The Never-Changing Caps

dad two kids and dog in canoe Queener Law

No one likes to think about the worst. But in our role as officers of the court, we are tasked with doing just that. All too often, we represent the families of people who have passed due to the negligence of another: families of injured children or working parents who will have years of recovery ahead of them due to someone else’s negligent actions. And we continue to push back against the caps put into place by the state legislature on what those families are allowed to collect.

Often when the worst happens, the settlement or judgment against the party at fault serves as a life insurance policy from the decedent to their loved ones. This is because many do not have life insurance coverage at all, or if they do, it amounts to $100,000 or less. But when the family is left with numerous medical bills, estate costs, funeral expenses, house payments, and loss of dual income that helped support the household, $100,000 does not go very far, if it covers the necessities at all.

The state legislature in Colorado saw fit to limit the amount these grieving families could be compensated through legal means from the at-fault party. Years ago, the cap on damages was limited to $468,010 in non-economic damages for a wrongful death claim. That means that after the direct medical bills related to the death are paid, families may receive a maximum of $468,010 to help them cover the costs and expenses above. Period. For life. There is no going back and asking for more. There is no fund from which to draw if times get tough and there is nothing left.

What if the family of the deceased has no one else to work and support the household? What if the deceased was a single mother or father of several children who have no one else to support them? And after the payment of all death, funeral, medical, and household costs, little is left to support these children through to adulthood, to keep up with house payments or school needs and college funds? Should these children be disallowed to seek their education as planned because someone else negligently caused the death of their parent? Should they become wards of the state? Should they go to another family member who is already living paycheck to paycheck with very little to ease the burden?

Further, this amount has not changed in many years, meaning it has not kept up with inflation. Finally, and thankfully, the state government has paid attention to the cries of the victims of negligent acts. Governor Polis signed into law a new bill that not only raises the various caps by approximately $20,000 each, keeping in line with inflation. In addition, instead of the old ways of checking in over a decade later to ensure the caps are keeping up, the caps will be proverbially babysat every two years.

Problem solved? Not really. From our perspective of working with these families day in and day out, the inflation bump helps, but when you are faced with the prospect of having very little to support your family with the loss of your spouse, or being paralyzed and requiring medical treatment and an inability to work and provide for your family, a mere few hundred thousand from the party that put you in that position hardly seems adequate.

Even if a jury awards a plaintiff millions of dollars in non-economic damages, all they will see is the exact amount of the cap. For reference, here is where they stand and where they will be once this law goes into effect:

· Current non-economic damages cap — $468,010

· Anticipated new cap adjusted for inflation $584,210

· Current dram shop/social host cap — $280,810

· Anticipated new cap adjusted for inflation — $350,550

· Current wrongful death cap — $468,010

· Anticipated new cap adjusted for inflation $584,210

· Current solatium cap — $87,210

· Anticipated new cap adjusted for inflation $108,840

While there are legal means to, as we say in the biz, “bust the cap,” this is not an easy concept and there are extremely limited and narrow exceptions that must be followed so precisely that many fail to qualify.

We wholeheartedly understand the community’s desire for some control over liability and to keep a handle on litigation results. However, we must put closer consideration to the lives that are left behind when horror strikes. No amount of money will replace a loved one or give a human being back their dignity and use of their limbs. But adequate compensation to get them through the next years of their life, help keep a roof over their home, food in their kid’s bellies, and heat running through the ducts while they try to get back on their feet… that we can do.

If you find yourself sitting on a jury evaluating the damages for a catastrophic injury, please keep in mind these things we have discussed today. And do not limit your verdict to these caps. If you see fit to award the plaintiff more than that legislatures meager attempts at adequate compensation, write it down on that line. Allow the team fighting for the injured some leeway to petition for a cap bust.

And next time you send a letter or make a phone call to your representatives, remember to ask them exactly where these numbers came from and why they feel that politicians know more than the jury, who has sat through perhaps weeks of documentation of this person’s future life and needs, about the value of that. Do not let elected officials usurp the power of a jury, one of the oldest and most important civic duties in our country’s history.

Finally, if you or a loved one find yourself in a time of loss or catastrophic injury, please call an attorney right away. Do not try to navigate these complexities on your own. You need to focus on the next steps for your family while we focus on taking on the negligent party and the legislature’s regulations simultaneously so we can get you set as close to right as possible when the dust settled.

We are happy to answer any questions free of charge to get you moving in the right direction. Come read about what we have been able to do so far and call or email us to see how we can help you in the future.