20SC947- Ford Motor Company v. Walker

• Court: Supreme Court of Colorado
• Decided: June 21, 2022
• Docket: 22CO32
• Status: Published

Opinion

appeal of the judgment by the judgment debtor triggers the shift in interest rate.

This includes a situation where, as here, the judgment debtor appeals the

judgment, the judgment is reversed with instructions to hold a new trial, and the

judgment debtor incurs a new money judgment at the retrial.

In sum, if the judgment debtor doesn’t appeal the judgment, the nine

percent interest rate applies from accrual of the claim through satisfaction of the

final judgment. But if the judgment debtor appeals the judgment, then: (1) the

nine percent interest rate applies from accrual of the claim through the date of the

appealed judgment, and (2) the market-based postjudgment interest rate applies

from the date of the appealed judgment through satisfaction of the final judgment.

Because the court of appeals concluded otherwise, the supreme court

reverses. The matter is remanded for recalculation of interest on the sum to be

paid. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2022 CO 32

Supreme Court Case No. 20SC947 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 19CA1243

Petitioner:

Ford Motor Company,

v.

Respondent:

Forrest Walker.

Judgment Reversed en banc June 21, 2022

Attorneys for Petitioner: Wheeler Trigg O’Donnell LLP Theresa Wardon Benz Kristen L. Ferries Edward C. Stewart Denver, Colorado

Attorneys for Respondent: Purvis Gray Thomson, LLP John A. Purvis Michael J. Thomson Boulder, Colorado Chalat Hatten & Banker, PC Evan P. Banker Denver, Colorado

Attorneys for Amicus Curiae American Tort Reform Association: Evans Fears & Schuttert LLP Lee Mickus Denver, Colorado

Attorneys for Amici Curiae Colorado Defense Lawyers Association and Colorado Civil Justice League: Messner Reeves LLP Kendra N. Beckwith Darren D. Alberti Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association: McDermott Law, LLC Timothy M. Garvey Denver, Colorado

Ogborn Mihm, LLP Kylie M. Schmidt Denver, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE HOOD, and JUSTICE GABRIEL joined. JUSTICE MÁRQUEZ, joined by JUSTICE HART, dissented. JUSTICE BERKENKOTTER did not participate.

2 JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 Watch TV long enough and you’ll eventually encounter a well-known

figure of our justice system—the personal injury plaintiff. It’s now common

knowledge that a person who sustains personal injuries as a result of a tort may

sue the responsible party for damages. But few people are aware that when such

a plaintiff prevails, interest is available on the sum of the judgment. That interest

generally runs at the statutorily fixed rate of nine percent from the date of the

claim’s accrual through satisfaction of the judgment. In some circumstances,

however, the interest rate changes to a market-based postjudgment rate, which is

currently lower than nine percent. In this appeal, we explore when that switch

takes place and how the market-based postjudgment interest is calculated.

¶2 The plaintiff in this product liability case obtained a money judgment to

compensate him for personal injuries he sustained in a car accident. The judgment

debtor, the manufacturer of the plaintiff’s car, appealed, and a division of the court

of appeals reversed the judgment. We affirmed the division’s judgment on

different grounds and remanded the matter for a new trial. On remand, the

plaintiff prevailed again, obtaining a new money judgment. The parties agree that

the nine percent interest rate applies from the date of the accident until the date of

the appealed judgment (the first judgment). But the parties cross swords on the

3 applicable interest rate between entry of that judgment and satisfaction of the final

judgment (the second judgment).

¶3 So, when a personal injury judgment debtor successfully appeals the

judgment and obtains a new trial but ultimately incurs another money judgment

at that new trial, which interest rate applies between the date of the appealed

judgment and the date the final judgment is satisfied? Is it the nine percent fixed

rate or the market-based postjudgment interest rate? The difference matters—in

this case, for nearly two million reasons. A division of the court of appeals said

that the nine percent fixed rate governs. We disagree and therefore reverse.

¶4 Guided by the General Assembly’s intent in section 13-21-101, C.R.S. (2021)

(“Interest on damages”), which we discern from the statute’s legislative history,

we hold that whenever the judgment debtor appeals the judgment, the interest

rate switches from nine percent to the market-based rate. The outcome of the

appeal is of no consequence; the filing of any appeal of the judgment by the

judgment debtor triggers the shift in interest rate. We further hold that the market-

based postjudgment interest on the sum to be paid must be calculated from the

date of the appealed judgment. Thus, the market-based postjudgment interest rate

applies from the date of the appealed judgment (the first judgment) through the

date the final judgment (the second judgment) is satisfied. Accordingly, we

remand for recalculation of interest on the sum to be paid ($2,929,881.20) from the

4 date of the appealed judgment (April 1, 2013) until the date the final judgment was

satisfied (March 10, 2020) using the market-based postjudgment interest rate.

I. Facts and Procedural History

¶5 In 2009, Forrest Walker was stopped at a red light in his 1998 Ford Explorer

when he was rear-ended by a car traveling thirty-five miles per hour. The driver’s

seat in the Explorer yielded rearward, causing Walker to sustain permanent

injuries.

¶6 Walker sued the other driver for negligence. He also brought a product

liability action against Ford, alleging that the driver’s seat in his Explorer was

defective because its yield during the crash caused or contributed to his injuries.

Ford denied liability, arguing that the seat’s yield was an intentional safety feature

aimed at absorbing crash forces. In April 2013, after settling his claim with the

other driver, Walker proceeded to trial against Ford.

¶7 At the jury instructions conference, Walker asked for the pattern instruction

addressing design defects, which permitted the jury to find a design defect under

either a “consumer expectation” test or a “risk-benefit” test. Ford objected,

contending that longstanding precedent required the court to use the risk-benefit

test. The court overruled Ford’s objection and gave the jury the pattern

instruction. After deliberations, the jury awarded Walker $2,915,971.20 in

compensatory damages. The court then entered judgment.

5 ¶8 Ford appealed the 2013 judgment, and a unanimous division of the court of

appeals reversed and remanded for a new trial. Walker v. Ford Motor Co.

(“Walker I”), 2015 COA 124, ¶ 3, 410 P.3d 609, 611. While the division disagreed

with Ford that the jury could not be “instructed at all on the consumer expectation

test,” it agreed with Ford that the jury shouldn’t have been “instructed separately”

on that test. Id. at ¶ 14, 410 P.3d at 613.

¶9 Walker petitioned our court for certiorari, and we agreed to review the case.

We affirmed the division’s judgment, albeit on different grounds. Walker v. Ford

Motor Co. (“Walker II”), 2017 CO 102, ¶ 2, 406 P.3d 845, 847. We held that “the

proper test under which to assess the design’s dangerousness was the risk-benefit

test, not the consumer expectation test.” Id. (footnote omitted). In so doing, we

explained that we had concluded, more than thirty years earlier, that the risk-

benefit test is the applicable test in determining whether a product is unreasonably

dangerous due to a design defect where, as here, the dangerousness of the design

is defined primarily by technical, scientific information. Id. Because the trial court

had instructed on both tests, we concluded that it had improperly allowed the jury

to base the verdict on the consumer expectation test alone. Id.

¶10 The case was retried to a jury in 2019, six years after entry of the appealed

judgment and nearly a decade after the crash. The second jury awarded Walker

$2,929,881.20 in compensatory damages, $13,910 more than the first jury.

6 ¶11 Walker thereafter requested that the district court award him interest on the

final judgment amount at the statutory rate of nine percent for the entire timespan

between accrual of his claim in 2009 and satisfaction of the 2019 final judgment in

2020. Ford conceded that it owed interest at the nine percent statutory rate for the

period between accrual of Walker’s claim in 2009 and entry of the appealed

judgment in 2013. But Ford maintained that the lower, market-based

postjudgment interest rate applied from entry of the appealed judgment in 2013.

In other words, according to Ford, the nine percent interest rate applied from

accrual of Walker’s claim up until the date of the first judgment, and the market-

based postjudgment interest rate applied thereafter for the remainder of the

proceedings through satisfaction of the second judgment.

¶12 The district court sided with Walker and ordered Ford to pay $3,629,792.85

in interest, nearly one hundred and twenty-five percent more than the actual

damages award, bringing Walker’s recovery to just under $7,000,000.00. It

reasoned that, since the appealed judgment had neither been affirmed nor

modified or reversed with instructions to enter a money judgment on remand, the

provisions of section 13-21-101(2)(a) and (b) addressing market-based

postjudgment interest did not apply. Apparently realizing that subsections (2)(a)

and (b) don’t expressly address reversal of an appealed judgment with

instructions to hold a retrial, the district court filled the gap by applying the fixed

7 nine percent “prejudgment” interest rate from accrual of the claim through

satisfaction of the final judgment (i.e., from 2009 through 2020).

