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13-21-102. Exemplary damages.

Statute text

(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 that:

(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.

(4) Repealed.

(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.

History

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 6.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Essential Elements.
III. Amount.
IV. Pleading and Practice.
V. Against Whom Awarded.

I. GENERAL CONSIDERATION.

Law reviews. For comment on Starkey v. Dameron, appearing below, see 6 Rocky Mt. L. Rev. 81 (1933). For note, "Need Punitive Damages Be Proportionate to Compensatory Damages?", see 23 Rocky Mt. L. Rev. 206 (1950). For note, "Exemplary Damages in Colorado -- Punitive or Puny?", see 35 U. Colo. L. Rev. 394 (1963). For comment on Kohl v. Graham, appearing below, see 36 U. Colo. L. Rev. 283 (1964). For article, "Trade Secret Litigation: Injunctions and Other Equitable Remedies", see 48 U. Colo. L. Rev. 189 (1977). For casenote, "Palmer v. A.H. Robins Co.: Problems with Punitive Damages in Products Liability Actions", see 57 U. Colo. L. Rev. 135 (1985). For article, "Help for Colorado Trade Secret Owners", see 15 Colo. Law, 1993 (1986). For article, "Tort Reform's Impact on Contract Law", see 15 Colo. Law. 2206 (1986). For article, "Let the Builder-Vendor Beware: Defenses and Damages in Home Builder Litigation -- Part II", see 16 Colo. Law. 629 (1987). For article, "Introduction to the Tort Reform Symposium: Some Cautioning Implications of Legislative Tort Reform", see 64 Den. U. L. Rev. 613 (1988). For article, "The Assault on Injured Victims' Rights", see 64 Den. U. L. Rev. 625 (1988). For article, "The Impact of Tort Reform on Product Liability Litigation in Colorado", see 30 Colo. Law. 91 (November 2001). For article, "New Statutes Change Civil Litigation in Colorado", see 33 Colo. Law. 65 (May 2004).

Subsection (4) held unconstitutional. An exemplary damages award is a private property right, and the requirements of subsection (4) constitute a taking of a judgment creditor's private property without just compensation in violation of the fifth and fourteenth amendments to the United States Constitution and article II, section 15 of the Colorado Constitution. Kirk v. Denver Pub. Co., 818 P.2d 262 (Colo. 1991).

Section does not violate due process clauses of the federal or state constitutions. Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir. 1981); Post Office v. Portec, Inc., 913 F.2d 802 (10th Cir. 1990); Estate of Korf v. A.O. Smith Harvestore Prods., 917 F.2d 480 (10th Cir. 1990) (all cases decided under section in effect prior to 1986 amendment).

Legislative purpose behind this section is to avoid purely punitive civil awards. Wagner v. Dan Unfug Motors, Inc., 35 Colo. App. 102, 529 P.2d 656 (1974).

It is evident from the plain language of subsection (1)(a) that the general assembly intended to limit the punitive damages awarded on a particular tort claim to the amount of actual damages awarded on that same claim. Hensley v. Tri-QSI Denver Corp., 98 P.3d 965 (Colo. App. 2004).

Legislative purpose behind subsection (6), as part of 1986 "tort reform" package, included mitigating and alleviating the need for parties to bring financial records into court for review by the opposing side. Corbetta v. Albertson's, Inc., 975 P.2d 718 (Colo. 1999).

Discovery of defendant's financial records not permitted. Corbetta v. Albertson's, Inc., 975 P.2d 718 (Colo. 1999).

Punitive damages in civil action not double punishment. Although punitive damages are awarded in civil cases in order to punish the defendant, an award of punitive damages in a civil action does not constitute a prohibited "double punishment", as the double punishment prohibition applies only to criminal actions. E. F. Hutton & Co. v. Anderson, 42 Colo. App. 497, 596 P.2d 413 (1979).

Nor violative of equal protection. Allowing punitive damages in a civil action does not violate one's right to equal protection of the law. E. F. Hutton & Co. v. Anderson, 42 Colo. App. 497, 596 P.2d 413 (1979).

Section not void for vagueness. Statutory terms "circumstances of fraud" and "a wanton and reckless disregard" are sufficiently clear to persons of ordinary intelligence to afford a practical guide for behavior and are capable of application in an even-handed manner. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Federal constitutional proscription against cruel and unusual punishment not applicable to a civil proceeding involving a punitive damages claim ancillary to a civil cause of action. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Exemplary damages are allowed, not as compensation to the injured party for the wrong done, but as a punishment of the wrongdoer as an example to others. Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815 (1953); Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979); Seward Const. Co., Inc. v. Bradley, 817 P.2d 971 (Colo. 1991).

The purpose of punitive damages is not to compensate an injured plaintiff, but to punish the defendant and to deter others from similar conduct in the future. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Exemplary damages are awarded for the purpose of punishing persons who have inflicted injuries with malice. French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Starkey v. Dameron, 92 Colo. 420, 21 P.2d 1112 (1933); Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273 (1948); Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 60 (1970).

Purpose of entering judgment for exemplary damages against a defendant in a civil action is to punish and penalize him for certain wrongful and aggravated conduct and to serve as a warning to other possible offenders. Beebe v. Pierce, 185 Colo. 34, 521 P.2d 1263 (1974).

The general purposes of exemplary damages are punishment of the defendant and deterrence against the commission of similar offenses by the defendant or others in the future. Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980); Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo. 1992).

This section appears to be the general assembly's means of requiring a minimum degree of civility which is necessary for a civilized society to ensure, in some small measure, that the recourse to more violent methods is not taken by its inhabitants who feel defrauded or, in a sense, destroyed by another. Mailloux v. Bradley, 643 P.2d 797 (Colo. App. 1982).

The nature and purposes of punitive damages are sufficiently removed from the criminal process as to render inapplicable the traditional procedural safeguards provided to one accused of crime. Furthermore, 13-25-127 provides an additional safeguard by requiring that the statutory elements of a punitive damages claim be proven beyond a reasonable doubt. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Colorado law allows, but does not compel, an award of punitive damages under certain circumstances. King v. Horizon Corp., 701 F.2d 1313 (10th Cir. 1983); Vickery v. Vickery, 271 P.3d 516 (Colo. App. 2010), rev'd on other grounds, 266 P.3d 390 (Colo. 2011).

Exemplary damages are available in Colorado only pursuant to statute. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982); Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998).

Reasonable exemplary damages may be awarded injured party in addition to actual damages. Kresse v. Bennett, 151 Colo. 549, 379 P.2d 807 (1963).

In order to recover exemplary damages a plaintiff must make out a case under this section. Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815 (1953).

