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. 

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. 
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 

¶ 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. 
2 

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. 
3 

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 
4 

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: 
5 

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 
6 

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); 
7 

 “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 
8 

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. 
9 

¶ 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. 
10 

¶ 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 
11 

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 
12 

[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 
13 

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))). 
14 

¶ 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. 
15 

¶ 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). 
16 

¶ 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 
17 

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, 
18 

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 
19 

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 
20 

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 
21 

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: 
22 

 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, 
23 

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. 
24 

¶ 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. 
25 

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.