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Home My WebLink About2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 042 - Plaintiffs' Motion In Limine To Preclude Evidence Of Workers CompensationDISTRICT COURT, LARIMER COUNTY, STATE OF COLORADO Court Address: 201 Laporte Ave. Fort Collins, CO 80621 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE &, SAWAYA P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 2020CV30363 Division: 5A PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE EVIDENCE OF WORKERS COMPENSATION AND OTHER COLLATERAL SOURCES COME NOW the Plaintiffs, Stuward Cross and Katrina Richman, by and through their attorneys Wilhite, Rose, McClure & Sawaya, P.C. and hereby submit their Motion in Limine: To Preclude Reference to Evidence of Workers Compensation and Other Collateral Sources. Plaintiffs state for their Motion the following: RULE 121 CONFERRAL STATEMENT Counsel for Plaintiff conferred with counsel for Defendant prior to filing these Motions. Defendant opposes this Motion. DATE FILED: October 11, 2021 9:41 PM FILING ID: DA8F83C2EB94C CASE NUMBER: 2020CV30363 BACKGROUND This action arises out of a motor vehicle collision incident that occurred June 7, 2017. On June 7, 2017, Plaintiff Stuward Cross was operating a taxi cab with Plaintiff Katrina Richman as his front-seat passenger. Plaintiffs were struck by a dump truck operated by Mr. Antonio Lopez, now deceased. Mr. Lopez was on the job and in the course and scope of his employment fo r Defendant City of Fort Collins. Plaintiffs were injured in the motor vehicle incident and received medical treatment for their injuries. Plaintiff Cross underwent medical treatment through the Workers’ Compensation system and received an impairment rating. Plaintiff Cross received certain Workers’ Compensation benefits for injuries arising from the incident. Plaintiff Cross was discharged from the Workers’ Compensation system and continued her treatment through his primary care provider. Treatment outside of the Workers’ Compensation system was paid for by Medicaid. Plaintiffs file this motion to preclude references, testimony, and evidence of any kind concerning Workers’ Compensation benefits and health insurance payments, as they constitute collateral source payments. ARGUMENT The collateral source rule contains two parts: (1) a post-verdict setoff rule, codified at C.R.S. §13-21-111.6, and (2) a pre-verdict evidentiary component described by the common law and codified at C.R.S. §10-1-135(10)(a). Sunahara v. State Farm Mut. Auto. Ins. Co., 2012 CO 30M. Under the evidentiary component, “the fact or amount of any collateral source payment or benefits shall not be admitted as evidence in any action against any alleged third-party tortfeasor.” C.R.S. 10-1-135(10)(a). “A collateral source is a person or company, wholly independent of an alleged tortfeasor that compensates an injured party for that person’s injuries.” Smith v. Jeppsen, 2012 CO 32, ¶ 21. In this case, the Workers’ Compensation and health insurance benefits received by Plaintiff Cross constitute collateral sources because they are wholly independent of the Defendant. Accordingly, the fact or amount of these benefits is inadmissible at trial. Under the post-verdict setoff rule, the court after a verdict shall reduce the amount of damages to be awarded “by the amount by which [the plaintiff] has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund in relation to the injury, damage, or death sustained.” C.R.S. §13-21-111.6. However, the statute further creates what has been termed a “contract exception,” stating that the “verdict shall not be reduced by the amount by which such a person, his estate, or his personal representative has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for, by, or on behalf of such person.” Id. Under Combined Commc’ns Corp. v. Pub. Serv. Co. of Colorado, 865 P.2d 893, 902 (Colo. App. 1993), workers’ compensation benefits, including any settlement amount, are included within this contract exception. Health insurance payments such as those made by Plaintiff’s health insurer, Kaiser, also fall within this contract exception. Defendant should be precluded from referencing at trial the fact that Plaintiff Cross may have been insured by other insurance providers, that Plaintiff Cross’s medical expenses may have been paid for by such insurance providers, or that Plaintiff may have received negotiated reductions with respect to his