author: Opinion by JUDGE FOX JUDGE BOORAS, dissenting.

text:
    Xiuhtezcatl MARTINEZ, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray, minors appearing by and through their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine Jones, Robin Ruston, and Diana Bray, Plaintiffs-Appellants, v. COLORADO OIL AND GAS CONSERVATION COMMISSION, Defendant-Appellee, and American Petroleum Institute and Colorado Petroleum Association, Intervenors-Appellees.
    Court of Appeals No. 16CA0564
    Colorado Court of Appeals, Division V.
    Announced March 23, 2017
    Colorado Environmental Law, LTD., Katherine Lynn Toan Merlin, Boulder, Colorado; Minddrive Legal Services, LLC, James Daniel Leftwich, Boulder, Colorado; Wild Earth Advocates, Julia Olson, Eugene, Oregon; for Plaintiffs-Appellants
    Cynthia H. Coffman, Attorney General, Jake Matter, Senior Assistant Attorney General, Brittany K. Beckstead, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
    Ryley Carlock & Applewhite, Richard C. Kaufman, Julie A. Rosen, Matthew K. Tieslau, Denver, Colorado, for Intervenors-Appellees
    Western Environmental Law Center, Kyle Tisdel, Taos, New Mexico, for Amici Curiae Colorado Chapter Global Catholic Climate Movement, 350 Colorado, Eco-Justice Ministries, Denver Catholic Network and Global Climate Movement, The Rocky Mountain Peace and Justice Center, Wall of Women Colorado, Colorado People's Alliance, Citizens for a Healthy Fort Collins, Transition Fort Collins, The Fort Collins Sustainability Group, Citizens for a Healthy Community, Be the Change, The Colorado Coalition for a Livable Climate, Clean Energy Action, The Climate Culture Collaborative, Co-Op Members Alliance, The Community for Sustainable Energy, Eco Elders, Vibrant Planet, EnergyShouldBe.org, Frack Free Colorado, Lakewood Renewable Energy Lakewood, North Metro Neighbors for Safe Energy, and Protect Our Loveland
    Cynthia H. Coffman, Attorney General, Claybourne F. Clarke, Senior Assistant Attorney General, Laura Terlisner Mehew, Benjamin Saver, Assistant Attorneys General, Denver, Colorado, for Amicus Curiae Colorado Department of Public Health and Environment
    Kevin Lynch, Timothy Estep, Denver, Colorado, for Amici Curiae Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; and Food & Water Watch
   Opinion by JUDGE FOX

¶ 1 Through their legal guardians, Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter, and Emma Bray (collectively Petitioners), who reside and recreate in Colorado, appeal the district court's order and final judgment affirming a decision of the Colorado Oil and Gas Conservation Commission (the Commission) denying Petitioners' rulemaking petition. The American Petroleum Institute and the Colorado Petroleum Association (collectively Intervenors) intervened in the district court and filed an appellate brief supporting the district court's order. Additionally, on appeal, twenty-nine agencies and interest groups join as amici curiae, collectively filing three amici briefs.

¶ 2 This appeal concerns the scope of authority and obligation delegated to the Commission by the General Assembly in the Oil and Gas Conservation Act (the Act), §§ 34-60-101 to - 130, C.R.S. 2016, to regulate oil and gas production in the interests of public health and safety. The district court affirmed the Commission's order after concluding that the Commission lacked authority to consider a proposed rule that would require it to readjust the Act's balance between the development of oil and gas resources and protection of public health, safety, and welfare. Because we agree with Petitioners that this conclusion was erroneous, we reverse the judgment of the district court and the decision of the Commission and remand to the district court to return the case to the Commission for further proceedings consistent with this opinion.

I. Background

¶ 3 Hydraulic fracturing (fracking) is a modern process used to stimulate oil and gas production from an existing well by injecting water mixed with other chemicals and materials which cause, and hold open, fractures in a well bore allowing oil and gas to flow to the well bore via the newly created fractures. City of Longmont v. Colo. Oil & Gas Ass'n , 2016 CO 29, ¶ 1, 369 P.3d 573.

¶ 4 The Commission is charged with generally regulating oil and gas resource production in Colorado. See § 34-60-105, C.R.S. 2016; § 34-60-106, C.R.S. 2016.

¶ 5 On November 15, 2013, Petitioners filed a petition for rulemaking pursuant to the Commission's Rule 529(b).See Dep't of Nat. Res. Reg. 529, 2 Code Colo. Regs. 404-1. Petitioners proposed a rule requesting that the Commission

not issue any permits for the drilling of a well for oil and gas unless the best available science demonstrates, and an independent, third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.

¶ 6 The Commission solicited and received written stakeholder comments and held a hearing, on April 28, 2014, where parties favoring and opposing the proposed rule testified.

¶ 7 The Commission ultimately denied the petition, concluding that (1) the proposed rule mandated action that was beyond the limited statutory authority delegated by the General Assembly in the Act; (2) review by a third party-as Petitioners requested-contradicted the Commission's nondelegable duty to promulgate rules under section 34-60-106(11)(a)(II) and is contrary to the Act; and (3) the public trust doctrine, which Petitioners relied on to support their request, has been expressly rejected in Colorado.

¶ 8 The Commission also concluded that "the Commission and the Colorado Department of Public Health and the Environment (CDPHE) are currently addressing many of the Petitioners' concerns through more gradual changes in regulation within their relative jurisdictions." In reaching its conclusions, the Commission largely relied on a memo from the Colorado Attorney General's Office which advised that the Commission lacked jurisdiction to adopt the proposed rule as written, and that there is no statutory basis to withhold drilling permits pending the Petitioners' proposed impact reviews.

¶ 9 On July 3, 2014, Petitioners appealed the Commission's decision to the district court pursuant to the State Administrative Procedure Act, § 24-4-106, C.R.S. 2016. The parties filed briefs and Petitioners requested oral argument.

¶ 10 The district court, ruling on the briefs, applied the two-part test from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and concluded that the Act's language is clear and unambiguous and requires a balance between the development of oil and gas resources and protecting public health, safety, and welfare. The district court further concluded that the Commission did not act arbitrarily or capriciously in relying on the advice of the Attorney General's Office, and that it rationally decided to deny the petition after considering input from stakeholders on both sides of the fracking issue. Thus, the district court affirmed the Commission.

II. The Commission's Duty Under the Act

¶ 11 Petitioners contend that the district court and the Commission erred in interpreting the Act. We agree.

A. Preservation and Standard of Review

¶ 12 The parties agree that Petitioners preserved their argument for appeal.

¶ 13 We may overturn an administrative agency's determination only if we conclude that the agency (1) acted arbitrarily or capriciously; (2) made a determination that is not supported by the record; (3) erroneously interpreted the law; or (4) exceeded its constitutional or statutory authority. Sapp v. El Paso Cty. Dep't of Human Servs. , 181 P.3d 1179, 1182 (Colo. App. 2008). The district court exercises no factfinding authority in its review of an agency decision and is in the same position as this court, so we engage in the same type of record review as did the district court. Id.

¶ 14 We review statutory construction de novo. Archuletta v. Indus. Claim Appeals Office , 2016 COA 66, ¶ 11, 381 P.3d 374. While we defer to an agency's policy determinations in rulemaking proceedings, that deference does not extend to "questions of law such as the extent to which rules and regulations are supported by statutory authority." Simpson v. Cotton Creek Circles, LLC , 181 P.3d 252, 261 (Colo. 2008). Under Chevron , the first step in reviewing an agency's interpretation of a statute involves using traditional tools of statutory construction to determine whether the language of the statute is clear and whether the legislature has spoken directly to the question at issue. 467 U.S. at 842-43, 104 S.Ct. 2778. We begin interpreting a statute by looking to the plain and ordinary meaning of the language. Robinson v. Legro , 2014 CO 40, ¶ 14, 325 P.3d 1053. We "read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts." Id. (citation omitted). We presume the legislature intended the entire statute to be effective and avoid constructions that would render any part meaningless. Id. "When we interpret a comprehensive legislative scheme, we must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent." Droste v. Bd. of Cty. Comm'rs , 159 P.3d 601, 605 (Colo. 2007). If the statutory intent is plain and unambiguous, our inquiry ends there. See Chevron , 467 U.S. at 842-43, 104 S.Ct. 2778.

B. Law

¶ 15 The Commission is a creature of state statute and has only the powers conferred on it by the Act. Chase v. Colo. Oil & Gas Conservation Comm'n , 2012 COA 94, ¶ 26, 284 P.3d 161. The Act grants the Commission broad jurisdiction and empowers it to "make and enforce rules, regulations, and orders" and "to do whatever may reasonably be necessary" to carry out the provisions of the Act. Id. (quoting § 34-60-105(1) ). Pursuant to the Act, the Commission is authorized to regulate "the drilling, producing, and plugging of wells and all other operations for the production of oil and gas." § 34-60-106(2)(a).

¶ 16 Significantly here, the General Assembly declares that it is in the public interest to

[f]oster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.

§ 34-60-102(1)(a)(I), C.R.S. 2016 (emphasis added).

C. Analysis

¶ 17 The Commission interpreted section 34-60-102(1)(a)(I) as requiring a balance between oil and gas production and public health, safety, and welfare. The Commission concluded that Petitioners' suggested interpretation would "have required the Commission to readjust the balance crafted by the General Assembly under the Act, and is therefore beyond the Commission's limited grant of statutory authority."

¶ 18 Petitioners argue that the Commission's interpretation renders the phrase "in a manner consistent with protection of public health, safety, and welfare" in section 34-60-102(1)(a)(I) superfluous. Petitioners further contend that the balance sought by the General Assembly in section 34-60-102(1)(a)(I) applies to the development, production, and utilization of oil and gas resources, which must be authorized in a balanced manner-meaning without causing waste-and subject to adequate consideration of public health, safety, and environmental and wildlife impacts. Petitioners maintain that the Commission incorrectly interpreted the plain language of section 34-60-102(1)(a)(I) and, in doing so, erred in denying their petition for rulemaking.

¶ 19 We agree with Petitioners, the Commission, and the district court that the language of section 34-60-102(1)(a)(I) is clear and unambiguous, but we conclude that it unambiguously supports a conclusion different from that reached by the Commission and the district court. The Act clearly states that fostering "responsible, balanced development, production, and utilization of the natural resources" is in the public interest. § 34-60-102(1)(a)(I). Then, the Act qualifies itself by adding the key phrase "in a manner consistent with" the protection of public health and other related concerns. Id. ; see also City of Jefferson City v. Cingular Wireless, LLC , 531 F.3d 595, 611 (8th Cir. 2008) (the fact that parties disagree about what a statute means does not itself create ambiguity).

