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

2021 COA 15, 484 P.3d 765

• Court: Colorado Court of Appeals
• Decided: February 11, 2021
• Docket: 19CA1108, State
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 11, 2021

2021COA15

No. 19CA1108, State Farm Mutual Automobile Insurance Company v. Gary J. Griggs and Susan Goddard — Insurance — Automobile Insurance Policies — Breach of Contract; Torts — Bad Faith Breach of Insurance Contract

In this insurance bad faith case, a division of the court of

appeals considers whether the district court erred by (1) denying a

motion for a directed verdict on the insurer’s claim for breach of

contract against its insured; (2) denying a motion for a directed

verdict on the insurer’s affirmative defense of collusion; and (3)

admitting irrelevant and prejudicial evidence at trial.

The division refuses to adopt a blanket rule that an insured

cannot, as a matter of law, breach an insurance policy by entering

into an agreement like the one contemplated by the Colorado

Supreme Court in Nunn v. Mid-Century Insurance Co., 244 P.3d 116

(Colo. 2010). Instead, the division holds that, before an insured is justified in stipulating to a judgment and assigning its claims

against its insurer to a third-party claimant, it must first appear

that the insurer has unreasonably refused to defend the insured or

to settle the claim within policy limits. Whether an insurer appears

to have acted unreasonably and whether an insured has breached

an insurance contract by entering into such an agreement are

questions of fact.

The division also concludes that any error by the district court

in allowing the jury to consider the insurer’s collusion affirmative

defense was harmless because the jury found that the bad faith

claim failed on its elements and never reached the merits of the

defense. Finally, the division concludes the district court did not

erroneously admit irrelevant or prejudicial evidence.

For these reasons, the division affirms the judgment. COLORADO COURT OF APPEALS 2021COA15

Court of Appeals No. 19CA1108 City and County of Broomfield District Court No. 16CV30175 Honorable Emily E. Anderson, Judge

State Farm Mutual Automobile Insurance Company,

Plaintiff-Appellee,

v.

Susan A. Goddard,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE BROWN Bernard, C.J and Vogt*, J., concur

Announced February 11, 2021

Spencer Fane LLP, Evan Stephenson, Kayla Leigh Scroggins-Uptigrove, Denver, Colorado, for Plaintiff-Appellee

Franklin D. Azar & Associates, P.C., Natalie A. Brown, DezaRae D. LaCrue, Elisabeth Owen, Aurora, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 This insurance bad faith case requires us to explore the

circumstances under which an insured may protect itself from an

insurer’s apparent bad faith conduct — by stipulating to a

judgment and assigning its claims against its insurer to a

third-party claimant — without breaching its insurance contract.

¶2 State Farm Mutual Automobile Insurance Company (State

Farm) sued its insured, Gary J. Griggs, seeking a declaration that

Griggs breached his insurance contract by, among other things,

entering into an agreement with third-party claimant Susan

Goddard, whereby Griggs stipulated to entry of a judgment against

him in an amount to be determined by binding arbitration and

assigned to Goddard any claims he had against State Farm.

Goddard, as Griggs’s assignee, brought a bad faith counterclaim

against State Farm.

¶3 Goddard contends that the district court erred by allowing the

jury to consider the breach of contract claim because it was

required to determine as a matter of law whether Griggs’s conduct

violated the insurance policy. And she argues that Griggs could not

have violated the insurance policy by entering into the agreement

because his conduct was expressly authorized by the Colorado

1 Supreme Court in Nunn v. Mid-Century Insurance Co., 244 P.3d 116

(Colo. 2010).

¶4 We reject Goddard’s contention. Before an insured is justified

in stipulating to a judgment and assigning its claims against its

insurer to a third-party claimant, it must first appear that the

insurer has unreasonably refused to defend the insured or to settle

the claim within policy limits. And whether an insurer appears to

have acted unreasonably is a question of fact. Thus, whether an

insured has breached an insurance contract by entering into such

an agreement is, like any other alleged breach of contract, a

question for the fact finder.

¶5 Because we also reject the balance of Goddard’s contentions

on appeal, we affirm the district court’s entry of judgment on a jury

verdict in favor of State Farm.

I. Background

¶6 State Farm insured Griggs under an auto insurance policy (the

policy) with liability limits for bodily injury of $25,000 per person

and $50,000 per accident.

2 ¶7 On November 30, 2013, Griggs injured Goddard and two other

persons in a four-vehicle accident. Goddard and the other two

injured persons each made a claim under the policy.

¶8 On December 16, 2013, Goddard retained Franklin D. Azar &

Associates, P.C. (the Azar firm) as her counsel under a written

contingent-fee agreement (the Azar fee agreement).

¶9 On March 5, 2014, the Azar firm sent State Farm a settlement

demand letter seeking to resolve Goddard’s claim for the $25,000

policy limit. The letter claimed that Goddard had incurred

$2,410.00 in documented medical expenses; that records reflecting

the charges she incurred at the hospital remained pending; and

that she missed two days of work for a total wage loss of $141.60.

The letter did not claim that Goddard would continue to incur

medical expenses or suffer future damages. The letter further

provided as follows:

We hereby demand your insured’s policy limits and Ms. Goddard will settle for policy limits if offered to us by 5 p.m. on April 4, 2014. If not offered by that date and time, then consider our offer to be automatically withdrawn at the expiration of that time period. Our offer is conditioned on you providing proof of your insured’s policy limits for all coverages available to Ms. Goddard for this claim, as well

3 as the underinsured motorist carrier granting permission to settle for the underlying liability limits.

¶ 10 On April 4, 2014, the date Goddard’s settlement offer expired,

State Farm offered $5,000 to settle her claim based on the

documentation she had provided by that date. According to State

Farm, Goddard never responded to the offer.

¶ 11 Approximately two months later, Goddard provided State Farm

with additional medical records, including emergency room and

physical and massage therapy records. The records indicated that

Goddard had an MRI on April 8, 2014, and thereafter received a

referral for a neurological evaluation and psychotherapy.

¶ 12 As of February 2015, after State Farm had settled with the two

other injured persons, only $18,500 remained under the policy’s

per accident limit. State Farm offered Goddard the remaining

$18,500 to settle her claim. Goddard did not respond.

