Late one evening many years ago, I stumbled on something I wish I had never found—hospital photographs of one of the men burned to death in the oil well explosion case I had been assigned to defend. Instantly, I knew which man this was. He was the one who lived in unimaginable torment for four weeks before dying of his burns. Let’s call him John. His facial expression was one I had never seen, not even in the movies. His blackened, oozing limbs had been sliced open from stem to stern to keep his swollen tissues from exploding. Every few days he was taken back to surgery to have yet another necrotic body part sawed off. Every day until he died, he and his family faced nightmare of debridement, the scraping off of the outer layer of his charred flesh in an excruciating, failing effort to save him. The circumstances of his miserable death provide a good foundation for examining the faults of the Colorado Survival Statute.
Under law brought to America from England, all of one’s personal legal claims used to die with him. After about five hundred years, consensus developed that this was an unfair rule, and all fifty states have changed it. Colorado did so in 1868. Under the new law, one’s legal claims no longer died with him; his estate could pursue them. By the same token, the estate was now subject to any legal claims held by anyone else before the demise of the decedent.
The new law’s benefit is easy to see. Imagine that my three horses were killed by a negligent driver. Under the old law, my claim for the horses died with me; my family could not recover anything for them. The survival statute, however, changed the law so that my estate’s representative could make a legal claim to recover for the negligently killed horses. My wife and children would get the compensation for the mangled livestock, which is as it should be.
The law was now much fairer than what went before it. But it is not fair to everyone. Most beneficiaries of the law can recover all their damages under it. Some cannot. These second class citizens are those whose loved ones had personal injury claims before they died. Here the estate can recover only “loss of earnings and expenses sustained or incurred prior to death . . . " Generally, this limits the recovery to medical costs, funeral expenses, and lost wages incurred prior to the decedent’s last breath. All pain and suffering of the man, woman, or child are buried with them as if that horror had never occurred.
This is a shabby way of treating the families of those whose loved ones have already seriously injured by a drunk driver or some other negligent misfit. The statute’s discrimination is made even worse because it punishes those of modest economic means more than anyone else. Maybe it says something about the value we put on life or the quality of life. Maybe, however, the personal injury provision of the statute reflects nothing more than the lobbying efforts of those in the insurance industry who would pay out on the judgments if full damages were allowed.
This article began by describing one man’s gruesome death. No one would question the degree of pain and suffering he endured, as it is beyond our comprehension. If John had gotten a judgment against the company that caused his injuries ten minutes before his death, he would have recovered fully. The claim would have been one of great value, and at least the man’s family would be able to get by. But if his estate has to sue after his death, the estate can only recover his past medical bills, past lost wages, and funeral expenses. In John’s case, his estate’s net claim would be worth about $1,320 (part of which might be taxable), assuming he was working a forty-hour week and making $8.25 per hour. The estate could also recover the cost of John’s funeral. The estate would recover the medical expenses incurred prior to John’s death, but that money goes back to John’s health insurer. The family will not get it.
So who benefits from the personal injury provisions of the current survival statute? The prime beneficiary is the drunk driver or other negligent actor, as well as that person’s insurer. The good fortune of having killed the victim, rather than having maimed him, will necessarily result in a smaller judgment or settlement under our survival statute, which benefits insurance companies more than anyone else.
Here lies a great irony created by our law. As it now exists, the survival statute rewards most greatly those who behaved the worst. The benefit to the drunk driver (and his insurer) increases in proportion to the egregiousness of his conduct. The worse his conduct was, the more damages he gets to walk away from if he is lucky enough to have his victim die. The personal injury provision of the current survival statute would do nothing less than encourage the most negligent among us, their insurers and defense lawyers to delay the trial of any case where the plaintiff is old, sick, or injured. If they get lucky, he will die and his damages along with him.
It is true that the decedent’s family can recover for their own anguish and damages under the wrongful death statute, but that recovery is capped at a total of $250 thousand per family, adjusted annually for the cost of living. If the deceased parent was the family’s breadwinner, that is not going very far. Punitive damages are not allowed under Colorado’s wrongful death statute, unlike the laws of many other states. Once again, the most negligent in our society draw a big break from those who represent us. Most likely, none of our current politicians are to blame for this old statute; they are, however, to blame if they don’t fix it. If they don’t, I hope John’s kids can forgive them.
Originally published in the Durango Herald
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