FILED

United States Court of Appeals

Tenth Circuit

March 10, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANE DAVID,

Plaintiff - Appellant,

v.

SIRIUS COMPUTER SOLUTIONS,

INC.,

Defendant - Appellee.

No. 14-1125

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:11-CV-02030-RPM)

Danielle C. Jefferis (Darold W. Killmer, with her on the briefs), Killmer, Lane &

Newman, LLP, Denver, Colorado, for Plaintiff-Appellant.

Ian S. Speir of Lewis Roca Rothgerber, LLP, Colorado Springs, Colorado (David

M. Hyams of Lewis Roca Rothgerber, LLP, Denver, Colorado, and William D.

Nelson of Lewis Roca Rothgerber, LLP, Colorado Springs, Colorado, with him on

the brief), for Defendant-Appellee.

Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.

GORSUCH, Circuit Judge.

Diane David sold computer equipment and she was good at it. She had a

lucrative nationwide client base. No surprise, then, that Sirius Computer

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Solutions came knocking on her door, asking her to take a job selling its

equipment. The company promised Ms. David that she could continue to serve

her existing customers even after she went to work for Sirius. On this

understanding, Ms. David signed up. But soon enough Sirius backtracked,

refusing to allow Ms. David to conduct business with her outside clients. So Ms.

David sued, alleging that the company’s recruiting promises negligently

misrepresented the actual terms of employment — and that the company’s

misrepresentations took a toll on her both financially and emotionally. A jury

mostly agreed with Ms. David, returning a verdict for her on the negligent

misrepresentation claim and awarding damages of $231,665 in “economic losses

or injuries” but declining any damages for “noneconomic losses or injuries.” 

After trial, Ms. David filed a motion under § 13-21-101 of the Colorado

Revised Statutes, which guarantees prejudgment interest “[i]n all actions brought

to recover damages for personal injuries.” Because the jury found Ms. David

suffered only economic losses, the district court seemed to assume she had

suffered no “personal injur[y]” and denied her motion for prejudgment interest. 

And that’s the nub of the matter now before us. Ms. David argues that her suit

was brought to recover damages for a personal injury and that the district court

was wrong to equate personal injuries with noneconomic losses.

The statute’s plain language suggests Ms. David may have a point. It

focuses on whether the plaintiff “brought” an “action[]” to “recover damages for

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personal injuries.” And often enough in the law a “personal injury” is understood

to mean “[a]ny invasion of a personal right.” Black’s Law Dictionary 802 (Bryan

Garner ed., 8th ed. 2004). Indeed, in Colorado torts are classified as either

involving injuries to property or persons and “[a] tort which is not an injury to

property is” treated, by definition, as an injury to the person. Brooks v. Jackson,

813 P.2d 847, 848 (Colo. App. 1991) (quoting Mumford v. Wright, 55 P. 744, 746

(1898)). So the statute seems to focus our attention on the question whether the

plaintiff’s “action[]” was “brought” to recover “damages” for the invasion of a

right belonging to a person rather than for the violation of a property right. Very

much as happened here when Ms. David brought suit seeking damages for a

misrepresentation made to her, not for any damage to property personal or real. 

Nothing in the statute’s terms seems to require an inquiry into the particular type

of compensatory damages (economic or noneconomic) the jury eventually awards. 

And it’s surely the case that lawsuits aimed at vindicating “personal injuries” do

often wind up yielding “economic” damages. Take, for example, a defamatory

comment. Like a claim for misrepresentation it’s a personal injury under

Colorado law and yet it can, exactly as here, diminish a plaintiff’s earnings or

business prospects and so produce economic as well as noneconomic damages. 

See id. at 848-49.

