People v. Oliver , 2016 Colo. App. LEXIS 1863 ( 2016 )

COLORADO COURT OF APPEALS 2016COA180
Court of Appeals No. 14CA2127
City and County of Denver District Court No. 12CR2735
Honorable J. Eric Elliff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rollin Michael Oliver,
Defendant-Appellant.
ORDER AFFIRMED
Division III
Opinion by CHIEF JUDGE LOEB
Davidson* and Plank*, JJ., concur
Announced December 15, 2016
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 Defendant, Rollin Michael Oliver, appeals the district court’s
order reaffirming its award of restitution and denying his Crim. P.
35(a) motion to correct that award as an allegedly illegal sentence.
Specifically, Oliver appeals the portion of his sentence ordering him
to pay $365,565.07 in restitution to the Risk Management
Department of the City and County of Denver (the Department).
Oliver contends his sentence was not authorized by law because the
Department was not a victim for restitution purposes and because,
even if the Department was a victim, the bulk of the restitution
amount awarded included “loss of future earnings,” a type of loss
explicitly excluded from the statutory definition of restitution. We
disagree and affirm.
I. Background and Procedural History
¶2 In June 2012, Oliver and a friend were confronted by a group
of men at a City Park “Jazz in the Park” event. One of the men in
the group punched Oliver’s friend. During the altercation, Oliver
pulled a gun and fired it in the direction of the group. One of the
shots struck a Denver Police officer who was in the vicinity. The
officer sustained a bullet wound to the head, and she was
pronounced dead at the hospital.
1
¶3 Police arrested Oliver several hours later, and he was charged
with first degree extreme indifference murder. Oliver later pleaded
guilty to second degree murder in exchange for dismissal of the first
degree murder count and a sentencing range of sixteen to twenty-
six years. The district court sentenced Oliver to twenty-six years in
the custody of the Department of Corrections.
¶4 The prosecution timely filed a demand for restitution naming
the Department as a victim and attached documentation from the
Department showing its claimed losses. The prosecution alleged
that the Department paid $12,469.42 in medical costs for the officer
and $33,219.75 in “survivor benefits” to the officer’s dependent
minor daughter. It further alleged that the Department owed a
balance of $319,875.90 to the officer’s minor daughter in “survivor
benefits” that were required to be paid to her in the future. In sum,
the prosecution stated that the Department would pay a total of
$365,565.07 as a result of Oliver’s murder of the officer, and it
requested an award of restitution in that amount. The district
court agreed and ordered Oliver to pay restitution to the
Department in the amount of $365,565.07 as part of his sentence.
2
¶5 Several months later, Oliver filed a written objection to the
restitution order. Oliver’s objection asserted that the Department
was not a “victim” for restitution purposes and, therefore, the
restitution imposed by the district court was not legal. The district
court ordered the prosecution to respond to the objection and
specifically address whether Oliver’s objection was timely. The
prosecution did not respond, and the district court set the matter
for a hearing.
A. Restitution Hearing
¶6 At the outset of the September 2014 hearing, the court
determined that Oliver’s objection was timely because his argument
challenged the legality of his restitution sentence, which could be
challenged at any time under Crim. P. 35(a). The court then
allowed testimony and arguments to proceed.
¶7 Oliver called Kelly Hopper as his sole witness. Hopper was an
employee of the Department in the Workers’ Compensation Unit,
and specifically, within the subrogation division. She testified that
her job was to determine if the Department could recoup any of the
funds it expended on benefit payouts through subrogation of a third
party. She testified that seeking restitution in a criminal action
3
against a defendant who committed a crime causing the
Department’s financial loss is one way the Department attempts to
recoup such losses.
¶8 Hopper explained that the City and County of Denver self-
insures its workers’ compensation benefits for all employees of the
City and County of Denver, including the Denver Police Department
(DPD). According to her testimony, the Department, an agency of
the City and County of Denver, manages workers’ compensation
claims and benefits for all employees of the City and County of
Denver instead of a private workers’ compensation insurance
company. Hopper repeatedly testified that the Department acted as
the workers’ compensation insurance company for the DPD and the
City and County of Denver as a whole.
¶9 Hopper further testified that death benefit payouts under the
Workers’ Compensation Act of Colorado (the Act), §§ 8-40-101 to
8-47-209, C.R.S. 2016, are fixed by a statutory formula using the
deceased worker’s average weekly wage. Specific to this case, she
stated that the Department had made and would continue to make
required payments to the deceased officer’s minor daughter using
4
this formula, regardless of any subrogation or restitution
determination.