Award of exemplary damages is discretionary. The award of exemplary damages is optional and rests in the discretion of the trier of fact. A judge or jury may find fraud, malice, insult or wanton and reckless disregard of the injured party's rights and feelings and still not award exemplary damages. Torrez v. Rizo, 34 Bankr. 886 (Bankr. D. Colo. 1983).

In a trial to the court, the allowance or denial of exemplary damages is for the court's determination as the trier of fact. Sanders v. Knapp, 674 P.2d 385 (Colo. App. 1983).

Plaintiff has no right to any exemplary damages and award is in the discretion of the trier of fact. Montgomery Ward & Co. v. Andrews, 736 P.2d 40 (Colo. App. 1987); Cook v. Rockwell Intern. Corp., 755 F. Supp. 1468 (D. Colo. 1991).

There is record support for court's findings that landlord acted with wanton and reckless disregard. Accordingly, no abuse of discretion in court's award of punitive damages. Boulder Meadows v. Saville, 2 P.3d 131 (Colo. App. 2000).

One-to-one limitation in subsection (1)(a) of exemplary damages to actual damages applies equally to bench and jury trials. No language in relevant statutory provision compels construction that only a jury may try the issue of exemplary damages. Sky Fun 1 v. Schuttloffel, 27 P.3d 361 (Colo. 2001).

Plaintiff must show actual damages. What are reasonable exemplary damages in Colorado is determined by reference to the actual damages awarded. In order to be entitled to exemplary damages, it is necessary for plaintiffs to prove that the defendant's misconduct caused them to suffer actual damages to their person or property. Failure to prove the existence of actual damages means that no exemplary damages may be recovered. Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 486 P.2d 477 (1971); W. Cities Broad. v. Schueller, 830 P.2d 1074 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 849 P.2d 44 (Colo. 1993).

An award of exemplary damages cannot stand unless there has been an award of "actual damages". Wagner v. Dan Unfug Motors, Inc., 35 Colo. App. 102, 529 P.2d 656 (1974).

Punitive damages may not be awarded absent an award of actual damages. Defeyter v. Riley, 671 P.2d 995 (Colo. App. 1983); Kimmey v. Peek, 678 P.2d 1021 (Colo. App. 1983).

This section permits an award for punitive damages only in conjunction with an underlying and independent civil action in which actual damages are assessed for some legal wrong to the injured party. Palmer v. A.H. Robins, Co., Inc., 684 P.2d 187 (Colo. 1984); Vogel v. Carolina Intern., Inc., 711 P.2d 708 (Colo. App. 1985); Denman v. Burlington Northern R. Co., 761 P.2d 244 (Colo. App. 1988); Bradley v. Guess, 797 P.2d 749 (Colo. App. 1989), rev'd on other grounds, 817 P.2d 971 (Colo. 1991).

Actual damages normally contemplated both general and special damages. Wagner v. Dan Unfug Motors, Inc., 35 Colo. App. 102, 529 P.2d 656 (1974).

Exemplary damages predicated upon either special or general damages. Purpose of this section is as well fulfilled when exemplary damages are predicated upon special damages as it is when they are awarded in conjunction with general damages. Wagner v. Dan Unfug Motors, Inc., 35 Colo. App. 102, 529 P.2d 656 (1974).

Section applies only when a civil wrong has been attended by aggravating circumstances. By its own terms, it has no application in the absence of a successful underlying claim for actual damages. Harding Glass Co. v. Jones, 44 Colo. 437, 640 P.2d 1123 (1982); Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo. App. 1983); Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (1984), cert. denied, 469 U.S. 853, 105 S. Ct. 176, 83 L. Ed. 2d 110 (1984).

Not every action entitling a plaintiff to actual damages gives rise to a claim for exemplary damages. Ristine v. Blocker, 15 Colo. App. 224, 61 P. 486 (1900); Ark Valley Alfalfa Mills, Inc. v. Day, 128 Colo. 436, 263 P.2d 815 (1953).

Where an action is not an action in damages, exemplary damages cannot be recovered. Aaberg v. H.A. Harman Co., 144 Colo. 579, 358 P.2d 601 (1960).

An action of a successor trustee against a former trustee for misappropriation of trust funds is suit in law that permits exemplary damages. The former trustee is under a duty to pay money immediately and unconditionally, which is one of the instances where a trust action is an action in law, not equity. Since the suit is in law, the plaintiff may recover exemplary damages. Peterson v. McMahon, 99 P.3d 594 (Colo. 2004).

Strict liability in tort. Punitive damages are recoverable in connection with a strict liability claim founded on section 402A of the Restatement (Second) of Torts where an injury results from the marketing of a product in flagrant disregard of consumer safety. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Trademark infringement. The jury finding of punitive damages on claim of trademark infringement is supported if the evidence is sufficient to warrant a determination beyond a reasonable doubt that the infringer acted with a wanton and reckless disregard of the rights of the plaintiff. Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F. Supp. 1219 (D. Colo. 1976), modified on other grounds and aff'd, 561 F.2d 1365 (10th Cir. 1977), cert. dismissed, 434 U.S. 1052, 98 S. Ct. 905, 54 L. Ed. 2d 805 (1978).

The Ski Safety Act of 1979 does not preclude exemplary damages in civil actions arising out of skiing injuries. Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo. 1985).

The cap on damages cap in the Ski Safety Act of 1979 does not apply to exemplary damages awarded under this section in skiing-related wrongful death actions. Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).

In an action in contract exemplary damages are not allowable. Westesen v. Olathe State Bank, 75 Colo. 340, 225 P. 837 (1924); Williams v. Speedster, Inc., 175 Colo. 73, 485 P.2d 728 (1971); Postal Instant Press v. Jackson, 658 F. Supp. 739 (D. Colo. 1987) (federal district court disagreeing with Colorado court of appeals decision allowing such damages in contract actions in Davies v. Bradley, 676 P.2d 1242 (1983); Collister v. Ashland Oil Co., Inc., 687 P.2d 525 (1984); Podleski v. Mortgage Finance, Inc., 709 P.2d 18 (1985); Denver Publ'g Co. v. Kirk, 729 P.2d 1004 (1986); Cox v. Bertsch, 730 P.2d 889 (1986)); Mortgage Fin., Inc. v. Podleski, 742 P.2d 900 (Colo. 1987).

No exemplary damages in rescission action based on fraud. Under this section, the recovery of exemplary damages is limited to civil actions in which damages shall be assessed, hence an action for rescission of a contract on the ground of fraud and for return of the consideration paid is not an action in damages and exemplary damages cannot be recovered. Aaberg v. H.A. Harman Co., 144 Colo. 579, 358 P.2d 601 (1960).

