     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 8, 2018
                                2018COA35

No. 17CA0292, White v. Estate of Soto-Lerma — Probate —
Limitations on Presentation of Claims — Nonclaim Statute —
Damages — Prejudgment Interest — Attorney Fees — Offer of
Settlement — Costs

     In this proceeding, a division of the court of appeals considers

whether Colorado’s nonclaim statute, section 15-12-803(3)(b),

C.R.S. 2017, prevents a plaintiff from recovering prejudgment

interest and costs above the limit of a liability insurance policy,

when the action was filed after expiration of the statutory period for

presentation of claims. The division also evaluates whether the

policy limit caps the plaintiff’s recovery even where a jury awards

damages in excess of a statutory offer of settlement.

     Because prejudgment interest is a form of compensatory

damages, the division concludes that an award of such damages

beyond the insurance policy limit is barred. And because section
15-12-803 bars “all [untimely] claims” against an estate, with the

exception of claims “[t]o the limits of the insurance protection only,”

§ 15-12-803(3)(b), the division concludes that any untimely filed

claim and resulting judgment in excess of policy limits is also

barred.

     The division finally concludes that the nonclaim statute

precludes an award of costs to be entered based on a jury award in

excess of a statutory settlement offer for policy limits under section

13-17-202(1)(a)(I), C.R.S. 2017.
COLORADO COURT OF APPEALS                                         2018COA35


Court of Appeals No. 17CA0292
Arapahoe County District Court No. 15CV32971
Honorable Phillip L. Douglass, Judge


Fannie S. White,

Plaintiff-Appellee and Cross-Appellant,

v.

Estate of Julian Soto-Lerma, deceased,

Defendant-Appellant and Cross-Appellee.


                     JUDGMENT REVERSED AND CASE
                      REMANDED WITH DIRECTIONS

                                  Division III
                          Opinion by JUDGE TERRY
                       Loeb, C.J., and Webb, J., concur

                          Announced March 8, 2018


Bosen Law, LLC, Stephen A. Justino, Denver, Colorado; Ronald R. Way, P.C.,
Ronald R. Way, Englewood, Colorado; Wilcox Law Firm, LLC, Ronald L. Wilcox,
Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Senter Goldfarb & Rice, LLC, Arthur J. Kutzer, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee

Ogborn Mihm, LLP, Thomas D. Neville, Denver, Colorado; The Gold Law Firm,
LLC, Michael J. Rosenberg, Greenwood Village, Colorado, for Amicus Curiae
Colorado Trial Lawyers Association
¶1    In a suit against a decedent’s estate, does the nonclaim

 statute, section 15-12-803(3)(b), C.R.S. 2017, allow a plaintiff to

 recover a judgment for prejudgment interest and costs above the

 limit of a liability insurance policy, even though the action was filed

 after expiration of the statutory period for presentation of claims?

 Under the circumstances of this case, we conclude that the answer

 to this question is “no.” And under these facts, we also conclude

 that the policy limit caps the plaintiff’s recovery even where a jury

 awards damages in excess of a statutory offer of settlement.

¶2    Defendant, the Estate of Julian Soto-Lerma, appeals and

 plaintiff, Fannie S. White, cross-appeals the trial court’s judgment

 awarding plaintiff damages in a negligence action. We reverse the

 judgment and remand for the trial court to reduce the amount of

 damages awarded to conform to the applicable policy limits, and to

 eliminate the award of costs.

                             I. Background

¶3    Plaintiff’s claim arose from a car accident that occurred about

 a year before decedent died from unrelated causes. More than two

 years after decedent’s death, plaintiff filed suit, asserting that

 decedent had been negligent. Decedent’s estate consisted solely of


                                     1
 his automobile insurance policy, which had a policy limit of

 $50,000 per person injured in an automobile accident.

¶4    Defendant rejected plaintiff’s pretrial statutory offer of

 settlement for the insurance policy limit of $50,000. The case

 proceeded to trial, and the jury returned a verdict in plaintiff’s

 favor, awarding $100,000 in damages. The court reduced the jury’s

 award of damages to $50,000, consistent with plaintiff’s

 representation at trial that she was only seeking damages in the

 amount of the insurance policy limit. Nevertheless, the court

 ultimately entered judgment for $79,218, which included $50,000

 in damages, $11,600 in costs, and $17,618 in prejudgment interest.

¶5    Defendant appeals the award of prejudgment interest and

 costs under section 15-12-803(3). Plaintiff cross-appeals, arguing

 that the trial court should have entered judgment in the entire

 amount of the jury’s verdict.

                         II. Standard of Review

¶6    We review statutory provisions de novo. Shelby Res., LLC v.

