CCJL Blog

CCJL applauds Supreme Court ruling in Lucht's vs. Horner

Tue, 31 May 2011 22:04:00 GMT

Colorado Civil Justice League applauds a unanimous decision by the Colorado Supreme Court which will benefit both employers and employees.

The decision in Lucht's Concrete vs. Horner (Case No. 09SC627) reversed a Court of Appeals ruling that held that continued employment is not adequate consideration for a noncompetition agreement once an employee has been hired.

"We find no distinction between a decision to agree to a noncompetition agreement offered at the initial hiring period and a decision to agree" after employment has begun, wrote Justice Allison Eid.

The court re-affirmed that an at-will employment contract is renewed on a daily basis and that an employer and an employee both enjoy the right to terminate that contract on any given day.

"Lucht's had the legal right to discharge Horner; however, it chose not to exercise this right in exchange for Horner's acceptance of the noncompetition agreement," the court ruled.

In a brief written by legal advisory board chairman Christopher L. Ottele, CCJL argued that the law makes no distinction between agreements that benefit the employer and obligate the employee or vice versa.

Ottele observed that the Court of Appeals ruling would have absurdly encouraged employers to discharge an employee and condition rehiring on the signing of a noncompetion agreement. The ruling also threatened to overturn decades of Colorado precedent that had enforced agreements between at will employees and employers based solely on continued employment.

To read the Court's opinion, go to our Legislation and Issues Page.

June 9 Breakfast Briefing

Fri, 27 May 2011 16:46:00 GMT

Click here for details and to RSVP!

Most Ridiculous Lawsuit of the Month

Thu, 19 May 2011 11:47:00 GMT

Vote for the Most Ridiculous Lawsuit of the Month for May!

"Wet floor" sign falls on woman's foot; she sues for mental anguish.

Widow of cop-killer files lawsuit; wants payment for his death in shootout.

West Virginia man sues employer after he was bitten by spider while at work.

Florida lawyer sues over $19,000 bar tab.

Mother sues McDonald's for including toys in Happy Meals.

Click HERE to vote for your "favorite" or to read the details of each.

Was it something we said? CTLA bigwig gets testy

Sun, 08 May 2011 18:16:00 GMT

An op-ed column in the April 17 Pueblo Chieftain by CCJL’s Mark Hillman apparently got under the skin of Colorado Trial Lawyers Association vice president James M. Croshal, whose letter to the editor displayed tactics with which defendants against frivolous lawsuits are all too familiar.

After claiming that the op-ed was “inaccurate and untrue,” Croshal engages mostly in argument and identifies only one “fact” as untrue:

“I . . . know for a fact that (CTLA) did not sponsor or propose the legislation that Mr. Hillman rants against.”

There’s only one problem – Hillman’s column said nothing of the sort. He merely noted that “trial lawyers and their anti-business enablers” argued for Senate Bill 72 as if they believed that “lawyers never bring frivolous lawsuits” and “employees never file dubious claims” against former employers.

Defending themselves against claims created out of whole cloth is a tactic that costs Colorado businesses thousands of dollars in distractions, lost productivity and, oh yeah, attorney costs.

It seems Croshal doth protest too much — and too little. Tellingly, he doesn’t dispute the hard facts in Hillman’s column:

That more than 90 percent of complaints filed with the Colorado Civil Rights Division failed even to show probable cause.
That those meritless claims may, nonetheless, proceed to court for a second bite at the apple.
That accused employers must defend themselves against those frivolous claims at costs of $25,000 to $50,000 without ever going to trial and upwards of $100,000 if the case proceeds to trial.

Otherwise, his letter largely consists of the same old arguments – that it’s not “anti-business” to allow employees to “protect their rights” – that is, the right to sue their employers.

Of course, the right to sue isn’t a right in the traditional sense, as rights – the right to freedom of speech, or of religion, or to petition government, or to keep and bear arms – impose no burden anyone else.