¶ 10 At the conclusion of Hopper’s testimony, Oliver’s counsel
argued that the Department was not a victim under the applicable
restitution statute because, under Colorado law, a government
agency such as the Department could not be a victim for restitution
purposes unless certain conditions were met, and those conditions
were not present in this case. Counsel did not argue that it was
improper to include the death benefits in the restitution amount
because the officer’s average weekly wage was used to calculate the
death benefits owed to the minor daughter. As pertinent here, the
prosecution argued that the Department was a victim for purposes
of restitution because it was an insurer that suffered a pecuniary
loss as a result of Oliver’s murder of the officer. Oliver responded
by arguing that the Department could not be considered an insurer
because there was no evidence of a contract between the deceased
officer and the Department.
B. The District Court’s Findings and Ruling
¶ 11 The court found that section 18-1.3-602(3)(d) and (4)(a)(VI),
C.R.S. 2013, explicitly contemplated government agencies
5
expending funds for providing medical benefits, health benefits, or
nonmedical support services directly related to the condition of the
victim and specifically included such agencies in the definitions of
restitution and victim. The court specifically cited and relied on
language from the 2013 amendments to section 18-1.3-602 and
concluded the Department was a victim and, therefore, entitled to
the restitution requested. The district court, citing section 18-1.3-
602(3)(d), (4)(a)(VI), C.R.S. 2013, also specifically found that the
Department was an insurer: “[U]nder the statute, the statute
specifically contemplates an insurer, including a public insurer like
the [Department]. . . . And so I think under the statute, the
[Department] is entitled to restitution.” The court did not expressly
discuss or rely on section 18-1.3-602(4)(a)(III), C.R.S. 2013, in its
ruling.
¶ 12 Thus, the court reaffirmed its previous restitution award of
$365,565.07 and denied Oliver’s Crim. P. 35(a) objection to that
award. This appeal followed.
II. The Department Was a “Victim”
¶ 13 We first address and reject Oliver’s contention that the
Department was not a “victim” for purposes of restitution.
6
¶ 14 In support of this contention, Oliver argues that the district
court imposed an illegal sentence by making a restitution award to
the Department for three reasons: (1) because the court considered
and relied on statutory language not in effect at the time Oliver
committed his crime in determining that the Department was a
“victim”; (2) because, under the statute in effect at the time of
Oliver’s crime, the Department was not a direct “victim” of Oliver’s
crime; and (3) because the Department was not a “victim” under
section 18-1.3-602(4)(a)(III), C.R.S. 2011, as there was no evidence
of a written contract between the Department and the deceased
officer. We consider each of these arguments and, for the reasons
below, conclude that the Department, as an insurer, was a victim
under section 18-1.3-602(4)(a)(III), C.R.S. 2011.1
¶ 15 As an initial matter, we agree with Oliver that the district court
erred in considering language from section 18-1.3-602(3)(d),
(4)(a)(VI), C.R.S. 2013, in making its restitution award. The court
relied on the 2013 version of the statute, which included amended
1Although subsection (4)(a)(III) was not altered by the 2012 or 2013
amendments to section 18-1.3-602, we cite to the 2011 version to
avoid confusion. Subsection (4)(a)(III) reads the same in 2016 as it
did when Oliver committed his crime.
7
language specifically dealing with public or government agency
insurers as victims for purposes of restitution. Ch. 272, sec. 7,
§ 18-1.3-602(3)(d), (4)(a)(VI), 2013 Colo. Sess. Laws 1429 (capital
letters indicating new material). However, this amended language
applied only to crimes committed on or after July 1, 2013, and,
therefore, did not apply to Oliver’s crime, which he committed in
June 2012. Id. sec. 19, 2013 Colo. Sess. Laws at 1433.
Nevertheless, because we conclude that the Department was a
victim under section 18-1.3-602(4)(a)(III), C.R.S. 2011, the district
court’s reliance on the 2013 version of various other provisions of
the statute does not compel reversal of the court’s restitution
ruling. See People v. Manyik, 2016 COA 42, ¶ 69 (stating that we
may affirm a district court’s decision on alternative grounds
supported by the record).
A. Preservation and Standard of Review
¶ 16 Oliver preserved his argument that the restitution order was
not authorized by law because the Department was not a “victim”
by his written objection to restitution and his arguments at the
restitution hearing. “An illegal sentence is one that is not
authorized by law, meaning that it is inconsistent with the
8
sentencing scheme established by the legislature.” People v.
Jenkins, 2013 COA 76, ¶ 11. We review the legality of a sentence
de novo. People in Interest of J.S.R., 2014 COA 98, ¶ 12.
¶ 17 Oliver’s arguments involve a question of statutory
interpretation, which is also an issue we review de novo. Jenkins,
¶ 12. More specifically, “[w]hether the sentencing court interpreted
the statutory sentencing scheme correctly is a question of statutory
interpretation that we review de novo.” People v. Rice, 2015 COA
168, ¶ 10. As with any statute, our primary task is to give effect to
the General Assembly’s intent by first looking to the statute’s plain
language. E.g., Candelaria v. People, 2013 CO 47, ¶ 12. “To
discern the General Assembly’s intent, we look to the plain
language of the statute, and where that language is clear and
unambiguous, we engage in no further statutory analysis.” Rice,
¶ 11.
