author: Judge JONES.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Plaintiff-Appellant and Cross-Appellee, v. Nicholas STREZA, d/b/a Western Summit Log Homes, Defendant-Appellee and Cross Appellant.
    No. 99CA0294.
    Colorado Court of Appeals, Div. II.
    July 20, 2000.

      Senter Goldfarb & Rice, LL.C., John D. Hayes, James S. Simko, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee.
    James R. Alvillar & Associates, James R. Alviliar, Leslie A. Goldstein, Grand Junction, Colorado, for Defendant-Appellee and Cross-Appellant.
   Opinion by

Judge JONES.

Plaintiff, Trinity Universal Insurance Company, appeals the judgment entered on a jury verdict against it and in favor of defendant, Nicholas Streza. We affirm in part, reverse in part, and remand the cause with directions.

This is a subrogation case arising out of a fire that destroyed a residence insured by Trinity. Trinity claims that it was defendant's negligence that caused the fire.

Defendant was hired to construct a residence for his sister-in-law and brother-in-law (the owners). While the residence was under construction, the owners were living nearby in a trailer,. As part of a plan to provide water to the trailer, defendant placed a propane-fueled heater in the crawl space of the residence to keep water pipes from freezing.

When the first tank of propane ran out, defendant attached a full twenty-pound propane cylinder to the heater and dropped it a short distance into the crawl space. Later, defendant plugged an extension cord into an electrical socket, which resulted in an explosion and a fire that completely destroyed the residence.

The parties do not dispute that the twenty-pound propane cylinder was the probable source of the fuel that caused the explosion.

Trinity filed a complaint against defendant alleging: (1) negligence, (2) negligence per se, and (8) res ipsa loquitur. The trial court resolved certain issues by way of summary judgment. Thereafter, a jury rendered a verdict in favor of defendant on all claims and this appeal followed.

I.

Trinity contends that, because defendant's use of fuel products violated a statute pre-seribing standards for such use, the trial court erred by entering judgment in favor of defendant and against it on its motion for partial summary judgment. We perceive no error.

A reviewing court must determine whether the moving party has made a clear showing that no issue of material fact exists and that it is entitled to judgment as a matter of law. A court must consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in determining whether to grant a motion for summary judgment. C.R.C.P. 56(c).

Appellate review of a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995). In making this determination, we must resolve all doubts as to the existence of a triable factual issue against the moving party and give the party against whom summary judgment is sought the benefit of all favorable inferences which may be drawn from the facts. Spencer Investments, Inc. v. Bohn, 923 P.2d 140 (Colo.App.1995). A material fact is one that will affect the outcome of the case. Moffat County State Bank v. Told, 800 P.2d 1320 (Colo.1990).

A.

Trinity first argues that it was error for the court to conclude that the provisions of §§ 8-20-405 and 8-20-411, C.R.S.1999 and National Fire Protection Association (NFPA) Standard No. 58 (1995 ed.) apply to commercial liquid petroleum gas operations and not to private individuals. We perceive no error.

To establish a claim for negligence per se, plaintiff must demonstrate: (1) that one of the purposes of the statute or ordinance was to protect against the types of injuries or losses that plaintiff sustained; (2) that the injuries suffered were of the kind the statute was enacted to prevent; (8) that the statute or ordinance proscribes or prescribes specific conduct; and (4) that the defendant violated the statute at issue.

Principles of statutory construction dictate that we first look at the plain meaning of the statutory language. Canape v. Petersen, 897 P.2d 762 (Colo.1995). In construing a statute, we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Further, a statute should not be construed in a manner that would defeat its legislative intent. City of Westminster v. Dogan Construction Co., 930 P.2d 585 (Colo.1997).

Section 8-20-405, C.R.S.1999, requires that those handling liquefied petroleum gases (LP-gases) conform to "the minimum standards ... prescribed by the applicable see-tions of the current edition of the national fire code published by the national fire protection association...." Plaintiff argues that defendant's conduct fell below the minimum prescribed standards of the NFPA code requiring that "qualified personnel" engage in handling liquid propane and the cylinders in which it is stored.

Although not a formal interpretation of the meaning of the NFPA standards, Lemoff, Theodore C., The Liquefied Petroleum Gases Handbook (4 th ed.1995)(handbook), sets out the opinion of recognized experts in the field of LP-Gases concerning the standards. Section 1-5 of the handbook, entitled "Qualification of Personnel," opines that "all persons employed in the handling of LP-Gases shall be trained in proper handling and operating procedures, which the employer shall document." The handbook, at page 28, also states:

[IJncidental use of LP-Gas in the performance of job requirements is beyond the seope of [NFPA 58] 1-5 and documentation of training is not needed. It does, however, apply to all employees engaged in liquid transfer and bulk storage of LP-Gas.

Thus, the recognized experts in the field of the safe handling of liquid petroleum concede that those who engage in the incidental use of such fuel products in, otherwise, non-related occupations, are beyond the seope of NFPA Standard No. 58, and are not considered "qualified persons" within the scope of the standard.

A note to NFPA Standard No. 58, dealing with the handling of liquefied petroleum gases, provides:

[Several types of LP-Gas systems are not covered by the National Fuel Gas Code as noted in 1.1.1.(b) therein. These include, but are not restricted to, most portable applications: many farm installations: vaporization, mixing and gas manufacturing: temporary systems, e.g., in construction: and systems on vehicles. For those systems within its scope, the National Fuel Gas Code is applicable to those portions of a system downstream of an outlet of the first stage of pressure regulation. (emphasis added)

We note that the General Assembly has entitled Article 20 of Title 8 of the Colorado Revised Statutes "Fuel Products." Subsequent parts of the Article deal with certain specific fuel products. "Fuel Products" is defined as "all gasoline ... and other volatile and inflammable liquids produced, compounded, and offered for sale or used for the purpose of generating heat ... or for any similar usage." Section 8-20-201(2), C.R.S. 1999.

A court may consider the title of legislation under examination in resolving issues concerning the General Assembly's intent as to that legislation. People v. Zapotocky, 869 P.2d 1234 (Colo.1994); City of Ouray v. Olin, 761 P.2d 784 (Colo.1988); see also People ex rel. Dunbar v. Gilpin Investment Co., 177 Colo. 132, 498 P.2d 859 (1972)(purpose of constitutional provision that subject of bill shall be clearly expressed in its title is to prevent surprise and deception among members of the General Assembly).

Generally, a "product" is something distributed commercially for use or consumption. See Restatement (Second) of Torts § 402A(1); Smith v. Home Light and Power Company, 695 P.2d 788 (Colo.App.1984)(electricity is "product," for purposes of products liability law; however, its distribution is a "service"). The Fuel Products statute, moreover, encompasses:

[TJhe design, construction, location, installation, and operation of liquefied petroleum gas systems and equipment, and the transportation and handling of liquefied petroleum gas, and the odorization of liquefied petroleum gas.

Section 8-20-405, C.R.8.1999.

The trial court found and concluded that: "Defendant was in the business of constructing a home for [Trinity's] insured.... The scope of [the Fuel Products] statute was addressed to commercial liquid petroleum operations, not individuals utilizing it in furtherance of a commercial enterprise or for their personal use and enjoyment." It went on to conclude that to extend the reach of the statute to the facts of this case would unduly expand the duty of care under the statute. We agree with the court.

The title of the statute and the plain language of § 8-20-405, make it clear that suppliers of propane products are covered by the statute. The statute does not, however, proscribe incidental use of propane such as under the cireumstances here. An alleged violation of the statute, therefore, does not establish a breach of any duty owed by defendant here. See Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 918 (Colo.1997). Thus, the trial court did not err in concluding that the fuel products statute applies to commercial suppliers of propane and not to defendant's use under the circumstances here.

B.

Plaintiff next contends that a disputed issue of material fact exists as to whether defendant's use of propane was for commercial or private purposes and that, therefore, the trial court erred in concluding, as a matter of law, that defendant was entitled to summary judgment. Again, we disagree.

Here, the defendant and the owners signed a written contract that reflected their oral agreement relative to construction of the house. The agreement contained a definitive list of specifications that made no mention of propane products.

Also, although the cost of the construction of the house included propane heaters, the list of specifications in the agreement did not include installation of propane piping systems or bulk storage of fuel products.

The record reflects that defendant's use of the propane was incidental to the construction of the residence and was not for the purpose of installing or operating LP-gas systems. The record, moreover, does not disclose evidence that defendant was employed in the operation of LP-gases. Indeed, the evidence established that the propane cylinder which was the source of the explosion was of the size that would "fit on a barbecue."