¶ 20 Contrary to the Commission's conclusion, the use, in section 34-60-102(1)(a)(I), of the term "balanced" relates to and modifies "development, production, and utilization." As used in the plain text, "balanced" is an adjective which modifies the nouns "development, production, and utilization." See § 34-60-102(1)(a)(I) ; see also Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n , 773 P.2d 1046, 1048 (Colo. 1989) (an adjective modifies a noun that follows it). The remaining provisions in section 34-60-102(1)(a)(I) are not affected by the term "balanced." Instead, the statutory language provides that fostering balanced development is in the public interest when that balanced development is completed "in a manner consistent with" public health, safety, and environmental and wildlife impacts. § 34-60-102(1)(a)(I) ; see also Gerrity Oil & Gas Corp. v. Magness , 946 P.2d 913, 925 (Colo. 1997) (recognizing that the Act's purposes are "to encourage the production of oil and gas in a manner that protects public health and safety and prevents waste").

¶ 21 Critical here is the proper interpretation of the phrase "in a manner consistent with." We agree with Petitioners that "in a manner consistent with" does not indicate a balancing test but rather a condition that must be fulfilled. This interpretation is supported by similar interpretations from our supreme court as well as the commonly understood use of the phrase as evidenced by its general use in statutes and judicial opinions.

¶ 22 The Colorado Supreme Court, when asked to interpret certain provisions of the Local Government Land Use Control Enabling Act of 1974, § 29-20-102, C.R.S. 2016, explicitly and clearly interpreted the phrase "in a manner consistent with" as meaning "subject to." See Droste , 159 P.3d at 606. There, the court interpreted the statutory phrase "in a manner consistent with constitutional rights" as meaning "subject to the constitutional rights of the property owner[.]" Id. This interpretation supports our conclusion that the language of the Act does not create a balancing test weighing safety and public health interests against development of oil and gas resources, but rather, the Act indicates that fostering balanced, nonwasteful development is in the public interest when that development is completed subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources. See § 34-60-102(1)(a)(I).

¶ 23 Interpreting the phrase "in a manner consistent with" as a balancing test disregards the plain meaning of the phrase. The phrase denotes more than a mere balancing. Cases in Colorado are replete with instances where the phrase is used to denote "subject to" rather than "balanced with." See, e.g. , People v. Baez-Lopez , 2014 CO 26, ¶ 28, 322 P.3d 924 ("[W]e conclude that the recordings were physically sealed and preserved in a manner consistent with section 16-15-102(8)(a)."); In re Great Outdoors Colo. Tr. Fund , 913 P.2d 533, 539 (Colo. 1996) ("In enacting legislation, the General Assembly is authorized to resolve ambiguities in constitutional amendments in a manner consistent with the terms and underlying purposes of the constitutional provisions."); Stan Clauson Assocs., Inc. v. Coleman Bros. Constr., LLC , 2013 COA 7, ¶ 10, 297 P.3d 1042 ("Professional standards of care reflect the policy that members of professions must do their work not just reasonably well, but rather 'in a manner consistent with members of the profession in good standing.' " (quoting Command Commc'ns, Inc. v. Fritz Cos. , 36 P.3d 182, 189 (Colo. App. 2001) )).

¶ 24 The phrase is often used in the dispositional language of opinions from this court and other appellate courts. Divisions of this court, when remanding a case to a district court for further proceedings, often use language similar to "the case is remanded for proceedings in a manner consistent with this opinion." See Vashone-Caruso v. Suthers , 29 P.3d 339, 345 (Colo. App. 2001) ; 1st Am. Sav. Bank v. Boulder Cty. Bd. of Comm'rs , 888 P.2d 360, 363 (Colo. App. 1994). The intention of the phrase "in a manner consistent with" in these settings is not to instruct a court on remand to take action in a manner "balanced with" the opinion from the appellate court, but instead instructs that the court on remand must take action subject to the appellate opinion.

¶ 25 As used in the Act, the phrase qualifies the preceding provision, promoting the development of oil and gas. See § 34-60-102(1)(a)(I). We therefore conclude that the Commission erred in interpreting section 34-60-102(1)(a)(I) as requiring a balance between development and public health, safety, and welfare. The plain meaning of the statutory language indicates that fostering balanced, nonwasteful development is in the public interest when that development is completed subject to the protection of public health, safety, and welfare. See § 34-60-102(1)(a)(I) ; see also Gerrity Oil & Gas Corp. , 946 P.2d at 925.

¶ 26 Our interpretation also gives meaning to all of the words in the statute, whereas the Commission's interpretation effectively disregarded the phrase "in a manner consistent with." See Legro , ¶ 14 (we avoid statutory constructions that would render any part of a statute meaningless).

¶ 27 We disagree with the Commission and its amici that other sections of the Act support a contrary interpretation. The Commission argues that the language of section 34-60-106(2)(d) -stating that the Commission has the authority to regulate "[o]il and gas operations so as to prevent and mitigate significant adverse environmental impacts ... to the extent necessary to protect public health, safety, and welfare ... taking into consideration cost-effectiveness and technical feasibility[ ]"-demonstrates that the Act calls for the balance that the Commission read into the language of section 34-60-102. However, section 34-60-106(2)(d) supports the conclusion that the Commission has authority to promulgate rules regulating oil and gas development in the interest of protecting public health, safety, and welfare. See § 34-60-106(2)(d). The General Assembly's use of the phrase "to the extent necessary to protect public health, safety, and welfare," when describing the purpose of regulation, evidences a similar intent to elevate the importance of public health, safety, and welfare above a mere balancing-the same as what the General Assembly wrote into section 34-60-102. Section 34-60-106(2)(d) in no way conflicts with our interpretation of section 34-60-102.

¶ 28 Our conclusion is further supported by the evolution of the General Assembly's regulation of the oil and gas industry in Colorado and its numerous alterations to the language of the Act. Originally, the Act contained no qualifying language regarding responsible, balanced development, or the protection of public health and the environment. See Ch. 208, sec. 10, § 100-6-22, 1955 Colo. Sess. Laws 657. For decades, the Act read: "It is hereby declared to be in the public interest to foster, encourage and promote the development, production and utilization of the natural resources of oil and gas in the state of Colorado[.]" Id.

¶ 29 In 1994 the General Assembly added the language "in a manner consistent with protection of public health, safety, and welfare[.]" Ch. 317, sec. 2, § 34-60-102, 1994 Colo. Sess. Laws 1978. Then, in 2007, the General Assembly completed the Act as it reads today by amending and adding language so that the statute read: "It is declared to be in the public interest to foster ... responsible, balanced [resource] development[.]" Ch. 320, sec. 1, § 34-60-102, 2007 Colo. Sess. Laws 1357.

¶ 30 These amendments reflect the General Assembly's general movement away from unfettered oil and gas production and incorporation of public health, safety, and welfare as a check on that development. This understanding supports our conclusion that the Act was not intended to require that a balancing test be applied when agencies charged with carrying out and enforcing the intent behind the Act, like the Commission, make decisions on regulation, including a decision denying a petition for a proposed rule. Rather, the clear language of the Act-supported by the Act's legislative evolution and the Commission's own enforcement criteria-mandates that the development of oil and gas in Colorado be regulated subject to the protection of public health, safety, and welfare, including protection of the environment and wildlife resources. See Oil & Gas Conservation Comm'n, Colorado Oil and Gas Conservation Commission Enforcement Guidance and Penalty Policy 1 (Jan. 2015), https://perma.cc/39RU-99MF ("In Colorado ... the development of ... natural resources must be consistent with protection of public health, safety, and welfare, including the environment and wildlife resources, at all times[.]"); see also § 34-60-106(2)(d).

¶ 31 Because we conclude that the district court and the Commission erroneously interpreted the Act, we reverse. Nixon v. City & Cty. of Denver , 2014 COA 172, ¶ 12, 343 P.3d 1051 (an agency abuses its discretion when it erroneously interprets the law). The record indicates that the Commission based its denial of the petition for rulemaking primarily on its determination that it lacked authority to implement Petitioners' proposed rule. The administrative record does not contain sufficient findings of fact for us to affirm the Commission's decision on alternative grounds-such as the Commission's statement that "there are other Commission priorities that must take precedence over the proposed rulemaking at this time," or the Commission's reference to the proposed rule's impermissible delegation of Commission duties to a third party (an issue not addressed by the district court or briefed on appeal to this court). See Chase , ¶ 59 (remand proper when record contains insufficient basis for agency conclusions).

¶ 32 Our decision does not address the merits of whether the Commission should adopt Petitioners' proposed rule. Our review is limited to the Commission's rejection of Petitioners' proposed rule based on the Commission's determination that such action would exceed its statutory authority under the Act-which is legally incorrect. See, e.g. , United States v. Allegheny-Ludlum Steel Corp. , 406 U.S. 742, 749, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972) (Courts do not "inquire into the wisdom of the regulations" that a commission promulgates but, instead, inquire into "the soundness of the reasoning by which [a] [c]ommission reaches its conclusions.").

¶ 33 The Commission argues that under Massachusetts v. Environmental Protection Agency , 549 U.S. 497, 527-28, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), judicial review of denials of rulemaking petitions is limited and deferential. True, but a denial of a rulemaking petition remains properly the subject of judicial review. See id. ; Am. Horse Prot. Ass'n, Inc. v. Lyng , 812 F.2d 1, 4 (D.C. Cir. 1987) (agency refusals to institute rulemaking proceedings are subject to judicial review). Unlike in Massachusetts v. Environmental Protection Agency , where the Supreme Court concluded, on the merits, that the Environmental Protection Agency's refusal to promulgate a proposed rule was an abuse of discretion, 549 U.S. at 528, 534, 127 S.Ct. 1438, our decision does not reach the merits of whether the Commission abused its discretion in refusing to promulgate Petitioners' proposed rule. Instead, our decision only addresses the Commission's interpretation of its authority under the Act as a part of its denial of the petition for rulemaking, which we conclude is incorrect. See Allegheny-Ludlum , 406 U.S. at 749, 92 S.Ct. 1941.

III. Constitutional Contentions

¶ 34 Petitioners contend that the Commission's interpretation of the Act is an unconstitutional infringement of Petitioners' natural rights to enjoy their lives and liberties, protect their property, and obtain their safety and happiness. Colo. Const. art. II, § 3.

¶ 35 Because we conclude that the Commission erred in its interpretation of the Act and reverse, we need not address Petitioners' constitutional arguments. See City of Florence v. Pepper , 145 P.3d 654, 660 (Colo. 2006) ("Where possible, we avoid a constitutional analysis in favor of a statutory resolution."); Club Matrix, LLC v. Nassi , 284 P.3d 93, 99 (Colo. App. 2011) (we need not address additional arguments rendered moot by our ultimate disposition).

