CO Code § 6-1-113 (2021)
2021 Colorado Code|Title 6 - Consumer and Commercial Affairs|Article 1 - Colorado Consumer Protection Act|Part 1 - Consumer Protection - General|§ 6-1-113. Damages

  The provisions of this article shall be available in a civil action for any claim against any person who has engaged in or caused another to engage in any deceptive trade practice listed in this article. An action under this section shall be available to any person who:   Is an actual or potential consumer of the defendant's goods, services, or property and is injured as a result of such deceptive trade practice, or is a residential subscriber, as defined in section 6-1-903 (9), who receives unlawful telephone solicitation, as defined in section 6-1-903 (10); or    Is any successor in interest to an actual consumer who purchased the defendant's goods, services, or property; or    In the course of the person's business or occupation, is injured as a result of such deceptive trade practice.       Except in a class action or a case brought for a violation of section 6-1-709, and notwithstanding any other law, any person who, in a private civil action, is found to have engaged in or caused another to engage in any deceptive trade practice listed in this article 1 is liable in an amount equal to the sum of:   The greater of:   The amount of actual damages sustained, including prejudgment interest of either eight percent per year or at the rate provided in section 13-21-101, whichever is greater, from the date the claim under this article 1 accrued; or    Five hundred dollars; or    Three times the amount of actual damages sustained, if it is established by clear and convincing evidence that such person engaged in bad faith conduct; plus       In the case of any successful action to enforce said liability, the costs of the action together with reasonable attorney fees as determined by the court.  (2.3) As used in subsection (2) of this section, “bad faith conduct” means fraudulent, willful, knowing, or intentional conduct that causes injury.  (2.5) Notwithstanding the provisions of subsection (2) of this section, in the case of any violation of section 6-1-709 , in addition to interest, costs of the action, and reasonable attorney fees as determined by the court, the prevailing party shall be entitled only to damages in an amount sufficient to refund moneys actually paid for a manufactured home not delivered in accordance with the provisions of section 6-1-709 . (2.7) Notwithstanding the provisions of subsection (2) of this section, in the case of any violation of section 6-1-105 (1) (ss), the court may award reasonable costs of the action and attorney fees and interest, and in addition, the prevailing party shall be entitled only to damages in an amount sufficient to refund moneys actually paid for the installation of a manufactured home not installed in accordance with the provisions of part 33 of article 32 of title 24, C.R.S., that apply to the installation of manufactured homes.       Any person who brings an action under this article 1 that is found by the court to be frivolous, groundless and in bad faith, or for the purpose of harassment shall be liable to the defendant for the costs of the action together with reasonable attorney fees as determined by the court.    Costs and attorney fees shall be awarded to the attorney general or a district attorney in all actions where the attorney general or the district attorney successfully enforces this article.     History. Source: L. 69: P. 376, § 12. C.R.S. 1963: § 55-5-12. L. 86: Entire section amended, p. 446, § 5, effective April 17. L. 87: Entire section amended, p. 360, § 9, effective July 1. L. 98: IP(2) amended and (2.5) added, p. 748, § 3, effective August 5. L. 99: Entire section amended, p. 636, § 1, effective May 18. L. 2000: (2.7) added, p. 1162, § 4, effective July 1, 2001. L. 2001: (1)(a) amended, p. 1461, § 3, effective August 8. L. 2003: (2.7) amended, p. 550, § 4, effective March 5. L. 2019: IP(2), (2)(a)(I), and (3) amended,(HB 19-1289), ch. 268, p. 2517, § 4, effective May 23. History. Source: L. 69: P. 376, § 12. C.R.S. 1963: § 55-5-12. L. 86: Entire section amended, p. 446, § 5, effective April 17. L. 87: Entire section amended, p. 360, § 9, effective July 1. L. 98: IP(2) amended and (2.5) added, p. 748, § 3, effective August 5. L. 99: Entire section amended, p. 636, § 1, effective May 18. L. 2000: (2.7) added, p. 1162, § 4, effective July 1, 2001. L. 2001: (1)(a) amended, p. 1461, § 3, effective August 8. L. 2003: (2.7) amended, p. 550, § 4, effective March 5. L. 2019: IP(2), (2)(a)(I), and (3) amended,(HB 19-1289), ch. 268, p. 2517, § 4, effective May 23.    