author: Judge VOGT.

text:
    MGM SUPPLY CO. and Mid-Century Insurance Co., Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Anthony L. Martinez, Respondents.
    No. 01CA1200.
    Colorado Court of Appeals, Div. IV.
    March 14, 2002.
    Rehearing Denied May 23, 2002.
    Certiorari Denied Jan. 27, 2003.

      Joel N. Varnell & Associates, Chris For-syth, Denver, CO, for Petitioners.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Law Office of O’Toole & Sbarbaro, P.C., John A. Sbarbaro, Denver, CO, for Respondent Anthony L. Martinez.
   Opinion by

Judge VOGT.

In this workers’ compensation proceeding, MGM Supply Co. and its insurer, Mid-Century Insurance Co. (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) upholding the award of permanent partial disability (PPD) benefits to Anthony L. Martinez (claimant). We affirm.

Claimant sustained an admitted industrial injury to his left shoulder. Surgery was performed to repair the shoulder separation, but claimant continued to suffer pain, even after a second surgery to remove a screw that had been placed in his shoulder during the first surgery.

After additional efforts proved unsuccessful, claimant’s treating physician recommended a joint injection as a diagnostic tool to determine whether arthroscopic surgery would be beneficial. Claimant refused to undergo further injections or surgery. As a consequence, the treating physician placed claimant at maximum medical improvement (MMI) with a zero permanent impairment rating.

Employer filed a final admission consistent with the treating physician’s rating. Claimant objected and requested a division-sponsored independent medical examination (DIME). The DIME physician agreed with the treating physician’s recommendations concerning additional surgery and, accordingly, opined that claimant had not yet reached MMI. However, after noting that claimant had refused additional surgery, the DIME physician evaluated claimant’s existing condition and assigned him a twenty-three percent whole-person permanent impairment rating.

Following an evidentiary hearing requested by employer, the Administrative Law Judge (ALJ) concluded that the DIME impairment rating had not been overcome by clear and convincing evidence, as required by § 8-42-107(8)(c), C.R.S.2001. The ALJ also found that claimant’s refusal to undergo further injections and surgeries was reasonable and afforded no basis for reducing benefits pursuant to § 8-43-404(3), C.R.S.2001, which provides for such reduction if an injured employee refuses essential medical or surgical treatment.

I.

Employer contends that the ALJ’s order awarding compensation is void because § 8-43-201, C.R.S.2001, which gives ALJs jurisdiction to hear and decide matters arising under the Workers’ Compensation Act, conflicts with article VI, § 9 of the Colorado Constitution. We disagree.

We note at the outset that this court has initial jurisdiction to address challenges to the constitutionality of the Workers’ Compensation Act. See Celebrity Custom, Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App.1995).

Statutes are presumed constitutional, and the burden is on the challenging party to prove them unconstitutional beyond a reasonable doubt. See Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901 (Colo.1993); Lobb v. Industrial Claim Appeals Office, 948 P.2d 115 (Colo.App.1997). Similarly, when the General Assembly creates an administrative agency and gives it specific enumerated powers and duties pursuant to the state’s police power, the agency’s exercise of those powers within the scope of its authority is entitled to a presumption of validity and constitutionality. Moore v. District Court, 184 Colo. 63, 518 P.2d 948 (1974).

Article VI, § 9(1) of the Colorado Constitution provides, as pertinent here, that district courts “shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein.” Although this provision confers broad jurisdiction on district courts, that jurisdiction may be limited by the General Assembly. State v. Borquez, 751 P.2d 639 (Colo.1988).

The Workers’ Compensation Act, enacted by the General Assembly under the state’s police power, see School District No. 1 v. Industrial Commission, 66 Colo. 580, 185 P. 348 (1919), gives ALJs, rather than district courts, original jurisdiction to hear matters arising under the Act. See § 8-43-201 (“[t]he director and administrative law judges employed by the division of administrative hearings in the department of personnel shall have original jurisdiction to hear and decide all matters arising under [this Act]”).

In Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86 (Colo.App.1998), a division of this court concluded that, in light of the General Assembly’s decision to make proceedings under the Act the exclusive remedy for work-related injuries, § 8-43-201 precluded the district court from addressing the Colorado Compensation Insurance Authority’s civil complaint seeking repayment of benefits from workers’ compensation claimants. See also Packaging Corp. v. Roberts, 169 Colo. 316, 320, 455 P.2d 652, 654 (1969)(observing that, although Colo. Const, art. VI, § 9 vests district courts with original jurisdiction in civil cases, “[i]f the plaintiff was an employee at the time the injury occurred, the Industrial Commission would have exclusive jurisdiction of the matter”).

Although these cases do not directly address whether § 8-43-201 conflicts with article VI, § 9, we note that the supreme court rejected a similar constitutional challenge in Curtiss v. GSX Corp., 774 P.2d 873 (Colo.1989). In that case, the claimant argued that the Workers’ Compensation Act violated the right of access to the courts set forth in Colo. Const, art. II, § 6, which states that courts of justice shall be open to every person and a speedy remedy afforded for every injury. The supreme court disagreed, reasoning that, because the claimant had no right to sue his statutory employer in tort, his rights under article II, § 6 were not violated.

We similarly conclude that § 8-43-201 does not violate article VI, § 9 of the Colorado Constitution.

Contrary to employer’s contention, workers’ compensation cases are not ordinary civil disputes between “private parties litigating private rights” that must be resolved in the courts. Rather, the parties in workers’ compensation proceedings have expressly surrendered common law rights, remedies, and proceedings in exchange for the benefits of the Act — namely, compensation to the employee for job-related injuries and immunity for the employer from common law claims. See Kandt v. Evans, 645 P.2d 1300 (Colo.1982); see also Frohlick Crane Service, Inc. v. Mack, 182 Colo. 34, 510 P.2d 891 (1973); Colorado Compensation Insurance Authority v. Baker, supra.

We are also unpersuaded by employer’s related argument that ALJs should not be able to decide workers’ compensation cases because, unlike district court judges, they are not subject to popular vote in order to be retained in office. Any right the parties may have to have their disputes considered by judges subject to popular vote is protected by the provisions of the Act authorizing judicial review by direct appeal to this court. See § 8-43-307, C.R.S.2001; Roper v. Industrial Commission, 93 Colo. 250, 25 P.2d 725 (1933); cf. Allison v. Industrial Claim Appeals Office, 884 P.2d 1113 (Colo.l994)(for-mer statute authorizing review only by application for writ of certiorari was not sufficient to protect claimant’s right of access to the courts).

In sum, employer has not overcome the presumption that § 8-43-201 is valid and constitutional. Therefore, the ALJ’s order will not be set aside on this basis.

II.

In related arguments, employer contends that the ALJ erred in concluding that the DIME rating had not been overcome. Specifically, employer argues that (1) the DIME impairment rating could not be sustained because, contrary to the ALJ’s finding, claimant was not at MMI when the rating was assigned; and (2) the record does not support the ALJ’s determination that claimant’s refusal to undergo further treatment was reasonable. We are not persuaded.

A party disputing a DIME permanent medical impairment determination must overcome that determination by clear and convincing evidence. Section 8^42-107(8)(c).

Whether that burden of proof has been satisfied is a question of fact for the ALJ. On review, the ALJ’s findings must be upheld if they are supported by substantial evidence. Further, we must view the evidence as a whole and in the light most favorable to the prevailing party and must defer to the ALJ’s credibility determinations and resolution of conflicts in the evidence. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995).

A.

We reject employer’s contention that the ALJ’s decision regarding claimant’s MMI status was not supported by substantial evidence.

MMI is defined as that point in time when any medically determinable physical or medical impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition. Section 8-40-201(11.5), C.R.S. 2001; Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App.1995).

If there are any ambiguities in a DIME physician’s report regarding whether a claimant is at MMI, resolution of such ambiguities presents a question of fact for the ALJ to resolve. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App.2000).

Evaluation for permanent disability cannot precede the determination that the claimant has reached MMI. See Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo.App.1983)(permanent disability generally cannot be determined until physicians treating claimant for work-related injuries advise that they can do nothing further for claimant).

However, as the ALJ implicitly recognized here in interpreting certain arguably inconsistent portions of the DIME physician’s report, a claimant is at MMI as a matter of law if he or she refuses to submit to the only treatment currently proposed to improve his or her condition. See Dziewior v. Michigan General Corp., supra. Thus, if there was evidence to establish that claimant refused to submit to the treatment proposed to improve his condition, the DIME physician could properly assign a permanent disability rating.

The record does not support employer’s contention that the finding of MMI was premature because claimant had not indicated that he would be opposed to physical therapy. Although employer relies on a statement by the DIME physician that further rehabilitation with physical therapy might result in improved range of motion and be worth a trial, the DIME physician stated in the immediately following sentences: “However, due to the underlying pathology, it is doubtful that this would result in long-term sustainable benefits.... Ultimately, surgery may be the only answer to reducing [claimant’s] pain to a more tolerable level on a long-term basis.” Moreover, there is nothing in the record to indicate that claimant was in fact offered additional physical therapy but refused to pursue it; and claimant’s treating physician placed him at MMI based specifically on his refusal to undergo further surgery.

Thus, we perceive no error in the ALJ’s findings or conclusions regarding the MMI issue.

B.

Nor do we agree that the ALJ was required to And the proposed surgery posed unusual risks before she could find that claimant’s refusal of the surgery was reasonable.

Section 8^13-404(3), C.R.S.2001, provides that a claimant’s benefits may be reduced or suspended if the claimant “refuses to submit to such medical or surgical treatment ... as is reasonably essential to promote recovery.”

The reasonableness of a claimant’s refusal to submit to treatment is a question of fact for the ALJ. The ALJ’s determination is not subject to revision on review absent an abuse of discretion. See Hays v. Industrial Commission, 138 Colo. 334, 333 P.2d 617 (1958).

