Chapter 11 - § 11.1 APPLICATION OF THE STATUTORY DAMAGES CAP CONTAINED IN C.R.S. § 13-21-203(1)

• Jurisdiction: Colorado

§ 11.1 APPLICATION OF THE STATUTORY DAMAGES CAP CONTAINED IN C.R.S. § 13-21-203(1)

A fundamental feature of Colorado's Wrongful Death Act is the limitation on damages imposed by C.R.S. § 13-21-203(1). These restrictions are reviewed in some detail in § 2.5. However, it would be helpful to review these parameters again before discussing several cases that have applied them.

First, the statute imposes a limitation on damages in cases in which "the decedent left neither a widow, a widower, minor children, nor dependent mother or father." In such a case, "the damages recoverable in any such action shall not exceed the limitations for noneconomic loss or injury set forth in section 12-21-102.5." The term "damages recoverable" in this section of the statute includes all damages, both economic and non-economic. The current cap for all such damages, adjusted for inflation, is $436,070. Thus, if the decedent is an unmarried minor child, with no heirs, the total damages recoverable are currently limited to $436,070. This limitation also applies if the decedent is an unmarried adult, who has neither minor children nor a dependent parent.

Second, if the decedent is survived by a spouse, minor children, or a dependent parent, then there is no limit on the pecuniary losses that may be recovered. However, any non-economic damages are subject to the current statutory cap of $436,070. This conclusion is derived by reading the first sentence of § 13-21-203(1)(a) in conjunction with the last sentence. The first sentence states that in an action under § 13-21-202, "the jury may give such damages as they may deem fair and just . . . including damages for noneconomic loss or injury as defined in section 13-21-102.5 and subject to the limitations of this section." The last sentence states, in part, "[n]ot withstanding 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." Thus, the jury may award any economic or non-economic damages deemed to be fair and just, but any such non-economic damages are subject to the current statutory cap of $436,070.

Third, if the act or neglect causing the decedent's death constitutes a felonious killing, then there is no limitation on the recovery of non-economic damages. This felonious killing exception applies to both categories of cases discussed above. Thus, if a felonious killing occurs, there is no limitation on the recovery of non-economic damages, whether or not the decedent was survived by a spouse, minor children or a dependent parent. What is not clear from the statute is whether the felonious killing exception applies to defendants who did not actually commit the felonious killing but who are only vicariously liable.

Finally, pursuant to C.R.S. § 13-21-203(1)(b), in any medical malpractice action, recoverable non-economic damages are limited by C.R.S. § 13-64-302. The current limitation on such damages is $300,000.

§ 11.1.1 Statutory Cap on Recovery of Non-Economic Damages Applies on a Per Decedent Basis, Even Though There Are Multiple Plaintiffs

C.R.S. § 13-21-203(1) imposes a cap of $250,000 on recovery of damages for non-economic loss in a wrongful death case.¹ In Mitson v. AG Engineering & Development Co., 835 F. Supp. 572 (D. Colo. 1993), the court held that non-economic losses were limited to $250,000 for the death of a single decedent, even though there were multiple plaintiffs. The plaintiffs in Mitson were a widow and her two daughters. Each plaintiff claimed non-economic damages of $250,000 for the death of Leandro Salazar, who died in a farm accident on April 23, 1992. The defendants filed a motion asking the court to determine that the $250,000 statutory cap for non-economic damages applied to wrongful death plaintiffs on a collective rather than an individual basis. The court granted this motion.

The court pointed out that C.R.S. § 13-21-203(1) is "silent as to whether this statutory cap is applicable jointly or severally to multiple plaintiffs." Id. at 573. To construe the statute, the court looked to the legislative intent. The court noted that while neither "§ 13-21-203(1) nor § 13-21-102.5 distinguish [sic] the amount of noneconomic recovery for multiple versus single plaintiffs," the statutes "read together cap the noneconomic recovery in the one civil action." Id. The court stated that if the legislature had intended to make the cap applicable to each individual plaintiff, "it could have explicitly said so." Id. This interpretation of the statute was consistent with the purpose of the limitation on non-economic damages, which is to protect individual defendants from having to pay excessive amounts for non-economic damages. Id. at 574. The court also found that the legislative history of the statute supported its interpretation. Id. Therefore, the court concluded that the Mitson family "is collectively limited to recovering the statutory cap of $250,000," and the "number of plaintiffs bringing this single wrongful death action does not increase the statutory cap set forth in § 13-21-203(1), C.R.S." Id.

§ 11.1.2 Statutory Cap on Recovery of Non-Economic Damages Applies on a Per Claim or Per Decedent Basis, Not on a Per Defendant Basis

In Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008), the court held that the statutory cap on non-economic damages contained in C.R.S. § 13-21-203(1) applies on a per-claim, not a per-defendant, basis. The plaintiff, Leslie Lanahan, brought a wrongful death action against the Chi Psi Fraternity and a number of its members, a total of nine separate defendants, because of a hazing incident that caused her son's death. The fraternity members had forced Lanahan's son to drink until he was dangerously intoxicated and then failed to obtain medical assistance. Several of them had treated his incapacity as a joke. Lanahan sought economic and non-economic damages for her son's death. One of the defendants, Patrick Wall, requested a determination of law that the total non-economic damages recoverable from all defendants was the then-statutory cap of $341,250. The trial court granted this motion, and Lanahan sought direct review of the issue by the Colorado Supreme Court.

The supreme court concluded that "the plain language of the noneconomic damages cap in section 13-21-203 applies on a per claim basis." Id. at 99. In addressing this issue, the court briefly reviewed the history of the Wrongful Death Act (WDA), C.R.S...