Phathong et al v. Tesco Corporation (US)

Filing 177

ORDER DIRECTING CLERK TO ENTER JUDGMENT FOR PLAINTIFFS. The Clerk shall enter judgment as follows: 1. In favor of Plaintiff Von Phathong and against Defendant Tesco Corporation in the amount of $ 3,800,400 for compensatory and punitive damages and $ 483,248.96 in pre-judgment interest; 2. In favor of Plaintiff Jennifer Phathong and against Defendant Tesco Corporation in the amount of $ 67,500 for compensatory damages and $ 14,179.84 in prejudgment interest; 3. Post-judgment interest shall accrue at the applicable rate in accordance with 28 U.S.C. § 1961. By Judge William J. Martinez on 6/19/2012. (sahsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-00780-WJM-MJW
VON J. PHATHONG, and
JENNIFER D. PHATHONG,
Plaintiffs,
v.
TESCO CORPORATION (US),
Defendant.

ORDER DIRECTING CLERK TO ENTER JUDGMENT FOR PLAINTIFFS

Following a seven day trial, the jury returned a verdict in this matter on June 12,
2012. (ECF No. 175-10.) The jury found that Defendant had failed to meet its burden
of showing that Plaintiffs’ claims accrued prior to April 6, 2008. (Id. at 1.) The jury then
found in favor of Plaintiff Von Phathong on his negligence claim and awarded him the
following damages:
a.
b.
c.
d.

Non-Economic Damages:
Economic Damages:
Damages from Physical
Impairment or Disfigurement
Punitive Damages

$ 325,000
$ 1,906,000
$ 325,000
$ 1,500,000

(Id. at 2.) With regard to allocation of fault, the jury attributed 90% of the fault to
Defendant and 10% to non-party Encana Corporation. (Id.) The jury also found in
favor of Plaintiff Jennifer Phathong on her loss of consortium claim and awarded her
$75,000 in non-economic damages. (Id. at 3.)

Based on this verdict, the Court orders the Clerk to enter judgment in
accordance with the following.
A.

Allocation of Fault
As set forth above, the jury allocated 90% of the fault to Defendant and 10% to

non-party Encana. Colorado law provides that “no defendant shall be liable for an
amount greater than that represented by the degree or percentage of the negligence or
fault attributable to such defendant.” Colo. Rev. Stat. § 13-21-111.5(1). Therefore, the
Court must reduce by ten percent the amount awarded to Plaintiff for non-economic
damages, economic damages, and physical impairment or disfigurement. See Slack v.
Farmers Ins. Exchange, 5 P.3d 280, 283 (Colo. 2000). Because Jennifer Phathong’s
loss of consortium claim is derivative of Von Phathong’s negligence claim, the Court
must also reduce the damages awarded to Jennifer Phathong by ten percent. Id. at
287 (“the apportionment of fault for the loss of consortium must match the
apportionment of fault for the underlying injury.”). However, the amount awarded for
punitive damages is not reduced by the allocation of fault. Lira v. Davis, 832 P.2d 240,
243 (Colo. 1992).
Reduced in accordance with the jury’s apportionment of fault, the Court finds that
Plaintiff Von Phathong shall be awarded the following:
a.
b.
c.
d.

Non-economic damages:
Economic Damages:
Damages from Physical
Impairment or Disfigurement
Punitive Damages

$ 292,500
$ 1,715,400
$ 292,500
$ 1,500,000

Jennifer Phathong shall be awarded non-economic damages in the amount of $67,500.

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B.

Prejudgment Interest
Colorado law mandates that the Court award pre-judgment interest where, as

here, the Plaintiffs have so requested. Colo. Rev. Stat. § 13-21-101(1). The Colorado
pre-judgment interest statute provides that Plaintiffs are entitled to nine percent interest,
compounded annually, on all of their “damages”. Id. The Colorado Supreme Court has
interpreted Section 13-21-101 as allowing pre-judgment interest on all compensatory
damages, but not on punitive damages. Seaward Constr. Co. v. Bradley, 817 P.2d
971, 979 (Colo. 1991). Therefore, Plaintiffs are entitled to pre-judgment interest in the
jury’s award of economic damages1, physical impairment and disfigurement, and noneconomic damages. See Foster ex rel. Foster v. Phillips, 6 P.3d 791, 793 (Colo. App.
1999) (“Non-economic damages are still compensatory damages.”). The statute does
not differentiate between damages awarded for past or future losses and the Court
need not discount the pre-judgment interest simply because Plaintiffs’ expert already
accounted for inflation in her testimony regarding damages. See Mumford v. Hughes,
852 P.2d 1289, 1291 (Colo. App. 1993) (“the prejudgment interest statute does not
distinguish between past and future damage awards”); Cook v. Rockwell Intern. Corp.,
564 F.Supp.2d 1189, 1223 (D. Colo. 2008) (court does not discount pre-judgment
interest when expert already accounted for inflation). Accordingly, the Court must
award pre-judgment interest on Von Phathong’s damage award of $2,300,400 and
Jennifer Phathong’s damage award of $67,500.