¶13 Ford did not appeal the second judgment, but it did appeal the amount of

interest ordered. A different division of the court of appeals unanimously

affirmed. Walker v. Ford Motor Co. (“Walker III”), 2020 COA 164, ¶ 1, 490 P.3d 996,

997. The division observed that the switch from “prejudgment to postjudgment

interest” doesn’t depend on the judgment debtor’s appeal of the judgment. Id. at

¶ 8, 480 P.3d at 998. Rather, explained the division, the shift from the nine percent

interest rate to the market-based postjudgment interest rate is outcome-

dependent: The latter interest rate kicks in only if the appealed judgment is

(1) affirmed or (2) modified or reversed with instructions to enter a money

judgment on remand. Id. at ¶ 9, 490 P.3d at 998. Because the appealed judgment

here was reversed and the case was remanded for a new trial, and because

subsections (2)(a) and (b) don’t expressly address that situation, the division filled

the gap the same way the district court did: It ruled that the nine percent

“prejudgment interest” continued to apply after the date of the appealed

judgment. Id. at ¶ 1, 490 P.3d at 997.

¶14 Elaborating, the division stated that, following the mandate in Walker II, the

parties returned to their prejudgment posture, with “nothing for postjudgment

interest to accrue on while the retrial was pending.” Id. at ¶ 9, 490 P.3d at 999. At

8 that point, reasoned the division, the appealed judgment ceased to exist and the

postjudgment proceedings reverted to prejudgment proceedings. Id. at ¶ 10,

490 P.3d at 999. And, added the division, whatever postjudgment interest had

already accrued before issuance of the mandate vanished along with the appealed

judgment, but only until a new judgment entered at the retrial, at which time it

reappeared as prejudgment interest. Id. at ¶ 11, 490 P.3d at 999.

¶15 Ford timely sought review in our court, and we granted its petition for

certiorari. We agreed to consider the following issue:

Whether the court of appeals erred in applying the nine percent prejudgment interest rate under section 13-21-101, C.R.S. (2021), during the pendency of a successful appeal.

II. Analysis

¶16 We begin by discussing the governing standard of review and the relevant

rules of statutory interpretation. Using those guardrails to direct our analysis, we

examine section 13-21-101 and determine that it is ambiguous. In the process, we

reject Walker’s contention that the statute is susceptible of only one reasonable

interpretation—his. We then conclude that the division erred in dodging the

ambiguity question and filling the gap in subsection (2) in a manner that

contradicts subsection (1). Because we find that the statute is ambiguous, we next

consult its legislative history to discern our General Assembly’s intent.

Effectuating that intent leads us to hold that the division mistakenly applied the

9 nine percent interest rate, instead of the market-based postjudgment interest rate,

between entry of the 2013 appealed judgment and satisfaction of the 2019 final

judgment in 2020. We end by demonstrating that the interpretation we usher in

today is the only one that effectuates all of section 13-21-101’s provisions without

contravening any of them.

A. Governing Standard of Review and Relevant Rules of Statutory Interpretation

¶17 Resolution of this appeal hinges on our interpretation of section 13-21-101.

It is paradigmatic that the interpretation of a statute “is a question of law, which

we review de novo.” McCulley v. People, 2020 CO 40, ¶ 10, 463 P.3d 254, 257.

¶18 Our mission when interpreting a statute is to ascertain and effectuate the

legislature’s intent. Elder v. Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698. To do

so, we read the statute’s words and phrases in accordance with their plain and

ordinary meaning. Id. Additionally, “we look to the entire statutory scheme in

order to give consistent, harmonious, and sensible effect to all of its parts, and we

avoid constructions that would render any words or phrases superfluous or that

would lead to illogical or absurd results.” Id.

¶19 If the statutory language is unambiguous, we apply it as written and go no

further. Nieto v. Clark’s Market, Inc., 2021 CO 48, ¶ 12, 488 P.3d 1140, 1143.

However, if the statutory language is ambiguous—meaning that it is susceptible

of more than one reasonable interpretation—“we turn to other interpretive aids to

10 discern the legislature’s intent.” Id. at ¶ 13, 488 P.3d at 1143. Such interpretive

aids include “analysis of the statute’s legislative history,” People v. Sprinkle,

2021 CO 60, ¶ 22, 489 P.3d 1242, 1246, but do not include adding our own words

or deleting any the legislature has chosen, Nieto, ¶ 12, 488 P.3d at 1143; see also

Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016 (“[W]e

must respect the legislature’s choice of language, and we will not add words to a

statute or subtract words from it.”).

B. Section 13-21-101

¶20 Section 13-21-101(1) provides that plaintiffs in personal injury cases

stemming from a tort may claim interest on the damages alleged “from the date

the action accrued.” When a plaintiff claims interest, “it is the duty of the court”

to add interest on the amount of damages assessed. Id. Such interest must be

“calculated at the rate of nine percent per annum” up until “the date of satisfying

the judgment.” Id. Further, this calculation “must include compounding of

interest annually from the date the suit was filed.” Id.

¶21 But section 13-21-101 doesn’t end there. As relevant here, it contains three

additional provisions—a general one in the last sentence of subsection (1) and two

more specific ones comprising subsections (2)(a) and (b)—that instruct courts to

apply a market-based annual rate of interest, instead of the nine percent annual

rate of interest, in certain circumstances:

11 Subsection (1): [I]f a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, postjudgment interest must be calculated on the sum at the [market-based rate] from the date of judgment through the date of satisfying the judgment and must include compounding of interest annually.1

Subsection (2)(a): If a judgment for money in an action brought to recover damages for personal injuries is appealed by a judgment debtor and the judgment is affirmed, postjudgment interest [at the market-based rate] is payable from the date of judgment through the date of satisfying the judgment.

Section (2)(b): If a judgment for money in an action to recover damages for personal injuries is appealed by a judgment debtor and the judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, postjudgment interest [at the market-based rate] is payable from the date of judgment through the date of satisfying the judgment. This postjudgment interest is payable on the amount of the final judgment.

§ 13-21-101(1)–(2) (emphases added).2

¶22 The interplay among this trio of provisions requires us to navigate a

jurisprudential Bermuda Triangle—all the while ensuring that none of the

1 For the sake of convenience, we refer to this provision as “subsection (1).” 2All three provisions call for calculation of postjudgment interest based on the annual rate set forth in subsections (3) and (4) of the statute. “Subsections (3) and (4) provide a market-based method for calculation of interest.” Sperry v. Field, 205 P.3d 365, 367 (Colo. 2009).

12 provisions mysteriously disappear. Of course, the first step in our analysis is to

determine whether these provisions are ambiguous.

C. Is Section 13-21-101 Ambiguous?

¶23 Walker maintains that section 13-21-101 is clear and unambiguous. Ford

disagrees. And so do we.

1. Section 13-21-101 Is Susceptible of Two Reasonable Interpretations and Is Thus Ambiguous

¶24 At the outset, we note that this court has declared more than once that

section 13-21-101 is “not a model of clarity.” Seaward Constr. Co. v. Bradley,

817 P.2d 971, 975 (Colo. 1991); Morris v. Goodwin, 185 P.3d 777, 780 (Colo. 2008).

The statute hasn’t become any clearer since we last uttered those words.

¶25 Whereas subsections (2)(a) and (b) require application of the market-based

postjudgment interest rate following specific outcomes on appeal—affirmance of

the judgment and modification or reversal of the judgment with directions to enter

a money judgment on remand—subsection (1) applies whenever the judgment

debtor appeals the judgment. The following question naturally flows from this

trifecta of provisions: What happens if, as here, the judgment debtor appeals the

judgment, thereby coming within the purview of subsection (1), but the outcome

of the appeal is neither the one set forth in subsection (2)(a) (affirmance of the

judgment) nor one of those set forth in subsection (2)(b) (modification or reversal

of the judgment with directions to enter a money judgment on remand)? What if,

13 as occurred here, the judgment debtor appeals the judgment and obtains a reversal

of the judgment and a new trial?

¶26 Walker’s position, which is subsection (2)-centric, is that the market-based

postjudgment interest rate is inapplicable because the outcome of Ford’s appeal

was neither affirmance of the judgment nor the judgment’s modification or

reversal with directions to enter a money judgment on remand. Ford pushes back

and redirects our attention to subsection (1), arguing that the market-based

postjudgment interest rate applies whenever the judgment debtor appeals the

judgment, regardless of the outcome of the appeal. Walker then counters that

subsection (1) cannot be construed as Ford proposes because requiring application

of the market-based postjudgment interest rate whenever the judgment debtor

appeals the judgment would render the outcome-specific provisions in

subsections (2)(a) and (b) superfluous.

¶27 But subsection (1) says what it says: The trial court must apply the market-

based postjudgment interest rate “if a judgment for money in an action brought to

recover damages for personal injuries is appealed by the judgment debtor.”

Subsection (1) isn’t tethered to the outcome of the appeal. It plainly requires

applying the market-based postjudgment interest rate whenever the judgment

debtor appeals the judgment.

14 ¶28 No matter, says Walker; that can’t be what the legislature meant. If the

legislature had intended for the market-based postjudgment interest rate to apply

whenever the judgment debtor appeals the judgment, asks Walker, why did it

include the two outcome-specific provisions in subsection (2)?

