Forfar v. Walmart

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 August 23, 2018

2018COA125

No. 17CA0663 Forfar v. Walmart — Insurance; Damages — Collateral Source Rule — Reduction of Damages for Payment From Collateral — Contract Exception

In this case, a division of the court of appeals concludes that

the trial court correctly applied both the pre-verdict collateral

source rule in section 10-1-135(10)(a), C.R.S. 2017, and the

contract exception in section 13-21-1111.6, C.R.S. 2017, to

Medicare benefits. The division also concludes that Medicare does

not preempt application of the state law collateral source doctrine. COLORADO COURT OF APPEALS 2018COA125

Court of Appeals No. 17CA0663 City and County of Denver District Court No. 15CV31638 Honorable John W. Madden IV, Judge

Robert P. Forfar III,

Plaintiff-Appellee,

v.

Wal-Mart Stores, Inc., d/b/a Wal-Mart, d/b/a Wal-Mart Supercenter, d/b/a Wal-Mart Supercenter #, d/b/a Wal-Mart Market, d/b/a Wal-Mart Neighborhood Market; Wal-Mart Stores East, LP, d/b/a Wal-Mart Stores East I, LP; Wal-Mart Associates, Inc.; Wal-Mart Store #984; and Castle Rock Wal-Mart Supercenter,

Defendants-Appellants.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE WEBB Fox and Márquez*, JJ., concur

Announced August 23, 2018

Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, Colorado, for Plaintiff-Appellee

Kutak Rock LLP, Mark C. Willis, Mia K. Della Cava, Denver, Colorado, for Defendants-Appellants

Heideman Poor LLC, John F. Poor, Denver, Colorado, for Amicus Curiae Colorado Trial Lawyers Association

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 This premises liability case presents a novel question in

Colorado: whether the collateral source rule — codified in section

10-1-135(10)(a), C.R.S. 2017, and section 13-21-111.6, C.R.S. 2017

— applies to Medicare benefits. We conclude that it does.

¶2 Wal-Mart Stores, Inc., appeals the judgment entered on a jury

verdict in favor of Robert P. Forfar III, for injuries he sustained

when he slipped and fell at a Wal-Mart store. The judgment

included $44,000 in economic damages for the reasonable value of

medical services that Mr. Forfar, a Medicare beneficiary, had

received.

¶3 Before trial, Wal-Mart moved to exclude evidence of Mr.

Forfar’s medical expenses owed under agreements that he had

entered into with his medical services providers. Wal-Mart argued

that because these agreements were null and void under Medicare

regulations, evidence of the reasonable value of those medical

services should be “limited to the Medicare approved charges for the

services.”1 Mr. Forfar also moved in limine to exclude any evidence

1 Walmart asserts in its opening brief that $9170.83 could have been properly charged under the Medicare limits for Mr. Forfar’s medical services. This amount was based on an expert disclosure that the trial court found untimely.

1 that he had received Medicare benefits, arguing that such benefits

constituted a collateral source.

¶4 The trial court ruled that Wal-Mart could “not present

evidence to the jury as to the amount of the Medicare limits.” The

court also ruled that Mr. Forfar “may not present evidence of private

contracts between himself and any of the Third-Party Medical

Providers.” Still, it allowed him to “present evidence of the

reasonable value of the medical services . .. . and such value need

not be based upon the Medicare limits.” The trial proceeded

according to this ruling, with Mr. Forfar seeking damages of

$72,636 as the reasonable value of the medical services.

¶5 After trial, Wal-Mart moved to reduce the damages under

section 13-21-111.6. It argued that the economic damages awarded

for Mr. Forfar’s medical expenses “should be reduced to Medicare

accepted rates.” The trial court denied the motion, holding that

Medicare benefits fall within the contract exception to the collateral

source rule of section 13-21-111.6.

¶6 Wal-Mart challenges both of these rulings on appeal. We

affirm.

2 I. Background

¶7 In Colorado, the collateral source rule has both a pre-verdict

evidentiary component and a post-verdict component. The

evidentiary component is codified at section 10-1-135(10)(a). See

Smith v. Jeppsen, 2012 CO 32, ¶ 19 (stating that section

10-1-135(10)(a) “unambiguously codifies” the common law collateral

source rule). The post-verdict component is codified at section

13-21-111.6. Because this case involves both components, they

require separate discussion.