By contrast, the “right” to sue your employer is by its very definition a burden – saddling employers with the expense and distraction of proving their innocence by justifying hiring and firing decisions to jurors who may not have any experience with running a business or managing employees.

That’s why legislature must responsibly regulate the ability to sue.

Finally, Croshal has his knickers in a twist that businesses “are able to write off the cost of a lawsuit as a business expense.”

If, as a consequence of doing business, an employer can be sued and thereby forced to spend thousands of dollars defending its practices, then why, pray tell, should paying for that legal expertise be any less deductible as a business expense than paying an accountant to keep the books or paying another attorney to handle a transaction?

Mr. Croshal’s contention to the contrary puts his business credentials – and more particularly his common sense – in serious doubt.

Trial Lawyer Logic: Right to sue more important than jobs

Mon, 25 Apr 2011 13:06:00 GMT

Op-Ed published in Colorado Springs Gazette on April 21.

To hear trial lawyers and their anti-business enablers tell it, the only thing that prevents Colorado employers from literally chaining workers to their desks is the "right to sue" their dastardly bosses. In this fantasy world, trial lawyers never bring frivolous lawsuits and fired employees never file dubious claims motivated but grudges against their former employers.

In fact, listening to testimony recently on Senate Bill 72 (sponsored by Sen. Morgan Carroll, D-Aurora, and Rep. Claire Levy, D-Boulder), the uninitiated could be forgiven for wondering — given the obvious virtue presumed by the bills' supporters — why the sponsors don’t propose a new law that simply accepts employees' claims at face value, dispenses with the inconvenience of a trial, and orders those heartless employers to immediately deposit funds into plaintiffs' bank accounts.

Maybe that’s on their agenda for next year.

Fortunately for Colorado job creators and workers who want a job rather than a chance to play "litigation lottery," the bill died in the House State Affairs Committee — the third time in as many years that similar legislation has failed. This year, the tally sadly fell along party lines. In the two previous iterations, sensible members of both parties united to recognize this idea as shortsighted and anti-economic growth.

According a local liberal website that repeated proponents’ arguments as fact, the problem is that "employees are protected against workplace discrimination for race, age, gender and sexual orientation" but "they are not allowed to collect punitive damages, compensatory damages or attorney fees even if they prove discrimination" to "the Colorado Civil Rights Commission."

That's one way to look at it — albeit from a shallow, tendentious position that views litigation as job creation.
Employers know all too well that they can do everything by the book and still find themselves hiring a lawyer to defend a discrimination claim — often tantamount to proving their own innocence — either in court or to the Civil Rights Commission or both.

In fact, the 2009 annual report from the Colorado Civil Rights Division reveals that almost 92 percent of complaints failed even to show probable cause. At the federal Equal Employment Opportunity Commission, more than 95 percent of complaints were meritless.

For employers, that means their time and resources are needlessly wasted answering 10 to 20 frivolous complaints for every one that may be legitimate. Those distractions — which divert from the business of providing goods and services to their customers — are not inconsequential. Responding to a complaint can easily cost $25,000 to $50,000. Going to trial raises that cost to more than $100,000.

Perhaps employers should demand that those who bring meritless lawsuits be required to pay their employers’ legal costs.

Worse yet, when the Civil Rights Commission fails to find probable cause, that’s not the end of the case, plaintiffs are not barred from filing the same claim in court.

Plaintiffs and attorneys — who typically receive 33 to 40 percent of an award or settlement — know that businesses must weigh both the financial cost and the workplace disruption caused by a discrimination complaint. They often file dubious claims with the aim of reaching a pre-trial settlement from an employer willing to write a check to make the legal harassment just go away.

If responding to such tactics is a costly nuisance to large employers, it can be devastating to small businesses that were the target of Senate Bill 72.

In today’s economy, just keeping the doors open and providing jobs for hard-working employees hard enough without trial lawyers and anti-business legislators compounding those challenges with the unnecessary and costly distraction of fighting more frivolous lawsuits.

