a jury returned verdicts awarding Nibert $33,250 in

 noneconomic damages on her bad faith claim and $25,000 for her

 statutory delay claim. The trial court entered judgment on the

 jury’s verdict for Nibert’s bad faith claim and entered judgment of

 $50,000 as damages for Nibert’s statutory delay claim.

¶5    The trial court also granted Nibert’s motion for attorney fees,

 awarding $118,875.30 in fees. The court rejected Geico Casualty’s

 arguments regarding the reasonableness of Nibert’s attorney’s

 hourly rates and scope of work performed and found that the

 lodestar amount of $118,875.30 did not warrant any upward or




                                   2
 downward adjustment based on the facts and subject matter of the

 case.

                      II.     Defense Theory Jury Instruction

¶6       Geico Casualty argues that the trial court erred in failing to

 adequately instruct the jury on its theory of defense — specifically

 that challenges to debatable claims are reasonable. We disagree.

                 A.         Preservation and Standard of Review

¶7       The parties agree that Geico Casualty preserved its argument

 for appeal.

¶8       We review jury instructions de novo to determine whether the

 instructions as a whole accurately informed the jury of the

 governing law. Clyncke v. Waneka, 157 P.3d 1072, 1078-79 (Colo.

 2007). If a jury instruction correctly states the law, we review the

 trial court’s decision to give the instruction for an abuse of

 discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). A

 court abuses its discretion when its ruling is manifestly arbitrary,

 unreasonable, unfair, or when it misapplies the law. Landmark

 Towers Ass’n, Inc. v. UMB Bank, N.A., 2016 COA 61, ¶ 31.




                                          3
                          B.    Law and Analysis

¶9     Rejecting a tendered instruction that properly instructs the

  jury on the applicable law in the case and the evidence at issue,

  which are not adequately covered elsewhere, is error. Schuessler v.

  Wolter, 2012 COA 86, ¶ 26. However, it is not error for a trial court

  to reject a party’s instruction when that instruction misstates the

  law, is argumentative, improperly emphasizes specific evidence, or

  when the court allows the party to otherwise argue its theory of the

  case. Id.; Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117

  P.3d 60, 73-74 (Colo. App. 2004); see also People v. Merklin, 80 P.3d

  921, 927 (Colo. App. 2003) (concluding that the trial court properly

  rejected the defendant’s instruction where the defendant was not

  precluded from presenting his theory of the case during closing

  argument); People v. Renaud, 942 P.2d 1253, 1255-57 (Colo. App.

  1996) (affirming the trial court’s refusal to give the defendant’s

  requested instructions where the defendant was not deprived of his

  opportunity to present his theory of the case).

¶ 10   Geico Casualty tendered the following instruction, which the

  trial court refused to give to the jury: “It is reasonable for an

  insurance company to challenge claims that are fairly debatable. A


                                      4
claim is fairly debatable if reasonable minds could disagree on the

outcome.” Instead, the trial court relied on the Colorado pattern

jury instructions governing common law bad faith and first-party

statutory claims. In relevant part, the court instructed the jury as

follows:

   Instruction 6 stated the elements of common law insurance

     bad faith, including that Geico Casualty knew or recklessly

     disregarded the fact that its conduct or position was

     unreasonable.

   Instruction 7 provided the standards for unreasonable

     conduct and unreasonable position, including the necessary

     comparison to what “a reasonably careful insurance company”

     would do under similar circumstances.

   Instruction 8 gave the elements of statutorily unreasonable

     delay, including the requirement that the delay was “without a

     reasonable basis.”

   Instruction 9 listed prohibited insurer practices found in

     section 10-3-1104(1)(h), C.R.S. 2016.

The instructions did not state that it is reasonable for an insurance

company to challenge claims that are fairly debatable. See Vaccaro

                                  5
  v. Am. Family Ins. Grp., 2012 COA 9M, ¶ 41 (stating that, under

  Colorado law, it is reasonable for an insurer to challenge claims

  that are fairly debatable).

¶ 11   However, the trial court allowed Geico Casualty to present

  expert testimony regarding the “fairly debatable” issue and argue its

  theory of defense to the jury. Geico Casualty’s expert, Jon Sands,

  testified that, in his opinion, Geico Casualty acted reasonably in

  handling Nibert’s UIM claim. Sands also testified about what it

  means to have a claim that is fairly debatable and opined that

  disagreements over the value of an insured’s claim are neither

  uncommon nor unreasonable. In closing argument, Geico Casualty

  reiterated Sands’ testimony, emphasizing to the jury that “he also

  told you that it’s reasonable for insurers to challenge claims that

  are fairly debatable.”

