author: BRYNER, Justice.

text:
    Patsy KAVA, as personal representative of the Estate of Abner T. Gologergen, Appellant, v. AMERICAN HONDA MOTOR CO., INC., Honda Motor Co., Ltd., and Sitnasuak Native Corp., d/b/a Bonanza, Appellees.
    No. S-9201.
    Supreme Court of Alaska.
    June 14, 2002.
    Rehearing Denied July 8, 2002.

      Richard H. Friedman, and Jeffrey A. Friedman, Friedman, Rubin & White, and Don C. Bauermeister, Burke & Bauermeis-ter, PLLC, Anchorage, for Appellant.
    Sanford M. Gibbs, Brown, Waller & Gibbs, P.C., and John B. Thorsness, Hughes, Thorsness, Powell, Huddleston & Bauman, LLC, Anchorage, for Appellees. .
    Before: FABE, Chief Justice, MATTHEWS, and BRYNER, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Patsy Kava, as the personal representative of the estate of Abner Gologergen, appeals from a jury verdict in a wrongful death defective products action resulting from a three-wheel ATV accident. The, estate claims that the superior court erred in allowing Honda to introduce comparative risk evidence, in not allowing the estate to inform the jury of an indemnity agreement between two co-defendants, and in not granting a motion for a new trial. Because the superior court correctly ruled that the comparative risk evidence was admissible and did not abuse its discretion in excluding the indemanity agreement, we affirm in part. But because the court incorrectly determined the effect of its sua sponte declaration of a mistrial on the negligence cause of action and applied the wrong standard in denying the estate's motion for a new trial, we reverse in part.

II. FACTS AND PROCEEDINGS

Abner Gologergen was driving a Honda three-wheel ATV to the site of a beached whale near Savoonga when he lost control, drove over a rocky embankment, and suffered fatal head injuries. CGologergen's estate filed a wrongful death action against American Honda Motor Company (Honda) and Sitnasuak Native Corporation, alleging a defective product design and negligence.

The estate claimed five dependents: Patsy Kava, an estranged biological daughter, Aaron and Eleanor Gologergen, an adult nephew and his wife, and Stephanie and Brianne Gologergen, Aaron and Eleanor's minor daughters.

All parties stipulated that Sitnasuak had no independent liability for any negligence because it was simply a conduit for Honda's product. Honda agreed to indemnify Sitnas-usk against any judgment, and Sitnasuak consented to representation by Honda.

Prior to trial, the estate moved to exclude any "evidence comparing, or designed to compare, the risks of engaging in the activity of riding ATVs. or 3-wheel ATVs, and the risk of engaging in other activities such as riding snowmachines, trail bikes or bicycles." The superior court granted the motion but made one exception:

if evidence of certain Consumer. Product Safety Council reports and findings [is] presented by the plaintiff in his case in chief. In that event, the risk- analysis prepared by Dr. Verhalen may. be admitted as rebuttal, to impeach the methodology and statistical analysis performed.

Also prior to trial, the estate offered a proposed instruction informing the jury of the indemnity agreement between Honda and Sitnasuak. Honda objected to the instruction at the start of the trial, and the superior court excluded it.

In opening argument, the estate's attorney recited statistics compiled by the Consumer Product Safety Commission regarding emer-geney room admissions and deaths attributed to ATVs-the statistical studies that the superior court referred to in its pretrial order excluding comparative risk evidence. Honda objected to the estate's use of those statistics as being prejudicial and out of context. The superior court overruled the objection.

In its case in chief, again over Honda's objection, the estate presented evidence of the CPSC studies. Then, over the estate's objection, the trial court allowed Honda to introduce certain comparative risk evidence that otherwise would have been exeluded under its pretrial order. Later, again over the estate's objections, the court allowed Honda to introduce several exhibits that illustrated the comparative risks between ATVs and other classes of vehicles, including snowmobiles, minibikes, and trailbikes.

At the conclusion of the trial, the jury began deliberating but deadlocked on the negligence cause of action. The jury's foreperson sent a note to the court stating, "We have debated and voted on question # 4 since yesterday afternoon. We have not been able to move beyond an 8-3 vote on this question. Please advise." Question four stated "Was Honda negligent? (Answer yes or no)." In attempting to formulate a response to the jury note, the trial court suggested that it should declare a mistrial as to the negligence cause of action and direct the jury to answer. the remainder of the special verdict as to the products liability cause of action. The estate did not believe that a mistrial was necessary on this negligence claim but agreed with the trial court's suggestion to instruct the jury to answer the remaining special verdict questions. Honda objected and moved for a mistrial on all points.

The court denied Honda's motion for a mistrial on the entire case but declared a mistrial on the negligence claim, instructing the jury to skip questions four and five (which dealt with negligence) and to continue answering the verdiet form with question six. The jury reached a verdict as to the remaining issues, which dealt with the estate's product liabilities theory. It found that the three-wheel ATV was a defective product and that it was a legal cause of Gologergen's death. The jury also found that Aaron, Eleanor, Stephanie, and Brianne Gologergen were legal dependents of Abner Gologergen. But it awarded zero damages to Aaron and Eleanor, and $25,000 each to Stephanie and Brianne only for the loss of consortium. Further, despite finding that Patsy Kava was Abner Gologergen's biological daughter, the jury awarded her zero damages. It also found that Abner Gologergen was negligent arid that his negligence was fifty percent of the cause of his death. Finally, the jury found that Honda had not engaged in outrageous conduct; this finding precluded an award of punitive damages.

'. After the jury's verdict was read into the record, the estate's counsel asked that the jury be polled, but did not challenge the verdict when the poll was completed. The court then dismissed the jury. The estate later moved for a new trial on, all issues. The superior court defied the estate's motion. The estate appeals.

III. ANALYSIS

'A. Standard of Review

We review a trial court's decision to admit evidence for an abuse of discretion. The question of whether to grant or refuse a new trial "rests in the sound discretion of the trial court." In reviewing an order denying a new trial, we view the evidence in the light most favorable to the non-moving party. Whether the trial court applied the correct legal standard is a question of law that we review de novo.

B. The Comparative Risk Evidence Was Admissible.

The estate asserts that the trial court erroneously allowed Honda to introduce evidence comparing the risks of riding three-wheel ATVs to the risks of operating other vehicles like snowmachines and motorcycles-so-called comparative risk evidence. The estate points out that the trial court had issued a protective order excluding the comparative risk evidence unless it was used to impeach certain Consumer Product Safety Commission reports. The estate argues that the evidence is irrelevant and that its admission amounted to reversible error. We disagree. The comparative risk evidence the estate complains of was relevant and admissible for two reasons. w

First, the estate made the evidence relevant when it introduced evidence of ATV-related emergency room admissions. The estate first mentioned the emergency room statistics in its opening statement., The estate's trial counsel stated in opening that "Ibly 1984, over 100,000 people had been taken to emergency rooms as a result of injuries in 3-wheel accidents. Over 250 people had been killed.... [Honda] knew it had an unstable machine on its hands. It knew it from the [Consumer Product Safety Commission] statistics." Over Honda's objection, the estate later introduced the CPSC statistics as evidence that Honda had notice of injuries resulting from the use of its three-wheel ATVs. The estate also recounted the statistics in its closing argument.

Honda asserts that it introduced the comparative risk evidence to explain the CPSC statistics and to "prove that the statistics relied upon by [the estate's expert witness] were inaccurate and irrelevant." We agree that Honda's comparative risk evidence was relevant to refute the estate's statistical evidence and to impeach its expert's testimony regarding those statistics. As we recently stated, "a party may open the door to evidence on a subject by putting that subject at issue in the case." Here, the estate opened the: door to a discussion of the statistical methodology behind the CPSC reports.

The emergency room statistics that the estate chose to present were relevant to establish notice only insofar as they suggested a disproportionally high rate of injury and, inferentially, a defective product. By offering the injury statistics as relevant evidence of notice, the estate necessarily asserted that they tended to show that ATVs were defective-that Honda "knew it had an unstable machine on its hands." How else, then, could Honda have contextualized the rates of emergency room admissions without comparing the ATV injury rates with similar products? The statistics of ATV-related emer-geney room admissions, standing alone, could not explain the reasons for the reported injuries or establish the need for a corrective response by Honda. Honda was therefore entitled to offer the comparative risk evidence in response to the estate's use of the CPSC statistics.

