COLORADO COURT OF APPEALS                                     2017COA28


Court of Appeals No. 15CA1372
Arapahoe County District Court No. 13CV72
Honorable Kurt A. Horton, Judge


Naomi Pressey, by and through her conservator, Jennifer Pressey,

Plaintiff-Appellee,

v.

Children’s Hospital Colorado,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division I
                         Opinion by JUDGE GRAHAM
                       Taubman and Navarro, JJ., concur

                          Announced March 9, 2017


Leventhal Puga P.C., James E. Puga, Benjamin I. Sachs, David P. Mason,
Denver, Colorado, for Plaintiff-Appellee

Hall & Evans LLC, Alan Epstein, Denver, Colorado; Martin Conklin P.C., John
Martin, Carolyn Sprinthall Knaut, Denver, Colorado, for Defendant-Appellant
¶1    In this medical malpractice action, we are asked to answer two

 novel questions of law. First, in a post-verdict proceeding to exceed

 the $1,000,000 cap on damages under the Health Care Availability

 Act (HCAA), sections 13-64-101 to -503, C.R.S. 2016, can the trial

 court consider collateral sources that fall under the contract

 exception to the collateral source statute, section 13-21-111.6,

 C.R.S. 2016? And second, can a parent relinquish his or her right

 to pre-majority medical expenses incurred on behalf of a minor after

 the statute of limitations has extinguished the parent’s claim so

 that the minor may recover those expenses? For the reasons

 discussed below, we conclude trial courts may not consider benefits

 included in the contract exception to the collateral source statute in

 determining whether to exceed the HCAA cap on damages. We

 further conclude that a minor cannot recover for pre-majority

 expenses incurred on his or her behalf by a parent after the statute

 of limitations extinguishes that claim. We therefore affirm in part,

 reverse in part, and remand with directions.

                           I.   Background

¶2    Four days after birth, plaintiff, Naomi Pressey (Naomi),

 suffered irreversible brain damage caused by a lack of blood and


                                   1
 oxygen to her brain after experiencing cardiopulmonary arrest.

 Naomi, by and through her conservator, Jennifer Pressey, sued

 defendant, Children’s Hospital Colorado (the Hospital), for the

 negligence of its nurses in administering medication to her prior to

 cardiopulmonary arrest.

¶3    The case was tried to a jury, which found the Hospital

 negligent and awarded Naomi $17,839,784.60. The damages award

 included past medical expenses, past noneconomic losses, future

 medical expenses, future lost earnings, and future noneconomic

 losses.

¶4    After trial, the court reduced Naomi’s damages to $1,000,000

 based on the legislative directive in section 13-64-302(1)(b), C.R.S.

 2016. That section reads in pertinent part:

           The total amount recoverable for all damages
           for a course of care for all defendants in any
           civil action for damages in tort brought against
           a health care professional . . . whether past
           damages, future damages, or a combination of
           both, shall not exceed one million dollars,
           present value per patient, including any claim
           for derivative noneconomic loss or injury, of
           which no more than two hundred fifty
           thousand dollars, present value per patient . . .
           shall be attributable to direct or derivative
           noneconomic loss or injury; except that, if,
           upon good cause shown, the court determines


                                   2
           that the present value of past and future
           economic damages would exceed such
           limitation and that the application of such
           limitation would be unfair, the court may
           award in excess of the limitation the present
           value of additional past and future economic
           damages only.

¶5    Naomi filed a motion to exceed the cap for good cause. In a

 lengthy written opinion, the court determined that good cause had

 been shown and, after reducing the amount of noneconomic losses

 and future medical expenses awarded to Naomi, entered judgment

 in her favor for $14,341,538.60.

                           II.   Discussion

¶6    The Hospital claims several post-verdict errors by the trial

 court. First, the Hospital argues that the court erred in excluding

 evidence of Medicaid benefits and private insurance available to

 Naomi in the post-verdict proceeding to exceed the damages cap.

 The Hospital contends that if the court had considered that

 evidence, Naomi would not have established good cause to exceed

 the cap. Second, the Hospital asserts the court erred in denying its

 motion for judgment notwithstanding the verdict on Naomi’s pre-

 majority medical expenses because her parents incurred the




                                    3
 liability to pay those expenses and the statute of limitations on her

 parents’ claims expired prior to the filing of this suit.