¶29 According to Walker, subsections (2)(a) and (b) present the two “specific

and clearly defined situations” in which the interest rate shifts. In this regard,

Walker invokes the expressio unius est exclusio alterius canon3 and invites us to

interpret the inclusion of the two specific scenarios in subsections (2)(a) and (b) as

excluding all others not specified. As Walker puts it, section 13-21-101 should be

read as sanctioning two, and only two, exceptions to the nine percent interest

rate—those set forth in subsections (2)(a) and (b). In the event the judgment debtor

appeals the judgment, obtains a reversal and a new trial, and incurs another

money judgment on retrial, as happened here, Walker would have the judgment

debtor go back to square one: The trial court on remand would add nine percent

interest from the date of the action’s accrual until the date the final judgment is

3Expressio unius est exclusio alterius is a canon of construction that holds that when one thing is expressed or included, it “implies the exclusion of the other, or of the alternative.” Expressio Unius Est Exclusio Alterius, Black’s Law Dictionary (11th ed. 2019).

15 satisfied. Thus, asserts Walker, when section 13-21-101 is considered as a whole,

it is unambiguous, internally harmonious, and complete.

¶30 But try as Walker might, he cannot get around subsection (1)’s command to

apply the market-based postjudgment interest rate “[i]f a judgment for

money . . . is appealed by the judgment debtor.” We’re not permitted to disregard

the plain and ordinary meaning of these words, much less speculate that they

mean something completely different. See Elder, ¶ 18, 477 P.3d at 698.

¶31 Moreover, while Walker urges us to reject Ford’s interpretation in order to

avoid rendering subsections (2)(a) and (b) superfluous, Ford asks us to accept its

interpretation in order to avoid doing the same to subsection (1). And Ford asks

the inverse of Walker’s question: If the legislature intended for the market-based

postjudgment interest rate to apply only in the two situations specified in

subsections (2)(a) and (b), why did it include the general directive in subsection (1)

calling for the market-based postjudgment interest rate to apply whenever the

judgment is “appealed by the judgment debtor”?

¶32 To our mind, contrary to Walker’s claim, section 13-21-101 is susceptible of

two reasonable interpretations.

¶33 On the one hand, it is reasonable to read section 13-21-101 as Walker does:

The market-based postjudgment interest rate applies only in the outcome-specific

situations identified in subsections (2)(a) and (b). This is the interpretation the

16 division embraced. The division stated that section 13-21-101 would require

application of the market-based postjudgment interest rate to every appeal of the

judgment by the judgment debtor only if subsection (1) were “considered in

isolation.” Walker III, ¶ 8, 490 P.3d at 998. But, explained the division, when that

provision is considered together with subsections (2)(a) and (b), “it becomes clear”

that whether “prejudgment or postjudgment interest” applies depends on the

outcome of the appeal. Id.

¶34 On the other hand, it is reasonable to read section 13-21-101 as Ford does:

The market-based postjudgment interest rate applies whenever the judgment is

appealed by the judgment debtor. Under this interpretation, subsection (1) is

effectuated without canceling out subsections (2)(a) and (b); subsections (2)(a) and

(b) are simply treated as enumerated but inexhaustive examples of the situations

governed by the broader subsection (1).

¶35 Given these different interpretations, both of which are reasonable, we

conclude that section 13-21-101 is ambiguous and that the plain-meaning rule

cannot decode the statute’s legislative intent. We are not persuaded otherwise by

17 Walker’s contention that we are restricted to the plain language of the statute

because, in his view, his interpretation is the only reasonable one.4

2. Ford’s Interpretation of Section 13-21-101 Is at Least as Reasonable as Walker’s

¶36 Walker insists that Ford’s interpretation is unreasonable and thus cannot

render section 13-21-101 ambiguous. According to Walker, the market-based

postjudgment interest rate cannot be applied from the date of the judgment Ford

appealed in 2013 because that judgment never became a final judgment (or “a

judgment that is to be paid”). While the parties both believe that the market-based

postjudgment interest rate generally applies from the date the appealed judgment

enters, Walker adds a condition—only if the appealed judgment eventually

becomes the final judgment. In this regard, Walker argues that only an appealed

judgment that eventually becomes the final judgment can serve as a “dividing

line” between “prejudgment interest” and “postjudgment interest” and thus

activate the shift from the nine percent rate to the market-based rate.5

4 For Walker to be right, not only must his interpretation of section 13-21-101 be reasonable, Ford’s interpretation must also be unreasonable. See Magana v. People, 2022 CO 25, ¶ 27, __ P.3d __ (noting that an interpretation that’s unreasonable cannot render a statute ambiguous). 5Walker seeks nine percent interest through satisfaction of the final judgment in 2020, not through entry of the final judgment in 2019, explaining that Ford did not

18 ¶37 Before proceeding to discuss the merits of Walker’s position, we pause to

address his prejudgment/postjudgment “dividing line” hypothesis. Part of the

confusion in this area of the law lies in the perception that section 13-21-101 creates

a perfect dichotomy between “prejudgment interest” and “postjudgment

interest.” Attorneys and judges may do well to stop thinking about the statute as

establishing a fork in the road that leads to either “prejudgment interest” or

“postjudgment interest.” The word “prejudgment” is nowhere to be found in

section 13-21-101. And when the judgment debtor doesn’t appeal the judgment,

the nine percent interest rate applies beyond the date of the judgment—until the

judgment is satisfied—including during any postjudgment proceedings held by

the trial court. In other words, absent an appeal of the judgment, the nine percent

interest rate applies both prejudgment and postjudgment; it doesn’t stop applying

when the judgment enters. Hence, it is not accurate to characterize the nine

percent interest rate as the “prejudgment” interest rate.

¶38 True, section 13-21-101 contains multiple references to “postjudgment

interest” to describe the interest that applies during certain postjudgment

proceedings. For that matter, so does our opinion; doing our best to track the

appeal that judgment and, thus, the market-based postjudgment interest rate never kicked in.

19 statute, we refer to “postjudgment interest.” But the statute doesn’t extend its

postjudgment interest provisions to all postjudgment proceedings. Indeed, as we

just mentioned, if there is no appeal, the postjudgment provisions have no

application at all, even if the trial court holds postjudgment proceedings.

¶39 The distinction section 13-21-101 actually draws is between the judgment

debtor appealing the judgment and the judgment debtor not appealing the

judgment. Cf. Rodriguez v. Schutt, 914 P.2d 921, 928 (Colo. 1996) (explaining that

the 1982 amendment to section 13-21-101, which implemented the triumvirate of

provisions before us, “created the distinction between judgments which the

judgment debtor appeals and those which the judgment debtor does not appeal”).

Whether to continue to apply the nine percent interest rate or switch to the

market-based interest rate is anchored to that line of demarcation, not to the

prejudgment/postjudgment distinction Walker makes. We therefore avoid

viewing the statute as creating a binary choice between prejudgment and

postjudgment interest.

¶40 With that understanding, we return to the merits of Walker’s position. He

contends that his is the sole reasonable statutory construction because, under the

plain language of section 13-21-101, an appealed judgment cannot precipitate the

change in interest rate unless that judgment eventually becomes the judgment that

is to be paid (i.e., the final judgment). But the statute isn’t so clear. In fact, it can

20 be read as directly undercutting Walker’s position and reinforcing Ford’s. To

illustrate the point, we find it helpful to dissect subsection (1):

[I]f a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, postjudgment interest must be calculated on the sum at the [market-based rate] from the date of judgment through the date of satisfying the judgment and must include compounding of interest annually.6

¶41 The italicized language above (in electric green) spells out when the market-

based postjudgment interest rate replaces the nine percent interest rate: “[I]f a

judgment for money in an action brought to recover damages for personal injuries

is appealed by the judgment debtor, postjudgment interest must be calculated.”

Stated differently, the nine percent interest rate applies starting with accrual of the

claim, but if the judgment debtor appeals the judgment, the market-based

postjudgment interest rate kicks in, regardless of whether the appealed judgment

is eventually upheld and becomes the final judgment “that is to be paid” or if a

different money judgment eventually enters.7 Once the court has resolved that the

market-based postjudgment interest rate applies because the judgment debtor

6 Subsections (2)(a) and (b) contain similar language that may be dissected in comparable fashion. 7 It hardly bears stating that our analysis is relevant only if there is ultimately a money judgment against the judgment debtor. If there is no money judgment, there is necessarily no interest.

21 appealed the judgment (i.e., the when inquiry), the underlined language above (in

aqua blue) tells us how to calculate such interest: (i) “on the sum,” (ii) at the market-

based rate, (iii) “from the date of judgment through the date of satisfying the

judgment,” and (iv) including “compounding of interest annually.”

¶42 We focus on part (iii) of the how inquiry—the period during which the

market-based postjudgment interest must be calculated (“from the date of

judgment through the date of satisfying the judgment”). There is no real

disagreement over the meaning of parts (i), (ii), and (iv) of the how inquiry—the

“sum” on which the market-based postjudgment interest is to be calculated, the

market-based rate, and the annual compounding of interest, respectively.8

¶43 The phrase “from the date of judgment through the date of satisfying the

judgment,” which also appears in subsections (2)(a) and (b), sets the starting line

(“the date of judgment”) and the finish line (“the date of satisfying the judgment”)

8 Contrary to Walker’s suggestion, the “sum” is relevant to the how, not the when, inquiry in subsection (1)—i.e., it goes to how to calculate the market-based postjudgment interest, not to when such interest applies. Nevertheless, we agree with Walker that “sum” necessarily refers to the amount of the judgment to be paid. Any interest must logically be calculated on the amount of the final judgment. Subsection (2)(b) buttresses this conclusion. That subsection specifies that when the judgment debtor appeals a judgment and the judgment is modified or reversed with directions that a money judgment enter on remand, the market- based interest is payable “on the amount of the final judgment.”