Exemplary damages may be awarded though the action sounds in contract. Davies v. Bradley, 676 P.2d 1242 (Colo. App. 1983); Riva Ridge Apts. v. Robert G. Fisher Co., 745 P.2d 1034 (Colo. App. 1987).

Plaintiff's claim transcended the contract, and was not precluded by the economic loss rule, where a triable issue of fact existed regarding alarm company's willful and wanton failure to respond to a burglary and fire. U.S. Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo. App. 2008).

Exemplary damages awarded in breach of contract action where defendant's actions constituted a wrongful act in reckless disregard of plaintiff's rights and feelings. Collister v. Ashland Oil Co., Inc., 687 P.2d 525 (Colo. App. 1984).

Taking property under claim of right will not justify exemplary damages. The mere taking of property under a claim of right over the protest of one in possession is not sufficient to establish grounds for exemplary damages in a conversion action. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970).

But refusal of insurer to return stolen automobile does. Where, upon the recovery of a stolen automobile, the insurer against loss by theft refused to deliver it to the owner unless the latter accepted its terms of settlement, it was held that this constituted "a wanton and reckless disregard of the injured party's rights" as those words are used in this section. Pennsylvania Fire Ins. Co. v. Levy, 85 Colo. 565, 277 P. 779 (1929).

Exemplary damage award upheld in a conversion action where the taking constituted a wrongful act in reckless disregard of the injured party's rights. Clark v. Morris, 710 P.2d 1130 (Colo. App. 1985).

Since eminent domain statute nowhere provides for exemplary damages, such damages are not to be allowed in a special statutory proceeding for condemnation. Ossman v. Mountain States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

Nor are they allowed in inverse condemnation action. An inverse condemnation action is in the nature of a special statutory proceeding and is to be tried as if it were an eminent domain proceeding. Thus, the exemplary damages statute, which authorizes the award of exemplary damages in "all civil actions", is not applicable to an inverse condemnation action. Ossman v. Mountain States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

Exemplary damages are available in a suit for loss of consortium. The words, "wrong done to the person, or to personal or real property" were unquestionably intended to apply to any type of tort, and no reason is apparent why such damages should not be recoverable where the injury complained of is loss of consortium. Kohl v. Graham, 202 F. Supp. 895 (D. Colo. 1962).

The wrong done need not be a physical injury. Any one who wrongfully induces a husband to desert and abandon his wife commits an actionable injury against the wife. Such injury is a wrong done to the wife as an individual -- as a person. This section does not specify that the wrong shall be a physical or bodily injury. On the contrary, it allows exemplary damages when "the injury complained of shall be attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings". These words clearly import wrongs and injuries other than mere bodily wounds or pecuniary losses. They include as well injuries affecting the mind and sensibilities of the individual which are often more grievous and painful than mere material injuries. The whole language of this section, construed together, forbids that the words "wrong done to the person", should be restricted to physical or bodily injuries. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).

Exemplary damages not available in an equitable action. The award of exemplary damages in equity actions, or incidental equitable relief, is generally not allowable. Miller v. Kaiser, 164 Colo. 206, 433 P.2d 772 (1967).

Punitive damages are not recoverable in actions in equity. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982).

Plaintiff could not recover damages under this section and also recover damages under 6-1-113 (2)(a), where purposes of both statutes are to punish and deter. Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo. 1992).

Exemplary damages recoverable where conduct constituting breach of contract is also a tort for which exemplary damages are recoverable. McCrea & Co. Auctioneers, Inc. v. Dwyer Auto Body, 799 P.2d 394 (Colo. App. 1989).

The standard for awarding punitive damages is not the same as that for the tort of outrageous conduct, therefore, the court did not err in granting a motion to dismiss the outrageous conduct claim while denying the motion to dismiss the punitive damage claim. Orjias v. Stevenson, 31 F.3d 995 (10th Cir. 1994) (decided under law in effect prior to the 1986 amendment).

No question but that an invasion of privacy claim is for "a wrong done to the person", and exemplary damages were properly awarded. Borquez v. Robert C. Ozer, P.C., 923 P.2d 166 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 940 P.2d 371 (Colo. 1997).

Exemplary damages may be awarded on civil conspiracy claim, an independent tort that seeks actual damages. Double Oak Constr., L.L.C. v. Cornerstone Dev. Int'l, L.L.C., 97 P.3d 140 (Colo. App. 2003).

Exemplary damages may be awarded if the injury is attended by circumstances of fraud, malice, or willful and wanton conduct. Where plaintiff testified that she believed the defendant was holding her money and that it would be available for her future medical and burial expenses and her other daughter's medical expenses, but where defendant put plaintiff's money into her own account and then used it to buy an annuity in her own name and to make a loan to a third party, the court properly awarded exemplary damages. Eads v. Dearing, 874 P.2d 474 (Colo. App. 1993).

Evidence supports jury's finding that manufacturer acted with wanton and reckless disregard of injured plaintiff's rights. Gruntmeir v. Mayrath Indus., Inc., 841 F.2d 1037 (10th Cir. 1988) (decided prior to 1986 amendment).

Disallowance of punitive damages under the theory that the award would serve no purpose cannot take place until such damages have actually been awarded. Cook v. Rockwell Intern. Corp., 755 F. Supp. 1468 (D. Colo. 1991).

Portion of exemplary damage award from malicious prosecution suit that was awarded to state pursuant to subsection (4) was not subject to attorney fee claim under equitable common fund doctrine. Since state had no legal interest in award until after judgment, it was not afforded any opportunity to intervene before judgment. Schenck v. Minolta Office Sys., Inc., 873 P.2d 18 (Colo. App. 1993).

Employer waived statutory right to be free from arbitral award of punitive damages. Employer sought order compelling arbitration under rules of national association of security dealers, which permitted arbitrator to award damages and other relief, and did not challenge employee's right to recover punitive damages through the arbitration proceedings. Padilla v. D.E. Frey & Co., Inc., 939 P.2d 475 (Colo. App. 1997).

Court is given authority to increase the award if defendant is shown to have continued the behavior or repeated the action which is the subject of the claim against the defendant in a willful and wanton manner during the pendency of the case, thus the court may consider actions of the defendant after the alleged negligence, but only actions that occurred during the pendency of the case. Bennett v. Greeley Gas Co., 969 P.2d 754 (Colo. App. 1998).

To increase an award of exemplary damages under subsection (3)(b), the actions of defendant need not relate to "the action which is the subject of the claim". Martin v. Union Pac. R.R., 186 P.3d 61 (Colo. App. 2007), rev'd on other grounds, 209 P.3d 185 (Colo. 2009).