 Wells Fargo Bank, 160 P.3d 387, 389 (Colo. App. 2007). In

 interpreting a statute, our primary goals are to discern and give

 effect to the General Assembly’s intent. Krol v. CF & I Steel, 2013


                                    2
 COA 32, ¶ 15. We look first to the statutory language, giving the

 words and phrases used therein their plain and ordinary meanings.

 Id. We read the language in the dual contexts of the statute as a

 whole and the comprehensive statutory scheme, giving consistent,

 harmonious, and sensible effect to all of the statute’s language. Id.

 After doing this, if we determine that the statute is not ambiguous,

 we enforce it as written and do not resort to other rules of statutory

 construction. Id.

                   III. Award of Prejudgment Interest

¶7    Defendant first contends that the trial court erred in awarding

 plaintiff prejudgment interest on the $50,000 damages award. We

 agree.

¶8    Defendant relies on section 15-12-803(1)(a), which bars “[a]ll

 claims against a decedent’s estate that arose before the death of the

 decedent” and were not presented within a specified timeframe. It

 is undisputed that plaintiff’s claim was not presented within the

 statutory timeframe. Subsection (3)(b) provides that nothing in

 section 15-12-803 “affects or prevents[,] . . . [t]o the limits of the

 insurance protection only, any proceeding to establish liability of

 the decedent or the personal representative for which he is


                                     3
  protected by liability insurance.” Therefore, the statute bars

  untimely liability claims against a decedent’s estate that exceed the

  limits of a relevant insurance policy.

¶9     That statute conflicts with section 13-21-101(1), C.R.S. 2017,

  which provides that when a plaintiff requests prejudgment interest,

  “it is the duty of the court in entering judgment for the plaintiff” to

  add a properly calculated amount of prejudgment interest to the

  amount of damages. To resolve this conflict, we must consider

  whether prejudgment interest is part of the underlying liability

  claim against a decedent’s estate, and is therefore subject to

  insurance policy limits and section 15-12-803(3)(b)’s bar on claims

  above policy limits.

¶ 10   We conclude that section 15-12-803 acts as a bar against an

  award of prejudgment interest above defendant’s $50,000 insurance

  policy limit. The supreme court has held that because such

  interest is “awarded to compensate the plaintiff for the time value of

  the award eventually obtained against the tortfeasor,” Allstate Ins.

  Co. v. Starke, 797 P.2d 14, 19 (Colo. 1990), “[p]rejudgment interest

  in a personal injury case is an element of compensatory

  damages . . . subject to relevant coverage limits in the defendant’s


                                     4
  insurance policy.” Old Republic Ins. Co. v. Ross, 180 P.3d 427, 437

  (Colo. 2008); cf. Marso v. Homeowners Realty, Inc., 2018 COA 15,

  ¶ 43 (“A statutory cap reflects a legislative policy that, despite the

  fact that a claimant suffers a particular amount of damages, other

  public policies justify the existence of a cap such that the injured

  party will not recover the full amount of the suffered damages.”).

¶ 11   In Starke, 797 P.2d at 17, the insurance policy’s “additional

  payments” clause provided that the insurer would pay “all interest

  on any judgment entered in such suit until [insurer] has paid,

  tendered or deposited in court that part of the judgment which does

  not exceed the limit of [insurer’s] liability thereon.” The supreme

  court concluded that the additional payments clause did not require

  the insurer to pay prejudgment interest beyond the policy limit.

  The court explained that for the insurer to pay “all interest on any

  judgment entered,” there had to first be a judgment, and “[i]nterest

  accruing before entry of judgment is not interest on a judgment.”

  Id. at 16, 18.

¶ 12   The “additional payments” section of defendant’s policy

  provides that the insurer will pay “interest accruing on a judgment

  entered against you,” indicating that the insurer will only pay —


                                     5
  beyond the policy limit — postjudgment interest accruing on a

  judgment that has already been entered. See id.

¶ 13   Accordingly, we conclude that the award of prejudgment

  interest sought by plaintiff was a form of compensatory damages

  subject to the $50,000 insurance policy limit. See Old Republic,

  180 P.3d at 437. Because plaintiff could not recover prejudgment

  interest beyond the policy limit, the trial court’s award of

  $17,617.81 in prejudgment interest was prohibited by section

  15-12-803(3)(b).

             IV. Entry of Judgment Exceeding Policy Limits

¶ 14   Plaintiff cross-appeals the trial court’s judgment, arguing that

  the court should have entered judgment for the entire $100,000 in

  damages awarded by the jury, plus corresponding costs and

  prejudgment interest. Plaintiff argues that, regardless of whether

  she could collect the judgment from defendant’s insurance company

  under section 15-12-803, judgment in excess of policy limits was

  still proper in order to leave open the possibility that plaintiff could

  be assigned the right to bring a bad faith claim against defendant’s

  insurer. We disagree.