22 for any market-based postjudgment interest calculation. Ascertaining the finish

line is a walk in the park; after all, “the date of satisfying the judgment” is always

the date the judgment debtor pays off the judgment. But ascertaining the starting

line is not so easy. The question is: What did the legislature mean by “judgment”

in “the date of judgment”? More to the point, is Walker right that the legislature

meant to require market-based postjudgment interest only if an appealed

judgment eventually becomes the final judgment?9 In a word, no.

¶44 If there is only one judgment because there was an affirmance on appeal, see

§ 13-21-101(2)(a), there is obviously only one option: The market-based

postjudgment interest rate applies “from the date of [the only] judgment,” which

is the date of the appealed judgment that eventually became the final judgment. Neither

side picks a bone with this conclusion. It gets trickier, though, if the judgment

debtor appeals the judgment and the judgment is modified or reversed with

instructions to enter a money judgment on remand, à la subsection (2)(b).

¶45 Walker acknowledges that subsection (2)(b) requires applying the market-

based postjudgment interest rate from the date of the appealed judgment. But

9 As he does with the word “sum,” Walker mistakenly implies that “the date of judgment” is relevant to determine when the market-based postjudgment interest applies, as opposed to how to calculate such interest when it applies.

23 how does that jibe with Walker’s theory that only an appealed judgment that

eventually becomes the final judgment can trigger the switch in interest rates?

After all, under subsection (2)(b), the appealed judgment is modified or reversed

with instructions to enter a new money judgment on remand. As we show next,

subsection (2)(b) proves to be a fly in the ointment for Walker.

¶46 Per Walker, just as in subsection (2)(a), in subsection (2)(b), an appealed

judgment always becomes the final judgment—it’s just that the judgment debtor

may simply be required to pay the appealed judgment “in part.” But Walker goes

too far. Under subsection (2)(b), the appealed judgment doesn’t become the final

judgment because the appealed judgment is modified or reversed with instructions

for the trial court to enter a new money judgment on remand. The final judgment

entered in this situation is necessarily different from the appealed judgment: The

final judgment is either a modified version of the appealed judgment or, in the

event of a reversal, a completely new judgment. That’s not the same thing as

paying the appealed judgment “in part.” Even assuming for the sake of argument

that a modified money judgment could be deemed to be the same judgment as the

appealed judgment, how can a new money judgment be deemed to be the same

judgment as the appealed judgment after the appealed judgment has been

reversed? Given subsection (2)(b), Walker can’t be right in asserting that only an

appealed judgment that eventually becomes the final judgment may trigger the

24 switch from the nine percent interest rate to the market-based postjudgment

interest rate.

¶47 In any event, Walker’s hypothesis hits another insurmountable snag when,

as here, a judgment is reversed and a new trial is ordered.10 In such a scenario,

says Walker, there is no judgment on which to apply the market-based

postjudgment interest rate, and thus, if a new money judgment enters following

the remand trial and that second judgment is not appealed, the “prejudgment”

nine percent interest rate continues to apply after entry of the appealed judgment

(the first judgment) up until satisfaction of the final judgment (the second

judgment).

¶48 However, Walker provides no persuasive justification for his disparate

treatment of a situation in which a judgment is reversed with instructions to enter

a new money judgment on remand (subsection (2)(b)) and a situation in which a

judgment is reversed with instructions for a new trial and the retrial results in a

new money judgment (this case). A reversed judgment is a reversed judgment,

10Walker attempts to distance this case from subsection (2)(b) by referring to the appealed judgment as a judgment that was “vacated,” not “reversed.” For our purposes, we perceive no substantive difference between a vacated judgment and a reversed judgment. Regardless, the appealed judgment in this case was reversed, not vacated.

25 regardless of whether, as in subsection (2)(b), it is accompanied by instructions to

enter a new money judgment on remand or, as here, it is accompanied by

instructions to hold a new trial on remand. In both scenarios, the judgment is

reversed.

¶49 Even more concerning, Walker offers no compelling explanation as to why

the judgment debtor who fully succeeds on appeal (by obtaining a reversal of the

judgment and a new trial) should pay the nine percent interest rate during the

pendency of the appeal while the judgment debtor who is only partially successful

on appeal (by obtaining a reversal of the judgment with instructions to enter a new

money judgment on remand) should pay the lower market-based interest rate

during the same timeframe. Differently put, Walker doesn’t effectively address

why the judgment debtor who fully succeeds on appeal should be worse off (at

least when the market-based interest rate is below the nine percent rate) than the

judgment debtor who only partially succeeds on appeal. The legislature could not

have intended such an absurd result. Thus, even if Walker were right about the

plain language of the statute, we would still “look to the legislature’s intent” to

ward off this absurd result. See Cisneros v. Elder, 2022 CO 13M, ¶ 28, 506 P.3d 828,

833; accord AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1031 (Colo.

1998) (indicating that “the intention of the legislature will prevail over a literal

interpretation of the statute that leads to an absurd result”).

26 ¶50 In our view, a different interpretation of “the date of judgment”—one that’s

as reasonable as, if not more reasonable than, the one Walker advances—is that it

always means the date of the appealed judgment, regardless of whether the appealed

judgment eventually becomes the final judgment or the judgment to be paid. As we just

explained, subsection (1) calls for the switch between the nine percent interest rate

and the market-based postjudgment interest rate when the judgment debtor

appeals the judgment. Consequently, a way to construe the how portion of

subsection (1) so as to be congruous with the when portion is to understand “the

date of judgment” as the date of the appealed judgment.

¶51 The phrase “from the date of judgment through the date of satisfying the

judgment” in the three provisions under scrutiny can thus reasonably be

understood as requiring calculation of postjudgment interest from the date of the

appealed judgment through the date of satisfying the final judgment—be that satisfied

final judgment the same judgment as the appealed judgment (in the event of an

affirmance of the appealed judgment) or a different judgment from the appealed

judgment (in the event of a modification of the appealed judgment or a reversal of

the appealed judgment—with or without a retrial).11 Putting it all together, then,

11 We realize that this construction gives two different meanings to the word “judgment” in the phrase “from the date of judgment through the date of satisfying the judgment”—with the first “judgment” referring to the appealed

27 section 13-21-101 can reasonably be read as Ford reads it: Postjudgment interest

applies whenever the judgment debtor appeals the judgment, including when the

judgment is affirmed, modified, or reversed with instructions to enter a new

money judgment, as well as when the judgment is reversed with instructions to

hold a new trial (the when inquiry); and if postjudgment interest applies, it must

be calculated on the amount to be paid at the market-based rate from the date of

the appealed judgment through the date of satisfaction of the final judgment (the

how inquiry).

¶52 Walker nevertheless protests that where, as here, a judgment has been

reversed and a new judgment has entered at the retrial, the legislature could not

have intended to require application of the market-based postjudgment interest

rate from the date of the appealed judgment because that judgment ceased to exist

the moment it was reversed. But subsection (2)(b) belies Walker’s surmise

regarding the legislature’s intent. In some subsection (2)(b) situations, there is no

judgment on which to grant postjudgment interest either. For example, when the

judgment and the second “judgment” referring to the final judgment. But subsection (2)(b) reflects that this is what the legislature intended. Under subsection (2)(b), the appealed judgment can never be the same judgment as the final judgment that’s eventually satisfied because the appealed judgment is modified or reversed and a different money judgment enters.

28 judgment debtor’s appeal results in the judgment being reversed and a new

money judgment entering on remand pursuant to an appellate court’s

instructions, the appealed judgment ceases to exist upon issuance of the mandate.

Yet neither party contests that, pursuant to subsection (2)(b), postjudgment

interest accrues between the date of the mandate and the date of the final judgment

on remand. In fact, the parties agree that, under subsection (2)(b), postjudgment

interest accrues between the date of the appealed judgment and the date of the

final judgment’s satisfaction, even though the appealed judgment is reversed.

¶53 If the legislature intended to apply the market-based postjudgment interest

rate in the absence of a judgment in some subsection (2)(b) situations, why

couldn’t it have had the same intent in the situation we face here? We are aware

of no authority, and Walker has unearthed none, that stands for the proposition

that, unlike an appellate court’s remand for entry of a new judgment, an appellate

court’s remand for a retrial bars postjudgment interest because it turns back the

clock and transforms the proceedings and any interest from “postjudgment” to

“prejudgment.” We are equally unaware of any authority that allows vanished

postjudgment interest to reappear as prejudgment interest.