' Second, the comparative risk evidence was also admissible because it played an important role in connection with the issue of punitive damages. The estate's theory of punitive damages was that Honda continued to market three-wheel ATVs knowing that the three-wheelers had a high rate of injury. It based its theory in large part on' the fact that Honda had notice of the CPSC emergency room statistics as early as 1984 but contin-ugéd to market three-wheel ATVs. The estate asserted that the continued marketing in the face of the injury statistics showed that Honda's conduct was sufficiently reprehensible to support punitive damages. Honda's comparative risk evidence directly responded to the estate's theory of punitive damages. °

We conclude that the superior court did not abuse its discretion in admitting the comparative risk evidence.

C. The Effect of the Mistrial.

The estate argues that it should have been granted a new trial on its negligence cause of action because the trial court sua sponte declared a mistrial on that claim and allowed the jury to reach a verdict only on the estate's products liability claim. In response, Honda notes that the special verdict form allowed the jury to award the same categories of damages for both causes of action. According to Honda, the products liability and negligence theories were alternative causes of action, and the jury's verdict on the products liability claim therefore resolved all damages issues, leaving no reason for trial on the alternative theory of negligence. Honda additionally argues that, in any event, the estate waived its right to ask for a retrial on negligence.

As a threshold matter, we agree with the estate that the trial court acted sua sponte in declaring a hung jury and mistrial on the negligence claim. Upon receiving the foreperson's note that the jury had debated for eight hours and failed to reach a verdict on the negligence issue, the trial judge stated: "I think the indication, they spent eight hours at it and there has been no change ... [Jlustifies a finding that, as to the issue of the negligence claim, there is a mistrial." In response to concerns by Honda's trial counsel, the court later expressly confirmed that it had issued the mistrial order by "motion of the court." Because the judge declared the mistrial without a motion from either party, we believe that the finding of a mistrial can only be characterized as sua sponte.

We reject Honda's assertion that the estate waived its right to a retrial on the negligence cause of action by supporting the trial court's decision to declare a mistrial on that action. The estate did acknowledge that the jury appeared to be- deadlocked on the negligence claim at that point; but it declined to move for a mistrial or to adopt the position that it would relinquish its right to seek a retrial on the mistried negligence

claim. While it may be true that the trial court could have required the estate to elect between a mistrial on all issues and a waiver of its negligence cause of action, the court did not require such an. election. Instead, it simply opted to declare a mistrial sua sponte. Given these circumstances, we hold that the estate's actions cannot properly be construed as a waiver of the right to a retrial.

This conchisién leads us to a slightly more vexing question: whether the trial court's sua sponte mistrial order entitles the estate to retry its negligence claim. As Honda correctly observes, the special verdict form for the products liability and negli-genee causes of action listed identical categories of damages for both claims, and the jury's verdict on the products liability cause of action assessed the damages that the jury found appropriate in each category. The question, then, is whether, under the evidence presented, the estate realistically might have recovered any additional award for the same categories of damages had the jury not deadlocked on the negligence cause of action.

The estate's dual claims for negligence and products liability were independent causes of action in the sense that they were sufficiently distinct and separable to stand alone. Yet most of their shared categories of damages were obviously coextensive. For example, the damages for "past loss of support and services" and "future loss of support, services and inheritance" would be identical regardless of the theory under which they were awarded. Because these damages have already been decided by the jury in the products liability verdict, it would be an injustice to subject Honda to the expenses and risks of redetermining those damages in a retrial.

Similarly, the issue of punitive damages was essentially identical for both causes of action; on each claim, the jury was required to determine whether Honda's conduct was outrageous and would therefore support punitive damages. The special verdict form contained a single question relating to both claims on punitive damages: "Have plaintiffs proven by clear and convincing evidence that Honda engaged in outrageous conduct? (Answer yes or no). " The jury answered this question in the negative. Neither the jury instructions nor the evidence at trial differentiated between the kinds of conduct that would be outrageous under the estate's theories of negligence and products liability. Given these circumstances, the jury's finding that Honda had not engaged in outrageous conduct must be deemed to preclude an award of punitive damages under both causes of action.

As to all issues of compensatory and punitive damages, then, because retrying the negligence theory would merely allow the estate to relitigate issues that the first jury has already considered and fully decided, we conclude that no retrial is warranted. But one point remains to be considered: comparative fault. As to this point, we find it possible that a retrial on the estate's negligence theory could lead to a different result based on a new jury's consideration of factual issues that the original jury's verdict on products liability does not fully resolve.

Because a finding of comparative relative fault requires the jury to allocate relative degrees of fault among joint wrongdoers, there is good reason to believe that if the original jurors had found Honda liable on the basis of actual negligence rather than strict products liability, they would have assessed greater comparative fault to Honda than they did when they allocated fifty percent fault to Gologergen in response to special verdict question 15. We thus conclude that a new trial will be necessary on the issue of comparative fault unless Honda agrees upon remand to accept full Hability for the damages awarded by the original jury.

D. The Motion for a New Trial.

The estate next argues that the trial court applied the wrong standard when it denied the estate's motion for a new trial. The estate claims that instead of viewing the evidence in the light most favorable to Honda, the trial judge should have determined the weight and credibility of the evidence for himself and decided whether the jury's verdict was "against the weight of the evidence." The estate is correct.

The standard for deciding a motion for a directed verdict or for a judgment notwithstanding the verdict requires a trial court to view the evidence in the light most favorable to the non-moving party. By contrast, a trial court may set aside a verdict and order a new trial in the interest of justice if the verdict is against the weight of the evidence. In deciding a motion for a new trial on this basis, the court must use its discretion and independently weigh the evidence. A court may set aside a verdict as being against the weight of the evidence even when "there is substantial evidence to support it. " The decision is a matter for the trial court's discretion.

In the present case, the estate moved for a new trial, not for a directed verdict or a judgment notwithstanding the verdict. The trial court's order denying the estate's motion for a new trial shows that it applied the directed verdict standard. The trial court cited Mallonee v. Finch in support of the proposition that, "[in deciding the motion [for a new trial, this court must view the evidence in the light most favorable to the party against whom the motion is made and draw all reasonable inferences in favor of the verdict." But, the trial court's citation to Mallonee refers to the portion of that opinion dealing with the appellate standard of review, not the standard to be applied by the trial court ruling on a motion for a new trial in the interest of justice.

As we explained in Mallonee, "unlike a motion for directed verdict or judgment n.o.v., [the motion for new trial] involves the trial judge's discretion." By moving for a new trial, and not just for a judgment notwithstanding the verdict, the estate sought a discretionary ruling from the court based on its personal view of the evidence. Although the estate bolstered its argument with the claim that the jury's verdict was flawed as a matter of law, this argument did not deprive it of the right to a decision based on the trial court's independent discretion. The trial court applied the wrong standard, then, in basing its decision on a view of the evidence in the light most favorable to Honda. The estate is entitled to a ruling on its motion for a new trial using the correct standard. On remand, the trial court should exercise its discretion and independently weigh the evidence in determining if the jury's verdict was against the weight of the evidence.

In reaching this conclusion, we reject Honda's assertion that the estate waived any right to a new trial by failing to challenge the jury verdict as legally inconsistent before the jury was discharged. We have held that "challenges to the consistency of a verdict are deemed waived unless made prior to the discharge of the jury:." But that rule has limited application here. The estate's failure to raise the issue of inconsistency before the court discharged the jury precluded it from later asserting that the inconsistency entitled it to a new trial as a matter of law. But that failure did not strip the estate of its right to move for a new trial on the discretionary ground that the verdict was against the weight of the evidence. Nor did the lack of objection bar the estate from arguing the apparent inconsistency of the verdicts as a factor that the trial court could consider in exercising its broad discretion to determine whether the totality of the circumstances warranted a new trial in the interest of justice.

