What is my case worth? Sometimes, the answer to this is a statutorily-limited number. I pride myself as an attorney who shoots straight and tells people the good and the bad. So, here it is: while in a perfect world, everyone would be able to collect for any damage they could prove to a jury, damage awards are limited by Colorado Statutory Law, which has been influenced by a movement labeled “tort reform.”
While the name “tort reform” sounds like it balances interests, tort reform aims to create a statutory limit on the amount that can be recovered by injured victims, regardless of the damages the injured person can prove, or the amount the jury finds appropriate.
Hypothetical Scenario: Mr. Smith’s wife is hit by a negligent driver and is severely injured. She is airlifted to the hospital, has emergency surgery, and spends one month in the hospital in a coma. After which, she dies. Mr. Smith is devastated with the loss of his life partner and exhausted from the month of emotional pain and worry at his wife’s bedside. The Liability insurance company refuses to pay though Mr. Smith repeatedly attempts to settle the matter, and Mr. Smith must sue in court. If in 2020, a jury awards more than $613,760.00 in damages for Mr. Smith’s emotional pain, suffering, and loss of enjoyment of life, this amount will be reduced by the judge in accordance with a predetermined statutory amount (the “cap”). Therefore, the judgement of our community members serving on the jury is nullified in advance, and Mr. Smith must, as a matter of law, receives less than the jury found appropriate.
How can this be? A great lobbying effort was successful in passing tort reform laws in Colorado in the 1980’s, which limit the amounts people can obtain for certain categories of damages. The lobbyists were successful in convincing legislators that the possibility of a “runaway verdict” was a threat to business. This argument was misleading because the runaway verdict perception was created with a presentation of incomplete information and misrepresents the reality of who is paying for these judgement.
The “runaway verdict” stories that are spread by tort reform proponents are meant to make the outcome of a case sound ridiculous. However, the narrative will necessarily omit important information.
For example, most people have heard of and routinely refer to the McDonald’s hot coffee case as an example of a ridiculous verdict. However, some key information is left out of the narrative. The injured woman in this case was in the parking lot with her grandson, when the coffee spilled. Her only negligence contention was that the coffee should not be served at such a high temperature. She had her inner thighs, buttocks and genitals burned and was forced to undergo extensive hospitalization, surgery, and rehabilitation to allow her to live a marginally normal life. Her body was permanently disfigured. At approximately 200 degrees, the coffee served to the plaintiff was hot enough to melt and permanently destroy flesh, and did so within seconds. I cannot imagine anyone, without knowledge of the temperature of the coffee on that day, including Plaintiff, would expect that spilling coffee would risk destruction of their genitals. But, those details do not help tort reform proponents propagate their narrative, so those facts are rarely reported.
To further explain why tort reform rhetoric is misleading, you have to know who pays when a plaintiff wins in trial. In reality, it is insurance companies, rather than businesses and individuals named in a lawsuits, who are responsible to pay for most injury claims. Insurance companies are recording record profits by collecting higher and higher premiums, while paying very little out to injured victims. One of the ways they keep these payouts low is to get caps in place and keep cap amounts from being raised. Colorado has had only one cap increase since 2008. While this recent increase is a positive step, caps are inherently unfair to injured victims and disrespectful to the jury system. Caps should be entirely discarded.
Colorado has some categories of damages not subject to caps, but those are sometimes not available to plaintiffs and even if they collect for damages not subject to a cap, insurance companies are still getting significant reductions when caps are enforced and kept low.
It is my opinion that all plaintiffs should be able to collect anything the community finds appropriate. The jury system is the chance for the community to express its will, and is disrespected when caps are used to replace the community’s judgement.
Changes in this statutory framework, however, will not occur without legislative intervention, which begins with community willingness to demand change. Therefore, it is my hope that our community can begin to discuss the impact of statutory caps on our community members. Our values and rules must reflect more than protection of profit margins, and given the recent movement on caps, I am optimistic that our community values people over profits. I hope to rejoice someday that caps are no longer part of Colorado Law.
****This post is meant for general informational purposes only and should not be misunderstood to be legal advice or any guarantee of a particular outcome. No post is a substitute for personal, case-specific legal analysis. There are many issues, which impact legal analysis, so you should obtain a legal consultation to discuss your situation. ****