author: Judge ROY.

text:
    Doris E. PETERMAN, John H. Peterman, Sally Joseph, and Penny Hardrick, Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant-Appellant.
    No. 99CA1162.
    Colorado Court of Appeals, Div. IIL.
    May 25, 2000.

      Harshman & McBee, Donald L. McBee, Grand Junction, Colorado; Law Office of Steven Taffet, Steven Taffet, Boulder, Colorado, for Plaintiffs-Appellees.
    James R. Alvillar & Associates, James R. Alvillar, Leslie A. Goldstein, Grand Junction, Colorado, for Defendant-Appellant.
   Opinion by

Judge ROY.

Defendant, State Farm Mutual Automobile Insurance Company, an Illinois corporation (the insurer), appeals the trial court's award of prejudgment and postjudgment interest to plaintiffs, Doris E. Peterman, John H. Peter-man, Sally Joseph, and Penny Hardrick (the insureds). We affirm.

The insureds were injured in an automobile accident with an uninsured driver, The insureds brought an action against the uninsured driver, notified the insurer of the action, and obtained a default judgment against the uninsured driver well in excess of their uninsured motorist coverage. Insureds then immediately filed a demand with the insurer for payment of the policy limit, $300,000, which was refused. In refusing to pay, the insurer stated that the insureds had failed to comply with both the arbitration and consent to sue clauses in their policy.

Insureds then - commenced - litigation against the insurer alleging breach of contract and insurance bad faith. Insureds obtained a judgment against the insurer that included interest at the statutory rate from the date they notified the insurer of the default judgment. Section 512-102, C.R.S. 1999; see Peterman v. State Farm Mutual Automobile Insurance Company, 948 P.2d 63 (Colo.App.1997) rev'd, 961 P.2d 487 (Colo.1998) (Peterman I ).

In Peterman I, the supreme court held that the insurer was legally compelled to intervene in the action brought by the insured against the uninsured driver, and that by failing to do so, the insurer was bound by the trial court's determination of liability and damages. It further held that the insurer had waived its right to arbitrate.

The insurer then paid insureds the policy limits in partial satisfaction of the judgment, objected to paying any interest on that amount, and requested that the trial court determine the amount of interest it owed, if any. The trial court awarded insureds prejudgment and postjudgment interest, pursuant to § 5-12-102, C.R.S.1999. This appeal followed.

I.

The insurer argues that the trial court erred in awarding the insureds prejudgment interest.

A.

The insurer first argues that the trial court erred because it (1) failed to make the requisite finding that the insurer wrongfully withheld the uninsured motorist benefit or (2) failed to make a determination that an award of prejudgment interest was equitable under the cireumstances.

A trial court's findings of fact are binding on review unless they are clearly erroneous and not supported by the record. Bohrer v. DeHart, 969 P.2d 801 (Colo.App.1998).

Section 5-12-102 states in relevant part:

(1) Exeept as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
(a) When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant,
(b) Interest shall be at the rate of eight percent per annum compounded annually....

Section 5-12-102 governs prejudgment interest on damages from the date of wrongful withholding. In the case of a general verdict, the court is required to make findings regarding the basis upon which damages were due. Pierson v. United Bank, 754 P.2d 431 (Colo.App.1988). The trial court's findings should be clearly ascertainable from uncontroverted facts. Coleman v. United Fire and Casualty Co., 767 P.2d 761 (Colo.App.1988).

Here, in finding that the insureds were entitled to prejudgment interest, the trial court stated that (1) insureds kept the insurer informed of their litigation against the uninsured motorist, (2) the insurer failed to object to, or participate in, the litigation, and (3) case law existing at the time the insurer refused to pay the insureds' judgment should have placed the insurer on notice of the validity of the insureds' position. The trial court further concluded that the insurer had wrongfully withheld the uninsured motorist benefits commencing on the date the insureds obtained their default judgment and made demand on the insurer.

The insurer takes the position that in order for a withholding of payment to be wrongful it must be tortious or in bad faith. The holding of a division of this court in Cooper v. Peoples Bank and Trust Co., 725 P.2d 78 (Colo.App.1986), is directly to the contrary. In Cooper, the court held that the failure of a bank to deliver a warranty deed when it was due under a contract was a sufficient basis to constitute a wrongful withholding of property entitling the buyers to interest from the date of the bank's failure. Under the statute, a wrongful withholding only requires the failure to pay or deliver money or property when there is an obligation to do so.

Therefore, in our view, the trial court made the requisite findings with support in the record that the insurer's refusal to pay constituted a wrongful withholding under § 5-12-102.

B.

The insurer next contends that the payment of the $300,000, the policy limit, precluded an award of prejudgment interest. We disagree.

Specifically, the insurer argues that the extent of its liability is governed by the provisions in the uninsured motorist policy, which states that the insured will pay damages for bodily injury, for which the insureds had purchased $300,000 worth of coverage under the contract.

The insurer also argues that its liability is limited to the policy limits by the operation of § 10-4-609, C.R.S.1999, which states, in pertinent part, as follows:

(4) Uninsured motorist coverage shall include coverage for damage for bodily injury or death which an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle....
(a) Less than the limits for uninsured motorist coverage under the insured's policy; or
(b) Reduced by payments to persons other than an insured in the accident to less than the limits of uninsured motorist coverage under the insured's policy.
(5) The maximum liability of the insurer under the uninsured motorist coverage provided shall be the lesser of:
(a) The difference between the limit of uninsured motorist coverage and the amount paid to the insured by or for any person or organization who may be held legally liable for the bodily injury; or
(b) The amount of damages sustained, but not recovered.

The insurer's uninsured motorist policy states the following:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.
The amount of bodily injury liability coverage is shown on the declarations page.... Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. Under "Each Accident" is the total amount of coverage ... for all damages due to bodily injury to two or more persons in the same accident. (emphasis in original)

The insureds' policy does not contain any provision for prejudgment interest.

Here, in order to determine whether an award of prejudgment interest in excess of the policy limit is proper, we must determine whether the prejudgment interest is a damage item originating from the bodily injury claim or from the insurer's breach of the insurance contract. Because this issue concerns a question of law, review is de movo. City and County of Denver v. Powell, 969 P.2d 776 (Colo.App.1998)

One who is damaged by a breach of contract is entitled under § 5-12-102 to interest from the date of the breach. Allabashi v. Lincoln National Sales Corp. of Colorado-Wyoming, 824 P.2d 1 (Colo.App.1991). In addition, the purpose of statutory interest is to discourage delaying payment of a claim. Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362 (Colo.1989).

In Bowen v. Farmers Insurance Exchange, 929 P.2d 14 (Colo.App.1996), the insured and the insurer disagreed over the amount of underinsured motorist benefits to which the insured was entitled. The insured sued the insurer for breach of contract, declaratory judgment, and requested prejudgment interest, - The trial court awarded prejudgment interest from the date of the parties' stipulation to the tortfeasor's liability and damages, and the insured appealed. A division of this court held that an insurer is liable for prejudgment interest pursuant to § 5-12-102 for underinsured motorist coverage from the date of the insurer's wrongful refusal or failure to pay, notwithstanding an arbitration provision. Bowen did not decide, however, whether there is an obligation to pay prejudgment interest in excess of the coverage.

We find persuasive the lTowa Supreme Court's holding in Vasquez v. LeMars Mutual Insurance Co., 477 NW.2d 404 (Iowa 1991), that prejudgment interest was not subject to the liability limits of an underin-sured motorist policy because the dispute between the insured and the insurer was a contract dispute, not a personal injury claim.

In Vasquez, an underinsured driver injured the insured who filed a claim against his own insurance company for underinsured coverage. In addressing the issue of prejudgment interest, the Iowa court distinguished the breach of contract action from a tort action brought by a third-party claimant against the insured. The court held that the prejudgment interest awarded in the contract action was not damages arising out of the accident but rather damages arising out of the insurer's breach of the insurance contract. Thus, awarding prejudgment interest in excess of policy limits was appropriate.

Here, as in Vasquez, the insureds brought a breach of contract and insurance bad faith action against the insurer after obtaining a judgment against the uninsured motorist. There are, in our view, several compelling reasons to warrant application of the approach adopted in Vasquez. First, unlike the third party personal injury action, the contract action against the insurer concerns wrongdoing on the part of the insurer itself. Secondly, had the insurer performed under the contract, the insured would have had the benefit of interest on the monies rather than the insurer. Finally, adopting the contrary position removes any incentive for the insurer to pay the judgment promptly.

