     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
                                                            February 8, 2018

                                2018COA15

No. 16CA1521 & 17CA0066, Marso v. Homeowners Realty —
Agency — Respondeat Superior — Affirmative Defenses —
Setoff

     In this civil case, the division decides two issues of first

impression. First, the division holds that when a party’s liability is

based entirely on respondeat superior, a settlement with the agent

is setoff against the jury verdict entered against the principal. The

division also holds that statutory prejudgment interest accrues on

the jury verdict before the setoff.

     Accordingly, the division reverses the district court’s judgment

and remands the case with directions.
COLORADO COURT OF APPEALS                                        2018COA15


Court of Appeals Nos. 16CA1521 & 17CA0066
Mesa County District Court No. 11CV4626
Honorable Thomas M. Deister, Judge


Samuel A. Marso and Audrey S. Marso,

Plaintiffs-Appellants,

v.

Homeowners Realty, Inc., d/b/a Coldwell Banker Home Owners Realty, Inc.,

Defendant-Appellee.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                   Division VII
                           Opinion by JUDGE BERGER
                          Bernard and Freyre, JJ., concur

                           Announced February 8, 2018


Earl G. Rhodes, LLC, Earl G. Rhodes, Grand Junction, Colorado for Plaintiffs-
Appellants

Davlin & Davlin, LLC, Shawn M. Davlin, Durango, Colorado for Defendant-
Appellee Homeowners Realty, Inc.
¶1   This case requires us to decide whether a monetary settlement

 made with an agent must be set off against a jury verdict returned

 against the principal when the principal’s liability is entirely

 dependent on the doctrine of respondeat superior. And, if such a

 setoff is required, is the setoff made before or after statutory

 prejudgment interest accrues on the jury verdict?

¶2   We hold that Colorado law requires a setoff and that the setoff is

 made after statutory prejudgment interest accrues on the jury

 verdict. While the trial court correctly ruled that a setoff was

 required, it erroneously concluded that statutory interest did not

 accrue until after the setoff was made. Accordingly, we reverse the

 judgment and remand the case for further proceedings.

                 I.     Relevant Facts and Procedure

¶3   Elly Dilbeck, who was employed by or associated with

 Homeowners Realty, Inc., d/b/a/ Coldwell Banker Home Owners

 Realty, Inc. (Coldwell),1 acted as Sam and Audrey Marso’s agent in




 1The precise legal relationship between Dilbeck and Coldwell is not
 pertinent to our analysis because the parties do not contest that
 Coldwell is vicariously liable for any of the damages caused by
 Dilbeck.


                                    1
 their purchase of a house. At the time of purchase, the Marsos did

 not know that the builder used radioactive uranium mill tailings as

 fill material.

¶4   Two years after the purchase, the Marsos discovered that

 uranium tailings had been used, creating a potential health hazard.

 The Marsos filed a complaint against Dilbeck and Coldwell alleging

 negligence against Dilbeck and respondeat superior liability against

 Coldwell.2

¶5   Sometime before the scheduled trial date, the Marsos settled with

 Dilbeck for $150,000, inclusive of interest. In connection with the

 settlement, Dilbeck filed a written admission that her failure to

 disclose that uranium mill tailings may have been used in the

 Marsos’ house fell below the standard of care for a real estate agent.




 2The trial court initially granted summary judgment for Dilbeck
 and Coldwell on the basis that the Marsos had insufficiently
 supported their summary judgment response with evidence of
 damages. A division of this court reversed that summary judgment,
 holding that the Marsos’ testimony regarding diminution of value
 was sufficient to meet their summary judgment burden. Marso v.
 Dilbeck, (Colo. App. No. 13CA1784, Oct. 23, 2014) (not published
 pursuant to C.A.R. 35(f)).


                                   2
 The settlement expressly preserved all claims against Coldwell, and

 a jury trial was then held only between the Marsos and Coldwell.3

¶6   The jury was instructed to determine the total amount of

 damages sustained by the Marsos and was not informed of the

 amount of the settlement with Dilbeck. The jury returned a verdict

 of $120,000 against Coldwell.

