author: Opinion by JUDGE WEBB

text:
    Robert P. FORFAR III, Plaintiff-Appellee, v. WAL-MART STORES, INC., d/b/a Wal-Mart, d/b/a Wal-Mart Supercenter, d/b/a Wal-Mart Supercenter #, d/b/a Wal-Mart Market, d/b/a Wal-Mart Neighborhood Market; Wal-Mart Stores East, LP, d/b/a Wal-Mart Stores East I, LP; Wal-Mart Associates, Inc. ; Wal-Mart Store #984; and Castle Rock Wal-Mart Supercenter, Defendants-Appellants.
    Court of Appeals No. 17CA0663
    Colorado Court of Appeals, Division III.
    Announced August 23, 2018
    Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, Colorado, for Plaintiff-Appellee
    Kutak Rock LLP, Mark C. Willis, Mia K. Della Cava, Denver, Colorado, for Defendants-Appellants
    Heideman Poor LLC, John F. Poor, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association
   Opinion by JUDGE WEBB

¶ 1 This premises liability case presents a novel question in Colorado: whether the collateral source rule-codified in section 10-1-135(10)(a), C.R.S. 2017, and section 13-21-111.6, C.R.S. 2017-applies to Medicare benefits. We conclude that it does.

¶ 2 Wal-Mart Stores, Inc., appeals the judgment entered on a jury verdict in favor of Robert P. Forfar III, for injuries he sustained when he slipped and fell at a Wal-Mart store. The judgment included $44,000 in economic damages for the reasonable value of medical services that Mr. Forfar, a Medicare beneficiary, had received.

¶ 3 Before trial, Wal-Mart moved to exclude evidence of Mr. Forfar's medical expenses owed under agreements that he had entered into with his medical services providers. Wal-Mart argued that because these agreements were null and void under Medicare regulations, evidence of the reasonable value of those medical services should be "limited to the Medicare approved charges for the services." Mr. Forfar also moved in limine to exclude any evidence that he had received Medicare benefits, arguing that such benefits constituted a collateral source.

¶ 4 The trial court ruled that Wal-Mart could "not present evidence to the jury as to the amount of the Medicare limits." The court also ruled that Mr. Forfar "may not present evidence of private contracts between himself and any of the Third-Party Medical Providers." Still, it allowed him to "present evidence of the reasonable value of the medical services ... and such value need not be based upon the Medicare limits." The trial proceeded according to this ruling, with Mr. Forfar seeking damages of $72,636 as the reasonable value of the medical services.

¶ 5 After trial, Wal-Mart moved to reduce the damages under section 13-21-111.6. It argued that the economic damages awarded for Mr. Forfar's medical expenses "should be reduced to Medicare accepted rates." The trial court denied the motion, holding that Medicare benefits fall within the contract exception to the collateral source rule of section 13-21-111.6.

¶ 6 Wal-Mart challenges both of these rulings on appeal. We affirm.

I. Background

¶ 7 In Colorado, the collateral source rule has both a pre-verdict evidentiary component and a post-verdict component. The evidentiary component is codified at section 10-1-135(10)(a). See Smith v. Jeppsen , 2012 CO 32, ¶ 19, 277 P.3d 224 (stating that section 10-1-135(10)(a)"unambiguously codifies" the common law collateral source rule). The post-verdict component is codified at section 13-21-111.6. Because this case involves both components, they require separate discussion.

¶ 8 Generally, under the collateral source rule, "compensation or indemnity received by an injured party from a collateral source, wholly independent of the wrongdoer and to which the wrongdoer has not contributed, will not diminish the damages otherwise recoverable [by the injured party] 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) ).

¶ 9 Pre-verdict, this doctrine applies "to bar evidence of collateral source benefits because such evidence could lead the fact-finder to improperly reduce the plaintiff's damages award on the grounds that the plaintiff already recovered his loss from the collateral source." Wal-Mart Stores, Inc. v. Crossgrove , 2012 CO 31, ¶ 12, 276 P.3d 562. Section 10-1-135(10)(a) provides, "[t]he fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against an alleged third-party tortfeasor."

¶ 10 Still, our supreme court has recognized some tension between "the pre-verdict evidentiary component of the collateral source rule that controls this case and the reasonable value rule." Crossgrove , ¶ 19. Specifically, "the correct measure of damages is the necessary and reasonable value of the [medical] services rendered." Kendall v. Hargrave , 142 Colo. 120, 123, 349 P.2d 993, 994 (1960). And to prove that value, the amount paid for medical services is "some evidence of their reasonable value." Id.

¶ 11 But what happens if evidence of the amount paid would disclose a collateral source, thus risking that the jury could improperly reduce the damages award for that reason?

¶ 12 In Crossgrove , ¶ 20, the supreme court resolved this tension by holding that "the pre-verdict evidentiary component of the collateral source rule prevails in collateral source cases to bar the admission of the amounts paid for medical services." It explained:

Admitting amounts paid evidence for any purpose, including the purpose of determining reasonable value, in a collateral source case carries with it an unjustifiable risk that the jury will infer the existence of a collateral source-most commonly an insurer-from the evidence, and thereby improperly diminish the plaintiff's damages award.

Id. Particularly relevant here, the court offered an example: "[T]he government sets the rates that providers who honor public insurance programs, like Medicare and Medicaid, must accept for certain services," which "are often significantly lower than those billed by the provider." Id. at ¶ 22.

¶ 13 As to the post-verdict component, start with the rule: section 13-21-111.6"requires the trial court to reduce a successful plaintiff's verdict as a matter of law by the amount the plaintiff '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 ... sustained.' " Id. at ¶ 14 (quoting § 13-21-111.6 ). Then consider the exception: the statute preserves the common law post-verdict component of the collateral source doctrine "to a limited extent by prohibiting trial courts from reducing a plaintiff's verdict by the amount of indemnification or compensation that the plaintiff has received, or will receive in the future, from 'a benefit paid as a result of a contract entered into and paid for by or on behalf of' the plaintiff.' " Id. at ¶ 15 (quoting § 13-21-111.6 ).

¶ 14 So, given all this, what more need be said? A lot, according to Wal-Mart, because the case involves Medicare-a context in which the collateral source rule has yet to be addressed by any Colorado court. After walking us through a labyrinth of federal statutes and regulations, Wal-Mart asserts the following:

• because Mr. Forfar's providers, who are covered by Part B of the Medicare program, failed to submit an affidavit opting out of Medicare, they cannot recover more than Medicare allows for their services, see 42 U.S.C. § 1395b-3 (2012) ; 42 U.S.C. § 1395u(b)(18)(B) (2012) ; 42 C.F.R. § 405.420 (2017) ;
• to the extent that the providers' private contracts with him provided otherwise, because those contracts did not comply with the disclosure requirements of Medicare, they are-as the trial court found-null and void, see 42 U.S.C. § 1395a(b)(2)(B)(i)-(v) (2012) ; 42 C.F.R. § 405.405(c) (2017) ; 42 C.F.R. § 405.415 (2017) ; 42 C.F.R. § 405.430(b)(1) (2017) ;
• "no person" can be liable above the Medicare limits for medical services provided to a Medicare beneficiary, see 42 U.S.C. § 1395u(b)(18)(B) ("No person is liable for payment of any amounts billed for such a service in violation of the previous sentence."); 42 U.S.C. § 1395w-4(g)(1)(A)(ii) (2012) ("No person is liable for payment of any amounts billed for the service in excess of such limiting charge."); and
• insofar as the collateral source rule or section 13-21-111.6 may provide for greater liability, they are preempted by Medicare.

¶ 15 For his part, Mr. Forfar agrees that he was covered by Medicare based on his Social Security Disability Insurance (SSDI) benefits. Even so, after taking his own exhaustive tour of both federal statutes and regulations, he responds that under Barnett v. American Family Mutual Insurance Co. , 843 P.2d 1302 (Colo. 1993), Medicare is a collateral source, which triggers the evidentiary limitation in section 10-1-135(10)(a) and is subject to the contract exception of section 13-21-111.6.

¶ 16 But must we take an equally deep dive into federal statutes and regulations to decide the narrow question whether the trial court properly applied the collateral source rule, both pre-verdict and post-verdict? No.

¶ 17 Instead, we assume, without deciding, that Mr. Forfar's providers are subject to the Medicare limits. Next, we conclude that under Crossgrove , the trial court correctly applied both the pre-verdict collateral source rule in section 10-1-135(10)(a) and the contract exception in section 13-21-111.6. Finally, we conclude that Medicare does not preempt application of the state law collateral source doctrine.

II. Application of the Collateral Source Rule

A. Standard of Review

¶ 18 The parties agree that we review a trial court's evidentiary rulings for an abuse of discretion. Crossgrove , ¶ 7. A trial court abuses its discretion when its ruling derives from an erroneous application of the law or when its ruling is manifestly arbitrary, unreasonable, or unfair. Smith v. Kinningham , 2013 COA 103, ¶ 9, 328 P.3d 258.

¶ 19 The parties also agree that whether a trial court has applied the correct legal standard presents a question of law subject to de novo review. Crossgrove , ¶ 7. So does interpretation of a statute. Id.

B. Pre-Verdict Application of the Collateral Source Rule to Medicare Benefits

¶ 20 Should benefits payable up to Medicare limits have been admitted to show the reasonable value of Mr. Forfar's medical services or do those benefits constitute a collateral source, subject to the evidentiary bar of section 10-1-135(10)(a) ? We conclude that the evidentiary bar applies.

¶ 21 To begin, in Smith the supreme court held that section 10-1-135(10)(a)"clearly and unambiguously states that 'the fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against an alleged third-party tortfeasor.' " ¶ 21 (quoting § 10-1-135(10)(a) ). The court explained that 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.

¶ 22 A benefit is not excluded from the definition of a collateral source merely because it comes from a government program. To the contrary, Colorado courts have held that benefits from Social Security, Medicaid, and public retirement plans all meet the definition of a collateral source. See Pressey v. Children's Hosp. Colo. , 2017 COA 28, ¶ 13, --- P.3d ---- ("Private insurance, private disability benefits, [SSDI], and retirement benefits all fall within the contract exception to the collateral source statute."); Kinningham , ¶ 15 ("[T]he alleged Medicaid benefits were paid on [the plaintiff's] behalf, and fall squarely within the definition of a collateral source.").