Accordingly, we remand for reconsideration of the estate's motion for a new trial. On remand, the trial court should use its discretion and independently weigh the evidence to determine whether the verdict is against the weight of the evidence and whether to order a full or partial retrial in the interest of justice.

E. It Was Not an? Abuse of Discretion to Exclude the Indemnity Agreement.

The estate claims that the trial court abused its discretion when it refused to instruct the jury on the indemnity agreement between Honda and Sitnasuak. That agreement made Sitnasuak a defendant in name only: Sitnasuak gave up its right to control the defense of the case and its cross-claims against Honda in exchange for Honda's agreement to indemnify Sitnasuak for any "conduit" liability. Prior to trial, the estate submitted a proposed jury instruction that would have informed the jury of the indemnity agreement. The trial court declined to include the instruction. The estate again proposed the instruction at the beginning of trial, and it was again rejected.

Honda argues that the proposed instruction on the indemnity agreement was properly excluded because it would have been analogous to disclosing that a defendant is insured; as Honda points out, evidence of the availability of insurance is inadmissible.

We disagree with Honda's analogy to insurance. An insurance policy protects the insured from liability by contractually shifting the financial, but not the legal, responsibility to the insurer. The insurer therefore accepts the risk of liability without regard to its own conduct. By comparison, Honda's own conduct made it responsible for breaching a tort duty that it owed directly to Gologergen; its indemnity agreement simply required it to reimburse Sitnasuak-an otherwise innocent party-for any "conduit" lability that Sitnasuak might have incurred as a result of being involved in Honda's chain of distribution. Thus, unlike an insurer, Honda was the principal wrongdoer and agreed to indemnify Sitnasuak for incidental liability that might arise from Sitnas-uak's relationship with Honda. In effect, then, the agreement simply recognized that Sitnasuak had no real interest in the litigation."

But regardless of the indemnity agreement's nature and purpose, the circumstances of this case compel us to conclude that the trial court did not abuse its discretion in excluding the estate's proposed jury instruction. As Honda correctly points out, the estate itself chose to join Sitnasuak as a defendant, even though the estate knew that under products liability law Honda would ultimately be responsible for any judgment.

The estate nevertheless cites Frontier Compamies of Alaska, Inc. v. Jack White Co., for the proposition that indemnity agreements can be used under Alaska Evidence Rule 408 to "show the true alignment of the parties." There, we held that it was not an abuse of discretion for the trial court to allow evidence of a settlement agreement between co-defendants where, "[blecause of the agreement, [one co-defendant's] representatives might be motivated to slant their testimony in [the other's] favor and vice-versa."

But Frontier is easily distinguishable from this case. In Frontier, employees of both co-defendants appeared as witnesses and the settlement agreement between them obligated both parties to pay half of any judgment against either. That situation created a potential for bias on the part of the co-defendants because of their inter-related interests in the litigation. Our ruling simply recognized that an undisclosed settlement agreement aligning the interests of co-defendants would have deceptively maintained the appearance of adversity in the litigation.

Here, by contrast, the indemnity agreement did not align Sitnasuak's interests with Honda's; it simply left Sitnasuak with no real interest in the litigation. And in the absence of evidence of the agreement, there was no deceptive appearance of adversity. Moreover, no employee or representative of Sitnasuak appeared as a witness, thus eliminating any residual possibility of actual or apparent bias. Given these circumstances, the trial court did not abuse its discretion in declining to give the jury instruction.

IV, CONCLUSION

The decision of the trial court is AP-FIRMED in part and REVERSED in part; we REMAND for proceedings consistent with this opinion.

EASTAUGH and CARPENETI Justices, not participating.

      . Sitnasuak is the village corporation of Nome that sold the Honda ATV to Gologergen through its business, "Bonanza."

      . Hutchins v. Schwarts, 724 P.2d 1194, 1197 (Alaska 1986).

      . Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989).

      . Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).

      . - Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 39 (Alaska 1998).

      . The disputed evidence was admitted during Honda's cross-examination of one of the estate's expert witnesses, former CPSC commissioner Stuart Statler, through testimony by three Honda witnesses and through nine comparative-risk exhibits introduced when these witnesses testified.

      . Loncar v. Gray, 28 P.3d 928, 932 (Alaska 2001).

      . -See Bittner by Bittner v. American Honda Motor Co., 194 Wis.2d 122, 533 N.W.2d 476, 487 (1995) (bolding that the trial court properly admiited defendant's comparative risk evidence for the purpose of impeaching the CPSC's statistical analysis because the evidence demonstrated that the CPSC's statistical basis, relied on by the plaintiff, could be defective).

      . See Sturm, Ruger & Co. v. Day, 615 P.2d 621, 624 (Alaska 1980). As mentioned in the statement of facts, despite its finding that Aaron, Eleanor, Stephanie, and Brianne Gologergen all were legal dependents of Abner Gologergen, the jury awarded loss of consortium damages only to Stephanie and Brianne, awarding nothing to Aaron and Eleanor. These verdicts are arguably inconsistent, and their potential inconsistency ~ could conceivably cast doubt on the reliability of the award of zero damages to Aaron and Eleanor. But in our view the estate's failure to challenge the verdict as inconsistent before the trial court discharged the jury precludes the estate from relying on this inconsistency as a legal basis requiring a retrial on either its negligence or product liability claims.

      . The punitive damages jury instruction stated: The plaintiff has requested that you punish the defendant to deter them and others from repeating similar acts. You may award the plaintiff such an amount of money only if you decide that the defendant's conduct which forms the basis of your verdict was outrageous. The defendant's conduct was outrageous if it was the result of maliciousness or hostile feelings toward the plaintiff, or was undertaken with reckless indifference to the interests, rights or safety of others.

      . We reject the estate's assertion that this court should declare as a matter of law that the jury's verdict was a compromise.

      . See Alaska R. Civ. P. 50(a) and (b); Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 108 (Alaska 1997).

      . See Alaska R. Civ. P. 59(a); see also Sloan v. Atlantic Richfield Co., 541 P.2d 717, 723 (Alaska 1975).

      . See Sloan, 541 P.2d at 723 n. 11.

      . 11 Charles Alan Wright et al., Federal Practice & Procedure § 2806 at 65 (2d ed.1995).

      . 413 P.2d 159, 160 (Alaska 1966).

      . Id. at 162.

      . Grow v. Ruggles, 860 P.2d 1225, 1226 (Alaska 1993); accord Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994).

      . See Alaska R. Civ. P. 59(a). Rule 59(a) provides that: "A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury ... if required in the interest of justice." See, eg., Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989).

      . The indemnity agreement stated in relevant part:
      2. ... American Honda ... and defendant Sitnasuak hereby stipulate and agree that they hereby waive and will not seek apportionment of fault to co-defendant Sitnasuak, pursuant to A.S. 09.17.080, for any acts of independent: [sic] negligence, gross negligence and/or recklessness....
      5. The Honda defendants have agreed to and will continue to defend Sitnasuak against those claims asserted by plaintiff which may subject Sitnasuak to "conduit" product liability.
      6. The Honda defendants will indemnify Sitnasuak against any judgment which may be entered against Sitnasuak based on "conduit" product liability.

      . The estate's proposed jury instruction provided:
      Counsel for Plaintiff and Defendants have entered into a stipulation which establishes that Defendant Sitnasuak has no liability for any acts of independent negligence by Sitnas-uak. The Honda Defendants have agreed to and will indemnify Sitnasuak as the seller of the 3-wheeler in question against any judgment entered in this action.
      This means that the Honda defendants have agreed to be financially responsible for any judgment rendered against Sitnasuak in this action.

      . Sitnasuak's financial obligation did not change after the settlement and indemnity agreement with Honda: as a mere conduit, Sitnasuak was always entitled to full contribution from Honda on any damage award against it. See Colt Indus. Operating Corp., Quincy Compressor Div. v. Frank W. Murphy Mfr., Inc., 822 P.2d 925, 936 (Alaska 1991).