¶8 Generally, under the collateral source rule, “compensation or

indemnity received by an injured party from a collateral source,

wholly independent of the wrongdoer and to which the wrongdoer

has not contributed, will not diminish the damages otherwise

recoverable [by the injured party] from the wrongdoer.” Colo.

Permanente Med. Grp., P.C. v. Evans, 926 P.2d 1218, 1230 (Colo.

1996) (quoting Kistler v. Halsey, 173 Colo. 540, 545, 481 P.2d 722, 724 (1971)).

¶9 Pre-verdict, this doctrine applies “to bar evidence of collateral

source benefits because such evidence could lead the fact-finder to

improperly reduce the plaintiff’s damages award on the grounds

3 that the plaintiff already recovered his loss from the collateral

source.” Wal-Mart Stores, Inc. v. Crossgrove, 2012 CO 31, ¶ 12.

Section 10-1-135(10)(a) provides, “[t]he fact or amount of any

collateral source payment or benefits shall not be admitted as

evidence in any action against an alleged third-party tortfeasor.”

¶ 10 Still, our supreme court has recognized some tension between

“the pre-verdict evidentiary component of the collateral source rule

that controls this case and the reasonable value rule.” Crossgrove,

¶ 19. Specifically, “the correct measure of damages is the necessary

and reasonable value of the [medical] services rendered.” Kendall v.

Hargrave, 142 Colo. 120, 123, 349 P.2d 993, 994 (1960). And to

prove that value, the amount paid for medical services is “some

evidence of their reasonable value.” Id.

¶ 11 But what happens if evidence of the amount paid would

disclose a collateral source, thus risking that the jury could

improperly reduce the damages award for that reason?

¶ 12 In Crossgrove, ¶ 20, the supreme court resolved this tension

by holding that “the pre-verdict evidentiary component of the

collateral source rule prevails in collateral source cases to bar the

admission of the amounts paid for medical services.” It explained:

4 Admitting amounts paid evidence for any purpose, including the purpose of determining reasonable value, in a collateral source case carries with it an unjustifiable risk that the jury will infer the existence of a collateral source — most commonly an insurer — from the evidence, and thereby improperly diminish the plaintiff’s damages award.

Id. Particularly relevant here, the court offered an example: “[T]he

government sets the rates that providers who honor public

insurance programs, like Medicare and Medicaid, must accept for

certain services,” which “are often significantly lower than those

billed by the provider.” Id. at ¶ 22.

¶ 13 As to the post-verdict component, start with the rule: section

13-21-111.6 “requires the trial court to reduce a successful

plaintiff’s verdict as a matter of law by the amount the plaintiff ‘has

been or will be wholly or partially indemnified or compensated for

his loss by any other person, corporation, insurance company or

fund in relation to the injury . .. . sustained.’” Id. at ¶ 14 (quoting

§ 13-21-111.6). Then consider the exception: the statute preserves

the common law post-verdict component of the collateral source

doctrine “to a limited extent by prohibiting trial courts from

reducing a plaintiff’s verdict by the amount of indemnification or

5 compensation that the plaintiff has received, or will receive in the

future, from ‘a benefit paid as a result of a contract entered into

and paid for by or on behalf of’ the plaintiff.’” Id. at ¶ 15 (quoting

§ 13-21-111.6).

¶ 14 So, given all this, what more need be said? A lot, according to

Wal-Mart, because the case involves Medicare — a context in which

the collateral source rule has yet to be addressed by any Colorado

court. After walking us through a labyrinth of federal statutes and

regulations, Wal-Mart asserts the following:

 because Mr. Forfar’s providers, who are covered by Part B of

the Medicare program, failed to submit an affidavit opting out

of Medicare, they cannot recover more than Medicare allows

for their services, see 42 U.S.C. § 1395b-3 (2012); 42 U.S.C.

§ 1395u(b)(18)(B) (2012); 42 C.F.R. § 405.420 (2017);

 to the extent that the providers’ private contracts with him

provided otherwise, because those contracts did not comply

with the disclosure requirements of Medicare, they are — as

the trial court found — null and void, see 42 U.S.C.