¶ 23 This is so because under the collateral source rule,

making the injured plaintiff whole is solely the tortfeasor's responsibility. Any third-party benefits or gifts obtained by the injured plaintiff accrue solely to the plaintiff's benefit and are not deducted from the amount of the tortfeasor's liability. These third-party sources are "collateral" and are irrelevant in fixing the amount of the tortfeasor's liability.

Volunteers of Am. Colo. Branch v. Gardenswartz , 242 P.3d 1080, 1082-83 (Colo. 2010).

¶ 24 Undaunted, Wal-Mart argues that "amounts paid by Medicare are dispositive of the necessary and reasonable value of medical services provided" because Mr. Forfar never incurred liability for any greater amounts. And allowing him to recover more than the Medicare limits, Wal-Mart continues, results in a windfall for him. One does not usually think of applying the collateral source rule to Medicare as creating a windfall, where the recipient has given value by paying social security taxes during his or her work life. But to the extent that a windfall occurs, we conclude that the plaintiff-not the tortfeasor-should be the beneficiary.

¶ 25 Recall, our supreme court has acknowledged that "healthcare providers accept significantly less than the amount billed for certain services in satisfaction of government insured patients' bills." Crossgrove , ¶ 22. Even so, by any reckoning, "the pre-verdict evidentiary component of the collateral source rule prevails over the older 'reasonable value rule,' which allowed trial courts to admit evidence of the amount actually paid for healthcare services." Kinningham , ¶ 18.

¶ 26 This application of the collateral source rule "prohibits the wrong-doer from enjoying the benefits procured by the injured plaintiff." Gardenswartz , 242 P.3d at 1083. The supreme court justified applying the prohibition because

[i]f either party is to receive a windfall, the rule awards it to the injured plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits obtained by the plaintiff.

Id. ; see also Crossgrove v. Wal-Mart Stores, Inc. , 280 P.3d 29, 33 (Colo. App. 2010) (rejecting the defendant's argument that the "collateral source rule does not apply to written-off expenses because the rule 'excludes only "evidence of benefits paid by a collateral source" ' " (quoting Robinson v. Bates , 112 Ohio St.3d 17, 857 N.E.2d 1195, 1200 (2006) ) ), aff'd , 2012 CO 31, 276 P.3d 562.

¶ 27 Still persisting, Wal-Mart cites some out-of-state authority holding that Medicare benefits do not constitute a collateral source and "the amount paid by Medicare [is] dispositive of the reasonable value of healthcare provider services." Stayton v. Del. Health Corp. , 117 A.3d 521, 533 (Del. 2015). But these cases do not treat the collateral source rule as broadly as section 10-1-135(10)(a) does; the statute bars evidence of "the fact or amount of any collateral source payment or benefits." (Emphasis added.) See SinclairTransp. Co. v. Sandberg , 2014 COA 76M, ¶ 38, 350 P.3d 924 ("[T]he term 'any' means 'without limit or restriction.' ") (citation omitted).

¶ 28 Unsurprisingly, "[a] majority of courts have concluded that plaintiffs are entitled to claim and recover the full amount of reasonable medical expenses charged, based on the reasonable value of medical services rendered, including amounts written off from the bills pursuant to contractual rate reductions." Felts v. Bd. of Cty. Comm'rs , No. 13-CV-1094-MCA/SCY, 2017 WL 3267742, at *4 (D.N.M. July 31, 2017) (quoting Pipkins v. TA Operating Corp. , 466 F.Supp.2d 1255, 1259 (D.N.M. 2006) ); see Bynum v. Magno , 101 P.3d 1149, 1162 (Haw. 2004) (Limiting the reasonable value of medical services "to the pecuniary loss suffered by a plaintiff would mean, for example, that injured plaintiffs who received gratuitous medical services, were treated at a veteran's hospital, or were covered by medical insurance plans such as offered to Kaiser Hospital patients would not be entitled to recover any monetary amount from the tortfeasor (except perhaps nominal out-of-pocket fees).... [S]uch an approach [is] contrary to the 'great weight of authority in this country.' " (quoting Pryor v. Webber , 23 Ohio St.2d 104, 263 N.E.2d 235, 240 (1970) )).

¶ 29 The majority rule better aligns with our supreme court's view in Crossgrove that "[d]ue to the nature of modern healthcare billing practices, a reasonable juror could easily infer the existence of a collateral source if presented with evidence, for example, that the provider accepted $40,000 in satisfaction of a $250,000 medical bill." Crossgrove , ¶ 21.

¶ 30 For these reasons, we conclude that the trial court properly held Medicare benefits to be a collateral source inadmissible as evidence based on section 10-1-135(10)(a). In other words, the reasonable value of Mr. Forfar's medical services was not limited to amounts that Medicare paid to his providers, even assuming that they could receive no more from Mr. Forfar or anyone who might be vicariously liable to them, such as a guarantor. But that conclusion brings us to the contract exception.

C. Post-Verdict Application of the Contract Exception in Section 13-21-111.6

¶ 31 Should the trial court have reduced Mr. Forfar's damages for Medicare benefits or do those benefits fall within the contract exception of section 13-21-111.6 ? We further conclude that they fall within the contract exception.

¶ 32 Recall, the General Assembly modified the common law collateral source rule by enacting section 13-21-111.6. The first clause directs a trial court to reduce a plaintiff's award for any benefits the plaintiff received from collateral sources. But the second clause says "the verdict shall not be reduced by the amount by which [the injured plaintiff] 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 ." § 13-21-111.6 (emphasis added).

¶ 33 Although no Colorado court has addressed Medicare benefits under section 13-21-111.6, the reasoning of cases sweeping other benefits under this section is informative as to Medicare benefits.

¶ 34 The division in Pressey , ¶ 14, explained that "Medicaid benefits are paid on behalf of [the plaintiff], 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." Thus, "[u]nder section 13-21-111.6, these benefits are dependent upon 'a contract entered into ... by or on behalf of' [the plaintiff] for which she remains financially responsible." Id. (quoting § 13-21-111.6 ).

¶ 35 In Barnett , 843 P.2d at 1310, the supreme court held that SSDI "benefits fall within the exception to section 13-21-111.6" because they "are the result of payments made under a contributory insurance system, rather than gratuities or public assistance."

¶ 36 In Van Waters & Rogers, Inc. v. Keelan , 840 P.2d 1070, 1079 (Colo. 1992), the supreme court held that disability benefits payable to a firefighter under a public pension plan fell within the contract exception to the collateral source statute:

Because an employee exchanges something of value, his services, in return for an employment contract and its derivative benefits, benefit payments received as part of the compensation for these services are entitled to the same protection against offset that would apply to benefits received as a result of an insurance contract for which that person had paid money.

Id.

¶ 37 Consistent with these Colorado cases, in Baumann v. American Family Mutual Insurance Co. , Civ. A. No. 11-cv-00789-CMA-BNB, 2012 WL 122850, at *7 (D. Colo. Jan. 17, 2012), the federal district court addressed Medicare benefits under section 13-21-111.6. It found "no meaningful difference between Medicare and SSDI benefits given that they are funded by the same employment taxation scheme." Id.

¶ 38 And in Berg v. United States , 806 F.2d 978, 985 (10th Cir. 1986), the court reasoned:

Further support for the conclusion that Medicare benefits are a collateral source is provided by the decisions of the other courts that have considered the issue. They have each concluded that when a plaintiff has paid Social Security taxes while employed, any Medicare benefits that are subsequently received are a collateral source.

¶ 39 Similarly, in applying the contract exception to the Medicare benefits received by Mr. Forfar, the trial court explained that Mr. Forfar was eligible for Medicare based on his SSDI benefits (not based on his age). Then the court noted that Mr. Forfar had "qualified for SSDI benefits ... after he had accumulated a sufficient work history, and ... [as a] result of his contributions to Social Security." It found that "Medicare benefits available as a result of [Mr. Forfar's] eligibility for SSDI benefits also fall under the contract exception of [ section] 13-21-111.6."

¶ 40 Like the court in Baumann , we perceive no meaningful difference between SSDI benefits and Medicare benefits. Thus, because the supreme court has concluded that SSDI benefits "fall within the exception to section 13-21-111.6," Barnett , 843 P.2d at 1310, we conclude that Mr. Forfar's Medicare benefits-which were available to him based on his SSDI benefits-also fall within this exception.

¶ 41 Even so, Wal-Mart argues that the contract exception should not apply to any charges that exceeded the Medicare limits because Mr. Forfar is not liable for these charges. In other words, no benefit is involved. And Wal-Mart points out "at least one court has recognized that the value of Medicare-approved rates inures primarily to the benefit of the program and taxpayers, not plaintiffs." See Stayton , 117 A.3d at 534.

¶ 42 Yet, a similar argument was rejected by the supreme court in Gardenswartz , 242 P.3d at 1086-87. There, the plaintiff's "healthcare providers billed $74,242 for their services in treating his injuries," but because the plaintiff's insurance company "satisfied his medical debts with a payment of $43,236," the plaintiff "could not be billed the difference." Id. at 1085. Based on this discount, the defendant argued "that the pricing differential between the amounts billed and the amounts paid is illusory because the charges are never actually paid by anyone." Id. at 1086.

¶ 43 The supreme court disagreed. It held that "by discharging [the plaintiff's] obligations to his medical providers, the insurer's remittances do constitute a 'benefit' that was 'paid.' " Id. (emphasis added). This is so because "[i]f [the plaintiff] had not had insurance coverage, he would have been liable for the entire amount billed or he may not have been treated at all." Id. By the same token, had Mr. Forfar not been Medicare eligible, he would have been liable above the Medicare limits.

¶ 44 In the end, we conclude that the trial court properly applied the contract exception in section 13-21-111.6 to Medicare benefits.