      . 818 P.2d 645 (Alaska 1991).

      . Alaska Rule of Evidence 408 states in relevant part:
      Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.... This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. ...

      . Frontier Cos. of Alaska, 818 P.2d at 652.

      . Id. at 648, 651-52.


source: Caselaw Access Project

author: Justice KOURLIS

license: Public Domain

text:
    John W. PIERSON and Wanda L. Pierson, Petitioners, v. BLACK CANYON AGGREGATES, INC. and Chauncey Luttrell, Respondents.
    No. 01SC161.
    Supreme Court of Colorado, En Bane.
    May 20, 2002.
    As Modified on Denial of Rehearing July 1, 2002. -
    Woodrow & Roushar, Frank J. Woodrow, Montrose, Colorado, Attorneys for Petitioners.
    Younge & Hockensmith, P.C., Earl G. Rhodes, David Dodero, Grand Junction, Colorado, Attorneys for Respondents.
   Justice KOURLIS

delivered the Opinion of the Court.

In this case, Petitioner John W. Pierson drove over a seventeen-foot embankment into a gravel pit when the roadway on which he was traveling abruptly ended.. His vehicle landed on its roof, and he sustained injuries. The property where the gravel pit was located was owned by Donald C. and Nellie L. Neal, and was under lease to Montrose County. Pierson brought this action against Respondents, Black Canyon Aggregates, Inc. and Chauncey Luttrell, the operators of the gravel pit pursuant to a gravel crushing agreement with Montrose County. Petitioners, John W. Pierson and his spouse, Wanda L. Pierson, asserted that Respondents were liable to them for negligence under the premises liability statute.

Respondents countered that they were not "landowners" under that statute. The trial court granted summary judgment for Respondents, concluding that Montrose County, and not the Respondents, was the party in possession of the property for purposes of the statute and, thus, the landowner. The court of appeals affirmed. Pierson v. Black Canyon Aggregates, Inc., 32 P.3d 567, 569 (Colo.App.2000).

We agreed to grant certiorari on the question of whether the trial court properly construed the meaning of "landowner" under the premises lability statute, § 18-21-115, 5 C.R.S. (2001), and therefore now examine the parameters of that term as defined by the statute. -

We read the statute as intending to define and limit the liability of property owners. Such protection is, in our view, available to authorized agents or parties in possession of the property and also to parties legally responsible for the condition of the property or activities conducted on it. Since the protections of the statute are broad-reaching, its responsibilities must be coextensive. Therefore, an independent contractor such as Respondent is a "landowner" for purposes both of the protections and the responsibilities of the statute. Because we determine that the trial court was too narrow in its application of the statutory test, we reverse.

I. Facts

In 1985 the Neals leased the property on which the gravel pit and the road are located to Montrose County (the County) for mining, excavating, and stockpiling gravel, for a term of twenty years. Under the lease, the County agreed to maintain all roads used by the County on the premises. The lease specifically referred to the public right-of-way designated as 57.50 Road and gave the County the option to fence the right-of way or place cattle guards across the road at any location. Finally, the County agreed to reclaim all gravel extraction sites pursuant to specified reclamation provisions.

On November 12, 1996, the County and Respondent Black Canyon Aggregates, Inc. entered into an agreement authorizing Respondent to erush gravel for the County at various County-owned or leased gravel pits throughout Montrose County as directed by the County. The agreement provided that the parties intended to create an independent contractor employer relationship and that Respondent should not be considered an agent or employee of the County for any purpose. The County clarified that it was interested only in the results to be achieved and that the conduct and control of the work was to lie solely with Respondent:

In the performance of the work herein contemplated, [Respondent] is an independent contractor, as above noted, with the authority to control and direct the performance of the details of the work, County being interested only in the results obtained. However, the work contemplated must meet the approval of County's designated agent or representative and shall be subject to County's general right of inspection and supervision to insure the satisfactory completion thereof.

The agreement further gave the County the right to enter the property to correct any dangerous condition:

The work to be performed under this agreement will be performed entirely at [Respondent's] risk, and [Respondent] assumes all responsibility for the condition of its tools and equipment used in the performance of this Memorandum. [Respondent] agrees to indemnify County for any and. all liability or loss arising in any way out of the performance of this Memorandum. Should County determine that any action being undertaken at respective pits endangers or may endanger the health, safety, welfare, or other normal operations of County, any of its subcontractors, or citizens, County may enter said pit for the purposes of remedying the same, and [Respondent] agrees to pay all reasonable costs incurred by County under such action.

Pursuant to an addendum to the agreement the County even reserved the right to determine "the depth of excavation and approximate location of gravel to be excavated for crushing." Finally, the agreement specified that the County would be responsible for removing overburden and for reclaiming each pit after crushing operations ceased.

The County did not assign its lease of the gravel pits to Respondent. However, the gravel crushing agreement did require Respondent to comply with all leasehold interest agreements at each pit site.

On April 23, 1997, Petitioner John W. Pier-son was driving in the area of the pit in question to collect payment for a tractor he had recently sold. On his out-bound trip, he drove around the pit. On his return trip, Petitioner decided to take an alternate route, Road 57.50, which runs through the gravel pit. At the gravel pit, Road 57.50 ended in a seventeen-foot drop-off caused by years of exeavation and mining activities. Petitioner drove over the bank. Petitioner's vehicle landed on its roof, and he sustained injuries as a result of the accident.

According to undisputed facts before the trial court, the County had operated the pit for a number of years. Respondent had mined the pit on several occasions over the years. Most recently, Respondent had been on the site crushing gravel for less than a month.

On November 6, 1997, Petitioners filed a complaint against Réspondents, Black Canyon Aggregates, Inc. and its owner, Chauncey Luttrell. Petitioners did not name the County as a defendant in the action. Respondents filed a motion for summary judgment asserting, in pertinent part, that the premises liability statute controlled liability and that they were not landowners under the statute because the County was in possession of the gravel pit. In response, Petitioners agreed that the premises liability statute was controlling, but asserted that Respondents were landowners under the terms of the statute because they were, in fact, in possession of the property pursuant to the agreement between Respondent Black Canyon Aggregates and the County. e

The trial court found that the County, and not Respondents, was the landowner within the definition provided by section 18-21-115. Specifically, the trial court determined that: (1) the County was the lessee of the property; (2) the County did not assign the lease to Respondent; (3) the County retained the obligation to repair fences and the right to erect gates; (4) the County and Respondent specifically agreed that they had an employer-independent contractor relationship; (5) the County had the right to inspect the premises, to make safety improvements, to generally supervise the work and condition of the pit, and to dictate the location and depth of the exeavation; and (6) the County was responsible for removing the overburden and reclaiming the pit. Thus, the trial court determined that Respondents had no liability for Petitioner's injuries under a premises liability theory. The trial court therefore granted summary judgment on Petitioners' premises liability claim.

On appeal, the court of appeals affirmed. Pierson v. Black Canyon Aggregates, Inc., 82 P.3d 567, 569 (Colo.App.2000). The court of appeals held that when the County originally leased the gravel pit, it was the party in possession of the property. Id. It noted that Respondents were not granted exclusive possession of the pit, as might have been the case with a lessee; rather, they had only a contractual right to mine, excavate, and stockpile gravel under the County's supervision. Id. It held that Respondents were not solely responsible for the condition of the gravel pit and . were not in possession of the premises. Finally, it concluded that "[alb-sent some type of ownership or leasehold interest in the property, a party does not fall within the definition of a 'landowner' for purposes of the premises liability statute." Id. at 570. Therefore, the court of appeals determined that the trial court properly granted summary judgment because Respondents could not be held liable under the statute. Petitioners sought certiorari on the proper construction of the term "landowner" under the statute.

