author: Judge VOGT.

text:
    Mike A. LEPRINO, Plaintiff-Appellant, v. NATIONWIDE PROPERTY AND CASUALTY INSURANCE COMPANY and Nationwide Mutual Insurance Company, Defendants-Appellees.
    No. 02CA1863.
    Colorado Court of Appeals, Div. IV.
    Nov. 6, 2003.

      Certiorari Denied May 10, 2004.

      Grimshaw & Harring, P.C., William J. Brady, Lisa K. Mayers, Denver, Colorado, for Plaintiff-Appellant.
    Senter Goldfarb & Rice, L.L.C., William L. Senter, Nicole S. Gellar, Denver, Colorado, for Defendants-Appellees.

       Chief Justice MULLARKEY would grant as to the following issue:
      Whether the underlying complaint read as a whole sufficiently alleged facts of an "occurrence” under the CGL insurance policy to trigger the insurers' duty to defend.

   Opinion by

Judge VOGT.

In this action arising out of the denial of insurance coverage, plaintiff, Mike A. Lepri-no, appeals the trial court’s summary judgment in favor of defendants, Nationwide Property and Casualty Insurance Company and Nationwide Mutual Insurance Company. We affirm.

Plaintiff, a real estate developer, was one of several parties sued in 1998 by a group of homeowners who alleged that they had suffered damage because of unstable soil conditions under their homes. Plaintiff sent notice of the homeowners’ claims to his insurers, including defendants, who had issued a series of commercial general liability and commercial umbrella liability insurance policies to him between 1986 and 1993.

Defendants declined to provide a defense or indemnity because the homeowners were not alleging property damage during the policy periods. Plaintiff’s other insurers, who had policies in effect after 1993, provided a defense in the homeowners’ action, and the homeowners’ claims were ultimately settled.

Plaintiff then filed this action, seeking a declaratory judgment and damages for breach of contract and bad faith. Defendants moved for summary judgment. The trial court granted the motion, finding that the facts were not disputed and that there was no coverage for plaintiff under defendants’ policies.

I.

Plaintiff contends that the allegations of the homeowners’ complaint triggered defendants’ duty to defend and that the trial court therefore erred in entering summary judgment on his claims. We disagree.

A.

We review a summary judgment de novo, using the same standards that govern the trial court’s determination. Thus, we uphold summary judgment only if the pleadings and supporting documents demonstrate that there is no genuine issue for trial as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Board, 901 P.2d 1251 (Colo.1995).

We likewise review de novo the trial court’s construction of an insurance contract, applying well settled principles of contract interpretation. Absent evidence in the policy of a contrary intent, we give words in an insurance policy their plain and ordinary meaning. We may not rewrite policy provisions that are clear and unambiguous, and we may neither add provisions to extend coverage beyond that contracted for nor delete them to limit coverage. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294 (Colo.2003); see also Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo.1999).

A liability insurer’s duty to defend its insured against pending claims is broader than its duty to indemnify, which refers to its obligation to satisfy a judgment entered against the insured. The duty to defend is determined by an examination of the allegations in the underlying complaint against the insured. If the alleged facts even potentially trigger coverage under the policy, the insurer is bound to provide a defense. The duty to indemnify arises only when the policy actually covers the harm, and this duty typically cannot be determined until the resolution of the underlying claims. Cyprus Amax Minerals Co. v. Lexington Ins. Co., supra; Compass Ins. Co. v. City of Littleton, supra.

A policy is triggered when a threshold event implicates its coverage. A policy that has not been triggered does not provide any coverage, while a policy that has been triggered may or may not provide coverage, depending on the circumstances of the case. Pub. Serv. Co. v. Wallis & Cos., 986 P.2d 924 (Colo.1999).

B.

[11] The liability insurance policies at issue here are “occurrence” policies. Occurrence policies protect an insured against claims made by third parties based on occurrences within the policy period that result in injury to the third parties’ property interests. Under such policies, coverage is triggered only if the third party suffered actual damage within the policy period. Browder v. U.S. Fid. & Guar. Co., 893 P.2d 132 (Colo.1995)(where third parties sustained no injury during insured’s policy period, there was no occurrence that would trigger coverage under that policy); see also Union Pac. R.R. v. Certain Underwriters at Lloyd’s, London, 37 P.3d 524 (Colo.App.2001).

Under an occurrence policy, “the time of the occurrence of an accident is not the time the wrongful act was committed but the time when the complaining party was actually damaged.” Browder v. U.S. Fid. & Guar. Co., supra, 893 P.2d at 134 n. 2. In Samuelson v. Chutich, 187 Colo. 155, 529 P.2d 631 (1974), the supreme court concluded that the accident triggering coverage under the policy occurred at the time of the propane gas explosion and not when the allegedly wrongful act — the negligent installation of a gas line — was committed. It added: “To stretch the scope of ‘accident’ backward in time to reach the date of the earliest beginning of any prior event which might be regarded as having a causal relation to the unlookedfor mishap would introduce ambiguity where none now exists.” Samuelson v. Chutich, supra, 187 Colo. at 160, 529 P.2d at 635 (quoting Home Mut. Fire Ins. Co. v. Hosfelt, 233 F.Supp. 368 (D.Conn.1962)); see also Pike v. American States Preferred Ins. Co., 55 P.3d 212 (Colo.App.2002).

The language used in defendants’ policies is consistent with the legal principles articulated in Browder. The insuring agreement in defendants’ commercial general liability policies provided that the insurer would “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” It further provided: “This insurance applies only to ‘bodily injury’ and ‘property damage’ which occurs during the policy period. The ‘bodily injury’ or ‘property damage’ must be caused by an ‘occurrence.’” (Emphasis added.) “Occurrence” was defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The umbrella policies did not obligate the insurer to defend, but provided that the insurer would pay “the ultimate net loss in excess of the underlying limit or the retained limit, whichever is greater,” because of property damage caused by an occurrence. Property damage was defined as “[p]hysical injury to or destruction of tangible property which occurs during the policy period, including all resulting loss of use of that property,” and “[l]oss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.” (Emphasis added.) “Occurrence” was defined in the umbrella policies, as pertinent here, as “an accident or a happening or event, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured.”

Thus, under both the plain language of defendants’ policies and the applicable law, coverage was available for the homeowners’ property damage only if that damage occurred during the 1986-1993 policy periods.

C.

The homeowners alleged in their complaint that, from 1991 through “at least 1993,” preparation and development of then-lots had been carried out “in an improper and destabilizing manner,”, in disregard of applicable soils reports and county requirements. However, the only allegation of property damage resulting from such -wrongful acts was the following:

In or about March, 1998, the culmination of a continuous and progressive geologic hazard process manifested itself in the form of slope failure, landslide and/or land-creep on Green Mountain, damaging and/or otherwise significantly impairing all of the Plaintiffs’ homes and underlying land. This process has resulted in actual property damage, a loss of the use and enjoyment of all or part of the Plaintiffs’ homes and land, and an interruption of and eviction from some or all of the Plaintiffs’ right of private occupancy, among other damages, losses and injuries.

The complaint did not allege that any of the homeowners suffered property damage before 1998.

Upon review of the homeowners’ complaint and the language of defendants’ policies, the trial court concluded that there was no coverage under any of the policies because the homeowners’ claims did not involve any actual property damage during the policy periods. In so concluding, it rejected plaintiffs argument that “the occurrence which was insured against was the gradual slippage of the unstable soil which must have existed during the time period of the insurance policies.”

Plaintiff again argues on appeal that the homeowners’ complaint adequately alleged property damage during the defendants’ policy periods. He asserts, first, that the relevant “occurrence” that triggered coverage was the “improper and destabilizing” pre-1993 cut-and-fill operations referenced in the complaint. We do not agree.

The allegations on which plaintiff relies referred to the negligence or other wrongful acts of the persons involved in preparing the lots. As such, they did not amount to allegations of property damage or of an “occurrence” that would trigger coverage. See Browder v. U.S. Fid. & Guar. Co., supra; Samuelson v. Chutich, supra.

We similarly do not agree with plaintiff that the reference in the underlying complaint to a “continuous and progressive geologic hazard process” can be construed to allege property damage within defendants’ policy periods.

Notably, the complaint itself did not characterize such “geologic hazard process” as property damage, but alleged that it “has resulted in actual property damage.” Nor did the complaint allege when the process began. As noted above, the Colorado Supreme Court has rejected similar efforts to “stretch the scope of ‘accident’ backward in time” to reach the date of the earliest event that might be regarded as having a causal connection with the occurrence. Samuelson v. Chutich, supra, 187 Colo, at 160, 529 P.2d at 635.

Plaintiffs reliance on environmental damage cases in support of his argument is misplaced. In such eases, the continuing migration of toxic pollutants on and underneath the land causes actual, tangible damage to the soil or water supply during an ongoing period. See Hoery v. United States, 64 P.3d 214 (Colo.2003). This ease does not present a situation where pollutants have been introduced onto or under the soil, resulting in property damage. We are aware of no authority that holds that the gradual slippage of unstable soil, without more, amounts to “property damage.” Further, the soil movement here is unlike the progressive corrosion that, in American Employer’s Ins. Co. v. Pinkard Construction Co., 806 P.2d 954 (Colo.App.1990), had already resulted in actual and widespread damage to a roof, during the relevant policy periods, before the roof finally collapsed.

Thus, even accepting plaintiff’s contention that damage to the land alone, apart from the structures on it, could in some circumstances constitute property damage within the meaning of defendants’ policies, the homeowners’ complaint did not allege such property damage within the policy periods.

Nor did plaintiff contend, in opposing summary judgment, that discovery conducted after the filing of the complaint had revealed property damage within the policy periods. Rather, plaintiff relied on letters written by attorneys in the underlying case at a time when efforts were being made to persuade defendants to contribute to a settlement with the homeowners.

