Damage Caps: What They Mean for Your Personal Injury Case
Tort reform has been a hot topic for years around the nation, including in the state of Colorado. Basically, tort reform is designed to change the way our civil justice system functions by placing limits, or caps, on various things, including the amount of damages injured people can recover in a personal injury lawsuit.
Damages in Colorado
- Economic damages. Out of pocket losses such as medical bills, lost wages, property damage, the cost of future medical care, and future lost earnings or retraining costs.
- Non-economic damages. Losses such as pain and suffering, emotional distress, and loss of enjoyment of life.
- Physical impairment. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss.
In 1986, Colorado passed a succession of tort reform laws, one capping the amount of non-economic damages that an injured plaintiff could recover at $250,000, and it was not until 2007 that these caps were increased for inflation. By allowing an adjusted cap for inflation, the Colorado legislature intended that non-economic damages in excess of the cap be awarded only to the most severely injured and damaged plaintiffs.
The current non-economic damage cap in Colorado for people injured after January 1, 2008 is $468,010, which can be increased by the court to a maximum amount of $936,030, if clear and convincing evidence is present to justify the increase. But there are some things that are not left to the court’s discretion:
- The cap applies to all personal injury cases, not just those considered frivolous or without merit.
- The cap applies no matter how seriously a person was injured.
- The cap applies no matter what the jury decides that a victim is entitled to recover.
Exception to the General Damage Cap
One way to avoid the cap general cap for non-economic damages in Colorado is to convince the jury that the damages should be placed in the category of permanent physical impairment. In most cases, there is no cap on damages awarded for permanent physical impairment and since there is no universally accepted definition of what permanent physical impairment is, attorneys are able to argue for permanent physical impairment damages with some success.
Other Colorado Damage Caps
- Wrongful death. The cap on non-economic damages in a wrongful death action in Colorado is $436,070, and although death is definitely a permanent loss, claims of permanent physical impairment are not allowed because a living relative is the one bringing the case. The cap does not apply if the court finds that the circumstances of the death involved a felonious killing.
- Medical malpractice. The cap for non-economic damages in cases involving medical malpractice in Colorado is $300,000, there is no exception to this cap, and the permanent physical impairment argument is not available.
- Punitive damages. Colorado also caps the amount a jury can award in punitive (exemplary) damages, allowing the judge to reduce them post-verdict to equal the amount of actual damages awarded. This means that an award of $100,000 for actual damages and an additional $300,000 award for punitive damages would be decreased to $100,000 to match the actual damages awarded, reducing a $400,000 verdict to $200,000.
Reducing a damage award can be devastating for seriously injured plaintiffs, but a personal injury attorney who is familiar with Colorado’s damage caps and how to navigate them can help an injured person recover as much as possible, cap or not.
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