¶7   In post-trial proceedings, the trial court set off the settlement

 payment of $150,000 against the $120,000 jury verdict, resulting in

 a zero recovery for the Marsos. The court rejected the Marsos’

 argument that statutory prejudgment interest accrues on the jury

 verdict before the setoff. Because the settlement payment exceeded

 the jury verdict, the court entered judgment in favor of Coldwell and

 later entered a cost award against the Marsos of approximately

 $30,000.




 3 The settlement agreement was structured to avoid the usual rule
 that a release of the agent discharges the principal. Arnold v. Colo.
 State Hosp., 910 P.2d 104, 107 (Colo. App. 1995). Neither party
 raises on appeal, and we do not address, the questions of whether
 or when a settlement with the agent causes the release of the
 principal or whether a settlement that contains an admission of
 liability by the agent always binds the principal.


                                     3
     II.   The Trial Court Did Not Abuse Its Discretion in Allowing
           Coldwell to Amend Its Answer and Assert the Affirmative
                              Defense of Setoff

¶8    Shortly after learning of the settlement between Dilbeck and the

 Marsos, Coldwell moved to amend its answer to assert the

 affirmative defense of setoff. See C.R.C.P. 8(b)-(c); Ochoa v. Vered,

 212 P.3d 963, 972 (Colo. App. 2009) (Setoff “must be pled as an

 affirmative defense or [it] is waived.”).4 The court granted the

 motion over the Marsos’ timeliness objection. The Marsos contend

 the court abused its discretion in allowing this late amendment.

¶9    “Under well-established law, leave to amend is a discretionary

 matter which is left to the trial court to determine.” Polk v. Denver

 Dist. Court, 849 P.2d 23, 25 (Colo. 1993). Thus, we review the

 court’s determination for an abuse of discretion. Id. “A court

 abuses its discretion when its ruling is (1) based on an erroneous


 4 Setoff (or offset) is not one of the examples of affirmative defenses
 referenced in C.R.C.P. 8(c) that must be pleaded in accordance with
 C.R.C.P. 8(b). We express no opinion whether the pleading of a
 setoff is required when a statute expressly requires a court to apply
 the setoff. As explained below, here the setoff arises under the
 common law, and in those circumstances, we have no reason to
 dispute the conclusion in Ochoa v. Vered, 212 P.3d 963, 972 (Colo.
 App. 2009), that generally a setoff must be pleaded as an
 affirmative defense.


                                     4
  understanding or application of the law; or (2) manifestly arbitrary,

  unreasonable, or unfair.” Francis v. Aspen Mountain Condo. Ass’n,

  Inc., 2017 COA 19, ¶ 25.

¶ 10 “Trial courts may permit amendments to pleadings at any stage

  of the litigation process so long as undue delay does not result and

  other parties are not prejudiced by such amendments.” Nelson v.

  Elway, 971 P.2d 245, 249 (Colo. App. 1998).

¶ 11 The Marsos do not contend that Coldwell’s amendment caused

  an undue delay, but they do claim prejudice resulting from its

  timing. Although Coldwell’s pleading of the affirmative defense of

  setoff ultimately reduced the final judgment entered in the Marsos’

  favor, for two reasons the amendment did not result in legal

  prejudice to the Marsos.

¶ 12 First, Coldwell did not obtain the settlement agreement until

  shortly before trial and so could not have properly raised the

  defense previously.5 Second, while the setoff obviously

  detrimentally affected the Marsos, they had no right to rely on the


  5The Colorado Rules of Civil Procedure prohibit the practice of
  pleading every conceivable affirmative defense without a factual
  basis for each affirmative defense. C.R.C.P. 12, cmt. 1.


                                    5
  absence of a setoff given the uncertainties in the substantive law

  regarding such setoffs. Nor have they explained how, if at all, the

  possibility of a setoff would have affected their litigation strategy or

  settlement posture.

¶ 13 Under these circumstances, we discern no abuse of the court’s

  discretion in allowing Coldwell to pursue its setoff defense.

III.   The Trial Court Correctly Set Off Dilbeck’s Settlement Payment
                         Against the Jury’s Verdict

¶ 14 The Marsos next argue that the trial court erred when it set off

  the settlement payment against the jury verdict. We reject this

  contention.

¶ 15 Two Colorado statutes arguably address when a trial court must

  set off “compensation paid to avoid the risk of being held liable in

  tort” from a jury verdict against any nonsettling defendants. Smith

  v. Zufelt, 880 P.2d 1178, 1183 (Colo. 1994).

