text:
    James P. VIGIL, as Conservator for James R. Vigil, Plaintiff-Appellant, v. William FRANKLIN, Gladys Franklin, and Will Franklin, Defendants-Appellees.
    No. 01CA2172.
    Colorado Court of Appeals, Div. IV.
    May 22, 2003.
    Certiorari Granted Jan. 12, 2004.

      Buchanan, Jurdem & Zulauf, P.C., Ross BH. Buchanan, Denver, Colorado; Anderson, Hemmat & Levine, LL.C., Jordan
    S. Levine, Denver, Colorado, for Plaintiff-Appellant.
    Levy, Morse & Wheeler, P.C., Karen H. Wheeler, Brian J. Waters, Englewood, Colorado, for Defendants-Appellees.
   Opinion by

Judge DAILEY.

In this negligence action, plaintiff, James R. Vigil, appeals the summary judgment entered in favor of defendants, William Franklin, Gladys Franklin, and Will Franklin. We affirm.

Plaintiff, a 28-year-old, mildly retarded person, was obtaining job-training skills from an organization that defendants employed to clean up their property. After finishing work one day, the 511" plaintiff jumped up onto defendants' 4' high, aboveground pool, dove into the water, and hit his head on the bottom of the pool. He suffered a spinal injury that left him a quadriplegic.

Plaintiff filed the present action, alleging, as pertinent here, that defendants were Hable under the premises liability statute, § 13-21-115, C.R.98.2002, because they unreasonably failed to warn him of the dangers of diving into their pool.

Defendants moved for summary judgment, asserting: (1) they owed no duty to warn because plaintiff was a trespasser on the property; (2) even if plaintiff were not a trespasser, they had no duty to warn him of an open and obvious danger associated with diving into shallow water; (8) even if the danger were not open and obvious, they complied with the premises liability statute by providing adequate warnings of the danger; and (4) in any event, they could not be held liable under comparative negligence principles because, as a matter of law, plaintiff's own recklessness made him more responsible than defendants for the injury.

In response to defendants' motion, plaintiff asserted: (1) a material issue of fact existed as to whether he was a trespasser, because he was a member of the work crew and some witnesses related that defendants had given crew members permission to use the pool; (2) the premises liability statute does not permit landowners to avoid liability for failing to warn of open and obvious dangers, and, even if it did, a material issue of fact existed as to whether the danger of diving into shallow, and perhaps murky, water was open and obvious; (8) a material issue of fact existed as to whether the number, size, and placement of defendants' signs on the pool provided plaintiff adequate warning of the danger; and (4) the relative responsibility of plaintiff? and defendants for the accident was a question of fact for the jury to determine.

The trial court found the following facts undisputed:

1. At the time and on the date of the Plaintiff's injury, Defendants [ ] had not given consent or permission for the Plaintiff or anyone else he was with to enter their swimming pool.
2. There were some signs in place warning of the dangers of diving into the swimming pool.
3. The existence of the swimming pool and the nature of its structure were obvious, that is, it was beyond doubt that the structure was a swimming pool, that some of the pool extended above ground level, and that the Plaintiff was taller than that portion of the pool which was above ground.
4, The Plaintiff did not know the depth of the swimming pool when he dived in.

Based on these facts, "the briefs, the arguments, and the authorities cited by [defendants}," the trial court determined that defendants were entitled to judgment as a matter of law and accordingly entered summary judgment in their favor.

Because the trial court did not identify the precise grounds upon which it granted summary judgment, plaintiff on appeal challenges all of defendants' bases for requesting summary judgment.

I. Governing Law

We review de novo a trial court's order granting summary judgment. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo.2002).

Summary judgment is appropriate when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See C.R.C.P. 56(c).

In assessing a summary judgment ruling, we view all facts in the light most favorable to the nonmoving party, see Redmond v. Chains, Inc., 996 P.2d 759, 762 (Colo.App. 2000), give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the evidence, and resolve all doubts as to the existence of a material fact against the moving party. Schold v. Sawyer, 944 P.2d 683, 684 (Colo.App.1997).

Whether a fact is material depends, in part, upon the substantive legal basis for a claim. Weisbart v. Agri Tech, Inc., 22 P.3d 954, 956 (Colo.

The premises liability statute "provides the exclusive remedy against a landowner for injuries sustained on the landowner's property." Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612, 613 (Colo.App. No. 02CA0637, Apr. 10, 2003).

Under that statute, a landowner's duty to others depends upon whether they qualify as invitees, licensees, or trespassers on the property. Section 18-21-115(2)-(8), C.R.S. 2002.

An invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested; a licensee is a person who enters or remains on the property, with the landowner's consent, for the person's own convenience or to advance his or her own interests; and a trespasser is a person who enters or remains on land without the landowner's consent. Section 18-21-115(5), C.R.S.2002.

"The highest standard of care is owed the 'invitee,' a lesser is owed the 'licensee, and a yet lesser is owed the trespasser." Maes v. Lakeview Associates, Ltd., 892 P.2d 875, 377 (Colo.App.1994), aff'd, 907 P.2d 580 (Colo.1995).

As pertinent here, an invitee "may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he [or she] actually knew or should have known." Section 13-21-115(8)(c)(), C.R.S.2002; see also Springer v. City & County of Denver, 13 P.3d 794, 804 (Colo.2000)(deseribing the elements of landowner liability to invitees in terms of (1) breach of a duty to use reasonable care to protect against a danger on the property, and (2) actual or constructive knowledge of the danger).

A landowner has a more limited duty to exercise reasonable care with respect to licensees. See § 183-21-115(8)(b)(D-(ID), C.R.S$.2002 (licensee may recover only for injuries caused by a landowner's unreasonable failure to (1) exercise reasonable care with respect to dangers known to and created by the landowner or (2) warn of dangers known to, but not created by the landowner that are not ordinarily present on property).

"A trespasser may recover only for damages willfully or deliberately caused by the landowner." Section 18-21-115(8)(a), C.R.S 2002.

II. Plaintiff's Status as a Trespasser on the Property

Plaintiff contends that the trial court erred in granting summary judgment to the extent that it may have based its ruling on the conclusion defendants owed him no duty of reasonable care because, as a matter of law, he was a trespasser in their pool. We agree.

Here, there was evidence, albeit disputed, that, on the first day the crew arrived at defendants' property, defendants informed the crew's supervisors that crew members were welcome to use the pool after finishing their work. While no evidence was presented that defendants subsequently repeated this permission, there is also no evidence that defendants withdrew it.

Plaintiff was not a member of the original work crew assigned to defendants' property. However, we find no evidence expressly limiting defendants' permission, if any, to a specific group of crew members or to a particular day.

Viewing the evidence in the light most favorable to plaintiff, a reasonable trier of fact could find that, as a crew member, plaintiff had defendants' permission to use the pool. Therefore, summary judgment could not be based on a determination as a matter of law that plaintiff was a trespasser in the pool.

III. Open and Obvious Dangers

~ Next, plaintiff contends that the trial court erred in granting summary judgment to the extent that it based its ruling on the determination that defendants had no duty to warn him of open and obvious dangers. In this regard, plaintiff asserts that: (1) the open and obvious danger doctrine plays no role in assessing landowner liability under the premises liability statute; and (2) in any event, a material issue of fact exists whether the danger of diving into defendants' aboveground pool was so open and obvious that defendants had no duty to warn plaintiff of it. We disagree with each assertion.

A. Landowner Liability for Open and Obvious Dangers

Until 1971, landowner liability was determined under a common law premises liability scheme, whereby a landowner's duty to another on his or her property depended upon whether the other was an invitee, licensee, or trespasser on the property. In 1971, the supreme court held that landowner liability would no longer depend upon a person's status with respect to the property, but would be assessed for all persons injured on the property under general negligence principles. See Mile High Fence Co. v. Radovich, 175 Colo. 537, 543-48, 489 P.2d 308, 312-15 (1971); see also Pierson v. Black Canyon Aggregates, Inc., supra, 48 P.3d at 1218.

Under both the prior common law premises liability scheme and the general negli-genee scheme, landowners could avoid liability for injuries caused by open and obvious dangers. See Smith v. City & County of Denver, 726 P.2d 1125, 1127-28 (Colo.1986)(general negligence scheme); Webb v. Thomas, 133 Colo. 458, 464, 296 P.2d 1036, 1039 (1956)(common law premises liability scheme).

