Colorado Injury Lawyer & Attorney : Mac Hester : Personal Injury, Auto Accident, Medical Malpractice : Serving Denver, Colorado Springs, Aurora

Your client's auto crash injury medical bills were paid by the client's employer's health insurance. Your client aks: "My health insurer says that it is entitled to 100% reimbursement from my settlement. Can they do that?"

Indeed, can they do that?

If you're giving one word answers to that question then contact your malpractice carrier. Whenever I get that question I have to psych myself up to deliver the ERISA lecture as well as to prepare the client to receive it. I won't deliver the ERISA lecture here, but I will give a synopsis.

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Most attorneys and judges don't understand negligence per se. They treat it the same as negligence; i.e., at trial, they talk about the "reasonable person" and the "reasonable care" standard of liability with no differentiation between negligence and negligence per se. But the reasonable person/reasonable care standard does not apply to many negligence per se claims. Why?

Because the standard of care in a negligence per se claim based on a statute is the standard of care contained in the statute. And, the standard of care is often not the reasonable person standard.

Take, for example, C.R.S. 42-4-702 (left turn statute): "The driver of a vehicle intending to turn left within an intersection...shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection...."

The left turn statute does not contain a standard of reasonable care.

Consider, on the other hand, C.R.S. 42-4-1402 (careless driving statute): "Any person who drives any motor vehicle, bicycle, or motorized bicycle in a careless and imprudent manner, without due regard for the width, grade, curves, corners, traffic, and use of the streets and highways and all other attendant circumstances, is guilty of careless driving."

The careless driving statute does contain a standard of reasonable care.

So how should you present (or exclude) evidence and law on a negligence per se claim that doesn't have a reasonable care standard?

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• Non-economic damages: $366,250 ($250,000 adjusted for inflation). But can be doubled if "clear and convincing evidence" shown. C.R.S. 13-21-102.5.
• Punitive damages:  Not to exceed actual damages. C.R.S. 13-21-102.
• Health care providers:  $1 million present value presumptive total, but may be exceeded for good cause shown if application of the cap is unfair; $300,000 for non-economic damages. C.R.S. 13-64-302.
• Wrongful death: Economic damages not capped. Non-economic $341,250. C.R.S. 13-21-203.
• Solatium for wrongful death:   $68,250. Economic damages not capped. C.R.S. 13-21-203.5.
• Alcohol vendors, hosts:   $219,750. C.R.S. 12-47-801.
• Ski areas:  $1 million present value; $250,000 non-economic. C.R.S. 33-44-113.
• Government:  $150,000 per person; $600,000 per incident. C.R.S. 24-10-114.
• Recreational lands:  $150,000 per person; $600,000 per incident. C.R.S. 33-41-103.
• Construction professionals:  $250,000. C.R.S. 13-20-806.
• Volunteers:  Applicable vehicle liability coverage. C.R.S. 13-21-115.5.
• Reservoirs:  Must carry at least $50,000 per person and $500,000 per incident liability coverage (if so, then certain pesons are immunized). C.R.S. 37-87-104.
• Damage caused by minor:  $3500. C.R.S. 12-21-107.

NOTE: This is only a summary of certain damage "caps"  and should not be solely relied upon. The applicable statutes must be reviewed carefully, as the statutes contain conditions, qualifications, and exceptions; e.g., the Governmental Immunity Act has a strict 180 day notice requirement that must be formally complied with.

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At common law, compensation paid to the injured person from a collateral source, independent of the tortfeasor, did not reduce the damages owed by the tortfeasor.

Now, by statute (C.R.S. 13-21-111.6), the trial court will reduce the verdict by the amount of collateral sources - except that the verdict cannot be reduced by compensation paid to the plaintiff as a result of a contract entered into and paid by or on behalf of the plaintiff. Quite often this "contract exception" swallows up the general rule of the statute, as shown in the cases below.

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With the repeal ("sunsetting") of Colorado's No-Fault legislation on July 1, 2003, Colorado reverted to the "tort" system.

