Farm Mutual Automobile Insurance Company v. Gary J. Griggs and Susan Goddard

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 11, 2021
2021COA15
No. 19CA1108, State Farm Mutual Automobile Insurance
Company v. Gary J. Griggs and Susan Goddard — Insurance —
Automobile Insurance Policies — Breach of Contract; Torts —
Bad Faith Breach of Insurance Contract
In this insurance bad faith case, a division of the court of
appeals considers whether the district court erred by (1) denying a
motion for a directed verdict on the insurer’s claim for breach of
contract against its insured; (2) denying a motion for a directed
verdict on the insurer’s affirmative defense of collusion; and (3)
admitting irrelevant and prejudicial evidence at trial.
The division refuses to adopt a blanket rule that an insured
cannot, as a matter of law, breach an insurance policy by entering
into an agreement like the one contemplated by the Colorado
Supreme Court in Nunn v. Mid-Century Insurance Co., 244 P.3d 116
(Colo. 2010). Instead, the division holds that, before an insured is
justified in stipulating to a judgment and assigning its claims
against its insurer to a third-party claimant, it must first appear
that the insurer has unreasonably refused to defend the insured or
to settle the claim within policy limits. Whether an insurer appears
to have acted unreasonably and whether an insured has breached
an insurance contract by entering into such an agreement are
questions of fact.
The division also concludes that any error by the district court
in allowing the jury to consider the insurer’s collusion affirmative
defense was harmless because the jury found that the bad faith
claim failed on its elements and never reached the merits of the
defense. Finally, the division concludes the district court did not
erroneously admit irrelevant or prejudicial evidence.
For these reasons, the division affirms the judgment.
COLORADO COURT OF APPEALS 2021COA15
Court of Appeals No. 19CA1108
City and County of Broomfield District Court No. 16CV30175
Honorable Emily E. Anderson, Judge
State Farm Mutual Automobile Insurance Company,
Plaintiff-Appellee,
v.
Susan A. Goddard,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BROWN
Bernard, C.J and Vogt*, J., concur
Announced February 11, 2021
Spencer Fane LLP, Evan Stephenson, Kayla Leigh Scroggins-Uptigrove, Denver,
Colorado, for Plaintiff-Appellee
Franklin D. Azar & Associates, P.C., Natalie A. Brown, DezaRae D. LaCrue,
Elisabeth Owen, Aurora, 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. 2020.
¶1 This insurance bad faith case requires us to explore the
circumstances under which an insured may protect itself from an
insurer’s apparent bad faith conduct — by stipulating to a
judgment and assigning its claims against its insurer to a
third-party claimant — without breaching its insurance contract.
¶2 State Farm Mutual Automobile Insurance Company (State
Farm) sued its insured, Gary J. Griggs, seeking a declaration that
Griggs breached his insurance contract by, among other things,
entering into an agreement with third-party claimant Susan
Goddard, whereby Griggs stipulated to entry of a judgment against
him in an amount to be determined by binding arbitration and
assigned to Goddard any claims he had against State Farm.
Goddard, as Griggs’s assignee, brought a bad faith counterclaim
against State Farm.
¶3 Goddard contends that the district court erred by allowing the
jury to consider the breach of contract claim because it was
required to determine as a matter of law whether Griggs’s conduct
violated the insurance policy. And she argues that Griggs could not
have violated the insurance policy by entering into the agreement
because his conduct was expressly authorized by the Colorado
1
Supreme Court in Nunn v. Mid-Century Insurance Co., 244 P.3d 116
(Colo. 2010).
¶4 We reject Goddard’s contention. Before an insured is justified
in stipulating to a judgment and assigning its claims against its
insurer to a third-party claimant, it must first appear that the
insurer has unreasonably refused to defend the insured or to settle
the claim within policy limits. And whether an insurer appears to
have acted unreasonably is a question of fact. Thus, whether an
insured has breached an insurance contract by entering into such
an agreement is, like any other alleged breach of contract, a
question for the fact finder.
¶5 Because we also reject the balance of Goddard’s contentions
on appeal, we affirm the district court’s entry of judgment on a jury
verdict in favor of State Farm.
I. Background
¶6 State Farm insured Griggs under an auto insurance policy (the
policy) with liability limits for bodily injury of $25,000 per person
and $50,000 per accident.
2
¶7 On November 30, 2013, Griggs injured Goddard and two other
persons in a four-vehicle accident. Goddard and the other two
injured persons each made a claim under the policy.
¶8 On December 16, 2013, Goddard retained Franklin D. Azar &
Associates, P.C. (the Azar firm) as her counsel under a written
contingent-fee agreement (the Azar fee agreement).
¶9 On March 5, 2014, the Azar firm sent State Farm a settlement
demand letter seeking to resolve Goddard’s claim for the $25,000
policy limit. The letter claimed that Goddard had incurred
$2,410.00 in documented medical expenses; that records reflecting
the charges she incurred at the hospital remained pending; and
that she missed two days of work for a total wage loss of $141.60.
The letter did not claim that Goddard would continue to incur
medical expenses or suffer future damages. The letter further
provided as follows:
We hereby demand your insured’s policy limits
and Ms. Goddard will settle for policy limits if
offered to us by 5 p.m. on April 4, 2014. If not
offered by that date and time, then consider
our offer to be automatically withdrawn at the
expiration of that time period. Our offer is
conditioned on you providing proof of your
insured’s policy limits for all coverages
available to Ms. Goddard for this claim, as well
3
as the underinsured motorist carrier granting
permission to settle for the underlying liability
limits.
¶ 10 On April 4, 2014, the date Goddard’s settlement offer expired,
State Farm offered $5,000 to settle her claim based on the
documentation she had provided by that date. According to State
Farm, Goddard never responded to the offer.
¶ 11 Approximately two months later, Goddard provided State Farm
with additional medical records, including emergency room and
physical and massage therapy records. The records indicated that
Goddard had an MRI on April 8, 2014, and thereafter received a
referral for a neurological evaluation and psychotherapy.
¶ 12 As of February 2015, after State Farm had settled with the two
other injured persons, only $18,500 remained under the policy’s
per accident limit. State Farm offered Goddard the remaining
$18,500 to settle her claim. Goddard did not respond.