B. Applicable Law
1. Restitution Statutes
¶ 18 Every judgment of conviction for a felony offense must include
an order of restitution to be paid by the defendant. § 18-1.3-603(1),
C.R.S. 2016.
9
¶ 19 In the 2011 version of the restitution definitions, the General
Assembly defined a “victim” of an offender’s conduct for restitution
purposes as follows:
(4)(a) “Victim” means any person aggrieved by
the conduct of an offender and includes but is
not limited to the following:
(I) Any person against whom any felony,
misdemeanor, petty, or traffic misdemeanor
offense has been perpetrated or attempted;
(II) Any person harmed by an offender’s
criminal conduct in the course of a scheme,
conspiracy, or pattern of criminal activity;
(III) Any person who has suffered losses
because of a contractual relationship with,
including but not limited to an insurer, . . . for
a person described in subparagraph (I) or (II) of
this paragraph (a) . . . .
§ 18-1.3-602, C.R.S. 2011. Pertinent to the discussion below, the
term “contractual relationship” is not defined in the statute.
¶ 20 The word “person” is defined as “any individual, corporation,
government or governmental subdivision or agency, business trust,
. . . limited liability company, partnership, association, or other
legal entity.” § 2-4-401(8), C.R.S. 2016 (emphasis added). Colorado
courts have previously determined that section 2-4-401(8) applies
to the restitution statutes. E.g., Dubois v. People, 211 P.3d 41, 45-
10
46 (Colo. 2009) (using section 2-4-401(8) to determine if police
officers should generally be eligible for restitution awards); People v.
Webb-Johnson, 113 P.3d 1253, 1254 (Colo. App. 2005) (stating that
section 2-4-401(8) applies to the restitution act).
2. Colorado Workers’ Compensation Act
¶ 21 The Act provides the exclusive remedy to a covered employee
for injuries sustained while the employee is performing services
arising in the course of his or her employment. Ferris v. Bakery,
Confectionery & Tobacco Union, Local 26, 867 P.2d 38, 42 (Colo.
App. 1993). Under the Act,
“[e]mployer” means: . . . The state, and every
county, city, town, and irrigation, drainage,
and school district and all other taxing
districts therein, and all public institutions
and administrative boards thereof without
regard to the number of persons in the service
of any such public employer. All such public
employers shall be at all times subject to the
compensation provisions of articles 40 to 47 of
this title.
§ 8-40-203(1)(a), C.R.S. 2016 (emphasis added). DPD, an agency of
the City and County of Denver, is a public employer and, therefore,
is required to provide all such benefits and compensation to all of
its employees under the Act. See also State Comp. Ins. Fund v.
11
Alishio, 125 Colo. 242, 248, 250 P.2d 1015, 1017 (1952) (city is a
public employer for workers’ compensation purposes).
¶ 22 The nature of the Act’s exclusive remedy creates a framework
whereby workers’ compensation is an agreement by employers to
provide benefits to employees, regardless of fault, and in exchange
for assuming that burden, the employer is immunized from claims
for tortious injuries to its employees. § 8-40-102(1), C.R.S. 2016
(“[T]he workers’ compensation system in Colorado is based on a
mutual renunciation of common law rights and defenses by
employers and employees alike.”); § 8-41-102, C.R.S. 2016
(abolishing all common law rights and remedies for an employee’s
action against an employer for injury except as provided in the Act);
Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061,
1063-64 (Colo. App. 2002) (“The Act provides workers compensation
for job-related injuries, regardless of fault” in return for the
employer’s immunity from common law claims brought by its
employees. (citing Frohlick Crane Serv., Inc. v. Mack, 182 Colo. 34,
38, 510 P.2d 891, 893 (1973))).
12
¶ 23 Employers subject to the Act, including agencies like the DPD,
are required to secure insurance for all employees in one of four
ways:
(a) By insuring and keeping insured the
payment of such compensation in the Pinnacol
Assurance fund;
(b) By insuring and keeping insured the
payment of such compensation with any stock
or mutual corporation authorized to transact
the business of workers’ compensation
insurance in this state. If insurance is effected
in such stock or mutual corporation, the
employer or insurer shall forthwith file with
the division, in form prescribed by it, a notice
specifying the name of the insured and the
insurer, the business and place of business of
the insured, the effective and termination
dates of the policy, and, when requested, a
copy of the contract or policy of insurance.
