Chapter 12 - § 12.5 • REMEDIES

• Jurisdiction: Colorado

§ 12.5 • REMEDIES

The damages remedy of the CCPA¹⁰¹ provides that, except in a class action or a case brought for violation of C.R.S. § 6-1-709 (concerning sales of manufactured homes),¹⁰² a defendant who is found to have engaged in or caused another to engage in a deceptive trade practice will be liable for: actual damages,¹⁰³ $500,¹⁰⁴ or treble damages,¹⁰⁵ whichever is greater.¹⁰⁶

Treble damages are only available if the plaintiff establishes by clear and convincing evidence that the defendant engaged in bad faith conduct.¹⁰⁷ "'Bad faith conduct' means fraudulent, willful, knowing, or intentional conduct that causes injuries, damages, or losses."¹⁰⁸ Generally, the court need not instruct the jury regarding treble damages.¹⁰⁹ Indeed, though not yet decided by an appellate court, informing the jury of the potential treble damages award may constitute error.¹¹⁰ The treble damages provision has withstood constitutional challenge.¹¹¹

The plaintiff may also seek punitive damages,¹¹² but may not be awarded both treble and punitive damages.¹¹³ In Colorado, punitive damage awards are governed by statute.¹¹⁴ The statute provides that in a civil action "in which damages are assessed by a jury for a wrong done to the person or to personal or real property" and the injury is accompanied by circumstances of fraud, malice, or willful and wanton conduct, the jury may award reasonable exemplary damages.¹¹⁵ Exemplary damages may only be awarded when the party asserting the claim proves, beyond a reasonable doubt, "the commission of a wrong under the circumstances set forth" in the punitive damages statute.¹¹⁶ Generally, the amount of exemplary damages cannot exceed the amount of the actual damages awarded to the injured party.¹¹⁷ However, exemplary damages may be trebled if, while the action is pending, the defendant: (1) continues or repeats the behavior that is the subject of the claim in a willful and wanton manner; or (2) acts in a willful and wanton manner that further aggravates the plaintiff's damages when the defendant knows or should know that his or her action would produce aggravation.¹¹⁸

Note that C.R.S. § 13-21-102(1.5)(a) provides:

A claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures pursuant to Rule 26 of the Colorado Rules of Civil Procedure and the plaintiff establishes prima facie proof of a triable issue. After the plaintiff establishes the existence of a triable issue of exemplary damages, the court may, in its discretion, allow additional discovery on the issue of exemplary damages as the court deems appropriate.

The successful plaintiff can also recover reasonable attorney fees and the costs of the action as determined by the court.¹¹⁹ On the other hand, if a court concludes that an action brought under the CCPA is groundless and in bad faith or for the purpose of harassment, the plaintiff is liable to the defendant for the costs of the action, together with reasonable attorney fees as determined by the court.¹²⁰

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Notes:

^[101] C.R.S. § 6-1-113; Friedman v. Dollar Thrifty Auto. Grp., Inc., No. 12-CV-02432-WYD, 2015 WL 4036319 (D. Colo. July 1, 2015) ("[A] class action for damages under the CCPA is barred.").

^[102] C.R.S. § 6-1-113(2.5) states that in the case of a violation of C.R.S. § 6-1-709, in addition to interest, costs of the action, and reasonable attorney fees, the prevailing party is...