                                      6
¶ 15   Section 15-12-803(1)(a) bars “[a]ll claims” against a decedent’s

  estate that arose before the decedent’s death and were not

  presented within a specified timeframe. Section 15-12-803(3)(b)

  exempts from the statutory time bar liability claims covered by

  insurance “[t]o the limits of the insurance protection only.” We

  conclude that the application of section 15-12-803 to the issue of

  an excess judgment is straightforward. Any liability claim, and

  therefore any resulting judgment, in excess of policy limits is

  barred.

¶ 16   We acknowledge that in Nunn v. Mid-Century Insurance Co.,

  244 P.3d 116, 121-22 (Colo. 2010), the supreme court adopted “the

  judgment rule,” recognizing a judgment exceeding policy limits as

  sufficient proof of damages in an insurer bad faith suit, even when

  an insured has no assets. The court reasoned that “an insured’s

  ability to pay a judgment should not determine whether the insurer

  can be held liable for its bad faith conduct toward its insured.”

  Thus, by holding that section 15-12-803 is a statutory bar against

  excess judgments above policy limits, we may be precluding bad

  faith claims against insurers when an insurance policy is the only

  asset of a decedent’s estate. But because the statutory language in


                                    7
  section 15-12-803 barring untimely liability claims in excess of

  insurance policy limits is clear and unambiguous, we must enforce

  the statute as written. See Krol, ¶ 15.

¶ 17   Accordingly, we conclude that the trial court did not err when

  it entered judgment for compensatory damages equal to the

  $50,000 policy limit, despite the jury’s award of $100,000.

                  V. Statutory Award of Plaintiff’s Costs

¶ 18   Defendant also contends that the trial court erred when it

  included plaintiff’s costs of $11,600.41 in the final judgment.

  Defendant argues that such an award of costs ignores the bar on

  claims in excess of insurance policy limits established by section

  15-12-803(3)(b). We agree.

¶ 19   In support of including costs in the final judgment, plaintiff

  cites section 13-17-202(1)(a)(I), C.R.S. 2017, which was enacted

  with the “intent of encouraging settlement of cases in order to both

  reduce the costs of litigation and expedite relief to victims.” Centric-

  Jones Co. v. Hufnagel, 848 P.2d 942, 956 (Colo. 1993). Section

  13-17-202(1)(a)(I) provides that a “plaintiff shall be awarded actual

  costs accruing after the offer of settlement,” if the plaintiff “serves

  an offer of settlement in writing at any time more than fourteen


                                      8
  days before the commencement of the trial that is rejected by the

  defendant, and the plaintiff recovers a final judgment in excess of

  the amount offered.” (Emphasis added.)

¶ 20   Plaintiff made a statutory settlement offer of $50,000 in

  accordance with section 13-17-202(1)(a)(I), and the offer was not

  accepted by defendant. The jury then awarded plaintiff $100,000 in

  damages, which was in excess of the settlement offer.

¶ 21   But section 13-17-202(1)(a)(I) specifies that a plaintiff shall be

  awarded costs only if the “final judgment” exceeds the settlement

  offer. Section 13-17-202 does not define “final judgment.” Novak v.

  Craven, 195 P.3d 1115, 1121 (Colo. App. 2008). The term “final

  judgment” “has acquired a particular meaning under our case law

  and court rules. Under our case law, a ‘final judgment’ is one

  which ‘disposes of the entire litigation on the merits.’” Id. (quoting

  Hierath-Prout v. Bradley, 982 P.2d 329, 330 (Colo. App. 1999)).

¶ 22   The jury’s $100,000 award was not a final judgment ending

  the litigation on its merits because, as we discussed in Parts III and

  IV above, section 15-12-803(3)(b)’s limit on claims in excess of the

  insurance policy barred the court from entering a final judgment

  greater than the $50,000 policy limit, even including prejudgment


                                     9
  interest. Therefore, given that the final judgment did not and could

  not exceed the $50,000 policy limit — which was also the amount of

  the settlement offer — plaintiff was not entitled to costs under

  section 13-17-202, and the trial court erred when it entered a

  judgment for costs above the $50,000 policy limit. Because on

  appeal plaintiff argued for costs only under section 13-17-202, we

  express no opinion on how the limitation in section 15-12-803(3)(b)

  would affect costs recoverable under any other statute or court rule.

                             VI. Conclusion

¶ 23   We reverse the judgment and remand to the trial court to enter

  judgment for plaintiff in the amount of $50,000.

       CHIEF JUDGE LOEB and JUDGE WEBB concur.




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