Wrongful death is a civil claim brought against a party who is liable for losses caused by the death of a loved one. This type of action is brought by a surviving family member due to a defendant’s negligence. C.R.S. § 13-21-202 provides that:
When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.
In other words, if the deceased party had not passed away, and that person would have had an action against the wrongdoer, then that action survives, and a family member may bring suit.
You may recover both economic and non-economic damages in a wrongful death case. However, C.R.S. § 12-21-203 limits the damages recoverable under the Wrongful Death Act. Per Colorado statute, the limitation on noneconomic damages for a personal injury claim shall not exceed $250,000 plus inflation. That makes the current cap for wrongful death suits $436,070 (this may increase or decrease in 2016 based upon inflation).
How Capping Damages Can Affect How Much You are Awarded
There was piece toward the end of 2015 in Trial Talk that covers “When and How to Apply Colorado’s Wrongful Death Caps.” It’s an interesting piece covering at what point apportionment and the cap comes into place regarding damages.
In Lanahan v. Chi Psi Fraternity, the Colorado Supreme Court held that damage caps in relation to the Wrongful Death Act are to be applied on a per claim basis rather than a per defendant basis. That means if the damages cap is $250,000 and there are two defendants, that damages are capped at $250,000 for the entire case, not at $250,000 for each defendant (if that were the case the plaintiff could receive up to $500,000 in damages). Therefore, the issue now is whether the recoverable damages are capped first and then apportioned, or if the damages are first apportioned and then capped.
For example, let’s say the jury awards $1,000,000 million in a case where there are two defendants. The jury finds that Defendant A was 70% at fault for the wrongful death and Defendant B was 30%. Since this award is above the cap, and it cannot be per defendant, the court must allocate the cap between the two defendants. That is an allocation of $305,249 to Defendant A, and $130,821 to Defendant B. In this scenario it doesn’t matter if you cap first or apportion fist because it’s above the cap and there is no apportionment for negligence to the plaintiff or a non-party.
However, if you had a $1,000,000 award and plaintiff was found to be 10% responsible, defendant 40% and a non-party 50% it becomes a different matter. If you apportion first, defendant owes $400,000, which is below the cap. If you cap first that $436,070, you end up with 40% of that, which is $174,428. Defendant owes quite a bit less in that scenario. The authors in this piece argue that “subjecting the total verdict to the damage cap and then further reducing the number for comparative fault would result in an unfair double-reduction” and public policy favors the “apportion first, then cap” method, which in turn benefits the family of the deceased.
I agree with the authors that apportionment first then capping makes more sense. Wrongful death cases can be quite difficult on the family members who have lost a love one, and the awards or settlements from these cases are often essential for them to just keep their lives going. Capping first then apportioning could allow for a defendant to escape from not being responsible for his full due.