Although we are persuaded by the rationale of Vasquez v. LeMars Mutual Insurance Co., supra, we note that several courts have disagreed with, or declined to follow it, primarily on the grounds that the distinction between a contract and tort action is meaningless in this circumstance. See Lessard v. Milwaukee Insurance Co., 496 N.W.2d 852 (Minn.App.1993); Woods v. Farmers Insurance of Columbus, 106 Ohio App.3d 389, 666 N.E.2d 283 (1995); Carney v. State Farm Mutual Automobile Insurance Co., 877 P.2d 1113 (Okla.1994).

We hold that an uninsured motorist carrier can be required to pay prejudgment interest in exeess of the uninsured motorist limits in an action brought by an insured for breach of contract for failure to pay uninsured motorist coverage after the amount has been determined.

The insurer relies on two cases, Allstate Insurance Co. v. Allen, 797 P.2d 46 (Colo.1990), and Starke v. Allstate Insurance Co., 771 P.2d 3 (Colo.App.1988), rev'd, 797 P.2d 14 (Colo.1990), to support its assertion that, in Colorado, prejudgment interest in excess of an insurer's policy limits is not awardable. We do not read these cases as compelling a different result under the cireumstances presented here, as they concern an award of prejudgment interest to third parties and against the insured.

Nor is a different result mandated by Swan v. American Family Mutual Insurance Co., 8 P.3d 546 (Colo.App.2000), in which a division of this court held that an uninsured motorist insurer is not liable for prejudgment interest from the date of the injury until the date of the award in excess of the policy limit.

The trial court did not err in awarding prejudgment interest in excess of the policy limit.

IL.

The insurer next argues that the trial court erred in awarding postjudgment interest pursuant to $ 5-12-102(4)(b) rather than § 5-12-106(1)(b), C.R.S.1999, which governs postjudgment interest in the event of an appeal. We agree that the trial court relied on the wrong statute but, as the actual interest payable is the same under both statutes, we see no reversible error.

Section 5-12-102(4)(b) provides in relevant part:

Except as provided in section 5-12-106, creditors shall be allowed to receive interest on any judgment recovered before any court authorized to enter the same within this state from the date of entering said judgment until satisfaction thereof is made either:
(b) In all other cases where no rate is specified, at the rate of eight percent per annum compounded annually.

Section 5-12-106 provides for an annually calculated postjudgment interest based on the discount rate while the matter is on appeal should the judgment debtor appeal. It states in relevant part:

If a judgment for money in a civil case is appealed by a judgment debtor and the judgment is affirmed, interest ... [at a rate to be ascertained, on an annual basis, by the Colorado secretary of state] shall be payable from the date of entry of judgment in the trial court until satisfaction of the judgment and shall include compounding of interest annually. (emphasis added)

The insurer argues that, had postjudgment interest been awarded under § 5-12-106(1)(b), the insureds would not be entitled to postjudgment interest from March 20, 1996, the date of the trial court's order, to June 29, 1998, the date the supreme court reversed the court of appeals, affirming the trial court. Essentially, the insurer argues that it is excused from the obligation to pay postjudgment interest during the period its appeal was pending in this court because the appeal was successful, and that, subsequently, it is excused from post-judgment interest during the period the insured's appeal was pending in the supreme court as that appeal was commenced by the insured.

The insurer's appeal from the trial court to this court, and the insureds' appeal from this court to the supreme court, are, for the purposes of the statute, one unsuccessful appeal commenced by the insurer as the judgment debtor.

Section 5-12-106 does not, in any case, provide for a cessation of interest during the appeal of a judgment that is affirmed. Indian Mountain Metropolitan Recreation and Park Dist. v. J.P. Campbell and Associates, 921 P.2d 65 (Colo.App.1996).

Therefore, interest is payable while the appeal was pending in both this court and the supreme court. Because the interest rate is presently the same under both statutes, the error in awarding interest under § 5-12-102 is not reversible.

Order affirmed.

Judge NEY and Judge DAVIDSON concur.


source: Caselaw Access Project

author: Judge MARQUEZ.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David COOPER, Defendant-Appellant.
    No. 98CA1614.
    Colorado Court of Appeals, Div. IV.
    March 2, 2000.
    As Modified on Denial of Rehearing May 4, 2000.
    Certiorari Granted Sept. 11, 2000.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge MARQUEZ.

Defendant, David Cooper, appeals from the trial court's order denying his Crim. P. 35(c) motion. We reverse and remand for further proceedings.

Defendant pled guilty to second degree sexual assault based on events that occurred on July 28, 1996. Subsequently, defendant moved for relief under Crim. P. 85(c), contending, as relevant here, that the Department of Corrections (DOC) had added a five-year period of mandatory parole in violation of Colorado law. With regard to this claim, the court summarily denied the motion and concluded that a period of mandatory parole was part of his plea agreement.

I.

Defendant contends that the court erred in denying his claim that DOC's addition of a five-year period of mandatory parole to the end of his sentence violated Colorado law. We agree.

While the statutory provisions relating to parole have been amended a number of times, certain language has remained virtually unchanged.

In 1969, the relevant statute provided:

The board shall have the sole power to grant or refuse to grant parole, and to fix the conditions thereof; and shall have full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court, but in any case, parole shall be granted not less than ninety days prior to the expiration of the term for which a person has been sentenced to the state penitentiary.

Colo. Sess. Laws 1969, ch. 111, § 89-18-1(4) at 290 (emphasis added).

As pertinent here, in 1977, the General Assembly adopted Colo. Sess. Laws 1977, ch. 228, § 17-2-201(5)(a) at 918, which stated:

The board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court. (emphasis added)

In 1979, the General Assembly amended Colo. Sess. Laws 1979, ch. 157, § 17-2-201(5)(a) at 667, to provide:

AS TO ANY PERSON SENTENCED FOR A CONVICTION OF A SEX OFFENSE ... the board has the sole power to ... set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court OR FIVE YEARS, WHICHEVER IS LESS. (emphasis added)

In People v. Martin, 987 P.2d 919 (Colo. App.1999)(cert. granted Nov. 1, 1999), a division of this court discussed the statutory provisions regarding parole for sex offenders. It noted that § 17-2-201(5)(a) was amended in 1996 to provide that:

As to any person ... sentenced for conviction of ... an offense involving unlawful sexual behavior ... committed prior to July 1, 1996, the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court or five years, whichever is less.

See Colo. Sess. Laws 1996, ch. 280, § 17-2-201(5) at 1584 (emphasis added).

The division further noted that the amendment to § 17-2-201(5)(a) was in Section 6 of H.B. 96-1181, which contained twenty-two sections. Section 21 provides that H.B. 96-1181 "shall take effect on July 1, 1996, and shall apply to offenses committed on or after said date...." See Colo. Sess. Laws 1996, ch. 280 at 1589.

After reviewing amendments to other statutory provisions, the division concluded that the amendment to § 17-2-201(5)(a) in 1996, to the extent it indicates that parole was discretionary for sex offenders who committed their offenses before July 1, 1996, appears to have been an inadvertent error. We agree with that analysis.

Section 17-2-201(5)(a.5), C.R.8.1999, which was adopted in 1996, see Colo. Sess. Laws 1996, ch. 280, § 17-2-201(5)(a.5) at 1585, mirrors the language of §$ 17-2-201(5), except that it applies to erimes committed after July 1, 1996, and does not contain the "or five years, whichever is less" provision:

As to any person sentenced for conviction of an offense involving unlawful sexual behavior ... committed on or after July 1, 1996, the board has the sole power to grant or refuse to grant parole and to fix the condition thereof and has full discretion to set the duration of the term of parole granted, but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court.

Section - 17-2-201(5)(a.5)(emphasis - added). Like § 17-2-201(5)(a), the plain language used in § 17-2-201(5)(a.5) creates a discretionary parole term that cannot exceed the maximum sentence imposed by the court.

Similarly, as relevant here, the General Assembly amended § 18-1-105(1)(a)(V)(C), C.R.S.1999, in 1998. The amended section states:

Notwithstanding sub-subparagraph (A) of this subparagraph (V), the period of parole for a person convicted of [felonious unlawful sexual behavior] committed on or after July 1, 1996 ... shall be set by the state board of parole pursuant to section 17-2-201(5)(a.5), C.R.S., but in no event shall the term of parole exceed the maximum sentence imposed wpon the inmate by the court.

See Colo. Sess. Laws 1998, ch. 189, § 18-1-105(1)(a)(V)(C) at 899 (emphasis added).

Section 18-1-105(1)(a)(V)(C.3), C.R.S.1999, which was added effective November 1, 1998, states:

Notwithstanding the provisions of sub-sub-paragraph (A) of this subparagraph (V), the period of parole for a person convicted of [felonious unlawful sexual behavior] committed on or after July 1, 1996, but prior to November 1, 1998 ... shall be set by the state board of parole pursuant to section 17-8-201(5)(a.5), C.R.S.