¶ 13 Meanwhile, Goddard had sued Griggs on November 11, 2014.

Goddard did not serve Griggs with the complaint and State Farm

did not learn of the lawsuit until mid-March 2015, after the

$18,500 settlement offer had been made. State Farm hired an

attorney to defend Griggs against Goddard’s claims.

4 ¶ 14 In June 2015, Goddard informed Griggs’s attorney that she

was “no longer willing to accept a settlement offer within policy

limits” and, “[i]n the interest of protecting [Griggs] from an excess

verdict,” offered him the opportunity to enter into an agreement

whereby Griggs would assign “his rights to any potential bad faith

claim against State Farm” to Goddard and, in exchange, Goddard

would agree “not to pursue [Griggs’s] personal assets.”

¶ 15 In January 2016, the trial court granted Goddard leave to add

a claim for punitive damages against Griggs because he admitted to

driving under the influence of alcohol when he ran a red light and

caused the accident that injured Goddard.

¶ 16 In June 2016, Griggs and Goddard entered into the agreement

Goddard had proposed a year earlier (the assignment agreement).

Under the assignment agreement, Griggs admitted liability for the

accident and agreed to have Goddard’s damages determined

through a binding, nonappealable arbitration conducted by a

specific arbitrator; to have judgment entered against him in the

amount determined by the arbitrator; and to assign any claims he

may have against State Farm to Goddard. In exchange, Goddard

agreed to initiate any “necessary proceedings” against State Farm,

5 including pursing claims for breach of contract and bad faith, and

not to execute on or enforce the judgment that would be entered

against Griggs. Griggs further agreed to cooperate with Goddard in

prosecuting any claims against State Farm.

¶ 17 Goddard and Griggs arbitrated the amount of Goddard’s

damages. State Farm paid counsel to defend Griggs at the

arbitration. The arbitrator entered an award in favor of Goddard in

the amount of $837,193.36. As contemplated by the assignment

agreement, judgment entered against Griggs in that amount.

¶ 18 After arbitration, State Farm initiated the underlying

declaratory judgment action against Griggs and Goddard, as

Griggs’s assignee, seeking a determination that Griggs breached the

insurance policy by, among other things, entering into the

assignment agreement with Goddard. Griggs disclaimed any

interest in the litigation. Goddard counterclaimed that State Farm

had breached the insurance policy and engaged in bad faith by,

among other things, failing to settle Goddard’s claims within the

policy limits. State Farm asserted various affirmative defenses to

Goddard’s counterclaim, including, as relevant here, that the

6 arbitration award and the resulting judgment were unreasonable

and the product of fraud and collusion.

¶ 19 Ultimately, the case proceeded to a six-day jury trial and the

jury returned a verdict in favor of State Farm. First, the jury found

by a preponderance of the evidence that State Farm proved its claim

for breach of contract against Griggs. Second, the jury found by a

preponderance of the evidence that Goddard had not proved her

counterclaim for bad faith breach of insurance contract against

State Farm. The jury did not reach the merits of State Farm’s

affirmative defenses.

II. Discussion

¶ 20 Goddard contends that the district court erred by (1) denying

her motion for a directed verdict on State Farm’s breach of contract

claim; (2) denying her motion for a directed verdict on State Farm’s

collusion affirmative defense; and (3) admitting irrelevant and

prejudicial evidence at trial. We affirm.

A. The District Court Did Not Err by Allowing the Jury to Consider State Farm’s Breach of Contract Claim

¶ 21 Goddard contends that the district court erred by denying her

motion for directed verdict on State Farm’s breach of contract claim

7 because the claim (1) raised exclusively legal questions the court

should have resolved and (2) failed on the facts. We disagree.1

1. Additional Background

¶ 22 At the close of State Farm’s evidence, Goddard moved for a

directed verdict on the breach of contract claim pursuant to

C.R.C.P. 50, asking the district court to resolve the claim as a

matter of law rather than submit it to the jury. Among other

things, Goddard argued that Griggs’s conduct — entering into the

assignment agreement — was legally authorized by Nunn, and could

not, as a matter of law, amount to a breach of the insurance

contract. She also argued that State Farm’s breach of contract

claim failed for want of evidence because nothing Griggs did

breached a policy provision.

¶ 23 State Farm countered that Nunn did not hold that an insured

can never breach an insurance contract by entering into a

stipulated judgment and assigning its claims to a third-party

1 Although Goddard frames this issue on appeal as an error by the district court in “instructing the jury” to decide State Farm’s breach of contract claim, she identifies no error in the jury instructions. Instead, she argues that the district court should have resolved the breach of contract claim as a matter of law by granting a directed verdict in her favor under C.R.C.P. 50.

8 claimant; instead, there must be a showing that the insurer acted

unreasonably, engaged in bad faith, or gave its consent to such an

agreement before the stipulated judgment can be enforced against

the insurer.

¶ 24 The district court denied Goddard’s motion, highlighting a

series of disputed facts regarding Griggs’s compliance with the

policy provisions and the reasonableness of State Farm’s conduct.

The court noted that the jury was capable of reading the contract

terms and, based on the evidence and testimony of both lay and

expert witnesses, deciding whether there had been a breach.

2. Standard of Review

¶ 25 C.R.C.P. 50 authorizes a party to move for a directed verdict at

the close of the evidence offered by the opposing party. Directed

verdicts are not favored. Flores v. Am. Pharm. Servs., Inc., 994 P.2d

455, 457 (Colo. App. 1999). Indeed, a motion for directed verdict

may be granted only if the evidence, considered in the light most

favorable to the nonmoving party, “compels the conclusion that

reasonable persons could not disagree and that no evidence, or

legitimate inference therefrom, has been presented upon which a

jury’s verdict against the moving party could be sustained.”

9 Burgess v. Mid-Century Ins. Co., 841 P.2d 325, 328 (Colo. App.

1992). “A motion for a directed verdict should be granted only in

the clearest of cases.” Devenyns v. Hartig, 983 P.2d 63, 70 (Colo.

App. 1998).