Plaintiff cited a statement in a letter from the homeowners’ counsel, written to “assist you [plaintiffs counsel] in your communications with these other defendants and their carriers,” that he expected his experts would testify “that immediately following the conclusion of the improper and inadequate cut and fill operations, the fill mass immediately began to differentially settle,” water began to infiltrate, and cracks began to appear. However, even assuming the trial court could consider matters outside the complaint in deciding the issue before it, see Cyprus Amax Minerals Co. v. Lexington Ins. Co., supra, letters consisting of hearsay within hearsay and referencing only nonspecific anticipated testimony could not, under C.R.C.P. 56, raise a genuine issue of fact sufficient to withstand summary judgment. See Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866 (1961); Henderson v. Master Mean Janitorial, Inc., 70 P.3d 612 (Colo.App.2003); USA Leasing, Inc. v. Montelongo, 25 P.3d 1277 (Colo.App.2001).

In sum, because the facts alleged by the homeowners did not, even potentially, trigger coverage under defendants’ policies, defendants were not obligated to provide a defense or indemnification. See Cyprus Amax Minerals Co. v. Lexington Ins. Co., supra. Thus, they neither breached their contractual obligations to plaintiff nor acted in bad faith. See Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo.App.1998); Jarnagin v. Banker’s Life & Cas. Co., 824 P.2d 11 (Colo.App.1991). Summary judgment was therefore proper on all plaintiffs claims for relief.

II.

In light of our resolution of this issue, we do not address plaintiffs additional contentions on appeal.

The judgment is affirmed.

Judge KAPELKE and Judge WEBB concur.


source: Caselaw Access Project

author: Judge TAUBMAN.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nathaniel WILLIAMS, Defendant-Appellant.
    No. 01CA1559.
    Colorado Court of Appeals, Div. III.
    Nov. 6, 2003.
    Certiorari Denied April 26, 2004.

      Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Cynthia Camp, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Nathaniel Williams, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of second degree kidnapping, misdemeanor third degree sexual assault, attempted aggravated robbery, and menacing. He also appeals his sentence. We affirm.

In June 2000, around midnight, the victim returned home from work and parked on the street outside her apartment. As she was getting out of the car, defendant approached her and asked her for money or a ride downtown. When she refused, defendant opened the driver’s side door, grabbed the victim by her hair, and put a knife to her throat. Defendant threatened that if she did not do what he said, he would cut her into pieces. At his insistence, she moved over to the passenger’s seat and locked the passenger door. He then got into the car and closed the door.

The victim told defendant that she did not have any money, but that they could drive to an ATM machine and she could withdraw money. Defendant put the knife between his legs while he drove the victim’s car. En route to an ATM, defendant asked the victim whether she would perform oral sex for him, but she indicated that she was not interested. He told her to lift up her dress, but when she would not, he lifted up her dress and put his hand between her legs, touching her vaginal area over her underclothing.

When they came to a stoplight, the victim noticed a police car next to them. She rolled down the window and screamed for help, then opened the car door and got out, falling to the ground. Defendant exited the car, denied knowing the victim, and disputed her account of the events. In the car, the officer found the knife which was of the same type used at the restaurant where defendant worked as a chef.

I.

Defendant contends the trial court abused its discretion by not allowing him to cross-examine the victim regarding the circumstances surrounding her prior conviction. We disagree.

CRE 608(b) permits a trial court, in its discretion, to admit evidence of specific instances of conduct on cross-examination if it is probative of truthfulness or untruthfulness. We will not disturb the trial court’s ruling unless abuse of that discretion is shown. People v. Jones, 971 P.2d 243 (Colo.App.1998).

CRE 608(b) is substantially similar to its federal counterpart, and, therefore, we may look to federal authority for guidance in construing the state rule. See Bernal v. People, 44 P.3d 184 (Colo.2002). The advisory committee notes to the federal rule warn that “[e]ffective cross-examination demands that some allowance be made for going into matters of this kind, but the possibilities of abuse are substantial.” Consequently, courts need to employ safeguards, including disallowing cross-examination about conduct that is remote in time and applying the protections of Fed.R.Evid. 403 to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 608 advisory committee note.

Here, defendant sought to cross-examine the victim regarding the conflicting stories she gave to law enforcement officers investigating her for felony shoplifting in 1991. The trial court determined that because the shoplifting incident was ten years old, it was too remote and should not be admitted. Pursuant to CRE 403, the trial court also found that any probative value would be substantially outweighed by its prejudicial effect and thus the evidence should be excluded.

We agree with the trial court’s reasoning. Further, the victim was not charged with false reporting related to the shoplifting incident, and she was not untruthful about the actions of another. Because of the remoteness of the incident and its dissimilarity to the circumstances of this ease, admission of the evidence would have caused undue delay, waste of time, and confusion. Under these circumstances, we conclude that the trial court did not abuse its discretion, and its ruling will not be disturbed on appeal. See Itin v. Ungar, 17 P.3d 129, 137 (Colo.2000)(trial court did not abuse its discretion by prohibiting questions concerning thirty-year-old Securities and Exchange Commission sanction).

II.

Defendant next argues the trial court abused its discretion in allowing the People to question the victim on redirect examination regarding how she felt about being cross-examined by defense counsel. Defendant argues that the questions constituted argument by the People and were posed to denigrate defense counsel, thereby depriving defendant of his right to a fair trial. We perceive no reversible error.

Arguments made for the obvious purpose of denigrating defense counsel are improper and constitute professional misconduct. People v. Darbe, 62 P.3d 1006, 1013 (Colo.App.2002). When the defendant objects to the prosecution’s comments at trial, the trial court’s admission of those comments is evaluated under a harmless error standard. People v. Dunlap, 975 P.2d 723, 759 (Colo.1999). A conviction will not be reversed because of an erroneous ruling if the error is harmless, that is, it does not substantially influence the verdict or affect the fairness of the proceedings. People v. Jensen, 747 P.2d 1247, 1250 (Colo.1987).

During the People’s redirect examination of the victim, the following questions were asked:

Prosecutor: [Victim], has it been a pleasant experience for you today?
Defense Counsel: Objection, Your Honor. It’s irrelevant.
The Court: Overruled.
Prosecutor: Has it been a pleasant experience for you today?
Victim: Right now I’m very angry. May I speak about my anger?
Prosecutor: Yes.
Defense Counsel: Your Honor, that is non-responsive.
The Court: Ma'am, just answer the questions that are asked of you....
Prosecutor: Was it pleasant going through the direct examination and having to address these 13 people as to what happened to you on June 25 and 26 of the year 2000? Defense Counsel: Objection. Asked and answered.
The Court: Overruled.
Victim: No, it was not pleasant.
Prosecutor: Was it pleasant to be cross-examined by [defense counsel] a moment ago?
Victim: No.
Prosecutor: Was it pleasant back in August when [defense counsel] had you subpoenaed and called you to the stand to talk about this in August?
Victim: No.

The People do not assert that the trial court acted within its discretion in allowing these questions. To the contrary, they contend that these questions constitute harmless error. We agree.

The evidence presented at trial overwhelmingly corroborated the victim’s account of the events. The People demonstrated that defendant did not know the victim, yet he was driving her vehicle while in possession of a knife, and the passenger side door was locked. The knife was the same type as those used at the restaurant where defendant was employed. Taking the record as a whole, we conclude that the People asked relatively few questions regarding the victim’s comfort. The questions took up only a few minutes of the People’s extensive direct and redirect examination of the victim.

Accordingly, we conclude that the admission of this testimony was harmless error.

III.

Defendant also asserts that a former version of § 18-3-302(3)(a), the enhancement provision of the second degree kidnapping statute, violates the Equal Protection Clause of the state and federal constitutions because it provides the same sentence enhancement whether accompanied by misdemeanor or felony sexual assault. Thus, because defendant was convicted of second degree kidnapping and misdemeanor sexual assault, he contends that he was unfairly subjected to the same punishment as one who committed a second degree kidnapping accompanied by a felony sexual assault. We reject defendant’s argument.

Equal protection of the laws is guaranteed by the Fourteenth Amendment to the United States Constitution and by the due process clause of the Colorado Constitution, which provide that similarly situated people should receive similar treatment under the law. U.S. Const. amend. XIV; Colo. Const, art. II, § 25. It is the prerogative of the legislature to set the penalties for criminal offenses. People v. Bramlett, 194 Colo. 205, 210, 573 P.2d 94, 97 (1977). However, “[e]qual protection requires that statutory classifications of crimes be based on differences that are real in fact and are reasonably related to the purposes of the legislation.” People v. Weller, 679 P.2d 1077, 1082 (Colo.1984).

The version of § 18-3-302 in effect in June 2000 stated, in pertinent part:

(1) Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.
(3) Second degree kidnapping ... is a class 2 felony if the person kidnapped: (a) Is a victim of a sexual assault....

Colo. Sess. Laws 1987, ch. 116, § 18-3-302(1) at 615; Colo. Sess. Laws 1981, ch. 214, § 18-3-302(3), at 983; cf. § 18-3-302, C.R.S.2003 (effective April 29, 2003, second degree kidnapping is a class 2 felony if the person is the victim of “a sexual offense pursuant to part 4 of this article”).

Second degree kidnapping alone is a class four felony, punishable by a possible sentence of two to sixteen years, while second degree kidnapping accompanied by a sexual assault is a class two felony, punishable by a possible sentence of sixteen to forty-eight years. See § 18-1.3-401, C.R.S.2003. However, because the statute did not qualify the term “sexual assault,” it provided the same sentence enhancement for both misdemeanor and felony sexual assault.