§ 1395a(b)(2)(B)(i)-(v) (2012); 42 C.F.R. § 405.405 (c) (2017); 42 C.F.R. § 405.415 (2017); 42 C.F.R. § 405.430 (b)(1) (2017);

6  “no person” can be liable above the Medicare limits for medical

services provided to a Medicare beneficiary, see 42 U.S.C.

§ 1395u(b)(18)(B) (“No person is liable for payment of any

amounts billed for such a service in violation of the previous

sentence.”); 42 U.S.C. § 1395w-4(g)(1)(A)(ii) (2012) (“No person

is liable for payment of any amounts billed for the service in

excess of such limiting charge.”); and

 insofar as the collateral source rule or section 13-21-111.6

may provide for greater liability, they are preempted by

Medicare.

¶ 15 For his part, Mr. Forfar agrees that he was covered by

Medicare based on his Social Security Disability Insurance (SSDI)

benefits. Even so, after taking his own exhaustive tour of both

federal statutes and regulations, he responds that under Barnett v.

American Family Mutual Insurance Co., 843 P.2d 1302 (Colo. 1993),

Medicare is a collateral source, which triggers the evidentiary

limitation in section 10-1-135(10)(a) and is subject to the contract

exception of section 13-21-111.6.

¶ 16 But must we take an equally deep dive into federal statutes

and regulations to decide the narrow question whether the trial

7 court properly applied the collateral source rule, both pre-verdict

and post-verdict? No.

¶ 17 Instead, we assume, without deciding, that Mr. Forfar’s

providers are subject to the Medicare limits.2 Next, we conclude

that under Crossgrove, the trial court correctly applied both the

pre-verdict collateral source rule in section 10-1-135(10)(a) and the

contract exception in section 13-21-111.6. Finally, we conclude

that Medicare does not preempt application of the state law

collateral source doctrine.

II. Application of the Collateral Source Rule

A. Standard of Review

¶ 18 The parties agree that we review a trial court’s evidentiary

rulings for an abuse of discretion. Crossgrove, ¶ 7. A trial court

abuses its discretion when its ruling derives from an erroneous

application of the law or when its ruling is manifestly arbitrary,

unreasonable, or unfair. Smith v. Kinningham, 2013 COA 103, ¶ 9.

2 Because we assume, without deciding, that the private contracts are null and void — and thus Mr. Forfar’s providers are subject to the Medicare limits — we need not address Walmart’s argument that cases preceding the enactment of these regulations are no longer good law.

8 ¶ 19 The parties also agree that whether a trial court has applied

the correct legal standard presents a question of law subject to de

novo review. Crossgrove, ¶ 7. So does interpretation of a statute.

Id.

B. Pre-Verdict Application of the Collateral Source Rule to Medicare Benefits

¶ 20 Should benefits payable up to Medicare limits have been

admitted to show the reasonable value of Mr. Forfar’s medical

services or do those benefits constitute a collateral source, subject

to the evidentiary bar of section 10-1-135(10)(a)? We conclude that

the evidentiary bar applies.

¶ 21 To begin, in Smith the supreme court held that section 10-1-

135(10)(a) “clearly and unambiguously states that ‘the fact or

amount of any collateral source payment or benefits shall not be

admitted as evidence in any action against an alleged third-party

tortfeasor.’” ¶ 21 (quoting § 10-1-135(10)(a)). The court explained

that a “collateral source is a person or company, wholly

independent of an alleged tortfeasor, that compensates an injured

party for that person’s injuries.” Id.

9 ¶ 22 A benefit is not excluded from the definition of a collateral

source merely because it comes from a government program. To

the contrary, Colorado courts have held that benefits from Social

Security, Medicaid, and public retirement plans all meet the

definition of a collateral source. See Pressey v. Children’s Hosp.

Colo., 2017 COA 28, ¶ 13 (“Private insurance, private disability

benefits, [SSDI], and retirement benefits all fall within the contract

exception to the collateral source statute.”); Kinningham, ¶ 15

(“[T]he alleged Medicaid benefits were paid on [the plaintiff’s] behalf,

and fall squarely within the definition of a collateral source.”).

