Under Colorado law, specified individuals may sue for the death of a loved one caused by the wrongful act, neglect, or default of another. Within one year of the decedent’s death, the following individuals may bring suit: (1) spouses; (2) upon written election of the spouse, the spouse and heirs; (3) upon written election of the spouse, the heirs; or (4) if no surviving spouse, the heirs. Within the second year of the decedent’s death, any of the above individuals may bring suit without the need for a written election of the spouse, if surviving. Generally, the term “heir” does not include parents; however, if the deceased is an unmarried minor without descendants or an unmarried adult without descendants, a wrongful death action may be brought by the individual’s father or mother, each of whom has an equal interest in the suit. Note that parents who have abandoned or failed to support deceased minor children are still entitled to an equal share of any damages recovered in an action concerning the wrongful death of their child.

In order to recover damages, the plaintiff in a wrongful death action must prove that the defendant owed a duty of care to the deceased, that he or she breached that duty, that the breach caused the decedent’s death, and that the plaintiff suffered damages as a result of the decedent’s death. Importantly, if the defendant can establish that the decedent was at least fifty percent or more at fault in bringing about his or her own death, the plaintiff is barred from recovering damages.

Previously, plaintiffs in wrongful death actions were limited to the recovery of compensatory damages. Compensatory damages include damages for pecuniary losses and noneconomic losses. With regard to pecuniary losses, plaintiffs can only recover an award equal to the financial benefit, if any, which the plaintiffs might reasonably have expected to receive from the decedent had he or she lived. With regard to noneconomic losses—which include pain and suffering, inconvenience, emotional stress, and impairment of the quality of life—plaintiffs can only recover damages up to the statutory “cap,” which is periodically adjusted by the Colorado Secretary of State. Currently, the cap for non-economic damages is set at $341,250.00. Note that there is no cap on noneconomic damages if the act causing the death constitutes a felonious killing as defined in C.R.S. § 15-11-803(1)(b).

House Bill 1167, signed into law by Governor Owens on April 16, 2001, now permits certain plaintiffs to recover exemplary damages—in addition to compensatory damages—for losses suffered by them as the result of the decedent’s death. In order to recover exemplary damages, plaintiffs must prove that the decedent’s death was “attended by circumstances of fraud, malice, or willful and wanton conduct.” If proved, a jury may award exemplary damages up to an amount equal to the award of compensatory damages. Thus, House Bill 1167 enables plaintiffs who can establish these attendant circumstances to increase their damages awards by up to two times—and, in certain cases, three times—the amount formerly permitted.

Because exemplary damages are intended to punish wrongdoers and deter certain behavior, House Bill 1167 permits a court to reduce or bar an award of exemplary damages if: (1) the deterrent effect of the damages has already been accomplished (and thus the award of exemplary damages serves no additional deterrent effect), (2) the defendant has ceased the behavior that resulted in the death, or (3) the purpose of the exemplary damages has otherwise been served.

In addition, House Bill 1167 also permits a court to increase an award of exemplary damages up to an amount equal to three times the amount of the actual damages awarded if: (1) the defendant has continued the behavior or repeated the action that is the subject of the claim against the defendant in a willful and wanton manner against another person or persons during the pendency of the case, or (2) the defendant has acted in a willful and wanton manner during the pendency of the action in a manner that has further aggravated the damages of the plaintiff when the defendant knew or should have known such action would produce aggravation.

As an alternative to suing for noneconomic damages, plaintiffs may elect in writing to sue for “solatium,” a set amount determined by statute and capped by the Secretary of State. Currently, solatium is capped at $68,250.00. Note that solatium may be awarded in addition to economic damages and funeral expenses.

All wrongful death actions must be brought within two years of the date of death or they are barred by statute.

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