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

                               

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                                      

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, 

 (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, 

 (Colo.

 1996) (quoting Kistler v. Halsey, 

, 

 (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, 

.

  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, 

, 

 (1960). And to

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

  evidence of their reasonable value.” 

¶ 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.

  

 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); 

 (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); 

(c) (2017); 

 (2017); 

(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., 

 (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, 

.



  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.

  

  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., 

 (“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, 

 (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, 

. 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., 

  (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, 

 (Ohio 2006))), aff’d, 

.

¶ 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.,

  

 (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, 

 (“[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, 

, at

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

  

 (D.N.M. 2006)); see Bynum v. Magno,

  

 (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, 

 (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, 

, 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, 

  (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.

  

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

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

  

, 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.” 

¶ 38   And in Berg v. United States, 

 (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, 

, 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, 

.

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

  Gardenswartz, 

. 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.” 

. 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.” 

.

¶ 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.’” 

 (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.” 

 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, 

.

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

  review. Kohn v. Burlington N. & Santa Fe R.R., 

  (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. 

¶ 49   Congressional intent to preempt state law may be explicitly

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

  

 (Colo. 1994). Even absent such explicit


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

  federal law. 

 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.’” 

  (footnote omitted) (quoting Hines v. Davidowitz, 

  (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, 

 (Colo. 2002) (quoting

  Maryland v. Louisiana, 

 (1981)). In other words,

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

  anticipated that state and federal law will peaceably coexist.” 

  (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, 

, 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.


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¶ 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., 

 (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., 

  (“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.




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                              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., 

 (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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