In July 2019, we explained in an article, entitled: “Colorado’s Damages Caps will Increase for the First Time in 12 Years on January 1, 2020,” Senate Bill 19-109 had been signed into law, which would raise the caps on noneconomic damages, derivative noneconomic damages, wrongful death, solatium, and dram shop/social host statutes for inflation.[1]  However, at the time of writing the article, the new cap amounts going into effective on January 1, 2020 for each of these categories could only be approximated.

The Current Computed and Certified Caps

On January 14, 2020, the Colorado Secretary of State, the governmental agency responsible for computing and certifying the effect of inflation on the statutory caps, utilizing the “consumer price index for Denver-Boulder, all items, all urban consumers,” certified to new amounts.[2]  The present caps for all claims for relief that accrue on and after January 1, 2008 are as follows:

For noneconomic damages,[3] [4] the current adjusted limitation is $613,760, which may be increased by the court upon clear and convincing evidence to a maximum of $ 1,227,530.[5] “Noneconomic loss or injury” means 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.[6]

For derivative noneconomic damages, the adjusted current limitation is $613,760.[7] “Derivative noneconomic loss or injury” means nonpecuniary harm or emotional stress to persons other than the person suffering the direct or primary loss or injury.[8]

For wrongful death actions,[9] the current adjusted limitation is $571,870.[10] In wrongful death actions, noneconomic losses include past and future “grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress.”[11]

For solatium damages in wrongful death claims, the current adjusted limitation is $114,370.[12]  Persons entitled to sue under the wrongful death statute,[13] may elect in writing to sue for and recover a solatium.[14]  The solatium amount is in addition to economic damages and “to reasonable funeral, burial, interment, or cremation expenses.”[15]  However, the solatium amount “is in lieu of noneconomic damages recoverable under section 13-21-203 and shall be awarded upon a finding or admission of the defendant’s liability for the wrongful death.”[16]

For Dram Shop Act claims, the current adjusted limitation is $368,260.[17] The Colorado Dram Shop Act serves as a plaintiff’s sole remedy against a liquor licensee for injuries resulting from the service of alcoholic beverages when “it is proven that the licensee willfully and knowingly sold or served any alcohol beverage to the person who was under the age of twenty-one years or who was visibly intoxicated and the civil action is commenced within one year after the sale or service.[18]

Caps will Increase Every Two Years Going Forward

In order to avoid another 12-year gap in cap increases, Senate Bill 19-109 specifically mandated an adjusted limitation on damages be certified “each January 1 every two years thereafter.”[19]

New Caps Only Apply to “Claims for Relief that Accrue on and After” January 1, 2020

The increased damages caps now in effect only apply “to claims for relief that accrue on and after the specified January 1 and before the January 1 two years thereafter.”[20]  For example, if it is alleged by a plaintiff in a complaint filed on January 31, 2020 that a liquor licensee served a patron in a visibly intoxicated condition on December 31, 2019, in violation of Colorado’s Dram Shop Act, the old cap of $280,810 would still apply.[21]  The reason being, we look to the date the claim for relief accrued (i.e. date of service of the alcoholic beverage to a visibility intoxicated patron), not the date of filing of the complaint.

For the same reason, a plaintiff prosecuting a civil action filed before January 1, 2020 may not take advantage of the damages caps, nor may a plaintiff take advantage of future damages caps increases set to occur every two years if his or her action was commenced within the prior damages limitations timeframe.

Takeaway

 As we predicted in our July 2019 article, the new caps for noneconomic damages, derivative noneconomic damages, wrongful death, solatium, and dram shop/social host claims have significantly increased and will certainly effect the overall value of civil actions in Colorado.  However, it is important to examine the claim for relief accrual date, and not the date of commencement of a claim or lawsuit, in order to determine which cap value may apply.

[1] Senate Bill 19-109, (https://statebillinfo.com/bills/bills/19/2019a_109_signed.pdf).

[2] Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[3] Medical malpractice claims are exempted.  Under Colorado law, medical malpractice suits have a limit on the compensation amount patients can receive, topped at $300,000 for noneconomic damages. These damages can include pain and suffering, physical impairment, loss of enjoyment of life, stress, loss of consortium, physical impairment, and disfigurement. In addition to this $300,000 cap on noneconomic damages, Colorado has a $1,000,000 compensation cap on total damages allowed for medical malpractice cases. However, under certain circumstances, such as lifetime incurred medical expenses and loss of future wages from injuries, total damages may exceed $1,000,000 if the court finds that the present value of past and future lost earnings, medical costs, and other health care costs would exceed the limitation. See C.R.S. § 13-64-302.

[4] Also not included in the new caps are those for noneconomic loss or injury or derivative noneconomic loss or injury in an action asserting personal injury or bodily injury as a result of a construction defect.  The cap calculated and certified remains at $279,370. See Adjusted Limitation on Damages Certificate – Construction Defects Certificate,

https://www.sos.state.co.us/pubs/info_center/files/cert_const.pdf.

[5] C.R.S. § 13-21-102.5(3)(a); see also Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[6] C.R.S. § 13-21-102.5(2)(b).

[7] C.R.S. § 13-21-102.5(3)(b); see also Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[8] C.R.S. § 13-21-102.5(2)(a).

[9] However, this damages cap does not apply if the death at issue occurred as the result of a “felonious killing,” which is defined under the Colorado Probate Code at C.R.S. § 15-11-803(1)(b).  A felonious killing, “except as provided in subsection (7) [of C.R.S. § 15-11-803] is the killing of the decedent by any individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter,” as the crimes are defined in C.R.S. § 18-3-102 to C.R.S. § 18-3-104.

[10] C.R.S. § 13-21-203(1); see also Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[11] C.R.S. § 13-21-203(1)(a).

[12] C.R.S. § 13-21-203.5; see also Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[13] The Colorado wrongful death statute specifies who may file a wrongful death claim, including time limits to each potential plaintiff’s ability to commence an action. The surviving spouse of decedent is the only person who may file a wrongful death claim in the first year after death. During the second year after death, both the surviving spouse and the surviving children of decedent are allowed to file a claim.  If the decedent left no surviving spouse and no surviving children, then decedent’s parents may file a wrongful death claim.  See C.R.S. § 13-21-201(1)(a)–(b).

[14] C.R.S. § 13-21-203.5.

[15] Id.

[16] Id.

[17] C.R.S. § 12-47-801(3)(c) and (4)(c) ; see also Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

[18] C.R.S. § 44-3-801(3)(a)(I)–(II).

[19] Senate Bill 19-109, (https://statebillinfo.com/bills/bills/19/2019a_109_signed.pdf).

[20] Senate Bill 19-109, (https://statebillinfo.com/bills/bills/19/2019a_109_signed.pdf).

[21] See, Adjusted Limitation on Damages Certificate, https://www.sos.state.co.us/pubs/info_center/files/damages_new.pdf.

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