¶ 12   Geico Casualty argues that the ability to present its theory of

  defense and argument related to the “fairly debatable” issue did not

  adequately remedy the court’s rejection of their instruction. We

  disagree. Contrary to Geico Casualty’s argument, the tendered

  instruction went beyond the reasonableness of a challenge to a

  claim that is fairly debatable. Instead, the instruction, as tendered,


                                    6
  misstated the law by effectively conflating the reasonableness

  elements of the common law bad faith claim and the statutory delay

  claim by inquiring only into whether Nibert’s claim was fairly

  debatable. Colorado law is clear that whether a claim is fairly

  debatable is not the sole inquiry in a reasonableness analysis. See

  Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶¶ 22-24

  (cert. granted on other grounds June 6, 2016).

¶ 13   In Fisher, another division of this court concluded that “fair

  debatability is not a threshold inquiry that is outcome

  determinative as a matter of law,” but instead is a factor to be

  considered in a broader evaluation of whether an insurer acted

  reasonably. Id. at ¶ 24 (quoting Vaccaro, ¶ 42). The instruction in

  this case, as tendered, overly emphasized the “fairly debatable”

  issue, and, if allowed, could have directed the jury to find Geico

  Casualty’s actions reasonable based purely on whether the claim

  was fairly debatable — rather than upon application of a balancing

  inquiry to more broadly determine reasonableness.

¶ 14   Geico Casualty further argues that the language in Fisher and

  Vaccaro, concluding that fair debatability is merely a factor to be

  considered in the ultimate reasonableness determination, is


                                    7
  distinguishable where, as here, the issue arises in the context of a

  trial, rather than during resolution of a dispositive motion.

  However, the procedural posture is not relevant because the

  ultimate determination that a trial court must make when ruling on

  proffered jury instructions is whether the instruction adequately

  instructs the jury on the relevant law. See Schuessler, ¶ 26.

  Therefore, the conclusions in Fisher and Vaccaro that fair

  debatability is not outcome determinative and is but a factor in the

  broader reasonableness inquiry are instructive here.

¶ 15   Moreover, the “fairly debatable” issue is not relevant to a

  statutory delay claim pursuant to section 10-3-1116. See Etherton

  v. Owners Ins. Co., 829 F.3d 1209, 1226-27 (10th Cir. 2016)

  (summarizing Colorado’s unreasonable delay law, agreeing with

  cases limiting the “fairly debatable” issue to common law bad faith

  claims, and opining that “under Colorado law, fair debatability can

  be a relevant but not necessarily a determinative factor as to

  whether the insurer acted reasonably”). Including Geico Casualty’s

  proposed instruction — without further explanation of its purpose

  and proper interpretation — in the jury instructions could have

  prompted the jury to improperly weigh the defense theory. See id.


                                    8
  The trial court avoided this outcome by refusing to give the

  instruction.2

¶ 16   Our analysis is aided by the fact that Geico Casualty took full

  advantage of the opportunity to articulate its “fairly debatable”

  argument to the jury through its expert witness and during closing

  argument. See Schuessler, ¶ 26. Geico Casualty’s remarks during

  closing argument largely mirrored the language of the rejected

  instruction. And the record supports the conclusion that the jury

  was informed of Geico Casualty’s defense theory, further weighing

  against an obligation that its defense theory be included as a formal

  jury instruction. See Merklin, 80 P.3d at 927; Renaud, 942 P.2d at

  1255-57.




  2 Geico Casualty argued during oral argument that the trial court’s
  refusal to give the proposed “fairly disputable” instruction stripped
  Geico Casualty of its right to have the jury instructed on its theory
  of defense. See Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d
  1380, 1385 (Colo. 1998). Here, the “fairly debatable” instruction
  effectively conflated the reasonableness elements of both of Nibert’s
  claims, and it is not the responsibility of the trial court, especially
  in a civil action, to “craft appropriate theory of the case instructions
  when a party’s own counsel declines to do so.” Id. at 1384.
  Because the “fairly debatable” instruction, as tendered, was not an
  accurate statement of the law, the trial court did not err in refusing
  to provide it to the jury. See id.

