Denver Wrongful Death Attorney Seeks More Than Money
Representation of families who have lost a member requires a combination of legal knowledge and experience and the ability to listen and assist people through one of the most difficult losses that they will ever face. This firm has worked with families of dying clients and families of those who have passed away. Because we limit our practice we have time to spend with our clients helping them understand the law and their options.
In addition to standard wrongful death litigation, the firm applies concepts of restorative justice, legislation, policy changes, creation of charities and foundations, and other ideas so that the lives of others can be improved. Through our work, we have created means to permanently remember the person who has been lost.
Beth Klein, Colorado Wrongful Death Lawyer Representing Families
We have represented families who have lost children because of motor vehicle accidents, ski accidents, drowning, inadequate supervision, violence, and dangerous and defective products. We have helped families who have lost fathers and mothers.
In addition to resolving the wrongful death action, we have saved the home from foreclosure and helped children go on to college. During those representations, we have assisted families in creating policy changes,creating foundations, memorials, honorary events, and other mechanisms that make the world a little better for others.
Colorado Wrongful Death Law
Colorado's wrongful death law is found in the Colorado Revised Statues (C.R.S. 13-21-201 et.seq.) These laws specifically identify which family members are eligible to bring a wrongful death claim in Colorado and provide the time deadline in order to bring the claim - within two years of the death.
Laws permitting wrongful death claims were enacted in the 19th century to permit recovery of damages for death caused by the wrongful act of another. These laws, otherwise known as statutes, were created by legislatures rather than through the common law which is case law developed through the court system.
Because the Colorado wrongful death laws originated through laws enacted by the legislature (statutes) Colorado courts have not expanded any rights under these laws. If the wrongful death laws are to be revised, the Colorado courts have clearly indicated that it is General Assembly’s job to make the revisions. The courts construe the rights of survivors narrowly and will not, even in the saddest of circumstances, expand their rights.
In the past courts held that the Wrongful Death Act did not allow a survivor of a family member to recover damages for grief and sorrow. Since 1989, with revisions made by the legislature, damages for grief, sorrow, and loss of companionship have been allowed. Many Colorado residents are shocked to learn how few rights they have when a family member dies and how Colorado tort reform protects culpable defendants. In Colorado, the value of a claim for a life is among the lowest values for wrongful death claims in the US.
Colorado wrongful death claims require the proof of “a wrongful act, neglect, or default of another” “such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof . . . .” The person who caused the death is granted not only the legal defenses that would have operated to bar or reduce the claim had the person survived, but more. The first barrier to recovery is the limitation on who can bring a wrongful death action in this state.
Not All Family Members Can Bring a Wrongful Death Action
Section 13-21-201 establishes rules of priority for bringing a wrongful death action, and as a matter of policy, sets severe restrictions on who can bring a wrongful death case in Colorado. Colorado has a philosophy that the primary purpose of a wrongful death action is to provide recovery for the persons who were economically dependent upon the deceased. Spouses had top priority. Children and Parents who are economically dependant have limited rights. Siblings have no rights and cannot bring any claim for wrongful death.
Under § 13-21-201(1)(a), the spouse of the deceased has the exclusive right to commence a wrongful death action during the first year after death. The spouse may allow the heirs of the deceased to join in the wrongful death action during the first year. If there is no spouse, the deceased’s heirs may bring a wrongful death action immediately.
Under § 13-21-201(1)(b)(I), during the second year after death, the spouse and heirs of the deceased have equal standing to bring an action for wrongful death. If the heirs bring an action, the spouse is permitted to join in the action by filing a motion within 90 days after he or she receives written notice of its commencement.
The term “heir” has a different meaning than Colorado residents expect. Under the Uniform Probate Code an “heir” may include collateral relatives such as siblings, aunts, uncles or cousins of the deceased. However, under the Wrongful Death Act, Colorado courts have interpreted the term “heir” to include only a child or lineal descendent of the deceased. Thus, the courts have held that a sibling of the deceased has no standing to bring a wrongful death action.
Pursuant to § 13-21-201(1)( c), parents of the deceased have a right to bring a wrongful death action if the deceased is an unmarried minor without descendants or an unmarried adult without descendants. Thus, if the deceased is married, or has any descendants, parents do not have standing to bring a wrongful death action. Generally, parents have an equal right to share in the proceeds of a wrongful death action. However, if the parents are divorced, separated or living apart, either may file a motion asking the court to fairly apportion the proceeds of the action.