¶54 Walker’s position is inherently flawed. He sees section 13-21-101 through

the prejudgment/postjudgment prism we cautioned against earlier. According to

Walker, our mandate in Walker II returned the parties to a prejudgment posture and

29 thus only the statute’s “prejudgment” interest provisions could apply at that point;

the statute’s “postjudgment” provisions became inapposite then, he says, because

there was no judgment on which to accrue postjudgment interest. This was the

linchpin—and, as it turns out, the hamartia—of the division’s decision.

¶55 Viewed through a different lens, market-based postjudgment interest could

more reasonably be understood as Ford submits: interest that applies during those

postjudgment proceedings identified in the statute—i.e., following the judgment

debtor’s appeal of the judgment, regardless of whether the appeal results in

affirmance of the judgment or in the judgment’s modification or reversal, and

regardless of whether there is a retrial. Even if the appealed judgment is ultimately

reversed and thus null and void, and even if there is a retrial that yields a new

money judgment, the interest that accrues between the appealed judgment and

satisfaction of the final judgment could still fit within the “postjudgment interest”

provisions of the statute. That is to say, if we deem the “judgment” in

“postjudgment” to be the appealed judgment—and we already demonstrated that

it is sensible to use the appealed judgment as the benchmark to start running

market-based postjudgment interest—all of the proceedings that follow that

judgment, including on remand, can reasonably be considered “postjudgment.”

¶56 That American jurisprudence generally treats reversed judgments as null

and void is of no consequence. First, any such case law was clearly not an obstacle

30 for our legislature’s promulgation of subsection (2)(b), which requires market-

based postjudgment interest in some situations in which the appealed judgment

is reversed and thus null and void. And second, the cases on which Walker relies

arose in inapposite contexts. Not one of those cases supports the idea that the date

of an appealed judgment cannot serve as the switch between a fixed rate and a

market-based rate in calculating interest on a damages award.

¶57 Certainly, neither party questions the legislature’s authority to require

interest on a judgment long before the judgment ever sees the light of day—recall

that nine percent interest starts running from accrual of a claim. Does the

legislature lack the power to do the same with market-based postjudgment interest

simply because of the “postjudgment” nomenclature? Any concern grounded in

the fact that “postjudgment” means “after judgment” evaporates when

“judgment” is understood as the appealed judgment (the first judgment). And

we’ve illustrated that such an interpretation is reasonable.

¶58 In short, we are convinced that section 13-21-101 is susceptible of different

reasonable interpretations. It is thus ambiguous.

¶59 The division didn’t wade into this fray. Instead, it circumvented the

ambiguity question altogether.

31 3. The Division Erred in Skirting the Ambiguity Question and Filling the Gap in Subsection (2) in a Manner That Contradicts Subsection (1)

¶60 The first step in interpreting a statute is to make a call on whether its

language is ambiguous. The division did not determine whether section 13-21-101

was ambiguous. Instead, it sidestepped the question by simply ruling that the

district court’s interpretation was consistent with the statute’s plain language.

Walker III, ¶ 13, 490 P.3d at 999. But, as we have shown, Ford’s interpretation is

likewise consistent with the statute’s plain language.

¶61 The division exacerbated its error by filling the gap in subsection (2) in a

manner that directly contradicts subsection (1). It used the legislature’s silence in

subsection (2)—regarding what happens when the judgment appealed by the

judgment debtor is reversed and the case is remanded for a new trial—to infer the

opposite of what subsection (1) says. Whereas subsection (1) expressly requires

application of the market-based postjudgment interest rate whenever the

judgment debtor appeals the judgment, the division held that when the judgment

debtor appeals the judgment and the judgment is reversed with instructions to

hold a new trial on remand, the nine percent interest rate continues to apply.12

12The American Tort Reform Association’s amicus brief relies on the gap in subsection (2) to posit that no interest accumulates at all “during the period of an

32 ¶62 Significantly, the division declined to delve further into whether its

interpretation of section 13-21-101’s plain language was consistent with the

legislature’s intent because it was afraid of repeating history. Id. But that concern,

while no doubt well-intentioned, was misguided.

¶63 Leaning on then-Justice Eid’s concurrence in Sperry v. Field, 205 P.3d 365

(Colo. 2009), the division explained that “[j]udicial attempts to construe

section 13-21-101 in a manner that aligns with perceived legislative intent have, in

the past, created more problems than they have solved.” Walker III, ¶ 13, 490 P.3d

at 999 (citing Sperry, 205 P.3d at 370–71 (Eid, J., concurring in the judgment)). What

has proven problematic in the past, however, hasn’t been our attempts to ascertain

and effectuate the legislative intent in section 13-21-101; it’s been our rewriting of

the statute on two separate occasions—once in Rodriguez, 914 P.2d at 927–29, to

cure a constitutional infirmity, and once in Sperry, 205 P.3d at 369–70, to cure an

ambiguity that our redrafting in Rodriguez inadvertently created. Hence, the

division misapprehended Justice Eid’s concurrence in Sperry. See Sperry, 205 P.3d

at 370 (Eid, J., concurring in the judgment) (characterizing our “redrafting effort”

in Rodriguez as “less than successful,” criticizing the majority’s decision to

appeal that results in a vacated judgment.” Neither party has offered this radical construction, and we see no basis for it.

33 “redraft[] even more of the statutory language,” and expressing a preference for

avoiding additional “‘interpretive’ efforts . . . that further redraft the statutory

language”).

¶64 We undertake no rewriting of section 13-21-101 here. Instead, because we

conclude that the statute is ambiguous, we turn to its legislative history to discern

the General Assembly’s intent.

D. Relevant Legislative History

¶65 We have previously peered beneath the textual façade of section 13-21-101

to glean the legislature’s intent in requiring application of the market-based

postjudgment interest rate in certain circumstances. More than a quarter of a

century ago, we observed that the statute’s 1982 amendment reflected the General

Assembly’s intent to apply the market-based postjudgment interest “only to

judgments which the judgment debtor appeals.” Rodriguez, 914 P.2d at 928; see also

Ackerman v. Power Equip. Co., 881 P.2d 451, 452 (Colo. App. 1994) (“In 1982, the

General Assembly amended § 13-21-101 to apply a variable market rate of interest

if the judgment is appealed by the judgment debtor.”). And we inferred dual

purposes animating this amendment: “to eliminate the financial incentive (or

disincentive) to appeal and to ensure that the judgment creditor whose satisfaction

is delayed due to an unsuccessful appeal receives the time value of his or her

money judgment.” Rodriguez, 914 P.2d at 929. The statements of the bill sponsors,

34 we said, revealed the legislature’s desire “to neutralize the economic benefits and

detriments of appeal under the statutorily-set rate of interest.” Id. at 928.

¶66 In 2009, we echoed the comments we made in Rodriguez. We stated in Sperry

that the overall purposes of the personal injury interest statute were “to eliminate

any financial incentive or disincentive to appeal and to ensure that the judgment

creditor receives the time value of his or her money judgment.” 205 P.3d at 370.

¶67 Because the statute’s legislative history reveals the General Assembly’s

intent, we are dutybound to give that intent effect. We do so now.

E. Effectuating the Legislative Intent in Section 13-21-101

¶68 The only way for us to effectuate the purposes of the three provisions under

the microscope is to apply postjudgment interest whenever the judgment debtor

appeals the judgment and to calculate that interest using the market-based rate

from the date of the appealed judgment until the date of the final judgment’s

satisfaction. Hence, in a situation like the one here—where the judgment debtor

appeals the judgment, obtains a reversal and a new trial, and incurs a new money

judgment at the retrial—postjudgment interest must be calculated using the

market-based rate from the date of the appealed judgment until the date of the

final judgment’s satisfaction. No other interpretation neutralizes the economic

benefits and detriments of an appeal.

35 ¶69 Applying the fixed statutory rate during the judgment debtor’s appeal of

the judgment would provide judgment debtors an incentive to appeal whenever

the market rate is higher than the fixed rate. In that situation, judgment debtors

could capitalize on the difference in the two interest rates because of the potential

to continue to earn the higher market rate on the judgment while appealing. By

doing nothing more than filing a notice of appeal, and without regard for the

merits of the appeal, judgment debtors could enjoy the higher market return on

the value of the judgment while paying the lower fixed rate to the judgment

creditor if the judgment is eventually affirmed. Talk about an incentive to file an

appeal, including a frivolous one.

¶70 Of course, on the flip side, whenever the market rate is lower than the fixed

statutory rate, judgment debtors would be dissuaded from pursuing an appeal.

Filing an appeal when the fixed statutory rate is higher than the market rate would

cause judgment debtors to rack up interest over and above what they could earn

in the market during the pendency of the appeal. Talk about a disincentive to file

an appeal, including a meritorious one.

¶71 These incentives and disincentives are out of whack and are precisely what

the legislature sought to eliminate by requiring a market-based postjudgment

interest rate whenever the judgment is “appealed by the judgment debtor.” By

switching from the fixed interest rate of nine percent to the market-based

36 postjudgment interest rate whenever the judgment debtor appeals the judgment,

the legislature ensured both that the successful plaintiff would be fairly

compensated for the time value of the judgment13 and that any incentive or

disincentive to appeal would be neutralized.