¶ 23 This is so because under the collateral source rule,

making the injured plaintiff whole is solely the tortfeasor’s responsibility. Any third-party benefits or gifts obtained by the injured plaintiff accrue solely to the plaintiff’s benefit and are not deducted from the amount of the tortfeasor’s liability. These third-party sources are “collateral” and are irrelevant in fixing the amount of the tortfeasor’s liability.

Volunteers of Am. Colo. Branch v. Gardenswartz, 242 P.3d 1080, 1082-83 (Colo. 2010).

¶ 24 Undaunted, Wal-Mart argues that “amounts paid by Medicare

are dispositive of the necessary and reasonable value of medical

10 services provided” because Mr. Forfar never incurred liability for

any greater amounts. And allowing him to recover more than the

Medicare limits, Wal-Mart continues, results in a windfall for him.

One does not usually think of applying the collateral source rule to

Medicare as creating a windfall, where the recipient has given value

by paying social security taxes during his or her work life. But to

the extent that a windfall occurs, we conclude that the plaintiff —

not the tortfeasor — should be the beneficiary.

¶ 25 Recall, our supreme court has acknowledged that “healthcare

providers accept significantly less than the amount billed for certain

services in satisfaction of government insured patients’ bills.”

Crossgrove, ¶ 22. Even so, by any reckoning, “the pre-verdict

evidentiary component of the collateral source rule prevails over the

older ‘reasonable value rule,’ which allowed trial courts to admit

evidence of the amount actually paid for healthcare services.”

Kinningham, ¶ 18.

¶ 26 This application of the collateral source rule “prohibits the

wrong-doer from enjoying the benefits procured by the injured

plaintiff.” Gardenswartz, 242 P.3d at 1083. The supreme court

justified applying the prohibition because

11 [i]f either party is to receive a windfall, the rule awards it to the injured plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits obtained by the plaintiff.

Id.; see also Crossgrove v. Wal-Mart Stores, Inc., 280 P.3d 29, 33

(Colo. App. 2010) (rejecting the defendant’s argument that the

“collateral source rule does not apply to written-off expenses

because the rule ‘excludes only “evidence of benefits paid by a

collateral source”’” (quoting Robinson v. Bates, 857 N.E.2d 1195, 1200 (Ohio 2006))), aff’d, 2012 CO 31.

¶ 27 Still persisting, Wal-Mart cites some out-of-state authority

holding that Medicare benefits do not constitute a collateral source

and “the amount paid by Medicare [is] dispositive of the reasonable

value of healthcare provider services.” Stayton v. Del. Health Corp.,

117 A.3d 521, 533 (Del. 2015). But these cases do not treat the

collateral source rule as broadly as section 10-1-135(10)(a) does;

the statute bars evidence of “the fact or amount of any collateral

source payment or benefits.” (Emphasis added.) See Sinclair

12 Transp. Co. v. Sandberg, 2014 COA 76M, ¶ 38 (“[T]he term ‘any’

means ‘without limit or restriction.’”) (citation omitted).

¶ 28 Unsurprisingly, “[a] majority of courts have concluded that

plaintiffs are entitled to claim and recover the full amount of

reasonable medical expenses charged, based on the reasonable

value of medical services rendered, including amounts written off

from the bills pursuant to contractual rate reductions.” Felts v. Bd.

of Cty. Comm’rs, No. 13-CV-1094-MCA/SCY, 2017 WL 3267742, at

*4 (D.N.M. July 31, 2017) (quoting Pipkins v. TA Operating Corp.,

466 F. Supp. 2d 1255, 1259 (D.N.M. 2006)); see Bynum v. Magno,

101 P.3d 1149, 1162 (Haw. 2004) (Limiting the reasonable value of

medical services “to the pecuniary loss suffered by a plaintiff would

mean, for example, that injured plaintiffs who received gratuitous

medical services, were treated at a veteran’s hospital, or were

covered by medical insurance plans such as offered to Kaiser

Hospital patients would not be entitled to recover any monetary

amount from the tortfeasor (except perhaps nominal out-of-pocket

fees) . .. .. . [S]uch an approach [is] contrary to the ‘great weight of

authority in this country.’” (quoting Pryor v. Webber, 263 N.E.2d 235, 240 (Ohio 1970))).