In People v. Nguyen, 900 P.2d 37, 41 (Colo.1995), the Colorado Supreme Court held that the General Assembly may punish different crimes with the same penalty as long as it does not punish a more serious crime with a less severe penalty. However, equal protection is violated where a sentencing scheme punishes with greater severity those who cause less grievous harm. Smith v. People, 852 P.2d 420, 422 (Colo.1993).

Here, the applicable version of § 18-3-302 did not punish a more serious crime with less severity. Instead, the General Assembly chose to punish with the same severity in all cases where kidnapping was accompanied by sexual assault. It is the General Assembly’s prerogative to declare that kidnapping accompanied by any act constituting sexual assault should be punished more severely than kidnapping unaccompanied by sexual assault. See People v. Nguyen, supra; People v. Bramlett, supra. Section 18-3-302 reflects the legislature’s judgment that all acts constituting sexual assault, when performed during a kidnapping, are “equally heinous in the eyes of the law.” People v. Aragon, 653 P.2d 715, 719 (Colo.l982)(the same penalty for the same crime with alternative culpability requirements did not violate equal protection).

Therefore, the sentence enhancement in § 18-3-302 did not violate defendant’s right to equal protection.

Accordingly, the judgment and sentence are affirmed.

Judge NIETO and Judge CARPARELLI concur.


author: Judge WEBB.

text:
    Michael BRANCH, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
    No. 01CA2403.
    Colorado Court of Appeals, Div. IV.
    Dec. 18, 2003.

      Willett & Mestas, LLC, Jonathan S. Wil-lett, Denver, Colorado, for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge WEBB.

In this C.R.C.P. 106(a)(4) action, plaintiff, Michael Branch, appeals the trial court’s order denying his request for costs against defendant, the Colorado Department of Corrections (DOC). We reverse and remand for an award of costs.

Plaintiff brought this C.R.C.P. 106(a)(4) action challenging his conviction for a violation of the DOC Code of Penal Discipline. The trial court reversed the conviction and awarded plaintiff his costs.

Upon DOC’s motion for reconsideration, the trial court reversed the cost award, finding that the award was contrary to the prohibition of cost awards against the state in C.R.C.P. 54(d) and was not authorized under § 13-16-111, C.R.S.2003. However, the court noted a “certain unfairness in denying [plaintiff] and other successful inmate litigants reimbursement for their costs while, at the same time, allowing the state to recover its costs from the inmates’ accounts in cases where the inmate does not prevail.”

We conclude that notwithstanding C.R.C.P. 54(d), plaintiff was entitled to his costs under § 13-16-111, which provides in pertinent part that a prevailing plaintiff in a C.R.C.P. 106(a)(4) action “shall recover his costs of suit.”

Absent a prohibitory statute or rule, a trial court may in its discretion award costs to the prevailing party. Rossmiller v. Romero, 625 P.2d 1029 (Colo.1981). However, C.R.C.P. 54(d) limits this general rule by providing that “costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.” See also Chief Justice Directive 85-21 (Feb. 20, 1985)(courts shall not enter judgments for costs or assess costs as part of any judgment against the state, state agencies, or political subdivisions of the state); Bennett Bear Creek Farm Water & Sanitation Dist. v. City & County of Denver, 928 P.2d 1254 (Colo.1996)(applying Chief Justice Directive 85-21).

C.R.C.P. 54(d) has been interpreted by the supreme court as limited by two exceptions where costs may be awarded against the state: first, where the General Assembly expressly so provides; and, second, where the state is in the same position as a party litigant against whom costs are legislatively authorized to be awarded. Waters v. Dist. Court, 935 P.2d 981 (Colo.1997).

With respect to the first exception, divisions of this court have held that § 13 — 16— 104, C.R.S.2003 (“the plaintiff or demandant shall have judgment to recover against the defendant his costs to be taxed”), is only a general provision providing for cost awards, not an express authorization to award costs against the state, its officers, or its agencies. See Smith v. Furlong, 976 P.2d 889 (Colo.App.l999)(citing McFarland v. Gunter, 829 P.2d 510 (Colo.App.1992)).

With respect to the second exception, in Lee v. Colorado Department of Health, 718 P.2d 221, 228 (Colo.1986), the supreme court acknowledged that the Governmental Immunity Act (GIA) created tort liability for a public entity for injuries arising from the operation of a motor vehicle, § 24-10-106(l)(a), C.R.S.2003, and noted the general rule that a prevailing party may recover costs. The court declined to interpret C.R.C.P. 54(d) or the GIA “so narrowly as to prohibit an assessment of costs and interest on a judgment entered against a public entity merely because the legislature has not seen fit to expressly provide for such assessments.” However, the court held that the total amount of the judgment, inclusive of interest and costs, must not exceed the recovery limitations of § 24-10-114(1), C.R.S. 2003.

In Carney v. Civil Service Commission, 30 P.3d 861 (Colo.App.2001), the division upheld a cost award against a municipal corporation under § 13-16-111. However, the parties have cited no published case, and we have found none, deciding whether § 13-16-111 authorizes an award of costs against the state. The plain language of § 13-16-111 neither expressly includes nor expressly excludes such an award.

The interpretation of a statute is a question of law that we review de novo. United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000).

To give effect to the General Assembly’s intent, we first afford statutory language its plain and ordinary meaning. However, if a statute is ambiguous, we may consider prior law, legislative history, the consequences of a given construction, and the underlying purpose or policy of the statute. ’ See, e.g., People v. Luther, 58 P.3d 1013 (Colo.2002).

Here, no legislative history is available. However, the plain language indicates a purpose of favoring recovery of costs by prevailing plaintiffs. To interpret the statute as not permitting prevailing plaintiffs to recover their costs from the state would in part nullify this purpose. See Hale v. Erickson, 23 P.3d 1255 (Colo.App.2001)(courts should avoid interpretations that nullify a statute’s purpose).

Moreover, unlike § 13-16-104, which applies to all civil actions, § 13-16-111 applies specifically to C.R.C.P. 106(a)(4) actions. A C.R.C.P. 106(a)(4) action may be brought only against a governmental body or officer or lower judicial body exercising judicial or quasi-judicial functions, which necessarily includes the state.

Given the state’s significant role in C.R.C.P. 106(a)(4) litigation, we are not persuaded to adopt a narrow construction merely because § 13-16-111 lacks an express provision for assessing costs against the state. See Lee v. Colo. Dep’t of Health, supra. As in the GIA, nothing in § 13-16-111 “prohibits an assessment of costs against the state.” Lee v. Colo. Dep’t of Health, supra, 718 P.2d at 228; see also Div. of Employment & Training v. Turynski, 735 P.2d 469, 473 n. 5 (Colo.1987)(allowing recovery of costs against the division for preparing a transcript because prevailing parties generally recover such costs, and noting “the fact that the relevant statute does not expressly provide for an assessment of costs will not prevent collection of costs from a public entity in connection with a judgment entered against it”).

And we agree with the trial court’s observation that a narrow construction of the statute leads to an unfair result, because when the state is successful it can recover its costs. Rossmiller v. Romero, supra; see Charnes v. Boom, 766 P.2d 665 (Colo.1988)(court must presume that General Assembly intended a just and reasonable result).

Thus, we conclude that when read together with C.R.C.P. 106(a)(4), § 13-16-111 authorizes a cost award against the state, and therefore the statute satisfies the first exception to C.R.C.P. 54(d).

To the extent that Smith v. Furlong, supra, and McFarland v. Gunter, supra, can be read to suggest otherwise, we decline to follow them. Smith relied on McFarland, which in turn relied on Shumate v. State Personnel Board, 34 Colo.App. 393, 528 P.2d 404 (1974). However, Lee v. Colorado Department of Health, supra, questioned the rationale of Shumate. See Nguyen v. Reg’l Transp. Dist., 987 P.2d 933 (Colo.App.1999).

Further, the plain language of § 13-16-111 places all C.R.C.P. 106(a)(4) defendants on an equal footing in terms of vulnerability to cost awards. Thus, it operates similarly to § 24-10-107, C.R.S.2003, the provision of the GIA that “evinces an intent by the General Assembly to treat a public entity the same as a private litigant.” Nguyen, supra, 987 P.2d at 935. Therefore, we also conclude that because § 13-16-111 places the state in the same position as other defendants, it satisfies the second exception to C.R.C.P. 54(d).

In this regard, a statute should be construed to avoid any issue of its constitutional validity. Adams County Sch. Dist. No. 50 v. Heimer, 919 P.2d 786 (Colo.1996). As noted, § 13-16-111 has been interpreted to authorize a cost award against a municipal corporation. Carney v. Civil Serv. Comm’n, supra. Construing § 13-16-111 to exempt the state, its officers, and its agencies from cost awards that would be proper against all other public entity defendants in C.R.C.P. 106 actions could invite an equal protection challenge. We express no opinion on the outcome of such a challenge.

Accordingly, we conclude that § 13-16-111 allows a prevailing plaintiff in a C.R.C.P. 106(a)(4) action to recover costs against the state, its officers, and its agencies.

In light of our determination, we need not address the constitutional issues raised by plaintiff.

The order is reversed, and the case is remanded to the trial court with directions to award plaintiff the reasonable costs he incurred in successfully prosecuting this C.R.C.P. 106(a)(4) action against DOC.

Judge KAPELKE and Judge VOGT concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian GRESL, Defendant-Appellant.
    No. 00CA1170.
    Colorado Court of Appeals, Div. III.
    Dec. 31, 2003.
    Certiorari Denied May 17, 2004.

      Ken Salazar, Attorney General, Cynthia A. Greenfield, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elizabeth Griffen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Brian Gresl, appeals the trial court orders denying his motions for postcon-viction relief. We vacate the order granting reconsideration of the denial of his Crim. P. 35(b) motion, dismiss the appeal as to the orders denying enforcement of the order granting that reconsideration, and affirm the remainder of the orders.