     A.     The HCAA Damages Cap and the Collateral Source Statute

¶7        The Hospital argues that the legislative purpose of the HCAA

 damages cap cannot be fulfilled if a trial court is precluded from

 considering the actual losses of a plaintiff based on the contract

 exception to the collateral source statute. Because the cap imposed

 by section 13-64-302 can be harmonized with the collateral source

 exception contained in section 13-21-111.6, we reject this

 argument. Sound public policy supports both the cap and the

 contract exception to the collateral source statute.

                          1.   Standard of Review

¶8        We review questions of statutory interpretation de novo. Pulte

 Home Corp. v. Countryside Cmty. Ass’n, 2016 CO 64, ¶ 24. “In

 interpreting a statute, we look to ‘the entire statutory scheme to

 give consistent, harmonious, and sensible effect to all parts’ and

 apply ‘words and phrases according to their plain and ordinary

 meaning.’” Id. (quoting Denver Post Corp. v. Ritter, 255 P.3d 1083,

 1089 (Colo. 2011)).




                                      4
             2.   The HCAA Damages Cap and Good Cause

¶9     The General Assembly enacted the HCAA “to assure the

  continued availability of adequate health care services to the people

  of this state.” § 13-64-102(1), C.R.S. 2016. To that end, the

  General Assembly “clearly and unequivocally” reaffirmed “the

  limitations of liability set forth in section 13-64-302.” § 13-64-

  102(2)(a). “[T]he clear purpose of the damages cap is to limit

  damages.” Wallbank v. Rothenberg, 140 P.3d 177, 181 (Colo. App.

  2006).

¶ 10   The damages cap contained in the HCAA is constitutional and

  does not usurp a trial court’s right to review a jury award. Garhart

  v. Columbia/HealthOne, L.L.C., 95 P.3d 571, 581-83 (Colo. 2004).

  This is because a trial court may uncap damages if it finds “good

  cause” and determines that application of the cap would be

  “unfair.” § 13-64-302(1)(b). “In making findings as to ‘good cause’

  and ‘unfairness’ (which essentially are different ways of saying the

  same thing), trial courts must consider the ‘totality of

  circumstances.’” Vitetta v. Corrigan, 240 P.3d 322, 329 (Colo. App.

  2009).




                                     5
                 [T]he statute does not specify factors that a
                 trial court must consider when determining
                 whether a movant has shown good cause or
                 unfairness. Therefore, a court may exercise its
                 discretion to consider factors it deems relevant
                 when determining whether a movant qualifies
                 for the . . . exception to the cap. The trial
                 court may not make that determination in a
                 vacuum, but must necessarily consider the
                 circumstances in each case.

  Wallbank, 140 P.3d at 180-81.

       3.     Common Law and Post-Verdict Statutory Collateral Source
                      Rule; Medicaid Is a Collateral Source

¶ 11        “At common law, the collateral source rule provided that

  ‘compensation or indemnity received by an injured party from a

  collateral source, wholly independent of the wrongdoer and to which

  he has not contributed, will not diminish the damages otherwise

  recoverable from the wrongdoer.’” Colo. Permanente Med. Grp., P.C.

  v. Evans, 926 P.2d 1218, 1230 (Colo. 1996) (quoting Kistler v.

  Halsey, 173 Colo. 540, 545, 481 P.2d 722, 724 (1971)). “The

  purpose of the collateral source rule was to prevent the defendant

  from receiving credit for such compensation and thereby reduce the

  amount payable as damages to the injured party.” Van Waters &

  Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992).




                                        6
¶ 12   Section 13-21-111.6 abrogates the common law collateral

  source rule except as to benefits received as the result of a contract.

  Id. In part, section 13-21-111.6 states as follows:

            In any action by any person or his legal
            representative to recover damages for a tort
            resulting in death or injury to person or
            property, 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,
            insurance company, or fund in relation to the
            injury, damage, or death sustained; except that
            the verdict shall not be reduced by the amount
            by which such person . . . has been or will be
            wholly or partially indemnified or compensated
            by a benefit paid as a result of a contract
            entered into and paid for by or on behalf of such
            person.

  (Emphasis added.) The italicized portion of the statute is commonly

  referred to as the contract exception to the collateral source statute.