Crossgrove plaintiff seeks phantom damages 6x actual cost

Thu, 21 Apr 2011 19:37:00 GMT

In a case that illustrates the absurdity of last November's Colorado Supreme Court decision to enshrine victims' phantom damages, the same court will hear arguments in Crossgrove v. Walmart.

Larry Crossgrove is a delivery driver who was injured when a garage door at a Walmart facility struck him in the head. He sued Walmart for medical costs of $240,000, plus $100,000 in lost wages. However, the cost of treatment for Mr. Crossgrove was $40,000 — which the trial court allowed as evidence, but a panel of the Colorado Court of Appeals ruled the jury should not have been allowed even to consider.

That's right — the billed amount for Mr. Crossgrove's medical treatment was six times greater than the actual paid cost of care. According to last year's Gardenswartz decision, the state Supreme Court says Mr. Crossgrove is entitled to the $200,000 windfall simply because he had purchased health insurance.

Thanks to the Colorado Senate's party-line vote to kill House Bill 1106, which would have allowed juries to consider both billed and paid amounts, every Colorado resident who buys liability insurance — for their automobile, their business, their property —can expect to see their rates increase to pay for more phantom damages awards.

Trial Lawyer Logic: Right to sue more important than jobs

Mon, 11 Apr 2011 16:48:00 GMT

Fortunately for Colorado job creators and workers who want a job rather than a chance to play "litigation lottery," the bill died in the House State Affairs Committee — the third time in as many years that similar legislation has failed. This year, the tally sadly fell along party lines. In the two previous iterations, sensible members of both parties united to recognize this idea as shortsighted and anti-economic growth.

CCJL thanks Ed Kennedy, an employment and business law attorney at Hall & Evans who testified on behalf of CCJL, as well our allies in the business community to helped to defeat SB 72 and legislators who demonstrated the courage and common sense to vote against it.

Party-line vote kills phantom damages fix

Wed, 30 Mar 2011 00:56:00 GMT

Despite the sponsor's effort to find common ground with the bill's critics, Democrats on the Senate Local Government Committee today sided with trial lawyers and against doctors, families and Colorado businesses to kill House Bill 1106 on a 3-2 party-line vote.

Presented to overturn a bizarre 4-3 decision by the Colorado Supreme Court in November 2010, HB 1106 clarified how medical costs should be calculated in personal injury cases. The court's majority found that injured plaintiffs were entitled to "billed" medical costs -- even when the billed amount greatly exceeded the amount ultimately paid. A survey by Colorado Civil Justice League of recent cases found that billed amounts sometimes exceeded the paid amount by two, four or, in one case, eight times.

After explaining the bill, sponsor Sen. Ellen Roberts (R-Durango) immediately presented an amendment which would ensure that juries could consider both billed and paid amounts and determine fair compensation.

Doctors testified that failure to pass HB 1106 will increase their insurance premiums. Likewise, Colorado drivers can expect to see an increase in liability insurance which now must cover the actual cost of treatment plus billed amounts that were never owed and never paid.

Voting to kill the bill were committee chair Sen. Joyce Foster (D-Denver), as well as Sen. Jeanne Nicholson (D-Black Hawk) and Sen. Irene Aguilar (D-Denver). Voting to pass the bill and to overturn the court's decision were Sen. Roberts and Sen. Bill Cadman (R-Colorado Springs).

In the end, however, it appeared that the curious assignment of the bill by Senate President Brandon Shaffer (D-Longmont) to the Local Government Committee was a favor to the trial lawyer lobby which apparently was not certain it could defeat the bill in the Senate Judiciary Committee, where civil law bills are typically heard.

CCJL appreciates the hard work of bill sponsors Rep. Bob Gardner (R-Colorado Springs) and Sen. Roberts (R-Durango), as well as the support for HB 1106 from our allies and members in the medical and business community.