IV. Conclusion

¶ 36 The Commission's order denying Petitioners' petition for rulemaking and the district court's order on appeal are reversed, and the case is remanded to the district court to return it to the Commission for further proceedings consistent with this opinion.

Vogt , J., concurs

Booras, J., dissents

JUDGE BOORAS, dissenting.

¶ 37 I disagree with the majority's interpretation of the phrase "in a manner consistent with" and its reliance on a legislative declaration to find a mandatory duty. Therefore, I respectfully dissent from the majority's conclusion that the statutory scheme of the Oil and Gas Conservation Act (the Act), §§ 34-60-101 to - 130, C.R.S. 2016, requires protection of public health, safety, and welfare as a determinative factor, instead of requiring balancing between those considerations and oil and gas production.

¶ 38 The Colorado Oil and Gas Commission (the Commission) discerns that its role under the Act is to balance oil and gas development with other public interests. "Courts may only disregard an agency's interpretation of a statute it is charged with enforcing when that interpretation is inconsistent with the clear language of the statute or the agency has exceeded the scope of the statute." Huber v. Kenna , 205 P.3d 1158, 1164 (Colo. 2009) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).

¶ 39 The majority concludes that the Commission's interpretation of the Act is inconsistent with the clear language of the Act, in particular section 34-60-102(1)(a)(I), C.R.S. 2016, which provides that it is in the public interest to:

Foster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.

¶ 40 In order to reach this conclusion, the majority examines the use of the phrase "in a manner consistent with" in a number of unrelated contexts, largely relying on remand language from opinions, and surmises that it does not indicate "balancing," but rather "a condition that must be fulfilled" or "subject to." But Webster's Third New International Dictionary defines "consistent with" as "to be consistent, harmonious, or in accordance," and "consistently" as "compatibly," "congruously," "in harmony with," and "in a persistent or even manner." Webster's Third New International Dictionary Unabridged 484 (2002). Contrary to the majority's supposition, these definitions signify a balancing process.

¶ 41 Significantly, the language on which the majority primarily relies to support its view that protection of public health, safety, and welfare is a mandatory precondition is located in the legislative declaration to the Act. Even when codified, a legislative declaration is primarily "an explicit or formal statement or announcement about the legislation" that "indicates the problem the General Assembly is trying to address." Lester v. Career Bldg. Acad. , 2014 COA 88, ¶ 27, 338 P.3d 1054 (citation omitted). Generally, a legislative declaration is used only to interpret a statute that is ambiguous; it cannot override the language of a statute. See § 2-4-203(1)(g), C.R.S. 2016 (identifying the legislative declaration or purpose as an aid in construing ambiguous statutes); People in Interest of T.B. , 2016 COA 151M, ¶¶ 41, 42, as modified on denial of reh'g (Dec. 29, 2016) (noting that courts generally do not consider a legislative declaration where a statute is unambiguous and that a legislative declaration cannot override a statute's language); see also People v. Enea , 665 P.2d 1026, 1029 (Colo. 1983) (rejecting the defendant's attempt to add an element to the sexual exploitation of a child statute based on language in the legislative declaration).

¶ 42 The actual authority of the Commission to regulate oil and gas is set out in section 34-60-106(2)(d), C.R.S. 2016:

The commission has the authority to regulate ... [o]il and gas operations so as to prevent and mitigate significant adverse environmental impacts on any air, water, soil, or biological resource resulting from oil and gas operations to the extent necessary to protect public health, safety, and welfare, including protection of the environment and wildlife resources, taking into consideration cost-effectiveness and technical feasibility.

(Emphasis added.)

¶ 43 The majority concludes that this section also supports its view, construing the use of "to the extent necessary" as evidencing "a similar intent to elevate the importance of public health, safety, and welfare above a mere balancing." However, the statute, read as a whole, directs the Commission to "prevent and mitigate significant adverse environmental impacts," and also to take into consideration "cost-effectiveness and technical feasibility." There would be no reason to consider cost-effectiveness and technical feasibility if protection of the public health, safety, and welfare was, by itself, a determinative consideration.

¶ 44 Because the Commission is required by statute to regulate oil and gas operations by balancing the relevant considerations, the Commission properly denied Petitioners' petition for rulemaking, which would have required the Commission to view public health and environmental considerations as being determinative. The majority characterizes this denial as a "refusal to engage in the rulemaking process." The majority may be focusing on the use of the word "jurisdiction" in the Commission's order. However, a careful reading of the order reveals that the Commission deemed the proposed rulemaking to be outside its statutory authority, not outside of its jurisdiction.

¶ 45 Even Petitioners conceded in the district court that the Commission "did not claim that it doesn't have the jurisdiction to promulgate a rule," but rather that it did not have the authority under the statute to promulgate the rule Petitioners were requesting-to view health and environmental concerns as overriding. Indeed, as discussed above, the Commission's interpretation that the statute requires a balancing of interests is correct.

¶ 46 The Commission has consistently recognized its duty to balance health and environmental concerns with the promotion of oil and gas development. Our supreme court noted in City of Fort Collins v. Colorado Oil & Gas Association , 2016 CO 28, ¶ 29, 369 P.3d 586, that, consistent with its legislative authorization, "the Commission has promulgated an exhaustive set of rules and regulations 'to prevent waste and to conserve oil and gas in the State of Colorado while protecting public health, safety, and welfare.' Dep't of Nat. Res. Reg. 201, 2 [Code Colo.] Regs. 404-1 (2015)."

¶ 47 For these reasons, I would affirm the district court's order upholding the Commission's order denying Petitioners' petition for rulemaking. In concluding that the district court order should be affirmed, I would also reject the Petitioners' constitutional arguments based on the public trust doctrine and that the Commission's interpretation of the Act is an unconstitutional infringement of Petitioners' natural rights to enjoy their lives and liberties, protect their property, and obtain their safety and happiness. The Colorado Supreme Court declined to apply the public trust doctrine in City of Longmont v. Colorado Oil & Gas Association , 2016 CO 29, ¶ 62, 369 P.3d 573.

      The Colorado Department of Public Health and Environment filed an amicus brief in support of the Commission. Colorado Chapter Global Catholic Climate Movement, 350 Colorado, Eco-Justice Ministries, Denver Catholic Network and Global Climate Movement, The Rocky Mountain Peace and Justice Center, Wall of Women Colorado, Colorado People's Alliance, Citizens for a Healthy Fort Collins, Transition Fort Collins, The Fort Collins Sustainability Group, Citizens for a Healthy Community, Be the Change, The Colorado Coalition for a Livable Climate, Clean Energy Action, The Climate Culture Collaborative, Co-Op Members Alliance, The Community for Sustainable Energy, Eco Elders, Vibrant Planet, EnergyShouldBe.org, Frack Free Colorado, Lakewood Renewable Energy Lakewood, North Metro Neighbors for Safe Energy, and Protect Our Loveland joined and filed an amici brief in support of Petitioners. Our Health, Our Future, Our Longmont; Sierra Club; Earthworks; and Food & Water Watch joined and filed a separate amici brief in support of Petitioners.

      In 2016, in City of Longmont v. Colorado Oil and Gas Association , 2016 CO 29, 369 P.3d 573, the Colorado Supreme Court rejected the adoption of the public trust doctrine in Colorado in its more general rejection of a local moratorium on fracking which the court concluded was preempted by state law. Id. at ¶ 62. Petitioners initially urged the Commission to adopt the public trust doctrine in their petition for rulemaking but do not reassert their public trust doctrine argument on appeal, nor do they contest the Commission's conclusion as it narrowly relates to the public trust doctrine in Colorado. We therefore need not address the arguments of the Commission and Intervenors that Petitioners' justifications for the proposed rule, under the public trust doctrine, were not valid. See Giuliani v. Jefferson Cty. Bd. of Cty. Comm'rs , 2012 COA 190, ¶ 52, 303 P.3d 131 (claim raised in complaint but not further litigated was abandoned).

      By relying on the memo, the Commission waived any attorney-client privilege in the memo.

      This is demonstrated by the historical importance of the General Assembly qualifying "development, production, and utilization" with the adjective "balanced." As further explained below, in our discussion of the Act's legislative evolution, the General Assembly sought balanced development, production, and utilization to curb unnecessary waste and to preserve the correlative rights of other potential users of natural resources such as oil and gas.

      Moreover, the Colorado Revised Statutes contain many examples of instances where the General Assembly has articulated clear intent that a balancing test be employed, and such language is not contained in the Act. See, e.g. , § 24-91-101(2), C.R.S. 2016 ("[T]here is a substantial statewide interest in ensuring that the policy underlying the efficient expenditure of public moneys is balanced with the policy of fostering a healthy and viable construction industry."); § 6-1-902(1)(c), C.R.S. 2016 ("Individuals' privacy rights and commercial freedom of speech should be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices[.]"). Had the General Assembly intended for a balancing test to be applied in section 34-60-102(1)(a)(I), C.R.S. 2016, it would have explicitly said so. See Showpiece Homes Corp. v. Assurance Co. of Am. , 38 P.3d 47, 57 (Colo. 2001).

      The statutory language "to the extent necessary" evidences the General Assembly's intent to create a mandatory condition rather than a factor in a general balancing inquiry. See, e.g. , Calderon v. Am. Family Mut. Ins. Co. , 2016 CO 72, ¶ 53, 383 P.3d 676 (insurance statutes intended that benefit be provided "to the extent necessary" for full compensation) (citing Kral v. Am. Hardware Mut. Ins. Co. , 784 P.2d 759, 765 (Colo. 1989) ); People in Interest of G.S. , 820 P.2d 1178, 1180 (Colo. App. 1991) (a guardian ad litem has the affirmative duty to participate in proceedings "to the extent necessary" to represent the child).

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2016.

      The use of a dictionary is appropriate to interpret undefined statutory terms. Bontrager v. La Plata Elec. Ass'n Inc. , 68 P.3d 555, 559 (Colo. App. 2003) (citing 2A Norman J. Singer, Sutherland on Statutory Construction § 47.27 (6th ed. 2000)).