Under these undisputed cireumstances, we conclude that defendant's use of the fuel products was incidental and was not for commercial purposes. Thus, the trial court did not err in concluding that there was no genuine issue of material fact.

IL.

Trinity also contends that the trial court erred in refusing to tender an instruction to the jury stating that handling or using propane gas is an inherently dangerous activity. We perceive no error.

The duty owed by a defendant is an issue of law which we review de novo. Imperial Distribution Services, Inc. v. Forrest, 741 P.2d 1251 (Colo.1987).

Concerning negligence generally, the greater the risk, the greater the amount of care required to avoid injury to others. Thus, greater care may be required of one who dispenses a product in the stream of commerce when the product itself, by virtue of its inherent character, poses a high risk of injury to others. If an alleged tortfeasor is engaged in the business of supplying propane gas, the jury must be instructed that the highest degree of care is required for the distribution of propane. Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984).

Analogously, our supreme court has found the following compelling reasons to hold electric utilities to the highest degree of care: (1) electrical energy possesses inherently dangerous properties; (2) electric utilities possess expertise in dealing with electrical phenomena and in operating facilities for delivery of electricity; and (8) the general public is not able to recognize and guard against the dangerous potential of certain situations.

We have concluded above that defendant was not employed in the commercial operation or handling of LP-gases, and did not engage in selling or distributing LP-gas products. We also note that the record does not reflect that he had phe professional expertise of one who does commercially handle and operate such fuel products. Thus, the trial court did not err in refusing to instruct the jury on the elements of inherently dangerous activities. f

TIL

Trinity next contends that the trial court erred by prohibiting it from examining defendant's experts regarding alleged bias and prejudice in favor of defendant's insurer. We perceive no error.

The governing rule, CRE 411, provides:

Evidence that a person was or was not insured against Hability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

The standard for admission of evidence relating to bias or credibility is whether the evidence is sufficiently probative of the witness' bias and not unfairly prejudicial to the defendant. Bias is a state of mind and only those demands which can influence the mind at the moment of testifying are relevant to a demonstration of bias. Bonser v. Shainholtz, 983 P.2d 162 (Colo.App.1999), rev'd on other grounds, Bonser v. Shainholtz, 3 P.3d 422 (Colo.2000).

Here, one of defendant's experts was a part owner of a business that retained defendant's insurer, State Farm, as a client. He testified, however, that he has worked on "probably nearly as many [cases] against State Farm as I do for it...." The expert also testified that: "I may work one day in the morning for State Farm and that afternoon do a case against them. So my business is based on my findings, not who my client is. Everyone in the business knows that my findings are my findings whether they like them or not."

Evidence presented at one of the hearings held by the trial court pursuant to CRE 104 established that one of the experts who testified at trial was retained by both Trinity and State Farm "on an equal basis."

Under this state of the record, we conclude that the trial court did not abuse its discretion by refusing to permit Trinity to examine defendant's expert regarding possible biases that would have placed the subject of insurance before the jury.

IV.

Trinity's final contention is that the trial court erred by awarding expert witness fees without holding an evidentiary hearing for the purposes of determining the reasonableness of the amount awarded. We agree.

As the prevailing party, defendant is entitled to his costs pursuant to C.R.C.P. 54(d); and § 18-16-122, C.R.S.1999, sets forth factors that the court should consider in awarding costs. See Harvey v. Farmers Insurance Exchange, 988 P.2d 34 (Colo.App.1998)(list of allowable costs under § 18-16-122 is not exhaustive but illustrative).

The decisions whether to award expert witness fees and the amount to be awarded are within the sound discretion of the trial court, and its ruling will not be reversed on appeal absent clear abuse of discretion. An award of costs for expert witness fees must be reasonable. American Water Development, Inc. v. City of Alamosa, 874 P.2d 352 (Colo.1994).

A party who requests a hearing on the reasonableness of expert witness fees, as here, is entitled to a hearing. Sections 18-16-105 and 18-17-2032, C.R.S.1999; see Dunlap v. Long, 902 P.2d 446 (Colo.App.1995)(when reasonableness of expert fees is challenged, and hearing requested, challenging party entitled to evidentiary hearing on issue).

After a thorough review of the record, we agree with the trial court's conclusion that defendant's experts were critical to his case. Therefore, we remand to the trial court with directions to conduct an evidentiary hearing as to whether the award of costs for defendant's expert witness fees in the amount of $23,758.26 was reasonable.

Because the jury returned a verdict finding no liability against defendant on Trinity's claim for negligence, we find it unnecessary to address defendant's contention on cross-appeal that the trial court erred by tendering an instruction to the jury on the elements of res ipsa loquitur.

Accordingly, the judgment is affirmed in all respects except as to the award of costs as to expert witness fees. That portion of the judgment is reversed and the cause is remanded for further proceedings on that matter as set out in this opinion.

Judge NEY and Judge TAUBMAN concur.


source: Caselaw Access Project

author: Judge MARQUEZ.

license: Public Domain

text:
    Suzette JEWETT, Plaintiff-Appellant, v. George L. WOODWORTH, Defendant, and concerning Farmers Insurance Exchange, Appellee.
    No. 99CA0816.
    Colorado Court of Appeals, Div. IV.
    July 20, 2000.
    Melat, Pressman, Ezell & Higbie, LLP, (Glenn S. Pressman, Colorado Springs, Colorado, for Plaintiff-Appellant.
    No Appearance for Defendant.

      Joel N. Varnell & Associates, John T. Scherling, Greenwood Village, Colorado, for Appellee.
   Opinion by

Judge MARQUEZ.

Plaintiff, Suzette Jewett, appeals from the trial court's denial of her C.R.C.P. 102 petition for a writ of attachment. on an insurance policy issued by Farmers Insurance Exchange which sought to establish quasi in rem jurisdiction in her personal injury action against defendant, George L. Woodworth. We reverse and remand with directions.

Plaintiff, a Colorado resident, was injured in an accident in Colorado when her car was struck by a vehicle driven by defendant, also a Colorado resident. Defendant was a permissive user of the car, which was insured under a policy issued by Farmers.

Because plaintiff was not able to locate defendant for service after filing the complaint, she filed a petition under C.R.C.P. 102 seeking to attach the insurance policy in order to establish quast in rem jurisdiction over defendant. Farmers entered a special appearance and filed a traverse to the petition.

Following a hearing, the trial court, relying on the holding in Baker v. Young, 798 P.2d 889 (Colo.1990), determined that the right to defend and indemnify constituted nonexempt property subject to attachment under C.R.C.P. 102. However, the court also determined that because the duty to defend does not have value absent personal service on the named defendant and because the duty to indemnify does not arise until there is a judgment, the property subject to attachment had no value. Accordingly, the court refused to exercise quasi in rem jurisdiction, concluding it would be a "futile exercise" to attach property which had no value at the time of attachment. The court certified its decision as final under C.R.C.P. 54(b).

Plaintiff contends that the trial court erred in not issuing the writ of attachment even though it found that the requirements of C.R.C.P. 102 had been satisfied and that the policy constituted nonexempt attachable property under the supreme court's decision in Baker v. Young, supra. More specifically, plaintiff contends that the court erred in holding that the exercise of quasi in rem jurisdiction would be futile because the property had no value at the time of attachment. We agree.

In Baker v. Young, supra, the supreme court considered a certified question from the United States Court of Appeals for the Tenth Circuit regarding whether an insurer's obligation to indemnify and defend a nonresident insured was a nonexempt property interest subject to attachment under C.R.C.P. 102 for the purpose of quasi in rem jurisdiction. After reviewing the case law of this state and other jurisdictions, the court concluded that such obligations constituted nonexempt property that was subject to attachment under C.R.C.P. 102. In making this determination, the court acknowledged that some states have held that an insurer's obligation to indemnify an insured is so contingent and uncertain that it is not subject to prejudgment attachment or garnishment. However, it rejected the reasoning of these cases.

Instead, the court chose to follow its decision in Price v. Sommermeyer, 195 Colo. 285, 577 P.2d 752 (1978), where it had held that a decedent's potential right of indemnity under a liability insurance policy constituted personal property for purposes of the Colorado Probate Code. The court noted that it would be "indulging in nothing less than strained and artificial refinement were we to now hold that this same contractual obligation does not qualify as property of the insured for the purpose of a court's assertion of quasi in rem jurisdiction." Baker v. Young, supra, 798 P.2d at 894. Thus, it determined that neither the intangible character nor the contingent nature of the right under the policy should logically prevent it from being the subject of ownership.

