Chapter 15 - § 15.1 • SURVIVAL OF ACTIONS

• Jurisdiction: Colorado

§ 15.1 • SURVIVAL OF ACTIONS

At common law, all rights of action in personam abated at death.¹ Courts of equity provided some relief from this rule prior to the passage of statutes liberalizing the common law rule.²

Accordingly, causes of action for injuries to the person did not survive in Colorado at common law. Suits could not be brought for personal injuries by or against representatives although Colorado long has permitted actions for wrongful death to be brought, for their personal benefit, by members of the immediate family.³ Under the present statute, all actions, except those for libel and slander, survive although there are limitations on the quantum of damages in certain cases.⁴ Although causes for redress for personal injuries now survive the death of either the wrongdoer or the wronged, in an action by or against a representative, the award for damages is limited to the loss of earnings and expenses incurred during the period prior to death. The award must not include any amount for pain, suffering, disfigurement, or for any element of loss of prospective profits or earnings after death. Punitive damages and penalties are forbidden.⁵ The statute specifically preserves the right of action by the members of the family for wrongful death, despite the fact that an action may be had by the representative arising from the same facts (see § 15.3). Any permissible action may be brought or continued by, or against, the personal representative.⁶ Where the action was against the decedent, the personal representative must be substituted as defendant; in addition, it is at least good practice for a claim to be protected against the estate in the probate proceedings. See § 15.4.

The action is deemed to have accrued at the same time it would have had the decedent survived. If the action is continued against the personal representative, a notice shall be served on the representative as in cases of original process. A claim is to be presented against the estate within the time allowed by law for presenting claims if there is to be collection of any judgment from the assets of the estate.⁷

In Currier v. Sutherland,⁸ the plaintiffs, who were injured in a vehicle accident, filed a timely complaint against the driver (who had died seven months before the action was filed). The statute of limitations ran four days after the plaintiffs filed their complaint. Subsequently, the plaintiffs amended their complaint to name the driver's estate. The trial court properly...