incident-related medical expenses. As the Colorado Court of Appeals has held, “evidence of compensation from a collateral source is inadmissible, because it is irrelevant.” Myers v. Beem, 712 P.2d 1092, 1093 (Colo. App. 1986). Colorado has historically permitted an injured party to collect damages for the full amount of costs incurred for medical, hospital, and other healthcare related expenses, without reduction for benefits paid by health insurance. See Publix Cab Co., 338 P.2d at 715 (stating that benefits received by the plaintiff from a source other than the defendant and to which the defendant has not contributed are not to be considered in assessing the damages). Here, Plaintiff Cross was “indemnified” for costs of medical care by the benefits provided as a result of a contractual relationship on his behalf with his insurers. As noted above, the statute states that a “verdict shall not be reduced by the amount by which [the plaintiff] … has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for by or on behalf of [the plaintiff].” C.R.S. § 13-21-111.6 (emphasis added); see Colorado Permanente Medical Group, P.C., 926 P.2d at 1230. These benefits, being the reduction in medical costs between the medical costs billed and those actually paid by the Plaintiff Cross’s insurers, are solely a result of “a contract entered into and paid for by or on behalf of [the Plaintiff].” C.R.S. § 13-21-111.6. Since the Plaintiff Cross’s damages may not be reduced by such collateral source benefits, evidence of such a reduction is irrelevant. Therefore, the relevant evidence of true and reasonable medical expenses is the medical costs as billed by the Plaintiff Cross’s medical providers. In addition to the irrelevant nature of evidence of any benefits provided to Plaintiff Cross by his worker’s compensation and other insurance providers, there exists a significant probability that the jury would be misled if Plaintiff Cross is forced to present evidence of any benefits provided by such providers, including any negotiated or statutory reduction in the amounts billed. Here, evidence of the benefits and the discounted amounts paid by Plaintiff Cross’s insurance providers would result in a gross distortion of the true reasonable value of the relevant medical expenses, ultimately misleading the jury and creating a windfall for Defendant. Thus, evidence of the amounts billed to Plaintiff Cross should be presented to the jury, rather than the irrelevant and misleading evidence of the amounts paid by Plaintiff Cross’s insurance providers. See Colorado Permanente, 902 P.2d 867. Pursuant to Colorado law, in the instant case, Plaintiff Cross is entitled to recover the medical expenses billed regardless of whether or not the expenses or settlement amount been paid by insurance or Workers’ Compensation providers, or whether any of those providers was able to negotiate a reduction in the medical expenses Plaintiff Cross was required to pay, whether pursuant to a statutory fee schedule, or by contracted discounting. CONCLUSION Payments made through Workers’ Compensation, including any settlement amount, and health insurance are collateral sources. They exist wholly independent of the tortfeasor in this action. Any such payments, and indeed the facts of the existence of Workers’ Compensation and health insurance at all in this case, are therefore inadmissible. WHEREFORE, for the reasons stated above, Plaintiffs respectfully request this Court enter an Order prohibiting Defendant from submitting, eliciting, or alluding to any evidence of collateral sources and corresponding liens including but not limited to health insurance and payments made through Workers’ Compensation, and for any further relief the Court deems just and proper. DATED: October 11, 2021. Respectfully submitted, WILHITE, ROSE, MCCLURE & SAWAYA, P.C. /s/ Laura Browne Original Signature on File in Attorney’s Office Laura Browne, Attorney for Plaintiffs CERTIFICATE OF SERVICE I certify that on October 11, 2021 this PLAINTIFFS’ MOTIONS IN LIMINE TO PRECLUDE EVIDENCE OF WORKERS COMPENSATION AND OTHER COLLATERAL SOURCES was served on all parties via Colorado Court’s E-Filing to the following: Andrew W. Callahan, Esq. Julie M. Yates, Esq. WICK & TRAUTWEIN, LLC P.O. Box 2166 Fort Collins, CO 80522 Attorney for Defendant Adam Stephens, Esq. FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Attorney for Defendant /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal