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Colorado Property & Casualty Law In a Nutshell

Colorado Property & Casualty Law In a Nutshell

COLORADO PROPERTY & CASUALTY LAW IN A NUTSHELL

Updated February 2016

Age of Majority

18

Cap on Damages

  • Tort damages for non-economic losses are capped at $468,010C.R.S. §13-21-102.5(3)(a).  Amount can be increased by the court upon clear and convincing evidence to $936,030.  (Caps last adjusted by Colo. Sec. of State Oct. 2011.)
  • Non-economic damages in wrongful death are capped at $436,070, unless the act causing death was a felonious killing, in which case there is no cap on non-economic damages.  C.R.S. §13-21-203(1).  A felonious killing is defined as the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter.  C.R.S. §15-11-803(1)(b).  However, notwithstanding the status or disposition of a criminal proceeding, a civil court, upon petition from an interested party, can determine whether, by a preponderance of the evidence, a felonious killing of the decedent occurred.  C.R.S. §15-11-803(7)(b).  The solatium amount, if elected, is $87,210C.R.S. §13-21-203.5.  Wrongful death compensatory damages claims against a ski area are capped at $250,000, even in the event of a felonious killing.  Stamp v. Vail, 172 P.3d 437 (Colo. 2007) 
  • Dram shop liability is capped at $280,810C.R.S. §12-47-801(3)(c).
  • Damages of an injured self-employed contractor who does not have work comp insurance may be capped at $15,000 if damages would have been recoverable under a work comp policy of insurance. Cavaleri v. Anderson, 298 P.3d 237 (Colo. Ct. App. 2012).

Cattle

No strict liability and no presumption of negligence for cattle/livestock on highway or off owner’s property.  C.R.S. §35-46-101, et seq.  State has duty to erect fences along state highways in agricultural areas to protect highway motorists.  C.R.S. §35-46-111.  State v. Moldovan, 842 P.2d 220 (Colo. 1992).  Injured party must prove owner was negligent in failing to contain animal.  No person shall recover damages for trespasser injury to any garden or crops unless they were protected by a lawful fence.  C.R.S. §35-46-102(1).

Collateral Source Rule

C.R.S. §13-21-111.6.  Medical expenses billed v. paid.  Evidence of paid amount is not admissible at trial.  Crossgrove v. Walmart Stores, Inc., 276 P.3d 562 (Colo. 2012).  C.R.S. §10-1-135(10)(a).

Comparative Negligence

Colorado has modified comparative negligence.  π must prove Δ’s negligence is > than π’s negligence.  50%(π)/50%(Δ) = no recovery for π.  Where Δ’s negligence exceeds π’s negligence, π recovers only Δ’s % of negligence.  Juries are advised of the comparative negligence rule and that 50/50 finding = defense verdict.

 

Multiple Δs or designated non-parties negligence will be compared to π’s.  Defense verdict only occurs if negligence of π > than the combined total negligence of Δs and designated non-parties.

Condominium & Homeowner Associations

Most condominiums and townhomes in Colorado are governed by the Colorado Common Interest Ownership Act (CCIOA)C.R.S. §38-33.3-101, et seq.  Declarations, By-Laws and Covenants also control liability and defenses.

Construction Defects (CD)

Construction Defect Action Reform Act (CDARA) C.R.S. §13-80-802, et seq.  CDARA modified in 2003, called CDARA II, which applies to all CD litigation claims on or after 4/25/2003.  C.R.S. §§13-20-802 through 807.

 