13 ¶ 29 The majority rule better aligns with our supreme court’s view

in Crossgrove that “[d]ue to the nature of modern healthcare billing

practices, a reasonable juror could easily infer the existence of a

collateral source if presented with evidence, for example, that the

provider accepted $40,000 in satisfaction of a $250,000 medical

bill.” Crossgrove, ¶ 21.

¶ 30 For these reasons, we conclude that the trial court properly

held Medicare benefits to be a collateral source inadmissible as

evidence based on section 10-1-135(10)(a). In other words, the

reasonable value of Mr. Forfar’s medical services was not limited to

amounts that Medicare paid to his providers, even assuming that

they could receive no more from Mr. Forfar or anyone who might be

vicariously liable to them, such as a guarantor. But that

conclusion brings us to the contract exception.

C. Post-Verdict Application of the Contract Exception in Section 13-21-111.6

¶ 31 Should the trial court have reduced Mr. Forfar’s damages for

Medicare benefits or do those benefits fall within the contract

exception of section 13-21-111.6? We further conclude that they

fall within the contract exception.

14 ¶ 32 Recall, the General Assembly modified the common law

collateral source rule by enacting section 13-21-111.6. The first

clause directs a trial court to reduce a plaintiff’s award for any

benefits the plaintiff received from collateral sources. But the

second clause says “the verdict shall not be reduced by the amount

by which [the injured plaintiff] has been or will be wholly or

partially indemnified or compensated by a benefit paid as a result of

a contract entered into and paid for by or on behalf of such person.”

§ 13-21-111.6 (emphasis added).

¶ 33 Although no Colorado court has addressed Medicare benefits

under section 13-21-111.6, the reasoning of cases sweeping other

benefits under this section is informative as to Medicare benefits.

¶ 34 The division in Pressey, ¶ 14, explained that “Medicaid

benefits are paid on behalf of [the plaintiff], and she was required to

enter into a written Medicaid application agreement to repay the

state for any Medicaid benefits she receives for which she would not

qualify under the federal guidelines.” Thus, “[u]nder section

13-21-111.6, these benefits are dependent upon ‘a contract entered

into . .. . by or on behalf of’ [the plaintiff] for which she remains

financially responsible.” Id. (quoting § 13-21-111.6).

15 ¶ 35 In Barnett, 843 P.2d at 1310, the supreme court held that

SSDI “benefits fall within the exception to section 13-21-111.6”

because they “are the result of payments made under a

contributory insurance system, rather than gratuities or public

assistance.”

¶ 36 In Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1079

(Colo. 1992), the supreme court held that disability benefits payable

to a firefighter under a public pension plan fell within the contract

exception to the collateral source statute:

Because an employee exchanges something of value, his services, in return for an employment contract and its derivative benefits, benefit payments received as part of the compensation for these services are entitled to the same protection against offset that would apply to benefits received as a result of an insurance contract for which that person had paid money.

Id.

¶ 37 Consistent with these Colorado cases, in Baumann v. American

Family Mutual Insurance Co., Civ. A. No. 11-cv-00789-CMA-BNB,

2012 WL 122850, at *7 (D. Colo. Jan. 17, 2012), the federal district

court addressed Medicare benefits under section 13-21-111.6. It

found “no meaningful difference between Medicare and SSDI

16 benefits given that they are funded by the same employment

taxation scheme.” Id.

¶ 38 And in Berg v. United States, 806 F.2d 978, 985 (10th Cir.

1986), the court reasoned:

Further support for the conclusion that Medicare benefits are a collateral source is provided by the decisions of the other courts that have considered the issue. They have each concluded that when a plaintiff has paid Social Security taxes while employed, any Medicare benefits that are subsequently received are a collateral source.

¶ 39 Similarly, in applying the contract exception to the Medicare

benefits received by Mr. Forfar, the trial court explained that Mr.

Forfar was eligible for Medicare based on his SSDI benefits (not

based on his age). Then the court noted that Mr. Forfar had

“qualified for SSDI benefits . .. . after he had accumulated a

sufficient work history, and . .. . [as a] result of his contributions to

Social Security.” It found that “Medicare benefits available as a

result of [Mr. Forfar’s] eligibility for SSDI benefits also fall under the

contract exception of [section] 13-21-111.6.”

