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13-20-101. What actions survive.

Statute text

(1) All causes of action, except actions for slander or libel, shall survive and may be brought or continued notwithstanding the death of the person in favor of or against whom such action has accrued, but punitive damages shall not be awarded nor penalties adjudged after the death of the person against whom such punitive damages or penalties are claimed; and, in tort actions based upon personal injury, the damages recoverable after the death of the person in whose favor such action has accrued shall be limited to loss of earnings and expenses sustained or incurred prior to death and shall not include damages for pain, suffering, or disfigurement, nor prospective profits or earnings after date of death. An action under this section shall not preclude an action for wrongful death under part 2 of article 21 of this title.

(2) Any action under this section may be brought or the court on motion may allow the action to be continued by or against the personal representative of the deceased. Such action shall be deemed a continuing one and to have accrued to or against such personal representative at the time it would have accrued to or against the deceased if he had survived. If such action is continued against the personal representative of the deceased, a notice shall be served on him as in cases of original process, but no judgment shall be collectible against a deceased person's estate or personal representative unless a claim, for the amount of such judgment as may be recovered in such continuing action, has been presented within the time and in the manner required for other claims against an estate.

History

Source: L. 73: p. 1646, 5. C.R.S. 1963: 41-5-1. L. 75: (2) amended, p. 587, 4, effective July 1.

Annotations

 

RECENT ANNOTATIONS

Annotations

When the original plaintiff died after receiving a favorable jury verdict, but before that verdict had been reduced to a written and signed entry of final judgment, the plaintiff recovered his damages for bad-faith breach of insurance contract within the meaning of the survival statute when the jury returned its verdict on that claim. Because the plaintiff was still alive when he recovered his damages under his claim for bad-faith breach of insurance contract under 10-3-1116, those damages were no longer "recoverable", and the personal-injury limitation does not act to reduce the damages awarded by the jury pursuant to that claim. Guarantee Trust Life v. Estate of Casper, 2018 CO 43, 418 P.3d 1163.

The plain language of the survival statute limits punitive damages and penalties awarded and adjudged only after the death of the person against whom the punitive damages or penalties are claimed. If a cause of action is punitive in nature and the defendant who was due to face some punishment (presumably to encourage a change in future behavior) dies, the social utility of the punishment is eliminated. However, if the plaintiff is the deceased party, the social utility of punishing the defendant remains. Guarantee Trust Life v. Estate of Casper, 2018 CO 43, 418 P.3d 1163 (overruling Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008), to the extent that it failed to give meaning to the plain language of the survival statute).

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Damages.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Survival of Actions in Colorado", see 12 Dicta 45 (1934). For note, "The Effect of the Wrongdoer's Death Upon an Action for Wrongful Death", see 22 Rocky Mt. L. Rev. 99 (1949). For article, "Family Law, Probate Law, and Constitutional Law", see 31 Dicta 471 (1954). For article, "Highlights of the 1955 Colorado Legislative Session -- Wills and Decendents' Estates", see 28 Rocky Mt. L. Rev. 83 (1955). For comment on Kling v. Phayer, appearing below, see 29 Rocky Mt. L. Rev. 245 (1955). For comment on Publix Cab Co. v. Colorado Nat'l Bank, appearing below, see 36 Dicta 371 (1959). For article, "One Year Review of Wills, Estates and Trusts", see 38 Dicta 115 (1960). For note, "Wrongful Death in Colorado", see 33 Rocky Mt. L. Rev. 393 (1961). For review, "Right-to-Die Damage Actions: Developments in the Law", see 65 Den. U. L. Rev. 181 (1988). For article, "Claims Against Decedents' Estates", see 27 Colo. Law. 45 (May 1998).

Actions of law generally do not die with the person. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959); Olmstead v. Allstate Ins. Co., 320 F. Supp. 1076 (D. Colo. 1971).

