The Colorado Wrongful Death Act
| Publication year | 2011 |
| Pages | 63 |
2011, May, Pg. 63. The Colorado Wrongful Death Act
May 2011
Vol. 40, No. 5 [Page63]
Tort and Insurance Law articles provide information concerning current tort law issues and insurance issues addressedby practitioners representing either plaintiffs or defendants in tort cases. They also address issues of insurance coverage, regulation, and bad faith.
Coordinating Editor
William P. Godsman of the Law Office of William Godsman, Denver-(303) 455-6900, wgodsman@qwestoffice.net
About the Author
Anthony J. Viorst is a shareholder in The Viorst Law Offices, P.C., where his practice emphasizes plaintiffs' personal injury, medical malpractice, and appellate practice. He is an active member of the Colorado Trial Lawyers Association and the Colorado Bar Association, where he currently serves as the Chair of The Colorado Lawyer Board.
This article discusses the fundamental aspects of a claim brought under Colorado's Wrongful Death Act, including the permissible claimants, the applicable time limits, and the Act's damages limitations.
Colorado common law subscribes to the maxim that "Actio personalis moritur cum persona," which means that a personal right of action dies with the person.(fn1) Thus, under the common law, there is no right of recovery against one who tortiously causes the death of another.(fn2) However, a statutory right of recovery exists in this state.
The Colorado Wrongful Death Act (Act)(fn3) was enacted in 1877.(fn4) It was modeled on Britain's "Lord Campbell's Act," which authorized an award of indemnity to the heirs of a person whose death resulted from a wrongful act.(fn5) Colorado's Act created a new cause of action.(fn6) The purpose of the statute is to protect the interests of those who, through no fault of their own, must bear the financial and emotional burden of the decedent's death.(fn7)
The provisions of the Act and related legislation impose many potential pitfalls, of which the personal injury practitioner should be aware. Those potential impediments are discussed in more detail below.
The Colorado Wrongful Death Act
In its present form, the Colorado Wrongful Death Act provides, as to liability and damages, in relevant part, as follows:
CRS § 13-21-202
When the death of a person is causedby a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.
CRS § 13-21-203(1)(a)
[I]n every such action the jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death, including damages for noneconomic loss or injury as defined in section 13-21-102.5 and subject to the limitations of this section and including within noneconomic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional stress, to the surviving parties who may be entitled to sue... . There shall be only one civil action under this part 2 for recovery of damages for the wrongful death of any one decedent. Notwithstanding anything in this section or in section 13-21-102.5 to the contrary, there shall be no recovery under this part 2 for noneconomic loss or injury in excess of two hundred fifty thousand dollars, unless the wrongful act, neglect, or default causing death constitutes a felonious killing... .
Wrongful Death Statute vs. Survival Statute
The Act should not be confused with Colorado's survival statute. The Act gives the claim to surviving family members or designated beneficiaries, for the damages sufferedby those persons.(fn8) In contrast, the survival statute(fn9) preserves the decedent's claim against the tortfeasor for the cognizable damages sufferedby the decedent, and the decedent's estate is the entity to bring the claim.(fn10) Under the survival statute, damages are limited to pecuniary losses sustained before the decedent's death, in the form of earnings and expenses.(fn11) The survival statute explicitly states that "[a]n action under this section shall not preclude an action for wrongful death," thus permitting two claims for the death of a victim. For example, a tortfeasor can be sued under both statutes when the deceased victim lingers for a period of time and incurs causally related medical expenses and wage loss before death.
The Statute of Limitations
The statute of limitations for wrongful death, like claims for other acts of negligence, is two years.(fn12) Before 1987, a wrongful death claim accrued on the date the plaintiffs discovered, or should have discovered, the alleged negligence resulting in death.(fn13) In 1987, this rule was changed. The rule was changed, in part, due to the anomalous possibility that a wrongful death claim could expire before the decedent passed away.(fn14) Now, the two-year statute of limitations begins to run on the date of the decedent's death.(fn15) The statute of limitations can extend past that date if the plaintiff is operating under a disability,(fn16) or where the defendant engages in fraudulent concealment of facts pertinent to the existence of a claim.(fn17)
Who May Bring a Wrongful Death Claim
The parties entitled to bring a wrongful death claim are listed in CRS § 13-21-201(1).(fn18) The parties entitled to bring a wrongful death lawsuit consist of the decedent's spouse, "heir or heirs," or "designated beneficiary."(fn19) In addition, potential claimants may include the surviving parents of an unmarried and childless decedent.(fn20)
The term "heir or heirs," as used in the Act, has been held to refer to lineal descendents.(fn21) Thus, the term does not apply to nieces or nephews,(fn22) siblings,(fn23) or adult adoptees.(fn24) The rationale for limiting heirs to lineal heirs, instead of to all persons who would be entitled to inherit, is that "collateral kindred, however remote, who would derive no pecuniary benefit from the continuance of the life of deceased" should not be entitled to benefit from his or her death.(fn25)
Similarly, the parents of a decedent are not entitled to file a wrongful death claim if the decedent had a spouse or a child, even when the decedent's spouse or child declines to do so.(fn26) Again, the rationale is that the parents of an unmarried and childless decedent are more likely to suffer death-related financial losses than are the parents of a decedent who is married or has...
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