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Damage Cap Provisions in Wrongful Death Cases
Posted by: Damon Davis
February 02, 2010
Topic: Wrongful Death
The State of Colorado is well known for its damage cap provisions. Colorado has some of the strictest damage cap provisions of any state, including its sister states in the Western U.S. I am not opposed to reasonable damage cap provisions in principle. Reasonable caps on damages help by placing a limit on that which is inherently difficult to define. However, one damage cap provision in Colorado is particularly draconian, and should be amended by the legislature. The provision that I am referring to is the limitation on non-economic damages in wrongful death cases. Currently, the limit on such damages is $436,070.00. This may sound reasonable at first blush but it must be compared to ordinary non-economic damage cap of $468,010.00. This means that a person who is injured can receive approximately $30,000.00 more in non-economic damages then a person who has lost a son or daughter or spouse.
However the difference does not end there. The non-economic damages cap for ordinary personal injury cases, in which a person is injured, applies per plaintiff and per defendant. This means that a single plaintiff may collect the $468,010.00 from all liable defendants, if their injuries are serious enough. This is unlikely except in cases of serious injury such as serious burns or paralysis, but the damage cap allows for such damages in extreme circumstances. The personal injury damage cap also allows for multiple plaintiffs who are injured in a single incident to recover the maximum amount. Thus, if two plaintiffs are injured in the same car accident they may both receive up to the damage cap amount.
In contrast to this, the $436,070.00 wrongful death cap is per death. Therefore if multiple people cause a death of an individual, they are jointly liable for a maximum of $436,070.00. Further, it does not matter how many family members the deceased person leaves behind, the damage cap applies regardless. Thus the damage cap is the same whether a deceased person leaves behind one spouse, or leaves behind a spouse and four children; the maximum amount that can be awarded is $436,070.00. One can reasonably debate whether $436,070.00 is adequate to compensate someone for the sorrow and grief of losing a child or spouse or parent. However, it is not reasonable to limit all the grieving family members to this amount, regardless of how many there are. To say to a child, you receive less money for your parent's death because you have siblings, is unreasonable. Furthermore, the damage cap should apply per defendant, not per death. It is unfair to allow a defendant to pay less in damages simply because other defendants also contributed to the fatal accident. While I am not opposed to a reasonable damage cap on wrongful death cases, that damage cap should model the cap imposed on ordinary personal injury cases. There is no fair or just reason that the caps should be applied differently.