Tending to confirm Ms. David’s understanding of the statutory text is the

fact the Colorado General Assembly has repeatedly demonstrated its ability and

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willingness to specify a more limited class of personal injuries or damages when

it wishes. In a nearby section, the legislature employed the term “physical

injury.” Colo. Rev. Stat. § 13-21-124. In several statutory provisions it used the

phrase “bodily injury.” See, e.g., id. §§ 13-21-107, -117.5, -124. The General

Assembly has distinguished as well between “economic” and “noneconomic loss

or injury.” See id. § 13-21-102.5. Yet the statute before us makes use of none of

these distinctions. It does not limit prejudgment interest to cases involving

physical injuries, bodily injuries, or noneconomic damages. Instead, it permits

interest in any action brought seeking compensation for a personal injury without

any apparent consideration to the nature of the compensatory damages the jury

happens to award. In light of so many other narrower choices it made in so many

other related statutes, the General Assembly’s decision to use comparatively

broad language here seems to take on an even more deliberate hue. See, e.g.,

Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1357 n.5 (2012) (explaining

that when Congress uses “different language” in different parts of the same

statute, we normally “assume[] different meanings were intended” (quoting Sosa

v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)) (internal quotation mark

omitted)). 

Another clue still points in the same direction. Ms. David’s interpretation

yields a comprehensive statutory structure providing prejudgment interest in tort

cases where compensatory damages are awarded. As we’ve seen, Colorado law

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distinguishes between personal and property torts. And under Ms. David’s

interpretation, § 13-21-101 provides for prejudgment interest in the former class

of cases while § 5-12-102 does so “[w]hen money or property has been

wrongfully withheld.” See, e.g., Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022, 1028

(Colo. 2011). One can easily see, as well, why the law might permit prejudgment

interest in all such cases. Compensatory damages, whether of the economic or

noneconomic stripe, are designed to make the injured party whole. Prejudgment

interest shares this same function, seeking to ensure tort victims are compensated

for the loss associated with the delay in receiving payment occasioned by court

proceedings. See, e.g., Allstate Ins. Co. v. Starke, 797 P.2d 14, 19 (Colo. 1990). 

Meanwhile, Sirius’s contrary interpretation introduces a peculiar gap in the

statutory scheme. Under its interpretation, prejudgment interest would be

available in most tort cases — but not for the narrow class of cases that involve

personal injuries resulting only in economic damages. Yet Sirius has offered no

evidence suggesting that’s a gap the General Assembly intended. To be sure, the

General Assembly has capped noneconomic damages, perhaps out of skepticism

that such things can be easily measured and perhaps worried that they may be

more easily exaggerated than economic losses. Colo. Rev. Stat. § 13-21-102.5. 

But Sirius cites no comparable evidence suggesting a lack of legislative solicitude

for prejudgment interest in cases involving economic damages or any reason at all

why the law should take that incongruous shape. In these circumstances it seems

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to us Ms. David’s interpretation has the better of it when it comes to taking in

“the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519

U.S. 337, 341 (1997).

Finally, precedent supports Ms. David’s position, or at least doesn’t compel

a different result. While the Colorado Supreme Court hasn’t squarely addressed

the issue we face, in Morris v. Goodwin, 185 P.3d 777 (Colo. 2008), the court

didn’t seem to have any problem applying § 13-21-101 to both economic and

noneconomic damages when all the damages stemmed from a personal injury. Id.

at 778, 780. Sirius says its contrary position finds support in Schuessler v.

Wolter, 310 P.3d 151 (Colo. App. 2012), and Antolovich v. Brown Group Retail,

Inc., 183 P.3d 582 (Colo. App. 2007). But we don’t see much help for the

company in those Colorado Court of Appeals decisions — neither of which is

binding on us in any event. The Schuessler court did decline to award

prejudgment interest under § 13-21-101. But that wasn’t surprising because the

damages there resulted from the defendant’s wrongful withholding of money or

property (insurance benefits) — just the sort of injury that calls for prejudgment

interest under § 5-12-102. See Schuessler, 310 P.3d at 157. In Antolovich, the

court noted that the plaintiff’s personal injury resulted from “intangible,

subjective, noneconomic losses, including inconvenience and loss of peace of

mind” and proceeded to deem prejudgment interest appropriate under § 13-21-

101. 183 P.3d at 611. All that, too, is entirely consistent with our decision today. 

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After all, acknowledging that personal injuries can give rise to noneconomic

losses, as Antolovich did, does nothing to undermine the established fact that

personal injuries can also give rise to economic losses, see, e.g., Brooks, 813 P.2d

at 848-89.

The case is remanded for an award of prejudgment interest.

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