The grief that comes with the death of a member of your family is devastation enough. There is another layer of grief that comes when you discover that the death of your family member was the result of someone breaking the law. If your family member was killed in a car crash because another driver was speeding, texting or not paying attention or your family member was killed by a surgeon that had the wrong medication administered during surgery, you as the family member have civil recourse with a wrongful death cause of action.(1)
The purpose of Colorado’s Wrongful Death Statute (C.R.S. §13-21-201) is to protect the interests of those who, through no fault of their own, must bear the financial and emotional burden of the decedent’s death. Let us talk about the financial burden. You can recover what are called economic losses under your wrongful death cause of action. Economic losses include reasonable funeral, burial, internment, or cremation expenses, and any net financial loss which you have had because of the death of your family member. The “net financial loss” is the same as the financial benefit you might reasonably have expected to receive from your family member had they lived. Colorado has not put a limit on the amount you can recover in economic losses.
Where Colorado has put a limit on your recovery is with the non-economic losses that you can recover. Colorado defines a non-economic loss as grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress that you have had and will continue to have as a result of the loss of your family member.(2) Let us get rid of this cold, emotionless, legal jargon “noneconomic damage”. Perhaps it is easier to put a limit on something so personal when you call it something so impersonal. Non-economic losses are really grief. Grief over the loss of your family member from this world, grief in how the quality of your life has been greatly diminished, grief from your utter and unending pain and suffering that will continue for the rest of your life. Colorado has put a cap on your grief. That cap is a limit. Colorado has given your grief a value of $250,000.(3) However, you should be so grateful because Colorado amended the statute to permit the Colorado Secretary of State to adjust the $250,000.00 for inflation.(4) The number currently stands at $436,070.00.
Let us put this into perspective. Take a 45 year old mother of a 13 year old child. The child dies in a car crash because someone decided to drive drunk. The most this mother can recover for the grief of the loss of her child is $436,070.00. This mother’s grief will no doubt last the rest of her life. According to the U.S. Census Bureau, this mother is expected to live another 37.4 years. 37.4 years is 13,651 days this mother will be without her child and for that, Colorado has said that this mother’s grief is worth $31.94 a day. Not even a full tank of gas. Look at the reverse. Say the 13 year old child loses their mother in that car crash. The 13 year old has another 68.3 years to live. Colorado has said that this 13 year old’s grief for the loss of their mother is worth $17.49 a day. Is this enough for the loss of a mother? The real question is why Colorado thought it was necessary to take this decision away from a jury. Why would Colorado not trust its residents to decide how much your grief is worth? To add insult to injury, should the 13 year old from the example above pursue a wrongful death action against the drunk driver for taking the life of their mother, at trial the jury will never know that if they award that child more than $436,070.00 for their grief, the judge will reduce their grief award to $436,070.00 post-verdict. The fact that Colorado has capped the amount the jury can award for grief is impermissible evidence. As lawyers, Colorado has asked us to lie to our juries. As lawyers we ask our juries to decide how much our client’s grief is worth but the reality is that Colorado has already decided.
To strip your recovery for your grief even more is the Wrongful Death Act’s one cause of action rule. The Act clearly provides that “[t]here shall be only one civil action under this part 2 for recovery of damages for the wrongful death of any one decedent.”(5) This means that $436,070.00 allotment for grief that Colorado has so generously given has to be split among “heirs”. Thus the example we gave above of the mother who dies in a car crash, a $436,070.00 grief award must be split between the husband, the 13 year old and any other siblings that exist. So not only has Colorado told you how much your grief is worth, Colorado has also decided that your grief is worth even less if you have additional family. Is losing one parent really that bad when you have another? No, according to Colorado.
Why does Colorado have a cap on the amount recoverable for grief? If you believe the propaganda dished out by the insurance companies it is because the caps prevent an increase in insurance rates, it lowers the cost of business. It is tort reform as its finest. First, tell that to the 13 year old that has just lost their mother. Secondly, it is just not true. To quote a few of the insurance industry’s finest
- Representative of the Ohio Health Insurance Company testifying before the Wyoming Legislature: “Tort reform will not lower rates.” (Casper Star Tribune, May 4, 2003).
- American Insurance Association: “The insurance industry never promised that tort reform would achieve specific premium savings.” (American Insurance Association Press Release, March 13, 2002).
- Sherman Joyce, President, American Tort Reform Association: “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.” (Liability Week, July 19, 1999).
- Victor Schwartz, General Counsel, American Tort Reform Association: “Many tort reform advocates do not contend that restricting litigation will lower insurance rates, and “I’ve never said that in 30 years.” (Business Insurance, July 19, 1999).
Aside from the question about whether the $436,070.00 if enough for the grief that follows the death of a family member, we need to ask if these caps further bad conduct. Perhaps the person responsible for your family member’s death has undergone criminal consequences, such as vehicular homicide or assault. In that circumstance that state of Colorado calls the shots as to what will happen to that person criminally. But what about what YOU can do? What if we are talking about physician or hospital negligence and there are no criminal consequences for the person or the institution that caused the death of your family member? The civil justice system is your recourse. The civil justice system is the only way for you to get your own personal justice. How is that justice achieved? Money. Making people or an institution pay with their pocket books, or those of their insurance companies. It is the best form of deterrence.
HB 17-1254 was introduced to Colorado’s House of Representatives on March 10, 2017. HB17-1254 would eliminate the non-economic damage cap for the wrongful death of a child. As of May 3, 2017, HB17-1254 had been postponed indefinitely by the Senate Committee on State, Veteran and Military Affairs. Perhaps asking Colorado to reevaluate the price tag it assigns to the grief associated with the children in this state will be the start to change. As it stands right now, the most valuable wrongful death cases are those in which the deceased was a high income earner because there are no caps on economic damages. It is because Colorado has limited our right to recover the most important loss in wrongful death actions, grief. We put ourselves on the map in this country with our views on marijuana. It is time to get our heads out of the medicinal clouds and make change where it is needed. Colorado needs to stand for the proposition that grief has value and that not everyone’s loss is the same. Place yourself in the shoes of those that have lost a family member because someone broke the law. Imagine the millions of dollars awarded by juries in this state that been stripped from grieving hands of Coloradoans thanks to insurance propaganda. Guess where that money lands? In the insurance company’s pocket books.
(1) A wrongful death action limits the individuals entitled to bring suit to the following: (a) the spouse of the deceased, (b) the heir or heirs of the deceased (with or without the spouse), (c) by the decedent’s designated beneficiary (with or without the spouse), or (d) if the deceased is unmarried and without descendants or a designated beneficiary, then the parents or parent of the deceased. In addition, parents of a baby, who dies after birth as a result of prenatal injuries, may bring a wrongful-death claim. C.R.S. §13-21-201; C.R.S. §15-22-103(1)(2).
(2) C.R.S. §13-21-203.
(3) C.R.S. §13-21-203(1)(a).
(4) C.R.S. §13-21-203.7.
(5) C.R.S. §13-21-201.