Despite supreme court decision that subsection (4) was unconstitutional, plaintiff's attorney, who failed to cross-appeal the award, was not entitled to claim a right to attorney fees payable from award granted to state. Schenck v. Minolta Office Sys., Inc., 873 P.2d 18 (Colo. App. 1993).

This section does not preclude an award against one who has also been charged with criminal misconduct. Moreover, because an exemplary damages award is authorized in order to serve as an example to others, a finding by the trial court that the defendant will not repeat the conduct does not preclude the trial court from exercising its discretion to award exemplary damages. Razi v. Schmitt, 36 P.3d 102 (Colo. App. 2001).

Applied in Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); Butler v. Behaeghe, 37 Colo. App. 282, 548 P.2d 934 (1976); Roberts v. Bucher, 41 Colo. App. 138, 584 P.2d 97 (1978); Campbell v. Jenkins, 43 Colo. App. 458, 608 P.2d 363 (1979); Dorney v. Harris, 482 F. Supp. 323 (D. Colo. 1980); Rodriguez v. Bar-S Food Co., 539 F. Supp. 710 (D. Colo. 1982); Winters v. City of Commerce City, 648 P.2d 175 (Colo. App. 1982); Shriver v. Carter, 651 P.2d 436 (Colo. App. 1982); H & K Auto. Supply Co. v. Moore & Co., 657 P.2d 986 (Colo. App. 1982); Sunward Corp. v. Dun & Bradstreet, Inc., 568 F. Supp. 602 (D. Colo. 1983); Asplin v. Mueller, 34 Bankr. 869 (Bankr. D. Colo. 1983); Dodds v. Frontier Chevrolet Sales & Serv. Inc., 676 P.2d 1237 (Colo. App. 1983); Holter v. Moore and Co., 681 P.2d 962 (Colo. App. 1983); Bill Manning, Inc. v. Denver West Bank and Trust, 697 P.2d 403 (Colo. App. 1984); Florey v. District Court, 713 P.2d 840 (Colo. 1985); Francis v. Steve Johnson Pontiac-GMC-Jeep, 724 P.2d 84 (Colo. App. 1986); Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007).

II. ESSENTIAL ELEMENTS.

To justify exemplary damages there must be some wrong motive accompanying the wrongful act, or a reckless disregard of plaintiff's rights. Eisenhart v. Ordean, 3 Colo. App. 162, 32 P. 495 (1893); French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Republican Publ'g Co. v. Conroy, 5 Colo. App. 262, 38 P. 423 (1894); Gray v. Linton, 38 Colo. 175, 88 P. 749 (1906); Carlson v. McNeil, 114 Colo. 78, 162 P.2d 226 (1945); Ellis v. Buckley, 790 P.2d 875 (Colo. App. 1989), cert. denied, 498 U.S. 920, 111 S. Ct. 296, 112 L. Ed. 2d 249 (1990).

The act causing the injuries must be done with an evil intent and with the purpose of injuring the plaintiff, or with such a wanton and reckless disregard of his rights as evidences a wrongful motive. Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979); Mari v. Wagner Equip. Co., Inc., 721 P.2d 1208 (Colo. App. 1986).

Malice may be inferred from reckless and wanton acts. Malice, as used in this section, may be found by the jury or the court from the reckless and wanton acts of the injuring party, such as disclose an utter disregard of consequences, aside from any intentional malice in its odious or malevolent sense. Cohen v. Fox, 26 Colo. App. 55, 141 P. 504 (1914).

Or willful misconduct or an entire want of care. Willful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences is necessary to support a claim for punitive damages. Kansas Pac. Ry. v. Lundin, 3 Colo. 94 (1876) (decided prior to the earliest source of 13-21-102, L. 1899, p. 64, 1).

Malice may be actual or implied, and in general it may be implied whenever there is a deliberate intention to do a grievous wrong without legal justification or excuse. Williams v. Williams, 20 Colo. 51, 37 P. 614 (1894).

Where the defendant was conscious of his conduct and the existing conditions, and knew or should have known that injury would result, the statutory requirements of this section are met. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

Conduct which is merely negligent cannot serve as basis for exemplary damages. Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979).

An assumption that malice is an essential element in a finding of exemplary damages is incorrect. Clark v. Small, 80 Colo. 227, 250 P. 385 (1926).

It is sufficient if defendant knew or should have known injury would probably result. "If, conscious of his conduct and existing conditions, defendant knew, or should have known, that the injury would probably result, the requirements of this section (wanton and reckless disregard) are met". Clark v. Small, 80 Colo. 227, 250 P. 385 (1926); Foster v. Redding, 97 Colo. 4, 45 P.2d 940 (1935); Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979); Bodah v. Montgomery Ward & Co., Inc., 724 P.2d 102 (Colo. App. 1986).

Evidence showing a reckless disregard for plaintiff's rights and feelings. From the language of this section it will be seen that that part of the verdict assessing exemplary damages could be upheld if malice, fraud, or insult were entirely wanting. It would be sufficient if the jury believed that the injury inflicted on defendant was attended by circumstances showing a wanton and reckless disregard of his rights and feelings. Coryell v. Lawson, 25 Colo. App. 432, 139 P. 25 (1914).

Evidence of conduct occurring after the event creating liability is material to the jury's assessment of punitive damages if the entire course of conduct, including the portion that occurred after the accident, tended to show that the defendant had acted heedlessly, recklessly, and without regard to the consequences or the safety of others. Jones v. Cruzan, 33 P.3d 1262 (Colo. App. 2001).

The feelings mentioned in this section may be physical as well as mental, and "wanton" means wilful and intentional. Clark v. Small, 80 Colo. 227, 250 P. 385 (1926).

"Wanton and reckless" disregard as used in this statute means conduct that creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences. Tri-Aspen Constr. Co. v. Johnson, 714 P.2d 484 (Colo. 1986); Juarez v. United States, 798 F.2d 1341 (10th Cir. 1986); Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo. App. 1993); Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).

Employer's act of sending supervisors to deliver employee's notice of termination at home where he was recovering from an apparent heart attack, of which the employer knew and stated that he did not care, and without prior warning to or discussion with the employee, supported an award of exemplary damages. Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo. App. 2002), aff'd on other grounds, 90 P.3d 228 (Colo. 2004).

"Wanton and reckless disregard" question for jury. Whether a defendant's intoxication constitutes wanton and reckless disregard for the rights and safety of others is generally a question of fact for the jury, and, where there is supportive evidence, the court should instruct the jury on this issue. Butters v. Mince, 43 Colo. App. 89, 605 P.2d 922 (1979), rev'd on other grounds, 200 Colo. 501, 616 P.2d 127 (1980); Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

The sufficiency of evidence to justify an award of punitive damage is a question of law, in which the totality of the evidence should be viewed in the light most supportive of the verdict. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

Malice not element of trademark infringement claim. Viewing the award of punitive damages as relating to a trademark infringement claim, it is not necessary that there be proof of "evil intent" because malice is not an element of that claim. Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F. Supp. 1219 (D. Colo. 1976), modified on other grounds and aff'd, 561 F.2d 1365 (10th Cir. 1977), cert. dismissed, 434 U.S. 1052, 98 S. Ct. 905, 54 L. Ed. 2d 805 (1978).