(c) By procuring a self-insurance permit from
the executive director as provided in section 8-
44-201, except for public entity pools as
described in section 8-44-204(3), which shall
procure self-insurance certificates of authority
from the commissioner of insurance as
provided in section 8-44-204;
(d) By procuring a self-insurance certificate of
authority from the commissioner of insurance
as provided in section 8-44-205.
13
§ 8-44-101(1), C.R.S. 2016. Here, the prosecution presented
evidence that the DPD was self-insured through the Department
pursuant to the above statute.
In at least one instance, a division of this court has concluded
that a victim’s workers’ compensation insurer was entitled to
recover claimed losses as restitution. People v. Rogers, 20 P.3d
1238, 1239-40 (Colo. App. 2000) (holding that in a vehicular
assault of a construction flag worker, workers’ compensation
insurer was a victim and the district court properly imposed
restitution for the amount of medical benefits paid by the
employer’s workers’ compensation insurer).2 The insurer in that
case was the Colorado Compensation Insurance Authority, id.,
2 The division in Rogers concluded that the statute’s plain language
allowed for recovery of the losses claimed by the insurer. At the
time, the statute defined “victim” as “the party immediately and
directly aggrieved by a defendant, who is convicted of a criminal act
and who is granted probation, as well as others who have suffered
losses because of a contractual relationship with such party.” People
v. Rogers, 20 P.3d 1238, 1239-40 (Colo. App. 2000) (citation
omitted). The court concluded that the insurer was a “victim”
under such language and, therefore, implicitly determined that the
flag worker and the insurer had a contractual relationship. Id.
14
which, after July 2002, became Pinnacol Assurance3 referenced in
section 8-44-101(1)(a). §§ 8-45-101(4), -123, C.R.S. 2016.
C. Analysis
¶ 24 Oliver argues that a government agency such as the
Department is not entitled to restitution of funds expended in
performing the tasks it was statutorily created and mandated to
perform. The People argue that the Department is not simply a
governmental agency in this instance, but is instead an insurer
under section 18-1.3-602(4)(a)(III), C.R.S. 2011. We agree with the
People that the Department fits squarely within the definition of a
victim insurer under that subsection.
¶ 25 To begin, the Department qualifies as a “person” under
subsection (III) because the definition of “person” in section
2-4-401(8) includes a governmental agency. Next, it is undisputed
that the Department suffered losses because it was required to
3 Pinnacol Assurance is the first option given to employers for
insuring their employees in section 8-44-101, C.R.S. 2016.
Pinnacol is an entity created by the General Assembly as a political
subdivision of the state, and it operates as a domestic mutual
insurance company. § 8-45-101(1), C.R.S. 2016. Pinnacol is
explicitly not a state agency. Id.
15
make medical and other benefits payments caused by Oliver’s
conduct.
¶ 26 Subsection (III) further requires that the person’s losses be
suffered because of a “contractual relationship” with a person
against whom the crime was committed, specifically listing an
insurer as an example. § 18-1.3-602(4)(a)(III), C.R.S. 2011. Here,
that means that the Department was required to be an insurer who
had a contractual relationship with the deceased officer. We
conclude that there was such a relationship.
¶ 27 Oliver does not dispute that the officer was employed by the
DPD and was working in that capacity at the time he shot her. The
DPD, therefore, was responsible under the Act for paying the
officer’s medical expenses incurred while performing her duties and
any other workers’ compensation benefits arising from the shooting,
including death benefits to her dependents. E.g., § 8-40-203(1)(a)
(requiring public employers to provide compensation in accordance
with the Act). Hopper’s testimony that the DPD pays premiums to
the Department in return for the Department’s management of all
workers’ compensation benefits for DPD employees and their
dependents is undisputed. Hopper also testified that the
16
Department makes direct payments to entities that provide services
to an injured employee (i.e., hospitals, doctors, therapists, etc.) or,
in the case of death benefits, to the individual dependents of the
employee; the Department does not make payments directly to the
DPD or other governmental agencies that pay workers’
compensation premiums.
¶ 28 Thus, the record here demonstrates a layered contractual
relationship under which the employees of the DPD (and their
dependents) are the ultimate intended beneficiaries. The DPD pays
premiums to, and contracts with, the Department for managing and
paying workers’ compensation benefits; the Department, in return,
is contractually obligated to pay valid workers’ compensation claims
for all employees of the DPD, including the deceased officer here.
Although the Department does not have a separate signed written
contract with each DPD employee, it is contractually obligated to
pay DPD employees’ claims directly to those employees, their
dependents, or any service providers used by the employees for
their work-related injuries.
¶ 29 The record shows that the Department, as an insurer, had an
express contract with the DPD, as an employer, to manage and pay
17
workers’ compensation claims under the Act.4 Nevertheless, the
deceased officer and her dependents were the intended or third-
party beneficiaries of the contract between the employer and the
employer’s insurer. Black’s Law Dictionary (Black’s) defines an
“intended beneficiary” as “[a] third-party beneficiary who is intended
to benefit from a contract and thus acquires rights under the
contract as well as the ability to enforce the contract once those
rights have vested.” Black’s Law Dictionary 186 (10th ed. 2014).