Claimant testified that, in addition to the two surgeries on his left shoulder, he had previously undergone four other surgeries for work-related injuries, none of which had been successful. He did not want any further surgery on his shoulder because, based on his experience, he did not believe more surgery would provide relief. Employer’s expert witness testified that the proposed procedure would involve the normal risks of surgery-infection, failure to heal, postoperative pain, and risk of anesthesia. The witness did not dispute that there was no guarantee that the surgery would be successful. He also conceded that, if surgery was not going to be performed, there was no need for the proposed injection.

This evidence was sufficient to support the ALJ’s determination that claimant’s refusal to submit to further surgery was reasonable.

Contrary to employer’s contention, claimant did not have to establish that the surgery posed unusual risks before he could be justified in refusing it. Even where surgery poses only the “usual” risks, the employer still must show that the surgery is calculated to effect a cure before § 8-48-404(3) may be invoked to reduce or suspend benefits. See Cain v. Industrial Commission, 136 Colo. 227, 315 P.2d 823 (1957). It was within the ALJ’s discretion to conclude that the latter showing had not been made.

Because the record supports the ALJ’s refusal to reduce claimant’s permanent disability benefits under § 8-43-404(3), the remand requested by employer to reconsider the impairment issue is unnecessary.

The order is affirmed.

Judge MARQUEZ and Judge TAUBMAN concur.


source: Caselaw Access Project

author: Judge MARQUEZ.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrea DARBE, Defendant-Appellant.
    No. 99CA2521.
    Colorado Court of Appeals, Div. IV.
    May 9, 2002.
    Rehearing Denied Aug. 15, 2002.
    Certiorari Denied Jan. 21, 2003.

      Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for DefendanG-Appellant.
   Opinion by

Judge MARQUEZ.

Defendant, Andrea Darbe, appeals the judgment of conviction entered on a jury verdict finding her guilty of second degree murder committed in the heat of passion. She also appeals her sentence to a term of twenty-two years in the Department of Corrections. We affirm.

Evidence was presented at trial that on the evening of December 18, 1998, defendant shot and killed her father. At the time of the shooting, there were four people in the father’s gun shop where the shooting occurred, the father, defendant’s mother and sister, and defendant. However, the testimony of the mother, sister, and defendant conflicted.

Defendant testified that during the previous week she was fearful of black men after being robbed at gun point while at her place of employment. Not wanting to be prejudiced as she had observed her father to be, she went to her father’s shop the evening of December 18 to explain things to him “so he would stop being the way he was.” Instead of talking about prejudice, she began talking and arguing with her father about how he had been treating her mother. According to defendant, she told her father that “if he hurt her [mother] ever again, [she] would kill him.” Her father then proceeded to remove a gun from the holster he was wearing, cocked the gun, handed it to defendant, and said, “Go ahead and kill me because I’m not leaving her alone.” Defendant stated that as he stepped towards her, she began shooting and continued to shoot until the gun was empty.

Defendant also presented extensive evidence of a history of physical and verbal abuse committed by her father against her, her mother, and her sister. Although the trial court instructed the jury on self-defense and accepted a portion of defendant’s theory of defense instruction, it refused the remainder of defendant’s tendered instructions on domestic violence.

I.

Defendant first contends that the trial court committed reversible error by refusing to instruct the jury that it could consider evidence of domestic violence in deciding whether defendant acted in self-defense or defense of others. We disagree.

Defendant tendered two instructions pertaining to self-defense. First, defendant tendered an instruction informing the jury of her right to act on appearances, which the trial court rejected in its entirety. Defendant does not challenge that ruling.

Defendant also tendered a second instruction, which stated:

[Defendant’s] defense is that she acted in defense of persons as otherwise described in these instructions; and that [victim’s] repeated physical, verbal and mental abuse, including threats to kill [defendant], her mother and her sister, reasonably caused her to act in self-defense and/or defense of others.
The evidence in this case has raised an issue concerning domestic violence. Domestic violence is not in and of itself a defense to a crime. However, if you find that [defendant] did suffer from domestic violence, that is evidence which you can use in deciding the issues relating to the affirmative defense of self-defense and defense of others.

The trial court agreed to submit the first paragraph of this instruction, but refused to submit the second paragraph, stating that the jury was adequately instructed on the issues in the case and that the theory of defense, without the language regarding domestic violence, was appropriately stated.

The trial court also provided the following instruction on self-defense, which tracked the language in CJI — Grim. 7:17 (1983) and conformed to § 18-1-704, C.R.S.2001:

It is an affirmative defense to the crime of Second Degree Murder that the defendant used deadly physical force because
1. she reasonably believed a lesser degree of force was inadequate, and
2. had reasonable grounds to believe, and did believe, that she or another person was in imminent danger of being killed or of receiving great bodily injury, or
3. the other person is committing or reasonably appeared to be about to commit assault in the first degree or assault in the second degree.

A.

Defendant asserts that the trial court’s instruction did not inform the jurors that they could consider prior acts of domestic violence in determining whether her actions were reasonable. In her view, the instruction could have led the jurors to conclude that the history of abuse committed against defendant was not to be considered in determining whether she acted in self-defense or defense of others. We conclude the jury was adequately instructed.

When the record contains any evidence tending to establish self-defense, a defendant is entitled to have the jury properly instructed with respect to that defense. Idrogo v. People, 818 P.2d 752 (Colo.1991); People v. Garcia, 1 P.3d 214 (Colo.App.1999), aff'd, 28 P.3d 340 (Colo.2001).

An instruction couched in the language of the statute is generally considered to be sufficient. Further, it is unnecessary to give an instruction that is encompassed in other instructions given by the court. People v. Garcia, supra.

Self-defense under § 18-1-704 takes into account both the reasonable belief and the actual belief of the defendant. People v. Toler, 981 P.2d 1096, 1099 (Colo.App.1998)(court may properly refuse to give an instruction that calls only for a subjective test), aff'd, 9 P.3d 341 (Colo.2000).

A self-defense instruction based on § 18-1-704 was expressly approved in Beckett v. People, 800 P.2d 74 (Colo.1990), as adequately advising the jury that it is to consider the totality of the circumstances in evaluating the reasonableness of the defendant’s actions. Likewise, in Hare v. People, 800 P.2d 1317 (Colo.1990), the supreme court held that the instruction, which was very much like the self-defense instruction given here, permits the jury to consider, from the defendant’s viewpoint, whether the defendant was justified in using physical force in self-defense.

Evidence of a victim’s prior acts of violence may, in certain circumstances, be considered in the context of self-defense. See People v. Laurson, 15 P.3d 791 (Colo.App.2000)(self-defense instruction permitted jury to consider the reasonableness of the defendant’s actions given his knowledge of the victim’s prior acts of violence); People v. Gallegos, 950 P.2d 629 (Colo.App.1997)(self-defense instruction permitted jury to consider whether the defendant acted reasonably given the victim’s history of aggression towards him); People v. Yaklich, 833 P.2d 758, 761 (Colo.App.1991)(evidence of battered woman syndrome may, in certain circumstances, be considered in the context of self-defense).

As defendant points out in her opening brief, a division of this court has approved a battered woman syndrome instruction nearly identical to the portion of defendant’s second tendered instruction that the trial court rejected here. See People v. Garcia, supra. However, the jury in that case was not given an instruction like the one the trial court approved here. The instruction given here described defendant’s defense and stated her claim that the physical, verbal, and mental abuse by the father against defendant and her family reasonably caused her to act in self-defense or the defense of others.

We agree that defendant’s knowledge of prior acts of domestic violence was relevant evidence for the jury to consider and that the rejected jury instruction was a correct statement of the law. However, it is not error for a court to refuse a tendered instruction, even if correct in legal effect, if the other instructions given adequately apprise the jury of the law. People v. Ridenour, 878 P.2d 23, 25 (Colo.App.1994).

Here, not only was the jury properly instructed, but also defendant was permitted to present extensive evidence of her exposure to domestic violence, and defense counsel was allowed to comment on that subject in opening statements and closing arguments. Defendant testified that she was the victim of physical and verbal abuse at the hands of her father throughout childhood until she was sixteen years old, although she admitted that at the time of the shooting she had not lived with her father for three years. Her testimony regarding family abuse was corroborated by her sister, her mother, and several family friends. In addition, a domestic violence expert testified on defendant’s behalf that because of defendant’s prior exposure to domestic abuse at the hands of her father, at the time of the shooting she “had direct fear for herself, her life, and her family.”

Finally, the instruction on self-defense given here adequately advised the jury that it was to consider the totality of the circumstances in evaluating the reasonableness of defendant’s actions. See Beckett v. People, supra; Hare v. People, supra. The self-defense instruction did not prohibit the jury from considering whether defendant suffered from domestic violence or considering evidence of domestic violence with respect to the affirmative defense of self defense. The cases from other jurisdictions on which defendant relies do not involve the sort of instructions given here and thus do not persuade us to reach a different result.

We conclude that the trial court did not err in rejecting defendant’s additional self-defense instructions. See People v. Laurson, supra; People v. Gallegos, supra.

B.

Nor are we persuaded by defendant’s contention that the prosecutor’s cross-examination of defendant’s expert witness and his comments during closing argument warranted the giving of the rejected self-defense instructions.

Defendant complains of two instances during trial where the prosecutor argued that the jurors could not consider defendant’s background in deciding whether her actions were consistent with those of a reasonable person.

Defendant first points to the following colloquy during the prosecution’s cross-examination of defendant’s expert witness:

Prosecutor: Well, when we talk about reasonable, we are talking about what is reasonable to most people, right?
Witness: Absolutely, we are talking about what is reasonable to most people. But again, [defendant] has been the victim of some pretty traumatic abuse. And you and I — what seems amenable to us, is not fair to put that same standard to [defendant]
Prosecutor: So does that mean that the law applies differently to [defendant] in your opinion?
Court: Objection sustained.
Prosecutor: So she is different than a normal reasonable person.
Witness: Her reactions are going to be ■ different in my opinion.