IL - Standard of Review

The standard for review of the trial court's grant of summary judgment is so well-established as to be rote; however, we set it forth in order to frame the question we must address. Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to summary judgment as a matter of law. Martini v. Smith, 42 P.8d 629, 632 (Colo.2002) (citing Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608, 611 (Colo.1998)). Appellate courts review a trial court's order granting or denying a motion for summary judgment de novo. Vail/Arrowhead, Inc., 954 P.2d at 611; see also Joe Dickerson & Assocs. v. Dittmar, 34 P.3d 995, 10083 (Colo.2001) (holding that an appellate court reviews a trial court's granting of a summary judgment motion de novo because it is a question of law); Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1250 (Colo.1996) ("All summary judgments are rulings of law in the sense that they may not rest on the resolution of disputed facts. We recognize this by our de novo standard of reviewing summary judgments.") (internal quotation marks omitted).

III. The Premises Liability Statute

The law of premises liability in Colorado has had something of a checkered history. In 1971 this court overruled the common-law principles of landowner lability that had turned on the status of the person entering the property, because the court perceived those principles to have occasioned harsh rulings as a matter of law against plaintiffs. Mile High Fence Co. v. Radovich, 175 Colo. 537, 542-45, 489 P.2d 808, 312-18 (1971). Instead, the court applied general negligence law, with one factor being the status of the plaintiff's entry onto the land. In 1986 the general assembly enacted the predecessor statute to the one we now consider, in an attempt to reinstate the common-law rules of liability. See ch. 109, see. 1, § 13-21-115, 1986 Colo. Sess. Laws 683. That statute succumbed to an equal-protection challenge because this court determined that it afforded less protection to invitees than to licensees (contrary to the common law) and was not justified either by logic or by history. Gallegos v. Phipps, 779 P.2d 856, 862 (Colo. 1989). Again, the general assembly responded, this time by substantially amending the statute to the version we now consider. See ch. 107, see. 1, § 18-21-115, 1990 Colo. Sess. Laws 867. Interestingly, throughout the history of the statute, the language defining "landowner" has remained unchanged.

We look then to the specific language of the premises Hability statute to answer the question before us. Our role in construing the meaning or seope of a statutory term is to give effect to the intent of the legislature. Lakeview Assocs. v. Maes, 907 P.2d 580, 584 (Colo.1995). In so doing, we first examine the language of the statute itself. Id. If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Resolution Trust Corp. v. Heiserman, 898 P.2d 1049, 1054 (Colo.1995) ("[If courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assembly meant what it clearly said."). We will construe words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, accordingly. Id. We presume that the legislature acted with full knowledge of relevant judicial precedent on the subject. Id. Finally, if a statute is ambiguous, we look to a variety of other factors, including legislative history. § 2-4-203, 1 C.R.S. (2001).

Section 18-21-115(1) provides, "For the purposes of this section, 'landowner' includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or cireumstances existing on real property.” *

The general assembly identified the purpose of the premises liability statute as promoting "a state policy of responsibility by both landowners and those upon the land as well as [assuring] that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee." § 18-21-115(1.5)(a). The statute intends "to create a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability - of insurance." § 183-21-115(1.5)(d). It further provides that its intent is "to protect landowners from liability in some cireumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent with the policies of this subsection (1.5)." § 18-21-

The overriding purpose of the premises liability statute is to clarify and to narrow private landowners' liability to persons entering their land, based upon whether the entrant is a trespasser, licensee, or invitee. § 18-21-115(1.5). General negligence law would not provide such protection. To whom, then, did the general assembly intend to extend that protection?

Clearly, the "landowner" entitled to take refuge in the statute need not be the titled owner of the property. Rather, the general assembly defined "landowner" quite broadly to include, without limitation ' (i) an authorized agent or person in possession of the land; and (ii) a person legally responsible for the condition of the real property or for the activities conducted or cireumstances existing on the property.

Under the first portion of that definition, we concentrate here on the meaning of "a person in possession of real property." § 13-21-115(1). Section 18-21-115 itself does not provide a definition of "possession" of real property. Respondents argue that to satisfy the possession element of the test, a person or entity must be in exclusive possession of the property; they assert that they were not in exclusive possession of the gravel pit.

Indeed, we have sometimes defined "possession" as meaning "a general holding and occupancy, complete dominion over the property to the exclusion of others." Concord Corp. v. Huff, 144 Colo. 72, 78, 355 P.2d 73, 76 (1960); see also 1 Herbert Thorndike Tiffany, Real Property § 20 (8d ed. 1989) ("[One is in possession of land when he is in occupation thereof, with the intention, actually realized, of exeluding occupation by others, or when, although not in actual occupation, he claims the right of exclusive occupation, and no person is in occupation opposing his claim.").

On the other hand, the Restatement (See-ond) of Torts § 328E (1965) does not require exclusive possession, but rather provides that a possessor of land is:

(a) a person who is in occupation of the land with intent to control it or |
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

Both this court and the court of appeals have previously addressed this question primarily in a context in which the owner of the property seeks to shift liability onto an operator or lessee. For example, in Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000), we noted that where a landowner employs an independent contractor to do work on the land, the landowner is nonetheless subject to the same liability to others for physical harm caused by an unsafe condition as if the landowner completed the work itself. Id. at 802 (citing Restatement (Second) of Torts § 422 (1965)). In Springer, we held that a landowner may not delegate to an independent contractor the obligation to exercise reasonable care to protect invitees and licensees against dangers within the scope of the premises liability statute. Id. at 804.

Similarly, in Jules v. Embassy Properties, Inc., 905 P.2d 18, 15 (Colo.App.1995), the court of appeals concluded that a landowner cannot avoid liability by hiring an independent contractor to manage and maintain the property when the landowner does not surrender complete possession of the property, but rather retains the right to collect rents and manage the property. And, in Kidwell v. K-Mart Corp., 942 P.2d 1280, 1282 (Colo. App.1996), the court of appeals concluded that a landowner in possession of property may not delegate to an independent contractor the obligation to maintain the premises in a safe condition for invitees.

On the other hand, when a landowner transfers complete control of the premises to a lessee, that landowner is no longer a person in possession for purposes of the statute. See Perez v. Grovert, 962 P.2d 996, 999 (Colo.App.1998).

Hence, in the context in which the owner of the property disputes his or her liability for the actions of an alleged tortfeasor on the property, the question of whether that owner transferred exclusive possession or retained some interest is a relevant inquiry. Here, however, we are not addressing whether the County remains lHable-which would be the corollary to the question presented in our prior cases. Rather, we must determine whether these Respondents, as alleged tort-feasors, have a sufficient possessory interest to qualify as a "landowner" at all under the statute.

In this context, we determine that exelusive possession is not the pivotal inquiry. We now hold, based on the clear statutory language, that as to that portion of the definition, a "landowner" is any "person in possession of real property" and that such possession need not necessarily be to the exclusion of all others. To the extent that the trial court and court of appeals viewed exclusive possession as being an element of the statute, we disagree.

Furthermore, the second definition of a landowner under the statute directs an alternative inquiry under which a "landowner" can be someone who is legally responsible for the condition of the property or for activities conducted or cireumstances existing on the property. That language could be interpreted two ways. It could be read to mean that a "landowner" is someone who could be held legally liable for the alleged tort, or it could mean that a "landowner" is someone who is legally conducting activity or creating a condition on the property and therefore responsible for that activity or condition.

The first reading would be cireular and absurd. It would conclusively define as a "landowner" anyone with legal liability to an entrant on property. It could even include a trespasser on private property who causes damage to another person so long as that trespasser could be held liable for the injury. It is our duty to avoid interpretations that either render language of a statute meaningless or absurd, AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023, 1031 (Colo.1998), and our further duty to interpret a statute in light of the express intent of the legislature. Given that the general assembly intended to "promote a state policy of responsibility by both landowners and those upon the land," we conclude that providing the protections of the statute to a defendant who was himself without any legal right to be on the land would be inapposite.