      The Commission's order primarily used the word "authority." However, the order used the word "jurisdiction" referring to a memo that had been prepared by the Colorado Attorney General's office regarding the Colorado Department of Public Health and Environment's expertise in air quality. See People v. Sherrod , 204 P.3d 466, 470 (Colo. 2009) (noting that there is sometimes "analytical confusion" between the terms "authority" and "jurisdiction").


source: Caselaw Access Project

author: Opinion by JUDGE BERNARD JUDGE WEBB, concurring in part and dissenting in part.

license: Public Domain

text:
    Della GALLEGOS, Plaintiff-Appellee and Cross-Appellant, v. Patric J. LEHOUILLIER and LeHouillier & Associates, P.C., Defendants-Appellants and Cross-Appellees.
    Court of Appeals No. 15CA0724
    Colorado Court of Appeals, Division III.
    Announced March 23, 2017
    Anderson Hemmat McQuinn, LLC, Julie E. Anderson, Chad P. Hemmat, Ethan A. McQuinn, Jason G. Alleman, Greenwood Village, Colorado, for Plaintiff-Appellee.
    Hall & Evans, L.L.C., Malcom S. Mead, John E. Bolmer II, Andrew P. Reitman, Denver, Colorado, for Defendants-Appellants.
   Opinion by JUDGE BERNARD

¶ 1 A legal malpractice case is based on a claim that an attorney breached his or her professional duty of care in a way that proximately injured a client. See Hopp & Flesch, LLC v. Backstreet , 123 P.3d 1176, 1183 (Colo. 2005). Sometimes, such as in this case, the client claims that the attorney's breach of duty denied the client success in a lawsuit against the defendant. (For the purposes of clarity, we will call such a lawsuit the "underlying case.") To prevail in this type of malpractice case, the client must prove that the attorney would have been successful in the underlying case by, for example, winning a favorable judgment against a defendant. Bebo Constr. Co. v. Mattox & O'Brien, P.C. , 990 P.2d 78, 83 (Colo. 1999). Lawyers call this requirement proving the "case within a case." Id. (citation omitted).

¶ 2 It is clear to us that part of the case within a case may include resolving the question of whether any judgment that the attorney might have won in the underlying case would have been "collectible." Colorado law provides that, if the defendant in the underlying case was insolvent and the client would not have been able to collect on the judgment, then the client cannot prevail in the malpractice case against the attorney.

¶ 3 This appeal raises the issue of who bears the burden of proving that the judgment would have been collectible. Must the client prove that the judgment was collectible as part of establishing a prima facie case? Or must the attorney, as an affirmative defense, prove that the judgment was not collectible? See Welsch v. Smith , 113 P.3d 1284, 1289 (Colo. App. 2005) (In a civil case, "[o]nce a prima facie case is established, the opposing party ... carries the burden of establishing any affirmative defenses."). We conclude that the attorney must raise the issue of collectibility as an affirmative defense, which means that he or she also bears the burden of proving that the judgment was not collectible.

¶ 4 In this case, the plaintiff, Della Gallegos, sued defendants Patric J. LeHouillier, an attorney, and his law firm, LeHouillier & Associates, P.C., for legal malpractice. (We shall refer to the attorney and the law firm together as "Mr. LeHouillier" because their interests are congruent in this appeal.) The jury found that Mr. LeHouillier had negligently breached his duty of professional care when handling an underlying case for Ms. Gallegos.

¶ 5 As part of the case within a case, the trial court decided that Ms. Gallegos bore the burden of proving that any judgment in the underlying case-a medical malpractice case against a radiologist named Dr. Steven Hughes-was collectible. But our review of the record convinces us that there is no evidence to show that the judgment was collectible. So we must reverse the judgment.

¶ 6 But that does not mean that we must enter judgment in favor of Mr. LeHouillier. We also conclude that the trial court erred when it placed the burden of collectibility on Ms. Gallegos because it should have placed the burden on Mr. LeHouillier to prove that a judgment against Dr. Hughes was not collectible. So we remand this case for a new trial. We additionally instruct the trial court that, at any new trial, Mr. LeHouillier must (1) raise the issue of collectibility as an affirmative defense; and (2) bear the burden of proving that any judgment against Dr. Hughes would not have been collectible.

I. Background

¶ 7 Ms. Gallegos's malpractice case against Dr. Hughes stems from a 2006 MRI that he performed on Ms. Gallegos's brain. Ms. Gallegos claimed that Dr. Hughes overlooked a clearly visible meningioma. (A meningioma is a tumor that forms on the membranes that cover the brain or on the spinal cord inside the skull. Although meningiomas are frequently benign, meaning that they are not cancerous, they can nonetheless cause serious problems, or even death, as they grow.)

¶ 8 Three years later, a different doctor spotted the meningioma during another MRI. By this time, it had grown three times larger than it had been in 2006.

¶ 9 Ms. Gallegos could have undergone noninvasive radiosurgery to treat the meningioma if Dr. Hughes had diagnosed it in 2006. But, by 2009, this treatment was no longer a viable option. So surgeons performed three craniotomies, or surgical openings, of Ms. Gallegos's skull to remove as much of the tumor as possible.

¶ 10 Ms. Gallegos retained Mr. LeHouillier to sue Dr. Hughes. Mr. LeHouillier investigated the case, but he decided in 2010 that he would not proceed with the case because it did not make "dollars and cents sense."

¶ 11 Mr. LeHouillier claimed that he had informed Ms. Gallegos of his decision in a meeting, adding that he would no longer represent her. But he did not keep any written records to memorialize what had been discussed at the meeting, and he did not send Ms. Gallegos a letter to inform her that he was no longer her attorney.

¶ 12 The statute of limitations ran on any medical malpractice case that Ms. Gallegos might have brought against Dr. Hughes.

¶ 13 Ms. Gallegos then filed this legal malpractice lawsuit against Mr. LeHouillier. Among other things, the jury found that Dr. Hughes had been negligent, that Mr. LeHouillier had been negligent, that Ms. Gallegos had been partly negligent, but less negligent than either Dr. Hughes or Mr. LeHouillier, and that Ms. Gallegos was entitled to an award of damages from Mr. LeHouillier.

¶ 14 Turning to the issue of collectibility, during the trial and after Ms. Gallegos had rested her case-in-chief, Mr. LeHouillier moved for a directed verdict. He asserted that Ms. Gallegos bore the burden of proving that any judgment against Dr. Hughes would have been collectible, and that she had not carried her burden. The trial court agreed that Ms. Gallegos bore the burden of proving that the judgment would have been collectible, but it ruled that Ms. Gallegos had provided sufficient evidence to prove that point.

¶ 15 After the trial, Mr. LeHouillier raised the same point in a motion for judgment notwithstanding the verdict (JNOV). The court made the same ruling.

II. There Was No Evidence That the Judgment Was Collectible

¶ 16 Mr. LeHouillier contends that we must reverse the judgment because collectibility is an element that a plaintiff must prove in a legal malpractice case, and Ms. Gallegos did not prove that any judgment that she would have received in the underlying case against Dr. Hughes would have been collectible.

¶ 17 Ms. Gallegos counters that the question of collectibility is an affirmative defense, and that the court should have required Mr. LeHouillier to prove that the judgment was not collectible. Ms. Gallegos does not dispute that, if a 1927 Colorado Supreme Court case is read as she suggests, a new trial would be appropriate. Even though the trial court wrongly assigned the burden to her, she continues, she shouldered the burden by providing sufficient proof that the judgment was collectible.

¶ 18 As we have indicated above, we agree with Mr. LeHouillier that the record does not contain sufficient evidence that the judgment was collectible. But we agree with Ms. Gallegos that (1) the trial court erroneously placed the burden on her to prove that fact; and (2) the court should have required Mr. LeHouillier to (a) raise the question of collectibility as an affirmative defense; and (b) prove that any judgment that Ms. Gallegos would have received would not have been collectible.

A. Standard of Review

¶ 19 We review de novo the grant or denial of a motion for directed verdict or JNOV. See Vaccaro v. Am. Family Ins. Grp. , 2012 COA 9M, ¶ 40, 275 P.3d 750. We view the evidence "in the light most favorable to the party against whom the motion [was] directed," id. at ¶ 45, and "indulge every reasonable inference that can be drawn from the evidence in that party's favor," Hall v. Frankel , 190 P.3d 852, 862 (Colo. App. 2008).

B. Evidence of Collectibility

¶ 20 Ms. Gallegos contends that she provided sufficient evidence to support an "inference" that Dr. Hughes carried professional liability insurance, which would mean that the judgment would have been collectible. She points to the following facts in the trial record that establish this inference:

• Mr. LeHouillier wrote Dr. Hughes a letter in which he explained that he was representing Ms. Gallegos in a potential medical malpractice case against the doctor. The letter encouraged Dr. Hughes to "contact [his] professional liability insurer." According to Ms. Gallegos, after Mr. LeHouillier sent this letter, "neither Dr. Hughes nor any other person ever informed [Mr.] LeHouillier that Dr. Hughes lacked insurance...."
• When Dr. Hughes did not diagnose Ms. Gallegos's meningioma in 2006, he was a licensed doctor who was practicing medicine at a hospital. Section 13-64-301(1)(a.5)(I), C.R.S. 2016, required all practicing doctors to maintain professional liability insurance covering each incident up to one million dollars.

¶ 21 We conclude, for the following reasons, that this evidence did not create the inference that Ms. Gallegos suggests. Turning first to the letter, although Dr. Hughes may not have informed Mr. LeHouillier that he did not have liability coverage, he did not inform Mr. LeHouillier that he possessed liability coverage, either. Indeed, Dr. Hughes said nothing at all. He did not respond to the letter in any way; he did not provide any other information to Mr. LeHouillier or to Ms. Gallegos; and Ms. Gallegos did not offer any proof that Dr. Hughes had even received the letter. Like Godot, Dr. Hughes's appearance in the case may have been much anticipated, but it never came to pass.

¶ 22 Ms. Gallegos's reliance on section 13-64-301(1)(a.5)(I) fares no better. True enough, the record supports the conclusion that Dr. Hughes was a doctor who was practicing medicine when he performed the MRI on Ms. Gallegos, so the statute may well have applied to him. But we cannot find anywhere in the record-and Ms. Gallegos does not provide us with any direction to a specific place-where the jury learned about section 13-64-301(1)(a.5)(I). And we do not know whether Dr. Hughes had complied with the statute by maintaining liability insurance. We cannot infer that the jury reached its verdict based on the requirements of a statute that it never heard anything about.

¶ 23 We recognize that we must view the evidence in the light most favorable to Ms. Gallegos and draw every reasonable inference in her favor. See Hall , 190 P.3d at 862. But the record contains no evidence on collectibility at all. So we conclude that the "record is devoid of any proof" that any judgment against Dr. Hughes in the underlying case would have been collectible. Green v. Castle Concrete Co. , 181 Colo. 309, 314, 509 P.2d 588, 591 (1973).

