When Can Exemplary Damages be Sought in Colorado?
Before a plaintiff may seek exemplary damages, a lawsuit must be filed and discovery about the incident pursued to establish a basis for the claim. Pleadings may be amended to seek exemplary damages after the exchange of initial disclosures pursuant to rule 26 of the Colorado rules of civil procedure and the plaintiff establishes prima facie proof of a triable issue. After the
plaintiff establishes the existence of a triable issue of exemplary damages, the court may, in its discretion, allow additional discovery on the issue of exemplary damages as the court deems appropriate.
Please see the following CO statute:
13-21-102. Exemplary damages.
(1)(a) In all civil actions in which damages are assessed by a jury for a
wrong done to the person or to personal or real property, and the injury
complained of is attended by circumstances of fraud, malice, or willful and
wanton conduct, the jury, in addition to the actual damages sustained by
such party, may award him reasonable exemplary damages. The amount of such
reasonable exemplary damages shall not exceed an amount which is equal to
the amount of the actual damages awarded to the injured party.
(b) As used in this section, "willful and wanton conduct" means conduct
purposefully committed which the actor must have realized as dangerous,
done heedlessly and recklessly, without regard to consequences, or of the
rights and safety of others, particularly the plaintiff.
(1.5) (a) A claim for exemplary damages in an action governed by this
section may not be included in any initial claim for relief. A claim for
exemplary damages in an action governed by this section may be allowed by
amendment to the pleadings only after the exchange of initial disclosures
pursuant to rule 26 of the Colorado rules of civil procedure and the
plaintiff establishes prima facie proof of a triable issue. After the
plaintiff establishes the existence of a triable issue of exemplary
damages, the court may, in its discretion, allow additional discovery on
the issue of exemplary damages as the court deems appropriate.
(b) The provisions of paragraph (a) of this subsection (1.5) shall not
apply to any civil action or arbitration proceeding described in section
13-21-203(3)(c) or 13-64-302.5(3).
(2) Notwithstanding the provisions of subsection (1) of this section, the
court may reduce or disallow the award of exemplary damages to the extent
(a) The deterrent effect of the damages has been accomplished; or
(b) The conduct which resulted in the award has ceased; or
(c) The purpose of such damages has otherwise been served.
(3) Notwithstanding the provisions of subsection (1) of this section, the
court may increase any award of exemplary damages, to a sum not to exceed
three times the amount of actual damages, if it is shown that:
(a) The defendant has continued the behavior or repeated the action which
is the subject of the claim against the defendant in a willful and wanton
manner, either against the plaintiff or another person or persons, during
the pendency of the case; or
(b) The defendant has acted in a willful and wanton manner during the
pendency of the action in a manner which has further aggravated the damages
of the plaintiff when the defendant knew or should have known such action
would produce aggravation.
(5) Unless otherwise provided by law, exemplary damages shall not be
awarded in administrative or arbitration proceedings, even if the award or
decision is enforced or approved in an action commenced in a court.
(6) In any civil action in which exemplary damages may be awarded,
evidence of the income or net worth of a party shall not be considered in
determining the appropriateness or amount of such damages.
Source: L. 1889: p. 64, § 1. R.S. 08: § 2067. C.L. § 6307. CSA: C. 50,
§ 6. CRS 53: § 41-2-2. C.R.S. 1963: § 41-2-2. L. 86: Entire section
amended, p. 675, § 1, effective July 1. L. 95: (4) repealed, p. 14, § 1,
effective March 9. L. 2003: (1.5) added, p. 1044, § 1, effective August