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Rubio v. Farris6/20/2002
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Ney and Roy, JJ., concur
Prior Opinion Announced March 7, 2002, WITHDRAWN
Petition for Rehearing GRANTED
In this personal injury action, plaintiff, Frank Rubio, appeals from the order awarding to defendant, Andrew K. Farris, the actual costs he incurred following an offer of settlement. We vacate the order and remand.
Plaintiff was injured in an automobile accident with defendant on December 3, 1995. Defendant stipulated that his negligence was the sole cause of the accident.
On August 20, 1997, defendant served an offer of settlement on plaintiff, pursuant to § 13-17-202(1)(a)(II), C.R.S. 2001, in the amount of $35,000, inclusive of costs and interest. Plaintiff did not respond to the offer, and thus it expired by operation of law.
The case proceeded to trial, and the jury returned a verdict in favor of plaintiff in the amount of $23,000.
Defendant then filed a motion for actual costs on the basis that the final judgment was less than the offer of settlement. Plaintiff sought his costs under C.R.C.P. 54(d) and argued that defendant was not entitled to actual costs because the amount of the jury verdict plus preoffer interest and costs incurred by plaintiff exceeded defendant's settlement offer.
The trial court determined that because plaintiff's judgment, including preoffer interest, did not exceed the offer of settlement, defendant was entitled to his postoffer actual costs in the amount of $672.15. Consequently, the court concluded that plaintiff was not entitled to recover any of his costs. The court then entered judgment in favor of plaintiff on the jury verdict, plus interest, and offset that amount by the award of costs in favor of defendant.
Plaintiff contends that the trial court erred in determining that defendant was entitled to his postoffer costs pursuant to § 13-17-202(1)(a)(II) and in not awarding plaintiff costs as the prevailing party. We conclude that additional proceedings are necessary.
I.
Initially, we reject plaintiff's contention that § 13-17-202 is unconstitutional because it: (1) benefits only defendants, not plaintiffs, in violation of the equal protection guarantees embodied in U.S. Const. Amend. XIV and Colo. Const. art. II, § 25; and (2) infringes upon a plaintiff's right to a recover damages in violation of the right to a "remedy" afforded by Colo. Const. art. II, § 6.
Section 13-17-202(1)(a), provides, in relevant part:
(I) If the plaintiff serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered, then the plaintiff shall be awarded actual costs accruing after the offer of settlement to be paid by the defendant;
(II) If the defendant serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the plaintiff and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff . . . .
The intent of § 13-17-202 is to encourage the settlement of litigation. Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 946-47 (Colo. 1993). It imposes upon the party who rejects an offer of settlement, but recovers less than the amount of the offer, all of the postoffer costs of the offeror. Additionally, it modifies § 13-16-104, C.R.S. 2001, and C.R.C.P. 54(d) by not allowing the rejecting party who rec
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