  Evans, 926 P.2d at 1230. By including the contract exception, the

  General Assembly “chose to allow a plaintiff to obtain the benefit of

  his contract, even if the award resulted in a double recovery.”

  Volunteers of Am. Colo. Branch v. Gardenswartz, 242 P.3d 1080,

  1088 (Colo. 2010). “This is consistent with the common law



                                     7
  position that it is more repugnant to shift the benefits of the

  plaintiff’s insurance contract to the tortfeasor in the form of reduced

  liability when the tortfeasor paid nothing toward the . . . benefits.”

  Id.

¶ 13    Private insurance, private disability benefits, Social Security

  disability benefits, and retirement benefits all fall within the

  contract exception to the collateral source statute. Id. (holding

  write-offs to his medical bills by plaintiff’s health care provider

  “were a direct result of the benefits negotiated by his health

  insurance company, which is a source independent of the

  tortfeasor”); Barnett v. Am. Family Mut. Ins. Co., 843 P.2d 1302,

  1309 (Colo. 1993) (concluding Social Security disability benefits

  should not be set off from an award under section 13-21-111.6

  because they result from a contract entered into and paid for by or

  on behalf of the injured party); Keelan, 840 P.2d at 1078 (holding

  the contract exception to the collateral source statute “is broad

  enough to protect benefits that result from an employment contract

  for which a person gives consideration in the form of services” and

  thereby excluding disability benefits from the collateral source

  statute); Dep’t of Human Servs. v. State Pers. Bd., 2016 COA 37,


                                      8
  ¶ 42 (stating Public Employees’ Retirement Association benefits

  “constitute a collateral source not required to be offset from a

  damage award”). In pre-verdict proceedings, Medicaid benefits “fall

  squarely within the definition of a collateral source.” Smith v.

  Kinningham, 2013 COA 103, ¶ 15.

¶ 14   We now conclude that Medicaid benefits are also subject to the

  contract exception to the collateral source statute in post-verdict

  proceedings. See id. at ¶ 12 (leaving open whether Medicaid

  benefits are collateral sources under section 13-21-111.6). “A

  collateral source is a person or company, wholly independent of an

  alleged tortfeasor, that compensates an injured party for that

  person’s injuries.” Id. at ¶ 13 (quoting Smith v. Jeppsen, 2012 CO

  32, ¶ 21). In this case, Medicaid benefits are paid on behalf of

  Naomi, and she was required to enter into a written Medicaid

  application agreement to repay the state for any Medicaid benefits

  she receives for which she would not qualify under the federal

  guidelines. Under section 13-21-111.6, these benefits are

  dependent upon “a contract entered into . . . by or on behalf of”

  Naomi for which she remains financially responsible. We therefore

  consider Medicaid benefits to be an exception to the collateral


                                     9
  source statute that ought not inure to the benefit of the tortfeasor.

  Gardenswartz, 242 P.3d at 1088.

¶ 15   The Hospital relies upon City of Englewood v. Bryant, 100

  Colo. 552, 68 P.2d 913 (1937), and Gomez v. Black, 32 Colo. App.

  332, 511 P.2d 531 (1973),1 for the proposition that Medicaid is a

  gratuitous government benefit, not a collateral source. We note

  that Bryant predates the adoption of Medicaid. Further, the case

  summarily states that the plaintiff was “on relief” and so her

  liability was “so remote as to be purely speculative,” Bryant, 100

  Colo. at 554, 68 P.2d at 915. And we decline to follow the division

  in Gomez, which relied on Bryant. See Harper Hofer & Assocs., LLC

  v. Nw. Direct Mktg., Inc., 2014 COA 153, ¶ 25 (one division of the

  court of appeals is not bound by the decision of another division).

¶ 16   The clear trend in the law is to apply the common law

  collateral source rule (or, in our case, the contract exception to the



  1 Subsequent history for Gomez v. Black, 32 Colo. App. 332, 511
  P.2d 531 (1973), shows that it has been superseded by statute, Ch.
  164, sec. 1, § 10-1-135(10)(a), 2010 Colo. Sess. Laws 579-80, as
  recognized by Smith v. Kinningham, 2013 COA 103. However,
  because Kinningham only addressed section 10-1-135, not section
  13-21-111.6, we address the Hospital’s contention that Gomez is
  still good law.