¶ 13 Meanwhile, Goddard had sued Griggs on November 11, 2014.
Goddard did not serve Griggs with the complaint and State Farm
did not learn of the lawsuit until mid-March 2015, after the
$18,500 settlement offer had been made. State Farm hired an
attorney to defend Griggs against Goddard’s claims.
4
¶ 14 In June 2015, Goddard informed Griggs’s attorney that she
was “no longer willing to accept a settlement offer within policy
limits” and, “[i]n the interest of protecting [Griggs] from an excess
verdict,” offered him the opportunity to enter into an agreement
whereby Griggs would assign “his rights to any potential bad faith
claim against State Farm” to Goddard and, in exchange, Goddard
would agree “not to pursue [Griggs’s] personal assets.”
¶ 15 In January 2016, the trial court granted Goddard leave to add
a claim for punitive damages against Griggs because he admitted to
driving under the influence of alcohol when he ran a red light and
caused the accident that injured Goddard.
¶ 16 In June 2016, Griggs and Goddard entered into the agreement
Goddard had proposed a year earlier (the assignment agreement).
Under the assignment agreement, Griggs admitted liability for the
accident and agreed to have Goddard’s damages determined
through a binding, nonappealable arbitration conducted by a
specific arbitrator; to have judgment entered against him in the
amount determined by the arbitrator; and to assign any claims he
may have against State Farm to Goddard. In exchange, Goddard
agreed to initiate any “necessary proceedings” against State Farm,
5
including pursing claims for breach of contract and bad faith, and
not to execute on or enforce the judgment that would be entered
against Griggs. Griggs further agreed to cooperate with Goddard in
prosecuting any claims against State Farm.
¶ 17 Goddard and Griggs arbitrated the amount of Goddard’s
damages. State Farm paid counsel to defend Griggs at the
arbitration. The arbitrator entered an award in favor of Goddard in
the amount of $837,193.36. As contemplated by the assignment
agreement, judgment entered against Griggs in that amount.
¶ 18 After arbitration, State Farm initiated the underlying
declaratory judgment action against Griggs and Goddard, as
Griggs’s assignee, seeking a determination that Griggs breached the
insurance policy by, among other things, entering into the
assignment agreement with Goddard. Griggs disclaimed any
interest in the litigation. Goddard counterclaimed that State Farm
had breached the insurance policy and engaged in bad faith by,
among other things, failing to settle Goddard’s claims within the
policy limits. State Farm asserted various affirmative defenses to
Goddard’s counterclaim, including, as relevant here, that the
6
arbitration award and the resulting judgment were unreasonable
and the product of fraud and collusion.
¶ 19 Ultimately, the case proceeded to a six-day jury trial and the
jury returned a verdict in favor of State Farm. First, the jury found
by a preponderance of the evidence that State Farm proved its claim
for breach of contract against Griggs. Second, the jury found by a
preponderance of the evidence that Goddard had not proved her
counterclaim for bad faith breach of insurance contract against
State Farm. The jury did not reach the merits of State Farm’s
affirmative defenses.
II. Discussion
¶ 20 Goddard contends that the district court erred by (1) denying
her motion for a directed verdict on State Farm’s breach of contract
claim; (2) denying her motion for a directed verdict on State Farm’s
collusion affirmative defense; and (3) admitting irrelevant and
prejudicial evidence at trial. We affirm.
A. The District Court Did Not Err by Allowing the Jury to
Consider State Farm’s Breach of Contract Claim
¶ 21 Goddard contends that the district court erred by denying her
motion for directed verdict on State Farm’s breach of contract claim
7
because the claim (1) raised exclusively legal questions the court
should have resolved and (2) failed on the facts. We disagree.1
1. Additional Background
¶ 22 At the close of State Farm’s evidence, Goddard moved for a
directed verdict on the breach of contract claim pursuant to
C.R.C.P. 50, asking the district court to resolve the claim as a
matter of law rather than submit it to the jury. Among other
things, Goddard argued that Griggs’s conduct — entering into the
assignment agreement — was legally authorized by Nunn, and could
not, as a matter of law, amount to a breach of the insurance
contract. She also argued that State Farm’s breach of contract
claim failed for want of evidence because nothing Griggs did
breached a policy provision.
¶ 23 State Farm countered that Nunn did not hold that an insured
can never breach an insurance contract by entering into a
stipulated judgment and assigning its claims to a third-party
1 Although Goddard frames this issue on appeal as an error by the
district court in “instructing the jury” to decide State Farm’s breach
of contract claim, she identifies no error in the jury instructions.
Instead, she argues that the district court should have resolved the
breach of contract claim as a matter of law by granting a directed
verdict in her favor under C.R.C.P. 50.
8
claimant; instead, there must be a showing that the insurer acted
unreasonably, engaged in bad faith, or gave its consent to such an
agreement before the stipulated judgment can be enforced against
the insurer.
¶ 24 The district court denied Goddard’s motion, highlighting a
series of disputed facts regarding Griggs’s compliance with the
policy provisions and the reasonableness of State Farm’s conduct.
The court noted that the jury was capable of reading the contract
terms and, based on the evidence and testimony of both lay and
expert witnesses, deciding whether there had been a breach.
2. Standard of Review
¶ 25 C.R.C.P. 50 authorizes a party to move for a directed verdict at
the close of the evidence offered by the opposing party. Directed
verdicts are not favored. Flores v. Am. Pharm. Servs., Inc., 994 P.2d
455, 457 (Colo. App. 1999). Indeed, a motion for directed verdict
may be granted only if the evidence, considered in the light most
favorable to the nonmoving party, “compels the conclusion that
reasonable persons could not disagree and that no evidence, or
legitimate inference therefrom, has been presented upon which a
jury’s verdict against the moving party could be sustained.”
9
Burgess v. Mid-Century Ins. Co., 841 P.2d 325, 328 (Colo. App.
1992). “A motion for a directed verdict should be granted only in
the clearest of cases.” Devenyns v. Hartig, 983 P.2d 63, 70 (Colo.
App. 1998).
