Chapter 20 - § 20.4 • DEFENSES
| Jurisdiction | Colorado |
Aside from a plaintiff's failure to satisfy any of the elements discussed above, a litigant may defeat a fraud claim by asserting a variety of affirmative defenses.
§ 20.4.1—Pro Rata Liability and Designation of Nonparty at Fault
A defendant may be able to reduce his or her liability by invoking the "pro rata liability of defendants" statute. Under that Colorado statute, "[i]n an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damages, or loss . . . ."65 If more than one defendant bears responsibility for the claimed damages, the fact finder shall making findings "determining the percentage of negligence or fault attributable to each of the parties and any persons not parties to the action . . . ."66 The statute ensures that no party is responsible for more than its fair share of damages. Moreover, at least two federal courts have indicated that the "pro rata liability of defendants" statute is applicable to fraud claims.67
§ 20.4.2—Immunity from Civil Suit
All forms of immunity are defenses to a fraud claim.68
With regard to fraud claims against governmental entities or employees, the Colorado Governmental Immunity Act (CGIA) broadly extends sovereign immunity to public entities in Colorado, subject to only a few narrow exceptions.69 Public employees are immune to the same extent as public entities, unless their conduct was "willful and wanton."70 A "health care practitioner," including "a physician, dentist, [or] clinical psychologist," who is "employed by a public entity" is counted as a public employee protected under the CGIA.71 The Colorado Supreme Court has stated that because governmental immunity is in derogation of Colorado's common law, legislatively granted immunity must be strictly construed,72 but provisions waiving immunity are broadly construed in the interest of compensating victims of governmental negligence.73 The CGIA requires that a person claiming injury by a public entity or employee — whether or not by a willful and wanton act or omission — must file a written notice of the claim within 182 days after the date of discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for the injury.74 The CGIA also expressly delineates the information that must be included in, the recipient of, and the delivery method for the required written notice.75 Compliance with the statute is a jurisdictional prerequisite to any action brought under the CGIA, and failure to comply forever bars any action.76
§ 20.4.3—Release or Waiver
Release or waiver may be a defense to fraud.77
§ 20.4.4—Statute of Limitations
As a general rule, a claim for fraud must be brought within three years after the cause of action accrues.78 A cause of action for fraud accrues "on the date such fraud . . . is discovered or should have been discovered by the exercise of reasonable diligence."79
§ 20.4.5—Employment at Will
Under the employment-at-will doctrine, "[e]ither the employer or the employee may terminate at-will employment at any time with or without cause, and such termination generally does not give rise to a claim for relief."80 The doctrine "permits termination for any reason, which necessarily includes grounds that are malicious or otherwise improper."81 For that reason, an employee cannot demand any relief if the employer engages in fraud to terminate the employment.82 There is, however, an exception in cases where the employer's fraud induces the employee to accept employment,83 and in certain circumstances an employer's tortious conduct related to termination of an employee's employment may give rise to a civil claim for wrongful discharge.84
§ 20.4.6—Economic Loss Doctrine
In Colorado, "a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an...
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