Smith v. Jeppsen

Justice EID,

dissenting.

¶26 Today the majority holds not only that the collateral source doctrine prevents a jury, when considering the reasonable value of medical services, from hearing the fact that the medical provider accepted less than the amount billed for the services, see Wal-Mart v. Crossgrove, 2012 CO 31, 276 P.3d 562, but the legislature actually adopted that position two years ago in section 10-l-185(10)(a). Maj. op. at 124. This scenario is highly unlikely first and foremost because it attributes incredible clairvoyance to the legislature. Moreover, it runs afoul of the operative language of section 10-1-185, which addresses only post-verdict reimbursement. For these reasons, I respectfully dissent from the majority's opinion.

¶27 There is no question that section 10-1-185, on its face, is aimed at changing the way in which post-verdict reimbursement claims may be brought by insurers who have paid benefits to insureds. See, eg., maj. op. at ¶8 (noting that the "bulk" of section 10-1-135 addresses such claims); id. at 115 (same). Indeed, the statute itself declares that it is designed to address the problem of "payers of benefits ... seek[ing] repayment of benefits out of a recovery obtained by the injured party without paying attorney fees incurred by the injured party in obtaining the recovery." §$ 10-1-185(e); see also § 10-1~185(f) (requiring such payment). The statute's title-"Reimbursement for benefits-limitations-notice-definitions-legislative declaration"-reinforees this focus, as do the repeated references to "recovery." See, eg., 10-1-185(@8)(d)(I), (I1), (IIN), (4)(b).

¶28 In fact, the effective date provision upon which the majority relies for its "pros-pectivity" determination, maj. op. at 1111, makes clear that the statute addresses only "recoveries." See Ch. 164, see. 2(2), 2010 Colo. Sess. Laws 575, 580 (providing that section 10-1-185 applies to a "recovery made on or after the applicable effective date of the act" (emphasis added); see also § 10-1-185(2)(d) (defining "recovery" as "recovery of a monetary award ... either through settlement or judgment"). It would make no sense for the legislature to make a substantial change in pre-verdict evidentiary rules-as the majority would have it-and then not apply that change to the pre-verdict stage of the proceedings. Put differently, under the majority's interpretation, the legislature made a substantial change in the trial practice in a statute that, by its very terms, does not apply to trials.

¶29 The majority glosses over this problem by suggesting that the statute applies to cases that have been filed but where no recovery has yet been reached. Seq, eg., maj. op. at 11 (statute applies to "cases *230pending recovery" as of effective date); id. at 111 (same); id. at 112 (same); see also id. at T 11 (statute applies here because case was filed before effective date and "(recovery has yet to occur"); id. at 124 (same). This interpretation suggests that the legislature changed post-verdict procedures even where a recovery has not occurred (and may never occur). If the majority were correct that the legislature intended to preclude juries from hearing the fact that a medical provider accepted an amount less than the amount billed, it would have made the section applicable to "actions" filed on or before a certain date, as the majority's gloss on the statutory language suggests. But again, the statutory language refers to recoveries, not actions.

¶30 Read in this context, section 10-1-135(10)(a) is simply a "savings clause" that preserves the status quo in other areas of the law not impacted by the changes the legislature made with regard to post-verdict reimbursement claims by insurers. The provision begins with "[njothing in this [statute] modifies," and then lists a number of areas that are not modified.1 The entirety of the seetion thus indicates that there has been no change made in the listed areas. legislature indicates that it has not modified "[the requirement of section 13-21-111.6, C.R.S., regarding the reduction of damages based on amounts paid for the damages from a collateral source." Nor has it modified the area listed in the second sentence of section (a)-the collateral source rule-as "[t]he fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against an alleged third-party tortfeasor or in an action to recover [uninsured motorist] benefits." Here, the legislature restated the collateral source doctrine, namely, that "[bJenefits received by the plaintiff from a source other than the defendant and to which he has not contributed are First, the not to be considered in assessing the damages." Carr v. Boyd, 123 Colo. 350, 356-57, 229 P.2d 659, 663 (1951). Finally, the section preserves the procedures in place for hospital liens and workers' compensation. § 10-1-135(b), (c).

¶31 Contrary to this context, the majority's interpretation suggests that the legislature made a major change in trial practice in a section that expressly states that it is making no change at all. Indeed, there is no indication from the language that the statute modified the long-standing rule that juries should consider what a medical provider accepted as payment. for medical services in determining the reasonable value of those services. See Crossgrove, 2012 CO 31, ¶¶ 2829, 276 P.3d 562 (Eid, J., dissenting) (disceuss-ing the rule). Nor does it suggest that the legislature resolved the so-called "tension" between that rule and the collateral source doctrine in favor of exclusion of the fact that a medical provider accepted less than what was billed. See Wal-Mart v. Crossgrove, 2012 CO 31, ¶ 36, 276 P.3d 562 (Eid, J., dissenting). The legislature simply indicated that no change was made in the collateral source doctrine itself.

¶ 32 As such, I would reject any suggestion in the majority opinion that the legislature has actually addressed, let alone resolved, the issue presented in this case-that is, whether the collateral source doctrine bars introduction of the fact that a medical provider accepted an amount less than what was billed-although it certainly may do so in the future. Because I do not believe the collateral source doctrine bars introduction of such a fact, see Crossgrove, 2012 CO 31, 276 P.3d 562 (Eid, J., dissenting), I respectfully dissent from the majority's opinion.

*231I am authorized to state that Justice COATS and Justice BOATRIGHT join in the dissent.

. Section 10-1-135(10) provides:

(10) Nothing in this section modifies:
(a) The requirement of section 13-21-111.6, C.R.S., regarding the reduction of damages based on amounts paid for the damages from a collateral source. The fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against an alleged third-party tortfeasor or in an action to recover benefits under section 10-4-609.
(b) Lien rights of hospitals pursuant to section 38-27-101, C.R.S., or of the department of health care policy and financing pursuant to section 25. 5-4-301(5), C.R.S.; or
(c) Subrogation and lien rights granted to workers' compensation carriers or self-insured employers pursuant to section 8-41-203, C.R.S.