ANNOTATION   Law reviews. For article, “Recreational Waivers in Colorado: Playing at Your Own Risk”, see 32 Colo. Law. 77 (Aug. 2003).   The treble damages provision of this section does not violate the due process or equal protection guarantees of the state and federal constitutions. Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60 (Colo. App. 2004).   For purposes of a private right of action, “any person” means a person who establishes that: (1) The defendant engaged in an unfair or deceptive trade practice; (2) the challenged practice occurred in the course of the defendant's business, vocation, or occupation; (3) it significantly impacts the public as actual or potential customers of the defendant's goods, services, or property; (4) the plaintiff suffered injury in fact to a legally protected interest; and (5) the challenged practice caused the plaintiff's injury. Hall v. Walter, 969 P.2d 224 (Colo. 1998); Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ); Anson v. Trujillo, 56 P.3d 114 (Colo. App. 2002).   Factors applied in Full Draw Prods. v. Easton Sports, Inc., 85 F. Supp. 2d 1001 (D. Colo. 2000 ).   The plain language of this section provides that any person may bring an action under the Colorado Consumer Protection Act (CCPA). Therefore, third-party non-consumers have standing to bring actions under the CCPA. Walter v. Hall, 940 P.2d 991 (Colo. App. 1996), aff'd, 969 P.2d 224 (Colo. 1998).   Plaintiff is not authorized to bring an action under the CCPA because, under the plain language of subsection (1), plaintiff was not an assignee whose assignors were actual consumers who purchased defendant's goods, services, or property, nor was plaintiff an actual or potential consumer of defendant's goods, services, or property injured as a result of the facsimile transmissions. By specifying in subsection (1) the circumstances under which a successor in interest may bring a CCPA claim, the general assembly necessarily excluded successors in interest from bringing claims under other circumstances. U.S. Fax Law Ctr. v. Myron Corp., 159 P.3d 745 (Colo. App. 2006).   Individual liability of corporate officers and agents proper under this article. This section allows civil actions against “any person” who has engaged in a deceptive trade practice. Hoang v. Arbess, 80 P.3d 863 (Colo. App. 2003).   Vicarious liability claim against mortgage brokerage firm that employed licensed securities broker who violated the CCPA survives motion to dismiss. Dolin v. Contemporary Fin. Solutions, Inc., 622 F. Supp. 2d 1077 (D. Colo. 2009 ).   Although the term “any person” is broad, the CCPA will not remedy private injuries. Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ).   The right to a civil action under the CCPA is waivable. Where a common interest community's declaration includes a mandatory arbitration provision, CCPA claims included in a construction defect case against the developer of the common interest community are arbitrable. Vallagio at Inverness v. Metro. Homes, 2015 COA 65 , 412 P.3d 709, aff'd, 2017 CO 69, 395 P.3d 788.   Three factors must be considered in assessing the public impact of an allegedly deceptive trade practice: The number of consumers directly affected by the challenged practice; the relative sophistication and bargaining power of the consumers affected by the challenged practice; and evidence that the challenged practice previously impacted other consumers or has significant potential to do so in the future. Loughridge v. Goodyear Tire & Rubber Co., 192 F. Supp. 2d 1175 (D. Colo. 2002 ); Dean Witter Reynolds, Inc. v. Variable Annuity Life Ins. Co., 373 F.3d 1100 (10th Cir. 2004).   The CCPA requires actual injury before an individual may maintain a private cause of action. Hall v. Walter, 969 P.2d 224 (Colo. 1998); Purple Onion Foods, Inc. v. Blue Moose of Boulder, Inc., 45 F. Supp. 2d 1255 (D. Colo. 1999 ).   A plaintiff does not have to incur out-of-pocket losses to have suffered an actual injury. Shekarchian v. Maxx Auto Recovery, Inc., 2019 COA 60 , __ P.3d __.   Under Colorado law, a claim for liquidated damages under the Telephone Consumer Protection Act, 47 U.S.C. § 227, is a claim for a penalty that cannot be assigned. Kruse v. McKenna, 178 P.3d 1198 (Colo.), cert. denied, 555 U.S. 821, 129 S. Ct. 112, 172 L. Ed. 2d 35 (2008).   If a claim by a corporation is within the zone of interests of the CCPA, a corporation is a person entitled to bring a claim under the act. Fiberglass Component Prod. v. Reichhold Chems., Inc., 983 F. Supp. 948 (D. Colo. 1997 ).   Business losses that result when deceptive trade practices dissuade potential attendees from attending a trade show constitute an injury to an interest protected by the CCPA. Full Draw Prods. v. Easton Sports, Inc., 85 F. Supp. 2d 1001 (D. Colo. 2000 ).   Challenged conduct must significantly impact the public as actual or potential consumers of the product. Martinez v. Lewis, 969 P.2d 213 (Colo. 1998); NetQuote, Inc. v. Byrd, 504 F. Supp. 2d 1126 (D. Colo. 2007 ); Shekarchian v. Maxx Auto Recovery, Inc., 2019 COA 60 , __ P.3d __.   Alleged misrepresentations concerning independent medical examiner's qualifications were made solely to sophisticated insurance company, not the public. Therefore, claim under CCPA brought by insured properly dismissed. Martinez v. Lewis, 969 P.2d 213 (Colo. 1998).   Allegations did not meet the public impact element required by this section because they did not plausibly suggest that defendant's conduct significantly impacted the public as actual or potential consumers. NetQuote, Inc. v. Byrd, 504 F. Supp. 2d 1126 (D. Colo. 2007 ).   The CCPA applies when the last event creating possible liability occurred in Colorado. Where allegedly disparaging statements were disseminated and individual allegedly suffered actual injury in Colorado, the CCPA applies. Purple Onion Foods, Inc. v. Blue Moose of Boulder, Inc., 45 F. Supp. 2d 1255 (D. Colo. 1999 ).   Claimant not within group of persons the statute was intended to protect because the physician's conduct in performing claimant's independent medical examination occurred in the context of the contract between the physician and the insurer and not between the physician and the claimant. Claimant never asserted that the physician made false representations to her or that she relied on such misrepresentations. Martinez v. Lewis, 942 P.2d 1219 (Colo. App. 1996), aff'd, 969 P.2d 213 (Colo. 1998).   Award of attorney fees under this section appropriate inasmuch as defendant's fraudulent misrepresentation was a deceptive trade practice under § 6-1-103 . Dodds v. Frontier Chevrolet Sales & Serv., Inc., 676 P.2d 1237 (Colo. App. 1983).   Attorney fees award not dischargeable under the federal bankruptcy code. The award is sufficiently penal to constitute a “fine, penalty, or forfeiture”. State v. Robert J. Hopp & Assocs., 2018 COA 71 , 422 P.3d 617.   Attorney fees recoverable in action under No-Call List Act. A successful claimant under § 6-1-904 is entitled to attorney fees in accordance with this section. Holcomb v. Steven D. Smith, Inc., 170 P.3d 815 (Colo. App. 2007).   Trial court's award of attorney fees to defendant appropriate. To prove a private cause of action for a deceptive trade practice under the CCPA, a plaintiff must show that: (1) The defendant engaged in an unfair or deceptive trade practice; (2) the challenged practice occurred in the course of defendant's business; (3) it significantly impacted the public as actual or potential consumers of the defendant's goods, services, or property; (4) the plaintiff suffered injury in fact to a legally protected interest; and (5) the challenged practice caused the plaintiff's injury. Plaintiff's deceptive trade practices claim, therefore, was frivolous and groundless under subsection (3) when plaintiff failed to allege that defendant's conduct significantly impacted the public as an actual or potential consumer or submit factual material that would support such a finding. Wheeler v. T.L. Roofing, Inc., 74 P.3d 499 (Colo. App. 2003).   