Those mentioned in this section do die with the person. All actions in law whatsoever shall survive except those specifically mentioned in the exceptions contained in the statute. Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954); People in Interest of M.E.W.F., 42 Colo. App. 495, 600 P.2d 108 (1979).

It prevents abatement of actions and causes of action. The so-called survival statute is to prevent certain actions or causes of action already accrued from abating by reason of the death of either of the parties. Micheletti v. Moidel, 94 Colo. 587, 32 P.2d 266 (1934); Brown v. Stookey, 134 Colo. 11, 298 P.2d 955 (1956); Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

Claims of plaintiffs and defendants. It is inconsistent that one rule should be adopted in determining the survivability of a claim as to a plaintiff and apply an opposite rule as to the defendant. Brown v. Stookey, 134 Colo. 11, 298 P.2d 955 (1956).

The coincidence of death of both parties is immaterial. Since the medieval notion that tort actions are punitive has long been abandoned, the wrongdoer's death should not end liability, and his distributees should be made to satisfy claims against him. Since conversely, compensation is the purpose of modern tort recovery, it should accrue not only to a living person but also to his estate. On this analysis, the coincidence of the deaths of both parties is immaterial. Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954).

A right to damages under this section survives. Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963).

This section was intended to create remedies. This section's form indicates an intention to create remedies rather than to kill or suppress them. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

This section modifies common law. This section was intended to modify the common law and to declare that all actions survive except those excluded. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

Section to be strictly construed. Since at common law there was no survival of personal injury actions, this section is in derogation of the common law and thus must be strictly construed. Estate of Burron v. Edwards, 42 Colo. App. 141, 594 P.2d 1064 (1979).

This section does not authorize the continuance of an action against the heirs of decedent after his death. Mills v. Saunders, 30 Colo. App. 462, 494 P.2d 1309 (1972).

Where no action accrued during lifetime of decedent, no action may be brought. Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S. Ct. 60, 74 L. Ed. 2d 63 (1982).

Tort claim need not relate to decedent's death. A surviving tort claim under subsection (1) need not bear a causal relation to the decedent's death. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

Of necessity, an executor stands in the old shoes of a decedent and his right exists only if the survival statute authorizes its continued existence. This is due to the fact that at common law all injury actions died with the tortfeasor or the victim of the tort. Statutes in all of the states have modified this rule. However, if it does not embrace the action, it is not possible to avoid the provisions of a survival statute by opening an estate and allowing claims. This expedient does not operate to transform personal damage items into property damages. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

Recovery under survival statute requires suit be brought on behalf of decedent's estate. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974).

Estate is beneficiary of surviving cause of action. The estate, not the deceased himself, is the real beneficiary of the surviving cause of action, which serves to compensate the estate for actual property losses it has incurred. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

Personal representative stands in decedent's stead. The personal representative of the decedent's estate, by necessity, stands in the decedent's shoes in a survival action. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).

Children or heirs of a deceased do not have standing to bring survival actions. A.B. v. City of Woodland Park, 174 F. Supp. 3d 1238 (D. Colo. 2016).

This section and 13-21-201 et seq. are not in pari materia, but relate to distinct causes of action, and provide distinct remedies. Kelley v. Union Pac. Ry., 16 Colo. 455, 27 P. 1058 (1891); Letson v. Brown, 11 Colo. App. 11, 52 P. 287 (1898); Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

If action survives, it is assignable. The test of assignability is whether or not the cause of action would survive to the executors or administrators of the party in case of his death. If it would, then the claim would be assignable; if not, the converse would be true. This is the general rule, but not universally nor strictly true, because by statute some causes of action are made to survive which are not assignable. The general rule is that assignability and descendability go hand in hand. Olmstead v. Allstate Ins. Co., 320 F. Supp. 1076 (D. Colo. 1971).

This section is inapplicable to workers' compensation claims. Estate of Huey v. J.C. Trucking Co., 824 P.2d 89 (Colo. App. 1991).