¶ 26 We review a district court’s decision on a motion for directed

verdict de novo. Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry,

P.C., 186 P.3d 80, 82-83 (Colo. App. 2008). We must determine

whether there is evidence of sufficient probative force to support the

district court’s ruling. Flores, 994 P.2d at 457. Like the district

court, we must consider all the facts in the light most favorable to

the nonmoving party and determine whether a reasonable jury

could have found in favor of the nonmoving party. Id.

3. Analysis

a. Whether Griggs Breached the Policy by Entering into the Assignment Agreement Was a Question of Fact to be Determined by the Jury

¶ 27 Goddard first contends that the district court erred by denying

her motion for directed verdict on State Farm’s breach of contract

claim because the court was obligated to resolve as a matter of law

“whether Griggs’[s] settlement of Goddard’s claims against him by

Nunn agreement breached the terms of the [p]olicy.” She argues

10 that Griggs could not have breached the policy by entering into the

assignment agreement because his conduct was expressly

authorized by the Colorado Supreme Court in Nunn. She

essentially asks us to adopt a rule that would immunize an insured

against a claim for breach of contract any time the insured enters

into an agreement like the one contemplated in Nunn. We decline

to adopt such a blanket rule.

¶ 28 While the interpretation of a written contract is a question of

law to be determined by the court, whether there has been a breach

of contract is a question of fact to be determined by the jury. Lake

Durango Water Co. v. Pub. Utils. Comm’n, 67 P.3d 12, 21 (Colo.

2003); Town of Breckenridge v. Golforce, Inc., 851 P.2d 214, 216

(Colo. App. 1992). As a result, unless the evidence was undisputed

and compelled the conclusion that no reasonable jury could find

that Griggs breached the policy, the district court correctly denied

the C.R.C.P. 50 motion. See Burgess, 841 P.2d at 328.

¶ 29 Every contract in Colorado contains an implied duty of good

faith and fair dealing. Nunn, 244 P.3d at 119. “A violation of the

duty of good faith and fair dealing gives rise to a claim for breach of

contract.” City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006).

11 Due to the “special nature of the insurance contract and the

relationship which exists between the insurer and the insured,”

however, it is now well settled that, in addition to contractual

remedies for breach of an insurance contract, an insurer’s bad faith

breach of contract also gives rise to tort liability. Nunn, 244 P.3d at

119 (citation omitted); Travelers Prop. Cas. Co. v. Stresscon Corp.,

2016 CO 22M, ¶ 16.

¶ 30 Typically, the insured is responsible for paying any damages

that exceed the amount of liability coverage purchased, yet the

insurer retains exclusive control over the defense and settlement of

claims. Nunn, 244 P.3d at 119. Thus, the insurer’s covenant of

good faith and fair dealing includes the duty to act reasonably in

investigating, defending, or settling a third-party claim. Id.;

Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)

(“Third-party bad faith arises when an insurance company acts

unreasonably in investigating, defending, or settling a claim

brought by a third person against its insured under a liability

policy.”); see also 14A Steven Plitt et al., Couch on Insurance 3d

§ 203:13, Westlaw (database updated June 2020) (Because an

insurer has exclusive control over settlement of claims, it has a

12 duty “to settle within policy limits where recovery in excess of those

limits is substantially likely, in order to protect the insured from a

gamble by the insurer on which only the insured could lose.”).

¶ 31 The insurer’s duty of good faith and fair dealing extends only

to its insured, not to a third-party claimant. Nunn, 244 P.3d at

119. But in Colorado,

an insured . . . is also given wide latitude to protect itself from exposure to liability beyond the limits of its insurance coverage by assigning to the third-party claimant any claim it may have against its insurer for breach of the insurer’s duty of good faith and fair dealing.

Stresscon Corp., ¶ 17.

¶ 32 As is relevant here, the Colorado Supreme Court in Nunn

approved of one way for an insured to protect itself from the risk of

personal liability caused by its insurer’s bad faith refusal of a

policy-limits settlement offer. Nunn, 244 P.3d at 119. Nunn sued

the insured for injuries arising from an automobile accident. Id. at

118. Before trial, Nunn and the insured entered into an agreement

whereby the insured agreed to pay over to Nunn the insurance

policy limit, to stipulate to a judgment against him in excess of that

limit, and to assign any claims he had against his insurer to Nunn.

13 Id. In exchange, Nunn covenanted not to execute on the stipulated

judgment. Id. Nunn, as the insured’s assignee, then brought an

action against the insurer, contending that it had breached the

insurance contract and engaged in bad faith by failing to settle with

Nunn within the policy limits, thereby exposing its insured to a

judgment in excess of policy limits. Id.

¶ 33 The supreme court rejected the insurer’s argument that,

because Nunn had covenanted not to execute on the excess

judgment against the insured, the insured had suffered no actual

damages to maintain an action for bad faith. Id. at 121-22.

Instead, it concluded that an insured who has “suffered a judgment

in excess of policy limits, even if the judgment is confessed and the

insured is protected by a covenant not to execute, has suffered

actual damages and will be permitted to maintain an action against

its insurer for bad faith breach of the duty to settle.” Id. at 122.

¶ 34 Goddard contends that Griggs’s assignment agreement is

similar to the one in Nunn and that Griggs cannot, as a matter of

law, breach the policy by following a procedure the Colorado

Supreme Court has expressly authorized. But we do not read Nunn

as immunizing an insured against a claim for breach of contract. It

14 does not appear that the insurer in Nunn argued that its insured

breached the insurance contract by entering into the agreement

with Nunn. Indeed, it would have been difficult for the insurer to

make such an argument given that it granted its insured

permission to enter into the agreement. See id. at 118 n.2.

Instead, the court in Nunn focused solely on “whether a pretrial

stipulated judgment coupled with a covenant not to execute can

serve as the basis for a claim of damages in an action for bad faith

breach of an insurance contract.” Id. at 118.

¶ 35 Still, we find Nunn instructive because there the court

explained that an insured may undertake the protective steps of

stipulating to its own liability and assigning its claims against its

insurer to a third-party claimant in exchange for a covenant not to

execute on a judgment “when it appears that the insurer — who

has exclusive control over the defense and settlement of claims

pursuant to the insurance contract — has acted unreasonably by

refusing to defend its insured or refusing a settlement offer that

would avoid any possibility of excess liability for its insured.” Id. at

119.

