Plaintiffs in Colorado are entitled to recover damages to “make them whole.”  This category is known as “compensatory” damages.  Generally, compensatory damages include economic damages and non-economic damages.  Economic damages are the usual and natural consequence of the defendant’s conduct, like lost income and medical bills.  Non-economic or “special” damages are less tangible and are peculiar to the plaintiff, like pain and suffering.

In rare cases, plaintiffs may also seek damages designed to punish a defendant.  These are referred to as “punitive” or “exemplary” damages.

But, what are the limitations to these types of damages?  Below is a brief overview of the most common personal injury damages and their corresponding limitations.

Economic Damages: Past Medical Bills

When an injured party receives medical care, he or she rarely pays the amount billed by the medical provider.  Instead, a private or public insurer will usually adjust the amount charged by a medical provider down to a contractually agreed amount, and then pay all, or a certain percentage, of the adjusted amount.  The patient is then responsible for the remaining unpaid amount – if any.  So what amount may a plaintiff recover from the defendant?  Is it the amount billed by the medical provider, the amount paid by the health insurance carrier, or something else?  Under a system where health insurance companies regularly reduce the charged amounts by 50% or more, this distinction makes a substantial difference in the value of a plaintiff’s claim.

In Colorado, personal injury plaintiffs are allowed to claim the full amounts charged by their health care providers as damages.  The collateral source rule prohibits the defendant from introduction of the amounts paid by an insurer as evidence at trial.  (Volunteers of Am. Colorado Branch v. Gardenswatz (2010) 242 P.3d 1080, 1083-84.)  While there is a post-trial offset for certain collateral sources, there is no offset for payments made by the plaintiff’s health insurer.  (CRS § 13-21-111.6 and Wal-Mart v. Crossgrove (2012) 276 P.3d 562, 565.)  The same rule applies for Medicaid or Medicare payments made on plaintiff’s behalf.

This means that at trial, the jury will see the full amounts billed by the health care providers as opposed to the amounts actually paid by the health insurer.  If, for example, an injured plaintiff has $100,000 in related medical bills, but the health care providers accept $50,000 as payment in full from the plaintiff’s health insurance, the plaintiff is nonetheless allowed to recover $100,000 from the tortfeasor.  Further, the defendant is typically not allowed to introduce evidence of the reduced amount at trial.

Economic Damages: Past and Future Earnings

Loss of past and future earnings is another example of economic damages recoverable by a damaged plaintiff.  While most plaintiffs will attempt to substantiate lost income with written documentation, a plaintiff is not limited to this method.  Rather, a plaintiff may establish lost wages via testimony and related computations alone.  (Mountain States Telephone  v. Sanger (1930) 87 Colo. 369.)

In defending a loss of earnings claim, defendants may seek discovery of any unprivileged matter relevant to the claims or defense of a party.  (Rule 26(b)(1).)

For purposes of discovery, relevance is not limited to what is admissible at trial, but rather what information is “reasonably calculated to lead to the discovery of admissible evidence.”  (Silva v. Basin Western (2002) 47 P.3d 1184.)  Under this rather broad definition of “relevance,” one could expect a plaintiff’s tax returns would be discoverable as evidence of prior earnings, and therefore indicative of amounts lost.

Even relevant evidence, however, will not be discoverable if it is protected by a recognized privilege.  Privilege relationships are limited to those that are statutorily recognized.  (See C.R.S.A. § 13-90-107.)  Currently, Colorado recognizes a number of privileges including: husband-wife, attorney-client, clergyman-confessionary, physician-patient, certified public accountant-client, and psychologist-client.  (Id.)  Privileges, however, may be intentionally or inadvertently waived.

For example, a personal injury plaintiff partially waives the physician-patient privilege when he makes a claim for injuries.  Specifically, he waives the privilege to records regarding the cost and extent of injuries he claims to have sustained.  (See Alcon v. Spicer (2005) 113 P.3d 735.)