Key hearing Tuesday for bill to stop phantom damages

Sun, 27 Mar 2011 20:56:00 GMT

After clearing the House of Representatives on a bipartisan 37-27 vote, House Bill 1106 (sponsored by Rep. Bob Gardner, R-Colorado Springs, and Sen. Ellen Roberts, R-Durango) is slated for a hearing in the Senate Local Government Committee on Tuesday, March 29, at 2 p.m.

The curious committee assignment, the prerogative of Senate President Brandon Shaffer (D-Longmont), evoked considerable speculation among state capitol observers who debated whether the assignment amounted to a lifeline, a death sentence or a "jump ball" in the five-member committee which does not ordinarily consider bills pertaining to civil law.

For Sen. Roberts, the bill sponsor, Local Government is familiar territory — a committee on which she serves. The committee is chaired by Sen. Joyce Foster (D-Denver) and also includes vice chair Sen. Jeanne Nicholson (D-Black Hawk), Sen. Irene Aguilar (D-Denver) and Sen. Bill Cadman (R-Colorado Springs).

HB 1106 aims to overturn a controversial, 4-3 decision issued last November by the Colorado Supreme Court that would allow successful plaintiffs to collect damages for medical costs that they never paid and never actually owed — undermining a 1986 statute that sought to prevent plaintiffs from turning a profit from their injuries.

Left untouched, the court's ruling will drive up the cost of health care by pushing up insurance costs for doctors and other health care providers. Colorado drivers will also see the cost of mandatory liability insurance increase if they must pay far more than the actual cost of medical care for people injured in traffic accidents.

While doctors, hospitals and the business community have lined up in support of HB 1106, trial lawyers and medical lien providers have resorted to spurious arguments in their desperate attempts to defeat the bill. To correct the record and respond to opponents' distortions, CCJL last week unveiled HB 1106: Fact vs. Myths.

Rep. Gardner: Ending phantom damages will preserve common sense in the courtroom

Sun, 27 Mar 2011 20:31:00 GMT

(Published in the Denver Business Journal)

This year, the Colorado General Assembly can bring common sense back to the courtroom by ensuring that personal injury lawsuits do not needlessly inflate damage awards with “phantom damages.” House Bill 1106 would overturn a controversial decision from a divided Colorado Supreme Court last November.

Anyone who has received a bill from a doctor or hospital knows that the amount of the initial bill is more than what will ultimately be paid by your health insurance company. Hospitals and other health care providers routinely agree to accept payments from insurers that are less than the billed amount. However, the 4-to-3 majority decision in Volunteers of America vs. Gardenswartz, decided by the Colorado Supreme Court late last year, requires defendants to pay damages above and beyond the actual cost of the medical bills.

The dissenting opinion, written by Justice Nancy Rice, argued sensibly that this distortion of the existing law would allow plaintiffs to “recover nearly any theoretical damages.”

“The majority reconstitutes the same type of double recovery that the legislature intended the statute to prevent,” Rice wrote, calling the decision “contrary” to the “legislature’s clear intent (and) the statute’s plain language.”

Allowing the court’s newly-established precedent to stand will result in more litigation and higher insurance premiums – neither of which Colorado’s economy can afford. Colorado Civil Justice League, the state’s leader in the fight against lawsuit abuse, reviewed a sample of recent court cases in which the plaintiff sought to recover the higher “billed” amounts.

This analysis found that billed amounts averaged more than four times more than the amount ultimately paid to satisfy all medical costs. In these cases, phantom damages averaged $352,000 per case. Such unjustified windfalls create an incentive to litigate for personal injury lawyers, who typically take 33 to 40 percent of their client’s award.

If this court decision is allowed to stand, medical malpractice insurance premiums paid by Colorado doctors are conservatively estimated to increase upwards of 10%. At a time when policy makers are trying to expand access to healthcare, such an increase in costs will hurt local doctors like Dr. Brian Harrington – the only family physician in his northwest Colorado community delivering babies. Such doctors are between a rock and a hard place, which is why a sizeable insurance premium increase could well drive additional doctors out of practice or to less risky specialties.