15 ¶ 36 In other words, before an insured is justified in stipulating to a

judgment and assigning its claims against the insurer to a

third-party claimant, it must first appear that the insurer has

unreasonably refused to defend the insured or to settle the claim

within policy limits. And, whether an insurer acted — or appeared

to act — unreasonably in denying a defense or a policy-limits

settlement offer is a question of fact. See Farmers Grp., Inc. v.

Trimble, 691 P.2d 1138, 1142 (Colo. 1984) (“The relevant inquiry is

whether the facts pleaded show the absence of any reasonable basis

for denying the claim, ‘i.e., would a reasonable insurer under the

circumstances have denied or delayed payment of the claim under

the facts and circumstances.’” (quoting Anderson v. Cont’l Ins. Co.,

271 N.W.2d 368, 377 (Wis. 1978))); Surdyka v. DeWitt, 784 P.2d

819, 822 (Colo. App. 1989) (“The question of whether an insurer

has breached its duties of good faith and fair dealing with its

insured is one of reasonableness under the circumstances.”). Thus,

we reject Goddard’s contention that an insured may never breach

an insurance contract by entering into an agreement like the one

contemplated by Nunn.

16 ¶ 37 To the extent State Farm encourages us to hold that there

must be a finding of bad faith on the part of the insurer before an

insured is justified in entering into a Nunn-like agreement, we

decline that invitation as well. That rule is too harsh. It places too

much risk on an insured that has no control over the settlement of

the claim and yet finds itself in the precarious position of trying to

avoid breaching the insurance policy, thereby forfeiting coverage,

and protecting itself from excess liability that may result from the

insurer’s inept claim handling. Although Nunn requires a finding of

bad faith before a stipulated judgment may be enforced against the

insurer as the measure of damages for a bad faith claim, Nunn, 244

P.3d at 120 (“[W]e have held that a pretrial stipulated judgment

cannot be enforced against an insurer in the absence of a

determination of bad faith . . . .”), whether an insured has breached

an insurance contract is a different question. Based on the

language in Nunn, an insured is justified in entering into a

stipulated judgment and assignment agreement without breaching

the insurance contract when it appears that the insurer has acted

unreasonably. See id. at 119.

17 ¶ 38 Although a finding that the insurer appeared to act

unreasonably — thereby allowing an insured to enter into a Nunn

agreement — and a finding that the insurer actually acted

unreasonably — resulting in a finding of bad faith on the part of the

insurer — are likely to go hand in hand, it is conceivable that an

insurer may appear to have acted unreasonably in rejecting a

policy-limits offer, but not actually acted unreasonably in settling

the claim. Under that scenario, the insured would not have

breached the insurance contract and the insurer would not have

acted in bad faith.

¶ 39 Here, the fact that Griggs entered into the agreement with

Goddard was undisputed. But Griggs would have been authorized

to enter into the assignment agreement without breaching the

insurance policy only if it appeared that State Farm had acted

unreasonably by refusing Goddard’s offer to settle within policy

limits.

¶ 40 The apparent reasonableness of State Farm’s conduct was

hotly contested at trial. And State Farm offered at least some

evidence that its rejection of Goddard’s policy-limits settlement offer

appeared reasonable, including the following:

18  On March 5, 2014, Goddard made a settlement demand

for the full $25,000 policy limit. The demand letter

claimed that Goddard had incurred $2,410.00 in

documented medical expenses and $141.60 in wage loss.

It indicated that other records remained pending but did

not claim that Goddard would continue to incur medical

expenses or suffer future damages. It stated that the

offer would expire on April 4, 2014.

 On the offer expiration date, based on the documentation

that had been provided, State Farm offered $5,000 to

settle Goddard’s claim.

 Two months later, Goddard provided State Farm with

additional medical records, which indicated that Goddard

had received a referral for a neurological evaluation and

psychotherapy. Goddard also provided State Farm with a

Boulder radiologist bill that had been written off and

partly predated the November 30, 2013, accident. The

bill was for a January 23, 2013, chest x-ray and

December 2, 2013, neck and spine exam.

19  Around February 2015, State Farm asked Goddard for an

update on her status. Goddard did not respond. State

Farm nonetheless offered Goddard $18,500, which was

the balance of the policy limits remaining after it settled

with the two other claimants. Goddard did not respond.

 In June 2015, Goddard informed Griggs’s attorney that

she would no longer accept a settlement within the policy

 Although Goddard had a neurosurgical evaluation in May

2014, she did not inform State Farm of the surgical

recommendation resulting from that evaluation until

September 2015, approximately ten months after she

sued Griggs and seven months after State Farm offered

her the remaining policy limits.

¶ 41 Considering these disputed facts, we conclude that whether

State Farm appeared to have acted unreasonably in denying

Goddard’s policy-limits settlement offer and, consequently, whether

Griggs breached the insurance contract by entering into the

assignment agreement were questions of fact to be determined by

the jury. Accordingly, we conclude that the district court did not

20 err by declining to hold, as a matter of law, that Griggs did not

breach the policy by entering into the assignment agreement.

b. A Reasonable Jury Could (and Did) Find in Favor of State Farm on Its Breach of Contract Claim

¶ 42 Goddard next contends that the district court erred by denying

her motion for directed verdict on State Farm’s breach of contract

claim because the undisputed facts established that Griggs did not

breach the policy.2 We disagree.

¶ 43 Goddard first asserts that State Farm had already breached

the policy’s implied covenant of good faith and fair dealing by the

time Griggs entered into the assignment agreement. Under such

circumstances, she argues, the assignment agreement “cannot, as a

matter of law, constitute a breach of the policy’s terms.” But

Goddard’s argument presupposes State Farm breached the policy

first. And whether State Farm breached the policy at all (or, as

discussed above, whether it appeared to have acted unreasonably

2 We have already rejected Goddard’s argument that the district court should have ruled as a matter of law that an insured can never breach an insurance contract by entering into an agreement similar to the one in Nunn. But Goddard also contends, as a matter of fact, that Griggs did not breach any provision of the policy by entering into the assignment agreement.

21 in denying Goddard’s initial settlement demand) was a vigorously

disputed factual issue that the jury ultimately resolved in State

Farm’s favor.