Colo. Sess. Laws 1998, ch. 3083, § 18-1-105(1)(a)(v)(C.8) at 1289 (emphasis added).

Together, these statutes create discretionary parole for defendants whose crimes were committed on or after July 1, 1996, but prior to November 1, 1998. People v. Martin, supra. Here, defendant's crime was committed during that period. Thus, addition of a period of mandatory parole to the end of defendant's sentence was contrary to the statutory requirements.

Although we conclude that defendant was subject to discretionary parole, we also note that, because discretionary parole is not a direct consequence of a plea, the court is not obliged to inform the defendant of it. Consequently, contrary to his contention, defendant here was not entitled to relief based on the trial court's failure to advise him regarding parole.

The courts have a duty to describe the direct consequences of a resulting convietion, and mandatory parole is a direct consequence of pleading guilty. Unlike traditional discretionary parole, which allows an offender to serve some portion of the prison sentence under parole supervision in lieu of imprisonment, mandatory parole is imposed in addition to the imprisonment component of a sentence. Craig v. People, 986 P.2d 951 (Colo.1999). See People v. Jones, 957 P.2d 1046 (Colo.App.1997)(distinguishing disere-tionary parole from mandatory parole, which is a direct consequence of a plea); People v. Moore, 844 P.2d 1261 (Colo.App.1992)(inadequate advisement regarding discretionary parole does not invalidate plea). See also Carter v. McCarthy, 806 F.2d 1373 (9th Cir.1986)(issue of when defendant will become eligible for release on parole under the sentence he received is a collateral consequence of the plea; issue of a separate parole term to be served following that sentence is a direct consequence of the plea).

IL

We also agree with defendant's contention that pursuant to § 17-2-201(5)(a.5) and § 18-1-105(1)(a)(V)(C) the DOC cannot require him to serve any period of parole that exceeds the remainder of his sentence at the time he is paroled.

Our task in construing statutes is to ascertain and give effect to the intent of the General Assembly, and if the statutory language is clear, the statute must be construed as written. People v. Marquez, 983 P.2d 159 (Colo.App.1999).

The language at issue here is, "but in no event shall the term of parole exceed the maximum sentence imposed upon the inmate by the court." Sections 17-2-201(5)(a.5) and 18-1-105(1)(a)(V)(c.8). The People contend that this language could be understood to state that the period of parole is in addition to the sentence imposed, but not exceeding the length of that sentence. We reject this contention.

The disputed phrase has been part of the statutory scheme since at least 1969 and, despite other amendments, has remained unchanged. Our appellate courts have construed discretionary parole to allow an offender to serve some portion of the sentence under the parole board's supervision in lieu of imprisonment. See Craig v. People, supra; People v. Martin, supra (discretionary parole term is served in lieu of, or limited to, the period of incarceration); People v. Jones, supra (on discretionary parole the defendant is released from custody to serve the balance of the sentence on parole).

Because the most recent amendments to the statutory scheme for this period contain this identical language, we presume the General Assembly intended its meaning to remain the same. See Cooper v. People, 973 P.2d 1284 (Colo.1999)(court presumes that the General Assembly was familiar with its previous interpretations of statutes when it enacted the statute in question); People v. Swain, 959 P.2d 426 (Colo.1998)(the legislature is presumed, by virtue of its action in amending a previously construed statute without changing the portion that was construed, to have accepted and ratified the prior judicial construction).

While this result may be antithetical to the policy of providing more, rather than less, post-incarceration supervision to sex offenders, see eg., § 16-18-801, C.R.S.1999, because the relevant language has remained unchanged, we presume its meaning has also remained unchanged. See Cooper v. People, supra.

Accordingly, plaintiff's period of parole cannot exceed the remainder of his sentence at the time he is paroled.

In light of our conclusion on this issue, we need not reach the other contentions raised by defendant.

The order is reversed, and the cause is remanded for the trial court to vacate the order imposing a period of mandatory parole, and to allow the parole board to set the period of parole in accordance with the views set forth here.

Judge ROY and Judge VOGT coneur.


author: Judge DAILEY.

text:
    Frank ARENAS, Petitioner and Cross-Appellee, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Respondent, and Kent Enterprises d/b/a Kent Sheet Metal and Fremont Indemnity Insurance Company, Respondents and Cross-Appellants.
    No. 99CA1067.
    Colorado Court of Appeals, Div. II.
    March 16, 2000.
    Rehearing Denied April 13, 2000.
    Certiorari Denied Aug. 21, 2000.

      The MeDivitt Law Firm, P.C., Patrick J. MceDivitt, Colorado Springs, Colorado for Petitioner and Cross-Appellee.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Ritsema & Lyon, P.C., Carol Aun Finley, Colorado Springs, Colorado for Respondents and Cross-Appellants Kent Enterprises and Fremont Indemnity Insurance Company.
   Opinion by

Judge DAILEY.

In this workers' compensation case, Frank Arenas (claimant) petitions for review of a final order of the Industrial Claim Appeals Office (Panel) reducing his temporary disability benefits by the fifty percent penalty for intoxication. Kent Enterprises, doing business as Kent Sheet Metal, and its insurer, Fremont Indemnity Insurance Company (collectively employer), cross-petition for review of that portion of the Panel's order denying a retroactive reduction in benefits. We affirm the reduction of benefits, set aside that portion of the order denying the reduction retroactively, and remand for further proceedings.

Claimant suffered compensable injuries on October 81, 1997, when he fell from a ladder. During emergency treatment at a hospital, a blood sample was drawn. The toxicology report indicated a blood alcohol level of .104.

Employer filed a general admission of liability for temporary total disability benefits commencing November 1, 1997. In February 1998, employer filed a petition to modify claimant's temporary disability rate based on the toxicology report and the intoxication penalty then in effect. See Colo. Sess. Laws 1990, ch. 62, § 8-42-112(1)(c) at 495 (intoxication penalty now codified with changes at § 8-42-112.5, C.R.S.1999). When claimant objected, the Administrative Law Judge (ALJ) denied the petition, and employer applied for a hearing on the issue.

Crediting the toxicology report and the testimony of a forensic toxicologist, the ALJ determined that employer sustained its burden to establish the statutory presumption of intoxication and that claimant had failed to overcome the presumption. The ALJ also determined that even without the toxicology report, employer had sustained its burden to prove that claimant's injury was the result of intoxication. Therefore, the ALJ ordered a fifty percent reduction of claimant's temporary disability benefits.

The ALJ, however, denied employer's request to make the intoxication penalty retroactive to the date claimant commenced receiving compensation; instead, the ALJ ordered the penalty effective as of August 3, 1998, the date of the ALJ's summary order.

Both claimant and employer sought review. The Panel affirmed the ALJ's order in its entirety.

1.

Claimant contends that employer failed to prove that the blood alcohol test was reliable, and therefore, employer is not entitled to the statutory presumption regarding intoxication and causation. Claimant asserts that the ALJ erroneously credited the toxicology report and the toxicologist's testimony. Claimant bases this assertion on the following grounds: (1) there is no evidence that the hospital laboratory was properly certified; (2) the report is a medical blood alcohol test rather than a forensic blood alcohol test; (8) the blood was drawn and tested incorrectly; and, (4) the test results cannot be verified for accuracy. We are not persuaded by claimant's arguments.

A.

Section 8-42-112(1)(c) provided that compensation shall be reduced by fifty percent when:

[The injury] results from the intoxication of the employee. When an employee has a 0.10 or more grams of alcohol per one hundred milliliters of blood or 0.10 or more grams of alcohol per two hundred ten liters of breath as shown by chemical analysis, it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication. This presumption may be overcome by clear and convincing evidence.

See Colo. Sess. Laws 1990, ch. 62, § 8-42-112(1)(c) at 495.

Under this prior version of the statute, entitlement to the presumption of intoxication and causation is not dependent upon the use of a forensic alcohol test performed by a certified laboratory. Nor does it require that the employee be granted an opportunity to verify the results for accuracy. Instead, these factors would come into play only in claimant's attempt to overcome the presumption by clear and convincing evidence.

Indeed, the current version of the statute has been expanded to provide for all those safeguards before the presumption applies. See § 8-42-112.5, C.R.8.1999. We note that when a statute is amended it is presumed that the legislature intended to change the law. Robles v. People, 811 P.2d 804 (Colo.1991); see Mid-Century Insurance Co. v. Travelers Indemnity Co., 982 P.2d 810 (Colo.1999) (no presumption that the General Assembly makes its deletions and substitutions of statutory language idly). This presumption may be rebutted when arguably more specific sections are added to a general section because such legislative action may indicate the legislature's intention to clarify the existing statute. Robles v. People, supra. However, the former § 842-112(1)(c) contains no ambiguity, and thus there is no ambiguity to "clarify."