                                    10
  collateral source statute, which in essence preserves the common

  law collateral source rule as to contracts in Colorado) to Medicaid

  benefits. See, e.g., Kenney v. Liston, 760 S.E.2d 434, 442-44 (W.

  Va. 2014) (discussing examples, which “are legion,” of collateral

  sources inadmissible to reduce a defendant’s liability and collecting

  cases); see also Restatement (Second) of Torts § 920A cmt. c (Am.

  Law Inst. 1979) (stating “[s]ocial legislation benefits” are collateral

  sources).

       4.   The Contract Exception to the Collateral Source Statute
             Applies to Post-Verdict Proceedings Under the HCAA

¶ 17    Having determined that Medicaid benefits fall under the

  contract exception under the collateral source statute, we are next

  asked to determine whether the HCAA damages cap and the

  collateral source statute are in conflict. The Hospital contends that

  the contract exception prevents the HCAA from accomplishing its

  purpose of limiting damages in medical malpractice actions.

  Therefore, the Hospital argues that the court should have ignored

  the contract exception and instead considered the availability of

  Medicaid and private insurance, which will be ongoing, in




                                     11
  determining whether Naomi established good cause to uncap the

  HCAA.

¶ 18   We perceive no conflict between the HCAA provision that caps

  damages and the contract exception to the collateral source

  statute.2 First, the contract exception applies to “any action . . . to

  recover damages for a tort . . . to [a] person,” § 13-21-111.6, and

  does not exclude medical malpractice actions. Second, the HCAA is

  silent on the application of the contract exception. Third, there is

  nothing on the face of either that makes them inconsistent. And

  fourth, our review of the case law has revealed no case in which the

  contract exception to the collateral source statute was found

  inapplicable to a post-verdict proceeding.

¶ 19   We reject the Hospital’s argument that if the contract

  exception allows awards to exceed the cap, the HCAA would be

  rendered meaningless in cases with significant verdicts. The

  purpose of the contract exception is to prevent a tortfeasor from

  enjoying a benefit based on the plaintiff’s foresight to purchase



  2 The Hospital does not dispute that private insurance satisfies the
  contract exception to the collateral source statute but contends that
  the HCAA is inconsistent with that exception.

                                     12
  insurance or other services. Wal-Mart Stores, Inc. v. Crossgrove,

  2012 CO 31, ¶ 10 (citing Gardenswartz, 242 P.3d at 1083). This

  policy applies with equal force to medical malpractice claims.

  Indeed, had the General Assembly intended otherwise, it could

  easily have stated so. To be sure, the HCAA does state that medical

  care institutions and licensed medical care professionals are

  entitled to reduced liability for the benefit of the citizens of

  Colorado. §§ 13-64-102(1), -302. However, they are not entitled to

  reduced liability based on a contract procured by or on behalf of the

  injured party. § 13-21-111.6.

¶ 20   The Hospital’s position is also untenable because it seeks to

  shift the cost of its negligence onto the taxpayer. The common law

  collateral source rule sought to prevent a tortfeasor from shifting

  costs to third-party payers. The Hospital now argues that private

  insurance and Medicaid should pay for the injuries Naomi

  sustained because of its negligence. Even under the HCAA’s

  purpose to cap damages to reduce liability, it is not the clear intent

  of the General Assembly to lay that liability at the feet of the citizens

  of Colorado.




                                      13
¶ 21   Lastly, the Hospital argues that because Naomi presented

  evidence of the uninsured, billed prices for her future medical

  needs, the jury contemplated inflated rates in reaching its verdict.

  Thus, the Hospital contends, allowing the trial court in a post-

  verdict proceeding to consider the actual insured costs for medical

  needs presents the most accurate award of damages and prevents a

  windfall to Naomi. But “[t]o the extent that either party receive[s] a

  windfall, it [is] considered more just that the benefit be realized by

  the plaintiff in the form of double recovery rather than by the

  tortfeasor in the form of reduced liability.” Keelan, 840 P.2d at

  1074. In this case any double recovery is doubtful, given the rights

  of subrogation and reimbursement. And because ample record

  evidence supported Naomi’s uninsured billed costs, the trial court

  did not err in considering those expenses when determining

  whether to exceed the HCAA cap. See generally 1 Dan B. Dobbs,

  Dobbs Law of Remedies §§ 3.1-3.3 (2d ed. 1993) (discussing the

  principles of damages).

