Chapter 11 - § 11.5 RECOVERY OF THE SOLATIUM AMOUNT UNDER C.R.S. § 13-21-203.5

• Jurisdiction: Colorado

§ 11.5 RECOVERY OF THE SOLATIUM AMOUNT UNDER C.R.S. § 13-21-203.5

§ 11.5.1 Applicability of the Comparative Negligence Statute to Recovery of Solatium Amount

In Dewey v. Hardy, 917 P.2d 305 (Colo. App. 1995), one of the issues the court addressed was the application of comparative fault principles to the recovery of damages under Colorado's new solatium statute, C.R.S. § 13-21-203.5 (Supp. 1994). The plaintiff, William Dewey, brought a wrongful death action against the defendants, Charlene and William Hardy, for the wrongful death of his daughter. Before the filing of the action, the decedent's mother, who was also her custodial parent, settled her claim for wrongful death. The plaintiff was not involved in that settlement, and the decedent's mother was not a party to this suit. After completion of discovery, the plaintiff moved to amend his claim for wrongful death to recover a solatium amount of $50,000 pursuant to C.R.S. § 13-21-203.5. The plaintiff's motion to elect recovery of a solatium amount was granted, and the trial revolved around the issue of the defendants' liability. Before trial, the defendants challenged the constitutionality of the solatium statute. The trial court interpreted the solatium statute to limit the issue in the case to the defendants' liability, and no evidence was presented regarding damages. The jury found the defendants 65 percent at fault for the accident resulting in the decedent's death and the decedent 35 percent at fault. The trial court denied the defendants' motion to reduce the $50,000 damage award in proportion to the amount of negligence attributable to the decedent in accordance with the comparative fault statute, C.R.S. § 13-21-111. However, the trial court did reduce the plaintiff's solatium award by $25,000 because it felt that the decedent's mother had a right to 50 percent of the solatium award. The defendants appealed the jury verdict in favor of the plaintiff, and the plaintiff cross-appealed the post-verdict reduction of his damages.

The court rejected the defendants' argument that the trial court erred by refusing to reduce the $50,000 solatium award by the amount of negligence attributable to the decedent pursuant to the comparative fault statute. The trial court had required a jury verdict finding the defendants at least 51 percent at fault in order for the plaintiff to recover a solatium award. The defendants argued that by requiring a finding of at least 51 percent of fault in order to award solatium...