Therefore, the addition of provisions regarding the type of test, certification of the laboratory, and verification of results evidences an intent to change the law in effect at the time of claimant's injury. See § 2-4-208, C.R.8.1999. The General Assembly certainly knew how to add these provisions prior to claimant's injury, as it had in other areas. Cf § 8-78-108(b)(e)(IX.5), C.R.8.1999 (disqualification from receipt of unemployment benefits warranted where a separation from employment is due to presence of aleohol in an individual's system as evidenced by a test conducted by a licensed or certified facility). Accordingly, we will not infer the existence of such provisions in the prior version of the statute. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo.1985).

Because it was not raised before the Panel, we decline to address claimant's additional argument that the blood aleohol level, rather than just the breath alcohol level, must be shown by chemical analysis. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.

B.

Having clarified the seope and application of the statute, we now turn to the question whether the evidence supports the ALJ's imposition of the fifty percent penalty for intoxication.

Whether an accident was caused by a claimant's intoxication is a question of fact for resolution by the ALJ, whose determination must be upheld if supported by substantial evidence and plausible inferences from cireumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App.1996). Under this standard, we must defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App.1990). Further, we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where the evidence credited is so overwhelmingly rebutted by hard, certain evidence that the ALJ would err as a matter of law in crediting it. Halliburton Services v. Miller, 720 P.2d 571 (Colo.1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App.1997). Claimant's arguments notwithstanding, we perceive no extreme circumstances here.

The ALJ found that claimant was injured between 3:80 and 3:45 pm. The toxicologist testified that the blood sample was drawn at 4:15 pm. Based on evidence that claimant's last alcohol consumption was at noon on the day of the injury, the toxicologist opined that claimant's aleohol absorption rate was on a downward cycle at the time of the injury. Furthermore, using a burn-off rate of .016 per hour, the toxicologist concluded that claimant consumed four to five beers at lunch and that his blood alcohol level was at least .104 at the time of the injury. The toxicologist also opined that claimant would experience a loss of balance at this blood alcohol level.

Claimant did not present any evidence to establish that his blood sample was contaminated, not properly drawn, not properly preserved, or that there was an unreasonable delay in testing the sample. Therefore, the toxicologist's testimony that these factors could affect the accuracy of a blood alcohol test does not compel a finding that the toxicology report is inaccurate. Nor did claimant present evidence that the hospital's margin of error was greater than that associated with blood testing procedures in general. Further, claimant did not present evidence that only "forensic blood alcohol tests" from "certified" testing labs produce accurate blood alcohol results.

Therefore, the toxicologist's testimony supports the ALJ's finding that claimant's blood alcohol rate was at least .100 at the time of the injury and that employer established the statutory presumption of intoxication. Under these circumstances, we cannot say the ALJ erred in crediting the toxicology report and that part of the toxicologist's testimony that was dependent on the report.

Moreover, there is substantial evidence to support the ALJ's finding that elaimant failed to overcome the statutory presumption on the cause of the injury, and that employer proved that the injury was due to intoxication, even without the statutory presumption. This non-medical evidence included the testimony of claimant's co-workers as to the conditions of the ladder and surrounding area at the time of the fall, claimant's wife's testimony as to claimant's long-standing drinking habits, and claimant's testimony that he drank beer at lunch on the day of the accident.

This evidence is sufficient to support the ALJ's implicit inference that claimant was intoxicated at the time of the injury and that the intoxication caused him to fall resulting in injuries. See Ackerman v. Hilton's Mechanical Men, Inc., supra. - Consequently, the Panel correctly determined that claimant is subject to a fifty percent penalty under § 8-42-112(1)(c).

IL.

Employer contends the ALJ erred in failing to grant the fifty percent penalty retroactively to the date of commencement of claimant's benefits. We agree.

At issue here is the tension between two competing considerations.

On the one hand, there is no requirement that employer admit liability for temporary disability benefits. Therefore, once an admission of liability is filed, the Workers' Compensation Act generally does not allow the admission to be retroactively withdrawn or revoked. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App.1990) (granting only prospective relief from employer's improvidently filed admission on the issue of the average weekly wage).

On the other hand, the purpose of the penalty in § 8-42-112(1)(c) is to deter employee misconduct.

In our view, the policy of deterring employee misconduct can be more fully realized by imposing the penalty as of the date benefits commence for the injury caused by that misconduct. And, inasmuch as HLJ Management did not involve any fault of the claimant, we find it distinguishable from the present case. Because the provision of penalties as deterrents is not inconsistent with the general nonfault character of compensation law, we perceive no compelling reason to refrain from creating another exception to the general rule that the withdrawal of an admission of liability must be granted prospectively. See Vargo v. Colorado Industrial Commission, 626 P.2d 1164 (Colo.App.1981) (creating an exception so that admission of liability may be retroactively withdrawn where the claimant makes fraudulent misstatements regarding the specific injury for which benefits are claimed).

In creating this exception, we emphasize that even though the reduction may be imposed retroactively, safeguards remain to protect a claimant's right to benefits, An employer is required to continue payment pursuant to an admission of liability until a hearing is held to determine whether there is sufficient evidence to permit withdrawal of the admission, and may not unilaterally abrogate disability payments. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1837 (Colo.

In sum, we conclude that the Panel erred in refusing to grant a modification effective as of the date of commencement of claimant's benefits.

The order of the Panel is affirmed as to the reduction in benefits, set aside as to that portion of the order denying the reduction retroactively, and the cause is remanded for a new order imposing the reduction as of November 1, 1997.

Judge PLANK and Judge DAVIDSON concur.


author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lewis P. RICHARDSON, Defendant-Appellant.
    No. 99CA0001.
    Colorado Court of Appeals, Div. A.
    March 16, 2000.
    Certiorari Granted Sept. 5, 2000.

      Ken Salazar, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Gregory R. Stross, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.$.1999.

   Opinion by

Judge CRISWELL.

Defendant, Lewis P. Richardson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of a controlled substance (methamphetamine), in violation of § 18-18-405(1)(a), C.R.S8.1999. We affirm.,

Defendant appeared in court in connection with an unrelated case and was remanded into custody. As he was being taken from the courtroom, defendant asked the deputy sheriff whether the money in his possession would be credited toward his prisoner account at the jail. The deputy sheriff replied that it would.

At the jail, a second deputy sheriff removed a wallet from defendant's pocket. Although the wallet contained cash and numerous identification documents belonging to defendant, defendant stated that the wallet did not belong to him. The deputy searched the wallet and discovered a plastic baggie inside a change pocket of the wallet. The baggie contained a visible amount of a white powdery substance. Subsequent testing revealed that the substance was eight one-hundredths of a gram of methamphetamine.

I.

Defendant first argues that the trial court erred by refusing to give the jury a "usable quantity" instruction. We disagree.

In People v. Ceja, 904 P.2d 1308 (Colo.1995), our supreme court held that the offense of unlawful possession of a controlled substance does not require the prosecution to prove that the defendant possessed a "usable quantity" of that substance. The supreme court explained that the prosecution need prove only that the defendant knowingly and unlawfully possessed some quantity of a controlled substance.

The existence of a usable quantity of a drug is significant only to the extent that evidence of possession of such a quantity (as distinguished from possession of only a trace amount) could, without more, lead to a reasonable inference that the possessor of such a quantity was aware of that possession.

On the other hand, if the amount of the drug found in the accused's possession is so small that its existence might be overlooked, ie, if it is less than a "usable" amount, mere possession of such a quantity cannot lead to a reasonable inference that the possessor was aware of it. In such a case, therefore, the prosecution must present some other evidence to demonstrate that the accused's possession was a knowing possession. People v. Theel, 180 Colo. 348, 505 P.2d 964 (1973).

This latter rule, however, is simply one to be applied by the trial court in assessing the legal sufficiency of the prosecution's evidence. And, if that court concludes either that the amount of the drug possessed could itself have made its existence reasonably obvious, if it was a usable quantity, or if there is other evidence which, if believed, could reasonably lead to the inference that the accused knowingly possessed the drug (irrespective of the amount), the question whether the accused did, in fact, have knowledge of the drug is one for the jury.

Here, the prosecution's proof of defendant's knowing possession was not based upon the amount of the methamphetamine discovered. Rather, there was other evidence tending to establish defendant's knowledge of that possession. The methamphetamine was packaged in a manner to preserve it, and it was located in a wallet containing several documents identifying defendant. In addition, while defendant initially claimed ownership of the cash in the wallet, he later disclaimed ownership of the wallet when he realized it was to be searched. A reasonable fact finder could infer that his later denial was motivated by his guilty knowledge of the existence of the drug within the wallet.