  • Mandatory Pre-suit Notice of Claim (NOC).  Requires πs to notify construction professional of existence of claim, in writing, no later than 75 days (90 days for commercial) before action against construction professional.  C.R.S. §13-20-803.5.  Process is required for actions against third-party subcontractors, as well.  SOL is tolled during the notice of claim (NOC) process.  C.R.S. §13-20-805.
  • Description of CD in reasonable detail is required for NOC.
  • Property Inspection.  Following NOC, construction professional may request inspection of claim defect.  C.R.S. §13-20-803.5(2).
  • Offer to pay or make repairs – w/in 30 days after inspection completed for residential properties (45 for comm.).  Construction professional may offer to resolve claim by paying money or by agreeing to remedy CD claims.  C.R.S. §13-20-803.5(3).
  • Claimant’s response to const. professional’s offer.  Clmt. must accept in writing contractor’s offer to repair or to resolve claim no later than 15 days after receipt of offer.  C.R.S. §13-20-803.5(4).  Alternatively, Clmt. may proceed with litigation.
  • Limitations on negligence claims in CD cases.  In absence of actual damage to real or personal property, loss of use of property, bodily injury or wrongful death or a risk of bodily injury or death to the occupants of residential property, Clmt. cannot sue for failure to construct in substantial compliance with applicable building code or industry standard.  C.R.S. §13-20-804.
  • Statute of Limitations = 2 years.  C.R.S. §13-80-104(b)(I) –Suit must be commenced within 2 years from when “claimant or the πs predecessor in interest discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury.”
  • Statute of ReposeC.R.S. §13-80-104(2) creates two periods of repose:  (1) 6-year “conditional”; and (2) an 8-year “absolute”.  If during 5th or 6th year after substantial completion, Clmt. discovers a defect, Clmt. gets additional 2 years from the date of actual or constructive knowledge.  Thus, some suits may commence during 7th or 8th year following substantial completion.
  • Actual Damages - C.R.S. §13-20-802.5(2) defines actual damages as follows:  (1) fair market value of the real property without the alleged CD; (2) replacement cost of real property; or (3) reasonable cost to repair CD together with “relocation costs.”
  • Indemnity Clause Invalid -  C.R.S. §13-21-111.5(6)(b) holds that a provision in a construction contract that requires a person to indemnify another person for damage caused by the negligence of the indemnitee or any third party under the control of the indemnitee is void. 
  • Repair Costs may exceed mkt. value if not unreasonable, for residential property only; this is not considered economic waste in Colo.  Board of County Comm’rs v. Slovek, 723 P.2d 1309 (Colo. 1986).
  • Emotional Distress Damages generally not available in property damage case, but are available in residential real estate and CD cases.
  • Duties of Builder – Builder owes duty of reasonable care in construction of home and improvements.  Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1045 (Colo. 1983).
  • Duties of Subcontractor – Subs have an “independent duty to act without negligence in the construction of homes.”  A.C. Excavating v. Yacht Club II Homeowner’s Association, Inc., 114 P.3d 863 (Colo. 2005).
  • Vicarious liability for Subs – See Cosmopolitan Homes, supra, Wright v. Creative Corp., 498 P.2d 1179, 1182-83 (Colo. Ct. App. 1972).

Court Approval for Minors

Court approval for the settlement of a minor’s claim is advised for any settlement over $5,000, and required for any net settlement over $10,000 and requires a conservatorship.  C.R.S. §15-14-101, et seq.

Courts

  • Small Claims$7,500 limitC.R.S. §13-6-403(i).  π cannot be represented by lawyer.  Δ who wishes to be represented by lawyer must make request no later than seven days before hearing.  No jury.  Small Claims Court Rules of Procedure (relaxed rules of evidence and no discovery or disclosure) are utilized.
  • County Court$15,000 limitC.R.S. §13-6-104(1).  Jury trial available.  No discovery without court approval.  No disclosure practice.  No motion practice without leave of court.
  • District Court – Claims of any value.  Dec. actions.  No minimum limit.  All cases initially subject to presumptive simplified civil procedure (C.R.C.P. 16.1), which has detailed disclosures of witness testimony and exhibits; limits discovery to IME; and limits recovery to $100K.  Either party may opt out.

 

Declaratory Judgment

Permitted.  Dec. action on issue of insurance coverage is stayed if resolution of coverage issue requires fact finding and determination that would potentially prejudice the insured in pending tort litigation.

Dog Bites

  • Colorado no longer has a “one bite” rule for serious bodily injury or deathC.R.S. §13-21-124 (2013) (“dog bite statute”).  The dog bite statute allows victim to maintain an action for economic damages regardless of a dog’s vicious propensity or the owner’s knowledge or lack of knowledge about them.  If the owner had knowledge or notice of a dog’s dangerous propensities, then the victim may move for the animal to be euthanized.
  • The dog bite statute interplays with the Colorado Premises Liability Act (PLA) (C.R.S. §13-21-115) (2012) when the dog bite occurs on property owned by a dog owner.  The dog bite statute applies to dog bites on public property or on property owned by someone (i.e., tenant/renter) other than the dog owner.  The dog bite statute provides additional defenses to the PLA where the injury is on the dog owner’s property and where the π was unlawfully on the property, the property had a posted “beware of dog” or “no trespassing” sign or the dog is working as a hunting, herding, or farm/ranch dog.  C.R.S. §13-21-124(5).  For damages other than economic, the one bite rule still applies.

 

  • The dog bite statute applies to π’s recovery of economic damages only.  It imposes strict liability for economic damages incurred as a result of a dog bite.  Economic damages are not recoverable for a π who was unlawfully on the property where the bite occurred – public or private property.  Private landowners are exempt from liability if they have posted a “beware of dog” or “no trespassing” sign.  If π knows that a dog is present on the property, a federal court judge has ruled that the landowner is likewise exempt from liability, just as if a sign had been posted.  See Ganser v. Ganser, 2008 U.S. Dist LEXIS 64010 (D. Colo. Aug. 21, 2008).

Dram Shop Liability

Vendor not liable for injury to 3rd party unless liquor was willfully and knowingly served to person under age 21 or to visibly intoxicated person.  Social host is liable only if knowingly serves a person under age 21, or knowingly provides a person under 21 a place to consume alcohol.  Damage cap $280,810.  C.R.S. §12-47-801(3)(c)One year statute of limitations from date of sale or service of alcoholic beverages.

Immunities

  • Parental Immunity – Children cannot sue their parents for injuries caused by a parent unless the parent’s negligence occurred in the course of a business activity, or if the parent behavior was willful and wanton or intentional. 
  • No Spousal Immunity.  Either spouse may sue the other for all torts.
  • Employer and Co-Employee Immunity – Employee injured in course and scope of employment cannot bring tort action against either employer or a co-employee.  WC = sole remedy.
  • Governmental Immunity – Applicable except for types of conduct where immunity has been specifically waived by statute, i.e., operation of a government-owned vehicle by a government employee and negligent design, operation or maintenance of government property.

Insured’s Failure to Notify Insurer of Claim or Suit

Insurer may disclaim coverage if insured fails to notify the insurer of claim or suit as required by insurance contract.  However, insurer must prove it has been prejudiced by the failure to notify.  Friedland v. Travelers Indemnity Co., 105 P.3d 639 (Colo. 2005); extended to the “no voluntary payment” clause, Stresscon Corporation v. Travelers Property Casualty Company of America, (Colo. Ct. App. 2013) LEXIS 1451 (pending).  Otherwise, failure is excused and coverage remains.  Id.

 

Interest

  • For Personal Injury:  C.R.S. §13-21-101 holds that simple interest of 9% is awardable from the time the injury accrues until the day before suit is filed, and interest at the rate of 9% compounded annually is awardable from the date suit is filed until the date the judgment is satisfied.
  • For Other Claims:  C.R.S. §5-12-102 holds that interest is awardable on all other claims at the rate of 8% compounded annually from the date the action accrued. 

 

Pre-judgment interest included in policy limits.  Post-judgment interest is in excess of policy limits.  C.R.S. §13-21-101.

 

Joint and Several Liability

There is none unless conspiracy  or joint venture exists.  C.R.S. §13-21-111.5(4).  In case of multiple parties, each party is liable to π only for that party’s own % of negligence.  Δ cannot be responsible to π for amt. > than his % of negligence.  As such, contribution and non-contractual indemnity no longer exist in person injury suits.  C.R.S. §13-21-111.5(1).

Loss of Consortium

Permitted.  Consortium claim is derivative for the purposes of comparative negligence.  Consortium claim must be resolved specifically or it may survive settlement of main claim.  Lee v. Colo. Dept. of Health, 718 P.2d 221, 232 (Colo. 1986). 

Mediation

ADR – Colorado judges can order ADR (non-binding settlement or mediation conference) pursuant to C.R.S. §§ 13-22-311 and 313 and C.R.C.P. 16(b)(6).  Most courts will issue an order.

Negligence of Minor

Children under age 7 are presumed incapable of negligence.  Children 7 years of age and older are held to the std. of reasonable conduct of a child of similar age.  CJI-CIV. 9:9 (CLE ed. 2013).

Non-Parties

In a civil case, the fact finder may consider the degree or % of negligence or fault of a person not a party to the action.  C.R.S. §13-21-111.5(3)(a).  Designation must be made w/in 90 days of the commencement of the action unless the court determines a longer period is necessary.  C.R.S. §13-21-111.5(3)(b).  Designees may include persons who are deceased, unidentified or immune from suit.  If π fails, or is unable, to bring in a designated non-party as a Δ, and that non-party is assessed a % of negligence, the Δ is responsible to the π only for his own % of fault, not that of the non-party.

Statutory Offer of Settlement (SOS)

This is not an offer of judgment.  Colorado permits any party to extend a statutory offer in writing by one party to another during litigation.  C.R.S. §13-17-202.  Prevailing parties receive awarded costs at the conclusion of the litigation.  However, if π rejects a SOS and the judgment entered for π (verdict plus costs and interest up to time of offer) is < the amount of the SOS, π is not allowed to recover costs beyond the SOS offer date and must pay the costs of Δ accruing after the offer.  C.R.S. §13-17-202(1)(a)(ii).  If π receives an award from the jury, π is still entitled to costs as prevailing party up through the date of the statutory offer of settlement.  IdC.R.S. §13-17-202(1)(a)(ii).