The rationale was that "[wlhere the potential for danger is readily apparent, a warning of the obvious is not necessary." Smith v. City & County of Denver, supra, 726 P.2d at 1127; see also Bucheleres v. Chicago Park District, 171 Ill.2d 435, 448, 216 Ill.Dec. 568, 665 N.E.2d 826, 832 (1996)("[tlhe open and obvious nature of the condition itself gives caution" and "people are expected to appreciate and avoid obvious risks"); Simmers v. Bentley Construction Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504, 506 (1992)("the open and obvious nature of the hazard itself serves as a warning"); Restatement (Second) of Torts § 848A emt. e (1965)("Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.").

However, the existence of even open and obvious dangers did not necessarily bar recovery as a matter of law. Where "a condition present on a defendant's land is unreasonably dangerous, that is, where the likelihood of injury is not lessened by knowledge of the condition," the issue of a defendant landowner's liability should be determined by a jury. Brown v. Martin Marietta Corp., 690 P.2d 889, 892 (Colo.App.1984)(general negligence scheme); see King Soopers, Inc. v. Mitchell, 140 Colo. 119, 124-25, 342 P.2d 1006, 1009-10 (1959)(common law premises liability scheme, as applied to injuries to invitees).

In this regard, the question is whether the landowner "should anticipate the harm despite [the visitor's] knowledge or [the] obviousness" of the danger. See Restatement, supra, § 348A(1).

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

Restatement, supra, § 348A emt. f; see Dobbs, The Law of Torts § 285, at 605-06 (2000)(Iandowners can foresee that an invitee would encounter an obvious danger when "plaintiff's only reasonable choice is to encounter the danger" and when "plaintiff is foreseeably distracted, or acts under emergency or pressing need"); see also King Soopers, Inc. v. Mitchell, supra, 140 Colo. at 124, 342 P.2d at 1009 (discussing similar instances where landowner ought to be held liable despite open and obvious nature of danger); Brown v. Martin Marietta Corp., supra, 690 P.2d at 892 (plaintiff required to encounter danger as part of his employment).

The premises liability statute was enacted in 1986 and amended in 1990 to partially revive the common law premises liability scheme that the supreme court abandoned in 1971. A landowner's duties under the premises liability statute are somewhat different from those under the common law premises liability scheme. See Gallegos v. Phipps, 779 P.2d 856, 860-61 (Colo.1989)(under the common law premises liability scheme, landowners owed no duty of care to trespassers, only a duty not to willfully or wantonly injure licensees, and a duty to keep land in a reasonably safe condition for invitees and to warn them of concealed defects that might have been discovered in the exercise of reasonable care). Nonetheless, the statute narrows the landowner's exposure to liability from that which existed under the generic negligence scheme. See Pierson v. Black Canyon Aggregates, Inc., supra, 48 P.3d at 1219 ("The overriding purpose of the premises liability statute is to clarify and to narrow private landowners' liability to persons entering their land, based upon whether the entrant is a trespasser, licensee, or invitee. General negligence law would not provide such protection." (citation omitted)).

Because the overriding purpose of the statute is to provide landowners more protection than they enjoyed under the generic negligence scheme, we find it highly unlikely that the General Assembly intended to remove the protection of the open and obvious danger doctrine that landowners enjoyed under the generic negligence scheme.

Plaintiff's reliance on Teneyck v. Roller Hockey Colorado, Ltd., 10 P.3d 707 (Colo. App.2000) for an opposite conclusion is misplaced. Teneyck addressed premises Hability issues in connection with commercial, rather than private, use of property. There, a spectator was injured when he was struck by a hockey puck while attending a hockey game. In the trial court, the proprietor of the hockey rink was granted summary judgment based on the common law rule barring recovery for injuries suffered as a result of risks that are common, frequent, and expected from the activity in question. A division of this court reversed the summary judgment, reasoning that the General Assembly had elsewhere identified other instances where spectators or participants in sporting events were held to have assumed the risks inherent in attending or participating in those activities. The division concluded that, by not enacting, as other states had done, a statute with respect to hockey facilities, the General Assembly intended not to exempt hockey rink owners from liability based on 'the ground identified by the trial court.

Plaintiff has not directed our attention to any statutes, comparable to those cited in Teneyck, indicating that the General Assembly intended to remove the protection afforded landowners by the open and obvious danger doctrine in connection with the myriad private purposes to which land may be put. We thus conclude that Teneyck is distinguishable from the present case.

Nor do we agree with plaintiff that Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), compels the conclusion that Colorado courts have rejected the open and obvious danger doctrine. Union Supply Co. v. Pust and other cases relied on by plaintiff have held only that the open and obvious nature of a risk may not be a complete bar to a products liability failure to warn claim. See Armentrout v. FMC Corp., 842 P.2d 175, 181 (Colo.1992)("The open and obvious nature of a risk is not necessarily a complete defense to a strict lability failure-to-warn claim.... If the danger is open and obvious, there is no duty to warn unless there is a substantial likelihood that the proposed warning would have prevented injury to the ordinary user.").

Accordingly, we conclude that the open and obvious danger doctrine continues to apply in assessing landowner liability to invitees and licensees under the premises liability statute.

B. < Application of Open and Obvious Danger Doctrine

Colorado courts have applied the open and obvious danger doctrine in cases involving injuries caused by diving into shallow water. See Smith v. City & County of Denver, supra, 726 P.2d at 1127-28 (person diving off rock cliff into river) Webb v. Thomas, supra, 188 Colo. at 464, 296 P.2d at 1039 (patron of commercial swimming pool injured while diving in shallow part of pool).

Although Colorado appellate courts have not specifically addressed whether the danger of diving into an aboveground swimming pool is open and obvious, the majority of other jurisdictions that have addressed the issue have concluded as a matter of law that it is an open and obvious danger. See Hemphill v. Johnson, 230 Ga.App. 478, 481, 497 S.E.2d 16, 19 (1998)(affirming summary judgment for landowner because "the existence and condition of [the swimming] pool was open and obvious"); Barham v. Knickrehm, 277 Ill.App.3d 1034, 1038, 214 Ill.Dec. 721, 661 N.E.2d 1166, 1169 (1996)("A homeowner's above-ground swimming pool presents an open and obvious danger as a matter of law."); O'Sullivan v. Shaw, 431 Mass. 201, 207, 726 N.E.2d 951, 957 (2000)("in granting summary judgment for the defendants, [the trial court] correctly concluded that the open and obvious danger rule obviated any duty to warn the plaintiff not to dive head first into the shallow end of the defendants' swimming pool"); Donacik v. Pool Mart, Inc., 270 AD.2d 921, 922, 705 N.Y.S.2d 784, 786 (2000)(recognizing the "obvious danger of diving into a four-foot above-ground pool"); Long v. Manzo, 452 Pa.Super. 451, 461-62, 682 A.2d 370, 875 (1996)(affirming summary judgment in favor of landowner because of the obvious danger of diving headfirst into a four-foot high pool); Griebler v. Doughboy Recreational, Inc., 160 Wis.2d 547, 559-60, 466 N.W.2d 897, 902 (1991)(affirming summary judgment in favor of landowner because plaintiff confronted an open and obvious danger as a matter of law when he dove headfirst into water of unknown depth).

Some courts have held otherwise. See Corbin v. Coleco Industries, Inc., 748 F.2d 411, 417 (7th Cir.1984)("The erucial point ... is that even though people are generally aware of the danger of diving into shallow water, they believe there is a safe way to do it, namely, by executing a flat, shallow dive. If people do in fact generally hold such a belief, then it cannot be said, as a matter of law, that the risk of spinal injury from diving into shallow water is open and obvious."); Leonard v. Pitstick Dairy Lake & Park, Inc., 124 Ill.App.3d 580, 586, 79 Ill.Dec. 740, 464 N.E.2d 644, 649 (1984)("[Thhe danger of diving headfirst into shallow water may seem at first glance to be a matter of common knowledge and understanding.... However, closer examination of the evidence indicates that the nature and extent of the danger ... is not commonly understood, even by many adults of considerable experience.").

We are persuaded by the former, rather than the latter, line of cases because, as the Michigan Supreme Court observed:

[The threshold issue is not whether a shallow dive can be successfully executed but, rather, whether people in general are unaware of the fact that there is a risk of serious harm when diving in shallow water. The fact that all plaintiffs acknowledged the necessity to perform a shallow dive simply underscores the conclusion that the risk of diving in shallow water is open and obvious. *

Glittenberg v. Doughboy Recreational Industries, 441 Mich. 379, 401, 491 N.W.2d 208, 218 (1992); see also O'Sullivan v. Shaw, supra, 431 Mass. at 207, 726 N.E.2d at 956 (disapproving of Corbin v. Coleco Industries, Inc., supra, based on "[pllain common sense, bolstered by the weight of authority in other jurisdictions where this issue has been addressed"); Griebler v. Doughboy Recreation, al, Inc., supra, 160 Wis.2d at 560, 466 N.W.2d at 902 (concluding that danger of diving into water of unknown depth is obvious as a matter of law despite plaintiff's argument that "thousands of people are injured by doing so every year"); Note, Look Before You Leap: Cam the Emergence of the Open and Obvious Danger Defense Save Diving from Troubled Waters?, 49 Syracuse L.Rev. 175, 188 (1999)("plaintiffs in diving accident cases are not victims of a dangerous activity, but are participants who choose to dive according to their own standards, and then poorly execute their scheme").

