v. Ford Motor Co

v
     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 19, 2020

                               2020COA164

No. 19CA1243, Walker v. Ford Motor Co. — Damages — Interest
on Damages — Prejudgment Interest

     A division of the court of appeals considers how section 13-21-

101, C.R.S. 2019, governing interest on personal injury money

judgments, applies to a judgment won after the previous judgment

in the same case had been overturned on appeal. The division

concludes that the plaintiff is entitled to the prejudgment interest

rate set forth in section 13-21-101(1), on the amount of the new

judgment, from the date the first judgment is entered to the date

the second judgment is entered.
COLORADO COURT OF APPEALS                                     2020COA164


Court of Appeals No. 19CA1243
Boulder County District Court No. 11CV912
Honorable Nancy W. Salomone, Judge


Forrest Walker,

Plaintiff-Appellee,

v.

Ford Motor Company,

Defendant-Appellant.


                          JUDGMENT AFFIRMED

                                 Division I
                        Opinion by JUDGE GROVE
                       Dailey and Welling, JJ., concur

                       Announced November 19, 2020


Purvis Gray Thomson, LLP, John A. Purvis, Michael J. Thomson, Boulder,
Colorado; Chalat Hatten & Banker, PC, Evan P. Banker, Denver, Colorado, for
Plaintiff-Appellee

Wheeler Trigg O’Donnell, LLP, Edward C. Stewart, Theresa Wardon Benz,
Kristen L. Ferries, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Ford Motor Company, appeals the district court’s

 award of prejudgment interest to plaintiff, Forrest Walker, during

 the period that followed the entry of an earlier judgment that was

 reversed on appeal. We hold that, notwithstanding Ford’s

 successful prior appeal, the district court correctly awarded

 prejudgment interest to Walker from the date that his claim accrued

 through the date that it finally entered judgment in Walker’s favor.

 We therefore affirm.

                           I.   Background

¶2    Walker was injured when, on September 20, 2009, he was

 rear-ended while driving his 1998 Ford Explorer. Walker sued the

 other driver for negligence. And, asserting that the driver’s seat in

 his vehicle was defective and contributed to his injuries, he also

 sued Ford. After Walker settled his claim against the other driver,

 he and Ford proceeded to trial. The jury returned a verdict of

 $2,915,971.20 in Walker’s favor, but a division of this court

 reversed the judgment and remanded the case for a new trial.

 Walker v. Ford Motor Co., 

2015 COA 124

. The supreme court

 affirmed the division’s opinion on different grounds, Walker v. Ford




                                   1
 Motor Co., 

2017 CO 102

, and this court issued the mandate on

 December 26, 2017.

¶3    The parties retried the case in February 2019. Walker

 prevailed again, and, on May 9, 2019 — nearly ten years after the

 crash — the district court entered judgment against Ford in the

 amount of $2,929,881.20. Walker requested that the court award

 him prejudgment interest at the statutory rate of nine percent for

 the entire ten years that had passed since his claim accrued. Ford

 objected. While Ford conceded that it owed prejudgment interest on

 the jury award up until the date that the first judgment was

 entered, it maintained that once it filed its first appeal interest

 should accrue at the (lower) postjudgment interest rate until the

 conclusion of the case. The district court agreed with Walker and

 ruled that “the statutory rate for pre-judgment interest applie[d]

 from the inception of the lawsuit.” It therefore awarded him more

 than $3.6 million in interest.

                              II.   Analysis

¶4    Ford contends that the district court erred by awarding

 interest at the statutory prejudgment rate from the inception of the




                                     2
 case through the entry of judgment after the retrial in May 2019.

 We disagree.

                       A.      Standard of Review

¶5    The interpretation of section 13-21-101(1), C.R.S. 2019, is a

 question of law that we review de novo. Morris v. Goodwin, 

185 P.3d 777

, 779 (Colo. 2008). We begin with the plain language of the

 statute and, if it is clear and unambiguous on its face, we look no

 further. See Francis ex rel. Goodridge v. Dahl, 

107 P.3d 1171

, 1176

 (Colo. App. 2005). Because an interest statute is in derogation of

 the common law, we strictly construe its language. Rodriguez v.

 Schutt, 

914 P.2d 921

, 925 (Colo. 1996).

                               B.   Analysis

¶6    Ford concedes that it owes interest on the judgment.

 However, relying on the last sentence of section 13-21-101(1), Ford

 contends that its first appeal triggered application of the

 postjudgment rate for the remainder of the case.

                          1.    Plain Language

¶7    The last sentence of section 13-21-101(1) states in relevant

 part that




                                     3
            if a judgment for money in an action brought
            to recover damages for personal injuries is
            appealed by the judgment debtor,
            postjudgment interest must be calculated on
            the sum . . . from the date of judgment
            through the date of satisfying the judgment
            and must include compounding of interest
            annually.

 The district court’s order did not mention this language, and

 instead focused on an earlier part of the same subsection:

            it is the duty of the court in entering judgment
            for the plaintiff in the action to add to the
            amount of damages . . . interest on the amount
            calculated at the rate of nine percent per
            annum, . . . and calculated from the date the
            suit was filed to the date of satisfying the
            judgment.

Id. ¶8

    Ford argues that we should reverse because the district court

 ignored the last sentence of subsection (1), which, according to

 Ford, “explicitly states that the postjudgment interest rate applies

 whenever a judgment is ‘appealed by the judgment debtor,’

 regardless of whether the judgment is eventually affirmed or

 reversed.” But that is only true if the last sentence of subsection (1)

 is considered in isolation. When it is construed together with the

 remainder of section 13-21-101, it becomes clear that the switch



                                    4
 from prejudgment to postjudgment interest does not just depend on

 the judgment debtor’s decision to file a notice of appeal, but also on

 the outcome of that appeal.