This section unambiguously requires an award of attorney fees and costs in favor of the state when the state successfully enforces an investigative subpoena pursuant to the procedure dictated by § 6-1-109 . State ex rel. Coffman v. Vaden Law Firm LLC, 2015 COA 68 , 411 P.3d 153.   Award of attorney fees inappropriate under this section where plaintiff lacks standing to bring a cause of action pursuant to the CCPA. Anson v. Trujillo, 56 P.3d 114 (Colo. App. 2002).   Trial court's order awarding attorney fees to the plaintiff without setting the amount of the award was a final, appealable order. Because the statute shifts fees and costs to the violator, an award of fees under the statute is more akin to costs than damages. Therefore, the order awarding fees was appealable even though the court had not determined the amount of the award. Martinez v. LHM Corp., 2020 COA 53 M, __ P.3d __.   Offer of settlement as to “all claims” unambiguously includes attorney fees and costs if the only claim for attorney fees and costs appears in the complaint. The offer of settlement need not explicitly reference attorney fees and costs. Bumbal v. Smith, 165 P.3d 844 (Colo. App. 2007).   Treble damages provided by this section and punitive damages awarded under § 13-21-102 serve the same purposes of punishment and deterrence. Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo. 1992).   Plaintiff was not entitled to recover both treble damages under this section and punitive damages under § 13-21-102 , since damages under both sections serve same purposes. Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo. 1992).   If this section does not apply, punitive damages may still be available under other provisions of law. Section 13-21-102 allows for punitive damages, and even treble punitive damages, under some circumstances. Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59 (Colo. 2005).   Rule against double recovery does not preclude plaintiff from pursuing claims to recover both enhanced damages under this section and exemplary damages. Accordingly, plaintiffs' complaint should not have been dismissed on summary judgment. Although plaintiffs may not recover from defendant any actual damages for which they have already received payment and may not relitigate the amount of those damages, they must be permitted to attempt to establish their entitlement to treble damages under this section or exemplary damages under § 13-21-102 . Quist v. Specialties Supply Co., Inc., 12 P.3d 863 (Colo. App. 2000).   Retroactive application of enhanced civil remedies in this section is permissible. Treble-damages provision of this section could be applied where health club had violated substantive provisions of act prior to amendment of this section, since amendment did not impose new duties on health clubs in relation to their customers. Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).   Attorney fees incurred in unsuccessful attempt to obtain class certification were properly disallowed, since subsection (2) clearly prohibits an award of attorney fees in a class action. Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).   Trial court may limit award of attorney fees to that which is “reasonable”. Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).   In estimating reasonable attorney fees to be awarded, a court should first apply the percentage reductions to the total hours billed to determine the reasonable number of hours expended and then multiply that number of hours by the trial court's determined reasonable hourly rates. Payan v. Nash Finch Co., 2012 COA 135 M, 310 P.3d 212.   A trial court is not required to advise a jury that a finding of deceptive trade practices will result in an award of treble damages under this section. Heritage Vill. Owners Ass'n v. Golden Heritage Inv'rs, Ltd., 89 P.3d 513 (Colo. App. 2004).   This section not in conflict with § 13-17-201 . This section allows attorney fees when claims are groundless and in bad faith or for the purpose of harassment, while § 13-17-201 applies to a motion pursuant to C.R.C.P. 12(b). The provisions can stand side by side because they mandate awards in different circumstances. US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205 P.3d 512 (Colo. App. 2009).