¶ 16 The first of these statutes is the “percentage statute,” § 13-50.5-

  105, C.R.S. 2017. Zufelt, 880 P.2d at 1181. This statute

  implements, in part, the General Assembly’s 1986 abrogation (with

  exceptions) of the doctrine of joint and several liability among

  tortfeasors and replaces that regime with one of proportionate fault.



                                      6
  See id. The statute provides that when a release or covenant not to

  sue is given to one tortfeasor,

             [i]t does not discharge any of the other
             tortfeasors from liability for their several pro
             rata shares of liability for the injury, death,
             damage, or loss unless its terms so provide;
             but it reduces the aggregate claim against the
             others to the extent of any degree or percentage
             of fault or negligence attributable by the finder
             of fact . . . to the tortfeasor to whom the release
             or covenant is given.

  § 13-50.5-105(1)(a) (emphasis added).

¶ 17 But the percentage statute applies only when more than one

  person is responsible for the injuries suffered by the plaintiff. By its

  terms, it has no application when, as here, one party (Coldwell) is

  vicariously liable solely under the doctrine of respondeat superior

  and not because the party itself violated any legal duty.6 “A party

  whose liability is based on respondeat superior is not a joint

  tortfeasor . . . .” Ochoa, 212 P.3d at 971; see Arnold v. Colo. State

  Hosp., 910 P.2d 104, 107 (Colo. App. 1995). Thus, the percentage

  statute does not apply here.


  6The Marsos did not assert any claim of negligent hiring or
  supervision, proof of which would provide a separate basis for
  Coldwell’s liability. See Ferrer v. Okbamicael, 2017 CO 14M, ¶ 27.


                                      7
¶ 18 The second potentially applicable statute, the “amount statute,” §

  13-21-111.6, C.R.S. 2017, see Zufelt, 880 P.2d at 1181, also does

  not apply here. While the exact intent of the General Assembly in

  enacting this statute has confounded Colorado courts for years,

  compare Simon v. Coppola, 876 P.2d 10, 17-18 (Colo. App. 1993),

  with id. at 20-25 (Briggs, J., specially concurring), at a minimum, it

  preserves the common law collateral source rule, at least in some

  respects.

¶ 19 In Wal-Mart Stores, Inc. v. Crossgrove, the supreme court resolved

  some of this confusion and explained that the General Assembly

  enacted this statute to both reduce double recoveries resulting from

  applications of the collateral source rule and to prevent a defendant

  from benefitting from the plaintiff’s purchase of insurance or other

  indemnity. 2012 CO 31, ¶¶ 14-16. The statute provides, in

  pertinent part, as follows:

              In any action . . . to recover damages for a tort
              . . . the court, after the finder of fact has
              returned its verdict stating the amount of
              damages to be awarded, shall reduce the
              amount of the verdict by the amount by which
              such person . . . has been or will be wholly or
              partially indemnified or compensated for his
              loss by any other person, corporation,



                                      8
             insurance company, or fund in relation to the
             injury . . . .

  § 13-21-111.6. Although the plain language of this statute suggests

  that a settlement reached with a settling defendant must be set off

  against a jury verdict against the nonsettling defendant, the

  supreme court held otherwise in Zufelt, 880 P.2d at 1183-84.

¶ 20 There, the supreme court analyzed the amount statute in a

  context in which arguably either the amount statute or the

  percentage statute applied. Id. at 1182. The question was whether

  the amount statute or the percentage statute applied to

  compensation paid to avoid the risk of being held liable in tort. Id.

  Relying in part on Judge Briggs’ special concurrence in Simon, 876

  P.2d at 20-25, the supreme court concluded that:

             the amount statute does not mention
             payments made to avoid liability at trial. We
             are not persuaded, therefore, that the General
             Assembly intended that the amount statute
             apply not only to payments from a collateral
             source independent of any wrongdoing, but
             also to compensation paid to avoid the risk of
             being held liable in tort.

  Zufelt, 880 P.2d at 1183.

¶ 21 The context of the supreme court’s analysis of the amount

  statute is different than the context here because in Zufelt, if the


                                     9
  amount statute did not apply, the percentage statute certainly did.

  Id. at 1182. In contrast, here the only question is whether the

  amount statute applies, because the percentage statute cannot.