Applying the principles established by Ceja and Theel, the trial court here concluded that this evidence was sufficient to allow the jury to consider the question of defendant's, guilt. In doing so, the court properly instructed the jurors on all the elements of the offense, and in addition, it instructed them that:

A person acts "knowingly" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such cireumstance exists. A person acts "knowingly" with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.
"Possession" does not necessarily mean ownership, but does mean the actual, physical possession, or the immediate and knowing dominion or control over the object or the thing allegedly possessed. "Possession" need not be exclusive, provided that each possessor, should there be more than one, actually knew of the presence of the object, or thing possessed, and exercised actual physical control or immediate, knowing dominion or control over it.

The court also told the jurors that: "It is [defendant's] theory of the case that he did not know there was drug residue in his wallet."

Nevertheless, defendant requested that the jurors also be told that: "Unless there is evidence that [defendant] possessed a usable quantity of methamphetamine, the prosecution must present other evidence from which a jury can reasonably infer knowledge."

However, while defendant's requested instruction was a proper statement of the law, it stated the standard for assessing the legal sufficiency of the prosecution's evidence. This standard is to be applied only by the court; it is not one to be applied by a jury in assessing the weight of that evidence. Hence, had the court instructed as defendant requested, it would have allowed the jury to pass upon a question that rests within the sole province of the judiciary. See Bar 70 Enterprises, Inc. v. Tosco Corp. 703 P.2d 1297 (Colo.1985) (it is court's sole and independent responsibility to determine legal sufficiency of evidence; it cannot be bound by parties' stipulation upon that subject).

IL.

For similar reasons, we also reject defendant's assertion that the court erred in refusing to authorize him to employ, at state expense, an expert to testify with respect to whether the amount of methamphetamine seized was of a "usable" amount. He sought such testimony to establish that such amount was not "of the quantity necessary to become intoxicated."

As we have noted, the significance of the amount of a drug possessed lies only in its relevance upon the question of the possessor's knowledge of its existence. Given this consideration, it would seem that it is the degree to which the amount in question is readily noticeable, rather than its ability to "intoxicate," that is important. And, upon this question, it is the ability of a reasonable lay person to perceive, and not the opinion of an expert, that is the standard to be applied by the court in passing upon the question of the legal sufficiency of the prosecution's evidence.

Further, at trial, two witnesses testified that the wallet had been given to defendant by a friend. In closing argument, defendant's counsel asserted that it was likely that defendant had put his identification papers in the wallet without ever opening the change pocket. Given this hypothesis, proof that the methamphetamine was not of a usable quantity would not have been relevant to the defense's theory that defendant was unaware that the plastic baggie was in the wallet.

Under § 18-2408, C.R.S.1999, an indigent defendant is entitled to legal representation and to supporting services at state expense. However, an indigent defendant's motion seeking court approval of funds to pay for supporting services must demonstrate a particularized and reasonable need for the services and the unavailability of alternative means to fulfill those necessary functions. A trial court's ruling denying such a motion will be reversed on appeal only if the trial court has abused its discretion or acted in a manifestly arbitrary, unreasonable, or unfair manner. People v. Garcia, 981 P.2d 214 (Colo.App.1998).

Given the record made here, we cannot conclude that the trial court committed any such improper actions.

The judgment is affirmed.

Judge JONES and Judge KIRSHBAUM concur.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1999.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeremiah J. MORIARITY, Defendant-Appellant.
    No. 98CA1463.
    Colorado Court of Appeals, Div. I.
    March 16, 2000.
    Certiorari Denied Aug. 21, 2000.

      Ken Salazar, Attorney General, Steven C. Posner, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Kathleen Lord, Deputy State Public Defender, Denver, Colorado, for Defendant Appellant.

       Justice COATS does not participate.

   Opinion by

Judge NIETO.

Defendant, Jeremiah J. Moriarity, appeals the trial court's order denying his Crim. P. 35(c) motion for post-conviction relief, We affirm, but remand for correction of the mit-timus.

In February 1996, defendant pled guilty to one count of first degree assault-heat of passion, a class-five felony, and was sentenced to the Department of Corrections (DOC) for three years, the maximum in the presumptive range. Although it is not reflected on the mittimus, defendant must also serve an additional two-year period of mandatory parole. Section 18-1-105(1)(a)(V)(A), C.R.S.1999.

Defendant filed a Crim. P. 85(c) motion for post-conviction relief. His motion was denied without a hearing, and this appeal followed.

Defendant asserts that the sentence imposed in this case violates his understanding of the plea agreement. He asserts that his plea agreement should be construed as limiting his possible sentence to the presumptive range because neither he nor the prosecutor contemplated a sentence in the aggravated range due to the absence of any aggravating cireumstances in the case. Based on the assumption of this argument, he then claims that his term of imprisonment plus the peri-0d of mandatory parole must be limited to the maximum in the presumptive range because he was not properly advised of the mandatory parole requirement. We are not persuaded by either part of his argument.

I.

The proper interpretation of a plea agreement is a question of law. St. James v. People, 948 P.2d 1028 (Colo.1997). It is based not on the subjective understanding of the defendant, but rather on the meaning a reasonable person would have attached to it under the cireumstances. Thus, in the absence of language by the parties indicating they have actually agreed to eliminate or cireumvent the mandatory parole requirement, we will construe the plea agreement to provide for a legal sentence. Craig v. People, 986 P.2d 951 (Colo.1999); Benavidez v. People, 986 P.2d 943 (Colo.1999). Here, defendant's plea agreement contained no sentence concessions by the prosecutor. Sentencing was entered without any constraint on the discretion of the trial court.

A.

Turning first to the plea agreement, the record shows the following. Defendant entered his plea in open court, and it was accompanied by a written plea agreement. The agreement stated the charge defendant would plead guilty to, and noted that the parties had not agreed to any sentence concessions. Counsel for defendant also recited this same agreement at the beginning of the providency hearing. The plea agreement makes no mention of mandatory parole. Defendant does not dispute these facts, but argues that the plea agreement must be read as limiting sentencing to the presumptive range because there were no aggravating cireumstances present in the case. We reject this argument.

Section 18-1-105(6), C.R.S.1999, permits the sentencing court to impose a sentence twice as long as the maximum in the presumptive range (aggravated range) if the court finds extraordinary aggravating circumstances. Such cireumstances can be the mandatory aggravating factors listed at § 18-1-105(9)(a), C.R.S.1999; the sentencing enhancing factors listed at § 18-1-105(9.5), C.R.S.1999; or discretionary factors found by the court pursuant to (§ 18-1-105(9)(c), C.R.S.1999. Therefore, unless the sentencing court's discretion is constrained by the plea agreement, a defendant is at risk of receiving a sentence in the aggravated range if the court accepts his or her plea.

Defendant argues that the absence of aggravating circumstances should permit him to assume that his plea agreement was limited to a sentence in the presumptive range. Here, as in most cases, the court ordered a pre-sentence investigation report and considered it along with the statements of counsel and the defendant's allocution, at the sentencing hearing held more than a month after the plea of guilty. At the time the plea was entered, no one could know if the court would find discretionary aggravating cireum-stances based on the information that would be presented at the time of the sentencing hearing. In light of the mandatory and discretionary aggravating provisions in the sentencing statutes, it was unreasonable for defendant to assume he could not be sentenced in the aggravated range. Therefore, we conclude that a plea agreement that does not constrain the sentencing court's discretion cannot be construed to limit the possible sentence to the presumptive range.

B.

Second, we find the court's advisement regarding mandatory parole sufficient. We review the record as a whole to determine if the defendant was given sufficient information to be fairly put on notice of the fact that a sentence includes a term of mandatory parole. Craig v. People, supra; People v. District Court, 868 P.2d 400 (Colo.1994).

An advisement regarding mandatory parole need indicate only that a mandatory parole term occurs after, in addition to, or distinct from any period of imprisonment, and includes the length of parole. Craig v. People, supra; Benavides v. People, supra (an advisement of the possible penalties that includes a period of mandatory parole is sufficient).

Here, defendant signed a written plea advisement form, and his initials appeared next to the paragraph that included the statement, "I know that I would be required to serve up to five years on parole after serving a sentence." We note that this is very similar to the written advisement the supreme court held sufficient in Craig. At the providency hearing, the court asked defendant if he read and understood the written advisement, and defendant stated, "Yes, Sir."

Also at the providency hearing, the court explained the possible penalties defendant faced. The transcript reflects the following:

THE COURT: Okay. A minimum of one year to maximum of three years to the Department of Corrections. If the court were to find extraordinary aggravation, the court could sentence you, as much as six years to the Department of Corree-tions. If the Court were to find extraordinary mitigating cireumstances, the Court can sentence you as little as six months to the Department of Corrections, plus there is a two-year period of mandatory parole.

