Introduction and concept of “One Cause of Action” for Colorado Wrongful Death Cases
This blog will discuss the potential damages available to a Plaintiff Spouse/Family in a wrongful death action in Colorado. It should be noted at the outset that for the first year after death, the surviving spouse has the sole right to bring a wrongful death claim on his/her behalf as well as the behalf of “heirs” or a “designated beneficiary,” with limited exceptions. This means that a spouse Plaintiff in the first year seeks recovery not only for themselves individually, but also for a decedent’s heirs or designated beneficiary. It is crucial to remember this, as judgments or pre-litigation settlements in wrongful death actions must be apportioned according to C.R.S. § 13-21-201(2) and C.R.S. § 15-11-102 (please see discussion below). Once recovery is had by a spouse Plaintiff, he/she will be expected to distribute the proceeds according to C.R.S. § 13-21-201(2) and C.R.S. § 15-11-102, and the attorney or insurance company in possession of the funds may distribute the entire award to the surviving spouse. Neither the attorney nor the insurance company is responsible for overseeing the distribution.
In the second year after death, the spouse, heirs, or designated beneficiary may commence a suit, either separately or together. The parents of a decedent who was not married, did not have children, and did not have a designated beneficiary may also file a wrongful death claim in the second year. Additional considerations may apply to filings that are made in the second year. Please consult C.R.S. § 13-21-201(1)(b)(II). The same rule regarding distribution of the judgment applies to awards received by parties that file in the second year after death (i.e. the surviving spouse is still entitled to share in the award). The only exception to the rule regarding distribution applies to parents of unmarried and childless decedents who are “divorced, separated, or living apart,” in which case the parents may file a motion prior to trial requesting that the Court fairly apportion the proceeds.
As briefly mentioned previously, any judgment or pre-litigation settlement received by the plaintiff spouse or heirs/beneficiary of a decedent must be shared according to statute. “…The judgment obtained in an action under this section shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided according to said statute of descent and distribution.” It appears that this remains true whether or not the decedent had a will. Please consult C.R.S. § 15-11-102 and the applicable Cost of Living Adjustment table for further information on intestate distribution.
Economic damages are based on funeral expenses as well as what a wrongful death plaintiff and all those whom plaintiff represents “might reasonably have expected to receive from a decedent had he/she lived.” This latter figure is based on the:
[A]ge, health, life expectancy of the decedent; the age, health, and life-expectancy of the plaintiff (and all those plaintiff represents); the decedent’s industriousness, ability to earn money, willingness to assist the plaintiff (and those plaintiff represents) and the nature of the relationship between decedent and plaintiff (and those plaintiff represents).
As part of the economic damages consideration, Social Security benefits received as a result of a decedent’s employment are not subject to the “Collateral Source Rule” under C.R.S. § 13-21-111.6. The “Collateral Source Rule” states that damages recovered by a Plaintiff for death or injury to person or property must be reduced by the amount by which a Plaintiff or their estate/PR “has been or will be wholly or partially indemnified or compensated for the loss by another person, corporation, insurance company, or fund in relation to the injury, damage, or death sustained,” with certain exceptions. Social Security benefits received by widows are received “as a result of decedent’s contracts for hire” and are not set off against recovery by widows from third-party tortfeasors. Combined Communications Corp., Inc. v. Public Service Co. Of Colorado, 865 P.2d 893 (Colo. Ct. App. 1993)
Noneconomic losses includes past and future “grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress a plaintiff (and all those plaintiff represents)” has experienced and will experience. Under C.R.S. § 13-21-203(1)(a), the limit for noneconomic damages is $250,000.00, adjusted for inflation as allowed by C.R.S. § 13-21-203.7. As of January 13, 2015, the adjusted cap is $436,070.00. The Colorado Supreme Court has ruled that this cap applies on a “per-claim” basis, and cannot be multiplied by the number of defendants.
However, this damages cap does not apply if the death at issue occurred as the result of a “felonious killing,” which is defined under the Colorado Probate Code at C.R.S. § 15-11-803(1)(b). A felonious killing, “except as provided in subsection (7) [of C.R.S. § 15-11-803] is the killing of the decedent by any 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” as the crimes are defined in C.R.S. § 18-3-102 to C.R.S. § 18-3-104.
C.R.S. § 15-11-803(7)(b) states that:
Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of the evidence standard, each of the elements of a felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent’s killer for purposes of this section.