Nonetheless, plaintiff argues that, because he is mentally retarded, the nature of the risk here could not be deemed to be obvious as a matter of law. Because plaintiff did not raise this issue before the trial court in response to defendants' motion for summary judgment, we decline to consider it now. See generally Flores v. American Phormaceutical Services, Inc., 994 P.2d 455, 458 (Colo. App.1999)("An appellate court will not consider issues, arguments, or theories not previously presented in trial proceedings.").

We also reject plaintiff's assertion regarding the materiality of a dispute in the evidence concerning whether the water in the pool was clear or murky. Plaintiff was not injured by hitting his head on an obscured object in the pool. He was injured by hitting his head on the bottom of the pool, and we have concluded that the risk of such a danger was open and obvious to him as a matter of law.

In so holding, we note that there was no claim or evidence presented that plaintiff was distracted in his use of the pool, that he was obliged to use the pool, or that the pool could not have been used in reasonable safety. Hence, there was no other basis in law for holding defendants Hable. See King Soopers, Inc. v. Mitchell, supra, 140 Colo. at 124, 342 P.2d at 1009; Restatement, supra, § 348A emt. £.

We therefore conclude that the trial court did not err in granting summary judgment in defendants' favor.

In light of this conclusion, we need not address the other contentions raised by the parties.

Accordingly, the judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    Michael BRALISH, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado and City of Thornton, Respondents.
    No. 02CA1236.
    Colorado Court of Appeals, Div. IV.
    June 5, 2003.
    Rehearing Denied July 24, 2003.
    Certiorari Denied Jan. 12, 2004.
    Douglas R. Phillips, P.C., Douglas R. Phillips, Denver, Colorado, for Petitioner.
    No appearance for Respondent Industrial Claim Appeals Office.
    Ritsema & Lyon, P.C., Fredric A. Ritsema, Kathleen M. Murphy, Denver, Colorado, for Respondent, City of Thornton.
   Opinion by

Judge KAPELKE.

In this workers' compensation proceeding, Michael Bralish (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that, under $ 8-41-3801(2)(b), C.R.S.2002, his benefits for mental impairment were limited to twelve weeks. We affirm.

Claimant, a police officer for the City of Thornton (employer), responded to a scene where a man was experiencing a seizure. When claimant arrived, the man was agitated, combative, and yelling obscenities. Firefighters requested claimant's assistance in restraining the man, who was then inside an ambulance. As claimant attempted to handcuff him, the man bit claimant's finger.

Upon discovering that the man had hepatitis B and was HIV-positive, claimant experienced a severe emotional and psychological reaction. The treating physician rated claimant's permanent mental impairment as fifty percent of the whole person. Employer admitted liability for the fifty percent impairment, but denied further benefits because it had already paid temporary total disability benefits for in excess of twelve weeks.

The administrative law judge (ALJ) determined that claimant was subject to the statutory twelve-week limitation on medical impairment benefits and that he had not demonstrated that he qualified for the exception to that limitation under § 8-41-301(2)(b) for a claimant who is a "victim of a crime of violence." Relying on § 16-1-104(8.5)(a)(I), C.R.S8.2002, a provision of the Code of Criminal Procedure, the ALJ determined that the term "crime of violence" includes, as relevant here, the offenses of first and second degree assault, both of which require proof of specified mental states.

The ALJ found that the man who bit claimant suffered from a seizure disorder at the time and that he did not recall the events after he received treatment. Under the circumstances, the ALJ concluded, claimant failed to prove that the man had "acted with any conscious objective or intent" to harm him.

The Panel affirmed.

I.

Claimant contends that the ALJ erred in relying on a criminal statute in concluding that § 8-41-801(2)(b) requires proof of a requisite mental state on the part of the individual who inflicted the injury. Relying on dictionary definitions of the separate words in the phrase "victim of a crime of violence," claimant argues that he had to prove only that he suffered an injury as the result of a wrongdoing by virtue of another's physical force. We perceive no basis for reversal.

Section 8-41-801(2), C.R.8.2002, sets forth the requirements for a compensable mental impairment. Section 8-41-801(2)(b) limits a claimant to twelve weeks of medical impairment benefits, inclusive of temporary disability benefits, except where the claimant was the "victim of a crime of violence" or suffered neurological brain damage as a result of the injury.

The phrase "crime of violence" is not defined in the Workers' Compensation Act (Act). Furthermore, we have found no dictionary definition for the phrase as a whole, other than a federal statutory definition that appears in Black's Law Dictionary 378 (7th ed.1999).

The rules of statutory construction require that we construe § 8-41-801(@2)(b) to further the legislative intent. To discern that intent we must give the words in the statute their plain and ordinary meanings. See Davison v. Indus. Claim Appeals Office, 72 P.3d 389 (Colo.App. No. 02CA0922, Jan. 2, 2008).

Here, both the ALJ and the Panel looked to the definition of "crime of violence" contained in the Code of Criminal Procedure, § 16-1-104(8.5)(a)(I). However, because we conclude that claimant did not prove that the man who bit him had committed any "erime" at all, we need not determine whether the Criminal Code definition of "crime of violence" would apply.

Webster's Third New International Dictionary 536 (1986) defines "crime" as "an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law of a sovereign state to the injury of the public welfare and that makes the offender liable to punishment by that law in a proceeding brought against him by the state by indictment, information, complaint, or similar criminal procedure."

Black's Law Dictionary 377 (Tth ed.1999) defines "crime" as "[a] social harm that the law makes punishable; the breach of a legal duty treated as the subject matter of a cerimi-nal proceeding."

Here, given the ALJ's factual finding that the man who bit claimant had not acted with any conscious objective or intent, claimant cannot demonstrate that the man violated any public law or would be liable to punishment for his action. Claimant has pointed to no applicable statute that would impose erim-inal liability on one who acted without conscious awareness of what he or she was doing.

We note that the man's actions under these cireumstances would also not fall within the definition of "crime" in the Colorado Criminal Code. Under § 18-1-104(1), C.R.S. 2002, a crime is "a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed."

Nor are we persuaded by claimant's argument that consideration of the mental state of the person who inflicted the injury is inconsistent with the no-fault character of the Act.

We agree that fault is generally not relevant to the issue of compensability under the Act. Colorado Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo. App.2002)(Act's major purpose is to compen-

sate work-related injuries regardless of fault). However, it is the fault of the claimant and employer that is generally disregarded. See § 8-40-102(1), C.R.S.2002 (Act is based on "mutual renunciation of common law rights and defenses by employers and employees alike"); Colorado Springs Disposal v. Indus. Claim Appeals Office, supra (employee's fault is relevant to award of benefits only in certain limited cireumstances, such as when employee is injured as a result of a willful violation of a safety rule or when employee is responsible for termination).

We are aware of no authority indicating that the fault of a third party should be disregarded, especially where, as here, evidence of such fault is relevant in proving a claimant's entitlement to a particular benefit. We thus reject claimant's contention.

IL.

Claimant also contends that the ALJ's findings fail to support the conclusion that claimant was not a victim of a crime of violence. Again, we disagree.

The ALJ found that although the man was occasionally calm while in the ambulance, he continued to be combative and confused until he received medication at the hospital. Under these circumstances, the ALJ could reasonably infer that the man had not been conscious of his actions and thus had not committed any crime.

Further, the record fully supports the findings. There was evidence that the man's seizure prevented him from controlling his actions. Another officer at the scene testified that the man was not responsive and that the officer therefore filed an incident report, rather than a criminal report, because he "did not find any criminal intent." Finally, the ALJ's findings are buttressed by the fact that the district attorney declined to file criminal charges against the man because the evidence was insufficient.

Accordingly, we perceive no error in the ALJ's determination that claimant's injuries were not the result of a crime of violence and that his entitlement to benefits for mental impairment was thus subject to the twelve-week limitation established in § 8-41-301(2)(b).

The order of the Panel is affirmed.

Judge ROTHENBERG and Judge DAILEY concur.


author: Judge CRISWELL.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Edward QUINTANO, Defendant-Appellant.
    No. 00CA2196.
    Colorado Court of Appeals, Div. I.
    July 3, 2003.
    Certiorari Granted Jan. 12, 2004.

      Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge CRISWELL.

Defendant, Robert Edward Quintano, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of sexual assault on a child. He also appeals the sentence imposed. We affirm the judgment and the sentence to incarceration, vacate the mandatory parole portion of the sentence, and remand the case with directions.

Defendant was originally charged with third degree assault, false imprisonment, crime of violence, and five counts of sexual assault on a child. The jury found him guilty of three counts of sexual assault on a child and acquitted him of the remaining charges. The trial court thereafter sentenced defendant to three concurrent sixteen-year prison terms, plus a three-year mandatory parole period.

I.

Defendant first asserts that he is denied equal protection by those statutes, §§ 16-4-103(2) and 16-4-107(4), C.R.8.2002, which require a defendant whose bond has been revoked because of alleged commission of another felony to be tried within ninety days, but which do not provide the same right to a defendant whose bond is revoked for some other reason. Hence, he asserts that he was denied his right to a speedy trial.

However, defendant did not raise this issue in the trial court. Appellate courts in this state will review under the plain error standard claims of constitutional error that are based upon occurrences during the trial. See People v. Harlan, 8 P.3d 448 (Colo.2000).

Nevertheless, where the only constitutional "error" alleged is based upon the claim that a statute denies equal protection, such a claim will be reviewed only if it has first been presented to the trial court. People v. Lesney, 855 P.2d 1364 (Colo.1993); People v. Boyd, 30 P.3d 819 (Colo.App.2001); see People v. Cagle, 751 P.2d 614 (Colo.1988).

Hence, because defendant did not question the validity of the pertinent statutes in the trial court, we decline to consider that issue.

IL

Defendant next contends that the trial court erred by denying his request for a bill of particulars and by failing to require the prosecution to elect a specific act as the basis for each charge. However, given the cireum-stances here, we conclude that any error was harmless.

A.

One purpose of a bill of particulars is to enable the defendant to prepare his defense in cases in which the indictment, although sufficient to advise him of the nature of the charges, is so indefinite in its statement that it does not afford him a fair opportunity to procure witnesses or to prepare for trial. Erickson v. People, 951 P.2d 919 (Colo. 1998).

In addition, by specifically identifying the act or omission upon which the charge is based, a bill of particulars also protects the defendant from being prosecuted twice for the same offense. Woertman v. People, 804 P.2d 188 (Colo.1991).

In ruling on a request for a bill of particulars, the trial court should consider whether the requested information is necessary for the defendant to prepare his defense or to protect against subsequent prosecution. Woertman v. People, supra; People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

Here, the information charged defendant with five counts of sexual assault on a child, all allegedly committed on the same date. It did not, however, describe the specific incident on which any individual charge was based. Defendant filed a motion for bill of particulars seeking identification of the "precise nature of the sexual contact charged" in each count, the number of sexual acts on which each charge was based, the names of witnesses, and the "precise times and locations corresponding to the sexual acts that are alleged to have occurred."

The trial court denied the motion, conelud-ing that the probable cause affidavit filed with the charging document and the discovery the prosecution had already produced provided defendant with all the information he requested in his motion.

There was no abuse of discretion in the trial court's ruling. The record demonstrates that defendant was on notice that he was charged with five separate and distinct instances of sexual contact with the victim. Indeed, at the preliminary hearing, although the prosecutor did not assign a particular charge to each separate incident of alleged sexual misconduct, she specifically identified the five incidents that were the bases of all the charges, collectively. In addition, the charging document and the probable cause affidavit provided defendant with the names of all the witnesses to the events that gave rise to the charges.

Hence, the record does not support defendant's assertion that he was unaware until trial that he would be required to present a defense against multiple instances of sexual misconduct as distinguished from one continuous act. Nor did the trial court's denial of his motion for bill of particulars result in his being forced to rely on a "defense of general denial" or deprive him of the ability to "investigate further" and to "determine if there were other witnesses."

For the first time on appeal, defendant also argues that a bill of particulars was necessary to protect him from being prosecuted again for the same acts and that the trial court's denial of his motion violated the prohibition against double jeopardy. We address and reject this argument in our consideration of his claim that the court erred in not requiring the prosecution to elect which incident was the subject of each charge and in giving the jurors a unanimity instruction.

B.

When evidence of several acts is presented at trial, any one of which would constitute the basis for the single offense charged, the prosecution may be compelled to select the act or acts on which that charge is based. People v. Lawrence, 55 P.3d 155 (Colo.App.2001). Such an election enables the defendant to prepare a defense to each specific charge, and it ensures that some jurors do not convict on one act and others on a different act. Woertman v. People, supra.

In the alternative, if the court does not require the prosecution to designate the specific act upon which the single charge is based, it must give the jurors a unanimity instruction by which they are told that either they must all agree upon a specific act as supporting the charge, or they must all agree that all the incidents referred to in the evidence occurred. Woertman v. People, supra; Thomas v. People, 803 P.2d 144 (Colo.1990).

However, such an alternative instruction is not appropriate if, as here, the defendant is charged with more than one offense and evidence of more than one incident is introduced.

To begin with, the jurors in such a case cannot agree with respect to any single charge that the defendant committed all the incidents at issue. If they did so, they could return only a single verdict of guilt. They could, of course, be instructed that they must agree that the defendant committed the same act with respect to each charge, which would insure that each guilty verdict was the result of a unanimous jury.

However, unless the prosecution and the court identify the specific incident upon which each separate charge is based, the defendant's right to be protected against being placed in double jeopardy is implicated.

Here, there were five alleged incidents of sexual assault and five charges. Yet, no charge was "connected" by court instruction or otherwise to any specific incident. Hence, when the jury returned its verdicts acquitting defendant of two assaults, but convicting him of three, nothing but bald speculation would allow any conclusion as to which of the five incidents formed the basis for the three convictions. Were this court to require a new trial of these charges, it is questionable whether such a trial could occur, considering defendant's right to be free from double jeopardy. Indeed, there is doubt whether, in such a new trial, the prosecution could introduce evidence respecting any of the five incidents, because it cannot be ascertained with any degree of confidence of which of the five incidents defendant was acquitted. See Patton v. People, 35 P.3d 124 (Colo.2001)(double jeopardy clause protects an accused from being twice placed in danger of conviction and punishment for the same offense); People v. Williams, 651 P.2d 899 (Colo.1982)(if a second prosecution for the same statutory offense requires proof of the same facts upon which a conviction was obtained in the first prosecution, double jeopardy principles would bar the second prosecution).

We conclude, therefore, that the court should have required the prosecution to elect which of the five incidents related to each of the five charges. Likewise, it erred in giving the jurors the typical unanimity instruction.

However, we also conclude that such error, given all of the cireumstances here, was harmless.

First, there can be no doubt but that the three convictions here are based upon five specific incidents. There is no question, therefore, of the incidents or of the evidence upon which all five verdicts were based.

The unanimity instruction told the jurors that, with respect to each count, they had either to agree upon the same incident or agree that all of the incidents had been proven. We assume that they followed this instruction. See People v. Moody, 676 P.2d 691 (Colo.1984). And, because they aequit-ted defendant of two counts, it is clear that they agreed upon the same separate incidents for each of the three counts upon which they returned their guilty verdicts. Concededly, however, there is no way to identify any of the five incidents as the ones relied upon by the jury for the three guilty verdicts.

Second, defendant does not assert that the evidence was insufficient to support any of the five charges. The evidence of each of the five incidents relied upon by the prosecution was legally sufficient to support a conviction, although the jury declined to convict him on two of the charges.

Finally, defendant does not assert that the trial court committed some other error, so that a new trial is mandated. Hence, double jeopardy concerns here are not presented.

In short, while it may be impossible to determine which of the five incidents the jurors relied upon, the record makes clear what incidents were being relied upon for all of the charges collectively, the jurors agreed upon a separate incident to support each of the these convictions, the evidence was legally sufficient to support a conviction for each, and no other circumstance worked to defendant's prejudice. The error of the trial court was, under these circumstances, harmless.

IIL.

In a related claim, defendant argues that the sexual assault on a child charges were multiplicitous and that two of his three convictions must be vacated on that basis. We disagree.

Under the doctrines of both merger and double jeopardy, a reviewing court must determine whether the offenses at issue constitute the same offense or are multiple offenses. People v. Leske, 957 P.2d 1080 (Colo. 1998); People v. Henderson, 810 P.2d 1058 (Colo.1991). Offenses are not the same if each offense requires proof of a fact that the other does not. People v. Robinson, 874 P.2d 458 (Colo.App.1998).

The doctrine of "multiplicity" is a related concept. Convictions are multiplici-tous if a criminal defendant is charged with the same offense in two or more counts of an indictment. People v. Borghesi, 66 P.3d 98 (Colo.2003); People v. Ellis, 30 P.3d 774 (Colo. App.2001).