Defendant argues that the language in the oral advisement informed defendant that the parole requirement would only be applied to an extraordinary mitigated range sentence. We disagree. The oral advisement must be considered with the other parts of the record. When the written and oral advisements are considered together with defense counsel's certification that she had discussed the penalties with defendant and that defendant understood the penalties, we conclude that the record as a whole reveals that defendant was advised that he would have to serve a mandatory period of parole after serving a sentence to the Department of Corrections.

IL.

We also reject defendant's argument that the two year mandatory period of parole cannot now be added to the sentence without violating his double jeopardy rights. The constitutional prohibition against double jeopardy protects against multiple punishments for the same offense. See Deutschendorf v. People, 920 P.2d 58 (Colo.1996). Mandatory parole, however, is a required part of defendant's sentence and is not a second punishment for the same offense. People v. Barth, 981 P.2d 1102 (Colo.App.1999); People v. Mayes, 981 P.2d 1106 (Colo.App.1999). As a matter of law, mandatory parole was part of defendant's sentence from the time it was first imposed. "[A] mittimus that is silent as to whether the mandatory period of parole is imposed should be read to include the imposition of this requirement." Craig v. People, supra, 986 P.2d at 966.

TIL.

Defendant contends that the trial court erred in denying his Crim. P. 85(c) motion without appointing counsel and holding a hearing. He asserts that he is entitled to a hearing to establish his understanding of the plea agreement. We disagree.

A trial court may deny a motion for post-conviction relief without an evidentiary hearing and may decline to appoint counsel if the motion, the files, and the record establish that the defendant is not entitled to relief as a matter of law. Duran v. Price, 868 P.2d 875 (Colo.1994); People v. Hartkemeyer, 343 P.2d 92 (Colo.App.1992). In this case the trial court's file contained a written statement of the plea agreement. As stated above, that agreement cannot be construed to conform to the meaning defendant seeks to impose on it. The file also contains a written advisement and a written statement of counsel confirming that the defendant understood the charge and the possible penalties. These documents, taken together, were sufficient for the trial court to determine without a hearing that defendant was not entitled to the relief he was seeking.

The order is affirmed. However, because the mittimus does not reflect the statutorily required period of mandatory parole, we remand to the trial court with directions to correct the mittimus to indicate that defendant is subject to a two-year period of mandatory parole.

Judge METZGER and Judge RULAND concur.


text:
    SKY FUN 1, INC., a Colorado corporation, Plaintiff-Appellant, v. John SCHUTTLOFFEL, Defendant-Appellee.
    No. 98CA1209.
    Colorado Court of Appeals, Div. IL.
    March 16, 2000.
    Certiorari Granted Sept. 5, 2000.

      Peter Schild, Boulder, Colorado, for Plaintiff-Appellant.
    Dixon and Snow, P.C., Jerre W. Dixon, Denver, Colorado, for Defendant-Appellee.

       Sitting by assignment of the Chief Justice under provisions of the Colo. Const., art. VI, Sec. 5(3), and § 24-51-1105, C.R.8.1999.

   Opinion by

Judge MARQUEZ.

Plaintiff, Sky Fun 1, Inc. (Sky Fun), appeals the judgment entered in favor of defendant, John Schuttloffel, finding it liable on his counterclaim for defamation. We affirm.

Sky Fun is a Colorado corporation, and William Kitchen (Kitchen) is its president and chief executive officer. Defendant, while employed by Sky Fun as the corporation's pilot, was piloting an airplane with Kitchen aboard when the airplane was struck by lightning. Following this incident, Kitchen informed defendant that Sky Fun was discontinuing his employment.

Defendant then sought employment with another airline (airline). When the airline sought information regarding defendant from Sky Fun, Kitchen provided negative information during telephone conversations with an airline employee.

Sky Fun filed a complaint against defendant for property damage and other financial losses, including lost use of its aircraft allegedly caused by defendant's negligence. In his answer, defendant denied Sky Fun's allegations and counterclaimed alleging, among other things, that plaintiff through its president, had defamed him and that he was entitled to actual and exemplary damages.

After a bench trial, the trial court found for defendant on his defamation claim and awarded him $1.00 in actual damages on that claim and $5,000 in exemplary damages.

I.

Sky Fun contends that the trial court erred by determining that the alleged defamatory telephone calls to the airline by Kitchen were not protected under the Pilot Records - Improvement - Act 49 U.S.C. § 44986(g)(Supp. III 1997) (the Act). We disagree.

As an initial matter, neither party has presented authorities interpreting the Act, nor has our research disclosed any.

In interpreting statutes, we begin with the relevant language. If congressional will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive. We do not, however, read specific statutory language in isolation. Rather, we must look to the particular statutory language at issue, as well as the language and design of the statute as a whole. Leonhardt v. Western Sugar Co., 160 F.3d 631 (10th Cir.1998); of Thurman v. Tafoya, 895 P.2d 1050 (Colo.1995).

A.

In - pertinent _ part, 49 U.S.C. § 44936(F)(1)(Supp. III 1997), provides that, before allowing an individual to begin service as a pilot, an employer must "request and receive the following information ... (A) FAA Records ... (B) Air carrier and other records ... (C) National driver register records." - Included within "Air carrier and other records" are "records pertaining to the individual that are maintained by the air carrier or person" concerning: "training, qualifications, proficiency, or professional competence of the individual"; "any disciplinary action taken with respect to the individual that was not subsequently overturned"; and "any release from employment or resignation, termination, or disqualification with respect to employment." 49 U.S.C. § 44986(F)(1)(B)(i)(Supp. III 1997).

An air carrier making a request for records under 49 U.S.C. § 44986(F)(1) must obtain written consent to the release of those records from the individual that is the subject of the records requested. See 49 U.S.C. § 44986(f)(2)(Supp. III 1997).

In relevant part, 49 U.S.C. § 44936(g)(1)(Supp. III 1997) provides that:

No action or proceedings may be brought by or on behalf of an individual who has applied for or is seeking a position with an air carrier as a pilot and who has signed a release from liability, as provided under paragraph (2), against
(B) a person who has complied with such a request;
in the nature of an action for defamation ... with respect to the furnishing or use of such records in accordance with subsection (£).

49 U.S.C. § 44986(g)(8)(Supp. III 1997) provides that: Paragraphs (1) ... shall not apply with respect to a person who furnishes information in response to a request made under (£)(1), that

(A) the person knows is false; and
(B) was maintained in violation of a criminal statute of the United States.

Here, in the course of applying for a pilot position with the airline, defendant signed a form containing a request/consent for information from a prior employer together with a release from liability, which was sent to Sky Fun. Kitchen filled out the reply form and returned it to the airline.

On the reply form, in response to questions asking if Sky Fun had any record entered within the past five years showing that the defendant was removed from flying status for any performance or professional competency reason and whether Sky Fun had any records entered within the past five years showing that the defendant was the subject of any disciplinary action that was not - subsequently - overturned, - Kitchen marked "yes" and wrote "Call Me!" but did not submit any records.

After receiving the reply form, the pilot training coordinator and crew coordinator {coordinator) of the airline called Kitchen and requested that he forward the relevant documentation. The coordinator testified that Kitchen informed her that Sky Fun did not keep any files, records, or paperwork on defendant. During that conversation and others that followed, Kitchen stated that defendant "wasn't a good pilot," that he "was great in the simulator but he was just not a good pilot," that the airline should not hire him, that he would be a "threat to passengers," that he had numerous safety violations, and that he should not be flying a plane. In response, the coordinator informed Kitchen that she had to have something in writing.

The coordinator later received numerous calls and a facsimile from Sky Fun entitled "Termination Report" stating that defendant was terminated due to his insufficient and dangerous performance on three occasions. In spite of Kitchen's calls, the airline hired defendant.

Following the presentation of evidence, the trial court found that the Termination Report contained materials that fell within the Act, but that the oral statements made by Kitchen did not. It also questioned whether defendant was responsible for the three incidents set forth in the Termination Report.

B.

Sky Fun contends that the telephone calls specifically relating to information requested under the Act deserve similar protection given to records and, therefore, should be immunized from defamation lawsuits. 'We disagree.

In our view, 49 U.S.C. § 44986(g)(1) covers only records maintained by the air carrier. 49 U.S.C. § 44936(f), which is entitled "Ree-ords of employment of pilot applicants," identifies in detail the specific information that must be requested and received before an individual can begin service as a pilot,. The information requested lists only records. Here, by contrast, the statements at issue are Kitchen's oral statements.

Consequently, we conclude that the trial court properly found that Kitchen's oral statements do not fall within the purview of the Act.

II.

Sky Fun next contends that the trial court erred by determining that Kitchen made defamatory telephone calls to the airline which entitled defendant to $1.00 in compensatory damages. We disagree.

A.