Defendant also complains that the prosecutor persisted in misstating the law of self-defense during closing argument by arguing that the term “reasonable person” in the jury instruction meant: “A reasonable person in [defendant’s] place out there. Not a person with [defendant’s] background. It’s not a person with what has happened to her in the past, it’s a reasonable person. That’s what the instruction says.”

First, we note that the prosecutor’s remarks during closing were made in reference to the jury instruction on provocation, not the instruction on self-defense. The instruction on self-defense used the term “a person reasonably believes,” not “reasonable person” as set forth in the instruction on provocation, which referred to “a highly provoking act of the intended victim which affected the defendant sufficiently to excite such an irresistible passion in a reasonable person.”

Second, the phrase “reasonable person” as used in an analogous context in the statute defining heat of passion manslaughter, has been defined to mean an objectively reasonable individual and not a subjectively reasonable one possessing the individual defendant’s personality traits or defects. See People v. Dooley, 944 P.2d 590, 594 (Colo.App.1997). Thus, even though the charge against defendant was second degree murder, the prosecutor’s remarks during closing were a correct statement of the law of provocation.

Under these circumstances, it was also reasonable for the prosecutor to attempt to elicit an admission from defendant’s expert witness that defendant’s actions were not objectively reasonable.

Consequently, the prosecutor did not misstate the law, and his comments did not necessitate additional instructions.

II.

Defendant next contends that the prosecutor engaged in repeated instances of misconduct that deprived defendant of her right to a fair trial and require reversal. We conclude that even if the prosecutor’s comments were at times improper, they do not warrant reversal of defendant’s conviction.

A.

Defendant first asserts that the prosecutor improperly attempted to appeal to the emotions of the jurors by arguing that defendant’s conduct was a “moral choice.” We perceive no reversible error.

1.

Defendant first points to the following colloquy during the prosecutor’s cross-examination of defendant:

Prosecutor: Now, you’re 22 years old? You [were] 22 years old then, were you not?
Defendant: Yes.
Prosecutor: People make their own decisions in life, yes?
Defendant: Pretty much, yes.
Prosecutor: They make their own moral choices?
Defense Counsel: I’m going to object as redundant and asked and answered.
The Court: I’m going to sustain that objection.
Prosecutor: On December 18, 1998, you made the moral choice to [shoot] your dad, did you not?
Defense Counsel: Object to — object as answered [sic] and answered.

After defense counsel objected, the court called both counsel to the bench and admonished the prosecutor, stating, “I’m concerned about.your choice of words because I think that’s really inflammatory and they’re prejudicial. And we are not here to decide whether or not she made the right moral choice. I don’t think that’s a proper question.” At defendant’s request, the court instructed the jury to “disregard the [prosecutor’s] last question.”

Here, defendant’s specific objection was to redundancy, not to the relevance or prejudicial impact of “moral choice.” Further, the trial court instructed the jury not to consider the prosecutor’s comment. Unless there is a showing to the contrary, a reviewing court must presume that the jury followed the court’s instruction, and thus, we perceive no error. See People v. Ramirez, 997 P.2d 1200 (Colo.App.1999), aff'd, 43 P.3d 611 (Colo.2001).

2.

Defendant contends, however, that the prosecutor persisted during closing argument in asserting that defendant must be found guilty because she made the “moral choice” to pull the trigger. The prosecutor stated without objection:

[Defendant] testified. What does she tell you? She tells you that she goes in, and again ... it’s a constant theme through that whole thing that everything in every person’s life in this family, we blame it on dad. We don’t make personal choices. We just choose to blame it on dad.

Counsel may comment on the evidence admitted at trial and the reasonable inferences that can be drawn therefrom, but may not misstate or misinterpret the law. People v. Shepherd, 43 P.3d 693 (Colo.App.2001). It is impermissible for a prosecutor to use arguments that are calculated to inflame the passions or prejudice of the jury or that tend to influence jurors to issue a verdict based on preexisting biases rather than on facts in evidence and inferences drawn from those facts. People v. Dunlap, 975 P.2d 723 (Colo.1999).

Here, the prosecutor used the term “personal choices,” not “moral choice.” Further, contrary to defendant’s assertion, these comments did not improperly appeal to the passions or prejudices of the jury, nor did they encourage the jury to issue a verdict based on preexisting biases rather than facts in evidence. See People v. Dunlap, supra. The prosecutor’s remarks were not inappropriate in light of the evidence presented. See People v. Shepherd, supra; see also People v. Williams, 996 P.2d 237 (Colo.App.1999)(prosecutor’s remark that drag dealing is immoral and wrong was not improper).

Accordingly, we find no error was occasioned by these remarks.

B.

We also disagree with defendant’s contention that the prosecutor repeatedly “misin-structed” the jurors on the applicable law of the case. Defendant specifically complains that the prosecutor argued during cross-examination of defendant’s expert witness and during closing argument that the jurors could not consider defendant’s background or what happened to her in the past in deciding whether her actions were consistent with those of a reasonable person.

As discussed in Part I, the prosecutor did not misstate the law by asking defendant’s expert whether defendant’s reactions were different from those of a normal reasonable person, or by arguing that the meaning of the phrase “reasonable person” in the jury instruction on provocation was to be measured by an objective standard. See People v. Dooley, supra.

C.

Defendant next contends that the prosecutor improperly denigrated defense counsel and improperly expressed his opinion of the defense theory. We disagree.

Arguments made for the obvious purpose of denigrating defense counsel are improper and constitute professional misconduct. See People v. Jones, 832 P.2d 1036, 1038 (Colo.App.l991)(eiting 1 ABA, Standards for Criminal Justice, Standard 3-5.2 (2d ed.1986)). Thus, it is improper for a prosecutor to assert that opposing counsel knows that the accused’s ease is not meritorious. People v. Ramirez, supra.

Here, during closing argument the prosecutor stated:

Counsel in this ease is counting on two simple bets. He’s counting on one bet, that you guys dislike [the victim] so much there’s no way you could find [defendant] guilty. He is counting on a second bet. A second bet is that you have so much sympathy for her that you cannot find her guilty.
That’s not what we are here to do. That’s not what a court of law is for. Ladies and gentlemen, we live in the land of laws. Our country is governed by laws. Our country is not governed by emotions.

Defendant contends that by arguing that defense counsel was “counting” on the jurors not following the law, the prosecutor improperly suggested that defense counsel knew defendant’s case was not meritorious and lacked a good faith basis for asserting self-defense and defense of others. We disagree.

Defense counsel did not object to these remarks; therefore we review them for plain error. Plain error is that which so undermines the fundamental fairness of a trial that it casts serious doubt on the reliability of the ultimate verdict. Prosecutorial misconduct amounts to reversible plain error only where there is a substantial likelihood that it affected the verdict or deprived the defendant of a fair and impartial trial. Harris v. People, 888 P.2d 259, 267 (Colo.1995).

Unless a prosecutor’s comment is flagrant, or glaringly or tremendously improper, it is not plain error. People v. Williams, supra, 996 P.2d at 244.

Here, the jury was instructed: “Your decision must be made by applying the rules of law which I give you to the evidence presented at trial. Neither sympathy nor prejudice should influence your decision.” The prosecutor’s remarks were made in the context of encouraging the jury to follow the law and to avoid deciding the issues based on emotion. Under these circumstances, we cannot say that the prosecutor’s comments constituted plain error. See People v. Williams, supra.

D.

We also reject defendant’s contention that the prosecutor improperly appealed to the jurors to trust the credibility of the prosecution and its interpretation of the evidence.

It is improper for a prosecutor to express a personal opinion as to the veracity of a witness or to refer to his or her honesty or integrity as a public official. People v. Williams, supra.

Here, the prosecutor argued that a ten-second interval did not support defendant’s theory of acting out of fear and that the two fatal gunshot wounds were inflicted while the victim was lying on the floor. Defense counsel countered by stating, “there is absolutely no evidence to support [the prosecutor’s] theory,” and suggested that the two fatal shots were fired while defendant was standing up and the victim was moving towards her.

During rebuttal, the prosecutor responded: [Defense counsel] says that ... the prosecution is just going so far that we are just essentially making up stuff just to convict [defendant]. I’m not making up evidence. The evidence speaks for itself. You guys can judge. You’re intelligent people. The prosecution is not going to lie about what happened that night.

We agree with defendant that the prosecutor’s remarks improperly suggested that the jurors should trust the prosecution’s judgment rather than their own interpretation of the evidence. However, defendant did not object to these remarks, and under the circumstances, this isolated statement does not rise to the level of plain error. See People v. Williams, supra.

E.

Additionally, defendant contends that the cumulative prejudicial effect of the prosecu-torial misconduct seriously undermined the fundamental fairness of defendant’s trial and requires reversal. We disagree.

Where individual errors do not show the absence of a fair trial, reversal is not required. People v. Dore, 997 P.2d 1214, 1223 (Colo.App.1999).

While one of the prosecutor’s comments was improper, we cannot say that this remark so undermined the fundamental fairness of the trial that it warrants reversal of defendant’s conviction. See People v. Dore, supra.

III.

Finally, defendant contends the trial court erred in concluding that second degree murder committed in the heat of passion is subject to crime of violence sentencing under § 16-11-309, C.R.S.2001, and is an extraordinary risk offense under § 18-1-105(9.7), C.R.S.2001. Defendant argues that both the plain language and the history of amendments to § 18-3-103(4) indicate that the General Assembly did not intend for persons convicted of second degree murder committed in the heat of passion to be sentenced in accordance with § 16-11-309. We disagree.