Further, the intent of the parties to benefit a third party “need not
be expressed in the agreement itself,” but can be evidenced by “the
surrounding circumstances.” Villa Sierra Condo. Ass’n v. Field
Corp., 878 P.2d 161, 166 (Colo. App. 1994). In this case, that
intent is evidenced by a workers’ compensation system that
necessarily benefits covered employees. See Colo. Springs Disposal,
58 P.3d at 1063-64 (stating that the Act is an agreement between
employer and employee for a mutual waiver of rights).
¶ 30 Hopper’s testimony at the restitution hearing and
documentary evidence introduced by the prosecution made clear
4Evidence of the contract comes from Hopper’s testimony. The
parties did not submit the contract as evidence at the restitution
hearing.
18
that the City and County of Denver is self-insured for workers’
compensation purposes, and that the Department serves as the
City’s insurer for claims under the Act. For example, Hopper
testified as follows:
 Defense Counsel: “And can you tell the Court exactly
what is the [Department] and how does it function as an
insurance company?”
Hopper: “The City and County of Denver self-insures its
workmen’s [sic] compensation benefits for all employees
of the City and County of Denver, and [the Department]
is the office that manages all of that.”
 Defense Counsel: “Would it be fair to say that . . . [the
Department] is the insurance company that insures
each city agency’s workers’ compensation benefits
obligations since 1981?”
Hopper: “Yes, that is correct.”
 Prosecutor: “Is it safe to say that the [Department] is the
city’s insurance company?”
Hopper: “Oh, yes, sir.”
19
Hopper also testified that the Department is supervised by the
Division of Workers’ Compensation of the State of Colorado and that
the Division monitors the Department the same as it would monitor
private insurance companies providing workers’ compensation
insurance (e.g., Pinnacol). She further testified that the
Department is required to abide by the same requirements as
private insurance companies, and the Department collects
premiums just like such other insurance companies.
¶ 31 There is no dispute that an insurer can be a victim for
purposes of restitution under section 18-1.3-602(4)(a)(III), C.R.S.
2011. See, e.g., People v. Woodward, 11 P.3d 1090, 1092-93 (Colo.
2000) (courts may award restitution to victims’ insurers, as well as
to the direct victims). And, as discussed above, a division of this
court has previously upheld a restitution order in favor of a
workers’ compensation insurer. See Rogers, 20 P.3d at 1239-40.
Although the insurer in Rogers was the private insurer created by
the General Assembly (now Pinnacol), not, as is the case here, a
governmental agency, we conclude that this is a distinction without
a difference. Id. at 1239.
20
¶ 32 We decline to interpret the restitution statutes to allow
restitution to private workers’ compensation insurers, as in Rogers,
while denying restitution to government agencies that act as
insurers in every way under the Act. See § 8-44-204, C.R.S. 2016.
In short, we will not punish the City and County of Denver for
legally choosing to self-insure its workers’ compensation coverage.
¶ 33 We also reject Oliver’s argument that the contractual
relationship element of subsection (III) of section 18-1.3-602(4)(a),
C.R.S. 2011, was not met here because there was no evidence of a
written contract between the officer and the Department presented
at the restitution hearing. First, we note that the plain language of
subsection (III) does not require a written contract, but only a
contractual relationship. Oliver cites no authority for the
proposition that subsection (III) requires a written contract, and we
have found none. Indeed, as discussed above, a division of this
court has already upheld a restitution order in favor of an insurer
that paid medical benefits for a covered employee, which, in our
view, implies that there is a contractual relationship between
employees and workers’ compensation insurers even though the
21
employer may be the party who contracts directly with the insurer.
Rogers, 20 P.3d at 1239-40.
¶ 34 Although the term “contractual relationship” is not defined in
the statute, the term can be easily understood. “[W]here, as here,
the statute does not define a term, the word at issue is a term of
common usage, and people of ordinary intelligence need not guess
at its meaning, we may refer to dictionary definitions in determining
the plain and ordinary meaning.” Roalstad v. City of Lafayette,
2015 COA 146, ¶ 34 (quoting Mendoza v. Pioneer Gen. Ins. Co.,
2014 COA 29, ¶ 24). Black’s defines a contract as “[a]n agreement
between two or more parties creating obligations that are
enforceable or otherwise recognizable at law.” Black’s Law
Dictionary 389 (10th ed. 2014). A “contractual obligation” is
defined as an “obligation arising from a contract or agreement.” Id.
at 1243. Neither of those definitions is limited to a written
document and, in fact, the full Black’s entry for “contract” includes
myriad types of contracts, including express, written, oral, and
implied in fact. Id. at 390-99. A contract simply need not be
22
written to create legal obligations or a relationship arising from the
contract.5
¶ 35 The definition of the word “relationship” that is most
applicable in a contract context is “[t]he nature of the association
between two or more people; esp., a legally recognized association
that makes a difference in the participants’ legal rights and duties
of care.” Id. at 1479. Thus, a “contractual relationship” is an
agreement that creates legally enforceable obligations and a legally
recognized association between the parties that changes their legal
rights and duties of care.