Farmers argues that the decision in Baker v. Young, supra, is distinguishable because, contrary to this action, that case involved a nonresident defendant who was also a named insured under the policy. Farmers asserts that, under C.R.C.P. 102, the policy is not subject to attachment because that rule only permits the attachment of a defendant's property. According to Farmers, because neither it nor its insured was a named defendant, the court properly denied plaintiff's petition. We are not persuaded.

Farmers does not dispute that it would be obligated to defend defendant if plaintiff acquires personal jurisdiction over him and would be obligated to indemnify him if plaintiff subsequently obtains a judgment in her favor. Additionally, the record reveals that Farmers had offered to extend liability coverage for defendant's actions under the policy issued to its insured.

We also note that the policy at issue provides that Farmers will defend and indemnify a permissive driver in the same manner as a named insured. See also Wiglesworth v. Farmers Insurance Exchange, 917 P.2d 288 (Colo.1996) (court held that all that is required to confer coverage on a driver of a vehicle is initial permission from the primary insured to use the vehicle).

In Baker v. Young, supra, the court held that the insurer's obligation to indemnify and defend an insured is contractual in nature and provides the insured with the right to a defense in the event a claim is made against the insured and the right to indemnification, up to the limits of the policy, in the event an adverse judgment is entered against the insured.

Here, because Farmers is obligated to defend and indemnify defendant as a permissive user of the vehicle, we conclude defendant has the right to receive performance of that obligation. Although this right is intangible and contingent upon future events, it has economic value to defendant, and pursuant to the holding in Baker v. Young, supra, it is a cognizable property interest under Colorado law that is subject to attachment under C.R.C.P. 102.

Therefore, we conclude that the trial court erred in finding that the policy had no value to defendant and in refusing to attach the insurance policy under C.R.C.P. 102. We express no opinion whether plaintiff may enforce against the policy any judgment entered in the absence of proper service of process upon defendant.

The judgment is reversed and the cause is remanded to the trial court with directions to grant plaintiff's petition seeking to attach the insurance policy under C.R.C.P. 102.

Judge ROTHENBERG and Judge DAILEY concur. '


author: MARQUEZ.

text:
    Laurence L. WHITE, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Denver School District # 1, and Colorado Compensation Insurance Authority, d/b/a Pinnacol Assurance, Respondents.
    No. 99CA1964.
    Colorado Court of Appeals, Div. IV.
    July 20, 2000.

      Robert W. Turner, LLC, Robert W. Turner, Denver, Colorado, for Petitioner.
    No Appearance for Respondent the Industrial Claim Appeals Office. C
    Curt Kriksciun, Denver, Colorado, for Respondents Denver School District #1 and Colorado Compensation Insurance Authority.
   Opinion by Judge

MARQUEZ.

In this workers' compensation proceeding, Laurence L. White (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the denial of his claim for benefits on the basis that he did not incur a compensable injury. The sole issue in this appeal is whether claimant's participation in weightlifting was a "recreational" activity within the meaning of § 8-40-201(8), C.R.S.1999. We affirm.

Claimant, a high school substitute teacher, injured himself while he was weightlifting in the high school weight room during a free period. The injury rendered him a paraplegic.

Claimant initiated this proceeding seeking a determination that his injury arose out of and in the course of his employment and, therefore, was compensable. Following an evidentiary hearing, the Administrative Law Judge (ALJ) ruled that claimant had been engaged in a voluntary recreational activity and denied him benefits.

The Panel upheld that determination on review.

I.

Claimant first contends that there is no evidence to support the ALJ's determination that claimant was involved in a "recreational" activity and that, therefore, the ALJ erred as a matter of law in failing to conclude that claimant's injury occurred within the course and scope of his employment. He also contends that the ALJ's findings of fact were not sufficient to support the determination of claimant's involvement in a recreational activity. We disagree.

To be compensable under the Workers' Compensation Act, an injury incurred by an employee must arise out of and in the course of the employee's employment. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo.1996).

Pursuant to § 8-40-201(8), C.R.S.1999, the term "employment" does not include "an employee's participation in a voluntary reere-ational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program."

Here, claimant concedes that his participation in the weightlifting activities was voluntary. Therefore, the question is whether these activities were recreational. Under the circumstances here, we conclude that they were.

The term "recreational" is not defined by the statute. In cases involving recreational activities that occurred before the above statute's effective date of July 1, 1991, see Colo. Sess. Laws 1991, ch. 219 at 1298, the principal concern was whether the claimant was acting within the scope of his or her employment at the time of the injury. See Price v. Industrial Claim Appeals Office, supra (exercising on a chin-up bar at home and riding a bicycle during off-duty hours); Karlin v. Conard, 876 P.2d 64 (Colo.App.1998)(claimant thrown from a golf cart driven by a fellow employee during a recreational golf tournament sponsored by the employer); Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo.App.1991)(ski instructor injured while skiing during a period before he was scheduled to give lessons).

In resolving whether the activity was com-pensable, the courts considered a number of factors. However, whether the activity was recreational does not appear to have been in dispute, and no definition of when an activity is recreational has emerged.

Nevertheless, when the activity involves an exercise program, the supreme court has held that a court should look to the following factors to determine whether an injury is compensable: (1) whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (8) whether the employer initiated the employee's exercise program; (4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program. Factors (1) and (2) carry greater weight because the time and place of injury are particularly strong indicators of whether an injury arose out of and in the course of the employee's employment. - Price v. Industrial Claim Appeals Office, supra.

The current statute requires that the claimant's motive for participation in the recreational activity also be determined and that compensation be denied if participation in the recreational activity was voluntary, even if the employer promoted or sponsored the activity. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App.1998).

Here, the Panel determined that the term "recreational activity" has a commonly accepted meaning easily discerned by reference to a standard dictionary. See People v. Business Located at 2896 West 64th Ave., 937 P.2d 878 (Colo.App.1996)(in the absence of a specific definition, a word will be given its commonly accepted dictionary definition).

According to the definition relied upon by the Panel, the word "recreate" means to impart fresh life to; refresh mentally or physically. This definition closely mirrors other dictionary definitions, see Webster's Third New International Dictionary 1899 (1986), and connotes a common usage associated with the term that is easily understood by the normal reader. A "recreational activity," as the Panel states, is one which has a refreshing effect on either the mind or body.

Applying that definition, weightlifting can be a recreational activity depending on the cireumstances. Further, while the activities in Price v. Industrial Claim Appeals Office, supra, occurred before July 1991, we conclude that consideration of the Price factors is nevertheless appropriate in determining whether the weightlifting activities in the present case were recreational. See Dover Elevator v. Industrial Claim Appeals Office, supra.

Here, on the day he was injured, claimant was scheduled to substitute for the art teacher. Claimant testified that the high school did not mandate that he go to the weight room during his planning period and that he did that on his own. He also testified that he arrived at the weight room fifteen minutes before the class began. He was not teaching or assisting in the weight room at the time of the accident. Other evidence indicated that the weight room was available to teachers for their personal workouts when they had free periods. Although the ALJ found that the school district benefited to some degree by having its teachers remain fit, it was undisputed that the district did not mandate workouts or impose fitness requirements.

According to claimant, the record establishes that the activity in this instance was not recreational in nature. He relies upon the testimony of several co-workers who he claims testified that weightlifting relates to physical education and fitness rather than recreation. However, none of his witnesses rejected the notion that weightlifting could be a recreational activity. Even if we assume that weightlifting relates to physical fitness, we discern nothing in the record that would have compelled the ALJ to conclude that claimant's personal weightlifting activities during his break were not essentially recreational in nature.

While the accident did occur during the workday and on the employer's premises, it was nevertheless reasonable for the ALJ to conclude, based upon the other relevant Price factors, that the accident occurred as a result of "recreational activity" and that, therefore, under § 840-2018), it did not arise out of claimant's employment. Because claimant concedes that his participation in the weightlifting activities was voluntary, consideration of the third factor in Price is not pertinent here.

We also are not persuaded by claimant's argument that the ALJ's findings are inadequate because they contain no express statement that the weightlifting was recreational. Viewing the order in its entirety, we conclude that such a determination, while perhaps not explicit, is apparent from the plain import of the ALJ's findings.