HB 1106 applies only to health care costs that have already been paid and therefore have already been objectively valued. The bill doesn’t limit recovery for other types of legitimate damages.

Trial lawyers argue that limiting medical costs to the amount actually paid will reward the wrongdoer and punish the victim who had the foresight to purchase insurance. That’s faulty logic.

We purchase insurance to cover the cost of certain circumstances that are unforeseen, unfortunate and usually very expensive. No one buys insurance with the intent of one day winning the “litigation lottery.” In fact, most consumers appreciate it when insurers negotiate a discount because they know it keeps premium costs down.

In many injury cases, both parties are insured. In fact, it’s not difficult to envision the coincidence of the plaintiff and defendant both insured by the same company. It makes no sense for the insured victim’s costs to be paid at the lower rate but the insured defendant to pay the higher rate. Doing so will make insurance costs more expensive for everyone.

Finally, opponents contend that HB 1106 tells doctors and other medical providers how much they can charge. Again, this argument is unsupported by the facts.

HB 1106 addresses recovery costs from accidents that are being litigated in court – long after most medical costs have been paid and the actual costs established. In these cases, the bill simply precludes the plaintiff from turning a profit from his injuries. If actual costs have yet to be established, the bill merely echoes existing law that allows for “reasonable” charges.

By passing HB 1106, the legislature has an opportunity to clarify the statute and preserve a fair and sensible system of civil justice. If we fail to act, the court’s newly-established precedent will inevitably result in more litigation, more lawsuits and higher insurance costs for everyone from families and small business to doctors and hospitals.

Rep. Bob Gardner (R-Colorado Springs) is chairman of the House Judiciary Committee and sponsor of HB 1106.

Phantom damages fix passes House with bipartisan support

Mon, 21 Mar 2011 17:12:00 GMT

On a 37-27 vote, the Colorado House of Representatives passed House Bill 1106 (sponsored by Rep. Bob Gardner, R-Colorado Springs and Sen. Ellen Roberts, R-Durango), which would overturn a controversial split decision issued last November by the Colorado Supreme Court.

The court's ruling, which resulted in a 4-3 split among the justices, allows successful plaintiffs to collect phantom damages for medical care costs — damages that they never paid and never actually owed — undermining a 1986 statute that sought to prevent plaintiffs from turning a profit from their injuries.

Left untouched, the court's ruling will drive up the cost of health care by pushing up insurance costs for doctors and other health care providers. Colorado drivers will also see the cost of mandatory liability insurance increase if they must pay far more than the actual cost of medical care for people injured in traffic accidents.

Four Democrats joined 33 Republicans in the House to pass HB 1106, but the bill still faces uncertain prospects in the Senate where trial lawyers are pressuring Democrats.

Trial lawyers are employing an array of spurious arguments to oppose the bill, including the astonishing assertion that the Supreme Court's decision didn't change the law and that the 1986 statute simply re-stated the common law collateral source rule. Instead, the 1986 law specifically instructs the court to "reduce the amount of the verdict by the amount" the victim will be indemnified by an insurance company.

Prior to this decision, courts routinely allowed juries to consider both the amount paid for medical care as well as the amount billed when determining damages. The court's decision will forbid juries from knowing anything other than the amount originally billed. As a result, insurance premiums for a host of lines of insurance will increase to account for the higher judgments and settlements.

House committee kills SB 68, 'a sledge hammer aimed at business'

Mon, 14 Mar 2011 01:16:00 GMT

On March 10, the House State, Veterans and Military Affairs Committee voted 5-4 to postpone indefinitely (kill) Senate Bill 68 (by Sen. Morgan Carroll, D-Aurora, and Rep. Judy Solano, D-Brighton) — a bill which CCJL has previously described as "a sledge hammer aimed at Colorado business."