¶ 36 For all the reasons described above, the relationship among
the three parties — the DPD, the Department, and the deceased
officer — meets that definition. The DPD contracted for the
Department’s services as evidenced by the insurance premiums it
paid to the Department and the certificate showing that, since
1981, the DPD has chosen to be self-insured through the
5 “A good many contracts are never expressed in word, or at least
not fully in words. These are genuine understandings between the
parties even though they have not been spelled out. . . . In other
words, the contract is proved by circumstantial evidence.”
Agritrack, Inc. v. DeJohn Housemoving, Inc., 25 P.3d 1187, 1193
(Colo. 2001) (quoting 1 Dan B. Dobbs, Law of Remedies § 4.2(3), at
579 (2d ed. 1993)).
23
Department for workers’ compensation benefits. In return, the
Department agreed to manage and pay all workers’ compensation
claims and benefits for the DPD’s employees and their dependents.
Under the agreement, therefore, the deceased officer and her
dependents were third-party beneficiaries of the contract between
the DPD and the Department. As third-party beneficiaries, the
officer and her dependents had legally enforceable rights under that
contract and, therefore, had a contractual relationship with the
Department. See Villa Sierra Condo. Ass’n, 878 P.2d at 166.
¶ 37 Further, because we conclude that the Department was acting
as an insurer with a contractual relationship with the deceased
officer, we reject Oliver’s reliance on People v. Padilla-Lopez, 2012
CO 49, and People v. McCarthy, 2012 COA 133, for the proposition
that the Department was not entitled to restitution in its capacity
as a government agency. In Padilla-Lopez, the supreme court held
that expenses incurred by a government agency are not typically
eligible for recovery under the restitution statutes absent an
express legislative provision authorizing them or unless the
underlying criminal statute encompasses the agency as a primary
victim. ¶ 14 (citing Dubois, 211 P.3d at 45-47). The court
24
concluded that the term “victim” in the restitution definitions did
not include government agencies that expended funds allocated to
them in order to fulfill their public function. Id. at ¶ 18. There, the
court ultimately concluded that the El Paso County Department of
Human Services (DHS) was not entitled to restitution for funds it
expended on services for the child victims of the defendant’s crimes
because the underlying crime of child abuse did not name DHS as a
victim and there was no statutory authorization making DHS a
victim for restitution purposes. Id. at ¶ 20. Rather, DHS expended
the funds as a result of its statutory duty to do so, and the agency
was not entitled to recover its ordinary operating expenses
performing its public function. Id.
¶ 38 Padilla-Lopez is simply not applicable here because that case
did not involve a government agency acting as an insurer. As the
district court pointed out in distinguishing Padilla-Lopez, DHS was
neither a benefits organization nor an insurer. Oliver points to no
statute or case law holding that a government agency cannot be an
insurer, and we have found none. Indeed, at the restitution
hearing, Oliver’s counsel repeatedly referred to the Department as
an insurance company. Therefore, in this instance, the Department
25
should not be considered an agency seeking recovery of operating
expenses, but rather an insurer entitled to restitution under section
18-1.3-602(4)(a)(III), C.R.S. 2011.
¶ 39 McCarthy is similarly inapplicable. In that case, a division of
this court concluded that the Department of Health Care Policy and
Finance was not entitled to restitution for Medicaid payments it
made to a direct victim of the defendant’s crimes because (1) the
agency was merely expending funds to perform its statutorily
mandated function, and (2) it was not an insurer contemplated
under subsection (III) because there was no evidence before the
court indicating a prior contractual relationship between the agency
and the victim. McCarthy, ¶¶ 20, 24-26. Here, by contrast, there is
evidence of a prior contractual relationship between the officer and
the Department. Oliver does not dispute that the officer was
employed by the DPD prior to and at the time of the shooting. And,
as discussed above, the Department was an insurer that contracted
with the DPD to manage and pay all claims for workers’
compensation benefits to DPD employees and their dependents.
Therefore, the deceased officer and her minor child were intended
beneficiaries of that insurance agreement, as evidenced by the
26
resulting coverage by the Department of the officer’s medical claims
and death benefits claims.
¶ 40 In sum, we conclude the record is more than sufficient to
show that the Department was acting as an insurer with a
contractual relationship with the deceased officer when it paid out
medical benefits to the officer’s medical provider and death benefits
to the officer’s minor daughter. The district court, therefore, did not
err in concluding that the Department was a victim of Oliver’s crime
for purposes of restitution.