We further reject claimant's assertion that the Panel improperly resorted to judicial notice to determine whether weightlifting is a recreational activity. Nothing within the Panel's order indicates that it took judicial notice of any disputed fact. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App.1995)(judicial notice is to be used cautiously and only in cases in which the matters to be so noticed are of such common knowledge that they cannot reasonably be disputed).

IL.

Claimant next contends that § 8-40-201(8) is unconstitutionally vague because the term "recreational activity" has no definition within the statute itself or the Workers' Compensation Act, $ 840-101, et seq., C.R.S.1999, as a whole. Again, we disagree.

Under the United States and Colorado Constitutions, a statute violates due process protections when it forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to its application. Watso v. Department of Social Services, 841 P.2d 299 (Colo.1992). Statutes must contain language that provides fair notice of what conduct is prohibited and provides enforcement authorities with sufficiently definite standards to ensure uniform, non-discriminatory enforcement. Loonan v. Woodley, 882 P.2d 1380 (Colo.1994).

No vagueness problem exists if a party strains to inject doubt as to the meaning of words where no doubt would be perceived by the normal reader. Board of Education v. Wilder, 960 P.2d 695 (Colo.1998).

Statutory terms need not be defined with mathematical precision. Rather, the statutory language must be sufficiently specific to give fair warning of prohibited conduct, yet it must also be sufficiently general to permit application of the prescribed standards of conduct to varied circumstances and changing times. People v. Gomez, 843 P.2d 1321 (Colo.1998).

Further, words and phrases used in statutes are to be considered in their generally accepted meaning, and the court has a duty to construe the statute so that it is not void for vagueness when a reasonable and practical construction can be given to its language. Colorado State Board of Medical Examiners v. Hoffner, 832 P.2d 1062 (Colo.App.1992).

Claimant asserts that $ 8-40-201(8) confers unbridled discretion upon the ALJ to grant or withhold benefits concerning a com-pensable on-the-job injury without criteria and without safeguards. He maintains that because the statute results in an uncontrolled and arbitrary exercise of discretionary power, a reasonable and practicable construction cannot be given to its language.

We conclude, however, that because the term is capable of a reasonable and practical construction based upon its plain meaning, the lack of a definition of "recreational" does not create ambiguity as to the type of activity intended to be excluded from employment under that provision. Thus, we reject claimant's contention that § 8-40-201(8) is unconstitutionally vague.

The order of the Panel is affirmed.

Judge ROTHENBERG and Judge DAILEY concur.


author: Judge TAUBMAN.

text:
    In re the MARRIAGE OF Paul C. ROBBINS, Appellee, and Maria D. Robbins, and concerning Garfield County Child Support Enforcement Unit, Intervenor-Appellant..
    No. 99CA1236.
    Colorado Court of Appeals, Div. II.
    July 20, 2000.

      Boyd & Bazil, LLP, James B. Boyd, Rhonda J. Bazil, Aspen, Colorado, for Appellee.
    Fahrenholtz, Kleinschmidt, Stephens & Shamis, LLC, Jonathan K. Shamis, Avon, Colorado, for Maria D. Robbins.
    Caloia & Houpt, P.C., Sherry A. Caloia, Barbara P. Kozelka, Glenwood Springs, Colorado, for Intervenor-Appellant.
   Opinion by

Judge TAUBMAN.

In this dissolution of marriage proceeding, intervenor, the Garfield County Child Support Enforcement Unit (CSEU), appeals from the judgment in which the court found that Paul C. Robbins (father) was not obligated to pay interest on child support arrear-ages that he owed to Maria Del Carmen Robbins (mother). We affirm.

In 1985, mother obtained a judgment against father for $4,225 in child support arrearages. In 1986, mother applied for child support assistance to help her collect this judgment. However, the record is unclear as to whether CSEU provided mother assistance at that time.

In 1991, mother applied for Aid to Families with Dependent Children (AFDC) and, consequently, assigned to CSEU her rights to child support amounts paid by father. The assignment expired after mother's AFDC benefits terminated and father fully reimbursed CSEU for the amount of AFDC that had been provided to mother. Though it is unclear when mother's benefits began and when they terminated, the record shows that she received $2,246 in AFDC assistance. According to the record, these benefits were fully reimbursed as of September 1992.

Nevertheless, based on mother's 1991 application for AFDC benefits, CSEU assistance was to continue indefinitely unless mother formally terminated the relationship. Nothing in the record shows when or if mother terminated this relationship. However, between 1992 and 1996, CSEU requested on behalf of mother that father pay child support.

In July 1996, CSEU requested for the first time that father pay interest on his child support arrearages. The trial court concluded that, in its collection efforts on behalf of mother, CSEU either acted as an agent of mother or acted with apparent authority. It further concluded that CSEU and mother had waived any claim for such interest because, prior to July 1996, CSEU had made several requests for payment and representations as to the amount father owed, and none of these requests or representations included an amount for interest. The court determined that, based on their actions, CSEU and mother were estopped from claiming interest because father had reasonably relied to his detriment upon CSEU's representations as to the amounts owed in arrearages. This appeal by CSEU followed.

I.

CSEU contends the trial court erred in concluding that it was the agent for mother or acted with apparent authority. We agree with CSEU that there was no express agency and that it was not acting with apparent authority between 1991 and September 1992. However, we agree with the trial court that CSEU was acting with apparent authority during the other periods at issue.

Father argues that because mother did not appeal and because CSEU was her agent, CSEU cannot represent her interests on appeal, and therefore, its appeal is moot.

A case is moot when a judgment would have no practical effect on the existing controversy. United Air Lines, Inc. v. City & County of Denver, 973 P.2d 647 (Colo.App.1998). Here, our analysis of the agency issues leads us to conclude that, in some respects but not all, the appeal is moot.

We are not aware of any state or federal case law that addresses whether an agency relationship arises out of a child support enforcement unit's actions on behalf of a recipient of AFDC-or its successor program, Temporary Assistance for Needy Families.

"An agency ... results from the manifestation of consent by one person to another that the other shall act on his behaif and subject to his control, and consent by the other so to act." City & County of Denver v. Fey Concert Co., 960 P.2d 657, 660 (Colo.1998).

Apparent authority, also referred to as agency by estoppel, is not actual or express authority, but nevertheless is created by operation of law. Moore v. Switzer, 78 Colo. 63, 239 P. 874 (1925). Such authority "is [established by evidence of] written or spoken words or other conduct of the principal which, reasonably interpreted, causes a person to believe that the principal consents to have the act done on his behalf by a person purporting to act for him." Lucero v. Goldberger, 804 P.2d 206, 209 (Colo.App.1990). Apparent authority is created to protect third parties who, in good faith, rely upon their belief that an agency relationship exists between the apparent principal and agent. Sigel-Campion Live Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82 (1922).

A trial court's conclusion as to whether apparent authority exists is a factual determination, and therefore, its holding will not be disturbed on review unless clearly erroneous and not supported by the record. City & County of Denver v. Fey Concert Co., supra; Bohrer v. DeHart, 969 P.2d 801 (Colo.App.1998.)

CSEU argues the trial court erred in concluding that it was mother's agent or that it acted with apparent authority because: (1) based on § 26-183-105(2), C.R.S.1999, it represents the People of Colorado, not mother; (2) § 26-13-105(2) specifically states that no attorney-client relationship exists between CSEU and applicants, and mother, in her 1986 application, expressly acknowledged that CSEU did not represent her; (3) mother cannot control the actions of CSEU, and therefore, no express agency relationship exists; and (4) the conduct of CSEU and mother's acceptance of CSEU's services did not make CSEU an apparent agent of mother.

As set forth above, we agree with CSEU that no express ageney relationship existed. Indeed, mother expressly acknowledged that CSEU did not represent her, and based on the record, we conclude that mother could not control the actions of CSEU.

In addition, for the period between 1991 and September 1992, CSEU was acting on its own behalf as assignee to collect child support arrearages from father in order to reimburse the department of social services for the amounts of AFDC paid to mother. See In re Marriage of Cespedes, 895 P.2d 1172 (Colo.App.1995) (AFDC recipient, by operation of law, assigns right to receive child support to child support enforcement unit). Thus, no express agency or apparent authority existed for that period.

However, as stated earlier, in September 1992, the assignment from mother to CSEU terminated because mother's AFDC assistance had been fully reimbursed. At that time CSEU began collecting the child support arrearages for mother's benefit, even though it was representing the People of Colorado. See In re Marriage of Cespedes, supra.