In November 1995, pursuant to a consolidated plea agreement, defendant pleaded guilty in one case to sexual assault on a child by one in a position of trust (the sex assault case) and in another case to theft (the theft case). In exchange for defendant’s guilty pleas, the prosecution agreed to dismissal of the remaining charges in those cases, and three other cases.

On June 18, 1996, the trial court sentenced defendant to a twelve-year prison term for the sexual assault conviction and a concurrent three-year term for the theft conviction.

Defendant then filed a timely Crim. P. 35(b) motion on October 15,1996 in the sexual assault case. That motion was denied following a hearing on March 3, 1997. On April 23, 1997, 309 days after he was sentenced, defendant filed motions in both eases to reconsider the denial of his Crim. P. 35(b) motion. The trial court’s order of July 9, 1997, apparently granting the motions to reconsider, is at issue here.

It is unnecessary to set forth the rest of the complicated procedural background of this appeal, which involves several trial court orders ultimately denying defendant’s Crim. P. 35(b) and (c) motions.

I. Motions to Reconsider Denial of Crim. P. 35(b) Motion

Defendant first contends that the trial court erred by concluding that the July 9, 1997 order granting his motions to reconsider the denial of his Crim. P. 35(b) motion was a clerical mistake and by denying his Crim. P. 35(c) motion seeking enforcement of the order granting the motions to reconsider. We need not resolve that issue because, in. any event, we conclude that the trial court lacked jurisdiction to entertain the motions to reconsider.

We agree with the People that defendant’s motions to reconsider the order denying his Crim. P. 35(b) motion amounted to a second Crim. P. 35(b) motion and that, because the motions were filed after the 120-day deadline for filing such motions, the trial court lacked jurisdiction to rule on them.

No provision of the criminal procedure rules specifically authorizes a motion to reconsider an order denying a Crim. P. 35(b) motion or otherwise provides for reconsideration of such an order. See People v. Morales-Uresti, 934 P.2d 856 (Colo.App.1996)(court affirms denial of motion to reconsider denial of Crim. P. 35(b) motion without addressing jurisdiction); see also People v. Adams, 905 P.2d 17 (Colo.App.1995)(filing a motion to reconsider cannot extend the time to appeal an order denying a Crim. P. 35(c) motion); cf. Stone v. People, 895 P.2d 1154 (Colo.App.l995)(division noted that a motion to reconsider is not specifically delineated in C.R.C.P. 59, and no other rule or statute established a party’s right to file a motion to reconsider except under § 24-4-106(2), C.R.S.2003, of the Administrative Procedure Act and C.A.R. 40).

“Under Crim. P. 35, motions for reduction of sentence must be filed with the trial court within 120 days after sentence is imposed. Once the 120-day limit expires, the trial court’s jurisdiction to reduce or change the sentence terminates.” Swainson v. People, 712 P.2d 479, 480 (Colo.1986).

That time limit may be extended only in limited circumstances, such as when a defendant is unconstitutionally deprived of the opportunity to file a Crim. P. 35(b) motion because of ineffective assistance of counsel. Swainson v. People, supra. That time limit may also be extended by statute, such as § 17-27.7-104(2)(a), C.R.S.2003, which allows an inmate participating in the regimented inmate training program to file a Crim. P. 35(b) motion within sixty days of termination or completion of the program. See People v. Smith, 971 P.2d 1056 (Colo.1999). No such extension applies here.

Accordingly, we conclude the trial court lacked jurisdiction to entertain the motions to reconsider because they were filed more than 120 days after defendant’s sentence was imposed. See People v. Fuqua, 764 P.2d 56 (Colo.1988)(the requirement that a Crim. P. 35(b) motion be filed within 120 days after the sentence becomes final is jurisdictional, and a trial court lacks jurisdiction to consider an untimely motion); Swainson v. People, supra (same); People v. Campbell, 75 P.3d 1151 (Colo.App.2003)(same); People v. Arnold, 907 P.2d 686 (Colo.App.1995)(same). We similarly reject defendant’s argument that the trial court had jurisdiction to entertain his motions to reconsider because his initial Crim. P. 35(b) motion was timely filed. There is no basis to conclude that defendant’s motions to reconsider relate back to the date of his initial Crim. P. 35(b) motion. Accordingly, because defendant’s motions to reconsider the denial of his Crim. P. 35(b) motion were filed more than 120 days after the date of his sentencing, the trial court did not have jurisdiction to rule on them.

Finally, the question whether the trial court erred in ruling on those motions is moot. We thus dismiss the appeal as to the September 20, 2001 order and the portion of the May 10, 2001 order regarding the motions to reconsider.

II. Motion to Withdraw Guilty Plea

Defendant next contends he was not advised about the sentencing consequences of his guilty plea to the sex assault charge and that the trial court erred by denying his Crim. P. 35(c) motion to withdraw his guilty plea on that basis. We disagree.

To satisfy the requirements of due process, the record as a whole must show that the defendant entered his or her guilty plea knowingly and voluntarily. Lacy v. People, 775 P.2d 1 (Colo.1989); Waits v. People, 724 P.2d 1329 (Colo.1986).

Before accepting a defendant’s guilty plea as knowingly and voluntarily entered, the trial court must ensure that the defendant was advised of the direct consequences of the plea, including the sentences that could be imposed. People v. Marez, 39 P.3d 1190 (Colo.2002); Craig v. People, 986 P.2d 951 (Colo.1999); People v. Weed, 830 P.2d 1095 (Colo.App.1991).

A proper advisement need not comport with any prescribed ritual or script. Craig v. People, supra.

Here, defendant was not advised either in writing or orally by the providency court regarding the range of sentences that could be imposed upon entry of his guilty plea to the sex assault charge. However, the prosecutor mentioned at the beginning of the providency hearing that defendant could be sentenced to up to sixteen years in prison for the sex assault charge, and the court advised him that he could be sentenced to up to twelve years for his theft conviction. Thus, the prosecutor’s statement compensated for any deficiency in the court’s advisement.

Accordingly, defendant is not entitled to relief based on the providency court’s failure to advise him of the full range of sentences that could be imposed for his sex assault conviction. Although the Crim. P. 35(c) court erroneously concluded that defendant had been “advised carefully” of the possible penalties, we find no abuse of discretion in its ultimate denial of his motion. See People v. Jenkins, 768 P.2d 727 (Colo.App.1988)(a correct result will be upheld on review, even if the reason for the trial court’s ruling was wrong).

We likewise find no abuse of discretion in the trial court’s rejection of defendant’s related claim that he should be permitted to withdraw his plea on the ground that counsel did not advise him about the applicable sentencing ranges. Specifically, even if counsel failed to advise defendant regarding sentencing, he would be unable to establish that counsel’s alleged dereliction prejudiced the defense because the sentences imposed are within the range of sentences the prosecutor and the court told him he was at risk of receiving. See Davis v. People, 871 P.2d 769 (Colo.1994)(to prevail in a proceeding for postconviction relief based on a claim of ineffective assistance of counsel, the defendant must demonstrate not only that counsel’s performance was deficient, but also that it prejudiced the defense).

III. Ineffective Assistance of Counsel

Defendant also maintains that the trial court erred by concluding that plea counsel’s assistance was not constitutionally ineffective and by denying his Crina. P. 35(c) motion on that basis. We disagree.

To establish that he received ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was deficient and resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); People v. Valdez, 789 P.2d 406 (Colo.1990); People v. DiGuglielmo, 33 P.3d 1248 (Colo.App.2001).

To satisfy the second requirement of this test, a defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra; Davis v. People, supra. Thus, defendant here was required to demonstrate that, but for counsel’s alleged dereliction, he would not have pleaded guilty. See People v. Garcia, 815 P.2d 937 (Colo.1991); People v. Pozo, 746 P.2d 523 (Colo.1987).

Because a presumption of validity attaches to a judgment of conviction, the burden is on the defendant to prove both elements of his ineffective assistance claim by a preponderance of the evidence. People v. Naranjo, 840 P.2d 319 (Colo.1992); People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973). If the defendant fails to prove either the deficient performance or the prejudice element of the claim, the trial court may reject it on that basis alone. People v. Gandiaga, 70 P.3d 523 (Colo.App.2002).

Further, when a defendant alleges for the first time on appeal ineffective representation because of a conflict of interest, he or she must demonstrate that an actual conflict of interest adversely affected trial counsel’s performance. Once an actual conflict of interest is shown, prejudice is presumed, and no further showing of prejudice is necessary. Armstrong v. People, 701 P.2d 17 (Colo.1985); People v. Tafoya, 833 P.2d 841 (Colo.App.1992).

Here, defendant argued that plea counsel’s performance was deficient in a number of respects, including that he told defendant he would probably be sentenced to probation or community corrections, represented one of the victims in the theft case in another proceeding and did not disclose the conflict to defendant, and encouraged defendant to confess to the charges in the sex assault case before obtaining any concessions from the prosecution. In support of his claim, defendant relied in part on counsel’s admission at a disciplinary proceeding that his conduct in this case violated Colo. RPC 1.1, which requires a lawyer to “provide competent representation to a client,” as well as Colo. RPC 8.4.

After a lengthy evidentiary hearing, the court denied the motion, concluding that defendant failed to establish that he would not have pleaded guilty but for counsel’s alleged deficiencies. In support of that conclusion, the court found that there was “significant evidence” of defendant’s guilt in both the theft and sex assault cases. The court further noted that several cases, including one in which defendant was charged with intimidating a witness and another involving bond jumping charges, were either not filed or were dismissed pursuant to the plea agreement and that the remaining charges in the theft and sexual assault cases, including a burglary charge and several serious sexual assault charges, were dismissed. The court also noted that the sexual assault charges alone could have resulted in a ninety-six-year sentence. The court thus concluded that the plea agreement was very favorable to defendant and that he was not prejudiced by counsel’s performance.

