HANDBOOK OF COLORADO WRONGFUL DEATH LAW SECOND EDITION

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1 HANDBOOK OF COLORADO WRONGFUL DEATH LAW SECOND EDITION GREGORY R. GIOMETTI HERB TUCKER VICTORIA C. SWANSON Legal Editors Supplemented May 2006 September 2010 CONTINUING LEGAL EDUCATION IN COLORADO, INC. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION 2010

2 HANDBOOK OF COLORADO WRONGFUL DEATH LAW SECOND EDITION Library of Congress Control No ISBN: Published by: CONTINUING LEGAL EDUCATION IN COLORADO, INC Grant Street, Suite 300 Denver, Colorado Phone: (303) Toll-free: (888) Fax: (303) Website: Dawn M. McKnight, Esq. Assistant Executive Director Colorado Bar Association CLE Lisa C. Travis Fischer, J.D. Acquisitions Editor/Manager Colorado Bar Association CLE Kathryn Noble, Esq. Managing Editor Colorado Bar Association CLE John and Lynn Cleveland Table of Authorities/Subject Index Lindex COLORADO BAR ASSOCIATION CLE CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook or other secondary authority, attorneys dealing with specific legal matters should also fully research current, primary authorities. Copyright 2002, 2006, 2010 by Continuing Legal Education in Colorado, Inc. All Rights Reserved.

3 PUBLISHER S NOTE This 2010 supplement to the Handbook of Colorado Wrongful Death Law includes an extensive discussion of cases as well as the interplay of case law and statutes. Readers will find expanded coverage of the Colorado Designated Beneficiary Act; the limitations on damages that may apply outside the Wrongful Death Act; the per-claim, as opposed to per-defendant, application of the limitation on recovery of non-economic damages; the effect of prejudgment interest and the decedent s future tax liability on the calculation of damages; and the minimum contacts necessary to establish jurisdiction over a foreign defendant. As with all of our publications, this book is the result of the generosity of our volunteer author, who gave of his time and expertise to ensure that the book remains a valuable and helpful publication for practitioners in Colorado. We wish to thank Gregory Giometti for his diligent work on this book. As he has done for a number of our other publications, Mr. Giometti generously shared more than twenty years of expertise and knowledge. We greatly appreciate his dedication and cooperation, as well as the time he took from his practice to devote to this project. We are so fortunate to have worked with such an excellent practitioner on this book, and Colorado attorneys are fortunate to have the benefit of his experience. We also acknowledge the superb efforts of Herb Tucker and Victoria Swanson, the peer legal editors of this edition. Their insightful comments assisted us greatly during the revision process for this book. This edition reflects updates in case law, legislation, and other important information. We welcome your comments and suggestions, and encourage you to contact Mr. Giometti or us with your thoughts and suggestions. Dawn M. McKnight, Esq. Assistant Executive Director Colorado Bar Association CLE Kathryn Noble, Esq. Legal Editor Colorado Bar Association CLE (9/10) iii

4 COLORADO BAR ASSOCIATION CLE Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also financially independent from the bar associations and self-supporting. We receive no membership dues or other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio and video homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this generous contribution of talent, CBA-CLE could not fulfill its mission. CBA-CLE Board of Directors July 2010 to June 2011 Denver Bar Association Appointments Richard I. Zuber Robert A. Holmes Michael T. Mihm Kristin Rozansky Gregory James Smith Brenda L. Storey CBA-CLE Staff Colorado Bar Association Appointments Barbara Blumenthal Baird B. Brown E. David Griffith Honorable Terry Ruckriegle Deanna L. Westfall Eugene Zuspann, II Charles C. Turner B. Gary Abrams Executive Director Evan Brown Manager of Media and Web Development Ellen Buckley, Esq Legal Editor Lisa M. Cordova Program Coordinator Pam Corrigan Finance Manager Mary Dilworth Marketing Manager Lisa C. Travis Fischer, J.D Acquisitions Editor/Manager Terri L. Fonseca Customer Service Priscilla S. Fulmer, Esq Program Attorney Alli Gerkman, J.D Manager of Online Content and Development Susan Hoyt Legal Editor Darlene M. Johnson Managing Editor Lori L. Krupske Order Fulfillment/Shipping Manager/Finance Assistant Deb Marnocha Desktop Publisher Dawn M. McKnight, Esq Assistant Executive Director Jo McWilliams Order Fulfillment/Shipping Assistant Ryan Morris Program Coordinator/Data Specialist Kathryn Noble, Esq Legal Editor Heidi A. Ray, J.D Program Attorney Julie Lynn Revers Program Administrator Adrian Romero-Sosa Technical Producer Nicoll Stapleton Marketing Assistant Kenneth Sudduth Customer Service Kristen Wolfe Publications Assistant/Customer Service iv (9/10)