Here, contrary to defendant's assertion, his three sexual assault on a child convictions are not based on a single criminal act. Rather, although the information did not specify which incident of inappropriate sexual contact supported each charge, each incident constituted a separate offense. See People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978)(although three incidents of sexual assault on the same victim occurred within a two-hour time period, they did not constitute a single criminal act and were properly prosecuted separately); see also People v. Ellis, supra (information charging two counts of extreme indifference murder was not multi-plicitous where the defendant fired three shots into two closed doors during the same criminal episode).

In so concluding, we reject defendant's assertion that, because the assaults were committed within a relatively short period of time, they necessarily constitute a "continuing course of conduct." In support of this argument, defendant relies on § 18-1-408(1)(e), C.R.S.2002, which provides:

(1) When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if ...
(e) [t/he offense is defined as a continuing course of conduct ....

Here, the sexual assault on a child offense of which defendant was convicted is not defined as a continuing course of conduct. See People v. Woellhaf, -- P.3d ---, 2003 WL 21403159 (Colo.App. No. 00CA28351, June 19, 2008).

Moreover, a defendant may be charged with and convicted of more than one offense committed during the same eriminal transaction without running afoul of § 408(1)(e) or triggering multiplicity concerns, if he has either violated more than one statute or violated the same statute more than onee. People v. Martinez, 640 P.2d 255 (Colo.App.1981); People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979); cf. People v. Saars, supra.

IV.

Defendant also contends that the trial court did not make adequate findings of aggravation to support its imposition of the maximum allowable sentence in the aggravated range and that it abused its discretion by ordering that the sentence be served consecutively to the sentence he was already serving in another case. We disagree.

Sentencing is a discretionary function, and because the trial court is more familiar with the defendant and the cireum-stances of the case, it is accorded wide latitude in its decisions on such matters. Thus, a trial court's sentencing decision will not be disturbed absent a clear abuse of discretion. People v. Watkins, 684 P.2d 234 (Colo.1984); People v. O'Dell, 58 P.3d 655 (Colo.App.2001).

In exercising its sentencing discretion, a trial court must consider the nature and elements of the offense, the character and rehabilitative potential of the offender, any aggravating or mitigating cireumstances, and the public interest in safety and deterrence. People v. Eurioste, 12 P.3d 847 (Colo. App.2000).

When a sentence outside the presumptive range is imposed, the court is required to make findings as to aggravating circumstances that justify variation from the presumptive range and the reasons for imposing the sentence. Section 18-1.3-401(7), C.R.S.2002; see also People v. Eurioste, supra. A reasonable explanation of the sentence imposed will suffice, provided the ree-ord of the sentencing proceeding indicates that the court considered the essential statutory factors. People v. Walker, 724 P.2d 666 (Colo.1986).

The fact that a sentencing court finds aggravating factors more compelling than mitigating factors does not constitute an abuse of discretion or indicate that the trial court failed to consider evidence of mitigation. People v. Hernandes-Luis, 879 P.2d 429 (Colo.App.1994). Indeed, the cireum-stances of a crime alone may justify the imposition of a lengthy sentence. People v. Vigil, 718 P.2d 496 (Colo.1986).

Here, the crimes of which defendant was convicted are class four felonies and extraordinary risk crimes. See §§ 18-1.3-401(10)(b)(IV), 18-8405, C.R.S.2002. The presumptive range of penalties for such crimes is between four and eight years and up to sixteen years in the aggravated range. See § 18-1.3-401(1)(a)(V)(A), (6), (10)(@), C.R.S.2002. Because it found that defendant is a habitual sexual offender against children, the trial court was required to sentence him to at least eight years, the maximum presumptive range sentence. See § 18-3-412, C.R.8.2002.

We note that, because the sentencing judge also presided over defendant's trial, he was familiar not only with the evidence presented at the sentencing hearing, but also with all other aspects of the case. In its findings, the court indicated that the sentence was justified by the seriousness of the offenses, defendant's criminal history, including his previous sexual assault on a child conviction, the Probation Department's determination that he presented a "great risk to community safety," and its recommendation that the court order that the sentence in this case be served consecutively to the sentence imposed in the other case.

We find no abuse of discretion in the sentence imposed. The court was sufficiently specific in its findings to provide a basis for review, and the sentence is within the range required by law, is based on appropriate considerations as reflected in the record, and is factually supported by the circumstances of the case. See People v. Fuller, 791 P.2d 702 (Colo.1990).

In so concluding, we reject defendant's claim that the trial court abused its discretion by ordering that the sentence imposed in this case be served consecutively to the sentence he was serving in the other case. And, contrary to defendant's assertion, the fact that the sentences imposed in the two cases total thirty-two years does not mean that the sentence imposed in this case was "effectively" thirty-two years. See People v. Thomas, 916 P.2d 582 (Colo. court has discretion to impose a sentence to be served consecutively or concurrently to a sentence already imposed). We likewise reject defendant's contention that the sentence was based on the trial court's conclusion that "intimidation may have been a factor in the underlying offenses, which would bring in mandatory sentencing for [a] crime of violence." Immediately after making that comment, the court indicated that, because the prosecution had not made the intimidation argument, the court was not considering that factor or applying the crime of violence statute in imposing sentence.

We also are not persuaded by defendant's argument that the trial court's prior ruling, that evidence of his prior sexual assault conviction was inadmissible at trial, precluded the court from using that conviction to support its determination that he was subject to enhanced sentencing as a habitual sexual offender against children pursuant to § 18-3-412. Although the court initially indicated that the prior conviction could not be used "for purposes of sentence enhancement," it later clarified its ruling by explaining that, while the evidence could not be used at trial, the court had "made no findings" concerning the use of the prior conviction for purposes of sentencing under the habitual offender statute.

Moreover, we note that, when the court entered its initial ruling, a postconviction motion in that other case challenging the validity of the prior conviction was pending, but by the time defendant was sentenced in this case, that motion had been denied. Thus, we find no abuse of discretion in the court's use of the prior conviction for sentencing purposes, even if doing so was inconsistent with its initial ruling. See People v. Dunlap, 975 P.2d 723, 758 (Colo.1999)(under the law of the case doctrine, "prior relevant rulings made in the same case are to be followed unless such application would result in error or unless the ruling is no longer sound due to changed conditions"); People v. Warren, 55 P.3d 809 (Colo.App.2002).

Finally, even if the court's consideration of any one of the factors it identified as supporting an aggravated range sentence was inappropriate, reversal is not warranted, because other evidence in the record supports the sentence imposed. See People v. Broga, 750 P.2d 59 (Colo.1988)(where a sentence in the aggravated range was supported by several factual considerations, only one of those factors need be legitimate to justify court's decision).

v.

Defendant finally asserts, and the People concede, that he is subject to discretionary, not mandatory, parole and that the trial court thus erred by imposing a period of mandatory parole as part of his sentence.

Defendant was convicted of sexual assaults that were committed in July 1998. Accordingly, we agree with the parties that defendant is subject to discretionary parole pursuant to § 17-2-201(5)(a.5), C.R.S.2002. See § 18-1.3-401(1)(a)(V)(C), C.R.S.2002; see also People v. Cooper, 27 P.3d 348 (Colo. 2001).

The judgment and sentence to incarceration are affirmed; the mandatory parole portion of the sentence is vacated; and the case is remanded with directions to issue an amended mittimus indicating that defendant is subject to discretionary parole pursuant to § 17-2-201(5)(a.5).

Judge VOGT and Judge GRAHAM concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 53), and § 24-51-1105, C.R.S.2002.


author: Judge GRAHAM.

text:
    Gloria J. BREKKE, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    No. 02CA0582.
    Colorado Court of Appeals, Div, IV.
    July 3, 2003.
    As Modified Aug. 7, 2003.
    Certiorari Granted Jan. 12, 2004.

      Gradisar, Trechter, Ripperger, Roth & Croshal, James M. Croshal, Pueblo, CO, for Plaintiff-Appellee.
    Faegre & Benson, LLP, Michael S. McCarthy, Ross W. Pulkrabek, Marie E. Williams, Pamela J. Traylor, Denver, CO; Cain & Hayter, LLP, Craig W. Cain, Rosalie P. Fessier, Colorado Springs, CO, for Defendant-Appellant.
   Opinion by

Judge GRAHAM.

Defendant, State Farm Mutual Automobile Insurance Company, appeals the trial court's judgment in favor of plaintiff, Gloria J. Brekke. We affirm.

Brekke was involved in a hit-and-run accident with an automobile owned by Garfield Gus Garcia. At the time of the accident, Brekke had insurance with State Farm that included uninsured motorist (UM) coverage.