¶ 22   In sum, we conclude that the contract exception to the

  collateral source statute, § 13-21-111.6, is applicable in post-

  verdict proceedings to reduce damages in medical malpractice


                                     14
  actions under the HCAA, § 13-64-302(1)(b). Medicaid benefits are

  paid on behalf of the injured party and are, therefore, collateral

  sources subject to the contract exception under section 13-21-

  111.6. Accordingly, the trial court was correct not to consider

  Medicaid payments (and private insurance) in determining whether

  to exceed the HCAA’s $1,000,000 limitation on damages.

                 B.    Pre-Majority Economic Damages

¶ 23   The Hospital further argues that the trial court erred in

  denying its motion for judgment notwithstanding the verdict

  because Naomi failed to establish that she, rather than her parents,

  was entitled to her pre-majority economic damages. The Hospital

  contends that Colorado follows the common law in holding that

  parents own the legal right to seek reimbursement for a minor’s

  pre-majority economic damages, and that Naomi’s parents failed to

  institute such a claim within the applicable statute of limitations.

¶ 24   The Hospital also asserts that Naomi failed to present any

  evidence that she will be personally responsible for those expenses

  or that she was the real party in interest to those claims. Because

  we conclude that (1) Colorado continues to follow the common law

  rule that parents own the right to pre-majority damages to a minor;


                                    15
  (2) no valid relinquishment of that right occurred here; and (3) the

  statute of limitations expired on those claims, we reverse that

  portion of the judgment awarding pre-majority economic damages

  to Naomi.

                        1.   Standard of Review

¶ 25   We review de novo the denial of a motion for judgment

  notwithstanding the verdict. Vaccaro v. Am. Family Ins. Grp., 2012

  COA 9M, ¶ 40. We also review de novo questions of law. In re

  Marriage of Johnson, 2016 CO 67, ¶ 9.

               2.   Colorado and the Common Law Rule

¶ 26   Under the general common law rule, only a parent may

  recover for a minor child’s pre-majority medical expenses. Wilson v.

  Knight, 982 P.2d 400, 405 (Kan. Ct. App. 1999). Colorado appears

  to follow the common law rule that the parents have the right to

  seek pre-majority damages and expenses of a minor, subject to

  certain exceptions. Pawnee Farmers’ Elevator Co. v. Powell, 76

  Colo. 1, 7, 227 P. 836, 839 (1924); see CJI-Civ. 4th 6:3 (2014).3




  3 While “pattern jury instructions are not law, not authoritative, and
  not binding on this court,” People v. Hoskins, 2016 CO 63, ¶ 20
  (quoting Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009)), we still

                                    16
  The minor may recover for pre-majority expenses where the minor

  has been emancipated. Powell, 76 Colo. at 7, 227 P. at 839. The

  minor may also recover pre-majority expenses where the minor

  actually incurs those expenses. Wales v. Howard, 164 Colo. 167,

  172, 433 P.2d 493, 496 (1967). Thus, in Colorado, an injury to a

  minor creates separate causes of action: (1) the parents generally

  may recover for the child’s damages suffered and expenses of the

  child during minority; (2) the minor may recover expenses the

  minor actually incurs during minority and for pain and suffering

  and post-majority impairment of future earning capacity; and (3) an

  emancipated minor has the right to sue for all damages and

  expenses. Kinsella v. Farmers Ins. Exch., 826 P.2d 433, 435 (Colo.

  App. 1992); accord Elgin v. Bartlett, 994 P.2d 411, 416 (Colo. 1999).

¶ 27   A parent may relinquish his or her right to pre-majority

  expenses, Powell, 76 Colo. at 7-8, 227 P. at 839, “but . . . the mere

  fact that the [parent], as the next friend of the minor, brought the




  perceive some value in noting that Colorado Civil Jury Instruction
  6:3 — Personal Injuries - Minor Child - Measure of Parents’
  Damages — tracks the general common law rule. CJI-Civ. 4th 6:3
  (2014).