To establish a claim for slander per se, plaintiff must prove: 1) an oral statement was made by defendant; 2) it was published to a third party; 3) the statement is defamatory of the victim's trade, business, or profession; and 4) no extrinsic evidence is required to show that the statement defames the vice-tim in his or her trade or business practice. Pittman v. Larson Distributing Co., 724 P.2d 1379 (Colo.App.1986).

Whether a statement is to be considered slander per se is a question of law. Keohane v. Wilkerson, 859 P.2d 291 (Colo.App.1993); aff'd sub. nom, Keohane v. Stewart, 882 P.2d 1298 (1994).

A statement is defamatory if it tends to so harm the reputation of another as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with that person. Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983); Arrington v. Palmer, 971 P.2d 669 (Colo.App.1998).

Here, the statements at issue were made orally and were published to a third party, the airline. Additionally, because the statements tend to so harm defendant's reputation as to lower him in the estimation of the airline community, they are defamatory of the defendant's profession. See Churchey v. Adolph Coors Co., 759 P2d 1336 (Colo.1988)(statement that employee was "dishonest" was defamatory); Pittman v. Larson Distributing Co., supra (statement that employee "wasn't doing as good a job" was defamatory).

Thus, the court did not err in determining that Kitchen made defamatory calls to the airline.

B.

Sky Fun, however, contends that statements of an employer as to the character of an employee are protected and subject to a qualified privilege. We disagree.

Colorado law recognizes a qualified privilege for communications by a party with a legitimate interest to persons having a corresponding interest and communications promoting legitimate individual, group, or public interest. Burke v. Greene, 963 P.2d 1119 (Colo.App.1998).

However, the common interest privilege is not absolute. The person to whom such an inquiry is addressed cannot abuse the privilege in answering it and it will be lost if the publisher is actuated by express malice. Pittman v. Larson, supra.

Here, as discussed more fully below, the trial court found that the statements were made with malice. Thus, even if a qualified privilege applies, the privilege was lost.

C.

Sky Fun also maintains that Kitchen was entitled to express his opinions that his former pilot had placed the corporate airline and human life in jeopardy and that the trial court should have so found. We reject this contention.

Whether alleged defamatory language is constitutionally privileged is a question of law, and a reviewing court must review the record de novo to insure that the trial court's judgment does not constitute a forbidden intrusion on the field of free expression. - NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6 (Colo.1994).

In Keohane v. Wilkerson, supra, the supreme court established a two-part inquiry to determine whether a statement is protected. The first inquiry is whether the statement is sufficiently factual to be susceptible of being proved true or false. The second inquiry is whether a reasonable person would conclude that the assertion is one of fact. The factors relevant to the second inquiry are: 1) how the assertion is phrased; 2) the context of the entire statement; and 3) the cireumstances surrounding the assertion, including the medium through which the information is disseminated and the audience to whom the statement is directed.

The determination whether a statement constitutes fact or opinion is a question of law. Seible v. Denver Post Corp., 782 P.2d 805 (Colo.App.1989).

When determining the truth of Kitchen's statements the trial court found that, based on the coordinator's testimony and the frequency of the calls, the calls were not made to protect the safety of the general public. It also found that the calls were not made to protect the integrity of the airline or because of any concern about defendant's skills, but were made in an attempt to preclude the hiring of defendant by the airline. The court stated it did not know whether the statements were true because they were opinion and there was no substantiation. However, it also found that the underlying substantia tion was not furnished. Nor were reasonable steps taken to find that the underlying statements were true.

We conclude that Kitchen's statements that defendant is "not a good pilot" and is a "threat to passengers" are not protected opinion. The coordinator did not state that Kitchen phrased his statements as opinions. Further, these statements are sufficiently factual to be susceptible of being proven false or true and a reasonable person would conclude that the assertions were statements of fact. See Pittman v. Larson Distributing Co., supra (statements that plaintiff was fired because he "wasn't doing as good a job" and "spent too much time in the office and on the telephone" were unqualified statements and not constitutionally protected).

As to context and circumstances, the statements were made by a private non-media individual about a private person. Although the statements concern the defendant's abilities as a pilot, there is evidence that the statements were not made to protect the safety of the flying public, but instead were made in an attempt to preclude defendant's employment with the airline. Consequently, these statements are not matters of public concern. See Williams v. Continental Airlines Inc., 943 P2d 10 (Colo.App.1996) (whether a subject is a public concern is a question of law).

Thus, the trial court did not err by entering judgment on defendant's counterclaim and awarding compensatory damages.

HIL

Sky Fun also asserts that the trial court erred by determining that the alleged defamatory telephone calls to the airline were malicious and willful and wanton, entitling defendant to exemplary damages. We disagree.

An award of exemplary damages is controlled by statute. Life Care Centers of America, Inc. v. East Hampden Associates Lid. Partnership, 903 P.2d 1180 (Colo.App.1995).

Section 18-21-102(1)(a), C.R.S.1999, provides that:

In all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by cireumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party.

Willful and wanton conduct means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences or of the rights and safety of others, particularly the plaintiff. Section 13-21-102(1)(b), ©.R.8.1999.

Exemplary damages are to be awarded only if they are proved beyond a reasonable doubt. See § 18-25-1272), C.R.S.1999. In reviewing an award of exemplary damages, we must determine whether there was sufficient evidence, when viewed in its totality and in the light most supportive of the ruling, to support the findings made by the trier of fact. Life Care Centers of America, Inc. v. East Hampden Associates Ltd. Partnership, supra. Here, the coordinator of the airline testified that, after she received the Termination Report, Kitchen called on numerous occagions asking why the airline had hired him. According to the coordinator, "it got to the point that he was calling so many times that [she] didn't want to deal with it anymore."

The trial court found that the calls were made with some malice. It also found that Kitchen intended to stop or alter the career of defendant by his ongoing calls. Therefore, it awarded defendant exemplary damages "not so much because of the extent of any damage, but ... because of the conduct itself and to send a message that that kind of conduct cannot and should not be tolerated by anybody."

We conclude there is ample evidence to support the court's award of exemplary damages to defendant.

IV.

Sky Fun finally contends that the trial court erred by ignoring § 18-21-102(1)(a) and determining that defendant was entitled to $5,000 in exemplary damages even though his compensatory damages were only $1.00. We disagree.

Section 18-21-102(1)(a) mandates a one-to-one limitation of exemplary damages to actual damages awarded. Lira v. Davis, 832 P.2d 240 (Colo.1992).

However, we agree with defendant that, because the limit on exemplary damages of § 13-21-102(1)(a) does not apply in cases tried to the court and because the award was reasonable, the trial court did not abuse its discretion in ordering plaintiff to pay $5,000 for Kitchen's defamation of defendant.

Section 13-21-102(1)(a) provides that "in all civil actions in which damages are assessed by a jury ... the jury ... may award him reasonable exemplary damages,. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party."

In giving effect to the intent of the General Assembly, courts interpret statutory terms in accordance with their plain and ordinary meaning, and a statute must be considered as a whole. Thurman v. Tafoya, supra.

Here, the plain language of § 18-21-102(1)(a) refers only to a jury. Further, subsequent provisions of the statute refer specifically to the court. Section 13-21-102(2), C.R.8.1999, provides: "Notwithstanding the provision of subsection (1) of this section, the court may reduce or disallow the award of exemplary damages." In addition, § 18-21-102(8), C.R.S.1999, states that upon certain conditions, "the court may increase any award of exemplary damages, to a sum not to exceed three times the amount of actual damages."

The terms of § 18-21-102 thus distinguish between provisions applicable to the jury and those applicable to the court. We presume the General Assembly intended that different meanings attached to the two words. See Lira v. Davis, supra (by referring to compensatory damages within the same provision first as "damages assessed" and then as "damages awarded" General Assembly intended that different meaning attached to these two terms). Additionally, the statute does not impose a limitation on an award of exemplary damages by the court in a bench trial.

Lira v. Davis, swpra, upon which plaintiff relies, does not require a different result. There, the award of exemplary damages was by a jury. In Sprung v. Adcock, 903 P.2d 1224 (Colo.App.1995), the trial court acting as the trier of fact applied a one-to-one limitation of exemplary damages under § 13-21-102(1)(a). However, the question whether the provisions of § 18-21-102 are limited to an award of exemplary damages by a jury was not addressed in that case.

Consequently, the trial court's award of $5,000 in exemplary damages when his actual damages were only $1.00 does not contravene the statute.

Further, under the circumstances here, the $5,000 award, is reasonable. The trial court's findings are supported by the record, and the sum awarded is a modest one. The trial court, noting the frequency of the calls, found that plaintiffs statements were made in an attempt to preclude the hiring of defendant or to stop or alter his career. It also found that they were made with malice and indicated that defendant's conduct cannot and should not be tolerated by anybody.

