The Current Landscape for Colorado Non-Economic Damages Caps

The Colorado General Assembly has implemented strict damages caps on non-economic damages. Let’s start with the basics. Non-economic damages are claimed in almost every personal injury and wrongful death claim. In addition to claiming damages for economic losses and permanent impairment, a claimant may ask to be compensated for non-economic damages which includes damages for pain and suffering, emotional distress, inconvenience, and frustration caused by the injury or wrongful death. Non-economic damages are difficult to quantify and will be different case-by-case.

The caps for non-economic damages applying to personal injury claims are laid out in C.R.S. § 13-21-102.5. Although the limit expressed in the statute is $250,000, the Colorado Secretary of State adjusts damages caps based on inflation rates. The current caps can be found here:

The current non-economic damages cap for claims accruing on or after January 1, 2022 are $642,180. However, if the court finds justification by clear-and-convincing evidence that greater non-economic damages are warranted, damages for non-economic losses may be increased, but cannot exceed $1,284,370. Again, this limitation applies for claims accruing on or after January 1, 2022. The certificate also publishes the damages caps for claims accruing before January 1, 2022.

Specific rules apply to limitations on non-economic damages caps for claims resulting from wrongful death. C.R.S. § 13-21-203(1) limits damages resulting from wrongful death. For claims accruing on or after January 1, 2022, the current non-economic damages cap is $598,350.  Non-economic damages in wrongful death claims include grief, loss of companionship, pain and suffering, and emotional stress. These caps apply per claim basis rather than on a per plaintiff basis. This means that if three heirs bring a wrongful death claim, the damages cap applies to all three heirs jointly. Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (2008).

Felonious killing will lift the damages cap on non-economic damages. Wrongful death damages caps do not apply if the death occurs as a result of a “felonious killing.”  C.R.S. § 13-21-203(1)(a).  A criminal convictionis not necessaryto establish a felonious killing. Under C.R.S. § 15-11-803(7), notwithstanding the disposition of a criminal proceeding, an interested person may petition the court to determine whether, by a preponderance of the evidence standard, each element of felonious killing of the decedent has been established.  See C.R.S. § 15-11-803(7)(b).

The wrongful death statute adopts the definition of “felonious killing” as defined in C.R.S. § 15-11-803. This statute is also known as the “slayer statute.” “Felonious killing” is defined as the killing of the decedent by an individual who has committed the crime of murder in the first or second degree or manslaughter as said crimes are defined in sections 18-3-102 to 18-3-104. If the Court finds that a “felonious killing” has occurred, then the claimant may be awarded unlimited non-economic damages.

Special rules on the limitation of damages arise if the injury or death occurred as a result of medical malpractice. If the injury or death arises from the negligence of a “Health-care institution” or “health-care professional” as those terms are defined in C.R.S. 13-64-202, then the limitation on non-economic damages is $300,000. 

Noneconomic loss limitations are not presented to a jury. In other words, the jury does not know while deciding a case that whatever damages they enter for non-economic losses may be subject to a post-trial motion limiting the damage award. Instead, the court applies the limitation post-trial after receiving the verdict and before entering the judgment.

Please contact Hailey | Hart if you have questions about your non-economic damages claims. We are here to help.  

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