¶9    In particular, subsection (2)(a) provides that interest accrues

 at the postjudgment rate if the judgment is affirmed on appeal and

 subsection (2)(b) provides that if a money judgment “is modified or

 reversed with a direction that a judgment for money be entered in

 the trial court,” postjudgment interest accrues from the date of

 judgment through the date of satisfying the judgment.1 If, as Ford

 argues, every appeal triggered a switch from prejudgment to

 postjudgment interest, then subsections 2(a) and 2(b) would be

 mere surplusage. See Treece, Alfrey, Musat & Bosworth, PC v. Dep’t

 of Fin., 

298 P.3d 993

, 996 (Colo. App. 2011) (noting that a court

 interpreting a statute should reject interpretations that will render

 words or phrases superfluous). But the fact that the General

 Assembly chose to include those subsections demonstrates that it

 did not intend for postjudgment interest to accrue in every case


 1 Sections 13-21-101(3) and (4), C.R.S. 2019, outline the process for
 calculating the postjudgment interest rate, which is tied to the
 federal discount rate and adjusted on an annual basis by the
 Colorado Secretary of State.

                                   5
  once an appeal is filed. Indeed, under the presumption that the

  General Assembly does not choose statutory language idly, Carlson

  v. Ferris, 

85 P.3d 504

, 509 (Colo. 2003), it follows that subsection

  2(b) — the only provision of the statute that contemplates a

  successful appeal by the judgment debtor — applies only if a money

  judgment is “modified” on appeal or is “reversed with a direction

  that a judgment for money be entered in the trial court.”

  § 13-21-101(2)(b). Neither of those events occurred here. The

  result of Ford’s appeal was not a modification of the judgment or a

  remand with instructions to enter a particular judgment. Instead,

  both the division and the supreme court reversed the judgment

  outright. And, as we explain next, reversal of that judgment left

  nothing for postjudgment interest to accrue on while the retrial was

  pending.

                          2.   Single Judgment

¶ 10   “Except as otherwise permitted by statute or rule of court,

  there can be only one final judgment in any one action.” Jones v.

  Galbasini, 

134 Colo. 64

, 68, 

299 P.2d 503

, 506 (1956) (citation

  omitted). When the mandate issued after the supreme court

  overturned the first verdict and ordered a new trial, the first


                                     6
  judgment ceased to exist. See Butler v. Eaton, 

141 U.S. 240

, 244

  (1891) (holding that when a judgment is vacated it is, essentially,

  “without any validity, force, or effect, and ought never to have

  existed”); Bainbridge, Inc. v. Douglas Cty. Bd. of Comm’rs, 

55 P.3d 271

, 274 (Colo. App. 2002) (concluding that where a judgment has

  been successfully appealed, upon remand that judgment no longer

  exists). The effect of that reversal was to put the parties in the

  same posture they were in before the original judgment was entered

  on April 1, 2013. See Sharon v. SCC Pueblo Belmont Operating Co.,

  LLC, 

2019 COA 178

, ¶ 17. For the purposes of section 13-21-101,

  that position was “pre-judgment.”

¶ 11   According to section 13-21-101, interest on personal injury

  damages accrues at a rate of nine percent per annum from the date

  the injury occurred, through the date of satisfaction of the

  judgment, unless the judgment debtor appeals the judgment. But,

  because interest can only accrue if there is a judgment, the interest

  that did accrue up until the point that the supreme court issued its

  opinion reversing the outcome of the first trial vanished along with

  the judgment. Ford and Walker were, at that time, free to proceed

  in any way they saw fit, including by settling the case. The parties


                                     7
  chose to proceed again to trial, and the jury again awarded Walker

  nearly $3 million.

                       3.   Practical Considerations

¶ 12   Our conclusion finds further support in the fact that adopting

  Ford’s theory would require the district court to apply postjudgment

  interest to a judgment that did not yet exist. That is, under Ford’s

  theory, even though the judgment on which it was accruing interest

  was entered on May 9, 2019, the district court should have

  retroactively charged postjudgment interest on that amount

  beginning on April 1, 2013. Nothing in section 13-21-101 suggests

  that the General Assembly contemplated the type of retroactive

  application of postjudgment interest that Ford urges us to apply.2




  2 The statute does, however, contemplate retroactive application of
  the postjudgment interest rate in another way. Section
  13-21-101(1), C.R.S. 2019, provides in pertinent part that “if a
  judgment for money in an action brought to recover damages for
  personal injuries is appealed by the judgment debtor, postjudgment
  interest must be calculated . . . from the date of judgment through
  the date of satisfying the judgment.” (Emphasis added.) Thus, if,
  as is often the case, any time passes between the entry of judgment
  and the judgment debtor’s notice of appeal, any prejudgment
  interest that would have accrued during that time (and would have
  continued to accrue, if no appeal were filed) is wiped out and
  replaced by postjudgment interest from the date of the judgment.

                                    8
¶ 13   Finally, while we acknowledge the large monetary gap between

  the parties’ positions in this case, we remain cognizant of the fact

  that, because interest statutes derogate common law, they must be

  strictly construed. 

Rodriguez, 914 P.2d at 925

. Judicial attempts

  to construe section 13-21-101 in a manner that aligns with

  perceived legislative intent have, in the past, created more problems

  than they have solved. See Sperry v. Field, 

205 P.3d 365

, 370-71

  (Colo. 2009) (Eid, J., concurring in the judgment). Because the

  district court’s ruling was consistent with the plain language of

  section 13-21-101, we may not delve further into whether it was

  also consistent with the General Assembly’s intent.

                            III.   Conclusion

¶ 14   The judgment is affirmed.

       JUDGE DAILEY and JUDGE WELLING concur.




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