f 43 (concurring) — I agree with the lead opinion that the Court of Appeals should be reversed. However, I believe it is unnecessary and improper for this court to hold that collectibility is an affirmative defense under the facts of this case.6 Rather than fashion new rules of law, I would simply affirm the trial court’s denial of Timothy R Coogan’s motion for judgment as a matter of law. I would hold Coogan could not raise collectibility in the damages only trial because Coogan (1) failed to expressly raise collectibility as an issue in the first jury trial and (2) *681sought to exclude insurance evidence from the damages only trial.
Fairhurst, J.*681¶44 This case has a long and tortured history. The events began almost 20 years ago when Teresa Schmidt slipped and fell at a Tacoma grocery store on December 23,1995. In January 1996, Schmidt retained attorney Coogan to handle her personal injury suit against the store. In 2000, Schmidt filed this attorney malpractice suit against Coogan for his failure to perfect her claim. In 2003, a jury entered a verdict against Coogan for $32,000 in past economic damages and $180,000 for noneconomic damages. Coogan moved for a new trial, remittitur, and reconsideration, claiming Schmidt failed to prove the grocery store had notice of the hazardous condition, a necessary element of the underlying claim. The trial court granted a new trial on the issue of damages only on the basis that Coogan was denied a fair trial.
¶45 Specifically, the court found that a new trial on damages was warranted because (1) Schmidt’s counsel improperly promoted awarding punitive damages during closing arguments to the jury, (2) the damages were so excessive as to unmistakably indicate that the verdict must have been the result of passion and prejudice, (3) the verdict for noneconomic damages was not supported by the evidence, and (4) the trial court improperly allowed the lack of Schmidt’s insurance testimony to be presented during the course of trial.
¶46 Both parties appealed the trial court’s decision. Schmidt v. Coogan, noted at 134 Wn. App. 1055, 2006 WL 2556633, 2006 Wash. App. LEXIS 1937. Schmidt claimed the trial court erred in overturning the jury’s damage award. 2006 WL 2556633, at *1, 2006 Wash. App. LEXIS 1937, at *1. Coogan claimed Schmidt failed to prove the elements of her underlying claim. 2006 WL 2556633, at *1, 2006 Wash. App. LEXIS 1937, at *1-2. The Court of Appeals agreed with Coogan, reversing and remanding the case for dismissal. 2006 WL 2556633, at *1, 2006 Wash. App. LEXIS 1937, at *2. On appeal, this court reversed the Court of *682Appeals decision, holding there was sufficient evidence to support the jury’s verdict with respect to the underlying slip and fall. Schmidt v. Coogan, 162 Wn.2d 488, 492, 173 P.3d 273 (2007). The court remanded for consideration on the remaining issues. Id. at 493.
f 47 On remand, the Court of Appeals affirmed the trial court order granting a new trial limited to the issue of damages. Schmidt v. Coogan, noted at 145 Wn. App. 1030, 2008 WL 5752059, 2008 Wash. App. LEXIS 1695. The Court of Appeals found that the trial court did not abuse its discretion in granting a new trial on damages only because Schmidt proved no factual basis for the jury’s award of $32,000 for past economic damages. 2008 WL 5752059, at *1, 2008 Wash. App. LEXIS 1695, at *1. The Court of Appeals mandated the case back to the trial court for a new trial on damages. Schmidt, 2008 WL 5752059, at *1, 2008 Wash. App. LEXIS 1695, at *2.
|48 On remand for the damages only trial, Coogan sought to confine Schmidt’s damages to “what [Schmidt would] have gotten in her claim against the Grocery Outlet” if Coogan had done his job properly. Verbatim Report of Proceedings Mot. in Limine (Aug. 20, 2010) at 21. Pretrial, Coogan never directly briefed or argued the issue of collectibility. Coogan alleges he raised collectibility in a motion contesting Schmidt’s motion for summary judgment on the issue of general damages by discussing Lavigne v. Chase, Haskell, Hayes & Kalamon, PS, 112 Wn. App. 677, 50 P.3d 306 (2002) and by quoting and attaching an 86 page article in support of his motion in limine on the issue of general damages.
¶49 Neither reference was focused on collectibility. Coogan was arguing that Schmidt’s damages should be limited to actual damages. During the pretrial proceedings, Coogan never directly stated that collectibility was a necessary element of Schmidt’s case. To the contrary, Coogan affirmatively moved for and the trial court granted a motion in limine that excluded a reference to the grocery store’s insurance.