Prima facie proof of triable issue on liability for punitive damages is necessary to discover information relating to the defendant's financial status, and it may be established through discovery, by evidentiary means, or by an offer of proof. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Relevancy threshold for evidence in punitive damages claim. In the context of a punitive damages claim, the relevancy threshold is satisfied if the offered evidence tends to make more probable than not the existence of any of the statutory elements. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Evidence that manufacturer hired an advertising agency to encourage media publicity favorable to all of its products, including its intrauterine device, demonstrated a motive on the part of the manufacturer to profit by making exaggerated statements regarding the safety and efficacy of its product and therefore such evidence of the lay publicity campaign was relevant in establishing the statutory predicate for an award of punitive damages. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Standard of proof. Evidence in consolidated actions for injuries arising from the use of intrauterine contraceptive devices manufactured and marketed by the defendant supported findings that the devices were defective and were misrepresented with respect to safety and efficacy and that the defendant was negligent, but did not support a finding beyond a reasonable doubt, as required by 13-25-127 (2), that the defendant caused injury to plaintiffs by fraud, malice or insult, or wanton and reckless disregard of their rights and feelings so as to award exemplary damages to the plaintiffs. Hawkinson v. A.H. Robins Co., Inc., 595 F. Supp. 1290 (D. Colo. 1984).

Allowance or denial of exemplary damages rests in discretion of trier of fact. While the question of the sufficiency of evidence to justify an award of exemplary damages is a question of law, the allowance or denial of such damages rests in the discretion of the trier of fact. Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980).

While mere negligence cannot support an award of exemplary damages, repeated failure to correct a known dangerous condition may convert mere negligence into wanton and reckless disregard. Jacob v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo. App. 1986); Concord Realty v. Cont'l Funding, 776 P.2d 1114 (Colo. 1989).

This is so if the failure to act creates a substantial risk of harm to another and purposefully occurs with awareness of the risk in disregard of consequences or if the defendant, while conscious of its conduct and cognizant of existing conditions, knew or should have known that injury would probably result from its omission. Jacob v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo. App. 1986).

Evidence regarding a defendant's economic status is not an essential element of proof for an award of exemplary damages. Evans v. Thompson, 762 P.2d 754 (Colo. App. 1988).

Court shall submit the question of punitive damages to the jury where the plaintiff has shown evidence of fraud, malice, or wanton and reckless conduct on the part of the defendant. There is no need to show proof of the defendant's financial condition to make out a claim for punitive damages. Amber Props. v. Howard Elec. & Mech., 775 P.2d 43 (Colo. App. 1988).

Evidence held sufficient to support finding of "willful and wanton" misconduct. Hence, directed verdict for defendant was improper. Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).

Wrongful motive was shown, in case alleging bad-faith breach of insurance contract, by evidence that defendant insurer knew or should have known that injury would result from its actions. S. Park Aggregates, Inc. v. Nw. Nat. Ins. Co., 847 P.2d 218 (Colo. App. 1992).

The "circumstances of fraud" required for punitive damages under subsection (1)(a) are established if, in a fraudulent concealment case, a jury finds that the elements of fraud are established. Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380 (Colo. App. 1990).

Willful and wanton conduct includes conduct that creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).

"Willful and wanton" standard held satisfied where evidence supported a finding that defendant negotiated liability releases for himself to the detriment of a corporation of which he was a director, and disregarded the corporation's solvency on the date of a distribution of assets. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000).

"Wanton and reckless" standard held satisfied by defendants' conduct in supervision (or lack of supervision) of company-sponsored Christmas party at which plaintiff was injured in a fight. Bradley v. Guess, 797 P.2d 749 (Colo. App. 1989).

Wanton and reckless disregard of tenant's rights and feelings shown where mobile park owner continued to request tenant to perform maintenance it knew she was unable to perform and made no attempt to accommodate her before posting notice to quit. Punitive damages award necessary to deter landlord and other landlords from discriminating against persons with disabilities. Boulder Meadows v. Saville, 2 P.3d 131 (Colo. App. 2000).

Award of exemplary damages against defendant cannot stand since verdict was for defendant based on the jury's finding that plaintiff was more than fifty percent negligent. White v. Hansen, 837 P.2d 1229 (Colo. 1992).

An award of exemplary damages rests in the discretion of the trier of fact, be that the jury or the trial court. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).

In an action based upon the unintentional conduct of the defendant, it is not relevant that the trier of fact decides that the defendant engaged in willful and wanton conduct for purposes of awarding exemplary damages under this section. If the trier of fact determines the plaintiff's negligence is greater or equal to defendant's negligence, judgment must be entered in favor of the defendant. White v. Hansen, 837 P.2d 1229 (Colo. 1992).

The statutory reference to damages assessed is synonymous with the total compensatory amount prior to adjustments for any negligence of the plaintiff and the reference to damages awarded equates to the reduced compensatory amount. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

Exemplary damages are limited to damages recovered in accordance with an order for judgment, or the reduced compensatory amount. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

Subsection (1) mandates a one-to-one limitation of exemplary damages to "actual damages awarded", measured by the amount of compensatory damages after reduction for comparative negligence and pro rata liability by the court. Sprung v. Adcock, 903 P.2d 1224 (Colo. App. 1995).

While evidence of a continuing course of conduct may buttress a claim for exemplary damages, the absence of such evidence does not preclude such an award if the statutory elements are met by other sufficient proof. Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 186 P.3d 80 (Colo. App. 2008).

III. AMOUNT.

Exemplary damages cannot be accurately measured. Carlson v. McNeil, 114 Colo. 78, 162 P.2d 226 (1945).

There is no definite, precise ratio governing the relationship of actual damages to exemplary damages. Mailloux v. Bradley, 643 P.2d 797 (Colo. App. 1982).

Jury may apportion exemplary damages among multiple defendants, recognizing the differing degree of culpability or the existence or nonexistence of malice on an individual basis. The amounts need not be identical. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000).