  However, as an intermediate appellate court, we are not “at liberty

  to disregard” a rule established by the supreme court “absent some

  clear indication” that the supreme court “has overruled it.” Silver v.

  Colo. Cas. Ins. Co., 219 P.3d 324, 330 (Colo. App. 2009). The

  supreme court held in Zufelt that the amount statute does not apply

  “to compensation paid to avoid the risk of being held liable in tort.”

  880 P.2d at 1183. We thus conclude that Coldwell is not entitled to

  a setoff under the amount statute.

¶ 22 Because neither the percentage statute nor the amount statute

  permits a setoff in this case, we must determine whether any other

  law authorizes the setoff of the settlement payment against the

  jury’s verdict.

¶ 23 In so doing, we first conclude that the General Assembly did not

  intend to preempt common law setoff rules, except to the extent

  addressed by the specific statutes. Were we to conclude that the

  General Assembly fully occupied that space, we could not look to

  the common law to determine if any common law rule authorizes a


                                    10
  setoff because “we acknowledge and respect the General Assembly’s

  authority to modify or abrogate common law.” Vigil v. Franklin, 103

  P.3d 322, 327 (Colo. 2004); see § 2-4-211, C.R.S. 2017.

¶ 24 But it is apparent to us that the General Assembly did not intend

  to encourage windfalls to plaintiffs. Precisely the opposite

  motivated the General Assembly, at least in enacting the percentage

  statute. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070,

  1077 (Colo. 1992).

¶ 25 The parties have not cited, and we have not found, any Colorado

  case law that addresses the amount statute, the percentage statute,

  or common law setoff rules when liability is premised exclusively on

  the doctrine of respondeat superior.7 We thus turn to the common

  law applicable when a nonsettling defendant is liable solely under

  the doctrine of respondeat superior and not because of any


  7 Both parties cite Ochoa, but neither party in Ochoa raised the
  amount statute, percentage statute, or common law setoff rule.
  Instead, the parties in Ochoa focused on the application of McCall v.
  Roper, 32 Colo. App. 352, 511 P.2d 541 (1973), section 13-50-103,
  C.R.S. 2017 (liability of remaining debtor statute), and the effect of
  the trial court’s denial of the defendant’s motion to amend his
  answer to plead the defense of setoff. Ochoa, 212 P.3d at 972.
  Except for the last question, which is addressed above, none of
  these considerations are relevant here.


                                    11
 wrongdoing by that defendant. The Restatement (Second) of Torts,

 § 885(3) (2017), contains a common law setoff rule that does not

 appear to differ depending on whether the liability of the principal

 results exclusively from the doctrine of respondeat superior. See

 Villarini-Garcia v. Hosp. del Maestro, 112 F.3d 5, 7-8 (1st Cir. 1997).

¶ 26 The Michigan Supreme Court decided a case remarkably similar

 to the present case: Kaiser v. Allen, 746 N.W.2d 92 (Mich. 2008).

 Like Colorado, Michigan has enacted statutes dealing with setoffs

 when the defendants are joint tortfeasors. Id. at 94. Rather than

 holding that because those statutes are inapplicable to the

 respondeat superior situation, no setoff is appropriate, the court

 looked to common law setoff rules and determined that a setoff was

 required. Id. Under the applicable common law rule, any payment

 “made in compensation of a claim for a harm” will reduce the

 liability of the remaining defendants, “whether or not the person

 making the payment is [the] liable [person].” Restatement (Second)

 of Torts § 885(3). Thus, the court held that the plaintiff’s jury




                                   12
  award against a vicariously liable party “must be reduced pro tanto8

  by [the] plaintiff’s settlement proceeds from” another party. Kaiser,

  746 N.W.2d at 97.

¶ 27 Similarly, in Villarini-Garcia, the First Circuit held that under

  Puerto Rico law, a jury award against one defendant must be set off

  against a settlement payment made by another defendant who was

  vicariously liable for the same injury. 112 F.3d at 7-8. Relying on

  the Puerto Rico Supreme Court’s “general hostility to double

  recovery,” the First Circuit applied the “modern rule” exemplified by

  the Restatement. Id.