The crime of murder in the second degree is defined in § 18-3-103, C.R.S.2001, which provides in relevant part:

(1) A person commits the crime of murder in the second degree if the person knowingly causes the death of a person. „
(3)(a) Except as otherwise provided in paragraph (b) of this subsection (3), murder in the second degree is a class 2 felony, (b) ... [M]urder in the second degree is a class 3 felony where the act causing the death was performed upon a sudden heat of passion....
(4) A defendant convicted pursuant to subsection (1) of this section shall be sentenced by the court in accordance with the provisions of section 16-11-309, C.R.S.

Section 16-11-309 provides that a person convicted of a crime of violence shall be sentenced to a term of incarceration of at least the midpoint in the presumptive range, but not more than twice the maximum term.

The presumptive range for a class three felony is between four and twelve years imprisonment. See § 18~l-105(l)(a)(V)(A), C.R.S.2001. However, under § 18-1-105(9.7), the presumptive range for a class three felony is increased to between four and sixteen years when the felony is a crime of violence. Therefore, a class three felony that is also a crime of violence requires a sentence in the range of ten to thirty-two years imprisonment. See § 16-11-309.

Here, the trial court found that defendant was convicted of a crime of violence and sentenced her to twenty-two years imprisonment. This sentence is supported by a recent decision by a division of this court concluding that second degree murder is a per se crime of violence, even if committed in the heat of passion. See People v. Martinez, 32 P.3d 582, 584 (Colo.App.2001).

In Martinez, after examining both the statutory language and the history of the 1996 amendments to § 18-3-103, the division concluded that the elements that must be established to prove the commission of the single offense of second degree murder are set forth in § 18-3-103(1), and the penalty provisions for the offense are set forth in § 18-3-103(3) and (4). Therefore, a defendant convicted of second degree murder committed in the heat of passion has been convicted pursuant to § 18-3-103(1). People v. Martinez, supra; see also People v. Farbes, 973 P.2d 704 (Colo.App.1998)(finding first degree assault committed under the heat of passion was subject to crime of violence sentencing under a similarly worded statute).

We find the reasoning in Martinez persuasive and applicable to the present case. Although defendant compares language of a prior statute providing that “a defendant convicted pursuant to this section” and the language of the present statute providing “pursuant to subsection (1) of this section,” that comparison does not persuade us that Martinez was wrongly decided.

Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), defendant nevertheless contends that the Martinez division erred in concluding that the absence of heat of passion is not an “element” of second degree murder. Defendant asserts that under Apprendi the absence of heat of passion is an element of second degree murder because it is a fact that, if proved by the prosecution beyond a reasonable doubt, enhances the penalty for the offense. Therefore, according to defendant, the “elements” of second degree murder committed in the heat of passion are set forth both in subsection (1) and subsection (3) of § 18-3-103. We disagree.

The Supreme Court in Apprendi held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363-64, 147 L.Ed.2d at 455.

We note that here the issue of lack of provocation was submitted to the jury for determination by proof beyond a reasonable doubt. Therefore, the concerns raised in Apprendi about the need to have such issues decided by a jury rather than a judge are not present here.

Further, contrary to defendant’s assertion, heat of passion is a sentence mitigating factor, the presence of which serves to reduce the felony level of second degree murder from a class two to a class three felony, rather than a separate offense. People v. Garcia, 28 P.3d 340 (Colo.2001); People v. Lee, 30 P.3d 686 (Colo.App.2000).

Consequently, defendant was sentenced within the appropriate range. See People v. Martinez, supra.

The judgment and sentence are affirmed.

Judge TAUBMAN and Judge VOGT concur.


author: Judge KAPELKE.

text:
    Michael LEMING, Petitioner and Cross-Respondent, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Respondent, and Rockwell International and Travelers Insurance, Respondents and Cross-Petitioners.
    No. 01CA0865.
    Colorado Court of Appeals, Div. I.
    May 9, 2002.
    As Modified on Denial of Rehearing July 25, 2002.
    Certiorari Denied Jan. 27, 2003.

      Brauer, Buescher, Valentine, Goldhammer, Kelman & Eckert, P.C., Joseph M. Gold-hammer, Denver, Colorado, for Petitioner and Cross-Respondent.
    Ken Salazar, Attorney General, Mark Ger-ganoff, Assistant Attorney General, Denver, Colorado, for Respondent.
    Blackman & Levine, L.L.C., Lawrence D. Blackman, Lynda S. Newbold, Denver, Colorado, for Respondents and Cross-Petitioners.
   Opinion by

Judge KAPELKE.

In this workers’ compensation proceeding, petitioner, Michael Leming (claimant), as well as respondents, Rockwell International and Travelers Insurance (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) upholding the order of the Administrative Law Judge (ALJ). The ALJ awarded claimant medical benefits, but determined that he is not entitled to disability benefits. We affirm the Panel’s order as to medical benefits and set it aside as to disability benefits.

On March 12, 1993, claimant was diagnosed with chronic beryllium disease (CBD). The parties stipulated that he had contracted the disease as a result of exposures during his work with employer, which ended in 1979.

In 1993, claimant’s condition appeared to be subclinical based upon test results indicating excellent exercise tolerance, near normal pulmonary function, and a near normal CT scan of the chest. His test results remained at the near normal level in 1997.

On October 13, 1998, claimant’s authorized treating physician placed him at maximum medical improvement (MMI) as of August 27, 1998, and assessed a five percent whole person impairment based upon his cough, shortness of breath, and mild gas exchange abnormality at maximum exercise.

In a report dated March 17, 1999, the treating physician reiterated those findings and opined that claimant had experienced an onset of disability that coincided with the date of his diagnosis in May 1993. The physician also stated that claimant “had physical impairment sufficient to affect his functioning in the labor market from that date, based on symptoms and based on evidence of a gas exchange abnormality detected during exercise beginning in 1993, along with his pulmonary physiology.” The physician recommended continued monitoring of claimant’s condition.

A physician selected by employer evaluated claimant in May 1999. In his report, the physician found that claimant had no present pulmonary or other disability that could be related to his probable subclinical CBD and also found that a date of onset of disability could not then be determined. He further stated: “[S]ince one cannot improve from a normal state, it is my opinion that [claimant] reached maximum medical improvement on 25 September 1992, and clearly, by the AMA Guides Third Edition Revised, has a 0% permanent partial impairment.”

Claimant then underwent a division-sponsored independent medical examination (DIME) on September 13, 1999. The DIME physician found that claimant

[p]robably has subclinical chronic beryllium disease (CBD). However, ... when one takes into account his variable and often poor effort and cooperation with the pulmonary function tests, there has been no significant change since he was first diagnosed in February, 1993. Further he continues to have a clearly normal exercise capacity-Since [claimant] has no present pulmonary or other disability that could be related to his probable subclinical CBD, one cannot give a date of onset of disability at this time. Indeed, given the stability of his cardiopulmonary function since 1993, it is unlikely, although not impossible, that he would develop a disability in the future.... Since one cannot improve from a normal state, it is my opinion that [claimant] reached maximum medical improvement on [August 27, 1998], and clearly» by the AMA Guides to the Evaluation of Permanent Impairment, ed 3 (revised) has a 0% permanent partial impairment.

After receiving the DIME results, employer filed an application for a hearing to consider medical benefits and permanent partial disability benefits (PPD). In claimant’s response, he stated he was seeking only medical benefits and asserted that consideration of the issues of PPD and MMI was premature.

At the hearing before the ALJ, claimant indicated he was not contesting the DIME. He acknowledged he had never suffered the onset of disability and stated that, although he had the physical, verifiable signs of the disease, he did not have any impairment. Thus, he again maintained that consideration of the issues of MMI and PPD were premature and that the only issue for determination was his entitlement to medical benefits. Employer argued that, despite the zero percent impairment rating, claimant suffered a disability. According to employer, because the onset of the disability occurred in any event more than five years after claimant’s last exposure, under § 8-41-206, C.R.S.2001, his disease was conclusively presumed to be unrelated to his exposure while working for employer.

The ALJ found that claimant was entitled to medical benefits. On the issue of disability, the ALJ found that the medical opinions of both the treating physician and the employer’s physician established that claimant had experienced the onset of disability more than five years after his last injurious exposure. However, the ALJ concluded it would be unjust to dismiss a disability claim pursuant to § 8-41-206 because that statute excepts other occupational diseases, such as asbestosis and silicosis, whose symptoms also may remain latent until long after exposure. Although the ALJ recognized that no specific exception existed for CBD, he nevertheless concluded that because CBD was sufficiently similar to the expressly excepted diseases, it was “exempt by implication” from the conclusive presumption in the statute. The ALJ went on to find, however, that claimant had failed to overcome the DIME physician’s finding of MMI and zero impairment rating and held that “claimant’s claim for permanent medical impairment benefits is denied and dismissed.”

On review, the Panel upheld the ALJ’s order, but on different grounds. It agreed with claimant that § 8-41-206 applies only to disability benefits and not to medical benefits. However, the Panel rejected the ALJ’s conclusion that CBD would fall within the exceptions to the presumption of noncausation in § 8-41-206. The Panel concluded that, under the undisputed facts, because claimant could never prove he had sustained any disability as a result of CBD within five years of his last exposure, the denial of permanent disability benefits was correct as a matter of law. The Panel found it unnecessary to reach claimant’s argument that the ALJ’s rulings as to MMI and permanent impairment were premature.

I.

We first address employer’s contention that the Panel and the ALJ erred in concluding claimant was entitled to medical benefits even though he could not establish he had sustained an onset of disability within five year's of his last exposure. Because we conclude that § 8-41-206 does not apply to claims for medical benefits, we find no error.

Section 8-41-206 provides:

Any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury, except in cases of disability or death resulting from exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, or from poisoning by uranium or its compounds, or from asbestosis, silicosis, or anthracosis.

The statute has been described as a rule of evidence mandating a finding of no causal connection between an injury and a disability when the disability begins more than five years after the injury. Ricks v. Indus. Claim Appeals Office, 809 P.2d 1118 (Colo.App.1991).