Exemplary damages must bear some relation to the compensatory damages awarded. Starkey v. Dameron, 92 Colo. 420, 22 P.2d 640 (1933); Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273 (1948); Ark Valley Alfalfa Mills, Inc v. Day, 128 Colo. 436, 263 P.2d 815 (1953); Montgomery v. Tufford, 165 Colo. 18, 437 P.2d 36 (1968); Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 60 (1970); Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365 (10th Cir. 1977), cert. dismissed, 434 U.S. 1052, 98 S. Ct. 905, 54 L. Ed. 2d 805 (1978); Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979).

Nominal damages alone are sufficient to support an award of exemplary damages. Carey v. After the Gold Rush, 715 P.2d 803 (Colo. App. 1986).

Factors which guide determination of reasonable award. Although no precise formula can be utilized in the determination of the reasonableness of an award of exemplary damages the factors which guide the determination are: (1) The nature of the act which caused the injury; (2) the economic status of the defendant; and (3) the deterrent effect of the award on others. Frick v. Abell, 198 Colo. 508, 602 P.2d 852 (1979); Mailloux v. Bradley, 643 P.2d 797 (Colo. App. 1982); Vogel v. Carolina Intern., Inc., 711 P.2d 708 (Colo. App. 1985).

In determining the amount which should be awarded as punitive damages, the severity of the defendant's wrong, as well as the extent of the defendant's assets, must be considered to ensure that the award will punish the defendant. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980); Mailloux v. Bradley, 643 P.2d 797 (Colo. App. 1982).

Reasonableness of the award must be ascertained by examining the facts of the case to discover if the jury was impermissibly motivated by prejudice or properly guided by the purposes for exemplary damages, namely to defer and punish wrongful conduct. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984); Vogel v. Carolina Intern, Inc., 711 P.2d 708 (Colo. App. 1985).

Test for excessiveness of award. The crucial question is whether the punitive award is so excessive that it shocks the judicial conscience or leads to an inescapable inference that it resulted from improper passion or prejudice on the part of the jury. Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir. 1981), cert. denied, 464 U.S. 824, 104 S. Ct. 92, 78 L. Ed. 2d 99 (1983).

Test applied in Post Office v. Portec, Inc., 913 F.2d 802 (10th Cir. 1990); Estate of Korf v. A.O. Smith Harvestore Prods., 917 F.2d 480 (10th Cir. 1990) (both cases decided under section in effect prior to 1986 amendment).

Costs of litigation and attorney fees which were the consequence of the aggravated nature of the offense may under certain circumstances be considered in setting the amount of exemplary damages. Beebe v. Pierce, 185 Colo. 34, 521 P.2d 1263 (1974); Davies v. Bradley, 676 P.2d 1242 (Colo. App. 1983).

Behavior during the pendency of the case may be considered. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

Widely disproportionate exemplary damages indicate jury prejudice. Exemplary damages must be fairly proportionate to actual damages and if there is a wide disproportion, it shows that the jury was motivated by prejudice. Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 60 (1970).

This rule requires that a verdict for exemplary damages be separately stated, in order to provide a basis for determining its reasonableness. Montgomery v. Tufford, 165 Colo. 18, 437 P.2d 36 (1968).

In most jurisdictions the requirement that there be proportion between the general award and the exemplary award is used as a test so as to allow the court to set aside verdicts which it regards as excessive under the facts and the evidence presented. Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 60 (1970).

The proportion must be substantially equal but it does not have to be a fixed or definite mathematical ratio. The courts invariably examine and use the ratio, together with the particular facts presented, in order to ascertain whether the exemplary damage award seems unreasonable. Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, 26 L. Ed. 2d 60 (1970).

Generally greater exemplary damages are allowed in defamation cases. There is no definitive Colorado case dealing with defamation. Other jurisdictions which generally require a reasonable relationship between exemplary and general damages have upheld exemplary award in libel cases in much higher proportion than the 4 to 1 ratio awarded. The Colorado court has not laid down a hard and fast rule which requires that the present verdict be upset. The jury was at liberty to conclude that the defendants deliberately and premeditatedly set out to discredit the plaintiff so as to deter him in his effort to establish a competing organization. There is no basis for concluding that the jury verdict resulted from passion or prejudice, and the disproportion in the award does not by itself or in conjunction with the other evidence raise any such inference. Wegner v. Rodeo Cowboys Ass'n, 290 F. Supp. 369 (D. Colo. 1968), aff'd and reh'g denied, 417 F.2d 881 (10th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1688, L. Ed. 2d 60 (1970).

Defendant's financial status inadmissible in assessing compensating damages. In suits involving the assessment of compensatory damages, evidence of a defendant's financial status is inadmissible. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980).

Discovery of defendant's financial records not permitted. In view of legislative intent to end practice of requiring parties to bring financial records into court for review by the opposing side, in connection with punitive damages as well as with compensatory damages, discovery of the defendant's tax returns could not have led to admissible evidence and should not have been allowed. Corbetta v. Albertson's, Inc., 975 P.2d 718 (Colo. 1999).

New trial warranted where verdict manifestly inadequate. If the verdict is manifestly inadequate, or so small in amount as to clearly and definitely indicate that the jury neglected to take into consideration evidence of the plaintiff's injuries, pain and suffering, and resulting disability, if any; or if the record indicates that the jury was influenced by prejudice, passion, or other improper considerations; or if the jury was improperly instructed on the elements of compensatory damages, then a new trial on the issue of damages would be warranted. Mince v. Butters, 200 Colo. 501, 616 P.2d 127 (1980).

If damages are excessive plaintiff may consent to reduction and avoid reversal. It is not error in such a case to rule that a judgment be reversed and the cause remanded for a new trial; provided, however, that if plaintiff so elect he may consent to the reduction of said damages and final amended judgment will then be entered accordingly. Barnes v. Lehman, 118 Colo. 161, 193 P.2d 273 (1948).

For when unreasonable exemplary damages will not be sustained; see Starkey v. Dameron, 92 Colo. 420, 21 P.2d 1112 (1933); Kresse v. Bennett, 151 Colo. 549, 379 P.2d 807 (1963); Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 486 P.2d 477 (1971); W. Cities Broad. v. Schueller, 830 P.2d 1074 (Colo. App. 1991), aff'd in part and rev'd in part on other grounds, 849 P.2d 44 (Colo. 1993).

Evidence regarding a defendant's economic status is not an essential element of proof for an award of exemplary damages but merely a factor to be considered. Evans v. Thompson, 762 P.2d 754 (Colo. App. 1988).

"Wanton" conduct under subsection (1)(a) is equivalent to "willful" conduct under 13-21-101 (1). Bradley v. Guess, 797 P.2d 749 (Colo. App. 1989), rev'd on other grounds, 817 P.2d 971 (Colo. 1991).