Rather, we adopt the second reading, such that the statute offers its protection to a person who is legally conducting an activity on the property or legally creating a condition on the property. Such a person or entity is "responsible" for the activity or condition and, therefore, prospectively liable to an entrant onto the property. The common definition of "responsible" is: "[alnswerable, accountable, (to); liable to be called to account; having authority or control; being the cause." II New Shorter Oxford English Dictionary 2567 (19983). Therefore, the focus becomes whether the defendant is someone who is legally entitled to be on the real property and whether that defendant is responsible for creating a condition on real property or conducting an activity on real property that injures an entrant. In our view, such focus properly serves the intent of the statute by: (i) limiting the protection of the statute to a person or entity with legal authority to be on the property; and (ii) placing prospective liability with the person or entity that created the condition or conducted the activity on the real property that, in turn, caused injury to someone. Of course, the cause of action must arise out of an injury occurring on the real property of another and by reason of the condition of the property or activities or cireumstances directly related to the real property itself in order to be within the rubric of the statute. See § 13-21-115(2).

In summary, then, we understand the general assembly to intend a broad definition of landowners who can claim the protections of the premises liability statute. Those landowners include individuals or entities who are authorized agents or persons in possession, and include individuals or entities who are legally conducting an activity on the property or legally creating a condition on the property.

Thus, we answer the question on certiorari by holding that a "landowner" for purposes of the statute can certainly be an independent contractor such as these Respondents. More specifically, when we apply our expansive reading of the statute to the trial court's findings of fact, we conclude that, for purposes of summary judgment, Respondents were sufficiently in possession to fit the definition of "landowners" under section 18-21-115(1), and were also persons legally conducting an activity on the property that allegedly injured Pierson. Therefore, we reverse the trial court's grant of summary judgment in favor of Respondents as to that issue.

IV. Conclusion

Accordingly, we reverse the court of appeals and return this case to the trial court for further proceedings.

      . The Neals were not named as defendants in this action and were never alleged to be the landowners for purposes of the statute. Petitioners did not sue Montrose County because of their belief that the Governmental Immunity Act, §§ 24-10-101 to 119, 7 C.R.S. (2001), precluded such suit, Respondents did name the County as a nonparty at fault, which designation was never an issue because of the trial court's disposition of the case.

      . Although Petitioners contend that Road 57.50 is a county road, the record contains the affidavit of the road foreman for Montrose County swearing that the road is not a county road; his affidavit states that the road is private property, specifically, an old driveway leading to a vacant house.

      . Initially, Petitioners asserted claims for negligence under the premises liability statute, breach of contract under a third-party beneficiary theory, negligence for failing to name Montrose County as an additional insured on the liability insurance policy, loss of consortium, and punitive damages. Because of the procedural posture of the case before us, we address only the premises liability statute claims.

      . The general assembly added "without limitation" specifically to ensure that lessees and renters were included in the definition of "landowner." House floor debate on H.B. 1205, Feb. 26, 1986.

      . In Perez, 962 P.2d at 997, the plaintiff named both the owner of the premises and the lessee as defendants. Similarly, in Kidwell, 942 P.2d at 1282-83, the owner of the property was allowed to designate the independent contractor as a nonparty at fault and argue that any settlement reached with that independent contractor would be offset against a verdict. In Jules, 905 P.2d at 15, the defendant-owner of the property named the independent contractor as a nonparty at fault, and the court of appeals did not reach the propriety of that designation.

      . We acknowledge that, in Wark v. United States, 269 F.3d 1185 (10th Cir. 2001), in construing section 13-21-115 the Tenth Circuit reached the opposite result. Id. at 1189. In that case the court declined to interpret "landowner" more broadly than its common law definition. Id. at 1188. That court surmised that the general assembly sought to narrow the preexisting law by offering protection to landowners in circumstances where they were not protected at common law and therefore chose a narrow definition of "landowner." We agree with the Tenth Circuit's explanation of the purpose of the statute, but have concluded that such purpose argues for an expansive definition of "landowner," as demonstrated by the legislative intent and the terms of the statute itself. §13-21-115; House floor debate on H.B. 1205, Feb. 26, 1986.

      . Whether Respondents were actually responsi-bie for the precise situation that infured Pierson is a question for the trier of fact on remand. By reversing the summary judgment, we are merely concluding that Petitioners set forth sufficient facts to create a dispute.


author: Justice HOBBS

text:
    COLUMBUS INVESTMENTS, Petitioner, v. Richard G. LEWIS and Patricia A. Lewis, Respondents.
    No. 018C340.
    Supreme Court of Colorado, En Bane.
    June 17, 2002.

      Golden, Mumby, Summers, Livingston & Kane, James Golden, J. Richard Livingston, Grand Junction, Colorado, Attorneys for Petitioner.
    Traylor, Tompkins, Black & Gaty, Peter R. Black, Christopher B. Gaty, Grand Junetion, Colorado, Attorneys for Respondents.
    Mesa County Attorney's Office, Maurice Lyle Dechant, Mesa County Attorney, Angela M. Luedtke, Assistant Mesa County Attorney, Grand Junction, Colorado, For Amicus Curiae, County of Mesa, State of Colorado and the Mesa County Treasurer.
   Justice HOBBS

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Lewis v. Columbus Investments, 36 P.3d 75 (Colo.App.2001) to determine whether the county treasurer correctly followed the notice procedures of seetion 39-11-128(1)(a) in issuing notice of a pending tax deed following sale of a tax lien. The court of appeals reasoned that the original holders' assignment of their promissory note and deed of trust to Norwest Bank as collateral for a loan was only a security device; thus, the original holders retained an interest in the underlying real propérty for the purpose of section 39-11-128(1)(a) notice. The court of appeals invalidated the tax deed.

We reverse. We determine that the original holders of the promissory note and deed of trust assigned to Norwest all of the interest that would have entitled them to notice under section 39-11-128(1)(a). Norwest recorded the assignment under section 88-35-109(1), and the county treasurer did not err in relying on the interests of record at the time of her inquiry in not giving notice to the McClellands.

I.

Richard and Patricia Lewis ("Lewises") acquired title to a parcel of real property in Fruita, Colorado ("the Fruita property") in 1989. The Lewises borrowed the funds to purchase the property from Glenn and Karen McClelland ("McClellands"). In exchange, the Lewises executed a promissory note to the McCilellands in the principal amount of $25,425.00. A deed of trust on the Fruita property secured payment of the note.. The McClellands recorded the deed of trust.

In 1995, the McClellands transferred both the Lewises' note and deed of trust to Nor-west Bank in connection with a loan from the bank. The McClellands and Norwest executed a "Collateral Assignment of Interest in Deed of Trust" ("the security agreement") that provided, in relevant part:

Assignment: As security for indebtedness owing by Assignor to Bank, Assgignor has granted to Bank a security interest in a promissory note or other obligation secured by the above-described Deed of Trust and Assignment of Rents. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor hereby assigns to the Bank all of Assignor's right, title, and interest in and to the Deed of Trust and Assignment of Rents as additional security for Assignor's indebtedness owing to the Bank.

(Emphasis added.)

The McClellands delivered both the note and the deed of trust to Norwest; the record is silent regarding their endorsement of the note. Norwest recorded the assignment with the Clerk and County Recorder's office in May of 1995.

Meanwhile, the Lewises failed to pay the property taxes levied and assessed against the Fruita property. As a result, the Treasurer of Mesa County sold a tax lien on the Fruita property. - Columbus Investments purchased the tax lien. After the statutory redemption period expired, Columbus Investments asked the county treasurer to issue it a tax deed for the property.

The treasurer hired a title company to research the interests of record in the Fruita property, pursuant to section 839-11-128(1)(a), 11 C.R.S. (2001). This statute governs notice to parties with interests of record. The title report advised:

We have searched our records of documents recorded in the office of the Mesa County Clerk and Recorder, and find that the following appear to be parties who have acquired a record interest in the following described real property: ... Richard G. and Patricia A. Lewis, ... Norwest Bank Grand Junction, .... Charlee C. Brown, Robert S. Burton III, and William D. Langford, ... Columbus Investments.

Based upon the title report, the treasurer provided notice of the pending issuance of the tax deed to the Lewises, Columbus Investments, Norwest, and other parties by certified mail, but not to the McClellands. The post office returned the Lewises notice to the treasurer because their forwarding address had expired.