                                    17
  action is not equivalent to relinquishment.” Wales, 164 Colo. at

  172, 433 P.2d at 496.

¶ 28   Those states that follow the common law rule typically allow

  four exceptions:

             The parents’ cause of action for medical
             expenses can be shifted to the minor if: (1) the
             minor child has paid or agreed to pay the
             expenses; (2) the minor child is legally
             responsible for payment (emancipation, death
             or incompetency of the parents); (3) if the
             parents waive or assign their right to recovery
             in favor of the minor; or (4) when recovery of
             expenses is permitted by statute.

  Betz v. Farm Bureau Mut. Ins. Agency of Kan., Inc., 8 P.3d 756, 760

  (Kan. 2000); see, e.g., Boley v. Knowles, 905 S.W.2d 86, 89-90 (Mo.

  1995) (discussing common law rule and its exceptions and

  collecting cases).

¶ 29   There is a trend to abandon the common law rule and hold

  that the right to recover pre-majority expenses belongs both to the

  injured minor and the parents. See Estate of DeSela v. Prescott

  Unified Sch. Dist. No. 1, 249 P.3d 767, 770 (Ariz. 2011) (“Because

  the common law should adapt when circumstances make it no

  longer just or consistent with sound policy, we hold that the right to

  recover pre-majority medical expenses belongs to both the injured


                                    18
  minor and the parents, but double recovery is not permitted.”)

  (citation omitted); White v. Moreno Valley Unified Sch. Dist., 226 Cal.

  Rptr. 742, 745-46 (Cal. Ct. App. 1986) (same); Scott Cty. Sch. Dist. 1

  v. Asher, 324 N.E.2d 496, 499 (Ind. 1975) (same); Boley, 905

  S.W.2d at 90 (same); Lopez v. Sw. Cmty. Health Servs., 833 P.2d

  1183, 1192 (N.M. Ct. App. 1992) (same); State ex rel. Packard v.

  Perry, 655 S.E.2d 548, 561 (W. Va. 2007) (same).

¶ 30   However, the supreme court appears to have reaffirmed the

  common law rule in Elgin v. Bartlett, 994 P.2d at 416, stating that

  “[u]nder Colorado law, parents can maintain a derivative action for

  certain types of damages they incur as a result of their child’s

  injury.” Those damages include economic damages “such as

  reimbursement for medical and other expenses incurred because of

  the child’s injuries, loss of household and similar services that the

  injured child would have rendered during his or her minority, and

  loss of the child’s earning capacity during minority.” Id. at 416 n.3.

  According to the court, “[c]laims for derivative damages turn upon

  the right of the injured person to recover and are subject to the

  same defenses available to the underlying claims; nonetheless, they

  are separate from the claims of the injured person.” Id. at 416.


                                    19
¶ 31    While we may believe the better-reasoned result is that of

  those states that allow both the parents and the injured minor the

  right to recover pre-majority expenses (as long as there is no double

  recovery), we are bound by the decisions of the Colorado Supreme

  Court. Averyt v. Wal-Mart Stores, Inc., 2013 COA 10, ¶ 35.

  Accordingly, we conclude that under the current state of the law of

  Colorado, only Naomi’s parents have the right to seek pre-majority

  medical expenses for Naomi’s injury.

   3.    The Statute of Limitations and Relinquishment of a Parent’s
                       Claim for Pre-Majority Expenses

¶ 32    Although the common law rule still applies in Colorado, the

  supreme court has recognized that a parent may relinquish his or

  her right to a minor’s pre-majority damages, Powell, 76 Colo. at 7-8,

  227 P. at 839, and so we must determine if Naomi’s parents did, or

  could, relinquish that right in this case.

¶ 33    First, we note that the act of filing this suit as next friend does

  not establish relinquishment by Naomi’s parents. Wales, 164 Colo.

  at 172, 433 P.2d at 496. Other jurisdictions have concluded that

  when a parent files suit as next friend, or testifies on behalf of the

  minor, the parent has relinquished the right to seek recovery on



                                     20
  those pre-majority damages. See Alaskan Vill., Inc. v. Smalley ex

  rel. Smalley, 720 P.2d 945, 950 (Alaska 1986) (holding a parent

  “may impliedly waive [his or] her right to recover in favor of the

  child by failing to object when the child sues for those expenses or

  by testifying on the child’s behalf”); Lasselle v. Special Prods. Co.,

  677 P.2d 483, 486-87 (Idaho 1983) (same); Ky. Serv. Co. v. Miracle,

  56 S.W.2d 521, 522 (Ky. 1933) (same); Lane v. Webb, 220 So. 2d

  281, 285 (Miss. 1969) (same); Bagyi v. Miller, 210 N.E.2d 887, 890

  (Ohio Ct. App. 1965) (same).

