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Rubio v. Farris6/20/2002
overs less at trial to recover his or her costs, even though that party is determined to be the prevailing party. Bennett v. Hickman, 992 P.2d 670, 672-73 (Colo. App. 1999).
Because § 13-17-202 provides equal opportunity and risk to plaintiffs and defendants alike, it does not violate equal protection principles.
Nor does § 13-17-202 violate Colo. Const. art. II, § 6, which provides that "Courts of justice shall be open to every person, and a speedy remedy afforded to every injury to person, property or character; and right and justice should be administered without sale, denial or delay." This constitutional provision creates only a procedural right of access to the courts whenever the General Assembly creates a substantive right that accrues under Colorado law. See Alexander v. Industrial Claim Appeals Office, 42 P.3d 46, 49 (Colo. App. 2001). Because it does not address the scope or adequacy of substantive remedies, it is not violated by § 13-17-202's impact on plaintiffs' recovery of monies. See State v. DeFoor, 824 P.2d 783, 791 (Colo. 1992).
II.
Nonetheless, we agree with plaintiff that § 13-17-202 was misapplied in this case. Here, the offer of settlement provided: "Defendant pursuant to C.R.S. §13-17-202 offers $35,000.00, (Thirty-Five Thousand Dollars and 00/100), to settle all issues in the above matter, which offer includes all costs and interest" (emphasis added).
In determining whether the judgment obtained by plaintiff is greater than the offer of settlement made by defendant, the judgment and offer must be considered in a like manner. Thus, because the offer included all costs and interest, the judgment must also include these items. Accordingly, the offer of settlement must be compared to the amount of the jury verdict, plus all reasonable costs and interest incurred as of the date of the offer. See Chartier v. Weinland Homes, Inc., 25 P.3d 1279, 1283 (Colo. App. 2001).
Here, the record shows that the trial court did not consider plaintiff's preoffer costs in determining whether the judgment obtained by plaintiff exceeded defendant's offer of settlement. Because the sum of the jury verdict ($23,000), plaintiff's asserted preoffer costs ($9,456.87), and preoffer interest ($3,845.97), is $36,302.79, which exceeds the $35,000 offer of settlement, we conclude that the trial court may have erred in awarding defendant his actual costs. On remand, the trial court must consider plaintiff's asserted preoffer costs, and the reasonableness thereof, in assessing an award of costs.
The order is vacated, and the case is remanded to the trial court with directions to award reasonable costs in conformance with §§ 13-16-104 and 13-17-202, C.R.C.P. 54(d), and the views expressed in this opinion.
JUDGE NEY and JUDGE ROY concur.
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