But prejudgment interest may not be added to exemplary component of damage award. The victim's right to compensation for an injury suffered accrues before judgment, making prejudgment interest appropriate; however, the right to an award of punitive damages, which serves an entirely different purpose, does not exist until time of judgment. The fact that both components are part of a single claim tied to a single act of the defendant does not alter their separate character. Seward Const. Co., Inc. v. Bradley, 817 P.2d 971 (Colo. 1991); Lira v. Davis, 832 P.2d 240 (Colo. 1992).

Exemplary damages are not directly subject to reduction under comparative negligence statute. Reduction of award under 13-21-111 is based on plaintiff's own conduct, whereas an award of exemplary damages under this section is based on the defendant's misconduct and different principles apply. However, interplay among this section, 13-21-111, and 13-21-111.5 may produce a similar result. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

The plaintiff's comparative negligence should not be directly applied to reduce exemplary damages. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

The amount of reasonable exemplary damages may not exceed the amount of the actual damages awarded. Graphic Directions, Inc. v. Bush, 862 P.2d 1020 (Colo. App. 1993).

The amount of exemplary damages -- statutorily limited to the amount of "actual damages awarded" -- should not exceed the amount of compensatory damages after such damages have been reduced by judicial application of the comparative negligence and pro rata damages statutes. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

Exemplary damages are not subject to prejudgment interest. Lira v. Davis, 832 P.2d 240 (Colo. 1992).

Amount of actual damages awarded includes prejudgment interest. The award of compensatory damages includes the application of statutorily mandated additions and reductions to the jury's assessment of total damages. Vickery v. Evans, 266 P.3d 390 (Colo. 2011).

Trial court erred by increasing exemplary damages award without granting a hearing to defendant. Under subsection (3)(a), exemplary damages can be increased only if defendant continued the behavior in a willful and wanton manner. Without a hearing concerning conduct during the pendency of the case, the trial court could not have determined whether "willful and wanton manner" had been proven beyond a reasonable doubt. Blood v. Qwest Servs. Corp., 224 P.3d 301 (Colo. App. 2009), aff'd, 252 P.3d 1071 (Colo. 2011).

Trial court committed error when it considered, over defendant's objections, evidence of defendant's income and net worth in its determination of punitive damages. This section expressly prohibits consideration of a party's net worth or income in deciding whether exemplary damages are appropriate. Accordingly, upon remand, such evidence may not be considered. Razi v. Schmitt, 36 P.3d 102 (Colo. App. 2001).

Trial court did not abuse its discretion by trebling the exemplary damages award when the record supported a finding that defendants acted willfully and wantonly during the pendency of the case, further aggravating plaintiff's damages. Gen. Steel Domestic Sales v. Bacheller, 2012 CO 68M, 291 P.3d 1.

IV. PLEADING AND PRACTICE.

The one-year limitation of former 13-80-104 applied to prayers for punitive damages. Sherwood v. Graco, Inc., 427 F. Supp. 155 (D. Colo. 1977).

Punitive damages can only be obtained in action for wrongful death upon proper averment and proof under this section. Hayes v. Williams, 17 Colo. 465, 30 P. 352 (1892).

The jury is charged with the responsibility of determining the proper amount of exemplary damages. Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 486 P.2d 477 (1971).

The award of exemplary damages may be excessive or unreasonable as a matter of law. Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo. App. 386, 480 P.2d 477 (1971).

Whether there is any evidence to justify the finding of exemplary damages, is a question for the court. If there is none, it is error to submit the question to the jury. Eisenhart v. Ordean, 3 Colo. App. 162, 32 P. 495 (1893); Moody v. Sindlinger, 27 Colo. App. 290, 149 P. 263 (1915); Reyher v. Mayne, 90 Colo. 586, 10 P.2d 1109 (1932).

Where record demonstrated sufficient evidence from which a juror could conclude, beyond a reasonable doubt, that insurer's actions were willful and wanton, decision of trial court to submit question of punitive damages to jury would be upheld. Surdyka v. DeWitt, 784 P.2d 819 (Colo. App. 1989).

Because reliance on advice of counsel or consultants was only relevant to, not dispositive of, the element of intent in engaging in the acts that led to damages, and proof of such reliance would not require that defendant prevail on, or the court dismiss, plaintiffs' claim, it was not an affirmative defense. Trial court did not err, therefore, in admitting the reliance evidence and instructing the jury that it could consider that evidence in regard to punitive damages. Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007).

It is error to submit the question of punitive damages to the determination of the jury in the absence of evidence of any requisite element for the application of the rule. Reyher v. Mayne, 90 Colo. 586, 10 P.2d 1109 (1932).

Bifurcated trial on issue of liability for punitive damages in products liability suit. In products liability claim, defendant did not make an adequate showing of past punitive damages awards arising out of the same course of conduct to warrant granting a bifurcated trial on the issue of punitive damages in order to avoid any prejudice to the defendant on the issue of liability. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984).

Court's following instruction to jury approved: "Malice may be implied when there is a deliberate intention to do a grievous wrong without legal justification or excuse". McAllister v. McAllister, 72 Colo. 28, 209 P. 788 (1922).

Erroneous instruction. An instruction that "in law a wrongful act done intentionally, without a legal justification, is done maliciously", is erroneous. To justify exemplary damages there must be some wrong motive accompanying the wrongful act, or a reckless disregard of plaintiff's rights. French v. Deane, 19 Colo. 504, 36 P. 609 (1894).

When an action for damages is tried to the court without a jury by consent of the parties, the court may, in a proper case, award exemplary damages under this section. Calvat v. Franklin, 90 Colo. 444, 9 P.2d 1061 (1932).

Evidence of malice met the requirement of this section in an action for injuries allegedly sustained in an assault upon plaintiff by defendant. Minowitz v. Failing, 109 Colo. 182, 123 P.2d 417 (1942).

Evidence held insufficient. Evidence of "fraud, malice or insult, or a wanton and reckless disregard of the injured party's rights and feelings", held insufficient to support a judgment for exemplary damages under this section. Rosenbaum v. Mathews, 113 Colo. 307, 156 P.2d 843 (1945); Spurlock v. United Airlines, 330 F. Supp. 228 (D. Colo. 1971).

Admissibility of evidence in libel action to mitigate exemplary damages. Where the plaintiff in a libel action seeks exemplary damages he can recover such damages only upon proof of actual malice upon the part of the defendant, or a reckless disregard by him of the plaintiff's rights and feelings and in such case, the defendant, not as a justification, but for the sole purpose of mitigating exemplary damages, may introduce evidence to the contrary. Bearman v. People, 91 Colo. 486, 16 P.2d 425 (1932).