¶ 40 Like the court in Baumann, we perceive no meaningful

difference between SSDI benefits and Medicare benefits. Thus,

17 because the supreme court has concluded that SSDI benefits “fall

within the exception to section 13-21-111.6,” Barnett, 843 P.2d at 1310, we conclude that Mr. Forfar’s Medicare benefits — which

were available to him based on his SSDI benefits — also fall within

this exception.

¶ 41 Even so, Wal-Mart argues that the contract exception should

not apply to any charges that exceeded the Medicare limits because

Mr. Forfar is not liable for these charges. In other words, no benefit

is involved. And Wal-Mart points out “at least one court has

recognized that the value of Medicare-approved rates inures

primarily to the benefit of the program and taxpayers, not

plaintiffs.” See Stayton, 117 A.3d at 534.

¶ 42 Yet, a similar argument was rejected by the supreme court in

Gardenswartz, 242 P.3d at 1086-87. There, the plaintiff’s

“healthcare providers billed $74,242 for their services in treating his

injuries,” but because the plaintiff’s insurance company “satisfied

his medical debts with a payment of $43,236,” the plaintiff “could

not be billed the difference.” Id. at 1085. Based on this discount,

the defendant argued “that the pricing differential between the

18 amounts billed and the amounts paid is illusory because the

charges are never actually paid by anyone.” Id. at 1086.

¶ 43 The supreme court disagreed. It held that “by discharging [the

plaintiff’s] obligations to his medical providers, the insurer’s

remittances do constitute a ‘benefit’ that was ‘paid.’” Id. (emphasis

added). This is so because “[i]f [the plaintiff] had not had insurance

coverage, he would have been liable for the entire amount billed or

he may not have been treated at all.” Id. By the same token, had

Mr. Forfar not been Medicare eligible, he would have been liable

above the Medicare limits.

¶ 44 In the end, we conclude that the trial court properly applied

the contract exception in section 13-21-111.6 to Medicare benefits.

III. Medicare Statutes Do Not Preempt Colorado’s Collateral Source Rule

¶ 45 Despite all of this, Wal-Mart contends the trial court violated

the Supremacy Clause by “failing to apply the express provisions of

Medicare statutes and regulations over the collateral source rule.”

Specifically, Wal-Mart asserts that under the Medicare statutes,

“‘No Person’ — which would include a defendant or alleged

tortfeasor such as Wal-Mart — may be held liable for ‘payment of

19 any amounts billed’ in excess of Medicare approved charges.” This

contention does not survive scrutiny.

A. Preservation and Standard of Review

¶ 46 Wal-Mart does not point to where it raised preemption before

the trial court. Still, Mr. Forfar does not challenge preservation.

Regardless, we need not comb through the record to determine if

preemption was raised, because we can exercise our discretion to

review a preemption claim, especially where — like here — no

further record development is required. See Fuentes-Espinoza v.

People, 2017 CO 98, ¶ 19.

¶ 47 Federal preemption is a question of law subject to de novo

review. Kohn v. Burlington N. & Santa Fe R.R., 77 P.3d 809, 811

(Colo. App. 2003).

B. Law

¶ 48 The preemption doctrine, derived from the Supremacy Clause,

U.S. Const. art. VI, mandates that state law give way when it

conflicts with federal law. Id.

¶ 49 Congressional intent to preempt state law may be explicitly

stated in the federal statute. Banner Advert., Inc. v. City of Boulder,

868 P.2d 1077, 1080 (Colo. 1994). Even absent such explicit

20 language, however, preemption occurs when state law conflicts with

federal law. Id. This type of preemption — conflict preemption —

“is implicated when it is impossible for a private party to

simultaneously comply with both state and federal laws, or where

the state law ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.’” Id.

(footnote omitted) (quoting Hines v. Davidowitz, 312 U.S. 52, 67

(1941)).

¶ 50 Wal-Mart argues only conflict preemption.

C. Analysis

¶ 51 Analysis of federal preemption begins with “the basic

assumption that Congress did not intend to displace state law.”

Middleton v. Hartman, 45 P.3d 721, 731 (Colo. 2002) (quoting

Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). In other words,

“while Congress has the power to preempt state law, it is

anticipated that state and federal law will peaceably coexist.” Id.

(citation omitted).