While an individual’s tax returns are not privileged, they are confidential, and so receive some protections.  Tax returns will only be discoverable upon a showing of “compelling need” for their disclosure.  For example, if a plaintiff claims past (and/or future) lost income, and provides his W-2s, then tax returns will not be discoverable.  (Alcon v. Spicer (2005) 113 P.3d 735, 742-743.)  Arguably then, plaintiffs must, at the very least, turn over their W2’s when making a lost income claim.

Non-Economic Damages

Colorado imposes a statutory limit on non-economic damages under CRS § 13-21-102.5.  The statutory limit is expressed as $250,000, but is tied to changes in the Consumer Price Index.  Adjusting for inflation, the current limit is $468,010.  If, however, the court finds by clear and convincing evidence that grater non-economic damages are warranted, this amount may be increased, but may not exceed $968,030.  (CRS § 13-21-102.5(3)(a).)

Noneconomic loss is defined as non-pecuniary harm for which damages are recoverable, and includes pain and suffering, inconvenience, emotional stress, and impairment of the quality of life.  (CRS § 13-21-102.5(2)(b) and Pringle v. Valdez (2007) 171 P.3d 624.)  The statute excludes physical impairment from these dollar limitations.  (CRS § 13-21-102.5(5), and Preston v. Dupont (2001) 35 P.3d 433.)  Based on this, plaintiffs may argue that where physical impairment represents decreased quality of life, these noneconomic limitations will not apply.  In practice, however, impairment and disability are usually presented and quantified as economic loss.

The noneconomic damages caps described above are not disclosed to the jury.  Instead, the caps are imposed by the court after the jury renders a verdict.  (CRS § 13-21-102.5(4).)  If applicable, this is also when the court would decide whether the evidence meets the “clear-and-convincing” standard for purposes of awarding non-economic damages in excess of the lower statutory cap.  (Hoffman v. Ford (2010) 690 F. Supp.2d 1179.)

Punitive Damages

Punitive damages are not meant to make the plaintiff whole, but rather are designed to punish a defendant.  Punitive damages are recoverable by statute only.  In order to obtain punitive damages, the defendant’s conduct must be more than merely negligent, it must be fraudulent, malicious, or willful-and-wanton.  (C.R.S. § 13-21-102(1)(a).)  While the jury ultimately determines an award of punitive damages, the sufficiency of evidence to support exemplary damages is a question of law for the judge to determine.  (Coors v. Security Life (2005) 112 P.3d 59.)

Exemplary damages awarded by a jury, however, may not exceed the total amount of compensatory damages.  (C.R.S. § 13-21-102(1)(a).)  If a trial judge is the finder of fact, he or she will limited to the same cap for punitive damages as would a jury.  (Vickery v. Evans (2011) 266 P.3d 390.)

The trial court may, however, enhance the award up to a maximum of three times the compensatory damages if certain criteria are satisfied.  (C.R.S. § 13-21-102(3).)  This is only permitted where: 1) the defendant continued or repeated the behavior in willful and wanton manner during the pendency of the case, or 2) the defendant acted in a willful and wanton manner during pendency of the case which further aggravated the damages to plaintiff.  (Id.)

On the other hand, the trial court has discretion to reduce or prohibit a punitive damages award if: 1) the deterrent effect has already been accomplished, 2) the conduct resulting in the award has ceased, or the conduct resulting in the award has already been served.  (C.R.S. § 13-21-102(2)(a) to (c).)

It is important to note that the finder of fact may not consider evidence of the defendant’s net income or net worth when determining exemplary damages.  (C.R.S. § 13-21-102(6).)  Further, punitive damages may not be sought in the initial complaint, but rather a plaintiff must request to amend the complaint after the exchange of initial disclosures.  The trial court will allow plaintiff to proceed with a punitive damages claim only if plaintiff has made a prima facia showing of a triable issue regarding punitive damages.  (C.R.S. § 13-21-102(1.5)(a).)

Conclusion

The categories discussed above represent the common personal injury damages, but are by no means an exhaustive list.  Additional types of damages, and corresponding defenses, may apply depending on the unique circumstances of your case.  Ideally, however this information provides a useful foundation for evaluation of the damages, and corresponding limitations that will ultimately determine the value of your case.

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