III. Medicare Statutes Do Not Preempt Colorado's Collateral Source Rule

¶ 45 Despite all of this, Wal-Mart contends the trial court violated the Supremacy Clause by "failing to apply the express provisions of Medicare statutes and regulations over the collateral source rule." Specifically, Wal-Mart asserts that under the Medicare statutes, " 'No Person'-which would include a defendant or alleged tortfeasor such as Wal-Mart-may be held liable for 'payment of any amounts billed' in excess of Medicare approved charges." This contention does not survive scrutiny.

A. Preservation and Standard of Review

¶ 46 Wal-Mart does not point to where it raised preemption before the trial court. Still, Mr. Forfar does not challenge preservation. Regardless, we need not comb through the record to determine if preemption was raised, because we can exercise our discretion to review a preemption claim, especially where-like here-no further record development is required. See Fuentes-Espinoza v. People , 2017 CO 98, ¶ 19, 408 P.3d 445.

¶ 47 Federal preemption is a question of law subject to de novo review. Kohn v. Burlington N. & Santa Fe R.R. , 77 P.3d 809, 811 (Colo. App. 2003).

B. Law

¶ 48 The preemption doctrine, derived from the Supremacy Clause, U.S. Const. art. VI, mandates that state law give way when it conflicts with federal law. Id.

¶ 49 Congressional intent to preempt state law may be explicitly stated in the federal statute. Banner Advert., Inc. v. City of Boulder , 868 P.2d 1077, 1080 (Colo. 1994). Even absent such explicit language, however, preemption occurs when state law conflicts with federal law. Id. This type of preemption-conflict preemption-"is implicated when it is impossible for a private party to simultaneously comply with both state and federal laws, or where the state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. (footnote omitted) (quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ).

¶ 50 Wal-Mart argues only conflict preemption.

C. Analysis

¶ 51 Analysis of federal preemption begins with "the basic assumption that Congress did not intend to displace state law." Middleton v. Hartman , 45 P.3d 721, 731 (Colo. 2002) (quoting Maryland v. Louisiana , 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981) ). In other words, "while Congress has the power to preempt state law, it is anticipated that state and federal law will peaceably coexist." Id. (citation omitted).

¶ 52 Wal-Mart relies on two Medicare statutes to overcome this presumption:

• 42 U.S.C. § 1395u(b)(18)(B), which says that "[a] practitioner described in subparagraph (C) or other person may not bill (or collect any amount from) the individual or another person for any service described in subparagraph (A), except for deductible and coinsurance amounts applicable under this part. No person is liable for payment of any amounts billed for such a service in violation of the previous sentence"; and
• 42 U.S.C. § 1395w-4(g)(1)(A)(ii), which says that "[n]o person is liable for payment of any amounts billed for the service in excess of such limiting charge."

¶ 53 Although neither of these statutes expressly preempts Colorado law, Wal-Mart argues that the trial court's application of the collateral source rule effectively held Wal-Mart liable for "amounts billed" by Mr. Forfar's providers in excess of Medicare limits, which conflicts with the "no person is liable" language of these statutes. Wal-Mart does not assert statutory ambiguity, relying instead on the plain language.

¶ 54 Wal-Mart cites no authority applying conflict preemption to either statute, nor have we found such authority. And in any event, the plain language of these statutes does not support Wal-Mart's interpretation.

¶ 55 Looking first at 42 U.S.C. § 1395u(b)(18)(B), Wal-Mart does not cite authority, nor have we found any, applying the "no person liable" language to tortfeasors. But even if this language could be applied to Wal-Mart, it would limit liability only for amounts billed by practitioners: a "practitioner described in subparagraph (C) ... may not bill ... for any service described in subparagraph (A), except for deductible and coinsurance amounts applicable under this part." 42 U.S.C. § 1395u(b)(18)(B) ; see Clemons v. Quest Diagnostics, Inc. , No. 99 C 6122, 2000 WL 950291, at *3 (N.D. Ill. June 6, 2000) ("Subparagraph (B) limits the paragraph's applicability to the services described in subparagraph (A), which by its terms applies only to services furnished by a practitioner described in subparagraph (C).").

¶ 56 Wal-Mart has not been billed for any of Mr. Forfar's medical services by his providers, Medicare, or anyone else. Rather, and consistent with the collateral source rule, the jury awarded Mr. Forfar the reasonable value of their services. And it did so without having seen any of the providers' bills.

¶ 57 Turning to 42 U.S.C. § 1395w-4(g)(1)(A)(ii), this section prohibits a nonparticipating physician or nonparticipating supplier or other person (as defined in § 1395u(i)(2) ) from billing a beneficiary for an amount that exceeds a statutorily defined "limiting charge." See White v. Jubitz Corp. , 347 Or. 212, 219 P.3d 566, 575 (2009). Again, Wal-Mart cites no authority, nor have we found any, applying this prohibition to a tortfeasor. Given that the subject line of this subsection is "[l]imitation on beneficiary liability," 42 U.S.C. § 1395w-4(g) (emphasis added), this lack of authority is unsurprising. See Larson v. Sinclair Transp. Co. , 2012 CO 36, ¶ 8, 284 P.3d 42 ("We may also consider the title of the statute and any accompanying statement of legislative purpose.").

¶ 58 But even if the "no person is liable" language in 42 U.S.C. § 1395w-4(g)(1)(A)(ii) could apply to a tortfeasor such as Wal-Mart, this section only precludes liability "for payment of any amounts billed." Again, no amounts have been billed to Wal-Mart.

¶ 59 In sum, we conclude that the Medicare statutes relied on by Wal-Mart do not preempt Colorado law holding it liable for the reasonable value of Mr. Forfar's medical services.

IV. Attorney Fees

¶ 60 Mr. Forfar requests appellate attorney fees under section 13-17-102(2), C.R.S. 2017, because Wal-Mart's appeal lacked substantial justification. But the issues presented by Wal-Mart were novel, supported by some out-of-state authority, and thus "not wholly devoid of legal merit or justification." Tidwell v. Bevan Props., Ltd. , 262 P.3d 964, 969 (Colo. App. 2011). For these reasons, we exercise our discretion and decline to award attorney fees.

V. Conclusion

¶ 61 The judgment is affirmed.

Fox and Márquez , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      Walmart asserts in its opening brief that $9170.83 could have been properly charged under the Medicare limits for Mr. Forfar's medical services. This amount was based on an expert disclosure that the trial court found untimely.

      Because we assume, without deciding, that the private contracts are null and void-and thus Mr. Forfar's providers are subject to the Medicare limits-we need not address Walmart's argument that cases preceding the enactment of these regulations are no longer good law.


source: Caselaw Access Project

author: Opinion by JUDGE MÁRQUEZ

license: Public Domain

text:
    Jean MARCHANT, as guardian of Krista Marchant, Plaintiff-Appellant, v. BOULDER COMMUNITY HEALTH, INC.; and Cardon Outreach, LLC, a foreign corporation, Defendants-Appellees.
    Court of Appeals No. 17CA0741
    Colorado Court of Appeals, Division III.
    Announced August 23, 2018 As Modified October 18, 2018
    Bold, Educated Lawyering LLC, Thomas D. Russell, Denver, Colorado, for Plaintiff-Appellant
    Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees
   Opinion by JUDGE MÁRQUEZ

¶ 1 Plaintiff, Jean Marchant, as guardian of Krista Marchant, appeals the summary judgment in favor of defendants, Boulder Community Health, Inc. (BCH), and Cardon Outreach, LLC (Cardon), regarding her right to seek damages of twice the amount of a hospital lien filed in violation of section 38-27-101, C.R.S. 2017, (the hospital lien statute) against her daughter. We affirm.

I. Background

¶ 2 The record shows the following undisputed facts. Krista Marchant, plaintiff's daughter, was struck by an automobile and received medical treatment from BCH in November 2015, for which BCH billed $27,681.10. Cardon, as an agent for BCH, filed with the Colorado Secretary of State a statutory lien in that amount "upon the net amount payable to [daughter], ... or [her] legal representatives ... as damages on account of such injuries," on December 10, 2015, without first billing the daughter's insurance company.

¶ 3 On February 10, 2016, BCH made an insurance "adjustment" to reduce the bill by $19,903.99 and billed daughter's medical insurance company, Blue Cross Blue Shield (BCBS), the next day. BCBS paid $6999.37 on February 23, leaving a balance of $777.74.

¶ 4 On March 17, Cardon amended the lien to $777.74, the remaining balance of daughter's medical charges. The parties agree that plaintiff filed a complaint against BCH and Cardon on April 19, while the lien for $777.74 was in effect, but this complaint is not part of the appellate record. Plaintiff paid $777.74 on April 30, and Cardon released the lien on May 11, 2016. Later, plaintiff filed an amended complaint, asserting, as relevant to this appeal, a claim for violation of the hospital lien statute against BCH and Cardon.

¶ 5 In response to cross-motions for determinations of a question of law under C.R.C.P. 56(h), the district court ruled, as a matter of law, that section 38-27-101(7)"only provides standing" for a lawsuit if the plaintiff " 'is subject to' an improper lien at the time he or she files the legal action," and "does not allow an individual to file a damages lawsuit ... where the claim arises out of an improper lien filing which has been cured prior to filing." Based on this interpretation, the court granted defendants' motion for summary judgment.

A. The Hospital Lien Statute

¶ 6 Before August 5, 2015, the hospital lien statute provided that hospitals "shall ... have a lien for all reasonable and necessary charges for hospital care upon the net amount payable to [a person injured by another person's negligence or wrongful acts], ... as damages on account of such injuries." § 38-27-101, C.R.S. 2014.

¶ 7 However, the General Assembly significantly amended the statute, and the amendment became effective on August 5, 2015, before daughter's injury. Ch. 260, sec. 1, § 38-27-101, 2015 Colo. Sess. Laws 981-83. The amended hospital lien statute provides, as relevant here, as follows:

(1) Before a lien is created , every hospital ... which furnishes services to any person injured as the result of the negligence or other wrongful acts of another person and not covered by [Workers' Compensation], shall submit all reasonable and necessary charges for hospital care or other services for payment to the property and casualty insurer and the primary medical payer of benefits available to ... the injured person , in the same manner as used by the hospital for patients who are not injured as the result of negligence or wrongful acts of another person, ....
....
(7) An insured person who is subject to a lien in violation of this section may bring an action in a district court to recover two times the amount of the lien attempted to be asserted.