III. Death Benefits are not Loss of Future Earnings
In the alternative, Oliver contends that, even if the Department
is a victim under section 18-1.3-602(4)(a)(III), C.R.S. 2011, the
amount of restitution ordered by the district court was not
authorized by law because it included the death benefits already
paid to, and expected to be paid to, the deceased officer’s minor
daughter. In that regard, he argues that because the death benefits
were calculated using the deceased officer’s average weekly wage,
the death benefits constituted “loss of future earnings,” a type of
loss specifically excluded from the statutory definition of restitution.
We disagree.
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A. Preservation and Standard of Review
¶ 41 Oliver did not make his “loss of future earnings” argument in
the district court. His arguments there focused solely on the
Department’s status as a restitution “victim.” In fact, on multiple
occasions, Oliver’s counsel reminded the court that Oliver was not
challenging the amount or calculation of restitution. We therefore
conclude that this contention is not preserved.
¶ 42 Because Oliver’s argument was never presented to the district
court and is raised for the first time on appeal, we review for plain
error. People v. Ujaama, 2012 COA 36, ¶ 38. Under the plain error
standard, a defendant bears the burden of establishing that an
error actually occurred and that at the time the error was made, it
was so clear cut, so obvious, a trial judge should have been able to
avoid it without benefit of objection. Id. at ¶ 42. The defendant
must also establish that the error was so grave that it undermined
the fundamental fairness of the sentencing proceedings itself so as
to cast serious doubt on the reliability of the sentence. Id. at ¶ 43;
People v. Banark, 155 P.3d 609, 611 (Colo. App. 2007).
¶ 43 For the reasons discussed below, we discern no error, let alone
plain error.
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B. Applicable Law
1. Restitution
¶ 44 At the time Oliver shot the officer, the General Assembly
defined “restitution” as
any pecuniary loss suffered by a victim and
includes but is not limited to all out-of-pocket
expenses, interest, loss of use of money,
anticipated future expenses, rewards paid by
victims, money advanced by law enforcement
agencies, money advanced by a governmental
agency for a service animal, adjustment
expenses, and other losses or injuries
proximately caused by an offender’s conduct
and that can be reasonably calculated and
recompensed in money. “Restitution” does not
include damages for physical or mental pain
and suffering, loss of consortium, loss of
enjoyment of life, loss of future earnings, or
punitive damages.
§ 18-1.3-602(3)(a), C.R.S. 2011 (emphasis added).6 “[F]or purposes
of criminal restitution . . . ‘loss of future earnings’ are earnings not
expected to be received by the victim after restitution is imposed.”
People v. Bryant, 122 P.3d 1026, 1029 (Colo. App. 2005). Wages
lost between the date of the crime and the date restitution was
6Again, although subsection (3)(a) was not altered by the 2012 or
2013 amendments, we cite to the 2011 version to avoid confusion.
Subsection (3)(a) reads the same in 2016 as it did at the time Oliver
committed his crime.
29
imposed can legally be ordered as restitution; wages expected to be
lost after the date restitution was imposed, “loss of future earnings,”
cannot legally be included in a restitution order. Id.
2. Colorado Workers’ Compensation Act Benefits
¶ 45 Under the Act, employees and their dependents are entitled to
several kinds of benefits, including medical, disability, and death
benefits. §§ 8-42-101 to -125, C.R.S. 2016. In the case of death of
a covered employee, the employee’s dependents are entitled to
compensation as follows:
In case of death, the dependents of the
deceased entitled thereto shall receive as
compensation or death benefits sixty-six and
two-thirds percent of the deceased employee’s
average weekly wages, not to exceed a
maximum of ninety-one percent of the state
average weekly wage per week for accidents
occurring on or after July 1, 1989, and not
less than a minimum of twenty-five percent of
the applicable maximum per week.
§ 8-42-114, C.R.S. 2016. The definition of “dependent” includes
minor children of the deceased employee under the age of eighteen,
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or under the age of twenty-one if engaged as a full-time student at
any accredited school. § 8-41-501(1)(b), (c), C.R.S. 2016.7
¶ 46 The Act is to be liberally construed to accomplish its
beneficent social and protective purpose. E.g., Claimants in the
Death of Hampton v. Dir. of Div. of Labor, 31 Colo. App. 141, 145,
500 P.2d 1186, 1188 (1972). In the context of death benefits,
“compensation legislation is a system of benefits one of whose
independent social objectives is to prevent destitution among
dependents of workmen who lose their lives in industrial activity.”
Id. (alteration and citation omitted).