¶ 24 But our job is not yet over. In other situations, we would simply enter judgment in Mr. LeHouillier's favor because Ms. Gallegos did not satisfy her burden of proof. But, in this case, we must next decide whether the trial court erred when it allocated that burden of proof by requiring Ms. Gallegos to prove that any judgment against Dr. Hughes in the underlying case would have been collectible.

III. The Attorney Bears the Burden of Proving That a Judgment Would Not Be Collectible as an Affirmative Defense in a Legal Malpractice Case

A. The Strange Case of Lawson v. Sigfrid

¶ 25 We encountered a mystery on the road to answering the central question in this case. The mystery concerns a ninety-year-old, one-and-one-quarter-page Colorado Supreme Court case, Lawson v. Sigfrid , 83 Colo. 116, 262 P. 1018 (1927).

¶ 26 Courts from other jurisdictions and some commentators have cited Lawson for the proposition that a plaintiff in a legal malpractice case bears the burden of proving that any judgment in the underlying case would have been collectible. See Beeck v. Aquaslide 'N' Dive Corp. , 350 N.W.2d 149, 160 (Iowa 1984) ; Paterek v. Petersen & Ibold , 118 Ohio St.3d 503, 890 N.E.2d 316, 321 (2008) ; Kituskie v. Corbman , 552 Pa. 275, 714 A.2d 1027, 1031 n.6 (1998) ; Taylor Oil Co. v. Weisensee , 334 N.W.2d 27, 29 n.2 (S.D. 1983) ; see also, e.g. , 4 Ronald E. Mallen, Legal Malpractice § 33:32, at 747 n.5 (2017 ed.); 7 John W. Grund, J. Kent Miller & David S. Werber, Colorado Personal Injury Practice-Torts and Insurance § 22:22, at 540 n.7 (3d ed. 2012); Elisa Recht Marlin, Recent Decision, Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027 (1998), 37 Duq. L. Rev. 521, 530, 530 n.77 (1999).

¶ 27 But, after studying Lawson carefully, we conclude that it does not stand for the entire proposition for which it has been cited. Although we agree that Lawson held that the collectibility of a judgment in the underlying case is pertinent to a legal malpractice case, we respectfully disagree with those who think that Lawson allocated the burden of proving collectibility to the plaintiff.

¶ 28 We begin our analysis by summarizing Lawson 's facts. The plaintiff hired a lawyer in 1919 to sue Bessie Kennedy for an unpaid debt. Lawson , 83 Colo. at 116-17, 262 P. at 1018. The case lingered until 1923, when the plaintiff and the lawyer discovered that the trial court had dismissed the case for failure to prosecute it. Id. at 117, 262 P. at 1018.

¶ 29 The plaintiff then sued the lawyer for "neglect of professional duty." Id. The trial court granted the lawyer's motion for a directed verdict. Id. In doing so, it decided that the plaintiff had to prove three things:

• the lawyer had been negligent;
• the plaintiff had "a good cause of action" against Ms. Kennedy; and
• if the plaintiff had obtained a judgment against Ms. Kennedy, the judgment "could have been executed."

Id. The trial court then found that the plaintiff's proof that the judgment could have been executed "had failed." Id.

¶ 30 So, at this point in Lawson , we have learned that the trial court had required the plaintiff to prove that the debt was collectible. See id. But what did the supreme court do?

¶ 31 The court analyzed the record. As is pertinent to our analysis, it stated that it was "clear" that (1) the lawyer "was not negligent"; and, (2) shortly before the plaintiff had hired the lawyer, Ms. Kennedy had been "insolvent." Id.

¶ 32 The court described the plaintiff's contentions. The plaintiff raised three contentions, but only two of them are relevant to our discussion. The plaintiff asserted that (1) the burden was on the defendant lawyer to prove that Ms. Kennedy had been insolvent; and (2) the plaintiff was entitled to recover his costs and expenses from the lawyer. Id. at 118, 262 P. at 1018.

¶ 33 The court only used two citations to legal authority in the opinion, and only one of them was even casually relevant to the issue of collectibility. The relevant citation is to a legal treatise, 2 Charles Frederick Chamberlayne, Treatise on the Modern Law of Evidence § 1047, at 1244 (1911). But this section of the treatise only stated that, once a person was proved to be insolvent, there was an inference that such insolvency would continue for a reasonable time, subject to contrary proof. (The second, irrelevant, citation is to a section of the legal encyclopedia Ruling Case Law , 8 R.C.L. 426, discussing when nominal damages were available.)

¶ 34 The court then resolved the two contentions. The court first held that the plaintiff's evidence had shown that Ms. Kennedy had been insolvent and that her insolvent status was "presumed to have continued until the contrary appear[ed]." Lawson , 83 Colo. at 118, 262 P. at 1018. The court then concluded that the plaintiff could not have "lost" any of his costs or expenses as a result of the lawyer's negligence because Ms. Kennedy was insolvent. Id. at 118, 262 P. at 1019.

¶ 35 Based on this analysis, we derive two observations about what Lawson means.

1. We know what the supreme court did. The court's resolution of the plaintiff's second contention established that the question of collectibility matters in a legal malpractice case: Because Ms. Kennedy was insolvent, the lawyer's negligence did not cause the plaintiff to lose his costs and expenses.
2. We also know what the supreme court did not do. The court did not hold that a plaintiff in a legal malpractice suit bears the burden of proving that any judgment that he or she could have obtained in the underlying case would have been collectible. To be more accurate, it did not allocate the burden of proving collectibility at all.

¶ 36 Fleshing out our second observation, it is true that (1) the supreme court recognized that the trial court had reached the conclusion that the plaintiff bore such a burden; (2) the evidence had proved that Ms. Kennedy had been insolvent shortly before the plaintiff had hired the defendant lawyer; and (3) the plaintiff had contended on appeal that the burden was on the defendant lawyer to show that Ms. Kennedy had been insolvent. Id. at 117-18, 262 P. at 1018-19. But the court did not then hold that the trial court had properly allocated the burden of proving Ms. Kennedy's insolvency to the plaintiff.

¶ 37 The court instead concluded that the plaintiff had proved that Ms. Kennedy had been insolvent. Id. at 118, 262 P. at 1018. In other words, the supreme court did not have to reach the issue whether the trial court had properly allocated the burden of proof. It merely recognized that, after the trial court had allocated the burden of proving Ms. Kennedy's solvency on the plaintiff, the plaintiff had proved the opposite. See id. So, once the plaintiff's proof had shown that the debt was not collectible, the supreme court did not need to decide anything else. Lawson did nothing more than hold that the trial court's conclusions about the evidence were supported by the record. See id.

¶ 38 A pair of commentators agrees with our analysis of Lawson . See Michael P. Cross & Nicole M. Quintana, Your Place or Mine?: The Burden of Proving Collectibility of an Underlying Judgment in a Legal Malpractice Action , 91 Denv. U. L. Rev. Online 53, 54 (2014) (explaining that Lawson "established the relevancy of the question of whether an underlying judgment is collectible in a legal malpractice action," but that it did not allocate the burden of proof on this point).

B. Colorado Cases After Lawson

¶ 39 Mr. LeHouillier does not cite, and we have not found, any Colorado Supreme Court case that has held that the plaintiff bears the burden of proving collectibility as part of the prima facie case in a legal malpractice claim.

¶ 40 In the ninety years since the supreme court decided Lawson , the supreme court has never cited it. But the court has decided several legal malpractice cases in that time that have discussed the "case within a case" component of proximate cause. The most that any of them says is that a plaintiff "must demonstrate that the claim underlying the malpractice action should have been successful if the attorney had acted in accordance with his or her duties." Bebo , 990 P.2d at 83 ; accord Gibbons v. Ludlow , 2013 CO 49, ¶ 16, 304 P.3d 239 (transactional broker case applying test from Bebo ); Rantz v. Kaufman , 109 P.3d 132, 136 (Colo. 2005) (explaining that the client must show the underlying case would have been successful but for counsel's malpractice).

¶ 41 The court of appeals has only cited Lawson once in a published case. In Morris v. Geer , 720 P.2d 994, 996 (Colo. App. 1986), a legal malpractice case arising out of a divorce, a wife alleged that her divorce attorney had been negligent when he negotiated a property settlement and when he investigated the husband's fraud in hiding marital assets from the wife. The division cited Lawson as support for the proposition that the wife, when suing the attorney, was required to prove that "because of husband's fraud her motion to reopen the dissolution decree could have been successfully prosecuted, and that she would have received a higher property distribution as a result." Id. at 998.

¶ 42 We do not think that the division cited Lawson for the proposition that the wife had to prove that she would have been able to collect the increased property distribution. Rather, in the context of the case, we think that the division held that the wife would have to prove the court would have awarded her more assets in the property distribution. Indeed, the division did not use the term "collectibility" in the opinion at all.

¶ 43 Our conclusion is reinforced by the Morris division's citation of two other cases immediately after it cited Lawson : Coon v. Ginsberg , 32 Colo.App. 206, 509 P.2d 1293 (1973), and Rosebud Mining & Milling Co. v. Hughes , 21 Colo.App. 247, 121 P. 674 (1912). Both of those cases merely observed that, to prove a legal malpractice claim, the plaintiff would have to show that he or she would have been successful in the underlying case. Coon held that the plaintiff had to prove that "the amount of that judgment would have been more favorable to [her] than the settlement arranged by [her attorney]." 32 Colo.App. at 210, 509 P.2d at 1295. Rosebud Mining & Milling Co. stated that the defendant claimed that the plaintiff had to show that "the judgment, on a retrial, would have been favorable to plaintiff," that the plaintiff had not "taken issue with defendant on this point," and that three out-of-state cases "tend[ed] to sustain [the defendant's] contention." 21 Colo.App. at 250, 121 P. at 675.

¶ 44 Neither case discussed collectibility.

¶ 45 (We note that Miller v. Byrne , 916 P.2d 566, 579 (Colo. App. 1995), contained similar language to what we highlighted in Morris . But the division did not cite any authority, let alone Lawson , to support this language. It held instead that the jury should have been instructed that the plaintiffs "were required to prove ... the amount that [they] should have recovered" in the underlying case. Id. The context of this statement convinces us that the use of the word "recovered" did not mean that plaintiffs had to prove what they would have "received." Rather, they had to prove, as part of showing that they had suffered damages, the approximate amount of any judgment that they would have been awarded if they had been successful in the underlying case.)

¶ 46 So why have other jurisdictions and commentators cited Lawson for a conclusion that we think it did not reach? Although we cannot be sure, we have a hypothesis.