The onset of a disability occurs when the occupational disease impairs the claimant’s ability to perform his or her regular employment effectively and properly, or when it renders the claimant incapable of returning to work except in a restricted capacity. Ortiz v. Charles J. Murphy & Co., 964 P.2d 595 (Colo.App.1998).

In Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App.1999), a division of this court recognized that medical benefits and disability benefits are treated differently for various purposes and that a worker’s need for medical treatment may not necessarily coincide with the disability. Accordingly, the division held that a claimant suffering from an occupational disease is entitled to reasonably necessary medical benefits even if the disease has not yet become a disability.

Employer urges that any reliance upon Wal-Mart Stores, is misplaced here, however, because the effect of § 8^41-206 was not addressed or at issue there. We are not persuaded.

When the plain language of a statute is clear and unambiguous, we must apply it as written. Holliday v. Bestop, Inc., 23 P.3d 700 (Colo.2001).

Here, the plain language of § 8-41-206 refers to “any disability” and does not purport to create any conclusive presumption of noncausation with respect to medical benefits relating to an occupational disease. Further, as noted, under Wal-Mart Stores, medical benefits may be recovered even before the disease has caused a disability. Accordingly, the Panel properly determined that the statute was inapplicable to claimant’s claim for medical benefits and that the award of such benefits should be upheld.

II.

Claimant contends that the Panel erred in applying § 8^1-206 because he had not yet sustained an onset of disability as a result of CBD. We agree that determination of the issue of permanent disability was premature.

In holding that claimant could never be entitled to permanent disability benefits with respect to his CBD, the Panel applied the conclusive presumption of noncausation in § 8-41-206. In so doing, the Panel expressly declined to consider claimant’s argument that the ALJ’s rulings on MMI and permanent impairment were premature. On appeal, however, counsel for the ICAO agreed with claimant that consideration of the permanent disability issue was premature under the circumstances.

Significantly, elaimánt has not claimed any disability benefits and, indeed, has consistently argued that there has been no onset of disability as a result of his CBD.

As noted, the onset of a disability occurs when the occupational disease impairs the claimant’s ability effectively and properly to perform his or her regular employment or renders the claimant incapable of returning to work except in a restricted capacity. Ortiz v. Charles J. Murphy & Co., supra.

Here, the DIME physician found that claimant’s CBD was “subclinieal” and concluded that claimant “qualifies for 0% impairment rating.” The findings of a DIME physician are binding as to MMI and permanent impairment unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)-(c), C.R.S.2001.

Clear and convincing evidence is evidence demonstrating it is “highly probable” the DIME physician’s rating is incorrect. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995). Therefore, to overcome the DIME physician’s opinion, the evidence must establish that it is incorrect. Such evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).

The only physician who testified at the hearing before the ALJ said he could not give an opinion as to onset of disability because he could not find any measurable impairment. When asked if symptoms such as fatigue, shortness of breath, and coughing might meet the definition of disability as “impairment of the ability effectively or properly to perform one’s employment,” he agreed “this would fall under the category of a disability.” He went on to testify, however, that he nevertheless found no onset of disability, because the described symptoms were not related to claimant’s CBD.

As noted, in his 1999 report, the DIME physician stated that because claimant “has no present pulmonary or other disability that could be related to his probable subclinieal CBD, one cannot give a date of onset of disability at this time.” He further stated, “it is unlikely, although not impossible, that he would develop a disability in the future.”

The ALJ did not find that the DIME’S opinion had been overcome by clear and convincing evidence. Indeed, he expressly found to the contrary. While one physician had opined that claimant had a five percent impairment attributable to his CBD, the ALJ found that claimant had zero percent impairment.

Further, no one has suggested that claimant previously had an impairment and has since improved. In fact, the DIME physician repeated the statement of employer’s physician that “one cannot improve from a normal state.”

Thus, we agree with claimant that there is no evidence that his CBD had ever actually impaired his effective and proper performance of his employment or resulted in work restrictions. See Ortiz v. Charles J. Murphy & Co., supra.

Under the circumstances, we conclude that no onset of disability was established. Accordingly, consideration of the issue of MMI and permanent disability was premature, as was consideration by the ALJ and the Panel of § 8-41-206 in this regard.

In view of our holding, we need not address the constitutionality of § 8-41-206 or the other contentions raised on appeal.

The Panel’s order is affirmed as to the award of medical benefits and set aside as to the determination regarding permanent disability benefits.

Judge METZGER and Judge ROTHENBERG concur.


author: Judge TAUBMAN. JUDGE DAILEY

text:
    Britt E. TIDWELL, an incapacitated person, by his conservator Xavier O. Tidwell, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER, a municipal and home rule city of the State of Colorado, Defendant-Appellee.
    No. 01CA0617.
    Colorado Court of Appeals, Div. II.
    June 2, 2002.
    Certiorari Granted Jan. 21, 2003.

      Wesley W. Hoyt, Englewood, Colorado; David I. Levy, Boulder, Colorado, for Plaintiff-Appellant.
    Senter, Goldfarb & Rice, L.L.C., Thomas S. Rice, Nina Hammon Jahn, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge TAUBMAN.

In this tort action arising from an automobile accident, plaintiff, Britt E. Tidwell, a protected person, by his conservator, Xavier 0. Tidwell, appeals the trial court’s judgment dismissing his complaint against defendant, City and County of Denver, for lack of subject matter jurisdiction based on defendant’s assertion of governmental immunity. We affirm.

I. Facts and Procedural History

Early one morning in May 1996, a Denver police officer, while on duty and driving a marked police car, observed an Oldsmobile traveling eastbound on 23rd Avenue in Denver. The Oldsmobile pulled over near the intersection of Dahlia and 23rd Avenue. The officer pulled up behind the Oldsmobile and when the officer got out of his police car, a passenger exited the Oldsmobile. Ignoring the officer’s requests to remain in the car, the passenger began running from the officer. At the same time, the driver of the Oldsmobile sped away from the curb, heading eastbound on 23rd Avenue.

As the officer got back into his car, the Oldsmobile made a left turn off of 23rd Avenue and onto an unknown street. The officer followed the Oldsmobile, without his emergency lights or sirens on. As he came to each street and alley, he slowed his car and looked to the left to determine where the Oldsmobile had turned. At Fairfax Street, about four blocks from where the Oldsmobile had sped away from him, the officer saw taillights to the left. He turned left onto Fairfax and immediately saw the Oldsmobile crash into the side of a limousine at the intersection of 26th Avenue and Fairfax.

The accident killed the driver of the limousine, and Britt E. Tidwell, a passenger in the limousine, was seriously injured. The officer arrested the driver of the Oldsmobile for vehicular homicide.

The conservator filed a complaint seeking damages and alleging that the negligent actions of the officer caused Britt Tidwell’s injuries. Specifically, the conservator alleged that the officer was engaged in a high-speed chase without the use of lights, sirens, or other warning devices in violation of the Denver Police Department’s pursuit guidelines and procedures. It is undisputed that the officer was speeding as he tried to locate the Oldsmobile and then approached the accident site, although the parties disagree as to his speed.

As relevant here, the City filed a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction on the basis that it had immunity under the Colorado Governmental Immunity Act (GIA), § 24-10-106(l)(a), C.R.S.2001, because the accident was not caused by the operation of a motor vehicle.

After a three-day evidentiary hearing, as contemplated by Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993), the trial court concluded that if the police officer were in pursuit, the City would be subject to liability under the GIA because such pursuit had occurred without the use of emergency lights or a siren. However, applying the definition of pursuit from the Denver Police Department Operations Manual, Pursuit Guidelines and Procedures, § 204.01(l)(b)(l), the court found that the officer was not in pursuit of the Oldsmobile because he had not given the driver of the Oldsmobile a visual or audible signal directing the driver to stop. Thus, the trial court concluded, because there was no pursuit, Britt Tidwell’s injuries did not arise out of the operation of the officer’s motor vehicle, the GIA applied, and the City was immune from tort liability. This appeal followed.

II. Governmental Immunity Act

The conservator argues that the trial court erred in dismissing Britt Tidwell’s claim for lack of subject matter jurisdiction when the evidence showed that the officer was in pursuit and the City had waived its immunity under the GIA on that basis. We affirm the dismissal, but on grounds other than those relied on by the trial court. See Bengtson v. USAA Prop. & Cas. Ins., 3 P.3d 1233, 1236 (Colo.App.2000). Specifically, even though we agree with the conservator that the officer was in pursuit, we conclude that nevertheless the City is entitled to immunity under the emergency vehicle exception to the GIA.

A.Standard of Review

Whether immunity has been waived under the GIA is an issue of subject matter jurisdiction. The burden of proving jurisdiction is on the plaintiff, and the trial court’s findings of fact supporting a determination under the GIA will not be reversed unless clearly erroneous. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, supra (the trial court is the fact finder regarding jurisdictional determinations under the GIA, and appellate review is highly deferential); Quintana v. City of Westminster, 8 P.3d 527 (Colo.App.2000).

B.Governmental Immunity Act:

Emergency Vehicle Exception

The GIA establishes sovereign immunity for all public entities and public employees over all actions that lie in tort or could lie in tort, except as specifically provided under the GIA. Section 24-10-106, C.R.S.2001.

As relevant here, the GIA waives a public entity’s immunity from tort actions “for injuries resulting from: (a) [t]he operation of a motor vehicle, owned or leased by such public entity, by a public employee while in the course of employment.” Section 24-10-106(l)(a), C.R.S.2001. For the purposes of our analysis here, we assume without deciding that Britt Tidwell’s injuries resulted from the operation of a motor vehicle owned by a public entity.

However, § 24-10-106(l)(a) creates an exception to,the immunity waiver for emergency vehicles: if an emergency vehicle is operated pursuant to the circumstances described in § 42-4^108(2) and (3), C.R.S.2001, the emergency vehicle operator or the governmental entity qualifies for immunity.