¶ 26 We review a district court’s decision on a motion for directed
verdict de novo. Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry,
P.C., 186 P.3d 80, 82-83 (Colo. App. 2008). We must determine
whether there is evidence of sufficient probative force to support the
district court’s ruling. Flores, 994 P.2d at 457. Like the district
court, we must consider all the facts in the light most favorable to
the nonmoving party and determine whether a reasonable jury
could have found in favor of the nonmoving party. Id.
3. Analysis
a. Whether Griggs Breached the Policy by Entering into the
Assignment Agreement Was a Question of Fact to be
Determined by the Jury
¶ 27 Goddard first contends that the district court erred by denying
her motion for directed verdict on State Farm’s breach of contract
claim because the court was obligated to resolve as a matter of law
“whether Griggs’[s] settlement of Goddard’s claims against him by
Nunn agreement breached the terms of the [p]olicy.” She argues
10
that Griggs could not have breached the policy by entering into the
assignment agreement because his conduct was expressly
authorized by the Colorado Supreme Court in Nunn. She
essentially asks us to adopt a rule that would immunize an insured
against a claim for breach of contract any time the insured enters
into an agreement like the one contemplated in Nunn. We decline
to adopt such a blanket rule.
¶ 28 While the interpretation of a written contract is a question of
law to be determined by the court, whether there has been a breach
of contract is a question of fact to be determined by the jury. Lake
Durango Water Co. v. Pub. Utils. Comm’n, 67 P.3d 12, 21 (Colo.
2003); Town of Breckenridge v. Golforce, Inc., 851 P.2d 214, 216
(Colo. App. 1992). As a result, unless the evidence was undisputed
and compelled the conclusion that no reasonable jury could find
that Griggs breached the policy, the district court correctly denied
the C.R.C.P. 50 motion. See Burgess, 841 P.2d at 328.
¶ 29 Every contract in Colorado contains an implied duty of good
faith and fair dealing. Nunn, 244 P.3d at 119. “A violation of the
duty of good faith and fair dealing gives rise to a claim for breach of
contract.” City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006).
11
Due to the “special nature of the insurance contract and the
relationship which exists between the insurer and the insured,”
however, it is now well settled that, in addition to contractual
remedies for breach of an insurance contract, an insurer’s bad faith
breach of contract also gives rise to tort liability. Nunn, 244 P.3d at
119 (citation omitted); Travelers Prop. Cas. Co. v. Stresscon Corp.,
2016 CO 22M, ¶ 16.
¶ 30 Typically, the insured is responsible for paying any damages
that exceed the amount of liability coverage purchased, yet the
insurer retains exclusive control over the defense and settlement of
claims. Nunn, 244 P.3d at 119. Thus, the insurer’s covenant of
good faith and fair dealing includes the duty to act reasonably in
investigating, defending, or settling a third-party claim. Id.;
Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)
(“Third-party bad faith arises when an insurance company acts
unreasonably in investigating, defending, or settling a claim
brought by a third person against its insured under a liability
policy.”); see also 14A Steven Plitt et al., Couch on Insurance 3d
§ 203:13, Westlaw (database updated June 2020) (Because an
insurer has exclusive control over settlement of claims, it has a
12
duty “to settle within policy limits where recovery in excess of those
limits is substantially likely, in order to protect the insured from a
gamble by the insurer on which only the insured could lose.”).
¶ 31 The insurer’s duty of good faith and fair dealing extends only
to its insured, not to a third-party claimant. Nunn, 244 P.3d at
119. But in Colorado,
an insured . . . is also given wide latitude to
protect itself from exposure to liability beyond
the limits of its insurance coverage by
assigning to the third-party claimant any claim
it may have against its insurer for breach of
the insurer’s duty of good faith and fair
dealing.
Stresscon Corp., ¶ 17.
¶ 32 As is relevant here, the Colorado Supreme Court in Nunn
approved of one way for an insured to protect itself from the risk of
personal liability caused by its insurer’s bad faith refusal of a
policy-limits settlement offer. Nunn, 244 P.3d at 119. Nunn sued
the insured for injuries arising from an automobile accident. Id. at
118. Before trial, Nunn and the insured entered into an agreement
whereby the insured agreed to pay over to Nunn the insurance
policy limit, to stipulate to a judgment against him in excess of that
limit, and to assign any claims he had against his insurer to Nunn.
13
Id. In exchange, Nunn covenanted not to execute on the stipulated
judgment. Id. Nunn, as the insured’s assignee, then brought an
action against the insurer, contending that it had breached the
insurance contract and engaged in bad faith by failing to settle with
Nunn within the policy limits, thereby exposing its insured to a
judgment in excess of policy limits. Id.
¶ 33 The supreme court rejected the insurer’s argument that,
because Nunn had covenanted not to execute on the excess
judgment against the insured, the insured had suffered no actual
damages to maintain an action for bad faith. Id. at 121-22.
Instead, it concluded that an insured who has “suffered a judgment
in excess of policy limits, even if the judgment is confessed and the
insured is protected by a covenant not to execute, has suffered
actual damages and will be permitted to maintain an action against
its insurer for bad faith breach of the duty to settle.” Id. at 122.
¶ 34 Goddard contends that Griggs’s assignment agreement is
similar to the one in Nunn and that Griggs cannot, as a matter of
law, breach the policy by following a procedure the Colorado
Supreme Court has expressly authorized. But we do not read Nunn
as immunizing an insured against a claim for breach of contract. It
14
does not appear that the insurer in Nunn argued that its insured
breached the insurance contract by entering into the agreement
with Nunn. Indeed, it would have been difficult for the insurer to
make such an argument given that it granted its insured
permission to enter into the agreement. See id. at 118 n.2.
Instead, the court in Nunn focused solely on “whether a pretrial
stipulated judgment coupled with a covenant not to execute can
serve as the basis for a claim of damages in an action for bad faith
breach of an insurance contract.” Id. at 118.
¶ 35 Still, we find Nunn instructive because there the court
explained that an insured may undertake the protective steps of
stipulating to its own liability and assigning its claims against its
insurer to a third-party claimant in exchange for a covenant not to
execute on a judgment “when it appears that the insurer — who
has exclusive control over the defense and settlement of claims
pursuant to the insurance contract — has acted unreasonably by
refusing to defend its insured or refusing a settlement offer that
would avoid any possibility of excess liability for its insured.” Id. at
119.