Brekke contacted State Farm to recover UM benefits for the injuries she sustained in the accident. When an agreement on benefits could not be reached, Brekke requested that the dispute over UM coverage be submitted to arbitration, but State Farm refused.

Brekke then filed a complaint against Garcia and John Doe for negligence and against State Farm for payment of UM benefits. State Farm filed an answer, denying that the party who hit Brekke was negligent, that Brekke was injured in the accident, and that she was entitled to UM benefits. State Farm demanded a jury trial and paid the requisite jury fee.

Garcia failed to answer the complaint, and Brekke moved for judgment by default. Attached to the motion were records from Brekke's treating physicians and an affidavit from Brekke supporting her claim for damages. Based upon the affidavits, the trial court entered a default judgment against Garcia for $400,000 in actual and punitive damages.

In response to Brekke's motion, State Farm requested that the court "enter an order that default judgment either not be entered at this time or, in the alternative, only be entered against Defendant Garfield Gus Garcia with no binding effect upon this defendant." State Farm continued to deny that Brekke was injured in the accident and disputed the extent of her injuries State Farm thus requested that the trial court deny the default judgment against Garcia until the issue of damages was litigated. State Farm also requested that, if default judgment were entered against Garcia, it not be binding on State Farm.

The trial court determined that the default judgment entered against Garcia would not preclude State Farm from defending against the amount of damages claimed by Brekke and ordered that a hearing on damages be scheduled.

Nine months later, State Farm filed a motion for reconsideration of the trial court's order and requested a jury trial on all issues. Specifically, State Farm argued that it was not bound by the default judgment against Garcia. The trial court denied the motion, stating that:

Under the cireumstances of this case, Defendant Garcia has never filed an answer, much less a jury demand.... State Farm has previously stated [it is] contesting the damages portion of this matter and wish[es] a jury trial to resolve this issue.... State Farm's request for a "hearing" is outlined in [its] policy but does not necessarily encompass the right to trial by jury. State Farm has an absolute right to protect [its] interest in this matter, a right that this Court believes will be more than adequately protected by a hearing to the Court.

After a four-day hearing on damages, the trial court entered judgment in favor of Brekke and against Garcia and State Farm for $169,888, plus interest, for a total of $298,651.95. This appeal followed.

State Farm contends that it is not bound by the default judgment against Garcia because the judgment was not the result of an actual trial to a jury, and therefore, it is not liable for payment of UM benefits. We disagree that in this situation State Farm was entitled to a jury trial because its policy effectively waives that right, and we conclude

that it was provided a trial which was fair and adequate to protect its interests.

Colorado's uninsured motorist statute, § 10-4-609, C.R.S.2002, provides in pertinent part:

(1)(a) No automobile lability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 42-7-108(2), C.R.S. [of the Motor Vehicle Insurance Responsibility Act], under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; except that the named insured may reject such coverage in writing.

(Emphasis added.)

The purpose of the uninsured motorist coverage mandated by § 10-4-609 is to compensate an insured for loss, subject to the insured's policy limits, caused by negligent and financially irresponsible motorists. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo.1989); State Farm Mut. Auto. Ins. Co. v. Nissen, 835 P.2d 537 (Colo.App. 1992), aff'd, 851 P.2d 165 (Colo.19983). The legislative intent is satisfied by coverage that compensates a person injured by an uninsured motorist to the same extent as one injured by a motorist insured in compliance with the law. Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo.App.1992).

As pertinent here, the policy provides that, if the insurer and the insured are unable to agree on whether the insured is legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or on the amount of damages, the insured is required to take the following steps:

2, If either party does not consent to arbitrate these questions ... the <insured > shall:
a. file a lawsuit in the proper court against the owner or driver of the <uninsured motor vehicle> and us, or if such owner of driver is unknown, against us; and
b. upon filing, immediately give us a copy of the summons and complaint filed by the <insured> in that action; and
c. secure a judgment in that action. The judgment must be the final result of an actual trial and appeal, if an appeal is taken.
8. Any judgment for damages arising out of a suit brought against the owner or driver of the <uninsured motor vehicle> is not binding on us unless we:
a. are provided with a copy of the summons and complaint filed by the <insured>; and
b. have a reasonable opportunity to protect our interests in the suit.

(Emphasis added.)

Both the statute and the State Farm policy require that an insurer pay to the insured, up to the limit of the policy, whatever losses the insured proves he or she is "legally entitled to recover" from the uninsured motorist. Thus, the insured has the burden to prove that the uninsured motorist was negligent and the extent of the damages. This burden can be met in a judicial proceeding against either the uninsured motorist or the insurer or in an arbitration proceeding. Wales v. State Farm Mut. Auto. Ins. Co., 38 Colo.App. 360, 559 P.2d 255 (1976). If the insured meets this burden, then the insurer is under a statutory and contractual duty to compensate the insured for his or her losses. Briggs v. Am. Family Mut. Ins. Co., supra.

If an insurer has been given adequate notice of the proceeding and an opportunity to protect its interests, it will be bound by a judgment against the uninsured motorist. Briggs v. Am. Family Mut. Ins. Co., supra.

State Farm argues that it did not have an opportunity to protect its interests because the trial court denied its absolute right to a jury trial. We disagree.

Ordinarily, a civil litigant has a right to a trial by jury so long as a timely demand is made and the proper fee is paid. C.R.C.P. 38; Faucett v. Hamill, 815 P.2d 989 (Colo. App.1991). However, trial by jury in civil actions is not a matter of constitutional right in Colorado. Snow Basin, Ltd. v. Boettcher & Co., 805 P.2d 1151 (Colo.App.1990).

If we were to interpret the policy in the way State Farm proposes, its demand for a jury trial would trump the insured's default judgment by requiring that the insured obtain a judgment, if at all, against the uninsured motorist and State Farm only as a result of an actual jury trial. . Although the default judgment legally entitled Brekke to recover against the uninsured motorist, State Farm contends that its jury demand, in the context of the policy language, vitiates the default judgment unless and until Brekke also receives a jury verdict against State Farm. We conclude that such an additional step, if required by State Farm's policy, would violate the public policy expressed in the uninsured motorist statute.

"Parties may not privately contract to abrogate statutory requirements or contravene the public policy of this state." Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo.1998). Where insurance contract provisions dilute, condition, or unduly limit statutory coverage, they may be declared void as against public policy and unenforceable. Peterman v. State Farm Mut. Auto. Ins. Co., supra; see also Briggs v. Am. Family Mut. Ins. Co., supra, 833 P.2d at 862 (violation of public policy where "[an insurer, by refusing to be bound, can force an insured, who has already obtained a judicial determination of his losses against the uninsured motorist, to relitigate lability ... as a condition of recovery").

Here, State Farm seeks to condition recovery by its insured on an actual jury trial regarding damages, even where the insured has obtained a judgment against the uninsured motorist and where State Farm nevertheless obtained discovery and participated in a trial to the court on the issue of damages. This is not a case where a codefendant or joint tortfeasor demands a jury trial; instead, here the codefendant insurer is present at its own behest solely for the purpose of assuring that its insured is legally entitled to recover. Importantly, the policy also requires that State Farm be afforded an opportunity to protect its interests and that the insured's judgment be the product of an actual trial.

If we were to read the words "actual trial" in the policy as invalidating default judgments or consent judgments, then we would permit the policy to modify the concept of legal entitlement, which is so firmly imbedded in the uninsured motorist statute. Further, if we were to interpret the policy as requiring a full jury trial against State Farm on the question of its obligation to cover the damages or on the amount of those damages it is required to cover, we would be opting for the most inefficient and expensive way of achieving the purpose of the uninsured motorist statute. Such an interpretation would require in every instance a jury trial to determine legal entitlement of the insured, ignoring the statute's policy of requiring insurance contracts that protect insureds who are legally entitled to recover damages from uninsured motorists. Under the cireum-stances, it is difficult to imagine that a judgment-whether by default, consent, trial, or otherwise-rendered by a court of competent jurisdiction would not legally entitle Brekke to recover the damages specified by that judgment. See Vernon Fire & Cas. Ins. Co. v. Matney, 170 Ind.App. 45, 351 N.E.2d 60 (1976). In our view, such a construction would offend the public policy expressed in the statute.

However, we do not have to reach that result because we read the policy language to require "a trial" only to the extent that State Farm may "have a reasonable opportunity to protect [its] interests in the suit." We agree that the trial court properly interpreted the policy and that State Farm received precisely what it bargained for.

We therefore conclude that State Farm, having participated in a contested hearing on damages, has no further right to a jury trial on the issue of damages once default was entered in favor of its insured and against the uninsured motorist.