On remand from this court for a hearing on defendant’s claim that postconviction counsel was ineffective, the trial court revisited the question and again concluded that defendant was not prejudiced by plea counsel’s performance. More specifically, the court found that counsel “minimized [defendant’s] liability” by negotiating for the dismissal of the remaining cases and charges, thereby reducing his maximum prison exposure to twelve years and avoiding a sentence that “could have been easily over fifty” years.

Based on our review of the record, we agree with the trial court’s conclusion that defendant did not demonstrate that he would not have pleaded guilty but for his counsel’s admitted incompetence, and that he was not prejudiced by his counsel’s performance. We thus find no abuse of discretion in its denial of his motion in that regard.

We further conclude, based on the trial court’s factual findings, that defendant did not show that any conflict of interest adversely affected his trial counsel’s performance. Accordingly, we need not address the parties’ arguments regarding whether counsel’s performance fell below an objective standard of reasonableness. See People v. Gcmdiaga, supra.

IV. Alternative Counsel

Defendant’s final contention is that the trial court erred by refusing to appoint alternative counsel to represent him on his Crim. P. 35(c) motion to withdraw his guilty plea (the first motion) and his motion on remand in which he asserted that postconviction counsel was ineffective (the second motion). We are not persuaded.

After it granted postconviction counsel’s motion to withdraw based on his conclusion that defendant’s first motion lacked arguable merit, the trial court denied defendant’s request that substitute counsel be appointed to represent him at the hearing on the first motion. Contrary to defendant’s assertion, this court, not the trial court, denied his request for counsel on the second motion.

Both orders were appropriate. Specifically, because the record establishes that defendant was not entitled to relief on his first motion, the trial court was not required to appoint counsel to represent him on that motion. See Duran v. Price, 868 P.2d 375 (Colo.1994); Brinklow v. Riveland, 773 P.2d 517 (Colo.1989); People v. Lopez, 12 P.3d 869 (Colo.App.2000).

Moreover, because the first motion, which defendant originally filed pro se, lacked merit, postconviction counsel was not ineffective for moving to withdraw based on his conclusion that the motion lacked arguable merit. Accordingly, defendant’s second motion also lacked merit, and he was not entitled to court-appointed counsel to represent him on that motion. Cf. People v. Fitzgerald, 973 P.2d 708 (Colo.App.1998)(to satisfy the prejudice prong of an ineffective assistance claim regarding previous postcon-viction and appellate counsel, defendant was required to establish that, but for counsel’s alleged dereliction, defendant would have prevailed’on at least one of the claims he raised in his previous motion or on appeal).

The trial court’s July 9, 1997 order granting defendant’s motion to reconsider is vacated. The appeal is dismissed as to the trial court’s September 20, 2001 order and the portion of the May 10, 2001 order in which the court concluded that the order granting the motion to reconsider was a clerical error. The remainder of the May 10, 2001 order and the other orders being appealed are affirmed.

Judge NIETO and Judge CARPARELLI concur.


author: Judge KAPELKE.

text:
    CITY OF COLORADO SPRINGS, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and William Sopp, Respondents.
    No. 03CA0890.
    Colorado Court of Appeals, Div. III.
    Feb. 26, 2004.

      Dworkin, Chambers & Williams, P.C., Gregory K. Chambers, C. Sandra Pyun, Denver, Colorado, for Petitioner.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Alexander & Ricci, P.C., William A. Alexander, Jr., Colorado Springs, Colorado, for Respondent William Sopp.
   Opinion by

Judge KAPELKE.

City of Colorado Springs (employer) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that a workers’ compensation claim filed by William Sopp (claimant) was not barred by the two-year statute of limitations in § 8-43-103(2), C.R.S.2003. We affirm.

Claimant was employed as a fireman for thirty-one years, and he suffered substantial exposure to smoke. In the early 1990s, he began experiencing exertion-induced shortness of breath and tightness in his chest, and by 1992 he was suffering from persistent coughing and congestion. He sought medical treatment from his family doctor and several specialists throughout the remainder of the 1990s.

The administrative law judge (ALJ) found that by the early 1990s, claimant believed there was a relationship between his respiratory problems and the irritants to which he was exposed at work. In November 1999, claimant notified employer that he suspected he suffered from a work-related injury, and employer filed a first report of injury later that month. However, claimant continued to work until February 2000, when he retired because he believed he was no longer capable of performing his duties.

In her initial order, the ALJ found that claimant suffered from an occupational disease caused by the inhalation of smoke while fighting fires. She also found, however, that claimant “recognized the nature and seriousness of his condition, as well as the probable relationship between the condition and his work” by 1992, when he sought treatment. The ALJ therefore concluded that the claim was barred by the statute of limitations because it was not filed within two years after the “injury.” The ALJ rejected claimant’s argument that the limitation period did not begin to run until he experienced the “onset of disability,” which claimant equates with the date of his retirement.

The Panel remanded, concluding that the ALJ misapplied the law because, for a claimant to appreciate its seriousness and probable compensable nature, the injury must be “to some extent” disabling so as to entitle the claimant to disability benefits.

In her second order, entered on remand, the ALJ found that although claimant had previously recognized the symptoms of respiratory disease and “believed” it was “probably” work-related, he did not miss any work until 2000, when the disease became disabling and he retired. The ALJ found that because claimant did not recognize the probable compensable nature of the injury until that time, his claim was not barred by the statute of limitations. The Panel affirmed.

Employer contends that the Panel erred in determining that the limitation period does not begin to run until there is a compensable disability. We disagree.

Section 8-43-103(2) requires that a notice claiming compensation be filed within two years after the “injury.” The limitation period commences when the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensability of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App.1997).

The “injury” referred to in the statute of limitations includes an occupational disease. See § 8-40-201(2), C.R.S.2003 (for purposes of the Workers’ Compensation Act, “ ‘injury’ ... includes disability or death resulting from accident or occupational disease”). The term “injury” has been construed to mean a compensable injury. City of Boulder v. Payne, supra; Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App.1991). An injury is not compensable where a claimant continues to work and to receive regular wages. Romero v. Indus. Comm’n, 632 P.2d 1052 (Colo.App.1981).

Further, an occupational disease is compensable only if it results in disablement. Thus, the time of injury for a disability arising from an occupational disease is when the disability manifests itself. Subsequent Injury Fund v. Indus. Claim Appeals Office, 899 P.2d 220 (Colo.App.1994).

Therefore, when an occupational disease is at issue, the limitation period in § 8-43-103(2) begins to run as of the date the claimant becomes disabled.

Accordingly, we agree with the Panel that for a claimant to recognize the probable com-pensable nature of an injury, the injury must be of sufficient magnitude to cause a disability that would lead a reasonable person to recognize that he or she may be entitled to disability benefits.

Characterizing this rule as akin to an “onset of disability” rule, employer contends that it simply does not apply in the statute of limitations context. Employer argues that the “onset of disability” rule is a means to “resolve various issues regarding the particular rights and liabilities which govern a particular claim.” By way of example, employer points out that the onset of disability is used to determine whether a claim is subject to reopening under § 8-43-303, C.R.S.2003.

However, § 8^43-303, which prescribes the period for filing a reopening, is a statute of limitations. See Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850 (Colo.1992); Valdez v. United Parcel Serv., 728 P.2d 340 (Colo.App.1986). Therefore, contrary to employer’s assertion, we conclude that the onset of disability is an appropriate test for determining when the limitation period begins to run in occupational disease cases. See Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo.App.1998)(applying onset of disability rule to find that claimant’s petition to reopen an occupational disease claim was untimely).

The onset of a disability occurs when the occupational disease impairs the claimant’s ability to perform his or her regular employment effectively and properly or when it renders the claimant incapable of returning to work except in a restricted capacity. Leming v. Indus. Claim Appeals Office, 62 P.3d 1015 (Colo.App.2002).

Here, the ALJ found that claimant did not recognize the probable compensable nature of the disease until the effects of the disease forced him to retire in 2000. As discussed, until then, claimant continued performing his regular duties and could not have maintained an action for workers’ compensation disability benefits. See Romero v. Indus. Comm’n, supra. Under these circumstances, the Panel correctly affirmed the ALJ’s determination that the claim was not barred by the statute of limitations.

That claimant actively sought treatment during the 1990s does not persuade us to reach a contrary conclusion. Because a claimant’s need for treatment of an occupational disease does not necessarily coincide with the disability, see Leming v. Indus. Claim Appeals Office, supra, the ALJ could properly find that claimant only later became aware that his injury was compensable.

The order of the Panel is affirmed.

Judge VOGT and Judge WEBB concur.


author: Judge NIETO.

text:
    Silvia ROSALES, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, Defendant-Appellant.
    No. 02CA2432.
    Colorado Court of Appeals, Div. II.
    Feb. 26, 2004.

      Silvern Law Offices, P.C., Thomas A. Bul-ger, Denver, Colorado, for Plaintiff-Appellee.
    Helen Eckardt Raabe, City Attorney, John Eckhardt, Assistant City Attorney, Efrain M. Padro, Assistant City Attorney, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, the City and County of Denver, appeals the trial court’s order denying its motion to dismiss, on governmental immunity grounds, the complaint brought by plaintiff, Silvia Rosales. We reverse in part and remand with directions.

Plaintiff was injured when a tree branch fell on her while she was picnicking at a City park. Plaintiff alleged that the City had not exercised reasonable care in maintaining the picnic area by failing to inspect and properly prune the tree and by placing picnic tables, benches, and other similar structures underneath the tree. Plaintiff asserted that the City’s immunity was waived under § 24-10-106(l)(e), C.R.S.2003, of the Colorado Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2003, for injuries resulting from a dangerous condition of a public facility located in a park or recreation area maintained by a public entity.

