Chapter 16 - § 16.2 • PERSONAL INJURY CATEGORIES OF DAMAGES
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§ 16.2 • PERSONAL INJURY CATEGORIES OF DAMAGES
Under Colorado law, there are four types of damages to which a personal injury plaintiff may be entitled: (1) economic, (2) non-economic, (3) impairment, and (4) exemplary.33 Colorado's Pattern Jury Instructions and associated verdict forms separately set forth these categories of damages.34 The rules and caps regarding each of these types of damages are set forth in turn below.35
Practice Pointer
Non-economic damages and exemplary damages are capped in Colorado. Economic and impairment damages are not capped.
§ 16.2.1—Economic
Under Colorado law, personal injury plaintiffs are entitled to recover their economic losses, which include past income loss and health care expenses, future loss of earning capacity, and future health care expenses. Colorado law does not impose any fixed limitation on the amount of economic damages to which a plaintiff is entitled.36 Each of these three categories are addressed in turn.
Past Income Loss and Medical Expenses
Past income or lost earnings are compensable forms of economic damages.37 Past medical expenses are similarly compensable to the extent that they are reasonable in amount as well as necessary.38 Therefore, the "correct measure of compensable damages for medical expenses is the necessary and reasonable value of the services rendered, rather than the amount actually paid for such services."39 The amount billed by the medical providers, as opposed to the amount paid by the insurer, is the proper measurement of such damages.40
Practice Pointer
With regard to awardable medical expenses, Colorado is an amount "billed" state as opposed to an amount "paid" state.
Future Loss of Earning Capacity
Future loss of earning capacity is recoverable in Colorado.41 Simply because the amount of loss of earning capacity may be difficult to ascertain does not make such an award non-compensable.42 "Impairment of earning capacity is generally determined by comparing what an injured party was capable of earning before the accident with what he is capable of earning thereafter."43 However, evidence of "sustained permanent physical impairment" is a sufficient basis for a jury award for diminished earning capacity.44 A plaintiff's immigration status may be relevant to the issue of diminished future earning capacity.45
Future Medical Expenses
A plaintiff's history of medical treatment for the injury at issue may support an award of future medical expenses.46 The need for future surgery is not required for an award of future medical expenses.47 Rather, where a plaintiff is incurring other medical expenses, such as therapy and medications, or suffers from reduced movement as a result of the injury, an award of future medical expenses may be appropriate.48 Nevertheless, an "award of future medical expenses must be based upon substantial evidence which establishes the reasonable probability that such expenses will necessarily be incurred."49
§ 16.2.2—Non-economic Damages And Caps On Non-economic Damages
"Noneconomic loss or injury" is defined by statute as "nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life."50 It excludes "compensatory damages for physical impairment or disfigurement,"51 which are addressed in § 16.2.3. This category of damages is often referred to as pain and suffering damages. Colorado law caps these damages.52
Medical testimony is not required to establish pain and suffering damages.53 Likewise, expert testimony is not required to establish that a plaintiff suffered a permanent injury, so long as there is a sufficient factual basis from the testimony admitted.54 Loss of enjoyment of life, which falls within this category of damages, is compensable.55
In any civil action, the total damages for non-economic loss or injury may not exceed the general statutory cap. The court, however, may raise the amount in light of clear and convincing evidence.56 The statutory cap was originally set at $250,000 in 1986, was adjusted upwards in 1998, and was then again adjusted in 2008 to account for inflation.57 The statutory cap for claims accruing between January 1, 2008 and January 1, 2020 is $468,010, as set by the Colorado Secretary of State.58 Beginning on January 1, 2020, the cap will be inflation adjusted every two years by the Colorado Secretary of State.59
This cap may only be exceeded if "the court finds justification by clear and convincing evidence."60 "Colorado case law reflects that this standard permits [the court] to exceed the [statutory] cap only in extreme circumstances."61 For example, the Colorado Court of Appeals affirmed a trial court's decision to exceed this cap in a case in which the "[p]laintiff's expert testified that, based on her symptoms, there was a probability that plaintiff would 'end up in a wheelchair.'"62 And, in a product liability action, a federal district court judge found that the statutory cap should be exceeded where the plaintiff "was rendered a tetraplegic, [and] will never be able to live or care for herself independently."63 In no event may the amount of non-economic loss or injury damages exceed twice the statutory cap. This provision originally created an absolute cap of $500,000, now $936,030.64
Admissibility of Damage Caps
The fact that damages are capped may not be disclosed to the jury. Rather, it is imposed by the court before judgment.65
Effect of Damage Caps on Pro Rata Fault
Courts apportion pro rata liability among the parties and non-parties before applying the cap.66 Thus, the cap acts to limit the liability share of each defendant in a case, but does not necessarily cap the total amount a plaintiff may recover from multiple defendants.67 Also, in a case of multiple plaintiffs, so long as each plaintiff suffered separate and distinct injuries, each plaintiff can recover damages up to the statutory cap.68
§ 16.2.3—Physical Impairment And Disfigurement
Physical impairment and disfigurement damages are separate from either economic or non-economic damages,69 and these damages are uncapped.70 Accordingly, if there is sufficient evidence to warrant an instruction,71 the jury should be instructed to consider these damages separately from economic and non-economic damages and provide a special verdict on these damages.72 Examples of disfigurement include scarring, amputations, and burns.73
§ 16.2.4—Exemplary Damages
The fourth category of damages in personal injury actions in Colorado are exemplary damages, often referred to as punitive damages. They are permitted in product liability actions.74 Exemplary damages, under Colorado law, are available only pursuant to statute.75 Colorado's statute on exemplary damages is C.R.S. § 13-21-102.
Pleading Exemplary Damages
A plaintiff may not plead exemplary damages in his or her complaint.76 Rather, a plaintiff may only plead exemplary damages after the exchange of initial disclosures and "the plaintiff establishes prima facie proof of a triable issue" of exemplary damages.77 Thus, a plaintiff must move to amend his or her complaint under C.R.C.P. 15 (or F.R.C.P. 15) to add a claim for exemplary damages.78
Standard for Exemplary Damages
A jury may award "reasonable exemplary damages" where a plaintiff recovers actual damages for an injury that "is attended by circumstances of fraud, malice, or willful and wanton conduct."79 Willful and wanton conduct is "conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff."80 Plaintiff must prove such conduct "beyond a reasonable doubt."81 Conduct that is merely negligent cannot serve as a basis for exemplary damages.82 Evidence of the income or net worth of the defendant may not be considered in determining the appropriateness or amount of exemplary damages.83
Exemplary Damage Caps
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