15
¶ 36 In other words, before an insured is justified in stipulating to a
judgment and assigning its claims against the insurer to a
third-party claimant, it must first appear that the insurer has
unreasonably refused to defend the insured or to settle the claim
within policy limits. And, whether an insurer acted — or appeared
to act — unreasonably in denying a defense or a policy-limits
settlement offer is a question of fact. See Farmers Grp., Inc. v.
Trimble, 691 P.2d 1138, 1142 (Colo. 1984) (“The relevant inquiry is
whether the facts pleaded show the absence of any reasonable basis
for denying the claim, ‘i.e., would a reasonable insurer under the
circumstances have denied or delayed payment of the claim under
the facts and circumstances.’” (quoting Anderson v. Cont’l Ins. Co.,
271 N.W.2d 368, 377 (Wis. 1978))); Surdyka v. DeWitt, 784 P.2d
819, 822 (Colo. App. 1989) (“The question of whether an insurer
has breached its duties of good faith and fair dealing with its
insured is one of reasonableness under the circumstances.”). Thus,
we reject Goddard’s contention that an insured may never breach
an insurance contract by entering into an agreement like the one
contemplated by Nunn.
16
¶ 37 To the extent State Farm encourages us to hold that there
must be a finding of bad faith on the part of the insurer before an
insured is justified in entering into a Nunn-like agreement, we
decline that invitation as well. That rule is too harsh. It places too
much risk on an insured that has no control over the settlement of
the claim and yet finds itself in the precarious position of trying to
avoid breaching the insurance policy, thereby forfeiting coverage,
and protecting itself from excess liability that may result from the
insurer’s inept claim handling. Although Nunn requires a finding of
bad faith before a stipulated judgment may be enforced against the
insurer as the measure of damages for a bad faith claim, Nunn, 244
P.3d at 120 (“[W]e have held that a pretrial stipulated judgment
cannot be enforced against an insurer in the absence of a
determination of bad faith . . . .”), whether an insured has breached
an insurance contract is a different question. Based on the
language in Nunn, an insured is justified in entering into a
stipulated judgment and assignment agreement without breaching
the insurance contract when it appears that the insurer has acted
unreasonably. See id. at 119.
17
¶ 38 Although a finding that the insurer appeared to act
unreasonably — thereby allowing an insured to enter into a Nunn
agreement — and a finding that the insurer actually acted
unreasonably — resulting in a finding of bad faith on the part of the
insurer — are likely to go hand in hand, it is conceivable that an
insurer may appear to have acted unreasonably in rejecting a
policy-limits offer, but not actually acted unreasonably in settling
the claim. Under that scenario, the insured would not have
breached the insurance contract and the insurer would not have
acted in bad faith.
¶ 39 Here, the fact that Griggs entered into the agreement with
Goddard was undisputed. But Griggs would have been authorized
to enter into the assignment agreement without breaching the
insurance policy only if it appeared that State Farm had acted
unreasonably by refusing Goddard’s offer to settle within policy
limits.
¶ 40 The apparent reasonableness of State Farm’s conduct was
hotly contested at trial. And State Farm offered at least some
evidence that its rejection of Goddard’s policy-limits settlement offer
appeared reasonable, including the following:
18
 On March 5, 2014, Goddard made a settlement demand
for the full $25,000 policy limit. The demand letter
claimed that Goddard had incurred $2,410.00 in
documented medical expenses and $141.60 in wage loss.
It indicated that other records remained pending but did
not claim that Goddard would continue to incur medical
expenses or suffer future damages. It stated that the
offer would expire on April 4, 2014.
 On the offer expiration date, based on the documentation
that had been provided, State Farm offered $5,000 to
settle Goddard’s claim.
 Two months later, Goddard provided State Farm with
additional medical records, which indicated that Goddard
had received a referral for a neurological evaluation and
psychotherapy. Goddard also provided State Farm with a
Boulder radiologist bill that had been written off and
partly predated the November 30, 2013, accident. The
bill was for a January 23, 2013, chest x-ray and
December 2, 2013, neck and spine exam.
19
 Around February 2015, State Farm asked Goddard for an
update on her status. Goddard did not respond. State
Farm nonetheless offered Goddard $18,500, which was
the balance of the policy limits remaining after it settled
with the two other claimants. Goddard did not respond.
 In June 2015, Goddard informed Griggs’s attorney that
she would no longer accept a settlement within the policy
limits.
 Although Goddard had a neurosurgical evaluation in May
2014, she did not inform State Farm of the surgical
recommendation resulting from that evaluation until
September 2015, approximately ten months after she
sued Griggs and seven months after State Farm offered
her the remaining policy limits.
¶ 41 Considering these disputed facts, we conclude that whether
State Farm appeared to have acted unreasonably in denying
Goddard’s policy-limits settlement offer and, consequently, whether
Griggs breached the insurance contract by entering into the
assignment agreement were questions of fact to be determined by
the jury. Accordingly, we conclude that the district court did not
20
err by declining to hold, as a matter of law, that Griggs did not
breach the policy by entering into the assignment agreement.
b. A Reasonable Jury Could (and Did) Find in Favor of State
Farm on Its Breach of Contract Claim
¶ 42 Goddard next contends that the district court erred by denying
her motion for directed verdict on State Farm’s breach of contract
claim because the undisputed facts established that Griggs did not
breach the policy.2 We disagree.
¶ 43 Goddard first asserts that State Farm had already breached
the policy’s implied covenant of good faith and fair dealing by the
time Griggs entered into the assignment agreement. Under such
circumstances, she argues, the assignment agreement “cannot, as a
matter of law, constitute a breach of the policy’s terms.” But
Goddard’s argument presupposes State Farm breached the policy
first. And whether State Farm breached the policy at all (or, as
discussed above, whether it appeared to have acted unreasonably
2 We have already rejected Goddard’s argument that the district
court should have ruled as a matter of law that an insured can
never breach an insurance contract by entering into an agreement
similar to the one in Nunn. But Goddard also contends, as a matter
of fact, that Griggs did not breach any provision of the policy by
entering into the assignment agreement.
21
in denying Goddard’s initial settlement demand) was a vigorously
disputed factual issue that the jury ultimately resolved in State
Farm’s favor.