§ 38-27-101, C.R.S. 2017 (emphasis added).

B. Procedural Background

¶ 8 Following the trial court's interpretation of the amended statute, defendants moved for summary judgment, arguing that because the lien had been cured-it was no longer an improper lien-before plaintiff's lawsuit, and there were no disputed issues of fact, they were "entitled to a dismissal." Plaintiff responded that the improper lien was incapable of cure and that defendants' proffered facts were in dispute. She also moved for summary judgment, arguing for a different interpretation of the hospital lien statute. As noted, the court granted defendants' motion.

¶ 9 On appeal, plaintiff makes numerous arguments revolving around only one contention: the court misinterpreted the hospital lien statute. She does not dispute any material facts.

II. Standard of Review and Applicable Law

¶ 10 We review de novo questions of statutory interpretation, Jefferson Cty. Bd. of Equalization v. Gerganoff , 241 P.3d 932, 935 (Colo. 2010), and orders granting summary judgment, Ryder v. Mitchell , 54 P.3d 885, 889 (Colo. 2002).

¶ 11 "Our primary duty in construing statutes is to give effect to the intent of the General Assembly, looking first to the statute's plain language." Vigil v. Franklin , 103 P.3d 322, 327 (Colo. 2004). In construing the plain meaning of the language, we give effect to every word and consider the statute as a whole. Waste Mgmt . of Colo., Inc. v. City of Commerce City , 250 P.3d 722, 725 (Colo. App. 2010). We construe words and phrases "according to grammar and common usage." Gerganoff , 241 P.3d at 935. If the statutory language is clear and unambiguous, we will not resort to any other tools of statutory construction, and we must apply the statute as written. Vigil , 103 P.3d at 328.

¶ 12 But if the statutory language is ambiguous-capable of being reasonably understood in two or more ways-we may rely on other factors, such as the legislative history, the consequences of a given construction, and the heading of the statute to aid in determining the General Assembly's intent. See Gerganoff , 241 P.3d at 935.

¶ 13 If, in light of our de novo interpretation of the statute, the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. C.R.C.P. 56(c) ; Amos v. Aspen Alps 123, LLC , 2012 CO 46, ¶ 13, 280 P.3d 1256.

III. Discussion

¶ 14 The parties agree that when BCH first filed its lien, BCH had not billed BCBS, and thus the lien violated the hospital lien statute. If plaintiff had sued at that time, the statute would have provided plaintiff grounds to seek twice the amount of the lien-$55,362.20.

¶ 15 The need for statutory interpretation arises because plaintiff did not file suit until after BCH had adjusted the amount due and billed BCBS, just as it would for "patients who are not injured as the result of the negligence or wrongful acts of another person." § 38-27-101(1). We must determine whether a claim for relief attaches at the moment a lien is filed or when plaintiff files a complaint.

¶ 16 We construe the language in section 38-27-101(7), "[a]n injured person who is subject to a lien in violation of this section may bring an action in a district court" (emphasis added), according to grammar and common usage. See Gerganoff , 241 P.3d at 935. The permissive word "may," in conjunction with the temporal word "is," indicates that the statute applies only to liens affecting a plaintiff when she chooses to sue. See Sifton v. Stewart Title Guar. Co. , 259 P.3d 542, 544 (Colo. App. 2011) (collecting cases; finding no authority to support the proposition that present tense language applies to past events).

¶ 17 Had the General Assembly intended to make a remedy available for liens that had previously violated the statute, it could have used mandatory language such as "shall be entitled" instead of "may bring an action." And it could have stated "has been subjected" rather "is subject." But it did neither. We conclude, based on the plain language of the statute, that the General Assembly intended the claim for relief to attach at the time a complaint is filed. See Gerganoff , 241 P.3d at 935.

¶ 18 Even if plaintiff asserted a violation of the hospital lien statute in her original complaint, she was no longer subject to a lien that violated the statute at that time. When plaintiff filed, BCH had complied with section 38-27-101(1) for the filing of a hospital lien. Specifically, BCH had billed BCBS "in the same manner [as it would for] patients who are not injured as the result of the negligence or wrongful acts of another person," § 38-27-101(1) ; had adjusted the balance based on payment by BCBS; and had amended the lien to reflect only the remaining charges. For these reasons, the lien was not then in violation of the statute, and we conclude that the statute does not permit plaintiff to seek damages.

¶ 19 We are not persuaded otherwise by plaintiff's policy arguments that the General Assembly could not have intended our interpretation because such an interpretation "creates races to the courthouse" and allows hospitals to evade liability by amending or withdrawing a lien before a plaintiff sues. See State Farm Mut. Auto. Ins. Co. v. Fisher , 2018 CO 39, ¶ 26, 418 P.3d 501 ("[W]e think such public policy arguments would be better directed to the legislature."). Nor are we persuaded by plaintiff's argument that the legislative history supports only her interpretation. When a statute's plain language is clear and susceptible of only one reasonable interpretation, the statute must be applied as written. Smith v. Jeppsen , 2012 CO 32, ¶ 14, 277 P.3d 224.

¶ 20 We do not address plaintiff's argument-raised for the first time in her reply brief-that because the amended statute provides a penalty, we should construe it in her favor. See Flagstaff Enters. Constr. Inc. v. Snow , 908 P.2d 1183, 1185 (Colo. App. 1995) (refusing to consider an argument raised for the first time in a reply brief).

IV. Conclusion

¶ 21 We affirm the district court's judgment.

JUDGE WEBB and JUDGE FOX concur.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      Plaintiff also asserts that the lien was improper because it was for an amount greater than that allowed by BCH's contract with BCBS. Even if we agree, our analysis for the overall failure to bill prior to lien creation addresses this assertion because BCH had billed BCBS an adjusted amount before plaintiff sued.

      We are unable to review the original complaint because plaintiff did not designate it as part of the record. We generally presume that material portions omitted from the record would support the district court's judgment. People v. Wells , 776 P.2d 386, 390 (Colo. 1989).


author: Opinion by JUDGE BERGER

text:
    SECURITY CREDIT SERVICES, LLC, Plaintiff-Appellant, v. Winifried HULTERSTROM, Defendant-Appellee.
    Court of Appeals No. 17CA1423
    Colorado Court of Appeals, Division V.
    Announced January 24, 2019
    Vargo & Janson PC, Gerald P. Vargo, Yosy V. Janson, Nick J. Deganhard, Lakewood, Colorado, for Plaintiff-Appellant
    No Appearance for Defendant-Appellee
    Notarianni & Notarianni, Gregory J. Notarianni, Denver, Colorado; Sweetbaum Sands Anderson P.C., Geoffrey P. Anderson, Denver, Colorado, for Amicus Curiae Real Estate Law Section of the Colorado Bar Association
    Philip J. Weiser, Attorney General, Kimberly S. Sorrells, Deputy Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Department of Personnel and Administration
   Opinion by JUDGE BERGER

¶ 1 Can a judgment creditor obtain a judgment lien against real property when more than six years have passed since the entry of the judgment? If so, what must the creditor do to obtain such a lien?

¶ 2 We hold that a judgment creditor may obtain a judgment lien at any time during the remaining life of the judgment, but if more than six years have passed since the entry of the judgment, the creditor must first revive the judgment and record the transcript of the revived judgment. This is true whether or not the judgment creditor previously obtained a judgment lien.

¶ 3 Because the district court erroneously concluded that revival of the judgment was not required and denied the creditor's request to revive the judgment, we reverse the district court's order.

I. Relevant Facts and Procedural Background

¶ 4 In 2010, the district court entered a money judgment in favor of plaintiff, Security Credit Services, LLC, against defendant, Winifried Hulterstrom. Security Credit obtained a transcript of the judgment, but it is not clear from the record whether Security Credit ever recorded the transcript of judgment and thus obtained a judgment lien on real property owned or later acquired by Hulterstrom in the county in which the transcript was recorded. In any event, it appears that Security Credit never foreclosed that lien on any specific property.

¶ 5 In 2017, Marshall Recovery II LLC filed notice with the district court that it had purchased the money judgment from Security Credit. Not long after that, but more than six years after the entry of judgment, Marshall moved under C.R.C.P. 54(h) to revive the judgment. The district court denied the motion, stating "[t]he 6-year period [from the date of the judgment] expired on 10-13-16."

¶ 6 Marshall moved to reconsider, arguing that to obtain a new, valid judgment lien, it had to first revive the judgment. The district court denied this request a second time, stating as follows:

C.R.S. 13-52-102(1) provides that a judgment lien expires six years after entry of judgment unless, prior to the expiration of the six-year period, the judgment is revived and a new transcript of judgment recorded. In this case, as previously noted, the judgment lien expired on 10-13-16. Accordingly, it is too late to continue the original lien. The judgment creditor may, if it wishes, record a new transcript of judgment, which will create a new lien, effective as of the date of recording. There is no need to revive the judgment itself, since it is good for 20 years under C.R.S. 13-52-102(2) and reviving the judgment would not change the effect of the new lien.

¶ 7 In what Marshall describes as a "last ditch-effort" to obtain a revived judgment, it moved for a hearing on the motion to revive the judgment, which the district court denied. Marshall then timely filed this appeal.

II. Standard of Review

¶ 8 We review matters of statutory interpretation de novo. Perfect Place, LLC v. Semler , 2018 CO 74, ¶ 40, 426 P.3d 325. Our primary purpose is to give effect to the intent of the General Assembly. Id. We look first to the language of the statute, giving words and phrases their plain and ordinary meanings. Id. We consider the statute as a whole and give consistent, harmonious, and sensible effect to all of its parts. Id. We apply the same rules of construction to the Colorado Rules of Civil Procedure. In re Marriage of Wiggins , 2012 CO 44, ¶ 24, 279 P.3d 1.

III. A Judgment Creditor May Obtain a Judgment Lien More Than Six Years After the Entry of Judgment, But Must Revive the Judgment to Do So

¶ 9 In Colorado, the exclusive method to obtain a judgment lien against real property based on a Colorado judgment is to record a transcript of the judgment in the records of the clerk and recorder of a Colorado county. § 13-52-102(1), C.R.S. 2018. Once recorded, the transcript of judgment constitutes a lien on all real property owned, or later owned, in that county by the judgment debtor. Id. The priority date of the lien, for Recording Act purposes, is the date of recordation of the transcript of judgment; the date of the judgment itself has no bearing on the priority date. See § 38-35-109(1), C.R.S. 2018.