Following expiration of the redemption period, the treasurer issued a tax deed to Co-ITumbus Investments. Columbus Investments recorded the deed on January 24, 1997. See § 38-35-109(1), 10 C.RS. (2001); § 39-11-136, 11 C.R.S. (2001). When the Lewises learned of the deed, they filed a quiet title action. They asserted that the treasurer's deed was void because the treasurer violated section 39-11-128(1)(a) by not notifying the McClellands.

On cross motions for summary judgment, the trial court held that the McClellands' agreement with Norwest did not divest them of the right to notice, rendering the tax deed void. The court of appeals agreed with the trial court, one judge dissenting. We disagree with the trial court and the court of appeals.

The treasurer had no obligation to notify the McClellands about the purchase of the tax lien and issuance of the tax deed. They had assigned all of their right, title, and interest in the note and deed of trust to Norwest. The treasurer relied on the recorded assignment. Accordingly, we reverse the judgment of the court of appeals and remand with instructions to enter summary judgment for Columbus Investments.

IL.

We determine that the original holders of the promissory note and deed of trust, the McClellands, assigned to Norwest all of the interest that would have entitled them to notice under section 89-11-128(1)(a). Nor-west recorded the assignment under section 38-35-109(1), and the county treasurer did not err in relying on the interests of record at the time of her inquiry in not giving notice to the McClellands.

We review de novo a summary judgment. Aspen Wilderness Workshop, Inc.' v. Colo. Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995). Colorado law requires us to construe statutes so as to render title and interest in real property secure and marketable and not subject to defeat by technical or strict construction or defects. See § 38-84-101, 10 C.R.S. (2001).

We proceed with our analysis by examining the section 39-11-128(1)(a) notice requirement. We then discuss whether the McCleliands maintained an interest in the property for purposes of the section 38-11-128(1)(a) notice requirement, following their transaction with Norwest.

A.

Section 39-11-128(1)(a) Notice Requirement

Section 89-11-128 sets forth the statutory procedure governing issuance of a tax deed. Section 39-11-128(1)(a) lists the parties that the treasurer must notify: | |

The treasurer shall serve or caused to be served, by personal service or by either registered or certified mail, a notice of such purchase on every person in actual possession or occupancy of such land, lot, or claim, and also on the person in whose name the same was taxed or specially assessed if, upon diligent inquiry, such person can be found in the county or if his residence outside the county is known, and upon all persons having an interest or title of record in or to the same if, upon diligent inquiry, the residence of such persons can be determined, not more than five months nor less than three months before the time of issuance of such deed.

§ 39-11-128(1)(a), 11 C.R.S. (2001){emphasis added). This paragraph requires the treasurer to notify all persons having "an interest or title of record" in real property who have the right of redemption. Winter Park Devil's Thumb Inv. Co. v. BMS Partnership, 926 P.2d 1253, 1255 (Colo.1996).

In this case, prior to executing the security agreement and making their assignment to Norwest, the McClellands possessed a promissory note secured by a deed of trust on the Fruita property. A deed of trust in real property given as security for a debt is a mortgage. Morris v. Cheney, 81 Colo. 398, 395, 255 P. 987, 988 (1927). A mortgage is not a conveyance of a real property interest, because Colorado subscribes to a lien theory of mortgages. $ 88-85-117, 10 C.R.S. (2001). Although a deed of trust does not create an ownership interest in real property, it does constitute a legal or equitable interest in real property for the purposes of the section 39-11-128(1)(a) notice requirement. See Notch Mountain Corp. v. Elliott, 898 P.2d 550, 555 (Colo.1995).

The treasurer properly gave Norwest notice because it had recorded the McClel-lands' assignment to it of the note and deed of trust. The question here is whether the McClellands were also entitled to notice under section 39-11-128(Il)(a). The Lewises argue that the McClellands retained an interest in the property entitling them to notice because the assignment was only a security arrangement.

We agree that the McClellands and Norwest had a security arrangement regarding the loan the McClellands took out with Norwest, but the McClellands as additional collateral also assigned all of the right, title, and intérest in the deed of trust-their only interest in the real property-to Norwest. Under Colorado law, the agreement between the parties ultimately controls the security and real property interests of those parties.

B.

Security Interests and Real Property Interests

The transfer or assignment of a negotiable promissory note carries with it, as an incident, the deed of trust or mortgage upon real estate or chattels that secure its payment. Stetler v. Winegar, 75 Colo. 500, 502-03, 226 P. 858, 859 (1924). The scope of remedies provided by perfection of a security interest is the subject of section 4-9-607(a)(1):

If so agreed, and in any event upon default a secured party:
(1) May notify a[] ... person obligated on collateral to make payment or otherwise render performance to or for the benefit of the secured party;
(8) May enforce the obligations of an account debtor or other person obligated on collateral and exercise the rights of the debtor with respect to the obligation of the account debtor or other person obligated on collateral to make payment or otherwise render performance to the debtor, and with respect to any property that secures the obligations of the account debtor or other person obligated on the collateral ....

§ 4-9-607(a), 2 C.R.S. (2001)(emphasis added). Thus, either by agreement, or upon default, the secured pledgee can deem itself to be the owner of the mortgage loan, can demand that all further payments by the mortgagor be made directly to it, and can foreclose the mortgagor or sue on the note. See Nelson & White, supra, at 440.

The Lewises contend that the agreement between the McClellands and Norwest took place in the context of a security transaction under Article 9 of the UCC; thus, so the argument proceeds, the McClellands transferred only a security interest and retained their right to the section 39-11-128(1)(a) notice. While we agree that Article 9 of the UCC governs security interests, other law governs real property interests.

O1. Article 9 of the UCC

Article 9 of the UCC defines the cireumstances under which a party may obtain a security interest in notes or other instruments; this section also sets forth the rights of a secured party. § 4-9-102(1)(a), 2 C.R.S. (2000) ("Any transaction intended to create a security interest in personal property or fixtures, including instruments and gen- ° eral intangibles, is a security interest governed by Article 9 of the UCC."). Several requirements pertain to perfection of a security interest. A security interest is enforceable if: (1) the collateral is in possession of the secured party; (2) value has been given; and (8) the debtor has rights in the collateral. § 4-9-2083, 2 C.R.S. (2000.

However, Article 9 governs only that part of the transaction involving personal property; it does not affect rights in the underlying real estate. See § 4-9-101, 2 C.R.S. (2000) official emt. ("The main purpose of the Seetion is to bring all consensual security interests in personal property and fixtures under this Article ..."); Jackson County Fed. Sav. & Loan, Ass'n v. Maduff Mortgage Corp., 608 F.Supp. 588, 598 (D.Colo.1985). Section 4-9-102 emphasizes that Article 9 does not apply to non-personal property rights that may underlie transactions governed by Article 9. It provides:

The application of this article to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this article does not apply.

§ 4-9-102(8), 2 C.R.S. (2000).

The reporter's commentary accompanying the Uniform Commercial Code explains the impact of section 4-9-102(8) on choice of law. Utilizing a fact pattern similar to the case before us, this comment stresses that "other law" determines the effect of rights under the mortgage. Comment 4 reads:

The owner of Blackaere borrows 10,000 from his neighbor, and secures his note by a mortgage on Blackacere. This Article is not applicable to the creation of the real estate mortgage. Nor is it applicable to a sale of the note by the mortgagee, even though the mortgagee continues to secure the note. However, when the mortgagee pledges the note to secure his own obligation to X, this Article applies to the security interest thus created, which is a security interest in an instrument even though the interest is secured by a real estate mortgage. This Article leaves to other law the question of the effect on rights under the mortgage of delivery or non-delivery of the mortgage or of recording. or non-recording of an assignment of the mortgagee's interest. See section 9-104(j). But under Section 3-804(5) recording of the assignment does not of itself prevent X from holding the note in due course.

§ 4-9-102 emt. 4, 2 C.R.S. (2000){emphasis added).

This comment limits the application of Article 9 to only that part of the transaction involving a security interest in an instrument. Article 9 makes clear that a party's acquisition of a perfected security interest under Article 9 does not prevent that party from also aequiring the pledgor's real property interest.