¶ 44 Goddard also asserts that the facts did not establish that
Griggs breached any policy provision. Under the policy’s insuring
agreement, State Farm had the right to
a. investigate, negotiate, and settle any
claim or lawsuit;
b. defend [Griggs] in any claim or lawsuit,
with attorneys chosen by [State Farm];
and
c. appeal any award or legal decision for
damages payable under this policy’s
Liability Coverage.
Under the policy exclusions, there was no coverage “FOR LIABILITY
ASSUMED UNDER ANY CONTRACT OR AGREEMENT.” And under
the insured’s duty to cooperate, Griggs agreed to the following:
d. [Griggs] must cooperate with [State Farm]
and, when asked, assist [State Farm] in:
(1) making settlements;
(2) securing and giving evidence; and
(3) attending, and getting witness to
attend, depositions, hearings, and
trials.
e. [Griggs] must not, except at his . . . own
cost, voluntarily:
(1) make any payment to others; or
22
(2) assume any obligation to others
unless authorized by the terms of
this policy.3
¶ 45 In general, an insured breaches the cooperation clause of his
insurance policy when he “fails to cooperate with the insurer in
some material and substantial respect and the failure to cooperate
causes material and substantial disadvantage to the insurer.”
Soicher v. State Farm Mut. Auto. Ins. Co., 2015 COA 46, ¶ 25. “The
scope of such noncooperation therefore depends on the specific
policy provision at issue.” Id. The question of whether an insured
failed to cooperate with the insurer is a question of fact. See
3 On appeal, State Farm argues that Griggs vitiated all coverage
under the policy by entering into the assignment agreement
because the policy had a “no voluntary payment” requirement.
See Travelers Prop. Cas. Co. v. Stresscon Corp., 2016 CO 22M, ¶ 13.
It is unclear whether the policy provisions at issue in this case are
like those in Stresscon, which “make[] clear that coverage under the
policy does not extend to indemnification for such payments or
expenses in the first place,” or if they are instead provisions
“purporting to bar an insured from voluntarily making payments or
incurring expense without the consent of the insurer, for the breach
of which the insurer would be absolved of compliance with its
obligations under the policy.” Id. at ¶ 14. At trial, State Farm
argued that “[Griggs] agreed that there would be no coverage for any
obligation assumed in a contract or agreement, and then he went
and assumed obligations. That’s a breach.” We do not see where
State Farm previously raised this as a coverage issue, so we analyze
it as State Farm asked the jury to analyze it: as an alleged breach of
contract.
23
Farmers Auto. Inter-Ins. Exch. v. Konugres, 119 Colo. 268, 276, 202
P.2d 959, 963 (1949).
¶ 46 State Farm argues that Griggs’s performance under the
assignment agreement itself constituted noncooperation that
substantially prejudiced State Farm. State Farm presented
evidence that, by agreeing to submit Goddard’s damages to binding,
nonappealable arbitration, Griggs deprived State Farm of its rights
to settle and control the defense of Goddard’s claim, try the case to
a jury, and appeal any adverse judgment. Griggs also assumed an
obligation to help Goddard sue State Farm, which he did without
State Farm’s consent. State Farm offered evidence that it made
specific requests of Griggs with which he did not comply, including
requests to Griggs’s personal attorneys (whom Griggs had retained
in addition to the attorney State Farm hired to defend him) asking
them to seek information and raise concerns about the arbitrator.
And State Farm warned Griggs not to enter into the assignment
agreement, but he did so anyway.
¶ 47 Considering these facts in the light most favorable to State
Farm, we conclude that a reasonable jury could (and did) find in
favor of State Farm on its claim for breach of contract. Accordingly,
24
the district court did not err by denying Goddard’s C.R.C.P. 50
motion.4
B. Any Error by the District Court in Allowing the Jury to
Consider State Farm’s Collusion Defense Was Harmless
¶ 48 Next, Goddard contends that the district court erred by
denying her C.R.C.P. 50 motion for directed verdict on State Farm’s
collusion affirmative defense because the evidence was insufficient
to allow the jury to consider it. Even if the district court erred, we
conclude that any error was harmless, and therefore reversal is not
required.
1. Additional Background
¶ 49 At the close of all the evidence, Goddard moved for a directed
verdict on State Farm’s collusion defense pursuant to C.R.C.P. 50.5
She argued that the evidence was insufficient to establish collusion
because State Farm had only offered evidence of two people working
4 Because of this disposition, we need not address State Farm’s
argument that Goddard’s initial settlement demand did not satisfy
the “offer rule” such that State Farm could not have breached its
duty to settle by rejecting it.
5 Goddard moved for a directed verdict on State Farm’s
reasonableness and fraud affirmative defenses too. But State Farm
withdrew its fraud defense and Goddard does not appeal the district
court’s decision on the reasonableness defense.
25
together to accomplish a goal and the arbitration had all the
hallmarks of a fair proceeding.
¶ 50 State Farm asserted that the arbitration award and the
resulting judgment were the product of collusion. Among other
things, it contended that the assignment agreement itself, including
the selection of what it characterized as a non-neutral arbitrator
and the waiver of State Farm’s rights to a jury trial and an appeal,
demonstrated collusion.
¶ 51 The district court denied Goddard’s motion. It determined
that State Farm had presented sufficient evidence from which a
reasonable jury could find collusion. And it agreed with State Farm
that testimony regarding the arbitration could be compelling to the
jury when considering the reasonableness of the arbitration award.
¶ 52 The district court instructed the jury to consider State Farm’s
collusion affirmative defense only if it first found that Goddard had
proved her counterclaim for bad faith breach of insurance contract.
The relevant part of the verdict form tracked the instruction:
Question 2: Has Ms. Goddard proved by a
preponderance of the evidence her
counterclaim for bad faith breach of insurance
contract?
26
Answer (circle one): YES NO
If you answered “NO” to Question No. 2, please
sign this form and do not answer the
remaining questions.
Question 3 addressed State Farm’s collusion defense.
¶ 53 Ultimately, the jury returned a verdict for State Farm, finding
that Goddard had not proved her counterclaim for bad faith breach
of insurance contract. The jury did not reach the merits of the
collusion defense.