In its order, the trial court made the following findings. CSEU began collecting child support on mother's behalf in 1991. During that time, CSEU calculated amounts due, communicated with both father and mother regarding monthly payments, accepted and credited payments made by father, refused to credit amounts disputed by mother, and engaged in collection efforts including wage assignments and Internal Revenue Service intercepts.

The record supports the trial court's conclusion that, after September 1992, CSEU acted with apparent authority from mother when it collected child support arrearages from father, and it is therefore estopped from claiming that it did not act as mother's agent. '

The above discussion relates to father's mootness argument because, after CSEU was fully reimbursed for amounts paid to mother as AFDC assistance, the money it collected from father was solely for mother's benefit. The trial court has already concluded that mother is not entitled to interest on the child support arrearages paid by father. This judgment is final and has been appealed by mother. Therefore, even if CSEU obtained a favorable judgment and we were to order that mother is entitled to interest, that judgment would have no practical effect in light of the trial court's previous unappealed judgment denying mother's request.

Accordingly, because mother did not appeal the trial court's determination, CSEU's appeal as to interest on amounts collected after September 1992 is moot. However, because from 1991 until September 1992, CSEU was acting on its own behalf, CSEU's appeal is not moot with respect to that period.

IL

CSEU asserts the trial court erred in concluding that it waived the statutory right to interest or was estopped from claiming such interest. We disagree.

As noted above, we address this issue only with respect to the period from 1991 to September 1992 when CSEU acted as an assign-ee.

The assignment entered between CSEU and AFDC recipients applies to both current and accrued support and persists with respect to any unpaid support even after the termination of AFDC benefits. However, onee the amount of AFDC benefits has been reimbursed, the assignment of support rights terminates. In re Marriage of Cespedes, supra.

Waiver is the intentional relinquishment of a known right. Waiver may be express, as when a party states its intent to abandon an existing right, or implied, as when a party engages in conduct which manifests an intent to relinquish the right or acts inconsistently with its assertion. To constitute an implied waiver, the conduct must be free from ambiguity and clearly manifest the intent not to assert the benefit. Burlington Northern R.R. Co. v. Stone Container Corp., 934 P.2d 902 (Colo.App.1997).

Whether a waiver occurred is generally regarded as a question of fact, and thus, a trial court's resolution of such issue will not be reversed on appeal unless clearly erroneous. See Haller v. Hawkeye-Security Insurance Co., 986 P.2d 601 (Colo.App.1997); Bohrer v. DeHart, supra.

Here, the trial court found that, prior to July 1996, CSEU had not required that father pay interest on child support arrearag-es, had not advised him that it intended to collect interest, and had not included interest in its calculation of child support amounts due. The court also found that CSEU had made numerous representations concerning the outstanding amount of the child support arrearage, and none of those representations included interest. Based on those findings, the trial court concluded that CSEU had waived its statutory right to interest on child support arrearages and that such waiver was binding on mother.

The record supports these findings. Accordingly, despite the existence of contradictory evidence and inferences, the trial court's determination is binding on appeal. See Edis v. Edis, 742 P.2d 954 (Colo.App.1987).

Judgment affirmed.

Judge PLANK and Judge NIETO concur.


author: WATT, Justice.

text:
    2000 OK 52
    Michael FARRIMOND, Plaintiff-Appellee, v. STATE of Oklahoma, ex rel., Carroll FISHER, Insurance Commissioner, Defendant-Appellant, v. Carroll Fisher, Receiver of Mid-Continent Life Insurance Company, Intervenor-Appellee; National Organization of Life and Health Insurance Guaranty Associations, and National Association of Insurance Commissioners, Amicus Curiae.
    No. 93,564.
    Supreme Court of Oklahoma.
    June 27, 2000.

      Neal Leader, Senior Assistant Attorney General, Oklahoma City, for Defendant-Appellant, State of Oklahoma ex rel. Carol Fisher, Insurance Commissioner.
    John W. Norman, Emmanuel E. Edem, Alexander B. McNaughton, Thomas A. Wallace, John B. Norman, Charles F. Moser, Norman, Edem, McNaughton & Wallace, PLLC, Oklahoma City, and Stratton Taylor, Sean Burrage, Darrell W. Downs, Taylor, Burrage, Foster, Singal, Mallett & Downs, Claremore, for Plaintiff-Appellee.
    Cheryl P. Hunter, James M. Reed, Pamela H. Goldberg, Hall, Estill, Hardwick, Gable, Golden & Nelson, Oklahoma City, for Inter-venor-Appellee, Carroll Fisher, Receiver of Mid-Continent Life Insurance Company.
    Noreen J. Parrett, Kendall W. Harrison, Christopher J. Wilcox, La Follette Godfrey & Kahn, Madison, WI, for Amicus Curiae, National Organization of Life and Health Insurance guaranty Associations.
    Michael E. Surguine, National Association of Insurance Commissioners and Charles C. Green, McKinney & Stringer, Oklahoma City, for Amicus Curiae, National Association of Insurance Commissioners.
   OPINION

WATT, Justice.

FACTS AND PROCEDURAL BACKGROUND

T1 On July 19 1999, Plaintiff, Michael Farrimond, brought a declaratory judgment action against the Insurance Commissioner, Carroll Fisher. Plaintiff sought an order declaring that the records of Mid-Continent Life Insurance Company, which had come into the Insurance Commissioner's hands as the result of a court order that had named him as Mid-Continent's receiver, were sub-jeet to public inspection under the Open Records Act, 51 0.9.1991 §§ 24A.1, et seq. The District Court of Oklahoma County, Hon. Noma Gurich, District Judge ordered a show cause hearing.

12 Plaintiff sued the Insurance Commissioner only as Insurance Commissioner and not as receiver for Mid-Continent. The Insurance Commissioner then filed a motion to intervene in his capacity as receiver.

T3 The records sought by plaintiff had came into the possession of the Insurance Commissioner in his capacity as receiver of the estate of Mid-Continent as the result of an order entered in the receivership proceeding by the District Court of Oklahoma County on June 6, 1997. The receivership court issued an order dated November 26, 1997, in which it ruled,

If any legal action is commenced against the receiver, ... whether personally or in an official capacity, alleging property damage, property loss, personal injury or other civil liability caused by or resulting from any alleged act, error or omission of the receiver, ..., the receiver, ..., shall be indemnified from the assets of Mid-Continent Life Insurance Company to the extent provided for in Okla.Stat.Tit. 36 0.8. § 1897.

T4 Title 86 O.S. Supp.1992 § 1897 provides that liability imposed on the Insurance Commissioner, his retained counsel, or his employees as a result as their service as receiver, or on the receiver's behalf, under the Oklahoma Uniform Insurers Liquidation Act, 86 0.8.1991 §§ 1901, et seq. shall be entitled to indemnification from any civil liability arising from their service.

T5 After the show cause hearing the trial court entered judgment for plaintiff for declaratory relief and injunctive relief on the ground that the Open Records Act applied to Mid-Continent's records in the hands of the Insurance Commissioner as receiver and ordered the Insurance Commissioner to make available to plaintiff Mid-Continent's records. The trial court also granted the Insurance Commissioner's motion to intervene as Mid-Continent's receiver and stayed enforcement of its judgment pending appeal. The Insurance Commissioner appealed.

T6 The Insurance Commissioner filed a motion requesting that this Court retain his appeal on the ground that the issue before the Court was one of first impression and concerned matters that would effect public policy and have widespread impact. In his response, plaintiff agreed. We granted the Insurance Commissioner's motion to retain on November 3, 2000.

ISSUE

17 Are the records of Mid-Continent Life Insurance Company that are in the custody of the Insurance Commissioner as the result of Mid-Continent's receivership ° subject to public disclosure under the Open Records Act, 51 0.8. Supp.1997 §§ 244.1, et seq.?

18 We answer the question no.

DISCUSSION

19 This appeal turns on the interpretation of the definition of the word "record" as defined in 51 0.8. Supp.1998 § 24A. of the Open Records Act.: The purpose of the Act "is to ensure and facilitate the public's right of access to and review of government records." - [Emphasis added.] 51 0.98.1991 § 24A.2. Under § 24A.8(1), the Act applies only to records. "... created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property." [Emphasis added.]