¶ 44 Goddard also asserts that the facts did not establish that

Griggs breached any policy provision. Under the policy’s insuring

agreement, State Farm had the right to

a. investigate, negotiate, and settle any claim or lawsuit;

b. defend [Griggs] in any claim or lawsuit, with attorneys chosen by [State Farm]; and

c. appeal any award or legal decision for damages payable under this policy’s Liability Coverage.

Under the policy exclusions, there was no coverage “FOR LIABILITY

ASSUMED UNDER ANY CONTRACT OR AGREEMENT.” And under

the insured’s duty to cooperate, Griggs agreed to the following:

d. [Griggs] must cooperate with [State Farm] and, when asked, assist [State Farm] in: (1) making settlements; (2) securing and giving evidence; and (3) attending, and getting witness to attend, depositions, hearings, and trials.

e. [Griggs] must not, except at his . . . own cost, voluntarily: (1) make any payment to others; or

22 (2) assume any obligation to others unless authorized by the terms of this policy.3

¶ 45 In general, an insured breaches the cooperation clause of his

insurance policy when he “fails to cooperate with the insurer in

some material and substantial respect and the failure to cooperate

causes material and substantial disadvantage to the insurer.”

Soicher v. State Farm Mut. Auto. Ins. Co., 2015 COA 46, ¶ 25. “The

scope of such noncooperation therefore depends on the specific

policy provision at issue.” Id. The question of whether an insured

failed to cooperate with the insurer is a question of fact. See

3 On appeal, State Farm argues that Griggs vitiated all coverage under the policy by entering into the assignment agreement because the policy had a “no voluntary payment” requirement. See Travelers Prop. Cas. Co. v. Stresscon Corp., 2016 CO 22M, ¶ 13. It is unclear whether the policy provisions at issue in this case are like those in Stresscon, which “make[] clear that coverage under the policy does not extend to indemnification for such payments or expenses in the first place,” or if they are instead provisions “purporting to bar an insured from voluntarily making payments or incurring expense without the consent of the insurer, for the breach of which the insurer would be absolved of compliance with its obligations under the policy.” Id. at ¶ 14. At trial, State Farm argued that “[Griggs] agreed that there would be no coverage for any obligation assumed in a contract or agreement, and then he went and assumed obligations. That’s a breach.” We do not see where State Farm previously raised this as a coverage issue, so we analyze it as State Farm asked the jury to analyze it: as an alleged breach of contract.

23 Farmers Auto. Inter-Ins. Exch. v. Konugres, 119 Colo. 268, 276, 202

P.2d 959, 963 (1949).

¶ 46 State Farm argues that Griggs’s performance under the

assignment agreement itself constituted noncooperation that

substantially prejudiced State Farm. State Farm presented

evidence that, by agreeing to submit Goddard’s damages to binding,

nonappealable arbitration, Griggs deprived State Farm of its rights

to settle and control the defense of Goddard’s claim, try the case to

a jury, and appeal any adverse judgment. Griggs also assumed an

obligation to help Goddard sue State Farm, which he did without

State Farm’s consent. State Farm offered evidence that it made

specific requests of Griggs with which he did not comply, including

requests to Griggs’s personal attorneys (whom Griggs had retained

in addition to the attorney State Farm hired to defend him) asking

them to seek information and raise concerns about the arbitrator.

And State Farm warned Griggs not to enter into the assignment

agreement, but he did so anyway.

¶ 47 Considering these facts in the light most favorable to State

Farm, we conclude that a reasonable jury could (and did) find in

favor of State Farm on its claim for breach of contract. Accordingly,

24 the district court did not err by denying Goddard’s C.R.C.P. 50

motion.4

B. Any Error by the District Court in Allowing the Jury to Consider State Farm’s Collusion Defense Was Harmless

¶ 48 Next, Goddard contends that the district court erred by

denying her C.R.C.P. 50 motion for directed verdict on State Farm’s

collusion affirmative defense because the evidence was insufficient

to allow the jury to consider it. Even if the district court erred, we

conclude that any error was harmless, and therefore reversal is not

required.

¶ 49 At the close of all the evidence, Goddard moved for a directed

verdict on State Farm’s collusion defense pursuant to C.R.C.P. 50.5

She argued that the evidence was insufficient to establish collusion

because State Farm had only offered evidence of two people working

4 Because of this disposition, we need not address State Farm’s argument that Goddard’s initial settlement demand did not satisfy the “offer rule” such that State Farm could not have breached its duty to settle by rejecting it. 5 Goddard moved for a directed verdict on State Farm’s

reasonableness and fraud affirmative defenses too. But State Farm withdrew its fraud defense and Goddard does not appeal the district court’s decision on the reasonableness defense.

25 together to accomplish a goal and the arbitration had all the

hallmarks of a fair proceeding.

¶ 50 State Farm asserted that the arbitration award and the

resulting judgment were the product of collusion. Among other

things, it contended that the assignment agreement itself, including

the selection of what it characterized as a non-neutral arbitrator

and the waiver of State Farm’s rights to a jury trial and an appeal,

demonstrated collusion.

¶ 51 The district court denied Goddard’s motion. It determined

that State Farm had presented sufficient evidence from which a

reasonable jury could find collusion. And it agreed with State Farm

that testimony regarding the arbitration could be compelling to the

jury when considering the reasonableness of the arbitration award.

¶ 52 The district court instructed the jury to consider State Farm’s

collusion affirmative defense only if it first found that Goddard had

proved her counterclaim for bad faith breach of insurance contract.

The relevant part of the verdict form tracked the instruction:

Question 2: Has Ms. Goddard proved by a preponderance of the evidence her counterclaim for bad faith breach of insurance contract?

26 Answer (circle one): YES NO

If you answered “NO” to Question No. 2, please sign this form and do not answer the remaining questions.

Question 3 addressed State Farm’s collusion defense.

¶ 53 Ultimately, the jury returned a verdict for State Farm, finding

that Goddard had not proved her counterclaim for bad faith breach

of insurance contract. The jury did not reach the merits of the

collusion defense.