The judgment is affirmed.

Chief Judge DAVIDSON and Judge NIETO concur.


text:
    DEPARTMENT OF TRANSPORTATION, STATE OF COLORADO, and Board of County Commissioners, Pitkin County, Colorado, Petitioners-Appellees, v. Craig R. STAPLETON, Respondent-Appellant.
    No. 02CA1586.
    Colorado Court of Appeals, Div. IV.
    July 3, 2003.
    Rehearing Denied Aug. 7, 2008.
    Certiorari Granted Jan. 12, 2004.

      Ken Salazar, Attorney General, Harry S. Morrow, First Assistant Attorney General, Jennifer Mele, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee Department of Transportation, State of Colorado.
    John M. Ely, County Attorney, Christopher G. Seldin, Assistant County Attorney, for Petitioner-Appellee Board of County Commissioners, Pitkin County, Colorado.
    Faegre & Benson, LLP, Leslie A. Fields, John R. Sperber, M. Patrick Wilson, Denver, Colorado, for Respondent-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge GRAHAM.

Respondent, Craig R. Stapleton, appeals the trial court's judgment granting immediate possession of his property to petitioners, the Colorado Department of Transportation (CDOT) and the Board of County Commissioners of Pitkin County. We reverse and remand.

Respondent owned approximately 23.4 acres of land in Aspen, which is adjacent to Highway 82 and located north of Buttermilk Ski Area and south of the Pitkin County Airport. For over ten years proceeding this condemnation action, respondent leased portions of his property to Buttermilk for parking purposes.

Petitioners entered into an intergovernmental agreement (IGA) for the expansion of Highway 82 from two lanes to four lanes between the Aspen Business Center and Buttermilk. One of the projects outlined in the IGA, and relevant to this appeal, was the construction of parking and transit facilities on respondent's property. The original IGA contained a provision that, following the condemnation of respondent's property, the County would lease portions of the property to Buttermilk at its "fair market value." This provision was later removed.

The long-range plan, which is outlined in the Entrance to Aspen Environmental Impact Statement, was to construct a light-rail transit station and multimodal transit facility on respondent's property to reduce traffic to Aspen. This facility would be the transfer point for skier trips and commuter bus trips into the Aspen area.

Petitioners filed a petition to condemn respondent's entire 28.4 acres for, among other things, the construction of parking and transit facilities. The petition did not delineate the anticipated value or uses to be assigned to particular parcels. After the condemnation action was filed, respondent entered into a stipulation for possession of certain parcels by petitioners in exchange for $573,750. These parcels, which are not involved in this appeal, were condemned for Highway 82 improvements and a county road relocation project. Other parcels, which are not directly involved in this appeal, were condemned for airport runway clear zones, open space, and wetland replacement or mitigation.

After an immediate possession hearing, the trial court concluded:

[The predominate purpose for the acquisition of these parcels is to bring the highway expansion project within the requirements of the Clean Air Act.... The provision of overflow parking to the Buttermilk Ski Area is subordinate to that public purpose....
While it is true that none of the statutes relied upon by petitioners expressly grant [sic] a right to condemn for parking purposes, the evidence establishes that transit parking is required to comply with the Clean Air Act. Without compliance with the Clean Air Act, the project cannot be done. The Department of Transportation has the power to condemn for highway purposes. Where the parking is a required element of highway construction, the right to condemn for parking must therefore be necessarily implied.

The court required a deposit of $5,000,000 at the time it granted immediate possession.

After respondent sought extraordinary relief pursuant to C.A.R. 21, which was denied by the supreme court, a valuation hearing was held. A final order was entered, which also did not delineate between the parcels. This appeal followed.

I.

Respondent contends that the trial court erred in ruling that petitioners had the legal authority to condemn for parking and transit facilities. We agree.

It is axiomatic that the power of eminent domain is vested in the State of Colorado. Such power may not be exercised by a governmental subdivision or other entity unless the power has been delegated to it by the General Assembly, even if the purpose for which the property would be condemned is a public use within the meaning of Colo. Const. art. II, § 15. Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo.1982); Buck v. Dist. Court, 199 Colo. 344, 608 P.2d 350 (1980). Thus, the power to condemn private property lies dormant with the state until the legislature confers authority. Potashnik v. Pub. Serv. Co., 126 Colo. 98, 247 P.2d 137 (1952).

The right to condemn private property, if not expressly granted by statute, can be found only through necessary implication. However, there is a presumption against implication of authority for eminent domain. "By necessary implication" means that vague or doubtful language must be exeluded. If there is doubt, then there has been no grant of such power by the state. Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 248 P.2d 782 (1952).

If an act is silent on the subject, and the power granted can be exercised without resorting to condemnation, it is presumed that the General Assembly intended that the entity seeking possession enter the real estate market and acquire the property by contract. City of Aurora v. Commerce Group Corp., 694 P.2d 382 (Colo.App.1984).

In determining the seope of the condemnation power delegated, we construe the statutes narrowly and against the entity asserting the power. Coguina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519 (Colo. 1982); Town of Parker v. Colo. Div. of Parks & Outdoor Recreation, 860 P.2d 584 (Colo. App.1998).

Our primary task in construing a statute is to ascertain and give effect to the intent of the General Assembly. To discern legislative intent, a court should look first to the statutory language. Statutory words and phrases should be given their plain and ordinary meaning. Further, the General Assembly is presumed to have knowledge of the legal import of the words it uses. Town of Parker v. Colo. Div. of Parks & Outdoor Recreation, supra.

A.

Petitioners contend that CDOT's authority to condemn respondent's property exists by necessary implication in §§ 48-1-208(8), 48-1-210(1), and 48-3-106, C.R.98.2002. We disagree.

1.

Petitioners contend that CDOT's authority to condemn respondent's property for "state highway purposes" is necessarily implied under § 48-1-208(8), which provides, in relevant part, that "[the transportation commission ... has the power and is authorized to proceed in the acquisition of the lands of private persons for state highway purposes." Specifically, petitioners state that the "transit parking serves to enhance the operational efficiency and safety of State Highway 82, was necessary for compliance with the Federal Clean Air Act and was necessary to allow CDOT to construct the project." They reason that "[wJhere transit parking is an integral part of the State Highway improvement plan, CDOT's condemnation for transit parking is authorized as a 'state highway purpose.' " We are not persuaded.

"State highway" is defined as "a right-of-way or location, whether actually used as a highway or not, designated for the construction of a state highway upon it." Section 48-1-204, C.R.S.2002. A "highway" includes "bridges on the roadway and culverts, sluices, drains, ditches, waterways, embankments, retaining walls, trees, shrubs, and fences along or upon the same and within the right-of-way." Section 42-1-208, C.R.8.2002.

Nothing in these statutes suggests that "state highway" or "highway" refers by implication to structures not related directly to highway construction, such as parking and transit facilities.

We cannot reasonably conclude that the General Assembly intended by necessary implication to grant CDOT authority to condemn for those facilities, and thus, petitioners have failed to overcome the presumption against a necessarily implied grant of power to condemn for parking and transit facilities.

We note that the General Assembly has declined an opportunity specifically to include the powers CDOT asserts should be implied. Legislative history discloses that, in 2001, Senate Bill 01-008 was introduced, which was described, in pertinent part as follows:

Transportation Legislation Review Committee. Expands the authority of the department of transportation in connection with its powers of eminent domain, which authority is currently limited to the acquisition and disposition of property for state highway purposes, to include the acquisition and disposition of property for state transportation purposes.

The proposed bill would have expanded "State Transportation Purposes" to include "the transport of persons or property by motor vehicle, bus, truck, railroad, light rail, mass transit, or airplane." Apparently, the bill died in committee, and its short-lived status augurs against our expansion of those powers by implication.

2.

Petitioners also assert that CDOT has authority to condemn for parking and transit facilities under § 48-1-210(1), which states, in relevant part:

Whenever a part of a parcel of land is to be taken for state highway purposes and the remainder is to be left in such shape or condition as to be of little value to its owner or to give rise to claims or litigation concerning severance or other damage, the department of transportation may acquire by purchase or condemnation the whole parcel....

Section 48-1-210(1) only applies where there has been a partial acquisition of the property and a remainder parcel is left. Here, all respondent's property has been taken for various uses, with no property remaining with respondent. Because the statute does not apply to total acquisition, it has no application here.

B

Finally, petitioners assert that CDOT has authority to condemn for parking and transit facilities under § 48-8-106, which provides:

The department of transportation is authorized to purchase or condemn any land necessary for the construction of any local service road authorized by this part 1 and is also authorized to purchase or condemn any right of access appertaining to any land abutting on a state highway or on a portion of a state highway when such right of access is disturbed or destroyed by the designation of a state highway or such portion of a state highway as a freeway under the provisions of this part 1 in the same manner and form as provided by law for the purchase or condemnation of highway rights-of-way.

