dissenting:
Because I believe that the CMAA and the comparative negligence statute do not conflict, but rather may be harmonized to give sensible effect to both, I respectfully dissent from the majority’s holding.
I.
Janice Tucker, bearing 70% of the fault for her injuries, stands to gain roughly $12,000 from a person whom Colorado law does not even recognize as liable in tort.
Under the CMAA, the state has a right to reimbursement for Medicaid expenses where a third party is liable for the injuries caused. See § 26-4-403(3), 8 C.R.S. (1997). Thus, the state itself may institute proceedings against the third party, or it may assign any portion of its rights to an injured party bringing suit for damages. See § 26-4r-403(3), 8 C.R.S. (1997). In this manner, the state can recover some of its costs without incurring the expense of pursuing its own lawsuit in situations where a third party is at fault for the indigent person’s injuries.
In this case, the state and Tucker negotiated an assignment of the state’s Medicaid claim whereby Tucker would receive 60% and the state, 40% of the damages. Tucker then sued Gorman for negligence in her own behalf and also for reimbursement under the Medicaid claim. After dismissal of her personal claims against Gorman, Tucker pursued only the claim based on the Medicaid assignment.
A jury found that Tucker was 70% responsible for the accident, and that Gorman was 30% at fault. The trial court determined that because Gorman was not greater than 50% at fault, as required by the comparative negligence statute, Gorman had no liability
under the Medicaid assignment claim. The court of appeals reversed, holding that the comparative negligence statute did not bar the claim. The court of appeals also applied the pro-rata liability statute to reduce Gor-man’s liability to 30% of the $70,000 Medicaid bill ($21,000). Thus, Tucker personally -will now receive 60% of that award. Had Tucker not been indigent and received Medicaid benefits, Gorman could not have been held liable, and no damages would have been awarded.
As inequitable as this result appears, the majority’s holding today opens the door to an even more unjust result whereby a party who is 1% at fault must pay 100% of an indigent person’s Medicaid bill to cover injuries for which that indigent person is 99% at fault.1 See Colorado State Bd. of Med. Exam’rs v. Saddoris, 825 P.2d 39, 44 (Colo.1992) (noting that the court should not follow a statutory construction that leads to an absurd result). The majority holds that the language prohibiting the recipient’s contributory negligence from being imputed to the state specifically overrides the comparative negligence statute. That statute precludes liability unless a party is at least 51% at fault.
I believe that the two statutes can be harmonized such that once legal liability under the comparative negligence statute is triggered, the CMAA allows 100% recovery to the state.
II.
As a matter of statutory construction, section 2-4-205,1 C.R.S. (1997), directs that if a general provision conflicts with a more specific provision, courts are to give effect to both provisions if possible. See § 2-4-205, 1 C.R.S. (1997); Cooley v. Big Horn Harvestore, 813 P.2d 736, 747 (Colo.1991) (acknowledging that, if possible, courts must seek to harmonize potentially contrasting statutory provisions). It is only when the provisions are irreconcilable that we must construe the specific provision to prevail over the general. *1133See § 2-4-205,1 C.R.S. (1997); Climax Molybdenum Co. v. Walter, 812 P.2d 1168, 1174 (Colo.1991) (finding that a specific statutory-provision controls where two provisions were irreconcilable). Here, the provisions of the CMAA and the comparative negligence statute are easily reconciled so as to give effect to both provisions.
The CMAA provides that the state has an enforceable right against a third party having liability for a Medicaid recipient’s injuries. See § 26-4-403(3), 8 C.R.S. (1997) (“[T]he attorney general ... may institute and prosecute, or intervene of right in legal proceedings against the third party having legal liability_”). The statute further explicitly provides that the recipient’s contributory negligence shall not be imputed to the state. See § 26-4-403(3), 8 C.R.S. (1997). The statute is predicated upon “liability” and “legal liability” of a third party, and, in my view, thereby necessarily incorporates principles of tort liability. The CMAA itself defines liability as “the legal liability of a third party ... for all or any part of the medical cost of an injury_” See § 26-4-103(9), 8 C.R.S. (1997). Hence, where a party is not legally liable in tort, no liability or legal liability would attach for CMAA purposes nor for any other purposes. This interpretation would give full, sensible and proper effect to the language of both the CMAA and the comparative negligence statute.