2. Preservation and Standard of Review

¶ 54 As an initial matter, we reject Goddard’s contention that this

issue is preserved because she raised it in her motion for summary

judgment. We do not review a denial of a motion for summary

judgment because it is not a final order. Feiger, Collison & Killmer

v. Jones, 926 P.2d 1244, 1250 (Colo. 1996); Manuel v. Fort Collins

Newspapers, Inc., 631 P.2d 1114, 1116 (Colo. 1981).

¶ 55 Even so, Goddard moved for directed verdict on this issue at

the close of evidence, which preserved the issue. As stated above,

in determining whether there is evidence of sufficient probative

force to support the district court’s ruling on a motion for directed

verdict, we must consider all the facts in the light most favorable to

27 the nonmoving party and determine whether a reasonable jury

could have found in favor of the nonmoving party. Flores, 994 P.2d

at 457.

¶ 56 If we conclude that the district court erred, we must consider

whether the error requires reversal. We will deem an error

harmless, and thus will not reverse a judgment, unless the error

resulted in substantial prejudice to a party. Walker v. Ford Motor

Co., 2017 CO 102, ¶ 21; see also C.R.C.P. 61 (“The court at every

stage of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the

parties.”).

¶ 57 Goddard contends that State Farm’s evidence did not amount

to collusion and that the district court erred by allowing the jury to

consider collusion as an affirmative defense. But we need not

decide whether the evidence State Farm offered at trial was

sufficient to fend off a motion for directed verdict because the jury

never considered the merits of the collusion defense. So even if the

district court erred, we conclude that the error was harmless and

does not warrant reversal.

28 ¶ 58 The district court instructed the jury to consider collusion only

if it first found that Goddard had proved her counterclaim for bad

faith breach of insurance contract. “Absent evidence to the

contrary, we presume that a jury follows a trial court’s

instructions.” Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088

(Colo. 2011).

¶ 59 The verdict form for Goddard’s counterclaim aligned with the

jury instruction. The verdict form first asked: “Has Ms. Goddard

proved by a preponderance of the evidence her counterclaim for bad

faith breach of insurance contract?” The foreperson circled “NO.”

Because the jury answered this question in the negative, it was

instructed not to answer any of the remaining questions, including

whether State Farm had proved its affirmative defense that the

“judgment was the product of collusion or other undue means.”

The remainder of the questions were left blank, as instructed.

¶ 60 Collusion is an affirmative defense. “By its nature, an

affirmative defense ‘does not negate the elements of a plaintiff’s

claim, but instead precludes liability even if all of the elements of a

plaintiff’s claim are proven.” Purzel Video GmbH v. Smoak, 11

F. Supp. 3d 1020, 1031 (D. Colo. 2014) (citation omitted); see also

29 Soicher, ¶ 18 (“[A]n affirmative defense is not merely a denial of an

element of a plaintiff’s claim, but rather it is a legal argument that a

defendant may assert to require the dismissal of a claim,

notwithstanding the plaintiff’s ability to prove the elements of that

claim.”); Black’s Law Dictionary 528 (11th ed. 2019) (defining

affirmative defense as “[a] defendant’s assertion of facts and

arguments that, if true, will defeat the plaintiff’s . . . claim, even if

all the allegations in the complaint are true”). Thus, if a jury finds

that all elements of a claim are not proven, success on an

affirmative defense becomes irrelevant.

¶ 61 Where, as here, a jury finds that a claim fails on its elements

and, as a result, never reaches the merits of an affirmative defense

to that claim, any error in submitting the affirmative defense to the

jury is harmless. See iFreedom Direct v. First Tenn. Bank Nat’l, 540

F. App’x 823, 828 (10th Cir. 2013) (reasoning that any alleged error

in submitting a defense to a jury “should be disregarded” when the

jury found no breach of contract and did not consider the defense);

cf. Leaf v. Beihoffer, 2014 COA 117, ¶ 12 (concluding that, if a

plaintiff fails to establish any element of his negligence claim, any

errors related to the other elements are harmless because the

30 plaintiff cannot prevail in any event); Dunlap v. Long, 902 P.2d 446,

448-49 (Colo. App. 1995) (concluding that a jury determination that

the plaintiffs suffered no injury or damages rendered harmless any

error relating only to the defendant’s liability).

¶ 62 And to the extent Goddard argues that the alleged error is not

harmless because the jury was tainted by admission of evidence

related to the collusion affirmative defense, we disagree. Goddard

did not object to admission of the collusion-related evidence during

trial based on prejudice. And she did not move for a directed

verdict on collusion until the close of evidence. By then, the jury

had heard all the evidence. So even if the district court had entered

a directed verdict when Goddard asked for it, the jury still would

have heard the collusion-related evidence.

¶ 63 Thus, we conclude that any error by the district court in

denying Goddard’s C.R.C.P. 50 motion on State Farm’s collusion

affirmative defense was harmless, so reversal is not required.

C. The District Court’s Evidentiary Rulings Were Sound

¶ 64 Finally, Goddard contends the district court erred by

admitting (1) the Azar fee agreement and (2) “evidence of . . . the

existence of Nunn agreements from other cases” in which the Azar

31 firm has been involved. We reject the first contention and conclude

that the second contention was either not preserved or harmless.

1. Standard of Review and Applicable Law

¶ 65 We review a district court’s evidentiary ruling for an abuse of

discretion. Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO

47M, ¶ 16. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or based on a

misapplication or misunderstanding of the law. Credit Serv. Co.,

Inc. v. Skivington, 2020 COA 60M, ¶ 17; Giampapa v. Am. Fam. Mut.

Ins. Co., 919 P.2d 838, 842 (Colo. App. 1995).

¶ 66 Unless otherwise prohibited by law, all relevant evidence is

admissible. CRE 402; Murray, ¶ 19. Relevant evidence is any

evidence “having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

CRE 401.

