Opinion
No. 97SC447
July 6, 1998 Rehearing Denied August 10, 1998
Appeal from the District Court, Jefferson County, Honorable Christopher J. Munch and Gaspar F. Perricone, Judge.
JUDGMENT AFFIRMED
Rodman Ross-Shannon, John R. Rodman, Raymond J. Lego, Denver, Colorado, Attorneys for Petitioner.
The Law Firm of Michael S. Porter, Michael S. Porter, Wheat Ridge, Colorado, Attorneys for Respondents.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Hugo Teufel, Deputy Solicitor General, Andrew P. McCallin, Special Assistant Attorney General, Office of the Attorney General Section, Denver, Colorado, Attorneys for Amicus Curiae State of Colorado.
We granted certiorari in Gorman v. Tucker, 944 P.2d 653 (Colo.App. 1997), to review the court of appeals' decision reversing the trial court's determination that a state department can be reimbursed for expenditures it made under the Colorado Medical Assistance Act (CMAA), see 26-4-101 to -904, 8 C.R.S. (1997), only if the defendant is legally liable to the recipient of Medicaid payments. In reversing the trial court, the court of appeals held that the comparative negligence statute, see 13-21-111, 5 C.R.S. (1997), does not bar recovery by the state under the CMAA. We now affirm.
We granted certiorari on the following issue:
Whether the court of appeals erred in concluding that the comparative negligence statute has no application to the state's right of recovery under the Colorado Medical Assistance Act, and that the state's right to recover is not to be tested by the Medicaid recipient's right to recover.
I.
In the early morning hours of October 17, 1992, the recipient, Janice K. Tucker (Tucker), was an inebriated pedestrian who was struck by a car driven by the defendant, Yolanda Gorman. Tucker sustained serious injuries, and as a result, the Colorado Department of Health Care Policy and Financing (Department) paid Medicaid benefits on her behalf totaling $69,222.82. Subsequently, Tucker filed two types of claims against the defendant. First, she sued in her personal capacity alleging negligence and negligence per se. Second, as the assignee of the Department, she sought reimbursement of the Department's Medicaid payments. In a pre-trial ruling, the Jefferson County District Court (trial court) held that the Department's CMAA claim was recoverable against the defendant only if the defendant was liable to the Medicaid recipient pursuant to the comparative negligence statute.
Currently, the Department is the state agency designated to implement the CMAA. See 25.5-1-201(c), 8 C.R.S. (1997).
In the assignment agreement, the Department was to receive 40% of the net recovery of Tucker's action, but not exceeding benefits paid by the Department on behalf of Tucker.
After Tucker's personal claims were dismissed, the case proceeded to trial on the Department's CMAA claim, and the jury returned a verdict finding that Tucker personally was 70% negligent and the defendant was 30% negligent. In accordance with its pre-trial ruling, the trial court then entered judgment for the defendant.
The court of appeals reversed and held that the CMAA creates an independent right of action in the Department that cannot be defeated by the negligence of the recipient. However, the court of appeals also determined that section 13-21-111.5(1), 5 C.R.S. (1997), specifically limits the liability of any defendant to an amount not "greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant," and held the defendant liable for 30% of the Department's expenditures.
II.
Before considering the substantive issue raised by the defendant, we will summarize briefly the principles that guide our analysis. Interpretation of a statute is a question of law, and an appellate court is not bound by the trial court's interpretation. See Fogg v. Macaluso, 892 P.2d 271, 273 (Colo. 1995). In construing statutory provisions, our obligation is to give full effect to the legislative intent. See Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298, 1302 (Colo. 1996). If the legislative intent is conveyed by the commonly understood and accepted meaning of the statutory language, we look no further. See id. However, if the statutory language is ambiguous, we look to principles of statutory construction to ascertain legislative intent. See 2-4-203(1)(a)-(g), 1 C.R.S. (1997). A statute must be read and considered as a whole and should be construed to give consistent, harmonious, and sensible effect to all of its parts. See Brooke v. Restaurant Servs., Inc., 906 P.2d 66, 70 (Colo. 1995). With this background in mind, we now address the arguments raised by the parties.