¶ 28 We agree with the Michigan Supreme Court’s and First Circuit’s

  analyses and hold that, in the absence of a governing statute (or

  any indication that the legislature intended to entirely displace

  common law setoff rules), the common law setoff rules remain in

  force.

¶ 29 Reaching an opposite conclusion would require us to assume

  that the General Assembly intended to preclude windfall recoveries



  8 Black’s Law Dictionary 1417 (10th ed. 2014) defines pro tanto as
  “[t]o that extent; for so much; as far as it goes.”


                                     13
  in cases in which there are joint tortfeasors, but to permit such

  recoveries when the basis for liability is respondeat superior. Such

  a conclusion is contrary to every indication of legislative intent that

  we can glean. Importantly for present purposes, the statutes

  enacted by the General Assembly “limit the circumstances under

  which a plaintiff can receive double compensation for an injury.”

  Van Waters, 840 P.2d at 1075; see also Volunteers of Am. Colo.

  Branch v. Gardenswartz, 242 P.3d 1080, 1088-89 (Colo. 2010) (Rice

  J., dissenting).

¶ 30 In so holding, we do not disregard the Colorado public policy that

  favors the settlement of disputes. In his concurrence in Simon, 876

  P.2d at 24, Judge Briggs outlined two reasons that a setoff under

  the amount statute could discourage settlements.

¶ 31 The first of these reasons is that an injury victim would be less

  likely to settle because he or she

             would know that any benefit obtained from
             making what proves to have been a good
             settlement could be taken away and bestowed
             on the tortfeasors who refuse to settle, even to
             the extent that the injury victim could receive
             less than full compensation as determined at
             trial.




                                       14
  Id. But, in a case of vicarious liability, there is no risk that a

  settlement will result in the victim receiving “less than full

  compensation as determined at trial” because there is no

  apportionment of damages, see Ochoa, 212 P.3d at 971. Plaintiffs

  also realize the benefit of “good settlements” that are greater than

  the amount awarded by the jury.

¶ 32 Second, Judge Briggs noted that joint tortfeasors would be

  discouraged from settling:

             [T]ortfeasors would have an incentive not to
             settle, hoping that intransigence would be
             rewarded when another tortfeasor settled for
             an amount in excess of its true liability.

  Simon, 876 P.2d at 24 (quoting Kussman v. City & Cty. of Denver,

  706 P.2d 776, 781 n.5 (Colo. 1985)).

¶ 33 Although the setoff of settlements in cases of vicarious liability

  might, in particular circumstances, reduce the incentive to settle,

  just like any setoff of a settlement against a later jury verdict may

  reduce the incentive to settle, we think that the clear public policy

  of avoiding windfalls must take precedence in the common law

  realm, just as it does under the statutory scheme. See id.




                                     15
¶ 34 For these reasons, we conclude the court correctly set off the

  settlement payment against the jury’s verdict.

IV.     The Trial Court Erred When It Set Off the Settlement Payment
          Before the Statutory Interest Accrued on the Jury Verdict

¶ 35 The Marsos next contend the trial court erred when it set off the

  settlement payment before statutory prejudgment interest accrued

  on the jury verdict. We agree.

¶ 36 Whether statutory prejudgment interest accrues on the jury

  verdict before or after the setoff matters a lot, as this case

  illustrates. If, as the trial court ruled, interest does not accrue until

  after the setoff, Coldwell is the prevailing party for purposes of

  assessing costs. But, if interest accrues before the court makes the

  setoff, it is likely that the Marsos are the prevailing party.

¶ 37 Eight years passed between the tortious conduct by Dilbeck and

  the date the jury entered its verdict. By operation of law, a jury

  verdict in a case such as this accrues interest at the statutory rate.

  See § 5-12-102(4), C.R.S. 2017 (“Except as provided in section 5-

  12-106, creditors shall be allowed to receive interest on any

  judgment recovered before any court authorized to enter the same

  within this state from the date of entering said judgment until



                                     16
  satisfaction thereof . . . .”); see also § 5-12-106, C.R.S. 2017

  (establishing rate of interest in cases where “a judgment for money

  in a civil case is appealed by a judgment debtor”).

¶ 38 As the statutory language indicates, a court has no discretion to

  dispense with awarding this interest. Barrett v. Inv. Mgmt.

  Consultants, Ltd., 190 P.3d 800, 804 (Colo. App. 2008).