¶72 Relatedly, application of the market-based postjudgment interest whenever

the judgment debtor appeals the judgment compels the conclusion that “the date

of judgment” starting line for calculating such interest is the date of the appealed

judgment. Otherwise, it would defeat the purpose of applying the market-based

postjudgment interest whenever the judgment debtor appeals the judgment.

¶73 Suppose that the judgment debtor appeals the judgment and the judgment

is reversed with instructions for a new trial. Suppose further that a new judgment

enters at the retrial. If the market-based postjudgment interest were calculated

from the time of the final judgment, it would render subsection (1) and its

compatriot provisions as useful as an ashtray on a motorbike. The undesirable

13 The market-based interest rate, which is two percentage points above the discount rate, see § 13-21-101(3), compensates the successful plaintiff for the time value of the judgment; indeed, the “time value” of the judgment is determined by the market rate. Walker’s argument to the contrary ignores that, even under today’s interpretation, he will be entitled to: nine percent interest (eight points above the discount rate) from the date of the accident in 2009 until entry of the appealed judgment in 2013, and market-based postjudgment interest thereafter.

37 incentives and disincentives discussed above would remain. What would be the

point of applying the market-based rate after the appeal and retrial have been

completed? And in a subsection (2)(b) situation involving a reversal, what would

be the point of applying the market-based rate between the date of the new money

judgment and the date that judgment is satisfied? Limiting application of the

market-based rate to such small windows would turn subsections (1) and (2)(b)

into negligible provisions.

¶74 Walker nevertheless claims that using the market-based postjudgment

interest rate only serves as a neutralizer for the judgment debtor’s decision to

appeal if the judgment debtor ultimately ends up owing the judgment creditor

money. Sure. But this is a red herring. At the time the decision to appeal is made,

the judgment debtor has no way of forecasting the final outcome of the case. Nor

would it be fair to expect the judgment debtor to gaze into a crystal ball before

deciding whether to appeal the judgment.

¶75 This case illustrates the point. Ford appealed the judgment, not because it

channeled its inner Nostradamus and prognosticated that it would owe Walker no

money in the end, but because it was convinced that the trial court’s jury

instructions, which were given at Walker’s request, deprived it of a fair trial. As

it turned out, Ford was spot-on. And imposing an additional five years of nine

percent interest to reward Ford for taking a meritorious appeal and winning it

38 would be the most pyrrhic of victories. Had Ford known that a fixed, above-

market interest rate would apply until satisfaction of any new money judgment at

the retrial, it would have been financially disincentivized to appeal the judgment.

The risk of having a nine percent interest rate throughout the pendency of this case

(more than a decade) may have scared Ford off from pursuing its meritorious

appeal.

¶76 Not only would Walker’s proposed application of the nine percent interest

rate affect the rights of judgment debtors, it would also impact the development

of the law. If judgment debtors were dissuaded from pursuing meritorious

appeals of trial errors, those errors would never be corrected and would likely be

repeated. In the case at hand, the trial court’s error on an issue of law—how to

properly instruct juries in design defect cases—would have gone uncorrected, as

neither Walker I nor Walker II would have been penned. The public has an interest

in the “development of decisional law.” Austin v. Ford, 181 F.R.D. 283, 285

(S.D.N.Y. 1998).

¶77 To recap, because section 13-21-101 is ambiguous, we rely on the statute’s

legislative history to discern the General Assembly’s intent. Guided by such

intent, we hold that whenever the judgment debtor appeals the judgment, the

interest rate switches from nine percent to the market-based rate. The outcome of

the appeal is of no consequence; the filing of any appeal of the judgment by the

39 judgment debtor triggers the shift in interest rate. We further hold that the market-

based postjudgment interest on the sum to be paid must be calculated from the

date of the appealed judgment. Thus, the market-based postjudgment interest rate

applies from the date of the appealed judgment through the date the final

judgment is satisfied.

¶78 The chart below reflects our understanding of section 13-21-101. We hope

that this illustration will be of some assistance moving forward.

40 41 F. The Interpretation We Adopt Today Is the Only One That Effectuates All the Provisions in Section 13-21-101 Without Contradicting Any of Them

¶79 Our holding that the market-based postjudgment interest rate kicks in

whenever the judgment debtor appeals the judgment reflects our view that

subsection (1) establishes a general rule and subsections (2)(a) and (b) set forth

specific instances or examples of that rule’s application. This reading of section

13-21-101 admittedly leads to some redundancy. But redundancy isn’t a “silver

bullet” in the realm of statutory construction. Rimini St., Inc. v. Oracle USA, Inc.,

139 S. Ct. 873, 881 (2019). As the Supreme Court recently explained in Rimini Street:

If one possible interpretation of a statute would cause some redundancy and another interpretation would avoid redundancy, that difference in the two interpretations can supply a clue as to the better interpretation of a statute. But only a clue. Sometimes the better overall reading of the statute contains some redundancy.

Id.; see also White v. United Airlines, Inc., 987 F.3d 616, 622 (7th Cir. 2021) (noting

that the presence of some redundancy “is rarely fatal on its own to a statutory

reading”).

¶80 Of course, we are not asked to choose between an interpretation that carries

some redundancy and an interpretation that avoids redundancy altogether. The

choice we face in the unique situation before us is between interpretations that

both create some redundancy. However, the one Walker backs would effectuate

42 subsection (2) while downright contradicting subsection (1), even though they

don’t pose an either-or proposition.

¶81 We cannot read section 13-21-101 as Walker urges and still give effect to all

three provisions. His reading of the statute would force us to choose

subsections (2)(a) and (b) over subsection (1). That’s because construing

subsections (2)(a) and (b) as he does necessarily means contravening

subsection (1). Put differently, it is impossible to conclude that the only situations

in which the market-based postjudgment interest rate applies are those set forth

in subsections (2)(a) and (b), while simultaneously effectuating subsection (1)’s

command to apply such a rate whenever the judgment debtor appeals the

judgment.

¶82 Faced with these two possible paths, the one that gives effect to all three

provisions and doesn’t contravene any of them is clearly preferable. Whether the

legislature included the examples in subsections (2)(a) and (b) as a way to provide

clarity or emphasis or for some other reason is neither here nor there. What’s

important for our purposes is that we give effect to all the provisions in

section 13-21-101 without contravening any of them. And, critically, for the

reasons we’ve set out at length, this is the only statutory construction that’s faithful

to the legislative intent.

43 III. Conclusion

¶83 For the foregoing reasons, we reverse the judgment of the division. We

conclude that the market-based postjudgment interest rate controls during the

period between entry of the appealed judgment and satisfaction of the final

judgment. We thus remand for recalculation of interest on the sum to be paid

($2,929,881.20) from the date of the appealed judgment (April 1, 2013) through the

date the final judgment was satisfied (March 10, 2020) using the market-based

postjudgment interest rate.

JUSTICE MÁRQUEZ, joined by JUSTICE HART, dissented.

44 JUSTICE MÁRQUEZ, joined by JUSTICE HART, dissenting.

¶84 The text of section 13-21-101(1) is unambiguous as applied to the facts of this

case. Under that provision, Walker, as a successful tort plaintiff, is entitled to

statutory nine percent interest on the damages assessed by the jury, compounded

annually, “calculated from the date the suit was filed to the date of satisfying the

judgment.” § 13-21-101(1), C.R.S. (2021). The wrinkle here is, “Which judgment?”

Walker obtained a judgment against Petitioner Ford Motor Company in 2013, but

Ford won reversal of that judgment on appeal and the case was remanded for a

new trial. Following a second trial in 2019, Walker again prevailed and obtained

a slightly higher judgment against Ford. So, which judgment? The answer is

simple. Because the 2013 judgment was reversed and the case was remanded for

a new trial, the judgment that was entered was nullified; it ceased to exist. The

only legally valid judgment in this litigation to which any interest can attach is the

judgment that entered in 2019. Accordingly, under a straightforward application

of section 13-21-101(1), the district court properly awarded statutory nine percent

interest, compounded annually, to Walker from the date that he filed suit through

the date that it entered judgment in 2019 following the jury’s verdict. Such a result

comports with this court’s repeated recognition that “the legislative purpose

behind awarding interest under section 13-21-101 is to compensate the [successful

1 tort] plaintiff for the time value of his or her judgment.” Morris v. Goodwin,

185 P.3d 777, 780 (Colo. 2008).

¶85 Rather than apply the statute as written, the majority rewrites the last

sentence of section 13-21-101(1) to reach a policy result it surmises reflects

legislative intent. Although it acknowledges that we do not add words to statutes,

maj. op. ¶ 19, and claims that it “undertake[s] no rewriting of section 13-21-101

here,” id. at ¶ 64, the majority proceeds to do just that. Focusing on language

addressing the calculation of postjudgment interest when a judgment is appealed,

the majority treats the legislature’s use of the same word—“judgment”— to mean

two different things in the same sentence. Specifically, it rewrites the phrase “from

the date of judgment through the date of satisfying the judgment,” § 13-21-101(1),

to instead say, “from the date of [the appealed] judgment through the date of

satisfying the [final] judgment,” expressly adding the bracketed words. In so

doing, the majority holds that “whenever the judgment debtor appeals the

judgment, the interest rate switches from nine percent to the [postjudgment]

market-based rate,” maj. op. ¶ 4, and thus summarily renders subsections (2)(a)

and (2)(b) of the statute entirely superfluous. Moreover, in applying its rewritten

statute to the facts of this case, the majority ignores the fundamental legal principle

that a judgment that is reversed is void and of no effect.