The City moved to dismiss plaintiffs complaint under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction under the GIA. The City argued that a tree or tree branch did not constitute a public facility for purposes of § 24-10-106(l)(e). In particular, the City argued that grouping the term “public facility” with “water facility,” “gas facility,” “sanitation facility,” and “electrical facility” in § 24r-10-106(l)(e) suggests that “public facility” refers only to man-made facilities.

In response, plaintiff argued that the tree constituted a part of the picnic area, and therefore, the tree was part of the public facility to be used by the general public for picnics and recreation.

The court found that a tree located in a park is a part of the overall use and enjoyment of the park. The court stated:

A tree located in a park or recreation area serves a purpose to the general public as well as an aesthetic value to the overall appearance of the park. A tree provides shade to a weary pedestrian, a cool place to enjoy a book, and an area to enjoy a picnic. It is reasonable to expect that one’s safety is not at risk by partaking in such activity under a tree in a park, just as one would expect they (sic) are not at risk by using a restroom facility located in a park.

The trial court therefore concluded that the tree constituted a public facility and that the City’s immunity had been waived under § 24-10-106(l)(e). The City then brought this appeal pursuant to § 24-10-108, C.R.S. 2003.

The City contends that the trial court erred in holding that the tree was a public facility located in the park. We agree.

The GIA provides that a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort. Section 24-10-105, C.R.S.2003. The GIA then lists six types of actions that may result in a waiver of the public entity’s immunity. Section 24-10-106(1), C.R.S.2003. As pertinent here, § 24-10-106(l)(e) waives immunity in ah action for injuries resulting from “a dangerous condition of any ... public facility located in any park or recreation area maintained by a public entity.”

Because governmental immunity under the GIA derogates Colorado’s common law, we strictly construe the grant of immunity. See Springer v. City & County of Denver, 13 P.3d 794 (Colo.2000). Consequently, we broadly construe the provisions waiving immunity in the interest of compensating victims of governmental negligence. Padilla v. Sch. Dist. No. 1, 25 P.3d 1176 (Colo.2001).

Our primary task in construing a statute is to determine and give effect to the intent of the General Assembly. See Springer v. City & County of Denver, supra. That intent is determined by first construing the statutory language in accordance with its plain and ordinary meaning. See Fogg v. Macaluso, 892 P.2d 271 (Colo.1995). If the statutory language is unambiguous, there is no need to resort to interpretive rules of statutory construction. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo.2002).

The phrase “public facility” is not defined in the GIA. However, the plain meaning of the term “public” is “a place accessible or visible to all members of the community.” Webster’s Third New International Dictionary 1836 (1986); see also Farina v. City & County of Denver, 940 P.2d 1004, 1008 (Colo.App.1996)(in determining whether airport medical clinic was a “public” hospital, the division noted that “so long as the facility is owned and operated by the public entity, is devoted to a public purpose, and is beneficial to a substantial segment of the public, it is a public facility or hospital under the GIA”). The common meaning of “facility” is “something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end.” Webster’s, supra, 812-13. Thus, these definitions imply that a public facility is something that is built or constructed to serve some public purpose. See City & County of Denver v. Gallegos, 916 P.2d 509 (Colo.1996)(holding that the determinative factor in defining a public facility is whether the facility was operated for the benefit of the public).

This interpretation of “public facility” is supported by the provision in § 24-10-106(l)(e) concerning “the natural condition of any unimproved property”:

Nothing in this paragraph ... shall be construed to prevent a public entity from asserting sovereign immunity for an injury caused by the natural condition of any unimproved property, whether or not such property is located in a park or recreation area or on a highway, road, or street right-of-way.

This provision makes clear that the General Assembly did not intend to waive immunity unless a public facility is built or constructed in a park or recreation area.

Additionally, in § 24-10-106(l)(e), the phrase “public facility” is grouped with “public hospital,” “jail,” “water facility,” “gas facility,” “sanitation facility,” and “electrical facility.” Each of these listed facilities is built or constructed by a public entity to serve a particular purpose. This grouping supports the City’s argument that the phrase “public facility” refers to a facility built or constructed by a public entity and does not refer to a natural object such as a tree. See Jilot v. State, 944 P.2d 566 (Colo.App.1996)(holding that the General Assembly, by placing “gas facility” in the context of other public utilities, expressed its intent to restrict the definition of that term to include only facilities that distribute natural gas); Pack v. Ark. Valley Corr. Facility, 894 P.2d 34 (Colo.App.1995)(reasoning that the GIA places public facilities in discrete groups for the purpose of waiving immunity for similar public entities in a similar manner).

It is reasonable to infer that if the General Assembly had intended to waive immunity for all dangerous conditions located in a park or recreational area, it would have provided that immunity was waived for “a dangerous condition in a park or recreation area,” rather than for a dangerous condition of a public facility in a park or recreation area.

Plaintiff relies on Montes v. Hyland Hills Park & Recreation District, 849 P.2d 852 (Colo.App.1992), in support of her argument that a tree is a public facility in a park. We are not persuaded.

There, the division relied on a statute relating to recreational facilities districts that defines a “recreational facility” as “such land or interest in land as may be necessary, suitable or proper for park or recreational purposes.” See § 29-7-107, C.R.S.2003. However, Montes is distinguishable because there the issue was whether a golf cart was a public facility located in a park or recreation area.

Based on the use of the phrase “public facility” in § 24-10-106(l)(e), its common meaning, and its grouping with other facilities in that statute, we conclude that the General Assembly intended “public facility” to refer to a facility built or constructed by a public entity rather than a natural feature such as a tree.

Accordingly, we conclude that a tree in a park or recreation area is not a public facility. However, this does not end the inquiry because we further conclude that if a public entity incorporates a tree into a facility in such a manner that it becomes an integral part of the facility and is essential for the intended use of the facility, the tree may be a component of the public facility. See State v. Moldovan, 842 P.2d 220 (Colo.1992)(holding that a fence adjacent to a highway was a safety device that was an integral part of the highway). This is a question of fact that must be resolved based on the circumstances presented.

Here, although we conclude the trial court erroneously held that a tree is a public facility, the court did not determine whether the City had incorporated the tree into a public facility in such a manner that it became an integral part of the facility and was essential for the facility’s intended use. Thus, a remand is necessary to resolve this issue.

Therefore, that part of the trial court’s order finding a tree to be a public facility in a park is reversed, and the case is remanded for further proceedings and findings consistent with this opinion. That part of the order finding that the tree constituted a dangerous condition was not appealed and therefore will not be disturbed.

Judge ROTHENBERG and Judge PICCONE concur.


author: Judge ROTHENBERG.

text:
    In re the MARRIAGE OF Julie Deanna SCHMITT, n/k/a Julie Deanna Jones, Appellee, and James Donald Schmitt, Appellant.
    No. 02CA1250.
    Colorado Court of Appeals, Div. II.
    Feb. 26, 2004.

      Brega & Winters, P.C., Robert R. Dormer, Denver, Colorado, for Appellee.
    Seawell, Gilbertson, Buckmelter, & Kang, LLC., Burke S. Gilbertson, Denver, Colorado, for Appellant.
   Opinion by

Judge ROTHENBERG.

In this post-dissolution proceeding concerning an arbitration award granting child support to Julie Deanna Schmitt, n/k/a Julie Deanna Jones (mother), James Donald Schmitt (father) appeals the district court’s order denying his motion for de novo review of the award. The sole issue in this appeal is whether father’s motion for de novo review, filed pursuant to § 14-10-128.5, C.R.S.2003, was untimely because it was not filed within thirty days of the date the arbitration award was confirmed. Because we agree with the district court thát the motion was untimely, we affirm.

I.

In July 2000, the court approved the parties’ stipulation that childcare expenses for the parties’ two children would be included in the child support calculation through June 2001 while mother attended school. As of June 2001, child support was to be calculated using mother’s actual income. If she were unemployed at that time, $3750 per month in income was to be imputed.

Father filed a motion to modify child support, and the parties voluntarily submitted the motion to binding arbitration pursuant to § 14-10-128.5. The arbitrator calculated child support and resolved childcare costs and mother’s income, among other things. The arbitrator’s award was confirmed by the district court on January 15, 2002.

Forty-three days later, father moved the district court for a de novo review of the arbitration award. The court denied the motion, concluding it was untimely filed, and father then filed this appeal.

II.

Father contends the trial court erred in concluding his request for de novo review was untimely filed because it was filed more than thirty days after the arbitrator’s award was confirmed. He maintains that § 14-10-128 does not contemplate a time limit for filing a motion for such review of an arbitrator’s award. We disagree.

When construing the meaning of a statute, reviewing courts first should consider the statutory language and give the words their plain and ordinary meaning. The court should not read a statute to create an exception that the plain language does not suggest, warrant, or mandate. Section 2-4-101, C.R.S.2003; Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo.2000); Colo. Common Cause v. Coffman, 85 P.3d 551, 2003 WL 1562241 (Colo.App. No. 01CA1709, Mar. 27, 2003).

If the meaning of a statute is unambiguous, courts need not resort to interpretive rules of statutory construction such as the legislative intent or the external circumstances at the time the statute was enacted. Town of Telluride v. Lot Thirty-Four Venture, L.L.C., supra; Colo. Common Cause v. Coffman, supra.

Our primary goal is to effectuate the intent of the General Assembly. We consider statutes as a whole and attempt to give consistent, harmonious, and sensible effect to all their parts. Colo. Common Cause v. Coffman, supra.