110 We must today decide whether the records of Mid-Continent, which came into the Insurance Commissioner's possession only as the result of a court order in a receivership action, are "government records" within the meaning of the Act, 51 ©.S8.1991 § 244.2. For the reasons set forth in the balance of this opinion, we hold that the records of Mid-Continent in the hands of the Insurance Commissioner as Mid-Continent's receiver are not "government records" within the meaning of the Open Records Act.

T11 Plaintiff contends that Mid-Continent's records should be held to be subject to the Open Records Act because of questions that he has raised about the propriety of the current Insurance Commissioner's handling of the Mid-Continent receivership since replacing his predecessor. Plaintiff also argues that there is no exception in the Open Records Act that would exelude the Mid-Continent records from disclosure under the Act's terms. We disagree.

The language of the Open Records Act limits the application of the Act to "government records" and the records of Mid-Continent do not fit the statutory definition of "record" contained in 51 O.S. Supp.1998 § 24A.3(1). The Mid-Continent records at issue here did not come "... into the custody, control or possession of the public officials ... in connection with the transaction of public business, the expenditure of public funds or the administering of public property," as required by § 24A.3(1).

{13 The Insurance Commissioner was appointed Mid-Continent's receiver under the terms of the Oklahoma Uniform Insurer's Liquidation Act, 36 0.8.1991 §§ 1901, et seq. Section 1914 of that Act provides:

A. Whenever under this article a receiver is to be appointed in delinquency proceedings for a domestic or alien insurer, the court shall appoint the Insurance Commissioner as such receiver. The court shall order the Insurance Commissioner forthwith to take possession of the assets of the insurer and to administer the same under the orders of the court.
B. As domiciliary receiver, the Insurance Commissioner shall be vested by operation of law with the title to all of the property, contracts, and rights of action and all of the books and records of the insurer, wherever located, as of the date of entry of the order directing him to rehabilitate or liquidate a domestic insurer or to liquidate the United States branch of an alien insurer domiciled in this state, and he shall have the right to recover the same and reduce the same to possession; except that ancillary receivers in reciprocal states shall have, as to assets located in their respective states, the rights and powers which are herein prescribed for ancillary receivers appointed in this state as to assets located in this state.

[Emphasis added.]

114 Title 36 0.8.1991 § 1914 provides that the Insurance Commissioner may become an insurer's receiver and be vested with title to the insurer's property only by court order. Oklahoma law makes clear that in a receivership the court takes possession of the assets of the entity placed in receivership. In Norman v. Trison Development Corp., 1992 OK 67 ¶ 7, 832 P.2d 6, we held,

When property or a business is placed in receivership, the court takes possession of the assets through its court-appointed receiver. A receiver is an officer of the court who holds property and funds coming into his hands by the same right and title as the person for whose title he is the receiver..

[Emphasis added.]

115 The teaching of Norman is that receivership property is in possession of the court, the receiver is the representative of the court, and the right of the receiver to receivership property is derived from the entity which has been placed in receivership. Under these circumstances the argument that Mid-Continent's business records became "public records" when the district court appointed the Insurance Commissioner as Mid-Continent's receiver is unconvincing.

T16 The Kentucky Court of Appeals reached the same conclusion we have reached here in Kentucky Cent. Life Insurance Company, By and Through Stephens v. Park Broadcasting of Kentucky, Inc., 918 S.W.2d 330 (Ky.App.1996). There, the court held that the fact that possession by the Insurance Commissioner of records of the insurer who was in receivership did not convert the insurer's records into public records, subject to disclosure under the Open Records Act. The court said,

... Clearly the rehabilitator is performing a traditionally non-governmental funetion, the primary purpose of which is to protect insureds and creditors. Kentucky Central remained financially responsible for all aspects of the rehabilitation process....
Clearly, the rehabilitator was not functioning as a unit of government in his endeavors to rehabilitate Kentucky Central. Instead, he was the functional equivalent of a receiver of a private company in liquidation and reorganization charged with administering the company's affairs....

117 Kentucky Central, 918 SW.2d at 334. Finally, the court held,

We conclude the "records" at issue are the private records of Kentucky Central. We have no doubt that the legislature did not intend to convert companies such as Kentucky Central into public agencies through the Rehabilitation Act. Subjecting Kentucky Central's records to the broad disclosure contemplated under the Open Records Act would completely frustrate the purpose and intent of the law. The records that were made by, or generated for, Stephens' use in his capacity as rehabilitator are within the exclusive jurisdiction of the court and are not "public records" subject to the Open Records Act....

118 Kentucky Central, 918 SW .2d at 335-36. We approve of and adopt the reasoning of the court in Kentucky Central.

119 Plaintiff seeks to distinguish Kentucky Central on the ground that the Kentucky Court of Appeals relied on the fact that the Kentucky legislature differentiated between the terms "rehabilitator" and "commissioner" in its version of the Uniform Insurers Liquidation Act but the Oklahoma version of the Act makes no such distinction. We find this difference in the language of the two versions of the act to be immaterial to our analysis.

T20 Although no clear distinction is made in the Oklahoma version of the Act between the Insurance Commissioner's public duties and his duties as receiver, 86 0.8. 1991 § 1902(A) nevertheless vests "exclusive original jurisdiction of delinquency proceedings" in the district court. Title 36 § 1914(A) directs that when a receiver is to be appointed, "the court shall appoint the Insurance Commissioner" and the Insurance Commissioner shall take possession of the insurer's assets and "administer the same under the orders of the court." In delinquency proceedings under the Act, then, the Insurance Commissioner administers not public property but the property of the failed insurer and he does so under the direction of the district court. Further, the Act provides that any damages accruing from the conduct of the Insurance Commissioner as receiver or any of the receiver's employees must be paid "from the assets of the insurer." 86 O.S. Supp.1991 § 1397(B).

121 The liberal discovery rules created by the Discovery Code, 12 §§ 8824, et seq., are available to any present party to the receivership action or to any other person or entity who can establish standing to intervene in it. Section 3226(C) of the Discovery Code vests the court with discretion to enter appropriate protective orders to protect the confidentiality of discovered information in appropriate cireumstances. By contrast, there is no mechanism in the Open Records Act as flexible as that which exists in the Discovery Code for the protection of sensitive information.

122 Our conclusion that the Open Ree-ords Act is not available to plaintiff here is not oppressive because much, if not all, of the information sought by plaintiff here might be discoverable in the receivership action. More importantly, sensitive information could be protected from public disclosure. In this connection, we note that the receivership court entered a protective order on July 31, 1998, which prohibited the disclosure of certain life insurance policy information without further order of the court. Thus, a ruling from this Court that the Open Records Act applies here would necessarily require the exposure to public serutiny, without further review, records covered by the receivership court's protective order holding that certain receivership records should not be subject to public serutiny until further order of that court. This we decline to do.

123 JUDGMENT OF THE DISTRICT COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS TO GRANT DEFENDANT-APPELLANTS MOTION TO DISMISS

124 HARGRAVE, V.C.J., and HODGES, OPALA, KAUGER, BOUDREAU, and WINCHESTER, JJ., concur.

125 SUMMERS, C.J., concurs in result.

LAVENDER, J., not participating.

      . At the time the June 6, 1997 order was entered, the Insurance Commissioner was John P. Crawford. In 1998, Carroll Fisher defeated John P. Crawford for reelection and assumed the duties of Insurance Commissioner in January 1999.

      . Title 36 O.S. Supp.1992 § 1397 provides in material part as follows:
      A. For the purposes of this section the persons entitled to protection under this section are:
      1. The receiver, assistant receiver, and retained counsel responsible for the conduct of a delinquency proceeding under Article 19 of the Insurance Code, including present and former receivers; and
      2. Their employees meaning all present and former assistant receivers and attorneys for the receiver appointed by the Insurance Commissioner and all persons whom the Commissioner, assistant receiver or retained counsel have employed to assist in a delinquency proceeding under Article 19 of the Insurance Code. Attorneys, accountants, auditors and other professional persons or firms, who are retained by the receiver as independent contractors and their employees shall not be considered employees of the receiver for purposes of this section.
      B. If any legal action is commenced against the receiver or any employee, whether against him personally or in his official capacity, alleging property damage, property loss, personal injury or other civil liability caused by or resulting from any alleged act, error or omission of the receiver or any employee arising out of or by reason of their duties or employment, the receiver and any employee shall be indemnified from the assets of the insurer for all expenses, attorneys' fees, judgments, settlements, decrees or amounts due and owing or paid in satisfaction of or incurred in the defense of such legal action ... [Emphasis added.]