¶ 34   However, those cases do not address whether relinquishment

  is appropriate when the statute of limitations has expired on a

  parent’s claim. In Elgin, our supreme court held that a minor’s

  disability does not toll a parent’s derivative claims based on injury

  to that minor. 994 P.2d at 416-17. The court concluded that “[a]

  vast majority of federal and state courts agree that the minor’s

  disability does not toll the statute of limitations applicable to the

  parents’ separate claims, although such claims are derivative in

  nature.” Id. at 417; see, e.g., Garay v. Overholtzer, 631 A.2d 429,

  438 (Md. 1993) (collecting cases).




                                     21
¶ 35   While those jurisdictions where the common law rule has been

  abandoned have concluded that a minor’s disability tolls the statute

  of limitations on pre-majority economic damages (because the

  minor owns a right to that claim along with his or her parents and

  thus the statute is tolled as to his or her claim), we are compelled to

  conclude that under current Colorado law, parents may not

  relinquish their claims to a minor after those claims are barred by

  the statute of limitations. See Elgin, 994 P.2d at 417; see also Hutto

  v. BIC Corp., 800 F. Supp. 1367, 1372 (E.D. Va. 1992) (“To allow an

  assignment of a claim from an adult to an infant to somehow

  extend the statute of limitations (in this case by tolling) defeats the

  purpose of a limitations period.”); Rose v. Hamilton Med. Ctr., Inc.,

  361 S.E.2d 1, 2 (Ga. Ct. App. 1987) (concluding that parents could

  not relinquish their right to recover pre-majority medical expenses

  to minor “as it is uncontroverted that the parents’ right to recover

  medical expenses on his behalf had been extinguished by operation

  of law when they failed to exercise that right within the two-year

  statutory period”); Brown v. Jimerson, 862 P.2d 91, 94 (Okla. Civ.

  App. 1993) (same).




                                     22
¶ 36    Naomi contends that the appointment of a conservator

  somehow entitled her to advance her parents claims. But as Elgin

  makes clear, the claims of the parents and the child are separate,

  even where a parent is acting as next friend. 994 P.2d at 416.

  Thus, her parents owned the claim for pre-majority medical

  expenses and were required to assert that claim not later than two

  years after they incurred the expenses. See § 13-80-102.5, C.R.S.

  2016 (limitation of medical or health care actions).

¶ 37    Here, it is undisputed that Naomi filed her suit long after her

  parents’ claim for pre-majority damages was extinguished by

  operation of the statute of limitations. Therefore, we conclude that

  it was not possible for her parents to relinquish that claim to

  Naomi, and the trial court erred in holding to the contrary.

  Accordingly, the portion of the judgment awarding Naomi pre-

  majority damages comprising past medical expenses and future

  medical expenses to her age of majority must be reversed.

   4.    No Other Reasons Support Affirming the Trial Court’s Ruling

¶ 38    The trial court provided two additional reasons for Naomi to

  collect pre-majority economic expenses: (1) that she had incurred or

  would be responsible for those expenses and (2) that she was the


                                    23
  real party in interest because she would incur pre-majority

  expenses.

¶ 39   First, Naomi presented no proof that she was the guarantor on

  any medical bills or that she had actually incurred or paid bills on

  her own behalf. “Whether a party has assumed a duty is a mixed

  question of law and fact.” E. Meadows Co. v. Greeley Irrigation Co.,

  66 P.3d 214, 218 (Colo. App. 2003). Here, the facts relied on by the

  trial court are undisputed. But those facts do not support a finding

  that Naomi incurred medical expenses. Indeed, we perceive no

  relation between the court’s findings — which included facts such

  as “Naomi’s parents and [her] expert witnesses testified Naomi

  received past medical care and other health care services,” “[t]he

  parties stipulated that the reasonable past medical and other

  healthcare expenses . . . were $557, 823.60,” and “Naomi’s parents

  and [her] expert witnesses testified Naomi will need future ongoing

  medical care and healthcare services prior to the age of majority” —

  and its ultimate conclusion that Naomi incurred pre-majority

  medical expense.