Title XIX of the Social Security Act authorizes federal grants to states to help provide medical assistance to the poor and indigent. See 42 U.S.C. § 1396 (1994); 26-4-102, 8 C.R.S. (1997). To qualify for these Medicaid funds, a state plan must provide that the administering agency will take reasonable measures to ascertain the legal liability of third parties and to seek reimbursement from such third parties for any medical assistance paid to recipients. See 42 U.S.C. § 1396a(25) (1994).
As part of this cooperative effort, the CMAA provides the Department with an independent right of action for recovery of medical benefits paid to a recipient for which a third party is liable. See 26-4-403, 8 C.R.S. (1997). Under this section, the Department may assign its claim to the recipient. See id. Section 26-4-403(3) provides in part:
If medical assistance is furnished to or on behalf of a recipient pursuant to the provisions of this article for which a third party is liable, the state department has an enforceable right against such third party for the amount of such medical assistance . . . . Whenever the recipient has brought or may bring an action in court to determine the liability of the third party, the state department, without any other name, title, or authority to enforce the state department's right, may enter into appropriate agreements and assignments of rights with the recipient and the recipient's attorney, if any. . . . The contributory negligence of the recipient shall not be imputed to the state department.
(Emphasis added.)
Additionally, section 26-4-403(4) provides the Department with an automatic lien for its medical expenditures. See id. Section 26-4-403(4) states:
(a) When the state department has furnished medical assistance to or on behalf of a recipient pursuant to the provisions of this article for which a third party is liable, the state department shall have an automatic statutory lien for all such medical assistance.
. . . .
(e) The state department's right to recover under this section is independent of the recipient's right. The contributory negligence of the recipient shall not be imputed to the state department.
(Emphasis added.)
The defendant argues that the language relating to third party liability in subsections (3) and (4)(a) of section 26-4-403 and in a regulation specifically limits the Department's claim to situations in which a Medicaid recipient is injured by conduct which subjects the tortfeasor to "legal liability." The defendant argues that "legal liability" must be determined by reference to the comparative negligence statute. The defendant asserts that she is not legally liable to the Department because Tucker's comparative negligence was 70%. See 13-21-111, 5 C.R.S. (1997). Under the defendant's theory, she would be required to reimburse 100% of the Department's Medicaid expenditures only if she was found to be more than 50% at fault. We reject this argument.
10 CCR 2505-10 8.061.20 (1981) provides:
RIGHT OF RECOVERY IN THIRD PARTY LIABILITY CASES: Section 26-4-112(3), C.R.S. (1973) [predecessor to C.R.S. 26-4-403] as amended, establishes the State Department's right to recover the cost of medical care provided to an eligible medicaid recipient when a third party is liable.
Section 26-4-103(9) defines "liability" for the CMAA:
"Liable" or "liability" means the legal liability of a third party, either by reason of judgment, settlement, compromise, or contract, as the result of negligent acts or other wrongful acts or otherwise for all or any part of the medical cost of an injury, a disease, or the disability of an applicant for or recipient of medical assistance.
Section 13-21-111(1), 5 C.R.S. (1997) reads:
Contributory negligence shall not bar recovery in any action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.
Construing the CMAA language relating to third party liability as allowing the comparative negligence statute to bar the Department's claim would negate the CMAA's non-imputation language. After all, the CMAA explicitly states that the recipient's negligence "shall not be imputed to the state department." See 26-4-403 (3), (4). "Imputed" means "attributed vicariously . . . not because he is personally . . . responsible for it [the imputed action]." See Black's Law Dictionary 682 (5th ed. 1979). Applying the comparative negligence statute would result in the recipient's negligence barring the Department's claim and would impute the recipient's negligence to the Department, a state entity that had no negligence in the car accident underlying this case.
We can give meaning to all parts of the CMAA by recognizing that the CMAA language relating to third party liability is general in nature and the CMAA's more specific non-imputation language controls. The third party liability language does not specifically define when a third party is liable for purposes of the CMAA. Contrary to the defendant's interpretation, the clear and explicit language of subsections (3) and (4)(e) in section 26-4-403 emphasizes the Department's independent right to recover by stating:
The contributory negligence of the recipient shall not be imputed to the state department.
