Non-Economic Damages Can Not Be Recovered if the Plaintiff Passes Away During an Appeal
Colorado Court of Appeals: Colorado’s survival statute, C.R.S. § 13-20-101, provides that a person’s claims against another (except those for slander and libel) survive that person’s death. But the damages a decedent’s representative can recover may be limited to only economic damages. Damages for the decedent’s pain, suffering, or disfigurement cannot be recovered if the action is one for personal injuries.
So, if a person brings a personal injury claim but dies before recovery of damages, then those non-economic damages cannot be recovered. Likewise, when a person brings personal injury suit and recovers the non-economic damages before he dies, he dies while the judgment is on appeal, and the judgment is latter affirmed on appeal, then the prior recovery stands. But, what if, during the appeal in which the person dies, the judgment is not affirmed but is instead reversed on appeal? Can the decedent’s representative recover damages for pain, suffering, or disfigurement in the event of a new trial?
This case presented that exact situation. The decedent, Leland Sharon, sustained multiple ailments while staying the nursing facility of Defendant Belmont Lodge. He sued Defendant for negligence stemming from those injuries. A jury found in Mr. Sharon’s favor, ruling against Defendant Belmont Lodge and two other named defendants. It awarded Mr. Sharon $300,000 in noneconomic damages and $3,000,000 in punitive damages based on his pain and suffering.
One of the defendants appealed, and during that appeal, Mr. Sharon died. His representative was substituted in as the Plaintiff. The appeal resulted in a reversal of the judgment (based upon ancillary issues of a joint venture between the defendants) and a new trial was ordered. Defendant Belmont then moved for summary judgment, arguing that noneconomic damages could no longer be pursued under C.R.S. § 13-20-101 due to Mr. Sharon’s passing.
The Colorado Court of Appeals agreed with Defendant Belmont and held that noneconomic damages could no longer be pursued by Mr. Sharon’s representatives in the new trial. The Court held that reversal of the judgment put the parties in the same position they were in before the entry of the original judgment (jury verdict).
Thus, the prior judgment had no continuing legal effect. The plaintiffs for the new trial were now the representatives of the injured party, instead of Mr. Sharon himself. As such, the court held that the survival statute bared an award of noneconomic damages in the new trial.
Sharon et al. v. SCC Pueblo Belmont Operating Company, LLC et al., 2019 COA 178 (Colorado Court of Appeals, not yet released for publication in the permanent law reports).