Colorado’s Damages Caps
By: Chad Lieberman, Esq.
- General Civil actions
The current non-economic cap in a civil action for injuries is $468,010, which may be increased by the court upon clear and convincing evidence to a maximum of $936,030. C.R.S. 13-21-102.5(3)(a). This cap applies to the liability share of each defendant and does not act as cap on the total amount a plaintiff may recover. Prior courts have allowed the cap to be exceeded when analyzed on a case-by-case basis. The court’s reasoning in those prior cases was primarily based on the extent of the plaintiff’s proven “permanent impairment.”
Section 5 of the statute provides that “[n]othing in this section shall be construed to limit the recovery of compensatory damages for physical impairment or disfigurement.” . C.R.S. 13-21-102.5(5). This is often referred to as the permanent impairment exception to the statutory cap. Damages properly categorized as “permanent physical impairment” are not subject to the statutory cap. There is no widely accepted definition of permanent physical impairment in Colorado.
- Wrongful Death Actions
Wrongful death cases are a different animal. The cap on non-economic damages associated with the grief, solace and loss of a loved one in a wrongful death action is $436,070. C.R.S. 13-21-203. The cap under this section applies on a per-claim basis and not a per-defendant basis. The cap refers to the plaintiff’s total recovery. The statute limits a wrongful death lawsuit to a single claim regardless of the number of claimants. Therefore, the cap applies collectively to all claimants in the lawsuit and not an individual claimant basis.
This cap will not apply if the death constitutes a felonious killing. A felonious is defined as “the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter.” C.R.S. 15-11-803(1)(b). Unlike general civil actions (above), the wrongful death cap can ONLY be increased in this capacity and cannot be increased by “clear and convincing evidence.” Moreover, there is no cap for damages related to the heirs’ claims for burial expenses and net pecuniary losses (money the decedent would have earned and given to his/her heirs).
Wrongful death cases require proof that the heirs experienced an emotional loss (sadness and grief). In a case where the heir was estranged from the decedent and had no emotional loss, that heir may make a solatium clam. This claim is made in the alternative to proving emotional loss and is capped by the statute at $87,210. C.R.S. 13-21-203.5.
- Exemplary (Punitive) Damages
By statute, a plaintiff may not claim exemplary (punitive) damages in his complaint. A plaintiff may move only after the exchange of initial disclosures to add a claim for exemplary damages. The motion must provide prima facie proof of a triable issue (a very low standard – courts generally allow the amendment). The statute provides that “[i]n all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party.” C.R.S. 13-21-102.
- The Current Cap Values
The statutes outline the base values for the caps: C.R.S. 13-21-102.5, C.R.S. 13-21-203, C.R.S. 13-21-203.5
The Colorado Secretary of State adjusts the caps per inflation: CLICK HERE