Evidence of potential nonparty harm may be considered in a reprehensibility analysis as part of a due process test for exemplary damages awards, as set forth in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). The decision of the U.S. supreme court in Philip Morris USA v. Williams, 549 U.S. 346 (2007), does not preclude such use of potential nonparty harm evidence. Blood v. Qwest Servs. Corp., 224 P.3d 301 (Colo. App. 2009), aff'd, 252 P.3d 1071 (Colo. 2011).

Right to damages under this section must be proved beyond a reasonable doubt. S. Park Aggregates, Inc. v. Nw. Nat. Ins. Co., 847 P.2d 218 (Colo. App. 1992); Sky Fun 1, Inc. v. Schuttloffel, 8 P.3d 570 (Colo. App. 2000), rev'd on other grounds, 27 P.3d 361 (Colo. 2001).

Failure of trial court to specifically state that the evidence supported findings leading to imposition of punitive damages beyond a reasonable doubt was not fatal, where the findings otherwise led inexorably to that conclusion. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

Where evidence supported findings leading to imposition of punitive damages under this section, as well as under another statute, the fact that the other statute was held not to apply did not affect the validity of the award. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).

Award of punitive damages was proper, and punitive damages were not impermissibly awarded on a breach-of-contract claim, where the complaint alleged not only breach of a contract of sale but also conversion of the property subject to the contract and where the trial court specifically found that the defendants had acted willfully and wantonly in connection with the conversion claim. Flexisystems, Inc. v. Am. Standards Testing Bureau, Inc., 847 P.2d 207 (Colo. App. 1992).

Sufficient evidence was shown to uphold the award of exemplary damages where there was evidence that defendant, a nursing home administration firm, actively sought to recruit its clients' patients for defendants' own facility. Life Care Centers v. E. Hampden Assoc., 903 P.2d 1180 (Colo. App. 1995).

Evidence was sufficient to uphold jury award of exemplary damages against creditor to company whose goods where held in debtor's warehouse for sale on consignment where: Creditor who had seized and sold all goods in the warehouse had not relied on the consigned goods in extending credit to debtor; creditor knew of debtor's consignment business and required debtor to keep separate inventories of owned goods and consignment goods; creditor knew that goods seized included consigned goods; creditor kept no records of seized goods it sold despite actual knowledge that others claimed ownership of such goods; creditor had sent letters containing false and misleading information to consigners; and creditor had withheld information from its own attorneys when seeking advice on how to proceed. However, trebling of exemplary damages was improper because creditor's retention of sale proceeds under a claim of right was not a continuation of objectionable behavior during the pendency of the lawsuit. Eurpac Serv. Inc. v. Republic Acceptance Corp., 37 P.3d 447 (Colo. App. 2000).

No abuse of discretion where trial court denied a motion for a mistrial made on the ground of references to insurer's assets where jury did not award exemplary damages, the statement was made on cross examination, the question was not repeated, and the court directed the jury to disregard the question. Lunsford v. W. States Life Ins., 919 P.2d 899 (Colo. App. 1996).

Trial court abused its discretion when it denied plaintiffs' motion to amend their complaint to add a claim for exemplary damages where amended complaint satisfied the burden of proof set forth in 13-21-203 (3)(c)(I). Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).

Trial court did not abuse its discretion by permitting plaintiff to amend the complaint after the close of evidence to include a punitive damages claim because defendant failed to demonstrate any prejudice arising from the late amendment where both plaintiff and defendant presented evidence on the issue of whether defendant engaged in willful and wanton conduct generally. Davis v. GuideOne Mut. Ins. Co., 2012 COA 70M, 297 P.3d 950.

Summary judgment was improper where a triable issue of fact existed on alarm company's willful and wanton failure to respond to burglary and fire, notwithstanding contractual limitation of liability that precluded a claim based on simple negligence. U.S. Fire Ins. Co. v. Sonitrol Mgmt. Corp., 192 P.3d 543 (Colo. App. 2008).

V. AGAINST WHOM AWARDED.

Exemplary damages cannot be awarded against one who has not participated in the offense. Ristine v. Blocker, 15 Colo. App. 224, 61 P. 486 (1900).

A principal is not liable for such damages because of the acts of his agent. All the cases discussing the question proceed on the hypothesis that punitive damages are not awarded by way of compensation to the sufferer, but are visited as a punishment on the offender and to serve as a warning to subsequent wrongdoers. Such being the fundamental basis of the doctrine it has always been adjudged and we have been cited to no case, and know of none, wherein a principal has been held liable for exemplary damages because of the wanton and oppressive act or of the malicious intent of his agent. Ristine v. Blocker, 15 Colo. App. 224, 61 P. 486 (1900); Holland Furnace Co. v. Robson, 157 Colo. 347, 402 P.2d 628 (1965).

Unless such acts are authorized or ratified. The general assembly did not intend to enact that in all civil actions for wrongs done to the person or to property, exemplary damages might be assessed, but only in those cases where the circumstances show fraud, malice, insult or a wanton reckless disregard of the injured party's rights or feelings. On well settled principles, this can only occur where the suit is brought directly against the wrongdoer who alone can exhibit the intent, and to whom alone can be imputed, and against whom only can be proved the fraud, the malice, the insult or the wantonness which is a condition precedent to the assessment of such damages. This section therefore, does not extend to actions brought against a principal for wrongs committed by his servant unless the record exhibits a mandate from which the authority to thus act can be deduced or the principal afterwards confirms what has been done. Ristine v. Blocker, 15 Colo. App. 224, 61 P. 486 (1900).

When principal may be liable for act of agent. A principal cannot be held liable in exemplary damages for the act of an agent unless it is shown that it (a) authorized or approved the servant's tortious act; or (b) approved of or participated in the act; or (c) failed to exercise proper care in the selection of its servant. Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (10th Cir. 1981), cert. denied, 464 U.S. 824, 104 S. Ct. 92, 78 L. Ed. 2d 99 (1983).

This rule applies to actions against railroads. This section neither directs nor permits the assessment of exemplary damages against a principal for the wrong done by his agent, and it follows the same rule should be applied, the same principle invoked, and the same result reached in an action brought against a railroad company when the basis for the assessment of exemplary damages is to be found only in circumstances showing fraud, malice, insult or reckless disregard of consequences by the agent in which the employer, the railroad company, could not participate. Admitting always the exception unless there be some order, direction or affirmance which is a prerequisite in the case of a suit against an individual principal, the rule must be the same in both cases. Ristine v. Blocker, 15 Colo. App. 224, 61 P. 486 (1900).

Absent an agreement by the parties that state arbitration law should govern, subsection (5) restricting an arbitrator's power to award punitive damages does not apply to an action under the Federal Arbitration Act. Pyle v. Sec. U.S.A., Inc., 758 F. Supp. 638 (D. Colo. 1990).