C. How Lawson Has Been Cited in Other States

¶ 47 We have found at least two pre- Lawson cases where courts in other states have held that the burden to prove collectibility rests on the plaintiff. Jones v. Wright , 19 Ga.App. 242, 91 S.E. 265, 266 (1917) ("In an action against an attorney to recover the amount of a claim, ... it is necessary that the petition against him show that the lost claim was a valid one under the law, and that the debtor was solvent."); Piper v. Green , 216 Ill.App. 590, 593, 595 (1920) (same). But no court cited Lawson for this proposition for forty-nine years.

¶ 48 Then, in 1976, the Georgia Court of Appeals included Lawson as part of a string citation supporting the proposition that "[t]he requirement that solvency be shown is both longstanding and widespread." McDow v. Dixon , 138 Ga.App. 338, 226 S.E.2d 145, 147 (1976). (In this context, solvency "is not intended to imply a bankruptcy-type standard, but rather is intended to illustrate the original defendant's ability to pay a judgment, had one been rendered against him." Id. ) So far, so good, because, as we recognized above, our supreme court reached this holding in Lawson .

¶ 49 But the preceding sentence in McDow , at the end of the previous paragraph, explained: "A client suing his attorney for malpractice not only must prove that his claim was valid and would have resulted in a judgment in his favor, but also that said judgment would have been collectible in some amount...." Id.

¶ 50 We think that the mischief lies in these two consecutive sentences. Courts and commentators who would later read those two sentences might well have thought that Lawson had held that the client bears the burden of proving collectibility.

¶ 51 And so Lawson acquired the reputation of standing for a proposition that it did not decide. In one case, it was included in a footnote after the South Dakota Supreme Court quoted McDow . See Taylor Oil Co. , 334 N.W.2d at 29 n.2. It was marshaled, along with McDow , in the ranks of a string citation that the Iowa Supreme Court offered as support for the proposition that assigning to the plaintiff the burden of proving collectibility is "the rule which is applied generally." Beeck , 350 N.W.2d at 160. Citing Lawson and McDow , a superior court in Pennsylvania included Colorado and Georgia in a list of thirteen states that "place[d] the burden upon the plaintiff (in a malpractice action against an attorney) to prove collectibility of the underlying judgment." Kituskie v. Corbman , 452 Pa.Super. 467, 682 A.2d 378, 381 (1996), aff'd and remanded , 552 Pa. 275, 714 A.2d 1027 (1998). The Pennsylvania Supreme Court cited Lawson and McDow for the same proposition in a footnote when addressing an appeal from the superior court's decision. Kituskie , 714 A.2d at 1031 n.6. And, although Paterek , 890 N.E.2d at 321, did not cite McDow , it cited Taylor Oil Co.

¶ 52 Once this ball got rolling, commentators included Lawson among those cases placing the burden of proving collectibility on the plaintiff without any analysis of the case beyond a simple citation. See, e.g. , Mallen, § 33:32 at 747 n.5; Grund, Miller & Werber, § 22:22 at 540 n.7; Marlin, 37 Duq. L. Rev. at 530, 530 n.77.

¶ 53 Now that we see that we are writing on a blank slate as far as allocating the burden to prove collectibility is concerned, we turn to deciding whether that burden should be placed on the plaintiff in a legal malpractice case. We review this issue de novo because it is a question of law. See Allen v. Steele , 252 P.3d 476, 481 (Colo. 2011).

D. Allocating the Burden to Prove Collectibility

¶ 54 It should be apparent from the discussion up to this point that many states place the burden of proving collectibility on the plaintiff. In fact, it is the majority rule. In addition to the cases that we have discussed above, one could look to other decisions, such as Wise v. DLA Piper LLP (US) , 220 Cal.App.4th 1180, 164 Cal.Rptr.3d 54, 61 (2013), and Viola v. O'Dell , 108 Conn.App. 760, 950 A.2d 539, 542 (2008), as examples of the majority. The Ohio Supreme Court best summed up the reasoning for the majority rule in Paterek , 890 N.E.2d at 321 : "[C]ollectibility is logically and inextricably linked to the legal-malpractice plaintiff's damages, for which the plaintiff bears the burden of proof." For the plaintiff to show "what was lost, the plaintiff must show what would have been gained." Id.

¶ 55 But there is a strong and growing minority of states that allocate the burden differently, making the issue of collectibility an affirmative defense that an attorney must raise and prove. (The majority does not include many more states than the minority. One commentator referred to the minority as "significant." Mallen, § 33:32, at 752, 752 n.18. A pair of others called the number of jurisdictions in the minority only "slightly less[ ]" than the number of those in the majority. Cross & Quintana, 91 Denv. U. L. Rev. Online at 58.) Some of the cases in the minority are of very recent vintage. See, e.g. , Smith v. McLaughlin , 289 Va. 241, 769 S.E.2d 7, 18 (2015) ; Schmidt v. Coogan , 181 Wash.2d 661, 335 P.3d 424, 428-30 (2014). Others were bottled some years ago. See, e.g. , Smith v. Haden , 868 F.Supp. 1, 2-3 (D.D.C. 1994) ; Power Constructors, Inc. v. Taylor & Hintze , 960 P.2d 20, 31-32 (Alaska 1998) ; Teodorescu v. Bushnell, Gage, Reizen & Byington , 201 Mich.App. 260, 506 N.W.2d 275, 278-79 (1993) ; Carbone v. Tierney , 151 N.H. 521, 864 A.2d 308, 319 (2004) ; Kituskie , 714 A.2d at 1032.

¶ 56 The minority rule relies on at least seven compelling rationales.

¶ 57 First, by the time the issue of collectibility arises in a legal malpractice trial, the need to prove it "is the result of an attorney's established malpractice.... It is a burden created by the negligent attorney." Schmidt , 335 P.3d at 428. To require clients to prove collectibility therefore allocates the burden of proof unfairly, even when the parties do not dispute that the defendant in the underlying case was solvent. Id. ; see also Carbone , 864 A.2d at 318. And a plaintiff in a legal malpractice case already has the burden of proving negligence twice . (For example, in this case, Ms. Gallegos must show that Mr. LeHouillier was negligent when he did not file the medical malpractice claim against Dr. Hughes within the statute of limitations. She must then establish, as part of proving the case within a case, that Dr. Hughes was negligent when he did not diagnose her meningioma.) See Kituskie , 682 A.2d at 382 (The client "should not have the added burden of proving collectibility since he or she has already been allegedly wronged by two parties.").

¶ 58 Second, an attorney is "in as good a position" to "prove uncollectibility." Schmidt , 335 P.3d at 428 ; see also McLaughlin , 769 S.E.2d at 18. This is because the attorney should have investigated the solvency of the defendant in the underlying case at the beginning of the client's case. See Schmidt , 335 P.3d at 428. And, even if the attorney did not do so, he is as capable as the client to discover whether a judgment in the underlying case would be collectible. See id.

¶ 59 Third, to require the client to introduce evidence of collectibility would often be at odds with evidence rules and case law generally excluding evidence of insurance coverage. See id. at 428-29 ; see also CRE 411 ("Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully."); Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 266 P.3d 412, 421 (Colo. App. 2011) ("An attorney's attempt to refer to insurance coverage or a lack thereof at trial is improper.").

¶ 60 Fourth, a delay between the original injury and a legal malpractice claim is common, which could hurt the client's opportunity to gather evidence about collectibility. See Schmidt , 335 P.3d at 429. And "[i]t is unfair to place this burden on [the client] when the attorney's negligence created the delay in the first place." Id. (citing Kituskie , 714 A.2d at 1027 ).

¶ 61 Fifth, the insolvency of the defendant in the underlying case permits the attorney to mitigate or to avoid the "consequences of one's negligent act." Jourdain v. Dineen , 527 A.2d 1304, 1306 (Me. 1987). Because the attorney will benefit from that insolvency, he or she should bear the "inherent risks and uncertainties of proving it." Lindenman v. Kreitzer , 7 A.D.3d 30, 775 N.Y.S.2d 4, 8 (2004).

¶ 62 Sixth, placing the burden on the attorney does not eliminate the effect of insolvency; if the attorney proves that a judgment is not collectible, damages could be mitigated or eliminated. Schmidt , 335 P.3d at 429. We therefore disagree with those cases that hold that placing the burden on an attorney results in a "windfall" for the client. Cf. Fernandes v. Barrs , 641 So.2d 1371, 1376 (Fla. Dist. Ct. App. 1994) (noting that the majority rule "prevents a windfall to the client by preventing him from recovering more from the attorney than he could have actually obtained from the tortfeasor in the underlying action"), disapproved of on other grounds by Chandris, S.A. v. Yanakakis , 668 So.2d 180, 185 (Fla. 1995).

¶ 63 Finally, plaintiffs in the vast majority of negligence cases do not have to prove that any judgment that they might win will be collectible. Collectibility is simply not a value that most negligence cases enter into the calculus of causation. See Haden , 868 F.Supp. at 2 ("In a normal civil lawsuit ... a plaintiff must prove each required element to make out a case against the defendant in order to obtain a judgment. It is not necessary to demonstrate that [the] plaintiff will successfully be able to execute on the judgment or that the judgment is collectible. Normally, enforcement of the judgment remains for another day.").

¶ 64 Some analysts and commentators have supported all or part of the "growing trend," McLaughlin , 769 S.E.2d at 18 (citation omitted), of the minority rule.

• The minority rule has momentum. In 1999, at least seventeen states followed the majority rule, while only four states followed the minority rule. Marlin, 37 Duq. L. Rev. at 534. In 2014, seventeen states followed the majority rule, and eleven states followed the minority rule. Cross & Quintana, 91 Denv. U. L. Rev. Online at 57 n.27. And the number of jurisdictions in the minority grew by at least two cases after the Cross & Quintana article was published. See McLaughlin , 769 S.E.2d at 18 ; Schmidt , 335 P.3d at 428-30.
• Even some of the commentators who listed Lawson as placing the burden of proving collectibility on the client noted that such an allocation of the burden of proof was a bad idea. Grund, Miller & Werber, § 22:22, at 540 (The concept of placing the burden of proof on a client "is suspect, especially when the defendant attorney is charged with negligence in his handling of a claim against an insolvent party. This defense is an admission that the underlying case should never have been brought by the defendant lawyer.").
• One commentator contended that it was "unjustifiable" to place the burden of proving collectibility on the client, adding that the attorney "should bear the burden of persuading the jury that any judgment would have been uncollectible, or at a minimum should bear the burden of coming forward with evidence demonstrating that uncollectibility was a real possibility." John Leubsdorf, Legal Malpractice and Professional Responsibility , 48 Rutgers L. Rev. 101, 150-51 (1995) (footnote omitted).
• Another commentator made a similar point, asserting that attorneys should bear the burden of proving that a judgment was uncollectible because "[c]ollectibility thus becomes a means of reducing the damages that might otherwise be owed, taking its place with such doctrines as the avoidable consequences rule." John H. Bauman, Damages for Legal Malpractice: An Appraisal of the Crumbling Dike and the Threatening Flood , 61 Temp. L. Rev. 1127, 1137 (1988).
• A pair of commentators observed that the "minority of jurisdictions focus more on ideas of fairness" than the majority of jurisdictions do. Cross & Quintana, 91 Denv. U. L. Rev. Online at 58.
• Although the Restatement (Third) of the Law Governing Lawyers § 53 cmt. b (Am. Law Inst. 2000), states that the client ultimately bears the burdens of proving collectibility, it places the burden on the defendant lawyer of "coming forward with evidence" to "show that the judgment or settlement would have been uncollectible."