¶ 52 Wal-Mart relies on two Medicare statutes to overcome this

presumption:

21  42 U.S.C. § 1395u(b)(18)(B), which says that “[a] practitioner

described in subparagraph (C) or other person may not bill (or

collect any amount from) the individual or another person for

any service described in subparagraph (A), except for

deductible and coinsurance amounts applicable under this

part. No person is liable for payment of any amounts billed for

such a service in violation of the previous sentence”; and

 42 U.S.C. § 1395w-4(g)(1)(A)(ii), which says that “[n]o person is

liable for payment of any amounts billed for the service in

excess of such limiting charge.”

¶ 53 Although neither of these statutes expressly preempts

Colorado law, Wal-Mart argues that the trial court’s application of

the collateral source rule effectively held Wal-Mart liable for

“amounts billed” by Mr. Forfar’s providers in excess of Medicare

limits, which conflicts with the “no person is liable” language of

these statutes. Wal-Mart does not assert statutory ambiguity,

relying instead on the plain language.

¶ 54 Wal-Mart cites no authority applying conflict preemption to

either statute, nor have we found such authority. And in any event,

22 the plain language of these statutes does not support Wal-Mart’s

interpretation.

¶ 55 Looking first at 42 U.S.C. § 1395u(b)(18)(B), Wal-Mart does not

cite authority, nor have we found any, applying the “no person

liable” language to tortfeasors. But even if this language could be

applied to Wal-Mart, it would limit liability only for amounts billed

by practitioners: a “practitioner described in subparagraph (C) . .. .

may not bill . .. . for any service described in subparagraph (A),

except for deductible and coinsurance amounts applicable under

this part.” 42 U.S.C. § 1395u(b)(18)(B); see Clemons v. Quest

Diagnostics, Inc., No. 99 C 6122, 2000 WL 950291, at *3 (N.D. Ill.

June 6, 2000) (“Subparagraph (B) limits the paragraph’s

applicability to the services described in subparagraph (A), which by

its terms applies only to services furnished by a practitioner

described in subparagraph (C).”).

¶ 56 Wal-Mart has not been billed for any of Mr. Forfar’s medical

services by his providers, Medicare, or anyone else. Rather, and

consistent with the collateral source rule, the jury awarded Mr.

Forfar the reasonable value of their services. And it did so without

having seen any of the providers’ bills.

23 ¶ 57 Turning to 42 U.S.C. § 1395w-4(g)(1)(A)(ii), this section

prohibits a nonparticipating physician or nonparticipating supplier

or other person (as defined in § 1395u(i)(2)) from billing a

beneficiary for an amount that exceeds a statutorily defined

“limiting charge.” See White v. Jubitz Corp., 219 P.3d 566, 575 (Or.

2009). Again, Wal-Mart cites no authority, nor have we found any,

applying this prohibition to a tortfeasor. Given that the subject line

of this subsection is “[l]imitation on beneficiary liability,” 42 U.S.C.

§ 1395w-4(g) (emphasis added), this lack of authority is

unsurprising. See Larson v. Sinclair Transp. Co., 2012 CO 36, ¶ 8

(“We may also consider the title of the statute and any

accompanying statement of legislative purpose.”).

¶ 58 But even if the “no person is liable” language in 42 U.S.C.

§ 1395w-4(g)(1)(A)(ii) could apply to a tortfeasor such as Wal-Mart,

this section only precludes liability “for payment of any amounts

billed.” Again, no amounts have been billed to Wal-Mart.

¶ 59 In sum, we conclude that the Medicare statutes relied on by

Wal-Mart do not preempt Colorado law holding it liable for the

reasonable value of Mr. Forfar’s medical services.

24 IV. Attorney Fees

¶ 60 Mr. Forfar requests appellate attorney fees under section

13-17-102(2), C.R.S. 2017, because Wal-Mart’s appeal lacked

substantial justification. But the issues presented by Wal-Mart

were novel, supported by some out-of-state authority, and thus “not

wholly devoid of legal merit or justification.” Tidwell v. Bevan

Props., Ltd., 262 P.3d 964, 969 (Colo. App. 2011). For these

reasons, we exercise our discretion and decline to award attorney

fees.

V. Conclusion

¶ 61 The judgment is affirmed.

JUDGE FOX and JUDGE MÁRQUEZ concur.

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