Claims arising out of pre July 1, 2003 motor vehicle crashes must proceed under the "no-fault" system, while claims arising out of post July 1, 2003 motor vehicle crashes must proceed under the "tort" system.

Colorado has a three year statute of limitations for personal injury claims arising out of motor vehicle incidents, so most "no-fault" cases were gone by July 1, 2006 (But pre July 1, 2003 claims that were not filed prior to July 1, 2006 are not necessarily SOL; e.g., minor's claims).

Under the prior no-fault system, an injured person had to satisfy one of several "threshold" requirements in order to maintain an action against the negligent party. Under the current tort system, there is no "threshold" to satisfy prior to filing a suit against the negligent party.

Colorado's statutorily mandated minimum auto liability coverage is $25,000.

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Negligence claims in Colorado require the four elements that were drilled into your skull during Torts class in law school: (1) Duty; (2) Breach of duty; (3) Causation; and (4) Damage.

The standard of care is the usual reasonable person standard; i.e., a person is required is exercise the degree of care or skill that a reasonable person would have exercised in the same or similar circumstances.

Colorado is a comparative negligence state. The plaintiff cannot recover if his/her percentage of fault is greater than or equal to the defendant's. At trial, the jury is required to assign percentages of fault. With one plaintiff and one defendant, it's a 50/50 rule. A 50/50 verdict is a defense verdict. Fortunately, that outcome can be explained to the jury.

Pro Rata liability: By statute, a defendant is liable only for his/her percentage of fault, and the plaintiff cannot recover damages commensurate with his/her percentage of fault.

Non-Parties at Fault: The defendant can designate persons or entities who are not parties to the action but who may share some percentage of fault.

The plaintiff's percentage of fault is compared with the total of the defendants' fault. For example, if the plaintiff is 30% at fault, Defendant A is 50% at fault, Defendant B is 10% at fault, and Non-Party is 10% at fault and the verdict is for the plaintiff in the amount of $100,000, then Defendant A is liable for $50,000, Defendant B is liable for $10,000, and Non-Party is not legally liable because the Non-Party was not a party to the action and did not have his/her day in court. The plaintiff recovers $60,000.

NOTE: (1) There is "pure" comparative fault in Product Liability claims. (2) The Colorado legislature preempted all common law claims for "premises liability" with the enactment of the "Premises Liability" statute - which made an action under the statute  the exclusive remedy for injuries caused by conditions or activities upon land. The inartfully drafted statute and the subsequent cases attempting to interpret and apply the statute have created confusion and chaos regarding negligence claims and defenses when persons are injured on premises. This will be addressed in a subsequent "Premises Liability " article.

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I am, as I am typing this post, looking out my window at the diamond shaped east face of  Longs Peak, the most majestic of the 54 14'ers in Colorado, wondering why I am writing about it instead of climbing it. A natural question for a climber, to be sure, but a curious one for the publisher of a law blog. But, of course, this is a rhetorical question that segues quite nicely into why I am writing this blog. There are various reasons to write a law blog - from the mercenary (advertising one's talents and experience, marketing to potential clients and counsel for cases and referrals, stroking one's own ego) to the charitable (helping injured people; helping fellow trial lawyers) to the personal (self expression). I must admit that all of these reasons factor into why I have launched this blog, but the "real" reason is more basic. The basic reason is resonance. Climbing "resonates" with something basic in my being, so I not only love to do it but also to talk and write about it. Trial practice also resonates with me, so I am compelled to talk and write about it. Up until now, I have satisfied this basic urge through trial lawyer mail lists and discussion groups, but the blogosphere has opened up a whole new world for me. I hope that some of the topics or entries in this blog resonate with you. I have strongly held opinions and I'm not going to pretend to be neutral or objective  on everything (or anything, for that matter) - which I suppose is a good thing, as neutrality and objectivity is desireable for news reporting but boring in the blogosphere. Please feel free to comment or offer your opinions.  Welcome to the Colorado Trial Practice Blog.

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