                                     9
¶ 17   We conclude that the instructions, as given, adequately

  instructed the jury of the applicable law and that the parties were

  afforded ample opportunity to present their case theories to the

  jury. The trial court’s ruling was neither manifestly arbitrary,

  unreasonable, or unfair, nor a misapplication of the law. Landmark

  Towers Ass’n, ¶ 31. Therefore, the trial court did not err in

  rejecting Geico Casualty’s tendered instruction.

            III.    Scope of Remedy Under Section 10-3-11163

¶ 18   Geico Casualty argues that the trial court erred in awarding

  Nibert recovery of two times her UIM benefit as a penalty under

  section 10-3-1116. We disagree.

                   A.   Preservation and Standard of Review

¶ 19   The parties agree that Geico Casualty preserved its argument

  for appeal.




  3 This issue is substantially similar to the issue on which the
  supreme court granted certiorari in Barriga v. American Family
  Mutual Insurance Co., (Colo. App. No 13CA1944, Oct. 8, 2015) (not
  published pursuant to C.A.R. 35(f)) (cert. granted Aug. 22, 2016).
  Until we have more guidance from the supreme court, we elect to
  follow Barriga and Hansen v. American Family Mutual Insurance Co.,
  2013 COA 173, ¶¶ 59-63, rev’d on other grounds, 2016 CO 46, ¶ 4.

                                     10
¶ 20   We review a trial court’s statutory interpretation de novo.

  Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.

  2010); Medina v. State, 35 P.3d 443, 452 (Colo. 2001).

¶ 21   When interpreting a statute, we try to give effect to the intent

  of the General Assembly. Larrieu v. Best Buy Stores, L.P., 2013 CO

  38, ¶ 12; Vista Ridge Master Homeowners Ass’n, Inc. v. Arcadia

  Holdings at Vista Ridge, LLC, 2013 COA 26, ¶ 9. We look first to the

  plain language of the statute, giving the language its commonly

  accepted and understood meaning. Smith, 230 P.3d at 1189; Vista

  Ridge Master Homeowners Ass’n, ¶ 9. Further, we construe

  statutory provisions as a whole, giving effect to the entire statute.

  Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.

  2008); Vista Ridge Master Homeowners Ass’n, ¶ 9. We look at the

  context in which a statutory term appears and ascertain the term’s

  meaning by reference to the words associated with it. Platt v.

  Aspenwood Condo. Ass’n, Inc., 214 P.3d 1060, 1063 (Colo. App.

  2009).

¶ 22   When the language of the statute is clear and unambiguous,

  we give effect to its plain and ordinary meaning. Stamp v. Vail

  Corp., 172 P.3d 437, 442 (Colo. 2007). However, when the language


                                    11
  is ambiguous — that is, reasonably susceptible of multiple

  meanings — we may consider extrinsic indications of the General

  Assembly’s intent. Id.; In re M.D.E., 2013 COA 13, ¶ 10.

                           B.   Law and Analysis

¶ 23   Section 10-3-1116(1) provides: “A first-party claimant as

  defined in section 10-3-1115 whose claim for payment of benefits

  has been unreasonably delayed or denied may bring an action in a

  district court to recover reasonable attorney fees and court costs

  and two times the covered benefit.” Section 10-3-1116(4) specifies

  that “[t]he 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.” See also Travelers Prop. Cas.

  Co. of Am. v. Stresscon Corp., 2016 CO 22M, ¶ 16 (“[I]n addition to

  contractual remedies for breach of an insurance contract, an

  insurer’s bad faith breach also gives rise to tort liability.”).

  “Damages awarded pursuant to this section shall not be recoverable

  in any other action or claim.” § 10-3-1116(4).

¶ 24   Geico Casualty argues that these provisions show that the

  statute is penal in nature and must be strictly construed in its

  favor. This strict construction, Geico Casualty contends, leads to


                                      12
  the conclusion that the trial court erred in not allowing a setoff of

  the ultimate statutory damages award, in the amount of the

  $25,000 previously paid to Nibert on her UIM claim. We disagree.

¶ 25   Other divisions of this court have recently addressed this

  issue. See Barriga v. Am. Family Mut. Ins. Co., (Colo. App. No.