Section 14-10-128.5, C.R.S.2003, states:

(1) With the consent of all parties, the court may appoint an arbitrator to resolve disputes between the parties concerning the parties’ minor or dependent children, including but not limited to parenting time, nonrecurring adjustments to child support, and disputed parental decisions .... The arbitrator’s award shall be effective immediately upon entry and shall continue in effect until vacated by the arbitrator pursuant to section 13-22-214, C.R.S., modified or corrected by the arbitrator pursuant to section 13-22-215, C.R.S., or modified by the court pursuant to a de novo review under subsection (2) of this section.
(2) Any party may apply to have the arbitrator’s award vacated, modified, or corrected pursuant to the “Uniform Arbitration Act of 1975”, part 2 of article 22 of title 13, C.R.S. [UAA], or may move the court to modify the arbitrator’s award pursuant to a de novo review of such award. In circumstances in which a party moves for a de novo review by the court, the court shall order the nonprevailing party to pay the fees and costs of the prevailing party and the fees of the arbitrator incurred in responding to the application or motion unless the court finds that it would be manifestly unjust.

(Emphasis added.) See In re Marriage of Eggert, 53 P.3d 794 (Colo.App.2002); Kniskern v. Kniskern, 80 P.3d 939 (Colo.App.2003)(trial court retains jurisdiction to decide all arbitration issues de novo upon request of either party).

Section 14-10-128.5(2) thus creates two separate ways for a court to review an arbitration award. The first adopts the UAA’s procedure to vacate, modify, or correct an arbitration award. The statute specifies no time limit in which to request this review, but under the UAA, an application to vacate, modify, or correct an arbitrator’s award is subject to a thirty-day time limit. Sections 13-22-214(2), 13-22-215(1), C.R.S.2003.

Because the UAA imposes a thirty-day time limit on such applications, we conclude this time limit also applies to such applications under § 14-10-128.5(2). We view this conclusion as consistent with the plain language of the provision. See In re Marriage of Eggert, supra (looking to UAA in construing fee provision in § 14-10-128.5(2)); In re Marriage of Popack, 998 P.2d 464 (Colo.App.2000)(construing § 14-10-128.5 in pari materia with the UAA).

The second way for a court to review an arbitration award is by the filing of a motion for de novo review, as occurred in this case. Absent a clear intent by the legislature to create a different time limit for the court to review an arbitrator’s award under § 14-10-128.5(2), we conclude the same thirty-day time limit should apply. Our conclusion that de novo review must be sought within thirty days gives harmonious and sensible effect to all parts of § 14-10-128.5.

We reject the interpretation father urges — that he may request de novo review under § 14-10-128.5 at any time — because under his interpretation a child support order entered by an arbitrator would never be final. This would be contrary to public policy and it is highly unlikely such a result was intended by the legislature. See In re Marriage of Wolford, 789 P.2d 459 (Colo.App.1989)(strong public policy exists to assure the finality of judgments and is especially important in family law matters).

In Perdew v. City & County of Denver, 163 Colo. 511, 514, 432 P.2d 239, 241 (Colo.1967), the supreme court, interpreting a different statute, imposed a “reasonable time element” where the statute contained none, and then concluded forty days was “a reasonable time within which an appellant shall docket his ease and pay the docket fee in the appellate court.” Even under that rationale, however, father’s motion for de novo review would still be untimely filed.

In summary, we conclude that because father’s motion for de novo review of the arbitration award was not filed within thirty days of the confirmation of the award, it was untimely filed and the trial court did not err in dismissing it.

Order affirmed.

Judge MARQUEZ and Judge GRAHAM! concur.


author: Judge MARQUEZ.

text:
    HERITAGE VILLAGE OWNERS ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff-Appellee, v. GOLDEN HERITAGE INVESTORS, LTD., a Colorado limited partnership; Townhomes Heritage, LLC, a Colorado limited liability company; and WW Construction Management, Inc., a Colorado corporation, Defendants-Appellants.
    No. 02CA0985.
    Colorado Court of Appeals, Div. I.
    March 11, 2004.

      Benson & Associates, PC, Jesse Howard Witt, Arvada, Colorado, for Plaintiff-Appel-lee.
    Godin & Baity, LLC, Edward J. Godin, Darrell D. Collett, Denver, Colorado, Defendants-Appellants.
   Opinion by

Judge MARQUEZ.

In this construction defects case, defendants, Golden Heritage Investors, Ltd., Townhomes Heritage, LLC, and WW Construction Management, Inc., appeal the judgment in favor of plaintiff, Heritage Village Owners Association, Inc. We affirm.

The Association is the homeowners association for Heritage Village, a sixty-three-unit townhome community. Defendants were involved in the development, construction, and sales of that community.

The Association filed a complaint alleging numerous construction defects in both individual units and common areas. The amended complaint included claims for negligence per se, negligence, breach of implied warranty, deceptive trade practices in violation of the Colorado Consumer Protection Act (CCPA), and negligent nondisclosure or concealment.

The trial court ruled on the Association’s motion in limine that the Association has standing under the Colorado Common Interest Ownership Act, § 38-33.3-101, et seq., C.R.S.2003 (CCIOA), to assert construction defect claims for individual owners’ units, as well as for the common areas. The Association presented evidence of damage in individual units resulting from water intrusion at windows and structural defects in exterior decks and floor slabs.

The jury found for the Association on all claims and determined damages in the amount of $3,618,000. After trebling damages, the trial court entered a judgment for $9,879,000 plus interest, costs, and fees. The trial court later entered an amended judgment. This appeal followed.

I.

Defendants first contend that the trial court erred in finding that the Association had standing to assert claims for construction defects in both the individual units and the common areas. We disagree.

The CCIOA was enacted in part to establish “more certain powers in the association to sue on behalf of the owners.” Section 38-33.3 — 102(l)(b), C.R.S.2003. These powers are enumerated in the statute: “[Sjubject to the provisions of the declaration, the association, without specific authorization in the declaration, may ... [ijnstitute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more unit owners on matters affecting the common interest community.” Section 38 — 33.3—302(l)(d), C.R.S.2003.

The “common interest community” is defined as “real estate described in a declaration with respect to which a person, by virtue of such person’s ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration.” Section 38-33.3-103(8), C.R.S.2003.

Section 38-33.3-103(30), C.R.S.2003, defines a “unit” as a “physical portion of the common interest community which is designated for separate ownership.”

A.

Defendants contend that the CCIOA does not grant standing to assert claims related to windows, decks, and floor slabs because these claims are not matters affecting the common interest community. Citing § 38-33.3-103(5)(b), C.R.S.2003, which defines “common elements” as “real estate within a planned community owned or leased by an association, other than a unit,” defendants assert that the Association has standing only to assert claims for matters affecting the “common interest community” outside the individual units. We disagree.

Here, the trial court ruled before trial that individual units are part of the common interest community property and thus, the Association had standing to assert claims on behalf of the homeowners for defects to individual units. While this appeal was pending, a division of this court decided Yacht Club II Homeowners Ass’n v. A.C. Excavating, — P.3d —, 2003 WL 22722946 (Colo.App. No. 02CA0645, Nov. 20, 2003), which holds that (1) § 38-33.3-302(l)(d) confers standing upon associations to pursue damage claims on behalf of two or more unit owners with respect to matters affecting the “common interest community,” and (2) individual units are part of the common interest community.

We conclude that the CCIOA’s plain language including individual units in the common interest community and Yacht Club make clear that the Association has standing to assert claims of individual unit owners.

B.

We also reject defendants’ assertion that the Association’s Declaration of Covenants, Conditions, and Restrictions denies the Association any responsibility for or interest in windows, decks, and floor slabs of individual units.

Under the CCIOA, a homeowners association’s standing to institute litigation does not require specific authorization under a declaration. See § 38-33.3-302(l)(d). Further, “[i]n the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails, except to the extent the declaration is inconsistent with this article.” Section 38-33.3-203(3), C.R.S. 2003.

We read § 38-33.3-203(3) to provide that the CCIOA prevails over any inconsistent provision in the Declaration.

Here, defendants point to sections of the Declaration apportioning maintenance duties between the Association and the owners of individual units. However, the Declaration specifically states that “declarant submits the Property to the provisions of the [CCIOA] ” and that the Association has all the “powers, authority and duties permitted under the [CCIOA] which are necessary and proper to manage the business and affairs of the Community.” Provisions stating that the Association and individual owners have separate maintenance duties under the Declaration have no bearing on the Association’s standing under the CCIOA.

C.

We also disagree with defendants’ assertion that pursuant to Villa Sierra Condominium Ass’n v. Field Corp., 787 P.2d 661 (Colo.App.1990), the Association lacked standing to assert a claim for breach of the implied warranty of habitability.

In Villa Sierra, a division of this court held that a condominium owners association had associational standing to assert a claim for breach of implied warranty for damage to areas under common ownership, but stated that lawsuits seeking damages on behalf of individual owners would normally require the participation of those owners.

However, Villa Sierra was decided before the CCIOA was enacted, and here, defendants do not argue that the plain language of the CCIOA excludes the breach of implied warranty claim. Nothing in the plain language of the CCIOA or in the rationales of Villa Sierra or Yacht Club II precludes the Association’s standing for the breach of implied warranty claim. See Yacht Club II Homeowners Ass’n v. A.C. Excavating, supra (reversing trial court’s ruling that Villa Siem prevented homeowners association’s standing under CCIOA in negligence claim).

II.

Defendants also contend that the trial court erred in ruling that the proper measure of damages was cost of repair rather than diminution of value. We disagree.

The selection of the appropriate measure of damages in each case is within the discretion of the trial court. The trial court must take as its principal guidance the goal of reimbursement of the plaintiff for losses actually suffered. Bd. of County Comm’rs v. Slovek, 723 P.2d 1309 (Colo.1986).

Different measures of damages, including the cost of restoring the property to its original condition, may be appropriate under certain circumstances if the actual loss suffered is to be fully compensated. Bd. of County Comm’rs v. Slovek, supra.