5 AUTHOR S ACKNOWLEDGMENT I wish to thank my wife, Alix McGinnis Giometti, for her patience and support in my book-writing endeavors. Gregory R. Giometti August 2010 ACKNOWLEDGMENT Production of the Handbook of Colorado Wrongful Death Law, Second Edition, required the editors to Shepardize the citations used in the book. The research was made possible by a generous contribution from the Colorado Bar Association CLE s technology partner, LEXIS-NEXIS. Shepard s, an operating unit of LEXIS-NEXIS, is a provider of citations research information in the United States. HOW TO CITE THIS BOOK As the first full citation, you may cite this book as: Gregory R. Giometti, Handbook of Colorado Wrongful Death Law, Second Ed. (CLE in Colo., Inc. Supp. 2010). After the first full citation, you may cite this book as: Handbook of Colorado Wrongful Death Law, supra n.. (9/10) v

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7 Gregory R. Giometti, Esq. Gregory R. Giometti & Associates, P.C. 50 S. Steele St., Ste. 480 Denver, CO (303) ABOUT THE AUTHOR Gregory R. Giometti is a highly experienced civil trial attorney and one of the most prolific legal authors in Colorado. His publications include Colorado Automobile Accident Litigation & Insurance Handbook (2001, supplemented 2004 and 2007), Colorado Handbook of Wrongful Death Law (2nd Ed. 2002, supplemented 2006 and 2010) and Colorado Law of Insurance Bad Faith (3rd Ed. 2009). In addition, he wrote the article on evidence law for the Annual Survey of Colorado Law from 1997 to He is also the author of a chapter in the Colorado Courtroom Handbook for Civil Trials. Mr. Giometti has been awarded an AV Preeminent rating by Martindale-Hubbell, a recognition of the highest levels of professional skill and integrity. In 2003, Mr. Giometti was invited to become a Fellow of the Colorado Bar Foundation, recognition of a lawyer as one whose professional, public, and private career has demonstrated outstanding dedication to the welfare of the community, the traditions of the profession and the advancement of the objectives of the Colorado Bar Association. Mr. Giometti graduated from the University of Oregon in 1979 and in 1982 obtained his J.D. from the University of Idaho, where he received the Outstanding Advocate Award. He was admitted to the Idaho Bar in 1982 and served as a law clerk for the Idaho Court of Appeals from 1982 to In 1987, he was admitted to the Colorado Bar and began practicing in Denver. He is highly experienced in handling motor vehicle accident cases, traumatic brain injury claims, wrongful death cases, insurance coverage issues, declaratory judgment actions, insurance bad faith cases, and other types of litigation. He has spoken at many seminars and has handled numerous appellate cases. (9/10) vii

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9 Victoria C. Swanson, Esq. Sears & Swanson P.C. 2 N. Cascade Ave., Ste Colorado Springs, CO (719) victoria@searsandswanson.com ABOUT THE LEGAL EDITORS Victoria C. Swanson, Esq., has practiced personal injury and products liability law since 1975 and presently practices law with her firm, Sears & Swanson, P.C., in Colorado Springs. Ms. Swanson is past president of the Colorado Trial Lawyers Association and is certified in civil trial advocacy by the National Board of Trial Advocacy. Herb E. Tucker, IV, Esq. Wade Ash Woods Hill & Farley, P.C. 360 S. Monroe St., Ste. 400 Denver, Colorado (303) wadeash.com htucker@wadeash.com Herb E. Tucker, IV, is a shareholder with the Denver law firm of Wade Ash Woods Hill & Farley, P.C. He is admitted to the U.S. Supreme Court, U.S. District Court, U.S. Court of Appeals 10th Circuit, and Colorado State Courts. Mr. Tucker served as a law clerk to Judge Field C. Benton, Denver Probate Court, He is a member of the Denver, Colorado, and American bar associations. He is a member of the Statutory Revisions Committee, the Continuing Legal Education Committee, the Uniform Trust Code Committee, and has served as Co-Chair of the Colorado Dead Man s Statute Committee of the Colorado Bar Association. His articles have been published in The Colorado Lawyer, Trust & Estate Section Council Notes of the Colorado Bar Association, and Trial Talk of the Colorado Trial Lawyers Association. Mr. Tucker has lectured at local and national Continuing Legal Education programs, the NAELA Institute, and the third Biennial Conference Advanced Elder Law Institute, University of Denver. Mr. Tucker s practice focuses on the areas of estate and trust litigation and estate and trust administration. Mr. Tucker is also listed in Best Lawyers in America, as well as Colorado Super Lawyers. (9/10) ix

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