2 ¶86 The majority’s holding in this case is especially troubling given this court’s

regrettable history of tinkering with this very statute. In Rodriguez v. Schutt,

914 P.2d 921, 929–30 (Colo. 1996), we excised language from the same section at

issue to preserve the statute’s constitutionality. However, we later lamented that

our attempt to do so only “amplified the [statute’s] ambiguity” and “highlight[ed]

the problem that occurs when courts [redraft] statutory language.” Sperry v. Field,

205 P.3d 365, 369 (Colo. 2009); see also id. at 370 (Eid, J., concurring) (noting that

our attempt in Rodriguez to “redraft[]” the statute was “less than successful”).

Apparently, we have not learned from our past mistakes. By rewriting the statute

to address the specific scenario presented here (i.e., where a personal-injury

judgment debtor obtains reversal of the original judgment but ultimately loses on

retrial and incurs another judgment), the majority usurps the role of the General

Assembly. Should the legislature wish to amend section 13-21-101, it is free to do

so. I recognize that there are strong policy arguments on both sides; indeed, the

majority discusses policy implications at great length. But such policy decisions,

and any amendments to the statute, properly rest with the legislature—not this

court. Absent further direction from the General Assembly, I would simply apply

the statute as written. Accordingly, I respectfully dissent.

3 I. Facts and Procedural History

¶87 In 2009, Walker sustained injuries in a car accident and brought a product

liability action against Ford. He proceeded to a jury trial in 2013 and was awarded

$2,915,971.20 in damages. Ford appealed, arguing that there was a jury instruction

error, and a division of the court of appeals reversed and remanded for a new trial.

We granted Walker’s petition for certiorari review but affirmed the court of

appeals. In short, the original verdict and judgment was set aside, thereby

returning the parties to the positions they were in prior to the first trial.

¶88 In 2019, the case was retried. Walker again prevailed, and the second jury

awarded him $2,929,881.20 in damages. Pursuant to section 13-21-101(1), Walker

requested prejudgment interest at the statutory rate of nine percent from the date

of injury in 2009 until the date of suit in 2011, and prejudgment interest at the

statutory rate of nine percent, compounded annually, from the date of suit to the

satisfaction of judgment in 2019. The district court granted Walker’s requests.

Ford did not appeal the 2019 judgment but did appeal the district court’s ruling

regarding the interest award, contending that the lower, market-based

postjudgment interest rate should apply from the date of Ford’s appeal of the 2013

judgment through the satisfaction of the 2019 judgment. A division of the court of

appeals affirmed, and we granted Ford’s petition for writ of certiorari to review

the division’s decision.

4 II. Analysis

A. Legal Principles

¶89 Questions of statutory interpretation are reviewed de novo. Goodwin,

185 P.3d at 779. We begin our interpretation by looking to the plain language of

the statute. If the plain language is unambiguous, we look no further. Nieto v.

Clark’s Market, Inc., 2021 CO 48, ¶ 12, 488 P.3d 1140, 1143. “[W]e do not add words

to or subtract words from a statute.” Id. (alteration in original) (quoting People ex

rel. Rein v. Meagher, 2020 CO 56, ¶ 22, 465 P.3d 554, 560). “[A]nd we avoid

constructions that would render any words or phrases superfluous . . . .” Elder v.

Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698.

¶90 The issue in this case is how to apply section 13-21-101 to assess interest on

personal injury damages when a judgment debtor successfully obtains reversal of

the original judgment on appeal but loses on retrial and incurs a new judgment.

The applicable statutory provisions read as follows:

Section 13-21-101(1): “[W]hen . . . interest is claimed, it is the duty of the court in entering judgment for the plaintiff in the action to add to the amount of damages assessed by the verdict . . . interest on the amount calculated at the rate of nine percent per annum . . . [I]f a judgment for money in an action brought to recover damages for personal injuries is appealed by the judgment debtor, postjudgment interest must be calculated . . . from the date of judgment through the date of satisfying the judgment and must include compounding of interest annually.” (Emphasis added.)

5 Section 13-21-101(2)(a): “If a judgment for money in an action brought to recover damages for personal injuries is appealed by a judgment debtor and the judgment is affirmed, postjudgment interest . . . is payable from the date of judgment through the date of satisfying the judgment.”

Section 13-21-101(2)(b): “If a judgment for money in an action to recover damages for personal injuries is appealed by a judgment debtor and the judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, postjudgment interest . . . is payable from the date of judgment through the date of satisfying the judgment. This postjudgment interest is payable on the amount of the final judgment.”

§ 13-21-101(1)–(2).

¶91 The majority determines that with respect to postjudgment interest, these

provisions are susceptible to two reasonable interpretations. First, they can be

read to require postjudgment interest only in the outcome-specific situations

identified in subsections (2)(a) and (2)(b)—that is, when the judgment is

“affirmed,” “modified,” or “reversed with a direction that a judgment for money

be entered in the trial court.” Id. at (2)(a)-(b); see maj. op. ¶ 33. Second, they can

be read to require that postjudgment interest apply anytime “a judgment for money

in an action brought to recover damages for personal injuries is appealed.” § 13-

21-101(1); see maj. op. ¶ 34. Under this reading, postjudgment interest applies

under subsection (1) “from the date of the appealed judgment [in the instant case,

the 2013 judgment] through the date of satisfying the final judgment [the 2019

6 judgment].” Maj. op. ¶ 51 (emphases added). Ultimately, the majority finds the

second reading more persuasive.

¶92 The problem with the majority’s analysis is that it finds ambiguity only by

adding words to the statute. The General Assembly did not include the term “final

judgment” in section 13-21-101(1). It referred to only a single judgment, “the

judgment.” And it required interest to be calculated on “the sum” of that judgment.

§ 13-21-101(1). In short, “[w]e do not add words to . . . a statute” to create

ambiguity where there is none. Nieto, ¶ 12, 488 P.3d at 1143 (quoting Meagher,

¶ 22, 465 P.3d at 560).

¶93 When the statute is read as written, without adding words to

section 13-21-101(1), the statute is unambiguous. The meaning of “judgment” as

used in section 13-21-101(1) can be straightforwardly gleaned from basic principles

of appellate procedure and the remainder of the statute.

¶94 It is well established that when a judgment is reversed or vacated, it ceases

to exist for all purposes. See Schleier v. Bonella, 237 P. 1113, 1113 (Colo. 1925) (A

judgment of reversal “leaves the parties in the same position as they were before

the judgment of the lower court was rendered.”); Butler v. Eaton, 141 U.S. 240, 244

(1891) (A vacated judgment is “without any validity, force, or effect, and ought

never to have existed.”); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d

7 482, 491 (6th Cir. 2001) (“When a judgment is vacated it is legally void and

unenforceable.”).

¶95 As the court of appeals has explained, “[u]nder Colorado law, if a judgment

is reversed, the parties are put in the same position they were in before the

judgment was rendered. Thus, when an appellate court reverses a judgment,

‘upon remand, that judgment no longer exists.’” Sharon v. SCC Pueblo Belmont

Operating Co., LLC, 2019 COA 178, ¶ 17, 467 P.3d 1245, 1251 (citations omitted)

(quoting Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs, 55 P.3d 271, 274 (Colo.

App. 2002)). And crucially, “the reversal of the judgment also nullifies ‘an award

that is dependent on that judgment for its validity.’” Id. (quoting Bainbridge,

55 P.3d at 274).

¶96 Applying this principle, “the judgment,” referred to in section 13-21-101(1)

cannot refer to the 2013 judgment. That judgment ceased to exist for all purposes

when it was reversed by the court of appeals, Walker v. Ford Motor Co., 2015 COA

124, ¶ 3, 410 P.3d 609, 611, and we affirmed that reversal, Walker v. Ford Motor Co.,

2017 CO 102, ¶ 2, 406 P.3d 845, 847. Any obligation to pay the 2013 judgment, let

alone the postjudgment interest that had been accruing on “the sum” of the 2013

judgment that was appealed, was also nullified. The parties were restored to the

positions they occupied prior to trial. Instead, “the judgment” under section

13-21-101(1) must refer here to the 2019 judgment, the only judgment that still

8 exists and to which interest can attach. Thus, statutory nine percent prejudgment

interest was properly applied from the accrual of the claim in 2009 to the entry of

judgment after the retrial in 2019.

¶97 The majority’s reading of section 13-21-101(1) ignores this principle. The

logic of the majority’s opinion necessarily assumes that the initial judgment has

legal effect and, that therefore, interest can be calculated with respect to it. But the

basic principle that a vacated judgment has no legal effect for any purpose (a

principle against which the General Assembly drafted the statute) plainly counsels

against the majority’s interpretation. And absent a clear indication of legislative

intent to define “judgment” differently than it is normally understood, I see no

reason to ignore well-established law.