CDOT'"s power to condemn for local service roads includes no express or implied authority to condemn for parking and transit facilities.

B.

Petitioners also contend that the County's authority to condemn respondent's property exists in §§ 48-2-112, 43-8-107, and 29-7-104, C.R.S.2002. Again, we disagree.

1.

Section 48-2-112(2) provides that "[t]he board of county commissioners ... has the power and is authorized to proceed in the acquisition of lands of private persons for county roads." Section 48-3-107 also provides that "[bloards of county commissioners . may join with the department of transportation to acquire by ... condemnation any land or right of access appurtenant thereto necessary for the construction of any state highway, freeway, or local road service road."

There is no express or implied authority for the County to condemn for parking and transit facilities under these statutes. Thus, we reject petitioners' assertion that the parcels condemned for county roads may also be condemned for parking and transit facilities.

2.

Petitioners also assert that the County has authority to condemn for recreational parking purposes pursuant to § 29-7-104, which provides:

Any municipal corporation or board given charge of the recreation system is authorized to conduct its activities on ... private property with the consent of the owners or without such consent as provided in this section. It has authority to ... take private property for the aforesaid purposes without the owner's consent upon payment of just compensation, and exercise the right of eminent domain in accordance with the provisions of articles 1 to 7 of title 38, C.R.S., and other applicable laws and statutes.

"Recreational facility" or "recreation system" includes "such land or interest in land as may be necessary, suitable, or proper for park or recreational purposes or for the preservation or conservation of sites, scenes, open space, and vistas of scientific, historic, aesthetic, or other public interest." Section 297-107, C.R.98.2002.

Parking lots and transit facilities are not recreational uses of land as defined by § 29-7-107. Furthermore, nothing in the statute suggests that land may be condemned for parking facilities because it may be used by people seeking to gain access to recreational lands. In this respect, the County's position that parking lots serve a recreational purpose is tenuous at best; the record discloses that the County advanced a wide variety of hypothetical recreational purposes, most of which were not related to County-owned activities, but were instead incidental to parking for privately-owned ski areas and anticipated transit parking. There is no evidence, for example, that trail heads converge at the parking areas.

C.

We conclude that the General Assembly intended that when parking and transit facilities are sought, the County and CDOT be required to enter the real estate marketplace and acquire the property by contract or lease. Should the General Assembly determine to extend the County's or CDOT's powers of eminent domain to acquisition of property for parking and transit facilities, it may statutorily so direct. However, considering the historic reluctance to allow condemnation of private property where the power of eminent domain is neither express nor clearly implied by statute, see Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, supro; Potashnik v. Pub. Serv. Co., supra; Mack v. Town of Craig, 68 Colo. 337, 191 P. 101 (1920), as well as the legislative history denying CDOT's attempt to expand its eminent domain powers to "state transportation purposes," we decline to recognize such a power in petitioners. To do so would usurp the General Assembly's sole authority under the constitution to delegate the power of eminent domain.

IL.

In view of our resolution, we need not address respondent's remaining contentions.

The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Judge NIETO and Justice ERICKSON concur.


text:
    Cresencio ORTIZ, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Tire Distribution Systems, and Travelers Insurance, Respondents.
    No. 02CA1723.
    Colorado Court of Appeals, Div. V.
    July 17, 2003.
    Rehearing Denied Aug. 28, 2003.
    Certiorari Denied Jan. 12, 2004.
    Irwin & Boesen, P.C., Chris L. Ingold, Denver, Colorado, for Petitioner.

      No Appearance for Respondent Industrial Claim Appeals Office.
    Ray Lego & Associates, Justin A. Jeffrey, Englewood, Colorado, for Respondents Tire Distribution Systems and Travelers Insurance.
   Opinion by

Judge CRISWELL.

In this workers' compensation proceeding brought against Tire Distribution Systems and its insurer, Travelers Insurance (collectively employer), Cresencio Ortiz (claimant) seeks review of an order of the Industrial Claim Appeals Office (Panel) dismissing, for lack of a final order, the appeal of an order of the administrative law judge (ALJ) striking claimant's request for a division-sponsored independent medical examination (DIME). We dismiss this proceeding for lack of jurisdiction.

On August 31, 2001, an authorized treating physician placed claimant at maximum medical improvement (MMT) for his December 2000 injury. However, no medical impairment rating was assigned, and employer did not file a final admission of lability. In September 2001, claimant filed a notice and proposal to select a DIME physician, and a DIME was conducted in January 2002 pursuant to claimant's request.

In the meantime, employer had filed a motion to strike claimant's request for the DIME, alleging that it was premature because employer had not filed a final admission of liability prior to the date claimant requested the DIME. The prehearing administrative law judge (PALJ) granted the motion, and the ALJ upheld the order, concluding that claimant's January 2002 DIME, as a DIME, was void. The ALJ then ordered the Division of Workers' Compensation to proceed with employer's timely filed DIME request.

Claimant also did not ask to expand employer's request to include consideration of the question of MMI. Rather, he filed a petition to review the ALJ's order, alleging, inter alia, that the PALJ lacked jurisdiction to strike the DIME and that the DIME procedure abridged his various statutory and constitutional rights. Finding that the ALJ's order was interlocutory and, therefore, not yet appealable, the Panel dismissed claimant's petition for review.

I.

Claimant first contends that the ALJ's order is final, and therefore appealable, because he was denied benefits, including permanent disability benefits based on the impairment rating set forth on the January 2002 DIME, as well as continued temporary disability benefits. We disagree.

The Workers Compensation Act grants this court jurisdiction only to review a "final order," § 8-48-307(1), C.R.8.2002, or a "final decision," § 8-74-107(2), C.R.S., of the ICAO. These terms have traditionally been interpreted as including only those orders that grant or deny benefits or penalties. See Natkin & Co. v. Eubanks, TTS P.2d 88 (Colo. App.1989); see also § 8-48-301(2), C.R.S. 2002 (panel has jurisdiction only to review an order that "requires any party to pay a penalty or a benefit or denies a claimant any benefit or penalty.").

Of course, under appropriate cireum-stances, the district courts in this state may exercise jurisdiction to determine the validity of orders that do not grant or deny benefits or penalties. See, eg., Whiteside v. Smith, 67 P.3d 1240 (Colo.2008); Colo. AFL-CIO v. Donlon, 914 P.2d 896 (Colo.App.1995).

Here, the order, which determined that claimant's DIME was not properly obtained, did not, on its face, grant or deny claimant any penalty or benefits. Claimant, however, asserts that, from a practical standpoint, the order denying his request for a DIME denied him both temporary and permanent benefits We disagree with this characterization of the order.

First, the order did not prevent claimant from requesting that the division expand the seope of the employer-requested DIME to consider both the date of MMI and the degree of permanent impairment. See Dep't of Labor & Employment Rule VII(A)(1)(a)@), 7 Code Colo. Regs. 1101-3 (disputes about MMI not ripe for review until DIME is completed or ALJ determines that issue is ripe for hearing). And it would seemingly further the underlying purposes of the Act for the ALJ to grant such a request. See Colo. Dep't of Labor & Employment v. Esser, 30 P.3d 189 (Colo.2001)(purpose of Act is to compensate injured workers, while controlling costs and minimizing claim delays, and this purpose must be considered in interpret ing provisions of Act); Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo.App.2002)(court should avoid an interpretation of the Act that might render it unconstitutional); Bestway Concrete v. Indus. Claim Appeals Office, 984 P.2d 680 (Colo. App.1999)(statutory interpretation that would cause an absurd result should be avoided); Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App.1998)(presumption is that the General Assembly intends workers' compensation statutes to have a just and reasonable result).

Further, there has been no determination made that the impairment rating adopted by the physician in the first DIME is incorrect. The physician to be selected by the division to conduct the DIME at the employer's request, whether it be the same or a different physician, may well agree with that previous rating. And if the second physician does not agree, claimant may still present the testimony of the first physician in an attempt to overcome the second physician's opinion.

In short, if the division enters an order that determines the issues of MMI and claimant's impairment and if claimant disagrees with the Panel's conclusions, this court would then have jurisdiction to consider the various arguments that claimant now makes. Until that time, he cannot invoke the jurisdiction of this court, although the doors of other tribunals may be open to him.

IL.

We likewise lack authority to consider claimant's assertion that the Panel should have reviewed the ALJ's order, even if it is interlocutory.

The petition for review is dismissed.

Judge CARPARELLI and Judge HUME concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.