¶ 65 We are persuaded by the various rationales behind the minority rule, and so we will apply it in this case.

¶ 66 We conclude that the trial court erred when it placed the burden on Ms. Gallegos to prove that any judgment in the underlying case against Dr. Hughes would have been collectible. In any trial on remand, Mr. LeHouillier must raise the issue of whether the judgment would have been collectible as an affirmative defense, and he shall bear the burden of proving that the debt was not collectible.

¶ 67 We decline to address Mr. LeHouillier's additional contentions and any of Ms. Gallegos's contentions on cross-appeal. We cannot predict with any certainty whether any of these contentions is likely to arise on retrial. See, e.g. , People v. Reynolds , 159 P.3d 684, 690 (Colo. App. 2006) (addressing only those issues that are "likely to recur"). For example, the contentions concerning damages will only arise if Ms. Gallegos and Mr. LeHouillier decide to retry this case and Ms. Gallegos is again successful.

¶ 68 The judgment is reversed. The case is remanded for a new trial. The trial court shall, at any new trial, require Mr. LeHouillier (1) to raise the issue of collectibility as an affirmative defense; and (2) bear the burden of proving that any judgment against Dr. Hughes would not have been collectible.

JUDGE DUNN concurs.

JUDGE WEBB concurs in part and dissents in part.

JUDGE WEBB, concurring in part and dissenting in part.

¶ 69 While "the collectibility of a judgment is not an issue in other types of cases ... a legal malpractice action is distinctly different from an ordinary lawsuit." Kituskie v. Corbman , 452 Pa.Super. 467, 682 A.2d 378, 381 (1996), aff'd and remanded , 552 Pa. 275, 714 A.2d 1027 (1998). Recognizing this difference, everyone before us agrees that collectibility of the hypothetical judgment in the underlying case is important. But just how important is it?

¶ 70 For me, proof of collectibility is so important that it must be an element of a legal malpractice plaintiff's case. And so I respectfully dissent from the majority's holding that relegates collectibility to a mere affirmative defense, to be pleaded and proven by the defendant attorney.

¶ 71 Both commentators and courts disagree over which side bears the burden of proof on collectibility. But to begin, I agree with the majority that

• in Lawson , our supreme court did not allocate this burden of proof;
• among cases in other jurisdictions, more courts require that a legal malpractice plaintiff prove collectibility than require that the defendant attorney prove insolvency;
• Ms. Gallegos did not present any evidence of collectibility; and
• Mr. LeHouillier did not present any evidence of Dr. Hughes's insolvency.

¶ 72 But at this point, I part ways with my colleagues and join the lion's share of cases. In my view, the jury was properly instructed that Ms. Gallegos bore the burden of proving collectibility. And because she did not present any such evidence, Mr. LeHouillier's motion for a directed verdict should have been granted.

¶ 73 With great perseverance, the majority seeks to work around the cases recognizing collectibility as an element of every legal malpractice plaintiff's burden concerning the so-called case within a case. Instead of pursuing that quest into the far-off land of policy, I would allocate the burden of proving collectibility to the legal malpractice plaintiff based on three principles much closer to home. Those principles are the basic negligence paradigm, the affirmative defenses listed in C.R.C.P. 8(c), and the law's strong preference for avoiding windfalls.

¶ 74 First, legal malpractice can be pleaded as breach of contract or professional negligence. Baker v. Wood, Ris & Hames, Prof'l Corp. , 2016 CO 5, ¶ 46, 364 P.3d 872. Ms. Gallegos chose negligence. As a result of her choice, like in every negligence case, she had to prove duty, breach, causation, and damages. See , e.g. , Lombard v. Colo. Outdoor Educ. Ctr., Inc. , 266 P.3d 412, 416 (Colo. App. 2011).

¶ 75 Of course, the majority cannot reject this basic four-factor paradigm. Yet, in my view, because collectibility affects not one but two of those factors-obviously damages but also causation-the majority gives it insufficient weight.

¶ 76 To be sure, even where a wrong has been shown, an action fails without proof of causation and damages. See Gibbons v. Ludlow , 2013 CO 49, ¶ 12, 304 P.3d 239 ("To recover on a claim of professional negligence, the plaintiff must prove that the professional['s] ... breach proximately caused an injury to the plaintiff, and that damages resulted."). In a legal malpractice claim alleging that a lawyer mishandled an underlying case, the plaintiff's damages are not the amount of the hypothetical judgment, but the extent to which that judgment could have been collected. As the court explained in Paterek v. Petersen & Ibold , 118 Ohio St.3d 503, 890 N.E.2d 316, 321-22 (2008) :

In proving what was lost, the plaintiff must show what would have been gained.... The malpractice plaintiff need not prove the collectibility of the attorney she is suing, but she must prove that the attorney she is suing has indeed injured her through neglecting to properly handle a lawsuit that would have generated recompense. And her injury is measured by what she actually would have collected.

¶ 77 But the import of collectibility goes beyond just the measure of damages. "If the underlying judgment was uncollectible, for example, due to insufficient assets or bankruptcy, the lost value of the judgment is not the proximate result of an attorney's negligence." Schmidt v. Coogan , 181 Wash.2d 661, 335 P.3d 424, 428 (2014) ; see also Joseph H. Koffler, Legal Malpractice Damages in a Trial Within a Trial-A Critical Analysis of Unique Concepts: Areas of Unconscionability , 73 Marq. L. Rev. 40, 52 (1989) ("To predicate an award of damages upon both the requirement that a judgment would have been recovered and that it would have been collectible ... requires a showing of causation ... that is conceptually no different from that required in negligence cases generally."), quoted with approval in Klump v. Duffus , 71 F.3d 1368, 1374 (7th Cir. 1995) (applying Illinois law).

¶ 78 "The traditional approach rests primarily on the theory that it is consistent with tort law : plaintiffs may recover only the amount that will make them whole (and not a windfall), and the plaintiff must prove both proximate cause and injury." Schmidt , 335 P.3d at 428 (emphasis added). Yet, treating collectibility as an affirmative defense dilutes this "traditional approach" by half-the majority erases both damages and causation from the plaintiff's side of the ledger and then writes them on the defendant's side.

¶ 79 Second, the sole affirmative defense involving damages is "[a]ny mitigating circumstances to reduce the amount of damage[s]." C.R.C.P. 8(c). By its very wording, this defense assumes that the plaintiff has already proven at least some damages. If not, the defendant would be entitled to a directed verdict. See City of Westminster v. Centric-Jones Constructors , 100 P.3d 472, 477 (Colo. App. 2003). Thus, morphing collectibility into an affirmative defense distorts C.R.C.P. 8(c).

¶ 80 Third, the law disfavors windfalls. Dick v. Indus. Comm'n , 197 Colo. 71, 75, 589 P.2d 950, 952 (1979) ("The law should not allow an employer or his insurer to reap a windfall ...."), overruled on other grounds by Estate of Huey v. J.C. Trucking, Inc. , 837 P.2d 1218, 1220 (Colo. 1992). But as cases on both sides of the allocation question recognize, allowing a legal malpractice plaintiff to rest without presenting any evidence of collectibility risks that the plaintiff will recover more from the defendant lawyer than the plaintiff could ever have recovered from the hypothetical defendant in the underlying case. See , e.g. , Klump , 71 F.3d at 1374 ("Hypothetical damages above the amount that Klump could genuinely have collected from Eaves are not a legitimate portion of her 'actual injury;' awarding her those damages would result in a windfall."); Fernandez v. Barrs , 641 So.2d 1371, 1376 (Fla. Dist. Ct. App. 1994) (noting that the majority rule "prevents a windfall to the client by preventing him from recovering more from the attorney than he could have actually obtained from the tortfeasor in the underlying action"), disapproved of on other grounds by Chandris, S.A. v. Yanakakis , 668 So.2d 180, 185 (Fla. 1995).

¶ 81 Despite all of this-or perhaps because of it-the majority advances seven policy considerations supported, in varying degrees, by cases adopting the minority view. But relying on policy "is to lean upon a slender reed." Missouri v. Holland , 252 U.S. 416, 434, 40 S.Ct. 382, 64 L.Ed. 641 (1920). And in states with intermediate appellate courts, deciding a case based on policy "is more properly the province" of the state's supreme court. Rosenbloom v. Bauchat , 654 So.2d 873, 876 (La. Ct. App. 1995)

¶ 82 Be that as it may, I quote the majority's articulation of these policy considerations and respond to the cited authorities as follows.

¶ 83 First, "to require clients to prove collectibility therefore allocates the burden of proof unfairly." But one might wonder exactly what is "unfair" about applying basic principles of causation and damages to legal malpractice. The authorities cited include Carbone v. Tierney , 151 N.H. 521, 864 A.2d 308 (2004), Kituskie , and Schmidt . But a closer look shows that these cases do not carry the weight that the majority places on them.

¶ 84 Carbone does not offer an independent analysis of fairness, instead quoting the more recent Kituskie case for the proposition that requiring the plaintiff to prove collectibility would be "an unfair burden." 864 A.2d at 318. And Kituskie advances this conclusion on the basis that "the plaintiff's legal malpractice action is often brought years after the initial accident causing his injuries solely because the defendant/lawyer failed to act in a timely and competent manner." 714 A.2d at 1031. I dispose of the delay concern below.

¶ 85 Schmidt says that "the traditional approach unfairly presumes that an underlying judgment is uncollectible." 335 P.3d at 428. But no Colorado case has presumed that a judgment is collectible. And presuming collectibility would be difficult to reconcile with the increasingly common practice of seeking bankruptcy protection. See Wellness Int'l Network, Ltd. v. Sharif , 575 U.S. ----, ---- n.2, 135 S.Ct. 1932, 1939 n.2, 191 L.Ed.2d 911 (2015) (from October 2013 through September 2014, the number of bankruptcy cases filed more than doubled the number of civil and criminal cases).