If a final dissolution decree affecting property rights was entered, a spouse's subsequent death during the pendency of an appeal does not abate the appeal and the court may review a property division. In re Piper, 820 P.2d 1198 (Colo. App. 1991).

The survival statute is applicable to claims filed under the Workers' Compensation Act. The conditions of recovery under the Act were fulfilled on the date that the injury was incurred and are dependent only on whether claimant's claim is timely filed. Claimant's death by unrelated causes prior to final adjudication has no effect on the claim. Estate of Huey v. J.C. Trucking, 837 P.2d 1218 (Colo. 1992).

This section does not preempt the traditional rule of abatement in divorce actions in the absence of a survivability provision under the marriage dissolution statutes. In re Connell, 870 P.2d 632 (Colo. App. 1994).

Applied in Sanchez v. Marquez, 457 F. Supp. 359 (D. Colo. 1978); In re Dick v. Indus. Comm'n, 197 Colo. 71, 589 P.2d 950 (1979); Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936 (D. Colo. 1979); Healy v. Counts, 536 F. Supp. 600 (D. Colo. 1982); Jackson v. Marsh, 551 F. Supp. 1091 (D. Colo. 1982).

II. DAMAGES.

Executor may sue for funeral expenses under the survival statute. An executor may recover funeral expenses apart from a death claim, such claim being a property claim which comes into existence after the death, it being proper to claim such expenses in an action other than for the wrongful death. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

Funeral expenses, though incurred after death, can be recovered under the survival statute, and are, therefore, not included in damages under the wrongful death statute. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974).

Death resulting from defendant's negligence. In an action for damages resulting from an automobile accident, the trial court properly included in a judgment for plaintiff funeral expenses of the party whose death resulted from the accident and was due to the alleged negligence of defendant. Kling v. Phayer, 130 Colo. 158, 274 P.2d 97 (1954).

Medical expenses of decedent also recoverable. An action, being a claim based on negligence, survives the death of a victim; therefore, medical, nursing, hospital expenses and the other damages which accrue during his lifetime and which would have been recoverable by him had he lived are recoverable by the executor of the estate. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

Loss of earning capacity. A claimant under this section would be entitled to reimbursement for loss of time or for loss of capacity to earn, whether or not he was receiving any salary. Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963).

Compensation for any "loss of time", as usually measured by "loss of earnings", sustained by decedent prior to his death, to the extent caused by defendant's negligence, is recoverable under the survival statute and is not subject to death statute's limits. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974).

An award of punitive damages is not extinguished if a plaintiff dies after a verdict is returned but before judgment is entered. The award of punitive damages necessarily occurs at the time of the verdict. In re Estate of Casper, 2016 COA 167, __ P.3d __.

Damages which are too speculative are not recoverable. In an action for damages resulting from automobile collision, a claim for loss of a wheat crop resulting from the plaintiff's inability to plant the crop in proper time due to injuries received in accident, the failure to make an effort to mitigate damages by the use of available help to plant such crop, together with variable factors affecting the yield, rendered the claim too speculative for allowance as an item of damage proximately caused by negligence of the defendant. Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963).

Attorney fees of conservator not recoverable. Attorney fees incurred by a conservator in connection with the commencing of an action are not recoverable as expenses of litigation in an action by the executor of a deceased party, such executor being limited to elements of damage which could have been asserted by the deceased had he lived. Publix Cab Co. v. Colo. Nat'l Bank, 139 Colo. 205, 338 P.2d 702 (1959).

This section prohibits survival of claim for exemplary damages. Estate of Burron v. Edwards, 42 Colo. App. 141, 594 P.2d 1064 (1979).

A federal civil rights claim for damages under 42 U.S.C. 1983 cannot be limited by this section or Colorado's wrongful death statute, 13-21-201. White v. Talboys, 573 F. Supp. 49 (D. Colo. 1983); Myres v. Rask, 602 F. Supp. 210 (D. Colo. 1985).