¶ 67 Relevant evidence may be excluded if “its probative value is

substantially outweighed by the danger of unfair prejudice.” CRE

403. When reviewing a district court’s decision to admit evidence,

“we accord the evidence its maximum probative value as weighed

32 against its minimum prejudicial effect.” Walker v. Ford Motor Co.,

2015 COA 124, ¶ 46; see Murray, ¶ 19.

¶ 68 Evidentiary rulings that do not affect a substantial right of a

party are harmless and do not warrant reversal. CRE 103(a);

C.R.C.P. 61. An error affects the substantial rights of the parties if

it substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself. Laura A. Newman, LLC v. Roberts,

2016 CO 9, ¶ 24; Bernache v. Brown, 2020 COA 106, ¶ 26.

2. The District Court Did Not Abuse Its Discretion by Admitting the Azar Fee Agreement

a. Additional Background

¶ 69 Before trial, Goddard moved in limine to preclude State Farm

from offering the Azar fee agreement into evidence, arguing that the

evidence was irrelevant and unfairly prejudicial. The district court

denied the motion and ordered that the fee agreement could be

admitted at trial. It found that State Farm had demonstrated the

relevance of the fee agreement and that Goddard had not

“meaningfully attempt[ed] to argue that if the fee agreement is

admitted, a jury may reach a decision on the incorrect basis.”

33 ¶ 70 At trial, State Farm offered the Azar fee agreement through its

first witness and the district court admitted it over Goddard’s

renewed objection. Throughout trial, State Farm argued that the

fee agreement “financially incentivized the Azar firm to sabotage any

chance of an out-of-court settlement with State Farm” by increasing

the percentage of its contingent fee if it took the case to trial. State

Farm also argued that the fee agreement’s pre-authorization of

costs in the amount of $25,000 precluded settlement of Goddard’s

claim for any amount equal to or less than the policy limit of

$25,000.

¶ 71 Although it admitted the Azar fee agreement itself, the district

court repeatedly sustained Goddard’s objections to State Farm’s

attempts to elicit testimony that there was something improper

about the agreement, that it fell below the appropriate standard of

care, or that it deviated from the form contingent fee agreement

approved by the Colorado Supreme Court. C.R.C.P. Ch. 23.3, Rule

7, Form 2 (2019).

34 b. Analysis

¶ 72 Goddard contends that the district court erred by admitting

the Azar fee agreement because it was irrelevant and prejudicial.

We disagree.

¶ 73 As an initial matter, we reject State Farm’s contention that

Goddard waived this claim or invited this error. First, before trial,

Goddard moved in limine to preclude admission of the Azar fee

agreement. She argued in her motion that State Farm sought to

“make some negative inference against Ms. Goddard’s counsel and

take advantage of well-known biases against plaintiff attorneys.” A

court’s definitive ruling on a motion in limine preserves the issue for

appeal. See CRE 103(2) (“Once the court makes a definitive ruling

on the record admitting or excluding evidence, either at or before

trial, a party need not renew an objection or offer of proof to

preserve a claim of error for appeal.”); Uptain v. Huntington Lab, Inc.,

723 P.2d 1322, 1330-31 (Colo. 1986) (pretrial ruling on a motion in

limine sufficiently preserves an issue for appeal).

¶ 74 Second, to the extent that State Farm argues that Goddard

waived this issue by referring to the Azar fee agreement during her

defense case, we disagree because State Farm had already admitted

35 the evidence over Goddard’s objection. A party does not waive its

right to challenge evidence admitted over its objection by

responding to it during trial. Cf. Bernache, ¶ 12 (concluding that

party did not waive objection or invite error by preventatively

addressing evidence the court ruled admissible before trial).

¶ 75 Although Goddard preserved her objection, we conclude that

the district court did not abuse its discretion by admitting the Azar

fee agreement. State Farm argued that the agreement financially

incentivized the Azar firm to prevent an out-of-court settlement of

Goddard’s claim and gave the Azar firm the power to do so. State

Farm also used the Azar fee agreement to highlight what it argued

were collusive terms in the assignment agreement between Goddard

and Griggs. Accordingly, the Azar fee agreement was relevant to the

causation element of Goddard’s counterclaim for bad faith breach of

insurance contract and to State Farm’s collusion affirmative

defense.

¶ 76 But Goddard contends that, by excluding certain testimony

about the Azar fee agreement once it was admitted, the district

court demonstrated that the agreement itself was unfairly

prejudicial and should not have been admitted. We disagree.

36 ¶ 77 The Azar fee agreement was some evidence from which the

jury could infer that Goddard and her attorneys caused the

settlement failure. Had the jury reached the collusion defense, it

also would have allowed the jury to infer that the assignment

agreement between Goddard and Griggs was collusive based on a

comparison of the arbitration terms in the two agreements. We

acknowledge that these inferences were prejudicial to Goddard’s

case, but they were not unfairly prejudicial. Unfair prejudice refers

to “an undue tendency on the part of admissible evidence to suggest

a decision made on an improper basis.” People v. Coney, 98 P.3d

930, 933 (Colo. App. 2004) (quoting People v. Gibbens, 905 P.2d

604, 608 (Colo. 1995)). The Azar agreement did not suggest to the

jury that it should resolve Goddard’s claim on an improper basis.

We see no abuse of discretion.

3. The District Court’s Admission of “Evidence of . . . the Existence of Nunn Agreements from Other Cases” Does Not Require Reversal

¶ 78 In discovery, State Farm apparently disclosed a “Table of

Cases,” which was “a spreadsheet that lists a total of 17 cases” from

2013-2016 that “advanced to contested arbitration hearings,”

37 thirteen of which involved both the Azar firm and the arbitrator

named in the assignment agreement between Goddard and Griggs.

State Farm also disclosed as potential witnesses several lawyers

who were involved in those cases. Before trial, Goddard moved in

limine to preclude admission of the other assignment agreements

(which she called “Nunn agreements”) and witness testimony about

the agreements, arguing that such evidence was irrelevant,

misleading, and confusing to the jury.

¶ 79 The district court granted Goddard’s motion in part and

denied it in part. It first noted that neither party had “detail[ed]

with specificity the evidence sought to be admitted or precluded.”

Its order on the motion in limine referred only to the Table of Cases

“as containing the type of information sought to be addressed” by

Goddard’s motion. The court explained that State Farm had not yet

established its “claims of multiple inflated arbitration awards as

well as a ‘lucrative relationship’ benefitting [the arbitrator].” Still, it

concluded that the cases listed in the Table of Cases that involved

both the arbitrator and the Azar firm were relevant to State Farm’s

defenses. Thus, it ruled that State Farm could introduce three

other assignment agreements to demonstrate, among other things,

38 that the Azar firm had a practice of hiring the same arbitrator with

the aim of securing inflated awards. To mitigate any prejudice

resulting from the fact that the arbitrator could not testify

(presumably to contradict State Farm’s collusion accusations), the

court also authorized Goddard to introduce assignment agreements

from three other cases handled by the Azar firm providing for

arbitration by any other arbitrator. The court did not make a ruling

in limine on any other evidence or witness testimony related to

assignment agreements from other cases.

