Joint and several liability is one way of holding defendants in a personal injury claim accountable for their conduct. Under joint and several liability, victims of an accident can recover all of the compensation they deserve from any defendant. Colorado abolished this rule in favor of a pro-rata rule based on comparative fault.
In this article, our Denver Colorado personal injury lawyers will explain:
- 1. What is joint and several liability?
- 2. Colorado abolished joint and several liability for most cases
1. What is joint and several liability?
Joint and several liability is one way of making multiple defendants pay compensation after an accident. Colorado no longer uses joint and several liability in most cases.
Joint and several liability only affects personal injury lawsuits when:
- The victim has won their case, and
- Multiple defendants have been found liable for the victim’s injuries.
Example: Frank cuts Mary off on the highway. Kyle was following Mary too closely and causes a car accident. Mary sues Frank and Kyle.
In cases with multiple defendants, the jury assigns a percentage of fault to each party. The victim can be found partially at fault, as well. The jury then says how much compensation the victim deserves in its verdict. The amount of compensation is reduced by the victim’s percentage of fault.
Example: Mary is found 10% at fault for the crash. Frank is 80% at fault, and Kyle is 10% at fault. The jury says Mary is owed $100,000 in compensation for her injuries. Mary can recover $90,000 because she was partially at fault.
In states that use joint and several liability, the victim can recover all of the verdict from any defendant that was at fault. Defendants who were only 1% at fault could still pay 100% of the compensation.
Defendants who pay more than their fair share can then file a contribution lawsuit against the other defendants. A contribution lawsuit demands that these other defendants reimburse the defendant who had to compensate the victim.
Example: Mary chooses to collect all $90,000 from Kyle because he is rich. Kyle can file a contribution lawsuit against Frank for the $80,000 he owed Mary.
1.1. Cases involving multiple defendants
These concepts only apply in cases where there are multiple defendants. If there is only one defendant is liable, they would have to pay 100% of the verdict.
Example: The jury in Mary’s case decides Kyle was not following her too closely. They find Mary 10% at fault, and Frank 90% at fault.
1.2. 2 other ways of assigning liability among multiple defendants
There are 2 other ways of assigning liability when there are multiple defendants at fault for an accident. They are:
- Joint liability. Each defendant is liable for the entire verdict. Unlike joint and several liability, there is no right of contribution for defendants who overpay.
- Several liability. Each defendant is only liable for their own percentage of fault. If a defendant cannot pay their share of the verdict, the victim does not receive it.
1.3. Pros and cons of point of joint and several liability
A lot of states use joint and several liability rules when multiple defendants are responsible for a victim’s injuries. They support the rule by arguing:
- First and foremost, personal injury law is about compensating the victim,
- It allows defendants to sue for contribution, but only after the victim has been compensated,
- It is better for a culpable defendant to pay too much than for an innocent victim to receive too little, and
- It reduces the risk that victims receive nothing after an accident caused by someone with no means to pay compensation.
Other states, including Colorado, have moved away from joint and several liability. They criticize the rule because:
- It makes victims look for a wealthy party to include in the lawsuit, and
- Wealthy defendants will pay more than their fair share of the verdict.
2. Colorado abolished joint and several liability for most cases
Colorado used to use joint and several liability rules. That changed with the passage of CRS 13-21-111.5 in 1986.
CRS 13-21-111.5 abolished joint and several liability in Colorado, with few exceptions. The law created a pro-rata rule for assigning liability to multiple defendants. This rule is based on comparative fault.
After a victim gets hurt, comparative fault assigns percentages of responsibility for the incident to:
- The victim,
- Defendants in the lawsuit, and
- Anyone not implicated in the lawsuit.
Under CRS 13-21-111.5, defendants in Colorado can only be liable for their share of fault. The law was passed to protect defendants from overpaying their share of an accident.1
Example: Mary is 10% at fault for her injuries. Kyle is 10% at fault, and George is 80% at fault. Kyle will only have to pay 10% of the verdict, even if George is bankrupt and cannot pay anything.
2.1. When does joint and several liability still apply in Colorado?
Colorado still uses joint and several liability for defendants who acted together to hurt the victim.2
In these cases, the victim can recover the entire verdict from any defendant found liable. Defendants who overpay their share of the verdict have a right of contribution. They can sue other defendants to reimburse them for their overpayment.
2.2. Pro rata liability and damage caps
In some cases, there are laws that limit the amount of damages available in a lawsuit. Under CRS 13-21-111.5, these damage caps are only applied after defendants are apportioned liability.3 The caps only limit how much each defendant will have to pay. They do not limit the total amount the victim can receive.
2.3. Assigning negligence to non-defendants
CRS 13-21-111.5 allows a jury to assign negligence to people who are not in the lawsuit.4
This lets defendants argue that someone who is not in the lawsuit should also be held responsible. If they succeed, any percentage of fault the jury assigns to that missing party will be difficult for the victim to recover.
2.4. Pro rata liability for punitive damages
CRS 13-21-111.5 does not change how defendants pay punitive damages.
Punitive damages are awarded to victims to punish especially bad conduct by defendants. In the rare case where a jury awards punitive damages in a personal injury case, CRS 13-21-111.5 does not affect how much of it the defendant will have to pay.5
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Contact us for further assistance.
Without a joint and several liability rule, it is more difficult to recover all of the compensation you deserve. Our personal injury lawyers can help ensure you recover what you need. Contact us today to get started on your case. For cases in California or Nevada, please see our articles on joint and several liability in California and joint and several liability in Nevada.
References:
- See Moody v. A.G. Edwards & Sons, Inc., 847 P.2d 215 (Colo. App. 1992).
- C.R.S. § 13-21-1115(4) (“Joint liability shall be imposed on two or more persons who consciously conspire and deliberately pursue a common plan or design to commit a tortious act”).
- General Electric Company v. Niemet, 866 P.2d 1361 (Colo. 1994).
- C.R.S. § 13-21-1115(2) (After trial, the verdict determines “the percentage of negligence or fault attributable to each of the parties and any persons not parties to the action of whom notice has been given pursuant to paragraph (b) of subsection (3) of this section to whom some negligence or fault is found”).
- Lira v. Davis, 832 P.2d 240 (Colo. 1992).