¶ 47 Under the Act, death benefits are a responsibility of the
employer, and such benefits are “fixed statutory payments [for]
what may be regarded, and were so regarded by the legislature, as
the appropriate responsibility of an employer, and not what it
actually takes to support a child.” U.S. Nat’l Bank of Denver v.
Indus. Comm’n, 128 Colo. 417, 422, 262 P.2d 731, 733 (1953). The
fixed liability and the fixed payments are not a substitute for the
actual parents’ support of their children. Id. Thus, death benefits
7Here, it is undisputed that the deceased officer’s minor daughter
qualified as a dependent.
31
are not intended to be a substitute for a parent’s lost wages, but
instead are a type of insurance policy for the dependents, payable
by the employer.
¶ 48 Death benefits and disability benefits are independent of one
another because they protect two distinct rights — one is for the
benefit of the worker who is insured; the other is for the benefit of
his or her dependents. This is commonly referred to as the “rule of
independence.” E.g., Hoffman v. Hoffman, 872 P.2d 1367, 1370
(Colo. App. 1994). Similarly, death benefits are also distinct from
wage loss benefits and compensate individuals for separate losses.
City of Loveland Police Dep’t v. Indus. Claim Appeals Office, 141 P.3d
943, 954 (Colo. App. 2006).
C. Analysis
¶ 49 Contrary to Oliver’s contention, we conclude, as a matter of
first impression, that the death benefits paid and to be paid by the
Department were authorized by law as proper restitution because of
the following:
 the death benefits are a pecuniary loss;
 the loss was suffered by the Department, a victim of
Oliver’s crime;
32
 the loss was proximately caused by Oliver’s crime; and
 the loss can be reasonably calculated in money because
it was a monetary payout entirely determined by a
statutory formula.
§ 18-1.3-602(3)(a), C.R.S. 2011. Thus, for the reasons below, we
conclude that the death benefits paid by the Department under
section 8-42-114, although calculated using the deceased
employee’s average weekly wage, are not equivalent to “loss of
future wages.” Rather, the payments are more properly considered
the Department’s “out-of-pocket expenses” and “anticipated future
expenses,” both of which are included in the statutory definition of
restitution. See § 18-1.3-602(3)(a), C.R.S. 2011.
¶ 50 Under the rule of independence, death benefits owed under
the Act are independent of wage benefits because they are owed to
the employee’s dependents and not to the employee herself. E.g.,
City of Loveland Police Dep’t, 141 P.3d at 954; Hoffman, 872 P.2d at
1370. Because these benefits are independent of any wage benefits
required by the Act, and because death benefits are considered the
dependents’ rights rather than the employee’s rights, death benefits
cannot be considered the employee’s lost future wages. Instead,
33
such benefits are simply a type of insurance payout triggered by
Oliver’s criminal conduct.
¶ 51 Moreover, it is clear under Colorado law that the type of death
benefits here, those benefiting a minor child, are regarded as an
employer’s responsibility — there is no legal dispute over the
amount of benefits because the amount is not intended to be
equivalent to what it actually takes to raise and support a child.
U.S. Nat’l Bank of Denver, 128 Colo. at 422, 262 P.2d at 733.
Therefore, the average weekly wage of the employee is merely a
variable in the statutory formula that is used to calculate the fixed
amount of death benefits payable to a deceased employee’s
dependents. The method by which this benefit is calculated is
simply not relevant to the question whether the Department, as an
insurer, can recover through restitution money it paid (and will
continue to pay) to a minor dependent of the deceased officer.
¶ 52 In essence, death benefit payments under the Act are meant to
compensate a deceased employee’s dependents just like any other
insurance policy payment. The death benefit payments here are no
different from a life insurance policy that pays out a fixed amount.
The fact that the payout amount here is determined by a formula
34
based on the “policyholder’s” wages is a distinction without a
difference — the fact remains that an insurer, the Department, was
required to pay a death benefit solely because of Oliver’s conduct.
¶ 53 Accordingly, we conclude the district court did not err in
awarding restitution that included the death benefits owed to the
deceased officer’s minor daughter. The payments already made
qualified as the Department’s “out-of-pocket expenses,” and the
payments to be made in the future are calculable, fixed “future
expenses.” See § 18-1.3-602(3)(a), C.R.S. 2011 (defining restitution
to include such expenses).
¶ 54 In any event, even if the district court did err, such error was
not obvious under the plain error standard because whether
workers’ compensation death benefits under the Act are “loss of
future earnings” excluded from criminal restitution is an issue of
first impression in Colorado. See Ujaama, ¶ 42 (stating that an
error is obvious if the issue has been decided by a division of this
court or by the Colorado Supreme Court).
IV. Conclusion
¶ 55 The district court’s order reaffirming its restitution award and
denying Oliver’s Crim. P. 35(a) motion is affirmed.
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JUDGE DAVIDSON and JUDGE PLANK concur.
36