¶ 10 Under section 13-52-102(2)(a), a judgment has a life of twenty years. A judgment lien has a life of six years from the date of the underlying judgment. § 13-52-102(1). To extend an existing judgment lien, the judgment creditor must revive the judgment and record a transcript of the revived judgment before the existing lien expires. Id.

¶ 11 These statutes do not explicitly address the questions raised here: (1) whether a judgment creditor may obtain a new judgment lien after a prior judgment lien has expired; (2) whether a judgment creditor may obtain a judgment lien after six years have elapsed since the entry of judgment and no judgment lien was previously obtained; and (3) if the answer is "yes" to those questions, whether the judgment creditor must first revive the underlying judgment.

¶ 12 Both a state statute and a rule of civil procedure bear on these questions. Section 13-52-102 says, in relevant part:

(1) ... A transcript of the judgment record ... may be recorded in any county; and from the time of recording such transcript ... the judgment shall become a lien upon all the real estate ... owned by such judgment debtor or which such judgment debtor may afterwards acquire in such county, until such lien expires. The lien of such judgment shall expire six years after the entry of judgment unless, prior to the expiration of such six-year period, such judgment is revived as provided by law and a transcript of the judgment record of such revived judgment ... is recorded in the same county in which the transcript of the original judgment was recorded, in which event the lien shall continue for six years from the entry of the revived judgment. A lien may be obtained with respect to a revived judgment in the same manner as an original judgment and the lien of a revived judgment may be continued in the same manner as the lien of an original judgment....
(2)(a) ... [E]xecution may issue on any judgment described in subsection (1) of this section to enforce the same at any time within twenty years from the entry thereof, but not afterwards, unless revived as provided by law, and, after twenty years from the entry of final judgment in any court of this state, the judgment shall be considered as satisfied in full, unless so revived.

¶ 13 C.R.C.P. 54(h) says, in relevant part:

To revive a judgment a motion shall be filed alleging the date of the judgment and the amount thereof which remains unsatisfied.... A revived judgment must be entered within twenty years after the entry of the judgment which it revives, and may be enforced and made a lien in the same manner and for like period as an original judgment. If a judgment is revived before the expiration of any lien created by the original judgment, the filing of the transcript of the entry of revivor in the register of actions with the clerk and recorder of the appropriate county before the expiration of such lien shall continue that lien for the same period from the entry of the revived judgment as is provided for original judgments. Revived judgments may themselves be revived in the manner herein provided.

¶ 14 Read together, these provisions provide that a creditor may obtain a judgment lien at any time during the twenty-year life of a judgment, but if more than six years have passed since the entry of judgment, the creditor must first revive the judgment.

¶ 15 The plain language of section 13-52-102(2)(a) -"execution may issue ... to enforce the [judgment] at any time " within the twenty-year life of the judgment-compels the conclusion that a judgment creditor may obtain a judgment lien at any time during that period, even after an original judgment lien has expired. (Emphasis added.) Notably, while both section 13-52-102 and C.R.C.P. 54(h) contemplate that a judgment may be enforced at any time during its life, neither contains any language prohibiting a judgment creditor from obtaining a judgment lien after an initial judgment lien has expired, but before the end of the judgment's twenty-year life.

¶ 16 Section 13-52-102(1) expressly and unambiguously provides that a judgment lien expires six years after the entry of the judgment (not the date of issuance or recordation of any transcript of judgment). Therefore, the recordation of a transcript of judgment, without more, after the expiration of the six-year period, accomplishes nothing because any such lien has expired.

¶ 17 This dilemma is solved if, but only if, the creditor revives the judgment prior to recordation of the transcript of judgment. In that event, the lien created by the recordation of the transcript of the revived judgment is valid for six years from the date of the revived judgment.

IV. Conclusion

¶ 18 The order denying Marshall's motion for revival of judgment is reversed, and the case is remanded for the district court to address that motion.

JUDGE ROMÁN and JUDGE RICHMAN concur.

      Though Security Credit assigned its rights to the judgment to Marshall, the caption in this case remained the same. See C.R.C.P. 25(c).

      A judgment creditor may extend the life of a judgment by reviving the judgment. § 13-52-102(2)(a), C.R.S. 2018.

      For purposes of our analysis, there is no distinction between (1) a judgment creditor obtaining a new judgment lien after a prior judgment lien has expired and (2) a judgment creditor obtaining a judgment lien more than six years from the date of judgment when no prior judgment lien has been obtained.

      If the creditor records a transcript of judgment within six years of the date of the judgment, a judgment lien is created. That lien expires six years from the date of the judgment, unless, before the expiration of the six-year period, the creditor revives the judgment, obtains a transcript of judgment of the revived judgment, and records the transcript. In that event, the revived judgment lien maintains the original priority date of the originally recorded transcript of judgment because it is a continuation of the initial judgment lien, rather than a new lien. See § 13-52-102(1) ; C.R.C.P. 54(h).


text:
    Michael D. BROWN, Plaintiff-Appellant, v. AMERICAN STANDARD INSURANCE COMPANY OF WISCONSIN, Defendant-Appellee.
    Court of Appeals No. 17CA2089
    Colorado Court of Appeals, Division V.
    Announced January 24, 2019
    McDivitt Law Firm, P.C., David E. McDivitt, Edward Lomena, Colorado Springs, Colorado, for Plaintiff-Appellant
    Campbell, Latiolais & Averbach, LLC, Colin Campbell, Phillip Khalife, Greenwood Village, Colorado, for Defendant-Appellee
   Opinion by JUDGE BERGER

¶ 1 This insurance dispute arises from plaintiff Michael D. Brown's motorcycle accident, and the purported cancellation of his motorcycle insurance policy by defendant, American Standard Insurance Company of Wisconsin.

¶ 2 After Brown sued for benefits under the policy, the trial court granted American Standard's summary judgment motion, concluding that no coverage was in effect on the date of the accident because American Standard had previously given written notice of cancellation on the ground that Brown did not have a valid driver's license. But Brown contested that fact, and offered admissible evidence that he had a valid driver's license at the time of the cancellation and on the date of the accident.

¶ 3 We conclude, as a matter of first impression in Colorado, that when an insurer notifies an insured that it is cancelling an automobile insurance policy and specifies the reason for the cancellation, the validity of the cancellation turns on the accuracy of the information underlying the cancellation. Under these circumstances, a policy cancellation based on inaccurate information is no cancellation at all.

¶ 4 Because there is a disputed issue of material fact whether the stated reason for American Standard's cancellation of Brown's policy was true, we reverse the trial court's summary judgment.

I. Relevant Facts and Procedural History

¶ 5 In March 2014, Brown purchased a motorcycle insurance policy from American Standard for his Suzuki motorcycle. On August 5, 2014, American Standard mailed a notice to Brown that it was cancelling that policy effective August 20, 2014. The stated reason for cancellation was "DOES NOT HAVE A VALID DRIVER'S LICENSE." Brown does not contest that he received the notice of cancellation and that, before the lawsuit that underlies this appeal, he took no action to dispute the cancellation.

¶ 6 On September 6, 2014, Brown was involved in an accident while driving the motorcycle. He allegedly sustained significant injuries. Apparently because the other driver was either uninsured or underinsured, Brown made a claim against the American Standard uninsured/underinsured motorist coverages.

¶ 7 Approximately a month and a half after the purported policy cancellation, Brown received a letter dated October 3, 2014, from American Family Mutual Insurance Company regarding an automobile insurance policy issued to Brown by that company. The letter stated: "Please disregard the termination notice recently sent to you. Information recently received enables us to continue this policy without interruption in coverage."

¶ 8 When American Standard denied coverage, Brown filed a complaint against American Standard for, among other things, breach of contract. American Standard moved for summary judgment, contending that coverage was not in force on the date of the accident because it had previously cancelled the policy.

¶ 9 Brown filed a written response to American Standard's summary judgment motion, supported by Brown's affidavit attesting that he had a valid Colorado driver's license both at the time of the cancellation and on the date of the accident.

¶ 10 The trial court concluded that there were no disputed issues of material fact and granted American Standard's summary judgment motion. Brown appeals.

II. Standard of Review

¶ 11 We review a grant of summary judgment de novo. P.W. v. Children's Hosp. Colo. , 2016 CO 6, ¶ 11, 364 P.3d 891.

¶ 12 "Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. The party requesting summary judgment has the initial burden of showing that there is no genuine issue of material fact. Gibbons v. Ludlow , 2013 CO 49, ¶ 11, 304 P.3d 239.

¶ 13 If this initial burden is met, the burden shifts to the nonmoving party to demonstrate the existence of a disputed issue of material fact. Civil Serv. Comm'n v. Pinder , 812 P.2d 645, 649 (Colo. 1991). A material fact is one that impacts the outcome of the case. Mt. Emmons Mining Co. v. Town of Crested Butte , 690 P.2d 231, 239 (Colo. 1984).

III. There Is a Disputed Issue of Material Fact Regarding the Effectiveness of American Standard's Cancellation of the Policy

¶ 14 In its summary judgment motion, American Standard argued that there was no disputed issue of material fact because insurance coverage was not in effect on the date of the accident. To support this contention, American Standard submitted the written notice of cancellation.

¶ 15 As noted above, Brown did not contest in the trial court, and concedes on appeal, that American Standard mailed the notice of cancellation to his last known address and that he did not challenge the cancellation either before the effective date of the cancellation or at any time before the filing of the lawsuit underlying this appeal.

¶ 16 Thus, American Standard met its initial summary judgment burden by establishing that the policy was not in effect on the date of the accident. To avoid summary judgment, Brown was required to establish a disputed issue of material fact. Pinder , 812 P.2d at 649.

