Colorado § 13-64-205 - Determination of judgment to be entered.

§ 13-64-205. Determination of judgment to be entered.

(1) In order to determine what judgment is to be entered on a verdict requiring findings of special damages under this part 2, the court shall proceed as follows:

(a) The court shall apply to the findings of past and future damages any applicable rules of law, including setoffs, credits, comparative fault, additurs, and remittiturs in calculating the respective amounts of past and future damages each claimant is entitled to recover and each party is obligated to pay. The court shall preserve the rights of any subrogee to be paid in a lump sum.

(b) The court shall specify the payment of attorney fees and litigation expenses in a manner separate from the periodic installments payable to the claimant, either in a lump sum or by periodic installments, pursuant to any agreement entered into between the claimant or beneficiary and his attorney, computed in accordance with the applicable principles of law.

(c) The court shall enter judgment in a lump sum for past damages and for any damages payable in lump sum or otherwise under paragraphs (a) and (b) of this subsection (1).

(d) After hearing relevant expert testimony, the jury shall determine the present value of future damages and, except as provided in paragraphs (e) and (f) of this subsection (1), the court shall enter judgment for the periodic payment of future damages. The court, in considering evidence of the need for one or more future major medical proceedings or services, may enter judgment for lump-sum payment therefor, payable either immediately or at some designated date or dates in the future.

(e) Upon petition of a party before entry of judgment and a finding of incapacity to fund the periodic payments, the court, at the election of the claimant or at the election of the beneficiaries in an action for wrongful death, shall enter a judgment for the present value of the periodic payments.

(f) The plaintiff who meets the criteria set forth in this subsection (1) may elect to receive the immediate payment to the plaintiff of the present value of the future damage award in a lump-sum amount in lieu of periodic payments. In order to exercise this right, the plaintiff must either:

(I) (A) Have reached his or her eighteenth birthday by the time the periodic payment order is entered;

(B) Not be an incapacitated person, as defined in section 15-14-102 (5), C.R.S.; and

(C) Have been provided financial counseling and must be making an informed decision; or

(II) Be a person under disability who has a legal representative authorized to take action on his or her behalf, as described in section 13-81-102.

(2) For purposes of paragraph (f) of subsection (1) of this section, "legal representative", "person under disability", and "take action" shall have the same meanings as provided in section 13-81-101.

Source: L. 88: Entire article added, p. 614, § 1, effective July 1. L. 2000: (1)(f)(II) amended, p. 1833, § 6, effective January 1, 2001. L. 2007: (1)(f) amended and (2) added, p. 172, § 2, effective August 3.

Cross references: For the legislative declaration contained in the 2007 act amending subsection (1)(f) and enacting subsection (2), see section 1 of chapter 49, Session Laws of Colorado 2007.

ANNOTATION

Law reviews. For article, "Health Care Litigation in Colorado: A Survey of Recent Decisions", see 30 Colo. Law. 91 (Aug. 2001).

Statute as amended in 2007 is not unconstitutional special legislation. By covering all minor and incapacitated persons who receive large medical malpractice verdicts, the statute plainly has general future applicability. Vitetta v. Corrigan, 240 P.3d 322 (Colo. App. 2009).

Subsection (1)(f) is rationally related to a legitimate government objective and, therefore, is constitutional and does not violate the respondent's equal protection rights. Protecting "incapacitated persons represented by conservators" from prematurely exhausting their judgments is a legitimate governmental objective and subsection (1)(f) is rationally related to this legitimate governmental objective. HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002); Garhart v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo. 2004).

Subsection (1)(f) excludes an "incapacitated person" from those who may elect to receive a lump-sum payment regardless of whether such person also is a "protected person". Rodriguez ex rel. Rodriguez v. HealthONE, 24 P.3d 9 (Colo. App. 2000), rev'd on other grounds, 50 P.3d 879 (Colo. 2002); Garhart v. Columbia/HealthONE, L.L.C., 95 P.3d 571 (Colo. 2004).

Subsection (1)(b) does not preclude or affect a prevailing defendant's right to recover costs and does not imply a repeal of § 13-16-105. Mullins v. Kessler, 83 P.3d 1203 (Colo. App. 2003).

Court construed the Health Care Availability Act in harmony with § 13-16-105 and C.R.C.P. 54(d) to allow a prevailing defendant to recover costs in a medical negligence action. Mullins v. Kessler, 83 P.3d 1203 (Colo. App. 2003).