However, this immunity is subject to conditions. For example, the emergency vehicle exception provides immunity to public entities and their employees operating emergency vehicles “when in pursuit of an actual or suspected violator of the law.” Section 42-4-108(2). Additionally, § 42-4-108(2)(a)(d) specifically grants immunity for certain conduct of the emergency vehicle operator, such as speeding and running stop signs or signals.

Furthermore, § 42-4-108(3) requires that to qualify for immunity under the emergency vehicle exception, emergency vehicle operators must make appropriate use of their audible and visual signals. See Corsentino v. Cordova, 4 P.3d 1082 (2000)(analyzing term “emergency” under GIA).

However, § 42-4^108(3) also provides an exception for police vehicles, which, in some circumstances, do not use their warning sirens and lights while in pursuit of suspected violators of Colorado’s Uniform Motor Vehicle Law (Title 42):

[A]n authorized emergency vehicle being operated as a police vehicle while in actual pursuit of a suspected violator of any provision of this title need not display or make use of audible or visual signals so long as such pursuit is being made to obtain verification of or evidence of the guilt of the suspected violator.

We note that no Colorado appellate opinion has interpreted this exception.

In summary, a public entity and its employees are immune from tort liability if the employee is operating a police vehicle while in actual pursuit of a suspected violator of Title 42, even if the employee is not using the vehicle’s emergency lights or sirens, if the pursuit is made to obtain verification of or evidence of the guilt of the suspected violator. See §§ 24-10-106(l)(a), 42-4-108(2)(3).

C.Pursuit

In determining that the officer’s actions fall within the emergency vehicle exception to the GIA, we first conclude that, under the statute, the officer was in pursuit of the Oldsmobile.

Construction of a statute is a question of law, which we review de novo. Fogg v. Macaluso, 892 P.2d 271, 273 (Colo.1995).

Because neither the GIA nor Title 42 defines “pursuit,” we must give effect to the General Assembly’s intent by looking first at the language of the statute. To effectuate legislative intent, we must give the statutory terminology its commonly accepted meaning. Rather than apply the definition of “pursuit” contained in the Denver Police Department Operations Manual, we look to the dictionary definition of the term to ascertain its plain meaning. See Fogg v. Macaluso, supra, 892 P.2d at 274 (endorsing the common usage of the term “emergency” as found in the dictionary). Further, if the meaning of “pursuit” were based on a governmental entity’s definition of the term, there could be conflicting definitions of the term throughout the state.

Webster’s Third New International Dictionary 1848 (1986) defines “pursuit” as: “an act of pursuing (as with malice): following to overtake [usually] with hurtful intentions: a chasing with haste (as to kill or capture).”

Similarly, Black’s Laiv Dictionary 1250 (7th ed.1999) defines “pursuit” as “[t]he act of chasing to overtake or apprehend.”

Here, the record reflects that the police officer chased the Oldsmobile with haste in order to apprehend the driver. The driver of the Oldsmobile was clearly attempting to flee from the police officer to avoid capture, and the police officer testified that his “ultimate goal” was to apprehend the driver and continue his investigation. Thus, applying the plain meaning of the term, we conclude that the officer was in pursuit and that the trial court erred in reaching a contrary conclusion.

D. Lights and Siren Conditions

Having concluded that the officer was in pursuit, we must next determine if his actions meet the conditions of the emergency vehicle exception. It is undisputed that the officer did not activate his emergency lights or siren during the pursuit, and the conservator urges that therefore the City is subject to tort liability under § 42-4-108(3). We disagree.

We conclude that the conditions of the exception are met in this case. First, the officer testified that he followed the Oldsmobile because he suspected that the car might be stolen. He also testified that the driver of the Oldsmobile had committed several traffic violations, including careless driving, when he fled from the police officer. Auto theft and careless driving are both violations of Title 42. See § 42-4-1402, C.R.S.2001 (careless driving); § 42-5-102, C.R.S.2001 (auto theft). Further, the officer indicated that he followed the driver in order to continue his investigation, obtain an identification of the driver, and obtain evidence about the possible theft of the vehicle.

Thus, the record reflects that the police officer pursued the driver of the Oldsmobile, a suspected violator of the provisions of Title 42, in order to obtain verification of or evidence of the guilt of the driver. Accordingly, the officer’s actions fall within the police vehicle exception to the emergency lights or sirens condition. Therefore, he was not required to use his lights and sirens to qualify for immunity under the GIA.

We reject the conservator’s contention made at oral argument that the police vehicle exception applies only when an officer is obtaining verification of or evidence of the guilt of a suspected violator while the officer is moving. In other words, the conservator argues that because the police officer would have had to stop the Oldsmobile to obtain any evidence of theft, the exception does not apply in this case. We disagree and find nothing in § 42-4-108(3) that limits the police vehicle exception to verifications while the officer is moving.

Therefore, we conclude that the GIA applies because the officer’s actions fall within the emergency vehicle exception to the GIA motor vehicle waiver. The trial court correctly dismissed the complaint for lack of subject matter jurisdiction.

Because of this resolution, we need not address the other issues raised by the conservator: (1) whether the trial court abused its discretion when it excluded the testimony of the conservator’s police procedures expert, and (2) whether the trial court erred when it granted summary judgment in favor of the City on the issue of causation.

The judgment is affirmed.

Judge PLANK concurs.

Judge DAILEY specially concurs.

JUDGE DAILEY

specially concurring.

I join in the majority’s decision here. I write only to emphasize that the decision should not be read as endorsing the view that plaintiffs injuries “result[ed] from” the operation of a motor vehicle, within the meaning of § 24-10-106(l)(a), C.R.S.2001. Section 24-10-106(l)(a) may very well require more than the mere “but for” causal connection that existed here between the officer’s operation of the motor vehicle and plaintiffs injuries. In light of the way in which we resolved the appeal, however, it was not necessary to address that question.


author: Judge DAVIDSON.

text:
    Faith DUPRE, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 01CA0630.
    Colorado Court of Appeals, Div. III.
    June 6, 2002.
    Certiorari Denied Feb. 10, 2003.

      Elder & Phillips, P.C., Keith Boughton, Grand Junction, Colorado, for Plaintiff-Appellant.
    Harris, Karstaedt, Jamison & Powers, P.C., Susan M. Stamm, Englewood, Colorado, for Defendant-Appellee.
   Opinion by

Judge DAVIDSON.

In this fire insurance case, plaintiff, Faith Dupre, appeals from the trial court judgment determining that the policy on her house issued by defendant, Allstate Insurance Company, precluded coverage for the increased cost of repairs to comply with current building codes. We reverse and remand.

In January 1997, plaintiff purchased an insurance policy with a limit of $100,431 on a ninety-one-year-old house. The house was used as a rental property, but plaintiff planned to occupy it herself beginning sometime in 1998. In September 1997, a fire in the enclosed rear porch caused smoke and fire damage to portions of the house. The tenants apparently had vacated the house some days before the fire.

Defendant’s adjuster contacted a builder, who quoted an estimated cost of $60,680.68 to repair the house to its prefire condition. Plaintiff and defendant’s claims representative “talked through” calculations based on the estimate and policy coverage, and based on those calculations, plaintiff submitted a proof of loss for $60,932.30 in November 1997. Applying deductions for depreciation, defendant paid plaintiff $36,493.95, representing the “actual cash value” of plaintiffs losses. Defendant withheld the amount representing depreciation pending actual repair or replacement of the damaged portions of the house.

In December 1997, an employee of the Mesa County Building Department and a representative of the builder providing the repair estimate conducted a walk-through of the premises. Several areas were identified in which the house did not comply with current building codes. These areas were categorized as either “fire damage — required code up date” or “non-permitted construction.” Examples in the former category were items such as altering the width, pitch, and span rise of the staircase; installing top plates on bearing walls; providing egress from bedrooms damaged by fire; replacing 1x4s with 2x4s in the burned walls; bringing the burned portions of the roof up to code; and bringing all wiring in the area up to code. In the non-permitted construction category were items such as removal of the elosed-in porch or bringing it up to code and replacing part of the foundation wall, which had been knocked out to allow access to the sewer line.

Plaintiff was informed that, to receive the necessary permits, any repairs would need to comply with the building codes and that she would not be permitted merely to restore the damaged parts of her house to their former specifications. Plaintiff had filed her proof of loss before she was aware of the upgrade issues, and she notified defendant in December 1997 of the required upgrades. Defendant informed her that there was no coverage for code upgrades. Plaintiff received the same response after she mailed the report of required upgrades to defendant in January 1998.

In May 1998, plaintiff decided to purchase a modular home to place on the property rather than rebuild the damaged house to code at her own expense. The purchase price of the modular home was $47,733.22, and plaintiff informed defendant that additional expenditures were necessary to install the home. Defendant paid plaintiff the $23,932.35 it had been holding for depreciation and for the costs of boarding up the damaged house, which was later condemned. Plaintiffs insurance agent called defendant approximately one week later to relay plaintiffs concerns that she should receive additional compensation, and defendant informed the agent that the policy did not cover building code upgrades.

Subsequently, plaintiff hired an attorney. She questioned defendant’s payment calculations, alleging that the policy required defendant to pay the cost of bringing the damaged house up to code because the need for such repairs was caused directly by the fire. Plaintiff made a demand for payment in the amount of the policy limit, which defendant refused, and plaintiff then brought this action for breach of contract and bad faith breach of insurance contract.

Defendant moved for summary judgment, arguing that the policy unambiguously excludes coverage for required building code upgrades and provides only for the cost of returning the house to its prefire condition, building code violations notwithstanding. Plaintiff filed a cross-motion for partial summary judgment, arguing that the house was a total loss because she would not be permitted to occupy it if it were repaired to its prior condition or, alternatively, that the policy language was ambiguous and should be construed in favor of coverage. The trial court agreed with defendant and granted summary judgment.

A party is entitled to summary judgment only upon demonstrating that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. See C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Review of a grant of summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).