By using this mandatory language, the General Assembly explicitly prohibited the consideration of the recipient's liability in the determination of whether a negligent third party is liable to the Department. See People v. Guenther, 740 P.2d 971, 975 (Colo. 1987) (stating the word "shall" involves a mandatory connotation and is the antithesis of discretion). To the extent that there is any possible conflict between the general language of third party liability and the specific language concerning the Department's independent right to recover its Medicaid expenses in subsections (3) and (4) of section 26-4-403, the latter provisions must prevail. See 2-4-205, 1 C.R.S. (1997); M.S. v. People, 812 P.2d 632, 637 (Colo. 1991).
The defendant cites Dewey v. Hardy, 917 P.2d 305, 310 (Colo.App. 1995), for the proposition that the Department cannot recover unless the third party is found liable to the recipient under the comparative negligence statute. In Dewey, the court of appeals held that a solatium award pursuant to section 13-21-203.5, 6A C.R.S. (1994 Supp.) (solatium statute), did not apply unless the defendants were at least 51% liable under the comparative negligence statute. See id. However, the court of appeals also held that once the solatium statute applied, the solatium award was exempt from the reduction mandated by the comparative negligence statute because the solatium statute was more specific than the general comparative negligence statute. See id. We find Dewey inapposite and reject the defendant's argument because section 13-21-203.5 does not contain any non-imputation language similar to that found in the CMAA. Contrary to the defendant's contention, Dewey stands for the proposition that a more specific statute, like the CMAA, controls over the general comparative negligence statute. See id.
Section 13-21-203.5 provides:
In any case arising under 13-21-202, the persons entitled to sue under the provisions of 13-21-201(1) may elect in writing to sue for and recover a solatium in the amount of fifty thousand dollars. Such solatium amount shall be in addition to economic damages . . . . Such solatium amount shall be in lieu of noneconomic damages recoverable under 13-21-203 and shall be awarded upon a finding or admission of the defendant's liability for the wrongful death.
Moreover, section 26-4-403 was revised and reenacted in 1991, see ch. 290, sec. 1, 26-4-403, 1991 Colo. Sess. Laws 1788, 1801, while the comparative negligence statute was originally enacted in 1971, see ch. 125, sec. 1, 41-2-14, 1971 Colo. Sess. Laws 496. Given the sequence of legislation, the General Assembly is presumed to have had knowledge of the then twenty-year-old comparative negligence statute when it enacted section 26-4-403 and stated in such strong terms that the recipient's negligence shall not be imputed to the Department. See Ingram v. Cooper, 698 P.2d 1314, 1316-17 (Colo. 1985) (holding that the General Assembly is presumed to be knowledgeable of existing laws and statutes at the time it enacts a particular statute). We note that to the extent that there is a conflict between two statutes, the last in time controls. See 2-4-206, 1 C.R.S. (1997); Public Employees Retirement Ass'n v. Nichols, 200 Colo. 328, 330, 615 P.2d 657, 658 (1980).
The General Assembly first enacted the Medicaid reimbursement recovery provision in 1977. See ch. 372, sec. 5, 26-4-112(3), 1977 Colo. Sess. Laws 1351, 1354. This provision was amended in 1988 to include language that the "contributory negligence of the applicant or recipient shall not be imputed to the state department." See ch. 216, sec. 1, 26-4-112(3.1)(e), 1988 Colo. Sess. Laws 1064, 1065. In 1991, the General Assembly revised and reenacted the CMAA and moved this provision to section 26-4-403. See ch. 290, sec. 1, 26-4-403, 1991 Colo. Sess. Laws 1788, 1801. None of the parties has pointed us to any legislative history regarding this provision and our own research has disclosed nothing relevant.
Our interpretation is consistent with CMAA subsections (8), (9), and (10)(c) of section 26-4-403, 5 C.R.S. (1997), which evidence the independent nature of the Department's right of recovery under the CMAA. Section 26-4-403(8) specifically excludes the application of any prohibitions on recovery in the Colorado Auto Accident Reparations Act. Subsections (9) and (10)(c) of section 26-4-403 also emphasize the independent nature of the Department's claim by providing that any action taken by the Department against a negligent third party shall not impair the recipient's right to proceed against the third party.