The latter part of section 26-4-403(3) regarding contributory negligence becomes operative once it is determined that a party has legal liability, i.e., is at least 51% at fault. At that point, any contributory negligence of the recipient will not be imputed to the state and the state may collect its full reimbursement from the legally hable tortfeasor. Thus, as a preliminary matter, I would construe the two statutes so as to give effect to both.
Additionally, we should contemplate the practical effect of our interpretation. Section 2-4-203(l)(e), 1 C.R.S. (1997), provides that if a statute is ambiguous, we may consider “[t]he consequences of a particular construction.” § 2-4-203(l)(e), 1 C.R.S. (1997); see also Brooke v. Restaurant Servs., Inc., 906 P.2d 66, 70 (Colo.1995). The majority’s construction creates a situation whereby a person’s tort liability becomes divorced from notions of fault and turns solely upon the happenstance of an injured party’s financial condition. By contrast, giving effect to both provisions allows us to preserve the tort doctrine of fault and liability while still serving the goal of greater reimbursement to the state as contemplated by the CMAA.
The majority concludes that the General Assembly intended to circumvent the existing comparative negligence statute at the time it enacted section 26-4-403. See maj. op. at 1130-1131. I do not agree. If the General Assembly had truly intended to fundamentally alter the common law and legislative scheme of tort liability, it could have done so when it created a definition of legal liability under the CMAA. The General Assembly saw fit to define liability under the CMAA, yet did not include any language modifying the legal definition of tort liability. See People v. Bergen, 883 P.2d 532, 547 (Colo.App.1994) (noting that the absence of specific language in a statute indicates an intent not to include the omitted concept). Nor does the definition specifically include the concept of liability to the CMAA rather than to the recipient/injured as would commonly be understood under tort law. See People v. Guenther, 740 P.2d 971, 975 (Colo.1987) (stating that statutory language must be given its commonly accepted and understood meaning).
Instead the General Assembly chose to use language that prevents imputation- of contributory negligence to the state in cases where a third party has legal liability. Thus, a threshold finding of legal liability is necessary before the non-imputation language becomes effective.
Tucker makes much of the fact that the CMAA creates an independent right of recovery in the state. The significance of this right is that it ensures that the state has standing and is free to pursue reimbursement of its Medicaid expenses where appropriate. However, this “independent right” is not a separate statutory cause of action unrelated to the attribution of fault. Rather, the fact remains that but for the accident, the state would not have incurred medical expenses. The accident was caused by some *1134combined negligence of the plaintiff and the defendant. The defendant is not liable to the plaintiff unless he or she was more than 50% at fault for the accident, and the defendant should similarly not be liable to the state absent such wrongdoing.
In sum, I agree with the trial judge below that we would create
an unjust result, and one certainly not intended by the legislature, to have a defendant who is not legally responsible, or only partially responsible, reimburse all costs to Medicaid. This would make the government able to recover when the recipient of the Medical funds would not be able to recover in an identical lawsuit. That is simply an untenable position....
III.
The General Assembly clearly intended to provide greater recovery to the state in the event it incurs unreimbursed medical expenses on behalf of an accident victim. However, that greater right should not be read to supersede clear principles of tort law that provide recovery only where a defendant is more than equally at fault. I would read tort principles into the CMAA and, accordingly, I would reverse the court of appeals and respectfully dissent.
. I believe the majority's reasoning that the CMAA is more specific and controls over the comparative negligence statute is equally applicable to preclude use of the prorata liability statute, and thus would allow the state to collect 100% of its Medicaid expenditures from a party who is only 1% at fault. Whether or not it is within the General Assembly's province to shift costs away from the state in this draconian manner, I do not read the provisions of the CMAA as dictating this result.