March 22, 2019

Colorado Court of Appeals: Personal Injury Plaintiff Should Receive Statutory Interest on Damages, Not Market Rate Interest

The Colorado Court of Appeals issued its opinion in Averyt v. Wal-Mart Stores, Inc. on Thursday, January 17, 2013.

Post-Judgment Interest Rate Personal Injury Tort Case.

In general, if a plaintiff obtains a money judgment in a personal injury tort case, CRS § 13-21-101(1) requires the trial court to add post-judgment interest to the amount of damages the jury awards, at the rate of 9%, compounded annually. However, if the judgment debtor appeals the money judgment, then the court must calculate post-judgment interest at a market-determined rate. This appeal raised the question of whether the exception applies when the judgment creditor—here, the plaintiff—appeals after (1) the jury has awarded the plaintiff money damages; (2) the trial court enters judgment in plaintiff’s favor; (3) the judgment debtor—here, the defendant—files a motion for a new trial; and (4) the trial court grants the defendant’s motion for a new trial and vacates the judgment. In this case, the applicability of the exception is particularly meaningful because the post-judgment interest rate established by the general rule is much higher than the market determined rate (9% versus 3%). The Court of Appeals held that the exception did not apply and affirmed the trial court’s judgment.

Holly Averyt drove a commercial truck. She slipped and fell on grease-coated ice on a loading dock when she was making a delivery to Wal-Mart Stores, Inc. (Wal-Mart). The fall ruptured a disc in her spine and injured her shoulder and neck, rendering her unable to do her job and unable to control her bladder or bowel.

Averyt sued Wal-Mart for negligence and premises liability. The jury returned a verdict in her favor, assessing total damages at $15 million. In December 2010, the trial court entered judgment and reduced the damages to $9,866,250 to reflect the statutory cap on noneconomic damages. Wal-Mart moved for a new trial based on an evidentiary issue, and the motion was granted. Averyt sought relief in the Supreme Court under CAR 21. The Supreme Court reversed the trial court’s order granting Wal-Mart a new trial.

In February 2012, the trial court entered judgment for the driver in the amount of $9,866,250, pre-judgment interest in the amount of $2,794,788.47, and costs of roughly $45,000. It also awarded post-judgment interest at the statutory rate of 9%, accruing from December 1, 2010 and compounding annually until the judgment was satisfied. Wal-Mart appealed.

Wal-Mart argued that the premises liability verdict was not supported by sufficient evidence. However, the Court found sufficient facts in the record to support the verdict.

Wal-Mart also argued that the market-based interest rate of 3% should apply. It contended that the trial court should have treated Averyt’s CAR 21 original proceeding after the trial court vacated the judgment (an appeal by the judgment creditor) like an appeal by a judgment debtor for the purposes of determining the rate of post-judgment interest. The Court disagreed. CRS § 13-21-101(1) refers only to judgment debtors, not to judgment creditors. The 9% rate was affirmed.

Averyt contended that she should be awarded attorney fees because Wal-Mart’s appeal was frivolous. The Court disagreed. The appeal was not frivolous because there was a basis for Wal-Mart’s argument.

Summary and full case available here.

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