¶ 17 To meet his summary judgment burden, Brown did three things. First, Brown supported his opposition to summary judgment with his affidavit stating that, contrary to the reason given for the policy cancellation, he had a valid Colorado driver's license at the time of cancellation and on the date of the accident. Second, he argued that, despite American Standard's attempted cancellation, coverage in fact continued through the date of the accident because American Family told him on October 3, 2014, to disregard the previous cancellation letter. Third, he asserted that American Standard continued to accept payments from Brown after the cancellation, which reinstated the policy retroactive to the date of the accident.

¶ 18 Brown's first contention raises a disputed issue of material fact requiring reversal. We do not decide the issues presented by Brown's second and third contentions because they are not necessary to our disposition.

A. The Validity of American Standard's Policy Cancellation Turns on the Accuracy of the Underlying Reason for Cancellation

¶ 19 As noted, Brown supported his opposition to summary judgment with his affidavit attesting that, contrary to the stated basis for cancellation, he had a valid Colorado driver's license at all relevant times.

1. Preservation

¶ 20 Before addressing the merits of this argument, we must first confront whether Brown sufficiently preserved this argument in the trial court.

¶ 21 It is axiomatic that in civil cases, issues not raised in or decided by the trial court generally will not be addressed for the first time on appeal. Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C. , 2012 CO 61, ¶ 18, 287 P.3d 842. If a party raises an argument to such a degree that the court has the opportunity to rule on it, that argument is preserved for appeal. Battle N., LLC v. Sensible Hous. Co. , 2015 COA 83, ¶ 13, 370 P.3d 238.

¶ 22 Brown's response to American Standard's motion for summary judgment stated that "Plaintiff has provided a sworn affidavit stating that he did have a valid driver's license" at the time of cancellation, but it did not explain what, if any, legal significance that fact had. Despite the absence of meaningful argument regarding the legal impact of a policy cancellation premised on false information, we discern no reason for the submission of Brown's affidavit other than to challenge the effectiveness of the cancellation.

¶ 23 The trial court recognized this contention and addressed it, reaching the legal conclusion that the validity of Brown's license at the time of cancellation was immaterial and that American Standard "had effectively cancelled [Brown's] motorcycle insurance policy prior to the accident." Because the trial court ruled on this question, we conclude that the issue raised on appeal-the validity of the cancellation based on the allegedly incorrect information that Brown did not have a valid driver's license-was preserved.

2. Merits

¶ 24 If Colorado law provides that the purported cancellation of an automobile insurance policy is ineffective when the claimed basis for cancellation is factually incorrect, then summary judgment was unwarranted. We now turn to that legal question.

¶ 25 Colorado law requires that insurers comply strictly with statutory and contractual requirements when cancelling an automobile insurance policy. See, e.g. , Geiger v. Am. Standard Ins. Co. of Wis. , 117 P.3d 16, 18 (Colo. App. 2004) ; Rotenberg v. Am. Standard Ins. Co. of Wis. , 865 P.2d 905, 907 (Colo. App. 1993).

¶ 26 Section 10-4-602(1), C.R.S. 2018, limits the reasons an insurer may rely on to cancel an automobile insurance policy. A notice of cancellation is invalid unless based on one of the reasons listed in the statute. § 10-4-602(1). A notice of cancellation, other than a notice of cancellation for nonpayment of premium, must include either the reason for the cancellation or a statement that the insurer will provide the reason upon timely written request. § 10-4-603(1), C.R.S. 2018.

¶ 27 No published Colorado case addresses whether a notice of cancellation that includes a reason for cancellation is ineffective if the reason given is inaccurate.

¶ 28 Courts from other states, however, have held that cancellation of an insurance policy premised on incorrect facts is no cancellation at all. See, e.g. , Peterson v. Allstate Ins. Co. , 164 Cal.App.2d 517, 330 P.2d 843, 846 (1958) ; Nassau Ins. Co. v. Hernandez , 65 A.D.2d 551, 408 N.Y.S.2d 956, 957-58 (1978).

¶ 29 In New York, like in Colorado, an insurer must, under various circumstances, state a reason for cancelling an automobile insurance policy. See § 10-4-603 ; N.Y. Ins. Law § 3425 (McKinney 2018). A New York intermediate appellate court held that implicit in a statutory requirement that a reason be given for cancelling an insurance policy is a requirement that the noticed reason be accurate. Nassau Ins. , 408 N.Y.S.2d at 957. If the reason given for the purported cancellation is factually inaccurate, the cancellation is invalid. Id. at 957-58.

¶ 30 Similarly, a California intermediate appellate court held that a cancellation of an automobile insurance policy, based on the mistaken premise that the premium was unpaid, was ineffective. Peterson , 330 P.2d at 846. Put another way, "a cancellation by mistake is no cancellation at all." Id.

¶ 31 In other jurisdictions where insurers must, by statute, give insureds a reason for the cancellation of insurance, courts have held cancellations ineffective because (1) insurers did not describe the reasons for cancellation with sufficient specificity, e.g. , Fields v. Parsons , 353 Mass. 706, 234 N.E.2d 744, 745 (1968) ; (2) the reasons given by insurers were not consistent with those permitted by statute, e.g. , Gen. Star Indem. Co. v. Thunderbutte Enters., LLC , 221 F.Supp.3d 1174, 1182 (E.D. Cal. 2016) ; and (3) information required to be included in the notices of cancellation was incorrect, e.g. , Argenzio v. Aetna Cas. & Sur. Co. , 65 Misc.2d 813, 318 N.Y.S.2d 64, 67 (N.Y. Civ. Ct. 1971).

¶ 32 In short, courts have widely held that an insurer's attempt to cancel an insurance policy must strictly comply with statutory requirements and, when required by statute, accurately apprise the insured of the reason for cancellation.

¶ 33 In Colorado, at least in certain circumstances, an automobile liability insurer is required by statute to state the reason for cancellation; indeed, the statute limits cancellation to those circumstances enumerated in the statute. §§ 10-4-602(1), 10-4-603(1), (2). Consistent with the reasoning of the court in NassauInsurance and other courts that have considered the implications of similar statutes, we believe that implicit in such requirements is that the stated reason for cancellation must be factually accurate, and if it is not, there is no cancellation at all. See Gen. Star , 221 F.Supp.3d at 1182 ; Fields , 234 N.E.2d at 745 ; Nassau Ins. , 408 N.Y.S.2d at 957-58 ; Argenzio , 318 N.Y.S.2d at 67 ; see also 2 Steven Plitt et al., Couch on Insurance § 32:42, Westlaw (3d ed. database updated June 2018).

¶ 34 Therefore, we hold, as a matter of first impression in Colorado, that when an insurer provides the reason for cancellation of an automobile insurance policy either with the notice of cancellation or in response to a request from the insured, the reason given must be accurate, or the notice of cancellation is ineffective.

¶ 35 We recognize that some decisions from other jurisdictions apply a rule that if the insurer is not required to state the reason for cancellation, either by statute or by the terms of the policy, it is immaterial if the insurer states a reason for cancellation that is factually inaccurate. See, e.g. , Gibbons v. Kelly , 156 Ohio St. 163, 101 N.E.2d 497, 499 (1951). We reject this rule. It contravenes basic principles of good faith and fair dealing in commercial transactions. See § 4-1-304, C.R.S. 2018; U.C.C. § 1-304 (Am. Law Inst. & Unif. Law Comm'n 2001). Moreover, we can discern no logical basis for such a rule and find no support for it in Colorado law.

¶ 36 The stated reason for American Standard's cancellation of the policy was that Brown did not have a valid driver's license, which, if true, would be a proper basis for policy cancellation. See § 10-4-602(1)(b). But Brown controverted that factual premise in his affidavit. As a result, there is a disputed issue of material fact as to whether Brown had a valid driver's license at the time of cancellation, and the trial court erred in treating the notice of cancellation as dispositive on summary judgment.

3. The Question Whether Brown Had a Valid Motorcycle Endorsement on His Driver's License Is Not Properly Before Us

¶ 37 In its answer brief, American Standard argues that it cancelled Brown's insurance coverage not because he did not have a valid driver's license, but because he did not have a valid motorcycle endorsement on his license. But American Standard made no such argument in the summary judgment proceedings.

¶ 38 While an appellee may defend the trial court's judgment on any ground supported by the record, whether or not that ground was addressed by the trial court, Farmers Grp., Inc. v. Williams , 805 P.2d 419, 429 (Colo. 1991), that rule has no bearing when, as here, there is nothing in the trial court record that addresses motorcycle endorsements to drivers' licenses.

4. Brown Did Not Waive His Right to Sue or Ratify American Standard's Purported Cancellation

¶ 39 American Standard also contends, in essence, that its cancellation of Brown's policy was effective, regardless of whether the reason for cancellation was factually accurate, because Brown did not contest the cancellation until well after the accident, and indeed, not before bringing the suit that underlies this appeal. But American Standard supplies no legal support for that proposition, and we have independently found none. To the contrary, divisions of this court have recognized (albeit in different factual settings) that an insured who received a defective notice of cancellation of an insurance policy nevertheless may bring suit against the insurer under the policy without having previously challenged the cancellation. See, e.g. , Geiger , 117 P.3d 16 ; Rotenberg , 865 P.2d 905.

¶ 40 In other jurisdictions, when insurers have cancelled automobile policies on the basis of incorrect factual information or without providing a sufficient description of the reason for the cancellation, and an accident occurred following the purported cancellation, insureds have successfully sued to enforce those policies. See, e.g. , Fields , 234 N.E.2d at 745 ; Argenzio , 318 N.Y.S.2d at 67. And as a general matter, courts across multiple jurisdictions have recognized that one remedy available to insureds facing wrongful cancellation is to wait until the policy is actionable and sue to enforce it. 2 Plitt et al., § 31:28;

17 Richard A. Lord, Williston on Contracts § 49:137, Westlaw (4th ed. database updated Nov. 2018).

¶ 41 Based on these authorities, we hold that, standing alone, the uncontested fact that Brown did not challenge the cancellation before bringing suit on the policy did not constitute either a waiver of his right to sue under the policy or a ratification of the allegedly improper cancellation.