The Colorado Court of Appeals in Estate of Wright ex rel Wright v. United Services Auto. Ass’n has interpreted Subsection (7) to mean that a court can make such a determination “even where the person was acquitted or was convicted of a lesser offense, or where no criminal proceeding was ever initiated.” In other words, a court can make a civil finding that the tortfeasor committed criminal manslaughter, as was the case in Estate of Wright, upon proof of the following elements: that the tortfeasor’s conduct “caused the death of another and that the tortfeasor (1) consciously disregarded (2) a substantial and (3) unjustifiable risk that he or she would cause the death of another.” The Estate of Wright Court also specifically rejected the argument from USAA that the tortfeasor must have at least been charged with one of the enumerated crimes before the conduct could be considered “felonious” for purposes of the statutory cap and also confirmed that manslaughter could be accomplished with a motor vehicle.
Exemplary damages are permitted when the death “is attended by circumstances of fraud, malice, or willful and wanton conduct.” C.R.S. § 13-21-102(1)(b) defines “willful and wanton conduct” as “conduct purposefully committed which the actor realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others…” Pursuant to C.R.S. § 13-21-203(3)(c), exemplary damages cannot be included in the initial complaint, and may only be added by amendment and approval of the trial court after 60 days has passed “following the exchange of initial disclosures…”
The Colorado Wrongful Death Act provides for a “flat” solatium award of $50,000.00, in lieu of noneconomic damages. This award is adjusted for inflation just like the noneconomic damages cap under C.R.S. § 13-21-203.7, and is now valued at $87,210.00. If a wrongful death plaintiff accepts a solatium award, in lieu of noneconomic damages, they need to only prove liability and not the extent of their noneconomic damages.
Interest on Damages
C.R.S. § 13-21-101 allows for pre-judgment interest at the rate of 9% on “damages” for personal injuries “whether such injury has resulted fatally or otherwise” and it is “lawful for the plaintiff to claim interest on the damages claimed from the date the action accrued,” or here, the date of death:
Loss accrues in wrongful death actions at the time of death. See Barnhill v. Public Service Co., 649 P.2d 716 (Colo.App.1982), aff’d, 690 P.2d 1248 (Colo.1984). Thus, the award of prejudgment interest on such damages from that time of accrual is appropriate. Section 13-21-101(1), C.R.S. (1987 Repl.Vol. 6A); Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo.App.1992).
Combined Commc’ns Corp. v. Pub. Serv. Co. of Colorado, 865 P.2d 893, 901 (Colo. App. 1993)
We note that while the Combined Communications Corp., Inc. case discussed C.R.S. § 13-21-101 in relation to economic damages only, the statute does not restrict the application of pre-judgment interest to economic damages.
If our Colorado Wrongful Death attorneys might be able to assess your case, please call us for a free telephone evaluation to see if we may able to assist you with your matter at 303-688-3045!
C.R.S. § 13-21-201(1)(a) and (b)
See C.R.S. § 13-21-201(1)(a)(II)-(IV)
See Barnhart v. Am. Furniture Warehouse, 338 P.3d 1027 (Colo. Ct. App. 2013); Clint v. Stolworthy, 357 P.2d 649 (Colo. 1960); Mosley v. Prall, 408 P.2d 434 (Colo. 1965).
See Klancke v. Smith, 829 P.2d 464 (Colo. Ct. App. 1991)
C.R.S. § 13-21-201(1)(b)(I)
C.R.S. § 13-21-201(1)(c)
C.R.S. § 13-21-201(2); Steedle v. Sereff, 167 P.3d 135 (Colo. 2007)
See C.R.S. § 13-21-201(1)(c)(I)
C.R.S. § 13-21-201(2)
CJI-Civ. 10:3 (2014)
See Colorado Secretary of State Adjusted Limitation on Damages Certificate, available at http://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.
Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008)
53 P.3d 683, 686 (Colo. Ct. App. 2001).
Id. citing People v. Hall, 999 P.2d 207 (Colo. 2000)
53 P.3d at 685.
53 P.3d at 686.
C.R.S. § 13-21-203(3)(a)
C.R.S. § 13-21-203.5
See Colorado Secretary of State Adjusted Limitation on Damages Certificate, available at http://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf
See BG’s, Inc.v. Gross, 23 P.3d 691, 693 n.5 (noting that solatium option eliminates the need to prove noneconomic damages and that wrongful death claimaint ‘presented no evidence of damages of any kind.’)