¶ 86 Schmidt also says that the need to address collectibility "is a burden created by the negligent attorney." 335 P.3d at 428. To this observation, the majority adds: "And a plaintiff in legal malpractice already has the burden of proving negligence twice ." While both observations are accurate, they fall short of establishing unfairness in two ways.

¶ 87 One, whatever a plaintiff must prove to prevail in a negligence case is always necessitated by the defendant's alleged negligence. In a legal malpractice case, exactly the same could be said of the plaintiff's burden to prove the case within a case; yet that burden is universally accepted across all jurisdictions. Various iterations of proximate cause and foreseeability-sometimes labyrinths resulting from a defendant's negligence-have been attacked, to no avail. See Sego v. Mains , 41 Colo.App. 1, 4, 578 P.2d 1069, 1072 (1978) ("The plaintiff lastly asserts that the jury instruction which dealt with proximate cause and foreseeability imposed too onerous a burden of proof upon her.").

¶ 88 Two, merely because a burden is difficult does not make it unfair, at least where, as discussed below, the plaintiff can meet it. Compare DeCola v. Bochatey , 161 Colo. 95, 100, 420 P.2d 395, 397 (1966) ("[I]n our view the trial court committed no error when it held, in effect, that the defendants had failed to sustain the rather onerous burden of proof which devolves upon one who seeks through adverse possession to divest the record owner of his lawful title to real property."), with Prutch v. Ford Motor Co. , 618 P.2d 657, 660 (Colo. 1980) ("To impose an impossible or unreasonably onerous burden of proof is to deny many consumers a meaningful remedy."). After all, in Colorado, statutory unconstitutionality must be proven beyond a reasonable doubt, the heaviest burden of all. See TABOR Found. v. Reg'l Transp. Dist. , 2016 COA 102, ¶ 16, 417 P.3d 850 (cert. granted Jan. 23, 2017).

¶ 89 The second policy rationale the majority puts forth, quoting Schmidt , 335 P.3d at 428, is that the defendant attorney is better positioned to prove uncollectibility because "the attorney should have investigated the solvency of the defendant in the underlying case at the beginning of the client's case." But I have been unable to find a case holding that a lawyer malpracticed by failing to investigate collectibility of a potential judgment debtor before filing suit. And even if such a case could be imagined-perhaps a collision with a vehicle driven by a thief seeking to escape the police-as relevant here, the majority fails to explain why a lawyer could not assume collectibility because a Colorado physician would maintain the statutorily required insurance coverage. In contrast, the underlying claim in Schmidt was a slip and fall in a grocery store. And in any event, if the lawyer had undertaken some inquiry into collectibility, that information would be in the lawyer's files, subject to the plaintiff's discovery.

¶ 90 The majority also cites Smith v. McLaughlin , 289 Va. 241, 769 S.E.2d 7, 18 (2015). But McLaughlin did not address the comparative burdens on the plaintiff and the defendant lawyer of proving collectibility. Instead, the McLaughlin court observed that "[i]t is unfair to presume that a silent record means that a judgment is uncollectible." Id. Yet, the court also recognized that, "successfully prosecuting a claim to judgment is only half of the marathon that is redressing an injury in our judicial system. Once armed with a judgment, a plaintiff then has 20 years to collect that award ..., which can be frustrated by a number of factors." Id. As indicated above, the most obvious such factor would be bankruptcy.

¶ 91 But more importantly, the record here is not silent. Instead, it shows that despite Mr. LeHouillier's having notified Dr. Hughes of the potential claim and urging the doctor to contact his professional liability insurance carrier, no response from either the doctor or his insurer was received. If the doctor carried such insurance, his failure to notify the carrier, and the carrier's failure to contact Mr. LeHouillier for information on which to adjust the claim, would be inexplicable.

¶ 92 "Third, to require the client to introduce evidence of collectibility would often be at odds with evidence rules and case law generally excluding evidence of insurance coverage." But evidence concerning a defendant's insurance or lack thereof is usually precluded because such evidence might improperly influence the jury's determination of liability. See CRE 411 ("Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."); Johns v. Shinall , 103 Colo. 381, 387-90, 86 P.2d 605, 608 (1939).

¶ 93 In the legal malpractice setting, the coverage question pertains not to the defendant lawyer but to the hypothetical defendant in the underlying action. So, the risk that a jury would conflate coverage and liability is low. And in any event, to avoid jury confusion, trial of the collectibility issue could be bifurcated. See Hoppe v. Ranzini , 158 N.J.Super. 158, 385 A.2d 913, 919 (N.J. Super. Ct. App. Div. 1978).

¶ 94 "Fourth, a delay between the original injury and a legal malpractice claim is common, which could hurt the client's opportunity to gather evidence about collectibility." True enough, any delay after the defendant lawyer was retained and had conducted a reasonable investigation as required by C.R.C.P. 11 would be attributable to the lawyer. But neither Schmidt nor Kituskie , both again cited by the majority, explains why delay would be particularly detrimental to a plaintiff's proving collectibility.

¶ 95 With most hypothetical defendants, and especially a professional-as here-the best evidence of collectibility would be insurance coverage. Consider that showing such coverage would require just two easy and inexpensive steps: a short deposition of the hypothetical defendant to identify the insurer and service of a subpoena duces tecum on that insurer to obtain a copy of the policy.

¶ 96 Yes, the process would be more complex if the hypothetical defendant never obtained coverage or if a claims-made policy had lapsed. Still, the hypothetical defendant could be deposed to explore his or her net worth, as can be done post-judgment under C.R.C.P. 69(i). Titled assets, primarily real estate, could be proven through public records. And an asset search firm could be employed to provide expert testimony tying this information together. Hardly a Herculean task.

¶ 97 "Fifth, the insolvency of the defendant in the underlying case permits the attorney to mitigate or to avoid the 'consequences of one's negligent act,' " and as a consequence, the benefitted attorney should bear the "risks and uncertainties of proving it." (Citation omitted.) But again, this formulation-especially the reference to "mitigate"-only begs the question of whether collectibility should be an essential component of proving causation and damages. Recall that under C.R.C.P. 8(c), insolvency is mitigation evidence only because the plaintiff has already proven causation and damages.

¶ 98 Here, the majority cites Lindenman v. Kreitzer , 7 A.D.3d 30, 775 N.Y.S.2d 4, 8 (2004), and Jourdain v. Dineen , 527 A.2d 1304, 1306 (Me. 1987). But Lindenman is just another delay analysis, "since the legal malpractice action is likely to have been brought years after the underlying events." 775 N.Y.S.2d at 9. And Jourdain relied on Me. R. Civ. P. 8(c), which is very similar to C.R.C.P. 8(c).

¶ 99 "Sixth, placing the burden on the attorney does not eliminate the effect of insolvency; if the attorney proves that a judgment is not collectible, damages could be mitigated or eliminated." On this basis, the majority "disagree[s] with those cases that hold that placing the burden on an attorney results in a 'windfall' for the client."

¶ 100 But this statement fails to answer the question of who should bear the burden for two reasons. First, it evokes mitigation. Second, it does not explain how the possibility of the defendant lawyer presenting evidence that would persuade the trier of fact to reduce the damages below the amount of the hypothetical judgment avoids the risk that in the absence of such evidence, the plaintiff would enjoy a windfall.

¶ 101 More importantly, this formulation conflates two principles: collectibility and insolvency. Collectibility means "the degree to which a judgment can be satisfied through collection efforts against the defendant." Black's Law Dictionary 280 (8th ed. 1999). In contrast, "[a] debtor is insolvent if the sum of the debtor's debts is greater than all of the debtor's assets at a fair valuation." § 38-8-103(1), C.R.S. 2016. And therein lies the fundamental problem with the majority's approach-insolvency is more than the reciprocal of collectibility.

¶ 102 The burden on a plaintiff of proving collectibility would be satisfied by showing insurance coverage or sufficient unencumbered assets from which part of the judgment could probably have been collected, as discussed above. But if the burden is proving insolvency, the defendant lawyer would have to first negate insurance coverage-admittedly no more difficult than proving it. But then the lawyer would have to reconstruct the hypothetical defendant's entire financial position, accounting for all of his or her assets and liabilities, to show insolvency. In other words, proving uncollectibility implicates, as numerous courts have recognized in many different contexts, "the difficulty of proving a negative." See , e.g. , Rooks v. Robb , 871 N.W.2d 468, 471 (N.D. 2015).

¶ 103 Seventh, "plaintiffs in the vast majority of negligence cases do not have to prove that any judgment that they might win would be collectible. Collectibility is simply not a value that most negligence cases enter into the calculus of causation." True enough. But whether the plaintiff may recover any of his potential judgment matters not to whether the defendant tortfeasor has actually harmed him. And as we all agree, legal malpractice cases are distinct from most negligence cases-the borders of the case within a case construct extend beyond entry of judgment in the underlying case and include whether any judgment would have been collectible.

¶ 104 Along with these seven policy considerations, the majority relies on the Restatement (Third) of the Law Governing Lawyers. It has frequently been cited in Colorado. See , e.g. , Mercantile Adjustment Bureau, L.L.C. v. Flood , 2012 CO 38, ¶ 20, 278 P.3d 348 ; Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP , 293 P.3d 55, 61 (Colo. App. 2011). For this reason, I address it, but do not do so with the other secondary sources in the majority opinion that lack a citation history in Colorado.

¶ 105 The particular wording on which the majority relies is cryptic:

Thus, the lawyer's misconduct will not be the legal cause of loss to the extent that the defendant lawyer can show that the judgment or settlement would have been uncollectible, for example because the previous defendant was insolvent and uninsured. The defendant lawyer bears the burden of coming forward with evidence that this was so. Placement of this burden on the defending lawyer is appropriate because most civil judgments are collectible and because the defendant lawyer was the one who undertook to seek the judgment that the lawyer now calls worthless. The burden of persuading the jury as to collectibility remains upon the plaintiff.

Restatement (Third) of the Law Governing Lawyers § 53 cmt. b (2000) (emphasis added).

¶ 106 In any event, as discussed above, the lack of a response to Mr. LeHouillier's demand letter constitutes some evidence of uncollectibility. Thus, even under the Restatement view, "[t]he burden of persuading the jury as to collectibility remains upon the plaintiff." Id.

¶ 107 In the end, I would follow the weight of case authority and conclude that the jury was properly instructed. Ms. Gallegos failed to present any evidence of collectibility. For these two reasons, I would reverse the judgment against Mr. LeHouillier and dismiss the case.