2. Preservation and Standard of Review
¶ 54 As an initial matter, we reject Goddard’s contention that this
issue is preserved because she raised it in her motion for summary
judgment. We do not review a denial of a motion for summary
judgment because it is not a final order. Feiger, Collison & Killmer
v. Jones, 926 P.2d 1244, 1250 (Colo. 1996); Manuel v. Fort Collins
Newspapers, Inc., 631 P.2d 1114, 1116 (Colo. 1981).
¶ 55 Even so, Goddard moved for directed verdict on this issue at
the close of evidence, which preserved the issue. As stated above,
in determining whether there is evidence of sufficient probative
force to support the district court’s ruling on a motion for directed
verdict, we must consider all the facts in the light most favorable to
27
the nonmoving party and determine whether a reasonable jury
could have found in favor of the nonmoving party. Flores, 994 P.2d
at 457.
¶ 56 If we conclude that the district court erred, we must consider
whether the error requires reversal. We will deem an error
harmless, and thus will not reverse a judgment, unless the error
resulted in substantial prejudice to a party. Walker v. Ford Motor
Co., 2017 CO 102, ¶ 21; see also C.R.C.P. 61 (“The court at every
stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.”).
3. Analysis
¶ 57 Goddard contends that State Farm’s evidence did not amount
to collusion and that the district court erred by allowing the jury to
consider collusion as an affirmative defense. But we need not
decide whether the evidence State Farm offered at trial was
sufficient to fend off a motion for directed verdict because the jury
never considered the merits of the collusion defense. So even if the
district court erred, we conclude that the error was harmless and
does not warrant reversal.
28
¶ 58 The district court instructed the jury to consider collusion only
if it first found that Goddard had proved her counterclaim for bad
faith breach of insurance contract. “Absent evidence to the
contrary, we presume that a jury follows a trial court’s
instructions.” Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088
(Colo. 2011).
¶ 59 The verdict form for Goddard’s counterclaim aligned with the
jury instruction. The verdict form first asked: “Has Ms. Goddard
proved by a preponderance of the evidence her counterclaim for bad
faith breach of insurance contract?” The foreperson circled “NO.”
Because the jury answered this question in the negative, it was
instructed not to answer any of the remaining questions, including
whether State Farm had proved its affirmative defense that the
“judgment was the product of collusion or other undue means.”
The remainder of the questions were left blank, as instructed.
¶ 60 Collusion is an affirmative defense. “By its nature, an
affirmative defense ‘does not negate the elements of a plaintiff’s
claim, but instead precludes liability even if all of the elements of a
plaintiff’s claim are proven.” Purzel Video GmbH v. Smoak, 11
F. Supp. 3d 1020, 1031 (D. Colo. 2014) (citation omitted); see also
29
Soicher, ¶ 18 (“[A]n affirmative defense is not merely a denial of an
element of a plaintiff’s claim, but rather it is a legal argument that a
defendant may assert to require the dismissal of a claim,
notwithstanding the plaintiff’s ability to prove the elements of that
claim.”); Black’s Law Dictionary 528 (11th ed. 2019) (defining
affirmative defense as “[a] defendant’s assertion of facts and
arguments that, if true, will defeat the plaintiff’s . . . claim, even if
all the allegations in the complaint are true”). Thus, if a jury finds
that all elements of a claim are not proven, success on an
affirmative defense becomes irrelevant.
¶ 61 Where, as here, a jury finds that a claim fails on its elements
and, as a result, never reaches the merits of an affirmative defense
to that claim, any error in submitting the affirmative defense to the
jury is harmless. See iFreedom Direct v. First Tenn. Bank Nat’l, 540
F. App’x 823, 828 (10th Cir. 2013) (reasoning that any alleged error
in submitting a defense to a jury “should be disregarded” when the
jury found no breach of contract and did not consider the defense);
cf. Leaf v. Beihoffer, 2014 COA 117, ¶ 12 (concluding that, if a
plaintiff fails to establish any element of his negligence claim, any
errors related to the other elements are harmless because the
30
plaintiff cannot prevail in any event); Dunlap v. Long, 902 P.2d 446,
448-49 (Colo. App. 1995) (concluding that a jury determination that
the plaintiffs suffered no injury or damages rendered harmless any
error relating only to the defendant’s liability).
¶ 62 And to the extent Goddard argues that the alleged error is not
harmless because the jury was tainted by admission of evidence
related to the collusion affirmative defense, we disagree. Goddard
did not object to admission of the collusion-related evidence during
trial based on prejudice. And she did not move for a directed
verdict on collusion until the close of evidence. By then, the jury
had heard all the evidence. So even if the district court had entered
a directed verdict when Goddard asked for it, the jury still would
have heard the collusion-related evidence.
¶ 63 Thus, we conclude that any error by the district court in
denying Goddard’s C.R.C.P. 50 motion on State Farm’s collusion
affirmative defense was harmless, so reversal is not required.
C. The District Court’s Evidentiary Rulings Were Sound
¶ 64 Finally, Goddard contends the district court erred by
admitting (1) the Azar fee agreement and (2) “evidence of . . . the
existence of Nunn agreements from other cases” in which the Azar
31
firm has been involved. We reject the first contention and conclude
that the second contention was either not preserved or harmless.
1. Standard of Review and Applicable Law
¶ 65 We review a district court’s evidentiary ruling for an abuse of
discretion. Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO
47M, ¶ 16. A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or based on a
misapplication or misunderstanding of the law. Credit Serv. Co.,
Inc. v. Skivington, 2020 COA 60M, ¶ 17; Giampapa v. Am. Fam. Mut.
Ins. Co., 919 P.2d 838, 842 (Colo. App. 1995).
¶ 66 Unless otherwise prohibited by law, all relevant evidence is
admissible. CRE 402; Murray, ¶ 19. Relevant evidence is any
evidence “having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
CRE 401.