*683¶50 The first time Coogan expressly raised collectibility was in an oral motion to dismiss following the completion of Schmidt’s case in chief during the damages only trial. 3 Verbatim Tr. of Proceedings (Aug. 25, 2010) at 503-04. His counsel stated:
One element in a legal malpractice case is proof that if, in fact, the lawyer had done a better job and there would have been a better result, that they actually wouldn’t have been able to collect on that result. In other words, collectability is an essential element of the plaintiff’s case.
There has been no evidence presented in this case, none whatsoever, as to whether or not even if Mr. Coogan had handled this case right, even if Mr. Coogan had taken it to a jury trial and got a verdict for Ms. Schmidt that that verdict would have been collectible. That is an essential element of their case, they put on no proof; therefore, dismissal is warranted.
Id. at 504.
¶51 The trial court then asked Coogan’s counsel whether collectibility is an element of malpractice or a component of damages. Id. at 507. Counsel responded:
Element two, proximate cause is what I’m talking about here. They’re still going to have to prove proximate cause of damages. And in this context, [Schmidt] has to prove that but for his negligence, she would have faired [sic] better. An element of that concept and that goes to the value of the underlying claim. An element of that concept is the plaintiff’s burden of proof collectability.
Id. The trial court denied the motion to dismiss, finding that collectibility was outside the scope of the damages only trial: “[T]his case is not about any element of malpractice other than damages and proximate cause as it relates to damages. If there was a question as to collectability, that should have been addressed at the first trial. This trial is about damages only.” Id. at 508.
¶52 In August 2010, the jury returned a verdict in favor of Schmidt for $3,733.16 in past economic damages and *684$80,000.00 in noneconomic damages. Coogan moved for judgment as a matter of law and for a new trial on the basis that Schmidt failed to prove collectibility, an essential element of a legal malpractice claim. The trial court denied the motions.
¶53 Coogan appealed, claiming the trial court erred by denying his motion for judgment as a matter of law. The Court of Appeals reversed the trial court’s denial of Coogan’s motion for judgment as a matter of law and remanded for dismissal of Schmidt’s claim. Schmidt v. Coogan, 171 Wn. App. 602, 611, 287 P.3d 681 (2012). The court first determined Coogan preserved the issue of collectibility for appeal, reasoning collectibility is a component for damages. Id. at 609. Further, the court held that Schmidt failed to prove collectibility. Id. at 611.
¶54 I believe the trial court properly denied Coogan’s motion for judgment as a matter of law. First, Coogan did not expressly raise collectibility as an issue in the first trial. He raised it when this case was almost 15 years old and after there had been multiple appellate reviews. If collectibility was an issue, it should have been raised during the first jury trial. If collectibility had been argued successfully in the first trial, there would have been a defense verdict and the case would have been over. I would hold, as the trial court did, that the claim of collectibility had no place in the damages only trial.
f 55 Second, collectibility was not at issue in the damages only trial because during pretrial proceedings Coogan moved to exclude evidence of the grocery store’s insurance. To support the exclusion of insurance information, among other exhibits, Coogan reasoned,
a number of these exhibits are now irrelevant given the fact that this case is now limited to a new trial on the issues of damages only. In other words, any exhibit submitted by the plaintiff that relates to liability should be excluded as generally being irrelevant ... as well as unduly confusing and prejudicial.
*685Resp’t’s Mot. for Recons, (of Court of Appeals decision, filed Nov. 16, 2012), App. at 22. Specifically, Coogan objected to “Exhibit 1. Cover of Coogan’s file regarding Ms. Schmidt; this exhibit is objected to on the grounds that it clearly depicts the words ‘Safeco’ on its cover thus inappropriately references insurance which as discussed above is inadmissible.” Id. Schmidt demurred, and the trial court granted the motion in limine.
¶56 Coogan’s motion in limine evidences that at the beginning of the damages only trial, he did not consider insurance relevant. However, insurance would be relevant if collectibility was an issue. Under the invited error doctrine, Coogan waived the right to complain about the fact that Schmidt did not present any evidence of collectibility. The invited error doctrine prohibits a party from setting up an error in the trial court and then complaining about it on appeal. In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606 (2003). Here, Coogan moved to exclude the exact type of evidence that he later claimed Schmidt had to present in order to prevail in her case.
¶57 I would reverse the Court of Appeals and hold that collectibility was not at issue in the damages only trial because it was not raised during the first jury trial and Coogan invited error by moving to exclude evidence of insurance during the damages only trial. Although there may be unanswered questions about collectibility, this case is not the proper vehicle to decide them.
Madsen, C.J.; Gordon McCloud, J.; and J.M. Johnson, J. Pro Tem., concur with Fairhurst, J.
Also under the facts of this case emotional distress damages are not available.