A dream bill for trial lawyers, SB 68 would have eliminated the "public impact test," criteria employed by the Colorado Supreme Court to determine whether an ordinary lawsuit can invoke the Colorado Consumer Protect Act and thereby threatening the defendant with treble damages and plaintiffs' attorney fees. Had SB 68 passed, virtually any lawsuit against a Colorado business could have included a presumption that an error, oversight or misdeed alleged by a single plaintiff had been replicated innumerable times against the public at large.

Businesses would have found themselves not simply defending against charges of varying merit but risking far more that compensatory damages were they to lose. Increasing the stakes for businesses would create tremendous leverage for plaintiffs attorneys to coerce defendants to settle even dubious claims rather than risk that a jury would rule for the plaintiff and order the defendant to pay treble damages and attorney costs.

CCJL appreciates the hard work to defeat this bill by our members and allies in the business community and by Andrew Unthank, an attorney at Wheeler Trigg O'Donnell and a participant in CCJL's Legal Advisory Board, for his compelling testimony against SB 68 in the House committee.

Bill to end 'phantom damages' passes House Judiciary

Mon, 07 Mar 2011 13:05:00 GMT

House Bill 1106 (by Rep. Bob Gardner, R-Colorado Springs) passed the House Judiciary Committee on March 4 on a 6-5 vote. The bill seeks to restore a statutory scheme for measuring damages for medical care that was passed in 1986. Last November, the Colorado Supreme Court overturned the statute in a deeply divided 4-3 decision. The Court decided that what is initially billed by a hospital or other care provider — rather than what is paid by an insurance company to settle the account — is the proper measure of damages.

The author of the dissent, Justice Nancy Rice, argued that the majority had ignored “the legislature’s clear intent, the statute’s plain language, and sound public policy.” Agreeing with Rice, CCJL and our allies in the business and health care community have formed a coalition to reverse the action of the Supreme Court and restore legislative intent.

At the Judiciary Committee hearing on the bill, trial lawyers argued — quite contrary to Justice Rice's opinion and other court decisions — that the Supreme Court had changed nothing by its November opinion and the law was the same now as it has always been. Indeed, they argued that passage of HB 1106 would overturn settled rules of common law that have been in place for centuries.

Numerous witnesses supporting the bill differed. They argued that the General Assembly had replaced the common law in passing tort reform legislation in 1986 and the Supreme Court had returned to the common law in November. HB 1106 now goes to the full House now for debate.

CCJL Fact Sheet on HB 1106

CCJL Background Book on HB 1106

CCJL applauds Supreme Court ruling on settlement offers, double recovery

Mon, 28 Feb 2011 23:24:00 GMT

Colorado Civil Justice League, the state's leading advocate of "common sense in the courtroom," today applauded the Colorado Supreme Court's decision in Ferrellgas vs. Yeiser.

In an en banc ruling, the Court found that Ellen Yeiser, originally the plaintiff in a breach of contract claim, may not collect twice — from both her insurer and from a defendant — for property damage expenses. She also sought damages for loss of use of her home and loss of rental income from defendant Ferrellgas Inc., which supplied propane to the house in Silverthorne.

Yeiser collected property damage and repair expenses from her insurer, which then reached a reimbursement settlement with Ferrellgas. The defendant then offered Yeiser $197,000 to settle her remaining claims, but that offer was rejected.

Ultimately, a jury awarded Yeiser $314,323, but a key question was whether the property damage expenses that Ferrellgas paid to Yeiser's insurer should be deducted from that amount. The Supreme Court ruled that Yeiser wasn't entitled to a double recovery and that Ferrellgas could deduct $212,071 in expenses that it had previously settled with Yeiser's insurer.

Under Colorado's offer of settlement statute, when a plaintiff rejects a pre-trial settlement but receives a lesser amount at trial, the defendant can seek to recover legal costs incurred after the offer was made.