      . Title 51 O.S. Supp.1998 § 24A.3 provides in material part as follows:
      Definitions. As used in this act:
      1. "Record" means all documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, and record, sound recording, film recording, video record or other material regardless of physical form or characteristic, created by, received by, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property ....

      added.]

      . - Although the issue here is not tort liability of a receiver, the law of judicial immunity is instructive. Immunity is based upon a person's status, as, for example, a judicial officer, legislator, prosecutor, or witness in a judicial proceeding. North Side State Bank v. Board of County Com'rs. of Tulsa County, 1994 OK 34 €15, 894 P.2d 1046. Here the receiver acts as a functionary of the court rather than as a state official.. The receiver is performing a judicial act. Capitol Terrace, Inc. v. Shannon & Luchs, Inc., 564 A.2d 49, 51, (D.C.App.1989)


author: HODGES, J.

text:
    2000 OK 54
    MESSER-BOWERS COMPANY, INC., Mark M. Mayo, Trustee of the Mark M. Mayo Revocable Trust dated November 30, 1994, Wilma J. Mayo, also known as Billie J. Mayo, Trustee of the Wilma J. Mayo Revocable Trust dated December 21, 1994, and Floyd Sears, Appellants, v. STATE of Oklahoma ex rel. OKLAHOMA WATER RESOURCES BOARD, and Kronseder Farms, Inc., Appellees
    No. 90,783.
    Supreme Court of Oklahoma.
    July 5, 2000.

      Clark McKeever, Enid, Oklahoma, for Appellants.
    Dean A. Couch, Oklahoma City, Oklahoma, for Appellee, Water Resources Board.
    James R. Barnett, R. Thomas Lay, Kerr, Irvine, Rhodes & Ables, Oklahoma City, Oklahoma, for Appellee, Kronseder Farms.
    W.A. Drew Edmondson, Attorney General, Cannon Miles Tolbert, Assistant Attorney General, Oklahoma City, Oklahoma, Amicus Curiae.
   HODGES, J.

T1 This appeal raises several issues surrounding the decision of the Oklahoma Water Resources Board (Water Board) to issue a groundwater use permit for land on which Kronseder Farms, Inc. (Kronseder), plans to construct a concentrated swine feeding operation. For the reasons below, this matter is remanded to the Water Board for an eviden-tiary hearing which conforms to today's decision.

T2 In February,1996, Kronseder applied to the Water Board for a permit to withdraw 4,520 acre feet of groundwater per year from 45 proposed wells located on 4,520 acres in Woodward County, Oklahoma. The application was later amended to 2,920 acre feet per year from 27 wells, subject to future amendment for the full 4,520 acre feet per year. The application was opposed by surrounding landowners, Messer-Bowers Co. Inc., Mark Mayo, Billie Mayo, and Floyd Sears (Landowners) who own ranch land adjacent to the Kronseder property. They asserted that Kronseder's use of the requested groundwater would diminish and contaminate their supply of groundwater from wells and springs.

13 The Kronseder property consists of a large tract of 4,280 acres and a narrow strip of 240 acres which extends south from the large tract to within a mile of the north bank of the North Canadian River. Over half of the water produced will come from this 240 acre strip and will be carried by pipe to the swine facility. No swine operations will be located on that strip of land.

T4 When completed, the facility would house 142,000 pigs. About one third of the groundwater would be used for livestock consumption. Most of the remaining two thirds will be used to wash pig manure from the facilities and into retention lagoons. The effluent and fresh groundwater will then be applied to 1,760 acres of native grass.

15 On July 16, 1996, staff of the Water Board conducted a hearing. The Water Board approved the application at its regular meeting on October 8, 1996. Appellants sought judicial review of the Water Board's order in the District Court of Woodward County. The District Court remanded the matter to the Water Board on an issue unrelated to today's review. The Water Board again approved the application on September 9, 1997. The District Court upheld the order on October 30, 1997. The Court of Civil Appeals affirmed that decision and this Court granted certiorari review. The decision of the Court of Civil Appeals is now vacated and the cause is remanded to the Water Board with directions.

Groundwater or Stream Water

[1] 16 A preliminary issue in this dispute is whether the permit proceeding should have been conducted under the stream water use statutes, Okla. Stat. tit. 82, §§ 105.1-105.18 (1991 & Supp.1999). Title 82 defines "Groundwater" as "fresh water under the surface of the earth regardless of the geologic structure in which it is standing or moving outside the cut bank of any definite stream". Okla. Stat. tit. 82, § 1020.1(1) (Supp.1995). A "definite stream" is a "watercourse in a definite, natural channel, with defined beds and banks, originating from a definite source or sources of supply." Okla. Stat. tit. 82, § 105.1 (Supp.1995). The significance of the classification is that "[the owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream." - Okla. Stat. tit. 60, § 60 (Supp. 1988). Thus, groundwater and diffuse surface water are owned by the surface landowner subject to beneficial use. See Okla. Stat. tit. 82, § 1020.7 (Supp.1998) ("Any person intending to use groundwater shall make application to the Board for an appropriate permit...."). Stream water on the other hand, is "public water and is subject to appropriation for the benefit and welfare of the people of the state as provided by law." The landowner "may use [such] water for domestic uses." Okla. Stat. tit. 82, § 105.1A (Supp. 19983).

17 Landowners argue that when the Kron-seder application was filed the Water Board should have determined whether there were natural springs in the area and whether granting the permit would affect water running under the surface or the natural springs themselves. They base their argument on the construction of title 60, section 60 found in Oklahoma Water Resources Board v. City of Lawton, 580 P.2d 510 (Okla.1978) There, a surface landowner wanted to encase a prolific spring and divert the water for recreation, housing development, and commercial development. The water which flowed from the spring ran into a nearby creek and ultimately into Lake Lawtonksa, the major source of water for the City of Lawton. Id. at 511. The issue was whether the spring water should be classified as stream water or groundwater for purposes of an appropriation permit from the Water Board. On appeal, this Court held that "when natural spring water forms a definite stream, the water in the stream and the spring itself, from its inception, is to be classified as stream water and appropriated as such." Id. at 518. The opinion noted that this was true despite the fact that the source of all springs is groundwater. Id. at 511. The Water Board in this matter determined that "the water applicant [Kronseder] intends to use is clearly groundwater." Landowners' expert opined that numerous wells on Kronseder's land would draw down the water table to the extent that the natural springs on neighboring land would go dry. Kronseder's expert testified that the watertable would not be lowered by Kronseder's use of water to the extent the springs would go dry. The Water Board's order stated that "the premise that the Applicant's use will cause a spring to go dry has not been established as a matter of fact." The Water Board also rejected Landowner's legal argument that by taking so much water that the springs go dry, Kron-seder is in effect taking stream water and therefore must proceed under the stream water statutes. The Water Board specifically found the water to be "fresh water under the surface of the earth regardless of the geologic structure in which it is standing or moving outside the cut bank of any definite stream." Okla. Stat. tit. 86, § 1020.1 (Supp. 1995). Therefore, it proceeded under the groundwater statutes.

T8 The Water Board properly determined that the groundwater statutes apply. This Court's holding in City of Lawlon was that when natural spring water forms a definite stream, the spring from its inception is to be classified as stream water and appropriated as such. The "point of inception" referred to the point at which the spring, and thus the stream began, not to the ultimate source of all spring water which is a groundwater formation. This understanding is consistent with the definition provided by Landowners' expert that a spring is the point at which the water table surfaces. Thus, when the groundwater surfaces as a spring and forms a stream, it is at that point that the stream water statutes apply.

1 9 Here, Kronseder was not making application to withdraw water from a spring or a stream. It sought a permit to drill several new wells and utilize existing wells to drain water directly from the groundwater basin. As the Water Board determined, the water to be withdrawn by the Kronseder wells is groundwater subject to regulation by the Oklahoma Groundwater Law. The remaining issues in this appeal involve the permit proceedings under the groundwater statutes.