Damages in Wrongful Death Actions
Section 13-21-203, C.R.S., contains severe limitations on the damages recoverable in a wrongful death action. Tort reform in medical malpractice, ski accident, and liquor seller cases and cases against governmental entities are even more limited.
Plaintiffs in a wrongful death action may recover economic damages and damages for grief, sorrow and loss of companionship known as non-economic damages. Economic damages are losses for medical bills, funeral expenses, and wage and earning capacity losses. Non-economic damages are subject to a current limitation of $341,250, and this is subject to inflationary adjustments for general torts. This is not the case for medical malpractice matters. The value of the non-economic recovery for a wrongful death due to medical malpractice has been frozen at $250,000.00 since 1986. No adjustment for inflation is permitted by law for medical malpractice cases since 1986.
If the death was a result of a “felonious killing,” the cap on non-economic losses is lifted. A felonious killing is one which rises to the level of first or second degree murder or manslaughter. An actual criminal conviction of the defendant is not necessary, and the death does not have to occur in the course of the commission of a felony. The court in the wrongful death action may make an independent determination as to whether the conduct of the defendant was sufficiently egregious as to constitute murder or manslaughter.
First Degree Murder is the killing of a human being by a sane person, with intent, malice aforethought and with no legal excuse or authority. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others.
Manslaughter is the unlawful killing of another person without premeditation or so-called “malice aforethought” There are two levels of manslaughter: voluntary and involuntary. Voluntary manslaughter includes killing in heat of passion or while committing a felony. Involuntary manslaughter occurs when a death is caused by a violation of a non-felony, such as reckless driving (called “vehicular manslaughter”).
Since 2000, Colorado law now allows recovery of punitive damages. A claim for punitive damages may arise if the defendant’s conduct was willful and wanton, beyond a reasonable doubt. The Defendant who killed another is protected procedurally. A claim for punitive damages may not be requested in the plaintiff’s original complaint. A family survivor must go through the added expense of presenting a prima facie claim for punitive damages in a motion after the case has been filed.
“One Action Rule”
One of the main limitations on a wrongful death claim is that there shall only be one civil action for the wrongful death of any one decedent. All claims against all defendants who are potentially liable for the decedent’s death must be brought in the same action. Further, the damages cap on grief, sorrow and loss of companionship applies to the entire case. That means that no matter how many people who are fully insured and who contributed to the death, the cap applies. In personal injury claims each defendant is liable up to the cap.
Actions under the Survival Statute
If the deceased survived for a period of time before dying as a result of the injuries caused by the wrongful act of the defendant, then the deceased’s personal representative may pursue a claim under the Survival Statue, C.R.S. § 13-20-101, to recover economic damages incurred by the deceased between the time of his or her injury and the time of death. Damages in an action under the Survival Statute are limited to economic losses incurred before the deceased’s death. Damages for the deceased’s pain and suffering are not recoverable, nor are prospective economic losses. Compounding the problems created by these limitations, a deceased person’s recovery may be completely taken by subrogation claims of hospitals, medical insurers or Medicare must be taken into consideration before a claim under the Survival Statute may be resolved.
A survival action may only be brought by the deceased’s personal representative. If no personal representative has been appointed, 45 days after the deceased’s death, a creditor of the deceased, such as a health insurer, may petition to have a personal representative appointed so that a claim for the deceased’s medical expenses may be pursued.
Child Who Dies from Fetal Injuries and Death of a Fetus
In Colorado, the parents of a child who dies as a result of injuries sustained as a fetus have standing to pursue a wrongful death action for the child’s death. Parents can also make a claim for the death of a fetus. Whether a claim for the death of a fetus may be brought depends on the medical issue of whether the fetus was “viable” at the time the fetus died. Parents must present medical evidence to establish the fact that the fetus was viable at the time the fetus was killed by the wrongful actions of the defendant.
Colorado Wrongful Death Act
Colorado's Wrongful Death Act specifies and limits the kinds of damages that can be recovered. Colorado law specifies that wrongful death claims may be made to obtain monetary damages to cover the earnings the deceased person would have provided. However, our law, in most cases severely limits the amount of damages that can be awarded for non-economic losses - the most important part of any case - the loss of the person.
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