Interpretation of an insurance policy is also a question of law that is subject to de novo review, and policy language should be enforced as written if it is unambiguous. See Hyden v. Farmers Ins. Exch., 20 P.3d 1222 (Colo.App.2000). Language is ambiguous if it is susceptible of more than one reasonable interpretation, and if the policy language is ambiguous or inconsistent, it must be construed against the insurer and in favor of coverage. See Union Ins. Co. v. Houtz, 883 P.2d 1057 (Colo.1994).

“Exclusionary language that conflicts ■with the objectively reasonable expectations of the insured is not enforceable, even if a ‘painstaking study of the policy provisions would have negated those expectations.’ ” Tepe v. Rocky Mountain Hosp. & Med. Servs., 893 P.2d 1323, 1328 (Colo.App.1994)(quoting State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 168 (Colo.1993)). See also Am. Family Mut. Ins. Co. v. Johnson, 816 P.2d 952, 953 (Colo.1991)(“Exclusionary clauses designed to insulate particular conduct from general liability coverage provisions must be drafted in clear and specific language.”). However, the doctrine of reasonable expectations will be applied only if the contract is ambiguous. See Pub. Serv. Co. v. Wallis & Cos., 986 P.2d 924 (Colo.1999); Spaur v. Allstate Ins. Co., 942 P.2d 1261, 1265 (Colo.App.l996)(“[t]he doctrine of reasonable expectations supplements, but does not substitute for, the rule that insurance policies are to be considered according to well-settled principles of contract construction,” and insured has duty to read policy).

The declarations page of plaintiffs policy indicates that she had special form coverage. The provision of the policy describing that type of coverage states: “We will pay for direct loss to the property described in the Dwelling Protection coverage ... from all risks of physical loss. Specific limitations and exclusions, including any deductible shown on the declarations page, will apply.”

The General Exclusions portion of the policy provides, inter alia:

We do not cover loss or damage resulting directly or indirectly from: ... Enforcement of any ordinance or law regulating the construction, repair or demolition of dwellings. If the loss is caused by actions of a civil authority to prevent the spread of fire, we will provide coverage unless the cause of the fire loss is specifically excluded.

Under the payment provisions of the policy and an amendatory endorsement, if the insured does not repair or replace the damaged property, a deduction for depreciation will be subtracted from the amount of the loss to determine the “actual cash value.” The amount to be paid for “actual cash value” is limited to the lesser of the policy limit or “the amount necessary to repair or replace the damaged property with equivalent construction for similar use on the same property.”

If the insured does repair or replace the damaged property, the policy and endorsement provide for “replacement cost” coverage: “This means the cost to repair, rebuild or replace the damaged or destroyed part(s) of the building(s) without deduction for depreciation” in an amount not to exceed the smaller of the policy limit, the “replacement cost of the part(s) of the building(s) damaged or destroyed for equivalent construction for similar use on the same premises,” or the actual amount expended to repair or replace the property with “equivalent construction for similar use on the same premises.”

I.

We first reject defendant’s contention that plaintiffs contract action is barred by the language of the policy providing, “No suit or actions may be brought against [insurer] unless there has been full compliance with all the terms of this policy. Any suit or action must be brought within one year after the loss.” This argument was raised in the trial court, but was not referenced in the trial court’s order, which implicitly ruled that plaintiffs action could be considered on the merits. Presumably, the trial court accepted plaintiffs contention that material questions of fact remained as to whether defendant should be estopped by its actions from relying on the one-year limitations period. We find no error.

Initially, we note that the limitations provision is applicable, if at all, only to the contract action and not to the bad faith tort action. See Emenyonu v. State Farm Fire & Cas. Co., 885 P.2d 320 (Colo.App.1994).

Additionally, the duty of good faith owed by the insurer to the insured requires that it not act to prevent the occurrence of conditions to its performance. See Navajo Freight Lines, Inc. v. Moore, 170 Colo. 539, 543, 463 P.2d 460, 462 (1970)(“it is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of that failure”); see also Restatement (Second) Contracts § 245 cmt. a (1981)(“Where a duty of one party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing ... may require some cooperation on his part, either by refraining from conduct that will prevent or hinder the occurrence of that condition or by taking affirmative steps to cause its occurrence.”); cf. Strader v. Beneficial Fin. Co., 191 Colo. 206, 551 P.2d 720 (1976)(where a party’s acts or omissions contribute to the running of a statute of limitations, the party may be prevented from raising that defense by the doctrine of equitable estoppel).

Plaintiff alleges that defendant interfered with her ability to timely file suit by, inter alia, withholding a complete copy of her policy. Specifically, she alleges that, despite repeated requests for a copy of her policy made before the expiration of the limitations period, a partial copy of the policy was not provided until July 20, 1998, and omitted endorsements were not provided until March 18, 1999, well after the one-year period expired. Defendant contends that it should not be estopped because plaintiff received a complete copy of the policy prior to the fire and because missing endorsements did not pertain to the coverage issues here.

Thus, whether defendant’s actions hindered the fulfillment of the limitations condition remains an unresolved question of fact, and, therefore, at this stage of the proceedings, defendant is not entitled to summary judgment on those grounds.

II.

As a threshold matter, we note that in its motion for summary judgment, defendant relied primarily on the exclusion for enforcement of building laws to justify its denial of coverage for the cost of upgrades. However, in the briefs it later filed, defendant relied on policy language limiting replacement cost to “equivalent construction for similar use” as an additional basis for denying increased repair costs. The trial court denied plaintiffs motion to strike the latter argument and, on appeal, plaintiff does not challenge that ruling. Therefore, we consider and reject both grounds for denying coverage.

A.

According to defendant, the exclusion for “[ejnforcement of any ordinance or law regulating the construction, repair or demolition of dwellings” precludes coverage for required building code upgrades. We disagree.

An exclusion is “[a]n insurance policy provision that excepts certain events or conditions from coverage.” Black’s Law Dictionary 585-86 (7th ed.1999). An exclusion is unnecessary unless the excluded event would otherwise fall within the coverage provisions. See Betco Scaffolds Co. v. Houston United Cas. Ins. Co., 29 S.W.3d 341 (Tex.App.2000); see also Am. & Foreign Ins. Co. v. Colonial Mortgage Co., 936 F.2d 1162, 1169 (11th Cir.1991)(Hatchett, J., concurring)(“The essential purpose of an exclusion is to limit the scope of coverage granted in the coverage section of the policy.”).

Plaintiffs policy provides that coverage is available for direct loss caused by all risks of “physical loss.” Accordingly, by its plain language, and contrary to defendant’s contention, the exclusion applies only to “physical loss” caused by enforcement of building laws.

We note that similar exclusions historically have been applied when code enforcement or government order has resulted in physical damage. See Hawaii Land Co. v. Lion Fire Ins. Co., 13 Haw. 164 (1900)(board of health ordered burning of buildings to combat plague, and fire spread to insured’s buildings); Sweeney v. City of Shreveport, 584 So.2d 1248 (La.Ct.App.1991)(house demolished by city pursuant to ordinance after complaints received regarding its condition and use as a “drug house”); Hocking v. British Am. Assurance Co., 62 Wash. 73, 113 P. 259 (1911)(insured’s house burned after city ordered fumigation, and negligence of the health officer started fire).

Here, there was no “physical loss” caused by the building code requirements, and, therefore, we conclude that the exclusion is inapplicable.

B.

Plaintiff contends that the trial court erred in concluding that the replacement cost limitation for “equivalent construction for similar use” is unambiguous and precludes coverage for the cost of upgrading the fire damaged parts of her house to comply with current building codes. We agree.

In its order granting summary judgment to defendant, the trial court noted that “[o]ne of the traditional concepts of fire insurance is to indemnify or compensate the insured for the actual loss sustained, and not to place the insured in a better position than he or she was in at the time of the fire,” citing Bischel v. Fire Insurance Exchange, 1 Cal.App.4th 1168, 2 Cal.Rptr.2d 576 (1991), and Breshears v. Indiana Lumbermens Mutual Insurance Co., 256 Cal.App.2d 245, 63 Cal.Rptr. 879 (1967). The trial court reasoned that replacing plaintiffs noncomplying structure with one that complied with current building codes would compensate plaintiff for expenditures she had never made and would put her in a better position than she had been in prior to the fire.

Taking this reasoning into account when applying the common definition of the terms to the facts, the court concluded that:

“equivalent construction for similar use” does not require the insurer to pay for structural improvements or code upgrades which were not in existence in the building at the time of the fire despite the fact that any new construction must conform to current building codes. “Equivalent construction for similar use” requires replacement with construction equal or like in value or worth to that which was destroyed or damaged for a use nearly corresponding or resembling in many respects the pre-fire use (i.e., in this case a house which, although it was inhabited, did not conform to current building codes).

Plaintiff contends that interpreting the policy language to include the cost of building code upgrades does not conflict with the principle of not putting an insured in a better position than he or she was in before the fire and that the provision can reasonably be interpreted to include the cost of returning the dwelling to its equivalent or similar use as a habitable structure. We agree with both contentions.

1.

An insured who does not rebuild or repair is generally entitled only to the actual value of the loss, and payment of additional amounts representing a higher cost to replace the structure would be an impermissible windfall. See State Ins. Co. v. Taylor, 14 Colo. 499, 511, 24 P. 333, 337 (1890)(“[t]he rule of damages is the value of the property lost, and not the cost of replacement,” and the measure for destroyed buildings is “the actual value of the property in the condition it was in at the time of loss, taking into consideration its age and condition, and not necessarily what it would cost to erect a new building”); Dombrosky v. Farmers Ins. Co., 84 Wash.App. 245, 259, 928 P.2d 1127, 1136 (1996)(where insured had not incurred the additional cost of replacing the structure, payment of additional amount would be a windfall).