¶98 The majority’s reading also does harm to the plain language of the statute.

For the majority’s reading to work, the word “judgment” must have two different

meanings within the same phrase of the same sentence. As the majority posits, the

“date of judgment” refers to the “appealed judgment” (here, the nonexistent 2013

judgment), but “date of satisfying the judgment” refers to the “final judgment”

(here, the only existing, 2019 judgment). But although the last sentence of

section 13-21-101(1) concerns a judgment that is appealed, it does not use the term

“final judgment.” And we know from neighboring section 13-21-101(2)(b) that

when the legislature intended to use this term, it did so expressly. See

9 § 13-21-101(2)(b) (“This postjudgment interest is payable on the amount of the final

judgment.”) (emphasis added). The majority’s reading of the final sentence in

section 13-21-101(1) also makes no practical sense as applied here, because the

provision expressly requires the postjudgment interest to be calculated on “the

sum” of the judgment being appealed. § 13-21-101(1) (“[I]f a judgment . . . is

appealed by the judgment debtor, postjudgment interest must be calculated on the

sum at the [market-based rate in subsections (3) and (4)] . . . .”). Even the majority

recognizes that any postjudgment interest cannot be calculated based on “the

sum” of the 2013 judgment that was appealed.

¶99 Importantly, as the majority seems to admit, maj. op. ¶ 31, its reading

renders subsections 13-21-101(2)(a) and (2)(b) entirely superfluous. These

subsections lay out the circumstances under which postjudgment interest applies

when a party appeals. Under subsection (2)(a), if the “judgment is affirmed,

postjudgment interest . . . is payable from the date of judgment through the date

of satisfying the judgment.” (Emphasis added). And under (2)(b) if the “judgment

is modified or reversed with a direction that a judgment for money be entered in the trial

court, postjudgment interest . . . is payable from the date of judgment through the

date of satisfying the judgment.” (Emphasis added). It is unclear why the General

Assembly would include two subsections explicitly providing the circumstances

under which postjudgment interest applies if a party appeals if—as the majority

10 concludes—it simply intended for postjudgment interest to apply anytime a party

appeals. Had it chosen to, the General Assembly could easily have written that

postjudgment interest applies after any appeal. Alternatively, it could have

included a subsection (2)(c) providing that where the judgment debtor succeeds

on appeal and the initial judgment is vacated but later incurs a second judgment,

postjudgment interest runs from the date of the initial judgment appealed. But the

legislature has not chosen to do either of these things, and it is not this court’s role

to rewrite the statute for the General Assembly.

¶100 Rather than read the last sentence of section 13-21-101(1) to render all of

subsection (2) superfluous, I would instead apply the statute as written.

Section 13-21-101(1) explains generally how postjudgment interest must be

calculated: “at the [market] rate set forth in subsections (3) and (4)” including

compounded annual interest.1 Subsections (2)(a) and (2)(b) provide the detail.

1Under the 1982 version of the statute, subsection (1) specified the trigger date for of accrual of interest (“the date the action accrued”) but did not identify an end date. Subsections (2)(a) and (2)(b) added the details to complete the calculation (“until satisfaction of the judgment”). § 13-21-101, C.R.S. (1982). The 2018 amendments to section 13-21-101 to codify this court’s holdings in Rodriguez and Sperry were grafted onto the 1982 statute, but in doing so, the legislature added the interest calculation endpoint to subsection (1) (from the date “of judgment to the date of satisfying the judgment”), replicating what was already present in subsections (2)(a) and (2)(b). § 13-21-101, C.R.S. (2018).

11 These provisions explain when postjudgment interest should be calculated if a

party appeals and the judgment is affirmed, modified, or reversed with

instructions that a new judgment be entered.

¶101 Thus, when a judgment is appealed and affirmed, we look to

subsection (2)(a). This subsection provides that when a judgment is affirmed,

postjudgment interest applies from the date of the judgment through the date

satisfying that same judgment. Because there is only one judgment in this

scenario, the one affirmed on appeal, this provision plainly requires postjudgment

interest to be applied throughout the appellate process and until the judgment is

satisfied.

¶102 When a judgment is effectively upheld in part—that is, the judgment is

modified on appeal, or is reversed with instructions to enter a new judgment—we look

to subsection (2)(b). This subsection explains that we apply postjudgment interest

“from the date of judgment through the date of satisfying the judgment.” From

the remainder of subsection (2)(b), we can infer that postjudgment interest is

calculated from the date of the modified or new judgment because

subsection (2)(b)’s final sentence explicitly tethers the amount of damages to the

“final judgment.” § 13-21-101(2)(b) (“This postjudgment interest is payable on the

amount of the final judgment.”) (emphasis added). This language indicates that

“judgment,” as used in subsection (2)(b), refers to the “final judgment” (i.e., the

12 modified or new judgment), not the initial judgment. Interpreting the provision

this way gives the term “judgment” a single, consistent meaning throughout the

provision, and it also comports with the principle of appellate jurisprudence that

reversed judgments cease to exist for all purposes.2

¶103 The General Assembly did not address what happens when a judgment is

simply reversed on appeal. Of course, there was no need to, because reversal

nullifies any obligation to pay the judgment, including any associated interest.

There is nothing to calculate. But the legislature likewise did not draft a

subsection (2)(c) explaining how to calculate interest where, as here, a judgment is

reversed on appeal but the judgment debtor incurs a new judgment following

retrial. Subsection (2) simply does not provide for this particular scenario. But the

answer lies in section 13-21-101(1). As previously explained, that section provides

that a successful tort plaintiff is entitled to statutory nine percent prejudgment

2I note that current market conditions create very different incentives than existed in 1982 when the legislature established this structure. At that time, the market rate for postjudgment interest under the statute was eleven percent, higher than the nine percent prejudgment interest rate. See Elizabeth A. Montgomery, Rates of Interest on State and Federal Court Judgments: An Update, 12 Colo. Law. 437, 451 (1983). While it may be tempting to rewrite the statute to account for different incentives that exist under the current lower market interest rate, the job of updating statutes to account for such policy considerations lies with the General Assembly, not this court.

13 interest on the damages assessed by the jury, compounded annually, “calculated

from the date the suit was filed to the date of satisfying the judgment.” § 13-21-

101(1), C.R.S. (2021). The only existing judgment here is the 2019 judgment, which

Ford has not appealed. There is no postjudgment interest to calculate.

¶104 Interpreting the statute this way comports with the principles of statutory

interpretation that guide this court. It provides each provision of the statute with

an independent purpose, does not render any of provision of the statute

superfluous, and does not require us to add words to the statute. It also comports

with the fundamental principle of appellate procedure that judgments that are

vacated no longer exist. Because section 13-21-101 can be straightforwardly

applied according to its plain language, I see no reason to create ambiguity where

there is none.

C. Legislative Intent

¶105 Instead of applying the plain language of the statute, the majority attempts

to redraft the statute to better comport with what it presumes to be the General

Assembly’s intent. However, it is not obvious that the legislature would make the

same revisions put forward by the majority.

¶106 To the contrary, the majority’s holding may well cut against the statute’s

dual legislative purpose. As the majority notes, the statute was designed “to

neutralize the economic benefits and detriments of appeal under the statutorily-set

14 rate of interest” and to ensure that the judgment creditor “receives the time value

of his or her money judgment.” Maj. op. ¶ 65 (quoting Rodriguez, 914 P.2d at

928–29). Regarding the first rationale, the majority’s holding may incentivize

judgment debtors to draw out second trials and then file frivolous appeals to take

advantage of the (currently lower) postjudgment market interest rate. Regarding

the second rationale, the majority’s holding may cut against the legislative intent

to ensure that parties are made whole. The General Assembly may well have

intended that injured parties receive the statutory nine percent interest rate on the

judgment under these circumstances to ensure that they are adequately

compensated for the time value of their judgment. Morris, 185 P.3d at 780. Walker

was injured in 2009 and has waited over a decade to be finally fully compensated

for his injuries.

¶107 The majority contends that applying the prejudgment interest rate during

the pendency of a successful appeal is unfair to Ford and so absurd that the

legislature could not possibly have intended it. But the result here is not

necessarily unfair. Ford successfully appealed and got exactly what it asked for:

reversal of the 2013 judgment, which returned the parties to the status quo prior

to trial. Once returned to that position, the parties could have settled the case.

Instead, Ford proceeded to trial and opted to roll the dice. Unfortunately for Ford,

15 the trial did not come out as hoped. But that outcome does not necessarily render

the proceedings unfair or render the statute absurd.

III. Conclusion

¶108 How to fashion an interest scheme that neutralizes the financial incentives

(or disincentives) to appeal while ensuring that a successful tort plaintiff is fully

compensated is a complex policy issue. Perhaps, as Justice Scott suggested in his

dissent in Rodriguez, the best solution is to do away with the distinction between

prejudgment and postjudgment interest altogether and simply apply “a market-

determined rate of interest on both appealed and nonappealed judgments.”

914 P.2d at 932 (Scott, J., dissenting). However, I would leave the role of balancing

these competing legislative objectives where it properly belongs, with the General

Assembly, and simply apply the statute as written. I respectfully dissent.