In a brief written by Christopher L. Ottele and Christopher Brady, CCJL supported the trial court's decision to award costs to Ferrellgas. They argued that the Court of Appeals ruling, which overturned the trial court's award, was contrary to the law's stated purpose of encouraging reasonable offers of settlement and to avoid costs to all parties.

"The trial court should reinstate Ferrellgas's . . . cost award if its settlement offer of $197,000 is greater than" Yeiser's remaining damages of $102,525 plus interest, Justice Nancy Rice wrote in the opinion.

DUI bill threatens business

Sat, 26 Feb 2011 19:27:00 GMT

Everyone is in favor of justice for injured victims of drunk-driving accidents, but the latest proposal in the state legislature creates injustice for Colorado's businesses. At a time when businesses should be encouraged to hire more Coloradans, the legislature is on a course to do the opposite.

Senate Bill 107 supposedly seeks to deter drunk driving, but in truth it will have no effect at all on drunk drivers and will harm businesses that have no fault in a drunk driving accident. The bill would permit limitless awards of noneconomic damages whenever a person who drives while impaired in "the slightest degree" injures another.

The bill would change existing law for the worse. When awarding noneconomic damages, juries are asked to put a dollar amount on pain and suffering, inconvenience, emotional distress, or loss of enjoyment of life. Because these conditions cannot be easily quantified, noneconomic damage awards can vary wildly from infinitesimal to enormous. To provide for some degree of predictability, lawmakers have applied a cap of approximately $470,000 in most cases.

Under SB 107, the primary targets of lawsuits will not be drunk drivers but businesses that are innocent of drunk or impaired driving. The bill allows limitless noneconomic damages against any co-defendant of an impaired driver, even if the co-defendant was not involved in drunk driving. For example, plaintiffs may name an automaker as a co-defendant and allege that its vehicle was designed improperly. The automaker would face potentially limitless noneconomic damages. As another example, a business may find itself vicariously liable for limitless noneconomic damages when an employee is sued under this bill for an accident caused while driving a company vehicle – even if the business did nothing wrong. There is little doubt that most of the lawsuits brought under this bill will target the nearest business with “deep pockets.”

Second, the bill will not — and cannot — deter drunk driving. The bill makes no attempt to punish drunk drivers directly, rather than allowing them to pass along the costs to insurers. In most cases, liability insurers will settle for more money than they would have prior to SB 107. The impaired driver, however, will not notice the difference, much less be deterred by it. Even worse, insurers will have no choice but to recover the higher cost of these cases by passing them on to other, innocent policyholders.

Third, the bill is unfair to injured people who are harmed by sleeping, inattentive, or speeding drivers. There is no defensible reason for capping the noneconomic damages of a quadriplegic if he was crippled by a texting driver, but allowing him limitless recovery if he was crippled by a drug- or alcohol-impaired driver.

Fourth, the bill confuses compensating the victim with punishing the drunk driver. Punitive damages are intended to punish and, under existing law, may be awarded against impaired drivers. Noneconomic damages are intended to compensate the victim.

Fifth, Colorado has already provided a type of damages that are intended to punish and deter, namely punitive damages. Punitive damages — unlike noneconomic damages — are capable of directly punishing the impaired driver because they are uninsurable and therefore cannot be passed on to others. Noneconomic damages, further, are compensatory in nature. This bill attempts to transform compensation into a form of punishment and is thus illegitimate.

Finally, the bill undermines Colorado’s entire system of limiting noneconomic damages. Starting the process of carving out exceptions for injuries cause by certain kinds of behavior will destroy the economic certainty that the damages ceiling was created to provide.

Legislators who oppose drunk driving should vote against this bill and consider proposals that actually target drunk drivers, such as lifting the ceiling on punitive damages awarded against drunk drivers.

— Evan Stephenson is a member of the Colorado Civil Justice League Legal Advisory Board.