B. In View of Our Reversal of the Summary Judgment, We Do Not Adjudicate Brown's Arguments That American Standard's Actions Reinstated the Motorcycle Policy; However, the Trial Court May Treat Its Prior Rulings on These Issues As the Law of the Case

¶ 42 With respect to Brown's claim that the October letter from American Family reinstated his motorcycle policy, that letter addresses a different insurance policy than the motorcycle policy at issue here and was issued by a different insurance company. American Standard pointed out this obvious fact in its summary judgment briefing. The trial court reached the same obvious conclusion it its summary judgment order. We are perplexed that, on appeal, Brown continues to advance this same meritless argument without even colorably addressing the fact that the letter (a) references a different policy number, (b) references a different vehicle, and (c) is from a different insurance company.

¶ 43 As to Brown's claim that American Standard continued to accept premium payments after cancellation, thereby reinstating the policy, the trial court ruled that Brown did not meet his burden to demonstrate a disputed issue of material fact. Inexplicably, Brown submitted no cancelled checks (or other relevant evidence) in support of this argument. Brown's argument is premised solely on line items from bank statements showing payments from his account to "AFM*AM FAMILY INSURANCE" on October 14, 2014, and November 19, 2014. But these entries demonstrate payments made to American Family Mutual Insurance Company, not American Standard, and we know, as addressed above, that American Family issued a separate automobile policy to Brown. Nor did Brown demonstrate any correlation between any premiums due under the motorcycle policy and the payments made to American Family.

¶ 44 Brown also contends without providing any support that American Standard and American Family are one and the same. While American Standard appears to concede that American Standard is an affiliate of American Family, that alone is insufficient to establish a disputed issue of material fact that American Standard reinstated the motorcycle policy when American Family accepted premium payments after the date of purported cancellation.

¶ 45 Neither party has addressed whether a Colorado appellate court has the authority to affirm a component part of a summary judgment when the judgment itself is reversed. We think it prudent not to address this question, which may be an issue of first impression in Colorado, without the benefit of briefing.

¶ 46 Regardless, the trial court afforded Brown a full and fair opportunity to establish his claims that the policy was reinstated both because of acceptance of premiums and the insurer's purported revocation of the prior cancellation. Brown failed to convince the trial court, and there is no impediment to the trial court considering those prior rulings as the law of the case, under that discretionary doctrine. See Kuhn v. State Dep't of Revenue , 897 P.2d 792, 795 n. 5 (Colo. 1995).

IV. Attorney Fees

¶ 47 Because Brown has prevailed on this appeal, we reject American Standard's request for attorney fees.

V. Conclusion

¶ 48 The summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

JUDGE ROMÁN and JUDGE RICHMAN concur.

      This was policy number XXXX-XXXX-06-04-SCYC-CO, for a "2013 SUZUKI MOTORCYCLE."

      This was policy number XXXX-XXXX-04-98-FPPPA-CO, for a "2009 CADI AF6." American Standard contends that "2009 CADI AF6" refers to a 2009 Cadillac, a contention not disputed by Brown.

      Section 10-4-602(2), C.R.S. 2018, provides that the statute does not apply when the policy has been in effect less than sixty days. The statute is also inapplicable to the nonrenewal of a policy. § 10-4-602(3).

      A notice of cancellation for nonpayment of premium must include the reason for cancellation or a statement that the policy will be cancelled if the premium is not paid. § 10-4-603(1), C.R.S. 2018.

      We do not address whether a policy provision requiring a reason for cancellation invokes a similar rule because the American Standard policy is not part of the record on appeal.

      The California holding does not appear to be limited to those situations in which a statute requires the notice of cancellation to include a statement of the reason for cancellation.

      Because the question is not properly before us, we do not address whether lack of a motorcycle endorsement would be sufficient grounds under section 10-4-602(1)(b) to cancel a motorcycle insurance policy. It is for the district court to determine, whether by pleading amendment or otherwise, American Standard may repursue this argument on remand.

      The insured's right to sue may be subject, under various circumstances, to requirements that the insured continued to tender premiums following cancellation or that the policy would have continued in effect through the time of the payable event. 2 Steven Plitt et al., Couch on Insurance § 31:28, Westlaw (3d ed. database updated June 2018); 17 Richard A. Lord, Williston on Contracts § 49:137, Westlaw (4th ed. database updated Nov. 2018). We do not further address these questions because the record is not sufficiently developed.

      We do not address any other defenses that American Standard has raised or may by proper amendment raise.

      Both the vehicle identification number and vehicle description in the motorcycle policy are different than the information referenced in the October letter. See supra notes 1 & 2.

      Initial disclosure documents filed by American Standard under C.R.C.P. 26(a)(1) show that Brown's motorcycle policy continued from November 17, 2014, forward, but these documents do nothing to demonstrate that Brown's motorcycle policy was in effect on the date of the accident.


author: Opinion by JUDGE TERRY

text:
    Robert ROYBAL, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, a Colorado Municipal Corporation; and Department of Safety for the City and County of Denver, Defendants-Appellees.
    Court of Appeals No. 17CA1662
    Colorado Court of Appeals, Division I.
    Announced January 24, 2019
    Elkus & Sisson, P.C., Lucas Lorenz, Donald C. Sisson, Denver, Colorado, for Plaintiff-Appellant
    Kristin M. Bronson, City Attorney, Charles T. Mitchell, Assistant City Attorney, Natalia S. Ballinger, Assistant City Attorney, Denver, Colorado, for Defendants-Appellees
   Opinion by JUDGE TERRY

¶ 1 Under sections 2.6.2 and 2.6.4 of the Charter of the City and County of Denver (Charter), is the authority to hire, discipline, and terminate Denver Sheriff Department (DSD) employees limited solely to the Manager of Safety (Manager) and the Deputy Manager of Safety (Deputy)? Based on the plain language of the relevant Charter sections, we conclude that the answer to this question is "no." And under the facts of this case, we also conclude that the City and County of Denver's Career Service Authority Board (Board) did not improperly promulgate and retroactively apply a Career Service Rule (C.S.R.) to this case.

¶ 2 Plaintiff, Robert Roybal, contends that the district court erred in affirming the decision and order of the Board, which affirmed the termination of his employment with the DSD. We affirm the judgment of the district court.

I. Background

¶ 3 Roybal was a Deputy Sheriff for the DSD. After an investigation, the Department of Safety's Civilian Review Administrator, Shannon Elwell (Administrator), determined that Roybal had violated multiple rules, warranting disciplinary action, and terminated his employment.

¶ 4 Roybal appealed the termination to a career service hearing officer, arguing that his conduct had not violated any rules. After conducting a de novo review of the Administrator's decision, the hearing officer affirmed Roybal's termination.

¶ 5 Roybal then appealed the hearing officer's decision to the Board, reasserting that his conduct violated no rules and contending that his termination was void as an ultra vires act. Roybal argued that the Charter reserved the authority to discipline or terminate DSD employees solely to the Manager or to the Deputy. The Board affirmed the hearing officer's decision.

¶ 6 Roybal appealed the Board's order to the district court under C.R.C.P. 106(a)(4), asserting that the Board abused its discretion in affirming the hearing officer's decision. The district court concluded that the Charter was unambiguous and that the Administrator had disciplinary authority to terminate Roybal's employment. The district court also rejected Roybal's claim that the Board abused its discretion in determining that procedural errors committed by the DSD during the pre-disciplinary process did not require Roybal's termination to be reversed, and the court affirmed the Board's order.

II. Disciplinary Authority Under the Charter

¶ 7 Roybal contends that, under the Charter, the authority to discipline and terminate DSD employees rests solely with the Manager or the Deputy, to the exclusion of the Administrator, and therefore his termination was void as an ultra vires act. We disagree.

A. Standard of Review and Applicable Law

¶ 8 C.R.C.P. 106(a)(4) provides that the district court may review actions and provide relief "[w]here any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law."

¶ 9 "In an appeal of a C.R.C.P. 106(a)(4) proceeding, the appellate court is in the same position as the district court concerning review of an administrative board's decision." Shupe v. Boulder Cty. , 230 P.3d 1269, 1272 (Colo. App. 2010). We therefore review the decision of the administrative body itself, not that of the district court, and review de novo whether the agency abused its discretion. Khelik v. City & Cty. of Denver , 2016 COA 55, ¶ 12, 411 P.3d 1020. As relevant here, an agency abuses its discretion if it has misconstrued or misapplied the law. Id. at ¶ 13.

1. Statutory Interpretation Principles

¶ 10 "The authority of a city's career service board is derived from that municipality's city charter." City of Englewood v. Englewood Career Serv. Bd. , 793 P.2d 585, 586 (Colo. App. 1989).

¶ 11 We apply the rules of statutory interpretation to municipal charters and ordinances. Smith v. City & Cty. of Denver , 789 P.2d 442, 445 (Colo. App. 1989). We begin with the plain meaning of the charter's and ordinance's language, reading words and phrases in context and construing them according to common usage. Marshall v. Civil Serv. Comm'n , 2016 COA 156, ¶ 15, 401 P.3d 96. If the language is unambiguous, we do not alter its plain meaning nor look any further. Cook v. City & Cty. of Denver , 68 P.3d 586, 588 (Colo. App. 2003).

¶ 12 We also construe charter provisions pertaining to the same subject matter as a whole to ascertain legislative intent and avoid inconsistencies and absurdities. Id. If a charter provision is susceptible of more than one reasonable interpretation, "the interpretation suggested by the city's executive and legislative bodies is persuasive." Id. Similarly, we "defer to the interpretation of an administrative rule or regulation by the agency charged with its administration." Ross v. Denver Dep't of Health & Hosps. , 883 P.2d 516, 519 (Colo. App. 1994) ; see also Regents of the Univ. of Colo. v. City & Cty. of Denver , 929 P.2d 58, 61 (Colo. App. 1996) ("The agency's interpretation [of a rule it is charged with enforcing] is to be accepted if it has a reasonable basis in law and is warranted by the record.").

¶ 13 "Under the charter of the City and County of Denver, it is the Board which both promulgates and administers the Career Service Authority Rules and whose interpretation is therefore entitled to deference." Ross , 883 P.2d at 519.