¶ 80 At trial, State Farm called Franklin Patterson as a witness.

Patterson represented State Farm for part of the litigation against

Griggs and Goddard. He testified that, during the course of his

representation, he contacted other defense lawyers seeking other

assignment agreements involving both the Azar firm and the same

arbitrator as the present case. He learned of approximately thirty

such agreements and obtained copies of nineteen. State Farm’s

counsel showed Patterson three assignment agreements from other

cases but did not move to admit them or show them to the jury.

When State Farm’s counsel started to show Patterson a fourth

agreement, Goddard’s counsel objected based on the court’s in

39 limine ruling. At a bench conference the court clarified that the in

limine ruling allowed State Farm to show three agreements.

¶ 81 Patterson then testified that, after finding these other

assignment agreements, he objected to the arbitration in a letter he

sent to Griggs’s personal counsel. He wrote that he believed Azar

and the arbitrator had a “close and frequent relationship.”

b. Analysis

¶ 82 Goddard contends that the district court “impermissibly

allowed State Farm to introduce evidence regarding other Nunn

agreements proposed or entered into by Azar” because the evidence

was irrelevant, “highly prejudicial[,] and designed to induce the jury

to draw impermissible inferences based upon pure speculation and

bias.” In support of this argument, Goddard cites two parts of the

record: (1) her motion in limine and the court’s order partially

granting and partially denying it; and (2) eleven pages of Patterson’s

trial testimony. We conclude any error was harmless.

¶ 83 First, to the extent Goddard contends that the district court

erroneously admitted assignment agreements from other cases

involving Azar’s clients, Goddard does not point us to any part of

the trial record where such agreements were actually admitted into

40 evidence. On the contrary, even though the district court ruled in

limine that State Farm could admit three assignment agreements, it

appears that State Farm did not offer them. Thus, even if the court

erred by ruling in limine that State Farm would be allowed to

introduce three assignment agreements, such error was harmless

because the evidence was not admitted. See C.R.C.P. 61; Gonzales

v. Mascarenas, 190 P.3d 826, 831 (Colo. App. 2008) (concluding

that plaintiff could not show prejudice with respect to the denial of

a motion in limine when the subject evidence was not admitted).

¶ 84 Second, to the extent Goddard contends that the district court

erred by admitting Patterson’s testimony about assignment

agreements from other cases, she did not preserve this issue. As

the district court noted, Goddard’s motion in limine did not identify

specific witness testimony she sought to preclude. And even if it

had, the court did not rule that such testimony was admissible.

The only in limine ruling the court made on this issue was that

each side could introduce three assignment agreements from other

cases. Although a party abiding by an in limine ruling need not

renew an objection at trial to preserve the issue for review, see

Bernache, ¶ 9, because there was no definitive in limine ruling on

41 the scope of permissible testimony about assignment agreements in

other cases, Goddard was required to object at trial to preserve the

issue for appellate review, see Higgs v. Dist. Ct., 713 P.2d 840, 859

(Colo. 1985) (concluding that the denial of a motion in limine

“directed toward a broad array of evidence” does not “dispense with

the obligation to make a contemporaneous objection to the evidence

when offered at trial”). See also CRE 103(a).

¶ 85 But Goddard did not cite to any part of the record where she

objected to Patterson’s testimony about assignment agreements

from other cases based on relevance or unfair prejudice. Notably,

the transcript pages Goddard cites in her briefs do not include the

testimony to which she appears to object on appeal. Giving

Goddard the benefit of the doubt, we reviewed the entirety of

Patterson’s testimony. Although Goddard lodged several objections

on other grounds — many of which were sustained — we did not

find any objections based on CRE 402 or 403. Because she did not

object, she did not preserve this issue for appellate review. See Am.

Fam. Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009) (“In

order to properly preserve an objection to evidence admitted at trial,

a timely and specific objection must appear in the trial court

42 record.”); Wycoff v. Grace Cmty. Church of Assemblies of God, 251

P.3d 1260, 1269 (Colo. App. 2010) (“[O]nly in a ‘rare’ civil case,

involving ‘unusual or special’ circumstances — and even then, only

‘when necessary to avert unequivocal and manifest injustice’ — will

an appellate court reverse based on an unpreserved claim of error.”)

(citations omitted).

¶ 86 We acknowledge that, during the bench conference after

Goddard’s counsel objected to State Farm’s attempt to have

Patterson identify a fourth assignment agreement, the district court

said, referencing the in limine ruling, “He can testify as to 19. That

was the deal.” We do not read the in limine order as affirmatively

authorizing Patterson to testify that he obtained nineteen

assignment agreements involving both the Azar firm and the same

arbitrator. But even assuming that the in limine ruling authorized

that testimony such that Goddard did not have to renew her

objection to it at trial, and even assuming the district court erred by

allowing Patterson to testify about the number of agreements he

found, we conclude that the error was harmless. See C.R.C.P. 61;

Bernache, ¶ 26.

43 ¶ 87 The testimony and references to it in State Farm’s closing

argument were relatively brief parts of a six-day trial. The evidence

primarily supported State Farm’s collusion defense, which the jury

never reached. And Goddard’s attorney effectively cross-examined

Patterson on this issue, causing him to admit that the Azar firm

handles hundreds of cases each year, that Patterson was only able

to obtain nineteen assignment agreements identifying this

arbitrator, and that only four or five of the nineteen cases actually

went to arbitration. Patterson even admitted that State Farm itself

had used a particular pair of arbitrators seventy times.

¶ 88 Considering the evidence in context, we do not conclude that it

substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself. See Bernache, ¶ 26. Thus, we

conclude any error was harmless.

III. Conclusion

¶ 89 The judgment is affirmed.

CHIEF JUDGE BERNARD and JUDGE VOGT concur.