The Role Of Punitive Damages In Wrongful Death Cases

If you lose a loved one due to someone else’s negligence, you may be eligible for compensation. For example, if the death is caused by an auto accident, medical malpractice, premises liability, workplace accident, product liability, or nursing home neglect/abuse.

In Colorado, the surviving spouse of the deceased person has the sole right to file a wrongful death claim in the first year after the death. But they can grant this right to the deceased’s heir(s) by a written election.

If there is no spouse, heirs of the deceased or a designated beneficiary can file a claim in the first year after the death. If none of these parties are available or the deceased was an unmarried minor without descendants or an unmarried adult without descendants and there is no mother or father of the deceased, Colorado law will allow a sibling(s) of the deceased or an heir(s) of the sibling(s) to file a claim.

In the second year after the death, several parties have the right to file a wrongful death claim. These include the surviving spouse, the heirs of the deceased, and a designated beneficiary. Or the deceased’s siblings or heirs of siblings if, at the time of death, the deceased had no surviving spouse, heir, or designated beneficiary.
If you are among these parties, you can claim different damages in a wrongful death lawsuit settlement — one of them being punitive damages.

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What Are Punitive Damages?

Also called exemplary damages, punitive damages are a type of compensation intended to punish a defendant for engaging in outrageous conduct that caused harm, which in this case is death. Although awarded to the plaintiff, punitive damages are not awarded to compensate for any loss. The amount is paid on top of the compensatory or actual damages.

Courts in Colorado can award this type of damages in a wrongful death case if a defendant’s actions were accompanied by circumstances of fraud, malice, or willful and wanton conduct.

In this context, willful and wanton conduct is conduct committed purposefully by someone who realizes it’s dangerous — committed heedlessly or recklessly without regard to the consequences or the rights and safety of the plaintiff.

A driver who gets behind the wheel under the influence of alcohol or other drugs, realizing that these substances can impair their driving, may be considered to have committed willful and wanton conduct if they cause an accident that results in the death of an involved party.

Why Are They Awarded In Wrongful Death Cases?

Punitive damages for wrongful death are awarded for two reasons. The first one is, as mentioned before, to punish the defendant. The second reason is to deter others from engaging in similar conduct in the future.

For instance, if a physician fails to perform all the intended tests to provide a patient with the correct diagnosis and treat it accordingly, a court ordering the physician to pay punitive damages when the patient dies as a result of their negligence can make other professionals more careful about their actions in the future.

When Can You Claim It?

You won’t include punitive damages when filing your original wrongful death lawsuit. This type of damage is only allowed by an amendment to the initial case. Such an amendment can be made 60 days after filing the claim, following the exchange of all necessary disclosures from the defendant and plaintiff, experts, witnesses, documents, damages, and insurance according to Rule 26 of the Colorado Rules of Civil Procedure.

Additionally, the plaintiff must show the existence of a triable issue on punitive damages (have enough evidence warranting a claim of punitive damage).

How Much Is Awarded?

Colorado has caps on the amount you can claim after the loss of a loved one because of someone else’s negligence. As of 2024, the cap for wrongful death damages is $2.125 million, and this will be adjusted every two years based on inflation, starting January 1, 2028.

As of January 1, 2025, damages for wrongful death cases related to medical malpractice will be capped at $1.575 million. This number will remain in effect for five years, and from then, it will be increased every two years based on inflation.

The amount awarded for reasonable exemplary damages shall not exceed an amount equal to the one paid for actual damages awarded to the plaintiff. For example, if you receive $260,000 in compensatory damages, punitive damages in your case cannot exceed this amount.

Nonetheless, the court may increase the amount of exemplary damages in a wrongful death case to a sum not exceeding three times the amount of compensatory damages if:

The defendant has continued to commit the particular willful and wanton conduct against another person while the case was pending — for instance, the drunk driver who caused the loss of your loved one is charged with another drunk driving charge before your case is finalized
A defendant’s willful or wanton conduct further aggravates your damages when they knew or should’ve known that such action would result in aggravation

The court can also reduce or disallow the award of punitive damages if:

The willful and wanton conduct that led to the award has stopped
The deterrent effect of the damages is accomplished
The purpose of the damage is served

The other party will do their best to prove these three aspects to avoid paying punitive damages or reducing them as much as possible. Thus, it’s crucial to work with a wrongful death lawyer to protect your and your loved one’s rights.

Is It Time-Barred?

Typically, civil cases in Colorado have deadlines. And since wrongful death actions are handled in civil courts, this aspect applies to them. However, your claim for exemplary damages may be exempted from the deadline included in the court’s case management order if you can prove that you didn’t discover and could not have reasonably discovered prior to the specified deadline, the grounds for claiming punitive damages.

Are You Seeking This Type Of Damage?

If you believe your loved one was a victim of an egregious behavior that led to their death, our wrongful death attorneys in Colorado can help you understand the laws surrounding your case, the documents to submit during disclosures, and the evidence you need to prove the existence of a triable issue. Punitive damages can be complicated in wrongful death claims, but it’s necessary to claim it if your case meets the needed requirements.