  13CA1944, Oct. 8, 2015) (not published pursuant to C.A.R. 35(f))

  (cert. granted Aug. 22, 2016); Hansen v. Am. Family Mut. Ins. Co.,

  2013 COA 173, ¶¶ 59-63, rev’d on other grounds, 2016 CO 46, ¶ 4.

  We agree with and follow these divisions’ analyses and conclusions

  that a statutory damages award of two times a delayed benefit —

  even when, as here, that benefit has already been paid, resulting in

  an effective payment to an insured of three times the contracted

  benefit — is contemplated by the plain meaning of section

  10-3-1116. See Hansen, 2013 COA 173, ¶ 61.

¶ 26   The language in subsections (1) and (4) of section 10-3-1116 is

  plain. It authorizes an award of twice the covered benefit in

  addition to any recovery of that benefit through another source.

  Therefore, the trial court did not err when it awarded Nibert

  $50,000 in damages on her successful statutory claim — which

  represented two times the $25,000 UIM benefit from her policy with


                                    13
  Geico Casualty — even though Geico Casualty paid Nibert the

  $25,000 UIM benefit before trial.

                     IV.   Attorney Fees Pre-Appeal

¶ 27   Geico Casualty contends that the trial court erred in awarding

  Nibert attorney fees incurred to prosecute the common law bad

  faith and statutory delay claims, both before and after the date

  when payment of the UIM benefit was delayed. Geico Casualty

  argues that the window for attorney fees allowed pursuant to

  section 10-3-1116 is limited to the period from the date the benefit

  was first delayed to the date the benefit was actually paid.4 As a

  matter of first impression, we reject the argument.

               A.   Preservation and Standard of Review

¶ 28   The parties agree that Geico Casualty preserved its claims for

  appeal.

¶ 29   We review de novo a trial court’s interpretation of a statute.

  Smith, 230 P.3d at 1189. “We review the district court’s decision to



  4 The trial court found that “[u]nder [Geico Casualty’s] theory, the
  relevant time period for recovery of attorney fees is from July 13,
  2014, the date on which [Geico Casualty] made the $1500.00
  underinsured offer, through August 11, 2015, the date on which
  [Geico Casualty] paid the disputed $25,000 contract benefit to Ms.
  Nibert.”

                                      14
  award attorney fees and costs for an abuse of discretion, but we

  review the legal conclusions which provided the basis for that

  decision de novo.” Jorgensen v. Colo. Rural Props., LLC, 226 P.3d

  1255, 1259 (Colo. App. 2010).

                          B.   Law and Analysis

¶ 30   “In the absence of an express statute, court rule, or private

  contract to the contrary, attorney fees generally are not recoverable

  by the prevailing party in a contract or tort action.” Allstate Ins. Co.

  v. Huizar, 52 P.3d 816, 818 (Colo. 2002).

¶ 31   Section 10-3-1116(1) expressly authorizes a first-party

  claimant “whose claim for payment of benefits has been

  unreasonably delayed or denied [to] bring an action in a district

  court to recover reasonable attorney fees and court costs[.]”

¶ 32   The trial court’s order confirmed that the jury found that Geico

  Casualty’s delay in paying Nibert her contractual benefit lacked a

  reasonable basis and awarded Nibert “all attorney fees incurred in

  successfully pursuing her statutory claim and obtaining the

  remedies available to her.” Geico argues that this construction

  undermines the American Rule and fosters an unwarranted windfall

  where, as here, the eventual attorney fee award is substantially


                                     15
  larger than an original contingency fee agreement would have been

  if it were based on recovering only the contracted UIM benefit.

  Nibert responds that Geico Casualty’s contention ignores the

  legislative intent behind the expressed allowance of attorney fees in

  section 10-3-1116(1) and that Geico Casualty’s interpretation of the

  relevant portion of section 10-3-1116(1) would lead to the absurd

  result of allowing insurance companies to avoid accountability and

  attorney fee awards by paying delayed benefits until after litigation

  is completed. The Colorado Trial Lawyers Association (the CTLA),

  as amicus curiae, argues that section 10-3-1116 provides a clear

  exception to the American Rule and clear authorization for an

  award of “fees on fees” because the statute includes reasonable

  attorney fees in the damage calculation. The CTLA argues that the

  statute exists to curb abuses in the insurance industry and that the

  interpretation Geico Casualty advocates could lead to unreasonable

  litigation costs incurred by insureds in enforcing contractual

  agreements and seeking to recover the expenses of battling large

  insurance companies.