However, while an actual cost policy is designed to avoid placing the insured in a better position than he or she was in before the fire, a replacement cost policy allows for such a possibility because it is intended to allow the insured to replace the damaged building. See Hess v. North Pac. Ins. Co., 122 Wash.2d 180, 859 P.2d 586 (1993)(re-plaeement cost coverage is not limited by concept of indemnity and recognizes that obsolescence and deterioration are insurable risks); 12 L. Russ, Couch on Insurance Sd § 176:56 (1998)(“Replacement cost coverage was devised to remedy the shortfall in coverage which results under a property insurance policy compensating the insured for actual cash value alone”).

Here, the policy defines replacement cost as the “cost to repair, rebuild or replace the damaged or destroyed part(s) of the building(s) without deduction for depreciation.” However, defendant’s narrow interpretation of this clause — requiring only the payment of the cost to provide a building constructed to its prefire specifications rather than a functional replacement — conflates the separate concepts of replacement cost and reproduction cost:

Reproduction cost is the estimated cost to construct, at current prices, an exact duplicate or replica of the building being-appraised, using the same materials, construction standards, design, layout, and quality of workmanship, and embodying all the deficiencies, superadequacies, and obsolescence of the subject building.
Replacement cost is the estimated cost to construct, at current prices, a building with utility equivalent to the building being appraised, using modern materials and current standards, design, and layout.

American Institute of Real Estate Appraisers, Appraisal of Real Estate ch. 15, at 351-52 (9th ed.1987); see also Black’s, supra, at 349 (“replacement cost” defined as the “cost of acquiring an asset that is as equally useful or productive as an asset currently held”).

Thus, nothing in the concept of “replacement cost” coverage limits plaintiffs recovery to the cost of restoring her house to its prefire condition.

2.

Regardless of the actual “replacement cost,” however, the policy contains a limitation on the amount that will be paid. It provides that the amount paid for replacement cost is not to exceed the smallest of the cost for “equivalent construction for similar use on the same premises,” the limit of the policy, or the amount actually expended.

Defendant contends that the “equivalent construction for similar use” limitation does not include the cost of rendering plaintiffs house habitable by complying with changed building codes, even if that amount is otherwise encompassed in “replacement cost,” and that, in any event, plaintiffs recovery here is limited to the amount she actually expended on the modular’ home. We disagree with both contentions.

a.

Defendant contends that the restriction on replacement cost to “equivalent construction for similar use” clearly limits replacement cost coverage to reproduction cost. We disagree.

“[C]overage provisions in an insurance contract are to be liberally construed in favor of the insured to provide the broadest possible coverage.” Fire Ins. Exch. v. Bentley, 953 P.2d 1297, 1300 (Colo.App.1998). While an insurer may exclude events from coverage, see O’Connor v. Proprietors Ins. Co., 696 P.2d 282 (Colo.1985), the exclusion must be clear and specific. See Bohrer v. Church Mut. Ins. Co., 965 P.2d 1258 (Colo.1998). Only if the language of the exclusion is unambiguous will it alter the reasonable expectations of an insured. See Principal Mut Life Ins. Co. v. Progressive Mountain Ins. Co., 1 P.3d 250 (Colo.App.1999), aff'd, 27 P.3d 343 (Colo.2001).

Here, the limitation provides for the cost of “equivalent construction for similar use.” The terms are not defined in the policy, but their meaning cari be ascertained from common definitions. “Equivalent” is defined as “[e]qual in value, force, amount, effect, or significance” or as “Corresponding in effect or function; nearly identical; virtually identical.” Black’s, supra, at 561. “Use” is defined as “[t]he application or employment of something; esp., a long-continued possession and employment of a thing for the purpose for which it is adapted.” Black’s, supra, at 1540.

As the definitions of both “equivalent” and “use” include concepts of functionality, the plain meaning of the term “equivalent construction for similar use” includes maintaining the property’s prefire function.

Prior to the fire, plaintiffs house was a habitable dwelling yielding rental income. Merely restoring it to its prefire condition would have rendered it uninhabitable and thus unfit for any similar use. Such a result does not comport with the plain language of the limitation or the reasonable expectations of an insured purchasing a replacement cost policy. See Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292 (Alaska 1994); Starc zewski v. Unigard Ins. Group, 61 Wash.App. 267, 810 P.2d 58 (1991).

Although defendant cites cases that have reached the opposite result — some interpreting “equivalent construction” to preclude the cost of building code upgrades and some finding the exclusion for building codes applicable — most of those cases involved policies that also included language that the insurer would pay replacement cost “without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating construction or repair.” See Bischel v. Fire Ins. Exch., supra, 1 Cal.App.4th at 1174, 2 Cal.Rptr.2d at 578; McCorkle v. State Farm Ins. Co., 221 Cal.App.3d 610, 270 Cal.Rptr. 492 (1990); Breshears v. Ind. Lumbermens Mut. Ins. Co., supra; Bradford v. Home Ins. Co., 384 A.2d 52 (Me.1978); Weinstein v. Commerce Ins. Co., 196 Va. 106, 82 S.E.2d 477 (1954); see also Hewins v. London Assurance Corp., 184 Mass. 177, 182, 68 N.E. 62, 64 (1903)(amount paid “shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality,” and insurer was not liable “beyond the actual value destroyed by fire”).

Here, however, no other language in the policy would negate the reasonableness of interpreting the “equivalent construction for similar use” limitation as contemplating similar functional utility and thus to include the cost of complying with regulations necessary to render plaintiffs house habitable.

b.

We also disagree with defendant that it has paid more than required by the policy because plaintiff “actually expended” less on the modular home than the cost to repair the damaged house.

This is not a situation where plaintiff elected to spend less than the amount offered by the insurer. See Huggins v. Hanover Ins. Co., 423 So.2d 147 (Ala.1982)(after insurer paid plaintiffs $85,000 actual cost and plaintiffs replaced the property with another home costing $79,000, they were not entitled to the replacement cost of $106,366.21); Estes v. State Farm Fire & Cas. Co., 358 N.W.2d 123 (Minn.Ct.App.1984)(plaintiffs not entitled to offered replacement cost of $30,712 for slate roof when they spent $13,000 to replace the roof with different material), modified en banc, 365 N.W.2d 769 (Minn.1985).

Here, defendant insisted that it would pay no more than the cost of restoring the house to its prefire condition, $60,432.30. Thus, plaintiff could not repair her house to a habitable condition without making a significant expenditure for which defendant would not reimburse her, and she was left with the option of attempting to replace the house with the offered amount of funds. Filing an additional proof of loss that covered the building code upgrades would have been a futile act. Defendant may not rely on circumstances resulting from its own actions to deny coverage. See Smith v. Mich. Basic Prop. Ins. Ass’n, 441 Mich. 181, 490 N.W.2d 864 (1992)(insurer could not deny replacement coverage based on insureds’ failure to repair or replace the property within the policy time limit when insurer’s denial of the claim stood in the way of obtaining financing for repair or replacement).

Moreover, plaintiff did not choose to replace her house with a less expensive one. The record indicates that installation of the modular home involved expenses beyond the purchase price, including a foundation and installation of a septic system, which were required to render the modular home habitable. Thus, the purchase price of the modular home and the additional expenses appear to have exceeded the $60,432.30 offered.

III.

Plaintiff contends that she is entitled to the increased cost of complying with all of the upgrades required by the building code or, alternatively, that she was entitled to the limits of the policy because her house was a “total loss.” We conclude that plaintiff is entitled only to replacement of the fire damaged portions of her house and that her house was not a “total loss.”

A.

Plaintiff contends that all of the required upgrades should be covered because they would not have been necessary absent the fire and that her house would be uninhabitable unless they were completed. We disagree.

The policy and endorsements provide that replacement cost is limited to the cost of replacing the “part(s) of the building(s) damaged or destroyed.”

Here, many of the required code upgrades appear to pertain to areas damaged by the fire. However, certain of the requirements, such as replacing part of the foundation wall that had been knocked out to allow access to the sewer line, apply to areas of “non-permitted construction” that apparently were untouched by the fire. Any code upgrades required in areas not damaged or destroyed by the fire would fall outside the replacement cost coverage.

Plaintiffs policy further provides:

To determine replacement cost ... do not include the value of: 1) excavations; 2) underground pipes, wiring, and drains; 3) foundations and other supports below the surface of the lowest basement floor. If the structure does not have a basement, do not include the value of the preceding items which are below the surface of the ground inside the foundation walls. The cost of land is always disregarded.

Certain of the other required code upgrades may fall within these exclusions to replacement cost.

Thus, we conclude that plaintiff is not entitled to coverage for all of the required code upgrades and that further proceedings are required to determine which of the required upgrades are covered under the policy.

B.

Plaintiff contends that, regardless whether the policy includes coverage for the increased cost of complying with the building codes, the fact that she was not permitted to rebuild her house to its prior specifications rendered it a “total loss” and that because her house was “effectively, totally destroyed by the fire,” she is therefore entitled to the policy limits. We disagree.

Plaintiff relies on cases where the insured could not repair or replace the damaged property because the building codes or zoning laws prohibited rebuilding under any circumstances. See, e.g., Rutherford v. Royal Ins. Co., 12 F.2d 880 (4th Cir.1926); Md. Cas. Co. v. Frank, 85 Nev. 209, 452 P.2d 919 (1969).

Here, however, the county did not prohibit plaintiff from rebuilding her house. It merely required that she comply with current building codes — rendering repair more expensive, but not impossible. Thus, plaintiffs house was not a total loss under the asserted basis. We do not address whether the ultimate cost of repairing the damaged portions of the house to conform with building codes would exceed the policy limits.

IV.

Plaintiff contends that the trial court erred in granting defendant’s summary judgment motion on her bad faith breach of contract action. We agree.

The trial court granted the motion based on its finding that the policy did not provide the claimed coverage. Given that we have reached the opposite conclusion at least in part, factual questions remain as to whether defendant acted reasonably in denying the claim.

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

Judge JONES and Judge KAPELKE concur.