¶ 67 Relevant evidence may be excluded if “its probative value is
substantially outweighed by the danger of unfair prejudice.” CRE
403. When reviewing a district court’s decision to admit evidence,
“we accord the evidence its maximum probative value as weighed
32
against its minimum prejudicial effect.” Walker v. Ford Motor Co.,
2015 COA 124, ¶ 46; see Murray, ¶ 19.
¶ 68 Evidentiary rulings that do not affect a substantial right of a
party are harmless and do not warrant reversal. CRE 103(a);
C.R.C.P. 61. An error affects the substantial rights of the parties if
it substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself. Laura A. Newman, LLC v. Roberts,
2016 CO 9, ¶ 24; Bernache v. Brown, 2020 COA 106, ¶ 26.
2. The District Court Did Not Abuse Its Discretion by Admitting
the Azar Fee Agreement
a. Additional Background
¶ 69 Before trial, Goddard moved in limine to preclude State Farm
from offering the Azar fee agreement into evidence, arguing that the
evidence was irrelevant and unfairly prejudicial. The district court
denied the motion and ordered that the fee agreement could be
admitted at trial. It found that State Farm had demonstrated the
relevance of the fee agreement and that Goddard had not
“meaningfully attempt[ed] to argue that if the fee agreement is
admitted, a jury may reach a decision on the incorrect basis.”
33
¶ 70 At trial, State Farm offered the Azar fee agreement through its
first witness and the district court admitted it over Goddard’s
renewed objection. Throughout trial, State Farm argued that the
fee agreement “financially incentivized the Azar firm to sabotage any
chance of an out-of-court settlement with State Farm” by increasing
the percentage of its contingent fee if it took the case to trial. State
Farm also argued that the fee agreement’s pre-authorization of
costs in the amount of $25,000 precluded settlement of Goddard’s
claim for any amount equal to or less than the policy limit of
$25,000.
¶ 71 Although it admitted the Azar fee agreement itself, the district
court repeatedly sustained Goddard’s objections to State Farm’s
attempts to elicit testimony that there was something improper
about the agreement, that it fell below the appropriate standard of
care, or that it deviated from the form contingent fee agreement
approved by the Colorado Supreme Court. C.R.C.P. Ch. 23.3, Rule
7, Form 2 (2019).
34
b. Analysis
¶ 72 Goddard contends that the district court erred by admitting
the Azar fee agreement because it was irrelevant and prejudicial.
We disagree.
¶ 73 As an initial matter, we reject State Farm’s contention that
Goddard waived this claim or invited this error. First, before trial,
Goddard moved in limine to preclude admission of the Azar fee
agreement. She argued in her motion that State Farm sought to
“make some negative inference against Ms. Goddard’s counsel and
take advantage of well-known biases against plaintiff attorneys.” A
court’s definitive ruling on a motion in limine preserves the issue for
appeal. See CRE 103(2) (“Once the court makes a definitive ruling
on the record admitting or excluding evidence, either at or before
trial, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.”); Uptain v. Huntington Lab, Inc.,
723 P.2d 1322, 1330-31 (Colo. 1986) (pretrial ruling on a motion in
limine sufficiently preserves an issue for appeal).
¶ 74 Second, to the extent that State Farm argues that Goddard
waived this issue by referring to the Azar fee agreement during her
defense case, we disagree because State Farm had already admitted
35
the evidence over Goddard’s objection. A party does not waive its
right to challenge evidence admitted over its objection by
responding to it during trial. Cf. Bernache, ¶ 12 (concluding that
party did not waive objection or invite error by preventatively
addressing evidence the court ruled admissible before trial).
¶ 75 Although Goddard preserved her objection, we conclude that
the district court did not abuse its discretion by admitting the Azar
fee agreement. State Farm argued that the agreement financially
incentivized the Azar firm to prevent an out-of-court settlement of
Goddard’s claim and gave the Azar firm the power to do so. State
Farm also used the Azar fee agreement to highlight what it argued
were collusive terms in the assignment agreement between Goddard
and Griggs. Accordingly, the Azar fee agreement was relevant to the
causation element of Goddard’s counterclaim for bad faith breach of
insurance contract and to State Farm’s collusion affirmative
defense.
¶ 76 But Goddard contends that, by excluding certain testimony
about the Azar fee agreement once it was admitted, the district
court demonstrated that the agreement itself was unfairly
prejudicial and should not have been admitted. We disagree.
36
¶ 77 The Azar fee agreement was some evidence from which the
jury could infer that Goddard and her attorneys caused the
settlement failure. Had the jury reached the collusion defense, it
also would have allowed the jury to infer that the assignment
agreement between Goddard and Griggs was collusive based on a
comparison of the arbitration terms in the two agreements. We
acknowledge that these inferences were prejudicial to Goddard’s
case, but they were not unfairly prejudicial. Unfair prejudice refers
to “an undue tendency on the part of admissible evidence to suggest
a decision made on an improper basis.” People v. Coney, 98 P.3d
930, 933 (Colo. App. 2004) (quoting People v. Gibbens, 905 P.2d
604, 608 (Colo. 1995)). The Azar agreement did not suggest to the
jury that it should resolve Goddard’s claim on an improper basis.
We see no abuse of discretion.
3. The District Court’s Admission of “Evidence of . . . the
Existence of Nunn Agreements from Other Cases” Does Not
Require Reversal
a. Additional Background
¶ 78 In discovery, State Farm apparently disclosed a “Table of
Cases,” which was “a spreadsheet that lists a total of 17 cases” from
2013-2016 that “advanced to contested arbitration hearings,”
37
thirteen of which involved both the Azar firm and the arbitrator
named in the assignment agreement between Goddard and Griggs.
State Farm also disclosed as potential witnesses several lawyers
who were involved in those cases. Before trial, Goddard moved in
limine to preclude admission of the other assignment agreements
(which she called “Nunn agreements”) and witness testimony about
the agreements, arguing that such evidence was irrelevant,
misleading, and confusing to the jury.
¶ 79 The district court granted Goddard’s motion in part and
denied it in part. It first noted that neither party had “detail[ed]
with specificity the evidence sought to be admitted or precluded.”
Its order on the motion in limine referred only to the Table of Cases
“as containing the type of information sought to be addressed” by
Goddard’s motion. The court explained that State Farm had not yet
established its “claims of multiple inflated arbitration awards as
well as a ‘lucrative relationship’ benefitting [the arbitrator].” Still, it
concluded that the cases listed in the Table of Cases that involved
both the arbitrator and the Azar firm were relevant to State Farm’s
defenses. Thus, it ruled that State Farm could introduce three
other assignment agreements to demonstrate, among other things,
38
that the Azar firm had a practice of hiring the same arbitrator with
the aim of securing inflated awards. To mitigate any prejudice
resulting from the fact that the arbitrator could not testify
(presumably to contradict State Farm’s collusion accusations), the
court also authorized Goddard to introduce assignment agreements
from three other cases handled by the Azar firm providing for
arbitration by any other arbitrator. The court did not make a ruling
in limine on any other evidence or witness testimony related to
assignment agreements from other cases.