Finally, we do not address the other arguments raised for the first time in Sky Fun's reply brief. See In re Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992)(arguments not presented to, considered or ruled upon by a trial court may not be raised for the first time on appeal).

Accordingly, the judgment is affirmed.

Judge RULAND and Judge TURSI concur.


author: Judge VOGT.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Louis PEOPLES, Defendant-Appellant.
    No. 98CA2486.
    Colorado Court of Appeals, Div. IV.
    May 11, 2000.
    Rehearing Denied July 13, 2000.

      Ken Salazar, Attorney General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant, Appellant.
   Opinion by

Judge VOGT.

Defendant, Louis Peoples, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree criminal trespass and two counts of third degree assault. We affirm the assault convictions, reverse the trespass conviction, and remand the cause for a new trial on the trespass count.

Defendant was originally charged in 1995 with second degree burglary and two counts of third degree assault based on allegations that he broke into his niece's apartment and assaulted her and another woman. At trial, the jury was also instructed on first degree criminal trespass as a lesser included offense of second degree burglary.

Defendant's primary defense to the burglary and trespass charges was that he was a resident of the apartment. The jury acquitted defendant of second degree burglary but found him guilty of first degree eriminal trespass and the two third degree assault charges.

The trial court subsequently vacated defendant's first degree criminal trespass conviction based on People v. Garcia, 920 P.2d 878 (Colo.App.1996)(Garcia I), which held that first degree criminal trespass is not a lesser included offense of second degree burglary. However, in People v. Peoples, (Colo.App. No. 96CA0773, July 24, 1997) (not selected for official publication), a division of this court reinstated defendant's trespass conviction based on People v. Garcia, 940 P.2d 357 (Colo.1997) (partially reversing Gar-cic I and holding that jury could be instructed on first degree criminal trespass if the charging document provided defendant with sufficient notice concerning the lesser offense). On remand, the trial court imposed a stipulated six-year sentence on the trespass conviction.

I.

Defendant contends that his trespass conviction must be reversed because the elemental instruction did not require the jury to find that the dwelling he unlawfully entered was that "of another." We agree.

In accordance with COLJI-Crim. 17:02 (1983), the jury in defendant's case was instructed that the elements of first degree criminal trespass are:

(1) That the Defendant,
(2) in [Denver, Colorado, on the date charged],
(8) knowingly,
(4) and unlawfully entered or remained in a dwelling.

Defense counsel objected to giving the jury any instruction on first degree criminal trespass, but did not object on the basis that the instruction omitted the requirement that the dwelling be the dwelling "of another."

The criminal trespass instruction was incomplete because it allowed the jury to find defendant guilty without finding that the dwelling he unlawfully entered or remained in was that "of another." See § 18-4-502, C.R.S.1999 ("[a] person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another") (emphasis added).

For many years, § 18-4-502 simply proscribed knowingly and unlawfully entering or remaining "in a dwelling." In 1998, the General Assembly amended the statute, adding the "of another" language. Colo. Sess. Laws 1993, ch. 292, § 18-4-502, at 1782. We must presume that, by this amendment, the General Assembly intended to change or clarify the meaning of the statute. See Evinger v. Greeley Gas Co., 902 P.2d 941 (Colo.App.1995).

Accordingly, we conclude that, under the statute as amended in 1998, it is an essential element of first degree criminal trespass that the dwelling be that "of another," and that the pattern jury instruction used here, COLJI-Crim. 17:02, is incorrect because it omits that element.

Having concluded that the instruction omitted an element of the charged offense, we must next determine whether the omission requires reversal of defendant's convietion.

In People v. Vance, 933 P.2d 576 (Colo.1997), our supreme court held that the failure to instruct a jury on an essential element of a charged offense is structural error requiring automatic reversal because such an omission deprives the defendant of the right to have the jury determine guilt beyond a reasonable doubt as to every element of the offense.

In People v. Geisendorfer, 991 P.2d 308 (Colo.App.1999), a division of this court, relying on the United States Supreme Court's subsequent decision in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), departed from the rule of People v. Vance, supra, and held that omission of an element of an offense from a jury instruction is, in certain cases, subject to a harmless or plain error analysis. Under Geisendorfer and Neder, reversal is not required if the appellate court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. See also Bogdanov v. People, 941 P.2d 247, 255 (Colo.1997) ("Failure to instruct the jury properly does not constitute plain error where the subject of the error in the instruction is not contested at trial, or where evidence of the defendant's guilt is overwhelming").

Here, whether the apartment in question was that "of another" was a vigorously contested issue at trial. For example, defendant's niece testified that defendant was not a resident of the apartment, that he had "stayed over" on only one occasion, and that he was merely allowed to use the apartment as a place to receive mail, to shower, to change his clothes, and to eat. However, on eross-examination, she admitted that, on the night of this incident, she had signed a statement for the police indicating that defendant "had been staying" at her apartment. She also admitted that, one month before the incident, she had signed a Department of Social Services form verifying that defendant and his family "have their household within my household."

In addition, a Social Services technician responsible for determining defendant's residence for purposes of his application for public assistance testified that defendant's niece had declared during their intake interview that defendant lived with her.

Although the omitted element was thus not "uncontested," the People assert that its omission does not require reversal because the jury was also given the following instruction:

"Unlawfully Broke an Entrance Into or Enters or Remains" means a person who breaks an entrance into or enters or remains in or upon premises when he is not licensed, invited, or otherwise privileged to do so.

We are not persuaded.

This instruction defined a phrase used, not in the criminal trespass elemental instruction, but in the second degree burglary instruction. The burglary instruction, unlike the trespass instruction, specifically required the jury to find that defendant "unlawfully broke an entrance into, or entered or remained in the dwelling of [his niece]." Moreover, the jury declined to convict defendant of second degree burglary. For these reasons, we cannot rely on this definitional instruction as a basis for presuming that the jury necessarily found the apartment in question was that "of another."

Accordingly, we conclude that omission of the "of another" element from the instruction defining first degree criminal trespass was error requiring reversal of defendant's conviction on the criminal trespass charge.

IL

Defendant next contends that the trial court abused its discretion in denying his motion for a mistrial, and that he is therefore entitled to a new trial on all counts. We disagree.

A mistrial is a drastic remedy, warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by any other means. Because the trial court is in a better position to evaluate any adverse effect that improper testimony might have on a jury, it has discretion to determine whether a mistrial should be granted. Absent a gross abuse of that discretion and prejudice to the defendant, we will not disturb a trial court's decision to grant or deny a motion for a mistrial, People v. Johnson, 987 P.2d 855 (Colo.App.1998).

Defendant's niece testified regarding an altercation between defendant and the other assault victim, his girlfriend, that took place earlier in the evening of the assault. During her testimony the niece twice stated that she had told defendant and his girlfriend that she was tired of their fighting and that she had "seen it all my life."

Defendant did not object to this testimony. However, when defendant's niece resumed her testimony the next morning and again recounted what she had said to defendant and his girifriend, defense counsel asked to approach the bench. In chambers, he argued that, although the witness's first two references to prior assaults were "relatively innocuous," her testimony had become repetitive. The trial court agreed, and directed the prosecutor to move on to the events at the apartment. The prosecutor did so, and the witness did not again refer to any prior incidents between defendant and his girlfriend.

Later, the People called a case manager from the organization which had helped defendant's niece obtain housing. On eross-examination, the case manager testified that defendant's niece was not permitted to have anyone other than persons on the lease living at her apartment and that her housing would have been in jeopardy if she had indicated that someone else was living with her. The case manager also stated that defendant's niece was told that if she did not cooperate with police investigating the assault, she could be terminated from the housing program. - During redirect examination, the prosecutor asked whether defendant's niece had lost her housing after the assault incident. The case manager replied: "She did not lose her housing. She needed to be and wanted to be relocated for her safety. She had some concerns."

Defendant moved for a mistrial. The trial court denied defendant's motion, finding that the testimony was not prejudicial and had been elicited in response to defense counsel's inquiry on cross-examination.

We do not agree with defendant that the combined effect of the reference by defendant's niece to prior assaults and the case manager's testimony rendered the denial of a mistrial an abuse of discretion. Defendant did not seek a mistrial based on the niece's testimony, and we do not view the testimony as so prejudicial that the trial court should have sua sponte declared a mistrial. Nor did the case manager's statement on redirect, either alone or considered in combination with the niece's earlier testimony, require the drastic remedy of a mistrial.

The judgment of conviction of two counts of third degree assault is affirmed. The judgment of conviction of first degree erimi-nal trespass is reversed and the cause is remanded for a new trial consistent with the views expressed in this opinion.

' Judge MARQUEZ and Judge ROY concur.