2. Charter Provisions

¶ 14 Charter section 2.6.1 creates the Department of Safety and provides that that Department, subject to the supervision and control of the Mayor, shall have "full charge and control" of the DSD. Charter section 2.6.2 creates the position of Manager to be in charge of the Department of Safety. It also provides that the Manager "may appoint a Deputy Manager of Safety, who shall in addition to any other duties assigned perform such functions and exercise such powers of the Manager as the Manager may specifically assign to such Deputy." Id.

¶ 15 Section 2.6.4 relates to the DSD. Among other things, that section specifies that the Mayor appoints the Sheriff; the Sheriff appoints deputy sheriffs; and the Sheriff has full charge and custody of Denver jails. See id. Section 2.6.4 provides that the Manager "shall be deemed the appointing authority pursuant to Career Service requirements for purposes of hiring, discipline and termination of Deputy Sheriffs and other employees within the Sheriff Department." Id.

¶ 16 Relatedly, C.S.R. 16, titled "Code of Conduct and Discipline," specifies the rules, grounds for discipline, and disciplinary process for City and County of Denver employees. C.S.R. 16-15, which substantively encompasses former C.S.R. 16-70, states that "[a]ppointing authorities may delegate in writing any authority given to them under this Rule 16 to a designee within his or her department or agency."

B. Discussion

1. Arguments Based on the Charter and Rules

¶ 17 Roybal contends that the Administrator lacked the authority to discipline or terminate DSD employees, and that only the Manager or Deputy has such authority. He bases his argument on Charter sections 2.6.2 and 2.6.4, which, as noted above, create and give authority to the Manager. He argues that because section 2.6.2 specifically allows the Manager to delegate authority to a Deputy, it constrains the delegation authority in section 2.6.4 such that the Manager may not delegate authority to anyone other than the Deputy. We disagree.

¶ 18 The Board relied on its decision in a previous unrelated disciplinary action, where it concluded that the plain language of section 2.6.4 permits the Manager to designate someone-not necessarily a Deputy-with the authority to discipline employees of the DSD. We agree with this conclusion.

¶ 19 According to section 2.6.2, the Manager has the discretion to appoint a Deputy, and the Deputy may perform "such functions and exercise such powers" as the Manager may assign. But the Charter does not limit the Manager's delegation authority to the Deputy.

¶ 20 There is also no indication in section 2.6.4 that the Manager's authority is limited when assigning functions or powers to others. Section 2.6.4 separately addresses the management, hiring, firing, responsibilities, and compensation of DSD employees. It provides the Manager with the authority to appoint others for the "purposes of hiring, discipline and termination of Deputy Sheriffs and other employees within the Sheriff Department." Id. Under section 2.6.4, the Manager is an "appointing authority pursuant to Career Service requirements." Id. This language is unambiguous and does not limit the Manager's authority to delegate responsibilities to others.

¶ 21 Reading the sections together because both concern the Manager's authority, see Cook , 68 P.3d at 588, we conclude that sections 2.6.2 and 2.6.4 provide the Manager with separate authority to delegate.

• Section 2.6.2 states that the Manager may appoint a Deputy to perform "such functions and exercise such powers" as the Manager may delegate.
• Section 2.6.4 states that the Manager is the appointing authority for purposes of hiring, discipline, and termination of DSD employees. The "Career Service requirements" referenced in section 2.6.4 provide at C.S.R. 16-15 that "[a]ppointing authorities" may delegate "any authority given to them under this Rule 16 to a designee within his or her department or agency."

¶ 22 Because section 2.6.4 gives the Manager appointing authority, and C.S.R. 16-15 allows the Manager to delegate disciplinary authority to a "designee within his or her department," the Manager was permitted to designate the Administrator as a disciplinary authority. And contrary to Roybal's contention, we do not discern any conflict between the C.S.R. and the Charter.

¶ 23 Therefore, the Board did not err when it concluded (1) that the Charter and the C.S.R. do not limit the Manager's ability to designate authority solely to the Deputy, and (2) that the Manager was permitted to delegate disciplinary authority to the Administrator.

2. Arguments Based on Municipal Code Provisions and State Statutes

¶ 24 Roybal next asserts that Denver Revised Municipal Code (D.R.M.C.) sections 14-122 and 18-6(e), and section 30-10-506, C.R.S. 2018, collectively declare that the Manager performs the duties of a Sheriff and that only a Sheriff can fire employees. He argues that these sections also demonstrate that the termination by the Administrator was unauthorized. We reject these arguments.

¶ 25 D.R.M.C. section 18-6(e) provides that "[i]t shall be unlawful for any department head or other officer of the city to willfully promote, discipline, or terminate any employee of the city except in strict conformance with the terms of the career service provisions of the charter and the career service rules." Because Roybal's termination conformed to the Charter and the C.S.R., we perceive no violation of this code provision.

¶ 26 D.R.M.C. section 14-122 provides that "[p]ursuant to Section A9.1 of the Charter, the manager of safety exercises the powers and performs the duties of sheriff under the laws of the state." Section 30-10-506 provides that a sheriff may appoint deputies and "may revoke such appointments at will." However, a sheriff must also adopt personnel policies, including those concerning the review of revocation of appointments, and must provide a deputy with notice of a proposed revocation, as well as an opportunity to be heard prior to such revocation. Id.

¶ 27 To the extent Roybal implies that the statute prohibits delegation of the Manager's authority, Denver's home rule status would preclude the statute from superseding the D.R.M.C. See Colo. Const. art. XX, § 6 ; see also Fraternal Order of Police, Colo. Lodge No. 27 v. City & Cty. of Denver , 926 P.2d 582, 586 (Colo. 1996).

¶ 28 Having determined that the Manager could delegate this authority to the Administrator, we further conclude that the Board did not abuse its discretion in so ruling.

3. Charter Section 2.6.4

¶ 29 In his reply brief, Roybal contends that the language of Charter section 2.6.4 refers to the requirements of the career service personnel system and not to the C.S.R. He argues that section 2.6.4 therefore invokes section 9.1.1 of the Charter, rather than C.S.R. 16, rendering Rule 16 inapplicable.

¶ 30 Because Roybal raises this issue for the first time in his reply brief, we do not address it. See Vitetta v. Corrigan , 240 P.3d 322, 330 (Colo. App. 2009) ("[W]e do not consider appellate arguments raised for the first time in a reply brief.").

III. Disciplinary Proceedings

¶ 31 Roybal contends that procedural errors in the pre-disciplinary process require reversal of his termination and that the Board abused its discretion in concluding otherwise. The procedural errors he cites are (1) that only one division chief was present at the disciplinary hearing, rather than the required two division chiefs, and (2) that the Sheriff did not initiate the discipline by written recommendation to the Manager. According to Roybal, in making these errors, the Board effectively created a new C.S.R., without following its own rulemaking procedures, and applied the rule retroactively to his case to excuse the DSD's violations of its own policies. We reject these contentions.

¶ 32 Even if we assume that these two procedural errors occurred during the pre-disciplinary process, the Board ruled that the hearing officer did not err in upholding Roybal's termination. In so ruling, the Board reasoned that

Career Service Rule 16-72(D) [renumbered to 16-47(D) ] provides that an Agency's failure to strictly follow all pre-disciplinary guidelines set out in the Rules will not constitute grounds for reversing the discipline unless the failure to follow those rules substantially violated the rights of the employee. While this Rule only applies to the failure to follow Career Service Rules (rather than the Agency rules alleged by [Roybal] ), we believe the policy expressed in this rule is sound and applicable to rules or procedures allegedly violated by the Agency in pre-disciplinary proceedings. Unless the violation of internal rules resulted in a substantial violation of [Roybal's] rights, said rules violations will not be grounds for disturbing imposed discipline. In this case, we find that [Roybal] received a full and fair pre-disciplinary process and that any irregularities in that process were trivial and in no way had an adverse impact on the rights of the [Roybal].

¶ 33 We determine that the Board did not engage in rulemaking, and we also agree with its reasoning that the occurrence of alleged procedural errors did not warrant a reversal of Roybal's termination.

¶ 34 The Board has a duty to "[c]ertify that personnel actions involving employees in the career service personnel system, including ... disciplinary actions, and terminations are taken in strict accordance with the career service provisions of the charter, career service rules, and any applicable ordinance of the city." D.R.M.C. § 18-2(a)(5). The Board is charged with "enforc[ing] rules necessary to foster and maintain a merit-based personnel system ..., including but not limited to rules concerning ... grievance procedures, and appeals from actions of appointing authorities to the Board and any hearing officers appointed by the Board." Charter § 9.1.1(A). "Dismissals, suspensions or disciplinary demotions of non-probationary employees in the Career Service shall be made only for cause...." Charter § 9.1.1(B). The C.S.R. vests hearing officers with the "authority to hear and decide all appeals permitted by this Rule 19" and requires hearing officers to "perform the functions necessary to implement and maintain a fair and efficient process for appeals." C.S.R. § 19-30(A). The Board then must "[i]ssue a decision in writing, affirming, modifying, or reversing the hearing officer's decision." C.S.R. § 19-70.

¶ 35 Merely discussing and implementing the policy of a C.S.R. does not implicate quasi-legislative rulemaking by the Board. See Charter § 9.1.1(A). The Board's mention of C.S.R. 16-72(D) was limited to explaining its reasoning in concluding that trivial deviations from pre-disciplinary regulations do not warrant the reversal of a termination decision.

¶ 36 We perceive no error in the Board's finding that Roybal "received a full and fair pre-disciplinary process and that any irregularities in that process were trivial and in no way had an adverse impact on [his rights]."

IV. Sufficiency of Evidence

¶ 37 In his opening brief, Roybal contends that the district court erred in affirming his termination because the record did not contain sufficient evidence to support a finding that his conduct violated any rules warranting disciplinary action. However, because Roybal's reply brief withdrew this issue as a basis for the appeal, we do not address it. See In re Marriage of Morton , 2016 COA 1, ¶ 37, 369 P.3d 800 (declining to address issues withdrawn by counsel at oral argument).

V. Motion to Strike

¶ 38 We deny Roybal's motion to strike portions of the answer brief that include citations to an unpublished opinion of another division of this court. We have disregarded any prohibited citations in that brief.

VI. Conclusion

¶ 39 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE FOX concur.