¶ 80 At trial, State Farm called Franklin Patterson as a witness.
Patterson represented State Farm for part of the litigation against
Griggs and Goddard. He testified that, during the course of his
representation, he contacted other defense lawyers seeking other
assignment agreements involving both the Azar firm and the same
arbitrator as the present case. He learned of approximately thirty
such agreements and obtained copies of nineteen. State Farm’s
counsel showed Patterson three assignment agreements from other
cases but did not move to admit them or show them to the jury.
When State Farm’s counsel started to show Patterson a fourth
agreement, Goddard’s counsel objected based on the court’s in
39
limine ruling. At a bench conference the court clarified that the in
limine ruling allowed State Farm to show three agreements.
¶ 81 Patterson then testified that, after finding these other
assignment agreements, he objected to the arbitration in a letter he
sent to Griggs’s personal counsel. He wrote that he believed Azar
and the arbitrator had a “close and frequent relationship.”
b. Analysis
¶ 82 Goddard contends that the district court “impermissibly
allowed State Farm to introduce evidence regarding other Nunn
agreements proposed or entered into by Azar” because the evidence
was irrelevant, “highly prejudicial[,] and designed to induce the jury
to draw impermissible inferences based upon pure speculation and
bias.” In support of this argument, Goddard cites two parts of the
record: (1) her motion in limine and the court’s order partially
granting and partially denying it; and (2) eleven pages of Patterson’s
trial testimony. We conclude any error was harmless.
¶ 83 First, to the extent Goddard contends that the district court
erroneously admitted assignment agreements from other cases
involving Azar’s clients, Goddard does not point us to any part of
the trial record where such agreements were actually admitted into
40
evidence. On the contrary, even though the district court ruled in
limine that State Farm could admit three assignment agreements, it
appears that State Farm did not offer them. Thus, even if the court
erred by ruling in limine that State Farm would be allowed to
introduce three assignment agreements, such error was harmless
because the evidence was not admitted. See C.R.C.P. 61; Gonzales
v. Mascarenas, 190 P.3d 826, 831 (Colo. App. 2008) (concluding
that plaintiff could not show prejudice with respect to the denial of
a motion in limine when the subject evidence was not admitted).
¶ 84 Second, to the extent Goddard contends that the district court
erred by admitting Patterson’s testimony about assignment
agreements from other cases, she did not preserve this issue. As
the district court noted, Goddard’s motion in limine did not identify
specific witness testimony she sought to preclude. And even if it
had, the court did not rule that such testimony was admissible.
The only in limine ruling the court made on this issue was that
each side could introduce three assignment agreements from other
cases. Although a party abiding by an in limine ruling need not
renew an objection at trial to preserve the issue for review, see
Bernache, ¶ 9, because there was no definitive in limine ruling on
41
the scope of permissible testimony about assignment agreements in
other cases, Goddard was required to object at trial to preserve the
issue for appellate review, see Higgs v. Dist. Ct., 713 P.2d 840, 859
(Colo. 1985) (concluding that the denial of a motion in limine
“directed toward a broad array of evidence” does not “dispense with
the obligation to make a contemporaneous objection to the evidence
when offered at trial”). See also CRE 103(a).
¶ 85 But Goddard did not cite to any part of the record where she
objected to Patterson’s testimony about assignment agreements
from other cases based on relevance or unfair prejudice. Notably,
the transcript pages Goddard cites in her briefs do not include the
testimony to which she appears to object on appeal. Giving
Goddard the benefit of the doubt, we reviewed the entirety of
Patterson’s testimony. Although Goddard lodged several objections
on other grounds — many of which were sustained — we did not
find any objections based on CRE 402 or 403. Because she did not
object, she did not preserve this issue for appellate review. See Am.
Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009) (“In
order to properly preserve an objection to evidence admitted at trial,
a timely and specific objection must appear in the trial court
42
record.”); Wycoff v. Grace Cmty. Church of Assemblies of God, 251
P.3d 1260, 1269 (Colo. App. 2010) (“[O]nly in a ‘rare’ civil case,
involving ‘unusual or special’ circumstances — and even then, only
‘when necessary to avert unequivocal and manifest injustice’ — will
an appellate court reverse based on an unpreserved claim of error.”)
(citations omitted).
¶ 86 We acknowledge that, during the bench conference after
Goddard’s counsel objected to State Farm’s attempt to have
Patterson identify a fourth assignment agreement, the district court
said, referencing the in limine ruling, “He can testify as to 19. That
was the deal.” We do not read the in limine order as affirmatively
authorizing Patterson to testify that he obtained nineteen
assignment agreements involving both the Azar firm and the same
arbitrator. But even assuming that the in limine ruling authorized
that testimony such that Goddard did not have to renew her
objection to it at trial, and even assuming the district court erred by
allowing Patterson to testify about the number of agreements he
found, we conclude that the error was harmless. See C.R.C.P. 61;
Bernache, ¶ 26.
43
¶ 87 The testimony and references to it in State Farm’s closing
argument were relatively brief parts of a six-day trial. The evidence
primarily supported State Farm’s collusion defense, which the jury
never reached. And Goddard’s attorney effectively cross-examined
Patterson on this issue, causing him to admit that the Azar firm
handles hundreds of cases each year, that Patterson was only able
to obtain nineteen assignment agreements identifying this
arbitrator, and that only four or five of the nineteen cases actually
went to arbitration. Patterson even admitted that State Farm itself
had used a particular pair of arbitrators seventy times.
¶ 88 Considering the evidence in context, we do not conclude that it
substantially influenced the outcome of the case or impaired the
basic fairness of the trial itself. See Bernache, ¶ 26. Thus, we
conclude any error was harmless.
III. Conclusion
¶ 89 The judgment is affirmed.
CHIEF JUDGE BERNARD and JUDGE VOGT concur.
44