¶ 33   We agree with the trial court, Nibert, and the CTLA. Geico

  Casualty offers no persuasive legal support for its assertions that


                                    16
  section 10-3-1116(1) does not contemplate an award of attorney

  fees incurred litigating anything other than a contractual claim or

  incurred for the time before and after a delayed benefit accrues and

  is paid. First, we disagree with Geico Casualty’s argument that

  extra-contractual claim litigation should not be the basis for

  attorney fees awarded under the statute. The statute itself

  explicitly authorizes one of these extra-contractual claims — the

  statutory delay claim. § 10-3-1116(1). Nothing in the statute’s

  language limits an award of attorney fees to a contractual claim and

  the only limit on the fees is that they must be reasonable — a

  factual determination that the trial court made, with ample record

  support. See Jorgensen, 226 P.3d at 1259. Moreover, the process

  of litigating a common law bad faith claim and a statutory delay

  claim are inescapably intertwined, as many of the relevant elements

  are shared and much of an attorney’s work in a case is not limited

  to one claim. See Fisher, ¶ 23.

¶ 34   The only support Geico Casualty provides is a case from the

  Supreme Court of California, Cassim v. Allstate Ins. Co., 94 P.3d

  513 (Cal. 2004). Not only is the analysis from Cassim not binding

  on our court, see Wal-Mart Stores, Inc. v. United Food & Commercial


                                    17
  Workers Int’l Union, 2016 COA 72, ¶ 17 (we are not bound by the

  decisions of the courts of other states), it is also factually

  distinguishable. Cassim involved attorney fees associated with a

  common law bad faith claim and did not involve a statute expressly

  authorizing an award of attorney fees as damages. Cassim, 94 P.3d

  at 528. The analysis in Cassim is therefore inapplicable to the

  issues presently before us and its discussion is unhelpful.

¶ 35   We are further persuaded by Nibert’s suggestion that Geico

  Casualty’s argument — that fees should not be awarded for a period

  before a delay occurred or after eventual payment — would create

  an unfair loophole through which insurance companies could avoid

  paying full attorney fees under the statute. Geico Casualty’s

  concern is addressed by the statute’s reference to “reasonable”

  attorney fees. See § 10-3-1116(1). We agree with Nibert that Geico

  Casualty’s argument regarding the date of delay is a factual issue

  and was implicitly rejected in the trial court’s written order.

¶ 36   While the statute does not automatically authorize an award of

  all attorney fees, the statute limits the award of attorney fees to only

  those that are reasonable. This necessarily involves a factual

  determination of relatedness of the sought fees to the delay for


                                     18
  which the fees are awarded. See Ravenstar LLC v. One Ski Hill Place

  LLC, 2016 COA 11, ¶¶ 60-66. To be sure, it could be unreasonable

  for a trial court to award fees incurred before a more obvious date of

  delay, but we are not presented with that scenario here. The record

  reflects that there were many dates — during the course of Nibert’s

  dealings with the insurer after her injury — that a fact finder could

  have rationally concluded was the date on which Geico Casualty

  first unreasonably delayed its payment. We defer to the trial court’s

  factual determinations absent clear error — which we conclude is

  not present in the trial court’s implicit finding that the delay

  accrued when Nibert was first forced to pursue her statutory claim.

  See First Citizens Bank & Tr. Co. v. Stewart Title Guar. Co., 2014

  COA 1, ¶ 13.

¶ 37   For the foregoing reasons, we conclude that the trial court did

  not err in awarding Nibert attorney fees under section 10-3-1116(1)

  without limiting those fees to work completed in prosecution of her

  contract claim or to the period between the delay and the eventual

  payment of the UIM benefit.




                                     19
                      V.   Appellate Attorney Fees

¶ 38   Nibert requests an award of her attorney fees incurred

  defending this appeal pursuant to section 10-3-1116 and C.A.R.

  39.1. “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.” Melssen v. Auto-Owners Ins.

  Co., 2012 COA 102, ¶ 75 (quoting Kennedy v. King Soopers Inc., 148

  P.3d 385, 390 (Colo. App. 2006)). Therefore, we grant Nibert’s

  request for appellate attorney fees. We remand to the trial court to

  determine and award the amount of reasonable attorney fees and

  costs that Nibert incurred in successfully defending the trial court’s

  judgment. See id.

                            VI.   Conclusion

¶ 39   The judgment and order are affirmed. The case is remanded

  for the trial court to determine and award the amount of reasonable

  attorney fees and costs Nibert incurred on appeal.

       JUDGE ROMÁN and JUDGE BOORAS concur.




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