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The Court must award pre-judgment interest on both past and future economic losses
found by the jury.

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The Court must next determine the date on which pre-judgment interest began to
accumulate. The Colorado statute mandates that pre-judgment interest be awarded
from either: (1) the date the case is filed; or (2) the date the claim accrued. Id.
Plaintiffs bear the burden of proof on the amount of damages to which they are
entitled, including pre-judgment interest. Buckley Power Co. v. State, 70 P.3d 547, 563
(Colo. App. 2002) (“A plaintiff bears the burden of proof on both the fact and the
amount of damages. Interest is a component of a damage award.”). The only finding
made by the jury with respect to the accrual of Plaintiffs’ claim was that Defendant had
not met its burden of showing that Plaintiffs’ claim accrued before April 6, 2008. (ECF
No. 175-10 at 1.) The jury made no finding with respect to an actual date on which
Plaintiffs’ claims accrued.
Although there was some testimony at trial about when Plaintiffs learned of the
retroactive nature of the sale of Defendant’s drilling operations to Turnkey2, that
testimony was not specific with respect to a date that such knowledge was acquired.
The testimony was focused on showing only that Plaintiffs learned of the retroactive
nature of the sale sometime after April 6, 2008 for the purposes of defeating
Defendant’s statute of limitations defense. The testimony was not sufficiently specific
to permit the Court to determine a particular date on which the Plaintiffs’ claims
accrued. Therefore, the Court finds that Plaintiffs have failed to meet their burden of
producing sufficient evidence to allow the Court to find a particular date upon which

2

It was the retroactive nature of this sale that caused Defendant to not be Von
Phathong’s statutory employer at the time of the accident and allowed Plaintiffs to bring this
action.

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their claims accrued for purposes of calculating pre-judgment interest.
Because Plaintiffs have failed to meet their burden of establishing a particular
date for accrual of their causes of action, the Court will award pre-judgment interest
from the date on which this action was commenced. Colo. Rev. Stat. § 13-21-101(1).
The record shows that this action was filed on April 6, 2010. (ECF No. 1.) The statute
provides that pre-judgment interest shall be awarded at a rate of nine percent,
compounded annually from the date such suit is filed. Colo. Rev. Stat. § 13-21-101(1).
The interest on Plaintiff Von Phathong’s compensatory damages of $2,300,400 for the
period from April 6, 2010 until the date of the entry of judgment3 at a rate of 9%
compounded annually is $ 483,248.96.4 The interest on Plaintiff Jennifer Phathong’s
compensatory damages of $67,500 at a rate of 9% compounded annually from the date
of April 6, 2010 until entry of judgment is $ 14,179,855.
C.

Post-judgment Interest
While pre-judgment interest is governed by Colorado law, Webco Indus., Inc. v.

Thermatool Corp., 278 F.3d 1120, 1134 (10th Cir. 2002), post-judgment interest on a

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Although the Colorado statute provides that pre-judgment interest shall continue to
accumulate until the judgment is satisfied, see Colo. Rev. Stat. § 13-21-101, this provision does
not apply in federal court because post-judgment interest is governed by 28 U.S.C. § 1961.
See Huffman v. Caterpillar Tractor Co., 645 F.Supp. 909, 911 (D. Colo. 1986).
4

This figure derives from the Court’s calculation that Von Phathong would accumulate
the following interest: $ 207,036.00 between April 6, 2010 and April 6, 2011; $ 225,669.24
between April 6, 2011 and April 6, 2012; and $ 50,5043.72 between April 6, 2012 and June 19,
2012 (75 days). The total of these figures is $ 483,248.96.
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This figure derives from the Court’s calculation that Jennifer Phathong would
accumulate the following interest: $ 6,075.00 between April 6, 2010 and April 6, 2011;
$6,621.75 between April 6, 2011 and April 6, 2012; and $ 1,483.10 between April 6, 2012 and
June 19, 2012 (75 days). The total of these figures is $ 14,179.85.

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federal court judgment is governed by 28 U.S.C. § 1961. United States v. Gaechter
Outdoor Advertising Inc., 221 F.3d 1353 (10th Cir. 2000). The rate of such interest is
“calculated from the date of the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as published by the Board of
Governors of the Federal Reserve System, for the calendar week preceding the date of
the judgment.” 28 U.S.C. § 1961(a). Accordingly, the Clerk shall award Plaintiffs postjudgment interest at the applicable rate.
D.

Conclusion
For the reasons set forth above, the Court ORDERS that the Clerk shall enter

judgment as follows:
1.

In favor of Plaintiff Von Phathong and against Defendant Tesco Corporation in
the amount of $ 3,800,400 for compensatory and punitive damages and $
483,248.96 in pre-judgment interest;

2.

In favor of Plaintiff Jennifer Phathong and against Defendant Tesco Corporation
in the amount of $ 67,500 for compensatory damages and $ 14,179.84 in prejudgment interest;

3.

Post-judgment interest shall accrue at the applicable rate in accordance with 28
U.S.C. § 1961.
Dated this 19th day of June, 2012.
BY THE COURT:

William J. Martínez
United States District Judge
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