Section 26-4-403(8) provides:
Nothing in the "Colorado Auto Accident Reparations Act", part 7 of article 4 of title 10, C.R.S., shall be construed to limit the right of the state department to recover the medical assistance furnished to or on behalf of a recipient as the result of the negligence of a third party.
Section 26-4-403(9) states:
No action taken by the state department pursuant to subsection (3) of this section or any judgment rendered in such action shall be a bar to any action upon the claim or cause of action of the applicant or recipient or his guardian, personal representative, estate, dependent, or survivors against the third party having legal liability, nor shall any such action or judgment operate to deny the applicant or recipient the recovery for that portion of his medical costs or other damages not provided as medical assistance under this article.
Section 26-4-403(10)(c) reads:
No action taken by the county or state department pursuant to this subsection (10) or any judgment rendered in such action or proceeding shall be a bar to any action upon the claim or cause of action of the recipient or his guardian, personal representative, estate, dependent, or survivors against the trustee or person holding the power of attorney.
Finally, the defendant contends that courts in other jurisdictions interpreting the analogous federal statute under the Federal Medical Care Recovery Act (FMCRA), see 42 U.S.C. § 2651(a) (1994), have rejected the approach of the court of appeals. We find these authorities inapplicable because the federal statute is very different from the state statute at hand. 42 U.S.C. § 2651(a) reads:
See United States v. Trammel, 899 F.2d 1483, 1488-89 (6th Cir. 1990) (holding that the federal government cannot recover under FMCRA where defendant is not liable under the state no-fault act); Hohman v. United States, 470 F. Supp. 769, 771 (E.D. Pa. 1979) (stating that government's claim is barred because defendant was not liable under the state's no-fault act); but see United States v. Theriaque, 674 F. Supp. 395, 398-400 (D. Mass. 1987) (holding that state's comparative negligence law was no defense to the federal government's independent right to recover).
In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment . . . to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person . . . to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person . . . has against such third person. . . .
(Emphasis added.) Specifically, the federal statute lacks any non-imputation language regarding the negligence of the recipient, and, more importantly, explicitly states that the government's right is subrogated to the recipient's right. We recognize that the General Assembly may have extended Medicaid recovery beyond the requirements of the federal law; however, it is not prevented from doing so when its laws do not contravene federal law.
Because the Department assigned its claim to Tucker, the court of appeals was correct in holding that the comparative negligence statute did not bar the CMAA reimbursement claim. See In re Marriage of Lipira, 621 P.2d 1390, 1391 (Colo.App. 1980) (stating assignee takes rights of assignor).
III.
The State of Colorado (State) argues in its brief as amicus curiae that the court of appeals erred in reducing the Department's recovery by applying section 13-21-111.5, 5 C.R.S. (1997). The State argues that section 13-21-111.5 is inapplicable and that a third party who is found to be negligent for any part is liable for all of the Department's Medicaid costs. Under the State's theory, the defendant should have been required to reimburse all of the Medicaid expenditures and not merely 30% of the expenditures as held by the court of appeals. However, Tucker did not petition for rehearing in the court of appeals or cross-petition for writ of certiorari.
Section 13-21-111.5(1) provides:
In an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss, except as provided in subsection (4) of this section.
We will not consider issues raised only by amicus curiae and not by the parties. See Sherman Agency v. Carey, 195 Colo. 277, 280, 577 P.2d 759, 761 (1978); see also Eugene Cervi Co. v. Russell, 31 Colo. App. 525, 530, 506 P.2d 748, 751 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189 (1974). Because this issue was not preserved for our review, we will not address it. See C.A.R. 52; Sherman Agency, 195 Colo. at 280, 577 P.2d at 761 (holding that, even though the party argued the matter before the court, the court would not consider the issue because the issue was not in petition for rehearing in the court of appeals nor in the petition for certiorari).
IV.
In conclusion, we hold that the CMAA creates an independent right of recovery of Medicaid expenditures for the Department which is not defeated by the recipient's comparative negligence. Accordingly, we affirm the judgment of the court of appeals.
JUSTICE KOURLIS dissents.