The Permit Requirements

10 The policy underlying the groundwater statutes is "to utilize the groundwater resources of the state and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh groundwater basins or sub-basins to determine a restriction on the production based upon the acres overlying the groundwater basin or subbasin." Okla. Stat. tit. 82, § 1020.2 (1991). The Water Board determines the maximum annual yield of groundwater to be produced from each groundwater basin based on a hydrologic survey. Id. at § 1020.5 (Supp.1998). The yield for the groundwater basin involved in this matter has been set at one acre foot of water per acre of surface land overlying the basin. Any person intending to use groundwater must make application to the Water Board before taking it from a completed well or drilling a new well. Id. at § 1020.7. The Water Board must determine four issues in deciding whether to grant a groundwater permit:

(a) Whether the applicant owns or leases or has some other sufficient interest in the surface of the land dedicated to the application;
(b) Whether such land overlies a fresh groundwater basin or subbasin;
(c) Whether the use to which the applicant intends to put the water is a beneficial use; and
(d) That waste by depletion or waste by pollution will not occur.

Okla. Admin. Code § 785:80-8-5; Okla. Stat. tit. 82, § 1020.9(A) (Supp.1993). The first three of these issues were not contested. The third and fourth issues measure the reasonable use of fresh groundwater. If the Water Board finds for the applicant on all four issues, it must issue a permit. Okla. Stat. tit. 82, § 1020.9(A).

Reasonable Use

$11 Landowners challenge Kronsed-ers' plan to withdraw most of its water from six wells on the narrow strip of land it purchased which extends south from the large tract on which its swine facilities will be located. The water will be piped from the producing property to the swine facilities on Kronseder's adjoining property. They argue that Kronseder's plan to withdraw over half of its groundwater from less than 3% of its property constitutes an unreasonable use of its groundwater.

{12 This issue was addressed by the Water Board. It reduced the number of wells that can operate on the strip of land at any one time to three. Further, this Court held in Oklahoma Water Resources Board v. Texas County Irrigation & Water Resources Association, Inc., 711 P.2d 88, 48 (Okla.1984), that the movement of fresh groundwater off the producing premises is not prohibited by the statutory limitation of reasonable use.

Waste by Depletion

113 Landowners also assert that the Water Board erred in failing to find that Kronseder's operation would cause waste by depletion. The Water Board held that Landowners had failed to prove as a matter of fact that Kronseder's water use would deplete Landowner's groundwater. There was conflicting expert testimony from both sides on this issue. The Water Board found Kronseder's evidence to be more credible.

Waste by Pollution

T14 At the hearing on Kronseder's application for a groundwater permit Landowners attempted to argue that Kronseder's irrigation of its crops with effluent (manure mixed with fresh groundwater) would result in groundwater pollution. The Water Board limited its inquiry into waste by pollution to the construction and operation of Kronseder's wells and water distribution system. It held that jurisdiction to determine the potential for pollution as a result of the use and operation of lagoons and the land application system were outside its jurisdiction and within the purview of the State Department of Agriculture, specifically in this matter under the Oklahoma Feed Yards Act (now the Oklahoma Concentrated Animal Feeding Operations Act, Okla. Stat. tit. 2, §§ 9-200-9-214 (Supps.1997 & 1999)). The Water Board found that the construction and operation of Kronseder's wells and water distribution system would not likely result in waste by pollution. Thus, the issue is whether Water Board's waste by pollution inquiry was properly limited to pollution that results from the extraction and transportation of groundwater and not from the groundwater's ultimate use. The Oklahoma Attorney General was permitted to file an amicus brief in opposition to the Water Board's position on the issue of waste by pollution.

{15 Central to the issue is this Court's decision in Oklahoma Water Resources Board v. Texas County Irrigation and Water Resources Association, Inc., 711 P.2d 88 (Okla.1984) In Texas County, Mobil Oil Corporation sought to use fresh groundwater for tertiary recovering operations in an oil field. Although its tertiary process involved adding detergents and polymers to the groundwater, Mobil presented no evidence identifying the chemical additives or their effect on the groundwater. Id. at 45. This Court remanded the matter to the Water Board to receive evidence and make essential findings of fact to determine whether waste by pollution would occur. Id. at 47. On remand the Water Board was also directed to apply the following statutory definition of pollution:

Wherever used in this title the following terms shall have the respective meanings hereinafter set forth or indicated, unless the context otherwise requires:
1. "Pollution" means contamination or other alteration of the physical, chemical or biological properties of any natural waters of the state, or such discharge of any liquid, gaseous or solid substance into any waters of the state as will or is likely to create a nuisance or render such waters harmfal or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

Id. at 44 (quoting Okla. Stat. tit. 82, § 926.1 (1981), now codified at section 1084.2 of title 82)

[ 16 Kronseder and the Water Board, however, view the holding in Texas County as superseded by the enactment of the Oklahoma Environmental Quality Act, Okla. Stat. tit. 27A, § 1-1-201-1-4-107 (Supp.1999), in 1992 & 1998. That Act was intended to (1) address "environmental concerns of industry and the public ... in an expedient manner," (2) improve the tracking and resolution of citizen complaints, (8) "better utilize state financial resources for environmental regulatory services", and (4) "coordinate environmental activities of state environmental agencies." Id. at § 1-1-102 (Supp.1998). To further these purposes, the Act created the Secretary of Environment as a cabinet position and created the Oklahoma Department of Environmental Quality. It also set out "jurisdictional areas of environmental responsibility" for each state environmental agency. See id. at § 1-8-101 (Supp.1992 & Supp.1999). The Oklahoma Department of Agriculture was given responsibility for "point source discharges and nonpoint source runoff from agricultural crop production, agricultural services, livestock production, silviculture, feed yards, livestock markets and animal waste." Id. at § 1-3-101(D)(1)(a).

T 17 The Water Board interpreted this as a grant of exclusive jurisdiction covering the disposal of animal waste effluent on agricultural crops. It further concluded that the Act superseded the Texas County requirement that a groundwater permit applicant must present evidence concerning the effect of what it adds to fresh groundwater and whether the additives will filter back and contaminate the groundwater formation. See 711 P.2d at 45.

118 "The primary goal of statutory construction is to determine legislative intent. That intent is to be ascertained from the statute in light of its general purpose and object. It is presumed that the Legislature has expressed its intent in a statute and that it intended what is so expressed." TXO Prod'n Corp. v. Oklahoma Corp. Comm'n, 829 P.2d 964, 968-969 (Okla.1992) (footnotes omitted). Section 1-38-101 assigns jurisdictional areas of responsibility to the state's environmental agencies. Only the Corporation Commission is given "exclusive" environmental jurisdiction in the area of oil and gas. See id. at § 1-3-101(c). By its own terms "[the jurisdictional areas of environmental responsibility specified in this section shall be in addition to those otherwise provided by law and assigned to the specific state environmental agency." Nothing in the Act provides that the Department of Agriculture has exclusive jurisdiction which prevents the Water Board from granting a groundwater permit on a finding that the mixing of fresh groundwater with animal waste and its use of effluent for irrigation will not cause waste by pollution. The Act specifically made the Water Board's jurisdictional responsibility for pollution of groundwater in addition to that otherwise provided by law. This includes the directives contained in the Texas County opinion concerning waste by pollution. Further, the text of the Act evidences an intent that the Water Board and the Agriculture Department have concurrent environmental jurisdiction over livestock facilities which require water permits. The Court of Civil Appeals opinion which held that the Act su-perceded the Texas County opinion is vacated. On remand, the Water Resources Board is directed to receive evidence and make findings of fact to determine whether waste by pollution will occur through all uses of groundwater at Kronseders swine facilities, including the spread of effluent from its swine operation onto its land. Kronseder must present evidence concerning the effect of its effluent irrigation on the groundwater formation.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED IN PART; DECISION OF WATER RESOURCES BOARD REVERSED IN PART; CAUSE REMANDED TO WATER RESOURCES BOARD WITH DIRECTIONS.

119 HODGES, LAVENDER, KAUGER, WATT, WINCHESTER, JJ., concur.

120 HARGRAVE, V.C.J., OPALA, J., concur in part; dissent in part.

21 SUMMERS, C.J., BOUDREAU, J., disqualified.

      . One acre foot of water contains 325, 830 gallons of water.

      . Contrary to Kronseder's assertion that this definition was repealed, it was merely renumbered in 1993.

      . " 'Point source' means any discernible, confined and discrete conveyance or outlet including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure container, rolling stock or vessel on other floating craft from which pollutants are or may be discharged into waters of the state." The term "shall not include agricultural storm water runoff and return flows from irrigated agriculture." Okla. Stat. tit. 27A § 1-1-201(9) (Supp.1999). '' 'Nonpoint source' means the contamination of the environment with a pollutant for which the specific point of origin may not be well defined and includes but is not limited to agricultural storm water runoff and return flows from irrigated agriculture." Id. at § 1-1-201(6).