¶ 40   And while Naomi argues that the damages instruction

  provided to the jury states damages are “expenses the plaintiff, as a


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  minor, has paid for or for which she is personally liable” and,

  therefore, she incurred those expenses, the special verdict forms

  contain no finding whatsoever that Naomi incurred expenses. In

  spite of the damages instruction provided to the jury, there is no

  record support for a conclusion that Naomi incurred medical

  expenses.

¶ 41   Second, the common law (and thus Colorado) rejects the idea

  that a minor is the real party in interest to recover his or her pre-

  majority economic damages by creating a separate right to sue for

  those damages in the minor’s parents. See Kinsella, 826 P.2d at

  435. Consequently, we conclude that the court’s ruling cannot be

  affirmed on either of these bases.

                      III.   Remaining Contentions

¶ 42   The Hospital presents two remaining contentions: (1) that

  irrespective of the evidence of Medicaid and private insurance

  benefits, Naomi did not establish good cause to exceed the cap; and

  (2) she received a duplicate award for future medical care and lost

  future earnings. We disagree.




                                    25
        A.    Naomi Established Good Cause to Exceed the Cap

¶ 43   We review a trial court’s determination of good cause for an

  abuse of discretion. Wallbank, 140 P.3d at 179. A trial court

  abuses its discretion when its decision is manifestly arbitrary,

  unreasonable, or unfair, or when it misapplies the law. In re Estate

  of Fritzler, 2017 COA 4, ¶ 6.

¶ 44   Section 13-64-302 does not define “good cause” or

  “unfairness.” Wallbank, 140 P.3d at 180. Good cause is a legally

  sufficient reason or a substantial or legal justification. Id.

  Unfairness is “marked by injustice, partiality, or deception.” Id.

  (quoting Webster’s Third New International Dictionary 2494 (1986)).

¶ 45   “[A] court may exercise its discretion to consider factors it

  deems relevant when determining whether a movant qualifies for

  the . . . exception to the cap.” Id. at 180-81. “The trial court may

  not make that determination in a vacuum, but must necessarily

  consider the circumstances in each case.” Id. at 181.

¶ 46   Here, we perceive no abuse of discretion by the trial court in

  concluding that Naomi established good cause to exceed the

  damages cap in section 13-64-302(1)(b). The court considered a

  multitude of factors in reaching its determination, including past


                                     26
  and future medical expenses, the purpose of the cap, the nature

  and degree of the injuries, the strength and certainty of the

  evidence of damages, Naomi’s age, the amount and composition of

  the jury verdict, whether there is an overlap in the damage award,

  Naomi’s life expectancy, lost future earnings and earnings capacity,

  and particular needs and losses. Reviewing the trial court’s

  reasoning, we are satisfied that its decision is not manifestly

  arbitrary, unreasonable, or unfair, and it is not a misapplication of

  the law. Accordingly, we do not disturb the court’s finding that

  Naomi established good cause to exceed the damages cap.

   B.    Naomi Did Not Receive a Duplicate Award for Future Medical
                      Care and Future Lost Earnings

¶ 47    We review a court’s determination that a plaintiff has not

  received a duplicate award for an abuse of discretion. Vitetta, 240

  P.3d at 329. In Vitetta, a division of this court affirmed a trial

  court’s determination that an award for future life care included

  amounts for loss of future income. Id. We likewise conclude there

  is record support for the trial court’s findings that Naomi’s damage

  award for future medical care does not overlap with her future lost

  earnings award. Because the Hospital has not shown any abuse of



                                     27
  discretion on the part of the court in concluding there is no overlap,

  we discern no reason to reverse that determination.

                            IV.   Conclusion

¶ 48   The judgment is reversed as to the $2,461,735.60 awarded to

  Naomi for her pre-majority economic damages. The judgment is

  affirmed in all other respects. The case is remanded to the trial

  court for recalculation of the total amounts owed by the Hospital to

  Naomi.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.




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