In order to determine if the McClellands transferred all of their interest in the Fruita property for the purposes of section 39-11-128(1)(a) notice, we therefore look to "other law" and the terms of the agreement between the McClellands and Norwest.

2. Terms of the Agreement

[12, 13] Because "a security agreement is effective according to its terms between the parties," § 4-9-201, 2 CRS. (2000), the agreement between the parties may include both a security device and an assignment of the assignor's interest in the real property. The intent of the parties is determined primarily from the language of the contract itself. In re May, 756 P.2d 862, 369 (Colo. 1988). The terms of the contract receive their plain and ordinary meaning. Cache Natl Bank v. Lusher, 882 P.2d 952, 957 (Colo.1994).

Nelson and White conclude that the obvious starting point for analysis of the pledgor-pledgee relationship is the agreement between the parties. Nelson & White, supra, at 448; Nichols v. Cadle Co., 189 F.3d 59, 62 (Ist Cir.1998) (finding that agreement reserved to pledgor right to collect and foreclose mortgage loan; pledgor was the mortgagee under Massachusetts statute); Prairie Props., LLC. v. McNeill, 996 SW.2d 635, 639-40 (Mo.App.1999)(stating that agreement gave pledgee the right to enforce or release pledged mortgage note when debt secured by pledge was in default).

In its decision in this case, the court of appeals pointed out that the record does not show whether the McClellands endorsed the note to Norwest. In the absence of demonstrated endorsement, the court of appeals concluded that the McClellands retained a property interest for section 39-11-128(1)(a) notification purposes. - Lewis, 86 P.8d at 78. In support of the court of appeals' conclusion, real estate law commentators explain that, "if there is no endorsement, transfer of the note will still vest the right of enforcement in the transferee, but he or she cannot be a holder in due course." Nelson & Whitman, supra, at 428.

However, an assignee may acquire all of the rights formerly held by the assign- or even absent endorsement. See Barclay Receivables Co. v. Mountain Mojesty, Ltd., 903 P.2d 37, 89 (Colo.App.1995)(holding that an assignee of a note who is not a holder because the note lacks endorsement may seek recovery if the assignee proves a valid assignment). The McClellands assigned all of their interest to Norwest as additional collateral for the bank's loan.

8. - Legislative Policy Considerations

Several policies of the General Assembly support our decision that the McClellands did not require notice under section 39-11-128(1)(a). First, section 4-9-207 protected the McClellands from any loss that might occur if Norwest had failed as the security holder to exercise reasonable care in the custody and preservation of the note and deed of trust. $ 4-9-207, 2 CRS. (2000). Section 4-9-207 provides that:

(1) A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.

§ 4-9-207(1), 2 C.R.S. (2000). Statutory notice under section 39-11-128 was not necessary to protect the McClellands' interests.

Second, deeds of trust are frequently sold and assignments made. The treasurer looks to "interests of record" when conducting her diligent inquiry under section 39-11-128. The treasurer need not speculate whether the word "all" means less than all. Here, the treasurer reasonably relied on the record at the time of the inquiry. ®

C.

The McClellands Assignment

The McClellands assigned to Norwest all of the interest that gave them the right to the section 39-11-128 notice. Under the court of appeals' ruling, county treasurers would have to look behind and ignore the comprehensive language of the assignment.

The title company's search of the records for the treasurer clearly reflected the breadth of the McClellands' assignment:

Assignor hereby assigns to the Bank all of Assignor's right, title, and interest in and to the Deed of Trust and Assignment of Rents as additional security for Assignor's indebtedness owing to the bank.

In order to show that the assignment was simply another form of security interest, the court of appeals pointed out that the caption of the document said "Collateral Assignment of Interest in Deed of Trust." However, while the assignment may have been made as security, it was complete. The MecClellands assigned all of their legal and equitable interest in the property to Norwest.

Only when the terms of an agreement are ambiguous, or are used in some special or technical sense not apparent from the contractual document itself, may the court look beyond the four corners of the agreement in order to determine the meaning intended by the parties. KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769, 776 (Colo.1985). Whether an ambiguity exists, as a matter of law, is for the court to determine. Id.

We give security agreements effect according to their terms. § 4-9-201, 2 CRS. (2000). Because the agreement included the comprehensive assignment, Norwest obtained the right of the McClellands, the original holders of the deed of trust, to the treasurer's notice under section 39-11-128(1)(a). § 4-3-203(b); § 4-9-607(a), 2 C.R.S. (2000).

The McClellands would regain a right of notice only upon: (1) payment of the loan Norwest made to them, and (2) Norwest's consequent re-assignment and redelivery of the note and deed of trust to the McClel-lands. The statutes do not contemplate voiding the tax deed for such a hypothetical.

Exercising the required diligence, the county treasurer gave notice to the parties with an interest of record in the Fruita property for the purposes of 39-11-128(1)(a). This did not include the MeClellands.

TIL.

Accordingly, we reverse the judgment of the court of appeals and remand with instructions to enter summary judgment for Columbus Investments.

      . - We granted certiorari on the issue of:
      Whether the original beneficiaries of a note and deed of trust secured by real property, who subsequently transfer the note and deed to a bank pursuant to an agreement of which the stated purpose is "as security for indebtedness" but purports to "assign to the Bank all of Assignor's right, title and interest in and to the deed of trust," retain "an interest" in the real property sufficient to warrant notice of the pending issuance of a treasurer's deed pursuant to C.R.S. § 39-11-128.

      . Colorado law gives any person having a legal or equitable claim to the property a right to redeem the tax lien. § 39-12-103(1), 11 C.R.S. (2001). Redemption consists of a payment of the amount of taxes, delinquent interest and costs for which the tax lien on the property was sold, together with redemption interest and the amount of taxes accruing after the tax lien sale. § 39-12-103(3), 11 CRS. (2001). If a party entitled to redeem the property does not do so within the statutory redemption period, the tax lien holder may take title to the property through a treasurer-issued tax deed. See 39-11-120, 11 C.R.S. (2001); of. Telluride Resort & Spa, LP. v. Colo. Dep't of Revenue, 40 P.3d 1260, 1266 (Colo. 2002).

      . At the time, the Lewises lived and worked out of the country. They later asserted that they had not received actual notice of the pending issuance of the tax deed. However, the treasurer met the diligent inquiry and newspaper publication requirements of section 39-11-128(a) & (b).

      . In the context of discussing the requirements for a transfer between the parties to the transaction, commentators observe:
      Between the parties to a transfer the assignment or negotiation of the note itself is all that must be done. It is unnecessary to have any separate document purporting to transfer or assign the mortgage on the real estate, for it will follow the obligation automatically. ~
      1 Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law, 429 (4th ed.2001).

      . The General Assembly repealed and re-enacted the substantive provisions of Article 9, effective July 1, 2001. § 4-9-701, 2 C.R.S. (2001). The Act's Savings Clause provides in part: "'This act does not affect an action, case or proceeding commenced before July 1, 2001." § 4-9-702(c), 2 C.R.S. (2001). Thus, we apply the provisions of Article 9 prior to the re-enactment because this case commenced before July 1, 2001.

      . The parties do not dispute the fact that Nor-west possessed a perfected security interest in the note pursuant to Article 9. Norwest was in possession of the note and gave value for it in the form of a loan to the McClellands.

      . The court of appeals misapplied Swofford v. Colorado National Bank, 628 P.2d 184 (Colo.App. 1981), in making its decision in the case. before us. In Swofford, the court found that the Bank was entitled to notice when its loan went into default. Swofford, 628 P.2d at 184. Swofford does not address the effect of a written assignment, such as the one that the treasurer relied upon in this case.

      . Under section 39-11-1136, the tax deed executed by the treasurer vests in the purchaser of the tax lien all the right, title, interest, and estate of the former owner of the land conveyed. Thus, the new owner takes the property subject to deeds of trust of record, such as the one the McClellands assigned to Norwest in this case. In Colorado, foreclosure of deeds of trust typically proceeds through the public trustee. See § 38-38-101-506; Telluride Resort & Spa, LP., 40 P.3d at 1264-65.