 

Offer is open for 14 days and must be made in writing.  In cases with multiple πs and/or multiple Ds, offer must be specific as to each party.  Askew v. Gerace, 851 P.2d 199 (Colo. Ct. App. 1992) rev’d on other grounds.  Withdrawal of the offer must be in writing.

 

Colorado case law permits offers of settlements to be inclusive of all subrogation interests and/or liens that may exist upon or against any settlement or judgment in the case.  Strunk v. Goldberg, 258 P.3d 334 (Colo. Ct. App. 2011).

 

F.R.C.P. 54(d) governs the award of costs in federal court, and the costs that are recoverable under that rule are very limited.  For example, the costs recoverable for an expert witness are limited to $40/day for each day the witness testifies at trial.  28 USCA §1821. 

 

Premises Liability

A property owner’s liability is determined by the status of the π as a trespasser, licensee or invitee.  C.R.S. §13-21-115The status of a π is determined by the court pre-trial.  C.R.S. §13-21-115(4).  “Landowner” includes (a) an authorized agent or person in possession of real property (title owner or property manager); and (b) a “person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.”  C.R.S. §13-21-115(1).  A landowner could be a subcontractor, a service provider or any other entity doing work on real property and leaving it in a negligent condition.  See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1221 (Colo. 2002).

 

The Colorado Premises Liability Act applies to more than activities and circumstances that are directly and inherently related to the land, and extends to condition, activities, and circumstances on the property that the landowner is liable for in its legal capacity as a landowner.  Larrieu v. Best Buy, 303 P.3rd 558 (Colo. 2013).

 

  • Trespasser – May recover only for damages willfully or deliberately caused by landowner. A Trespasser is a person who enters or remains on the land of another without the landowner's express or implied consent.

 

  • Licensee – May recover for damages caused by:
  • By landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by landowner of which landowner actually knew; or
  • By landowner’s unreasonable failure to warn of dangers not created by landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.

A Licensee is a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner permission or consent.  "Licensee" includes a social guest.

  1.  

 

  • Invitee – May recover for damages caused by landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have knownC.R.S. §13-21-115(3)(a-c).

 

An Invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.

 

Punitive Damages

Cannot exceed amount of actual damages except that damages can be trebled by the court following a post-trial hearing if court determines that willful and wanton conduct, which led to punitive damages, has not ceased.  C.R.S. §13-21-102.

 

  • Note:  π may not include a claim for exemplary damages in the initial complaint.  π may move to amend complaint following initial CRCP Rule 26(a)(1) disclosures if π establishes prima facie proof of a triable issue. C.R.S. §13-21-102(1.5)(a).
  • While an award of punitive damages can only be based on conduct arising before the injury, evidence of post-accident conduct can be admissible to demonstrate the reprehensible nature of the defendant’s actions in order to prove willful and wanton conduct.  Quest Services Corp. v. Blood, 252 P.3d 1071 (Colo. 2011).

 

Punitive damages are not permitted in a wrongful death action.  Burron’s Estate v. Edwards, 594 P.2d 1064 (Colo. Ct. App. 1979).

Responsive Pleading

An answer or other responsive pleading/motion must be filed within 21 days if Δ is served in ColoradoIf a Δ is served outside Colorado, rule allows 35 days to file.  Id.  C.R.C.P. 12(a).  County Court and Small Claims Court specific response date is specified on summons.

Statute of Limitations

  • Assault, battery, libel, slander = one yearC.R.S. §13-80-103(1)(a).
  • Tort, including negligence and premises liability (except automobile liability) = two yearsC.R.S. §13-80-102(a).
  • Wrongful death = two yearsC.R.S. §13-80-102(1)(d).
  • Bodily injury and property damage arising from auto accident = three yearsC.R.S. §13-80-101(1)(n)(i).
  • Fraud, misrepresentation and concealment = three yearsC.R.S. §13-80-101(1)(c).
  • Breach of trust or breach of fiduciary duty = three yearsC.R.S. §13-80-101(1)(f).
  • Contract liability = three yearsC.R.S. §13-80-101(1)(a).

Construction Defect = see CD sec.

Venue

There are 64 counties in Colorado.  Tort case venue is proper in the county where the Δ resides or where the tort occurred.  C.R.C.P. 98(c).  Generally, challenge to venue must occur by motion before filing an answer, otherwise it is waived.  C.R.C.P. 98(e).  However, a Motion to Change Venue can be filed any time before a case is set for trial (1) if a consumer contract is involved, (2) for the convenience of the witnesses, or (3) when a party cannot otherwise get a fair trial.  CRCP 98(e).  Venue is an important consideration for Δs in Colorado as some counties are more liberal than others.