Here, in ruling that the proper measure of damages was the reasonable cost of repairing or rebuilding the property, the court explained that the townhomes were livable and determined that it would be inappropriate to “base a measure of damages on diminutions or arbitrary increase in the market value over the period of time for homes that ... both sides have stated or presented to the jury ai'e in need of repair."

Defendants concede that the trial court had discretion to apply a measure of damages other than diminution in value, but argue that doing so in this ease was economically wasteful because the Association’s damage estimate of approximately $6.5 million exceeded defendants’ original construction cost. We are unaware of any authority that imposes this test for economic waste. See Bd. of County Comm’rs v. Slovek, supra (refusing to impose a damage cap that would prevent repair cost damages greater than original value when repair costs are not wholly unreasonable and evidence demonstrates that payment of market value likely will not adequately compensate property owners for personal or other special reasons).

We conclude that the trial court did not abuse its discretion in determining that cost of repair would best compensate the Association.

III.

We also disagree with defendants’ contention that the trial court erred by excluding testimony of defendants’ real estate appraisal expert as to the appreciation in value of individual townhomes.

Rulings on the relevancy of proffered evidence are within the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo.1985).

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. CRE 403.

Here, the trial court ruled that defendants’ expert could not testify as to appreciation in value of individual units in the townhome complex. However, because the Association had introduced evidence of the length of time units were on the market when up for resale, the court allowed defendants’ expert to testify about sales performance.

Because we have already concluded that the court properly determined the measure of damages to be cost of repair, we need not address defendants’ assertion that-testimony as to appreciation is relevant to determine diminution of value. Further, we disagree with defendants’ assertion that the trial court erred in not admitting evidence of appreciation as relevant to the reasonable cost of repairs.

The trial court determined that market values had “nothing to do” with the damage and repairs to the townhomes. The court held that even though such evidence “could” be relevant, it would be inappropriate under CRE 403 to “bring in an additional factor,” in part because the increase in market values was arbitrary and attributable to the overall “astounding growth” in the local real estate market.

Relying on Gold Rush Investments, Inc. v. G.E. Johnson Construction. Co., 807 P.2d 1169 (Colo.App.1990), and Summit Construction Co. v. Yeager Garden Acres, Inc., 28 Colo.App. 110, 470 P.2d 870 (1970), defendants argue that awarding cost of repair damages without considering market values necessarily constitutes unreasonable economic waste. We are not persuaded.

In Gold Rush Investments, a division of this court addressed whether evidence was sufficient to support an award for diminution of value in a hotel already in use. The division pointed out that if physical reconstruction would involve unreasonable economic waste “by destruction of usable property or otherwise,” damages should be measured by reduction in market value. Gold Rush Invs., Inc. v. G.E. Johnson Constr., supra, 807 P.2d at 1174. The jury’s award was supported by evidence that even with repairs, the hotel’s useful life would be shortened, and costly continuing repairs would be necessary.

Here, no similar evidence was offered. The court told defendants that should the jury return a verdict that defendants felt was excessive, the court would address the issue as a matter of law. However, the damages returned by the jury were less than half of the $6.5 million cost estimated by the Association for repairs to both individual units and common areas combined.

In Summit Construction, contrary to defendants’ assertion, the trial court did not fail to consider market value. The court determined that repairing certain construction defects in the floor and roof would entail unreasonable economic waste and that market value was the proper measure of damages. However, in the absence of evidence from either party of the property’s market value, the court improperly assessed damages for the deficiencies in the roof and the floor partly on a percentage of the cost and partly on the cost of repair.

Nor do we agree with defendants that the proffered testimony was relevant to rebut the Association’s claim that the units were “not of merchantable quality.”

While the Association’s complaint included an allegation that defendants knew or should have known that their negligence would result in structures not being of merchantable quality, the Association sought as damages only the cost of repairs, not additional compensation for reduced market value after repairs. Cf. McAlonan v. U.S. Home Corp., 724 P.2d 78 (Colo.App.1986)(affirming instruction directing jury to measure damages to residential property as the cost of repair plus any diminution in market value as repaired).

Finally, we disagree with defendants’ assertion that the Association opened the door through testimony of its witness to difficulty in selling units, their extensive time on the market, and failed transactions due to the construction defects. The trial court properly allowed defendants’ expert to rebut that specific testimony, but because the Association’s witness did not testify as to sales prices, defendants’ expert likewise could not do so,

IV.

Defendants next contend that the trial court erred by failing to instruct the jury that a finding of deceptive trade practices would result in an award of treble damages under the CCPA. We disagree.

Section 6-1-113(2), C.R.S.2003, of the CCPA provides in relevant part that a person who engaged in a listed deceptive trade practice shall be liable for the greater of:

(I) The amount of actual damages sustained; or
(II) Five hundred dollars; or
(III) Three times the amount of actual damages sustained, if it is established by clear and convincing evidence that such person engaged in bad faith conduct.

Here, the trial court refused defendants’ proposed jury instruction informing the jurors of the availability of treble damages because the trebling was by statute and thus was not a finding of fact to be made by the jury. We perceive no error.

Colorado appellate courts have not addressed whether jurors should be instructed that violations of the CCPA may result in an award of treble damages. Colorado trial courts regularly award treble damages after the jury has separately determined liability. See, e.g., Giampapa v. Am. Family Mut Ins. Co., 64 P.3d 230 (Colo.2003)(No-Fault Act); Itin v. Ungar, 17 P.3d 129 (Colo.2000)(rights in stolen property statute); Anson v. Trujillo, 56 P.3d 114 (Colo.App.2002)(CCPA).

However, two Colorado cases have addressed jury instructions on treble damages under a statute governing seizure of personal goods. Neither case required the court to inform the jury of statutory trebling provisions, but both cases held that the court may instruct the jury on treble damages. See Sandberg v. Borstadt, 48 Colo. 96, 109 P. 419 (1910); Wymond v. Amsbury, 2 Colo. 213 (1873). The supreme court in Wymond also noted that “single damages may be returned” and “the court may, when the facts will warrant it, enter judgment for treble the amount so returned.” Wymond, supra, 2 Colo. at 217.

Defendants urge us to adopt the reasoning of Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 750 A.2d 79 (2000), which held that the jury should be instructed as to the availability of treble damages under New Jersey’s Consumer Fraud Act. However, the decision in Wanetick was not unanimous. The dissenting justice wrote that “knowledge that the judge will treble the economic damages is not only irrelevant to the jury’s performance of its function, but such knowledge likely will be prejudicial to the plaintiff while at the same time thwarting the legislative intent of requiring exemplary damages.” Wanetick v. Gateway Mitsubishi, supra, 750 A.2d at 86-87 (Coleman, J., dissenting). We find the reasoning of the dissent persuasive and decline to adopt the majority’s position.

Federal courts have held that instructing the jury on treble damages is improper under other statutory schemes. See HBE Leasing Corp. v. Frank, 22 F.3d 41, 45 (2d Cir.1994) (district court should not as a general matter permit reference before a jury to the fact that any eventual award will be trebled under the Racketeer Influenced and Corrupt Organizations Act).

While defendants rely on Bordonaro Brothers Theatres, Inc. v. Paramount Pictures, Inc., 203 F.2d 676 (2d Cir.1953) (addressing treble damages provision of the Clayton Act), the HBE Leasing court held: “[Tjime has passed by the Bordonaro Brothers decision, and the dominant and more-reasoned view is that juries should not be made aware of trebling provisions.” HBE Leasing, supra, 22 F.3d at 46. The HBE Leasing court also pointed out that Bordona-ro Brothers did not hold that excluding such testimony required reversal.

Similarly, at least three other federal circuits decline to inform juries of trebling provisions of the Clayton Act in antitrust cases. See Brooks v. Cook, 938 F.2d 1048 (9th Cir.1991); Pollock & Riley, Inc. v. Pearl Brewing Co., 498 F.2d 1240 (5th Cir.1974); Semke v. Enid Auto. Dealers Ass’n, 456 F.2d 1361 (10th Cir.1972)(jury’s function is to determine the amount of damages, not the amount of the judgment). But compare C. Albert Sauter Co. v. Richard S. Sauter Co., 368 F.Supp. 501 (E.D.Pa.1973); Sablosky v. Paramount Film Distrib. Corp., 137 F.Supp. 929 (E.D.Pa.1955), with Rea v. Ford Motor Co., 355 F.Supp. 842 (W.D.Pa.1972), rev’d on other grounds, 497 F.2d 577 (3d Cir.1974)(split in Third Circuit).

The federal courts declining to inform juries of treble damages note that reference to trebling is irrelevant to questions of liability and damages, may tend to confuse or prejudice a jury into reducing its eventual award, and frustrates Congress’s goal of deterring improper conduct. See HBE Leasing Corp. v. Frank, supra; Pollock & Riley, Inc. v. Pearl Brewing Co., supra; Semke v. Enid Auto. Dealers Ass’n, supra.

The purposes of the treble damages provision of the CCPA are to provide prompt, economical, and readily available remedies against consumer fraud and to promote private enforcement. Showpiece Homes Corp. v. Assurance Co., 38 P.3d 47 (Colo.2001). These purposes are similar to those of the acts addressed by the federal courts. See Pollock & Riley, Inc. v. Pearl Brewing Co., supra (purpose of treble damages is to deter violations and encourage private enforcement); Semke v. Enid Auto. Dealers Ass’n, supra (same).

In view of the early Colorado Supreme Court cases and the absence of statutory direction, we do not deem it necessary to determine whether a jury may never be advised of treble damages. However, we conclude that the trial court did not err by declining to instruct the jury of the trebling provision of the CCPA.

The judgment is affirmed.

Judge TAUBMAN and Judge WEBB concur.