¶ 39 “The addition of prejudgment interest to a judgment for

  compensatory damages recognizes that the loss caused by the

  tortious conduct occurred at the time of the resulting injury but

  that the damages paid to compensate for that loss are not received

  by the injured party until later.” Seaward Constr. Co. v. Bradley,

  817 P.2d 971, 975 (Colo. 1991). Prejudgment interest compensates

  the plaintiff for the loss of earnings on that money due to its

  delayed payment and is therefore necessary to make the plaintiff

  whole. Id. Put another way, prejudgment interest is an integral

  component of a jury award of damages.

¶ 40 The present case illustrates the fundamental unfairness of

  setting off a settlement against a jury award before it accrues

  interest. The damages sustained by the Marsos were not limited to

  the amount of the jury verdict. By law, those damages included


                                     17
  statutory prejudgment interest. See § 5-12-102. Making the setoff

  before the interest accrues means that the interest component of a

  jury verdict, required by statute, is disregarded. Thus, we hold that

  in the circumstances presented here, the setoff must be made

  against the jury verdict after statutory prejudgment interest accrues

  on the jury verdict.

¶ 41 For two reasons we reject Coldwell’s and the trial court’s reliance

  on Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022, 1028-29 (Colo. 2011),

  for the proposition that interest accrues only after the setoff. First,

  as Ferrellgas explicitly states, the rule of decision in that case was

  based on the law of subrogation. Id. at 1028. The present case is

  not a subrogation case; no subrogation claim was asserted by any

  party.

¶ 42 Second, as we have explained above, the purposes of the

  common law setoff rule is to prevent double recoveries, not frustrate

  a claimant’s ability to obtain full compensation for injuries caused

  by the tortious conduct of another. Application of the setoff before

  interest accrues meets no legitimate objective of the setoff rule (nor

  any other valid interest). To the contrary, application of the setoff

  before interest accrues frustrates the public policy of permitting


                                     18
  injured parties to be made whole. See Kirk v. Denver Pub. Co., 818

  P.2d 262, 265 (Colo. 1991).

¶ 43 Similarly, cases addressing the timing of interest accrual when a

  statutory cap limits a claimant’s recovery, see Morris v. Goodwin,

  185 P.3d 777, 780 (Colo. 2008), have no application here. 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. Colo.

  Permanente Med. Grp., P.C. v. Evans, 926 P.2d 1218, 1229 (Colo.

  1996). Thus, statutory caps on damages address interests entirely

  different than those of a setoff rule. As explained above, when, as

  here, there is no statutory cap on recovery, the application of a

  setoff before statutory interest accrues on the jury verdict renders

  an unfair result not compelled by any Colorado statutes or common

  law principles.

¶ 44 Based on these principles, the court must set off the settlement

  payment amount against the sum of the jury verdict and the

  statutory interest that had accrued on the verdict at the time of the

  settlement payment. Put another way, the court must calculate the


                                     19
  interest that accrued on the jury’s verdict from the date of the

  Marsos’ injury to the date of Dilbeck’s settlement payment and add

  it to the jury verdict. This amount represents the total amount of

  the jury verdict. (When the Marsos received Dilbeck’s settlement

  payment, they were compensated (at least in part) for their injury.

  § 5-12-102(1)(b).)

¶ 45 If, after the setoff, the Marsos have not been fully compensated

  for their loss as determined by the jury (plus the sum of the

  statutory interest described above), the court must also calculate

  the interest that accrued on the unpaid amount from the date of the

  settlement payment to the date of the setoff which, in that event,

  constitutes the recoverable prejudgment interest.9

                          V.      Conclusion

¶ 46 The judgment is reversed and the case is remanded for further

  proceedings, as described in the immediately preceding paragraphs.




  9 Given the amount of the jury verdict, the amount of the
  settlement, the number of years of prejudgment interest, and the
  statutory rate of prejudgment interest, see section 5-12-102, C.R.S.
  2017, a judgment in favor of Coldwell on remand seems unlikely.
  Nevertheless, it is for the trial court to make these computations
  and enter an appropriate judgment.


                                    20
Because we have reversed the judgment in favor of Coldwell, we

also reverse the cost award in its favor.

     JUDGE BERNARD and JUDGE FREYRE concur.




                                  21
