CO Code § 13-21-203 (2021)
2021 Colorado Code|Title 13 - Courts and Court Procedure|Article 21 - Damages|Part 2 - Damages for Death by Negligence|§ 13-21-203. Limitation on Damages

     All damages accruing under section 13-21-202 shall be sued for and recovered by the same parties and in the same manner as provided in section 13-21-201, and in every such action the jury may give such damages as they may deem fair and just, with reference to the necessary injury resulting from such death, including damages for noneconomic loss or injury as defined in section 13-21-102.5 and subject to the limitations of this section and including within noneconomic loss or injury damages for grief, loss of companionship, pain and suffering, and emotional stress, to the surviving parties who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending any such wrongful act, neglect, or default; except that, if the decedent left neither a widow, a widower, minor children, nor a dependent father or mother, the damages recoverable in any such action shall not exceed the limitations for noneconomic loss or injury set forth in section 13-21-102.5, unless the wrongful act, neglect, or default causing death constitutes a felonious killing, as defined in section 15-11-803 (1)(b), C.R.S., and as determined in the manner described in section 15-11-803 (7), C.R.S., in which case there shall be no limitation on the damages for noneconomic loss or injury recoverable in such action. No action shall be brought and no recovery shall be had under both section 13-21-201 and section 13-21-202, and in all cases the plaintiff is required to elect under which section he or she will proceed. There shall be only one civil action under this part 2 for recovery of damages for the wrongful death of any one decedent. Notwithstanding anything in this section or in section 13-21-102.5 to the contrary, there shall be no recovery under this part 2 for noneconomic loss or injury in excess of two hundred fifty thousand dollars, unless the wrongful act, neglect, or default causing death constitutes a felonious killing, as defined in section 15-11-803 (1)(b), C.R.S., and as determined in the manner described in section 15-11-803 (7), C.R.S.    The damages recoverable for noneconomic loss or injury in any medical malpractice action shall not exceed the limitations on noneconomic loss or injury set forth in section 13-64-302.       This section shall apply to a cause of action based on a wrongful act, neglect, or default occurring on or after July 1, 1969. A cause of action based on a wrongful act, neglect, or default occurring prior to July 1, 1969, shall be governed by the law in force and effect at the time of such wrongful act, neglect, or default.      In all actions brought under section 13-21-201 or 13-21-202 in which damages are assessed by the trier of fact, and the death complained of is attended by circumstances of fraud, malice, or willful and wanton conduct, the trier of fact, in addition to the actual damages, may award reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount that is equal to the amount of the actual damages awarded to the injured party.    For purposes of this subsection (3), “willful and wanton conduct” shall have the same meaning as set forth in section 13-21-102 (1)(b).      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 shall be allowed by amendment to the pleadings only after the passage of sixty days following 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. (c) (I) 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 shall be allowed by amendment to the pleadings only after the passage of sixty days following 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.    A claim for exemplary damages in an action governed by this section shall not be time barred by the applicable provisions of law for the commencement of actions, so long as:   The claim for exemplary damages arises, pursuant to paragraph (a) of this subsection (3), from the claim in such action that is brought under section 13-21-201 or 13-21-202; and    The claim in such action that is brought under section 13-21-201 or 13-21-202 is not time barred.       The assertion of a claim for exemplary damages in an action governed by this section shall not be rendered ineffective solely because the assertion was made after the applicable deadline contained in the court's case management order, so long as the plaintiff establishes that he or she did not discover, and could not have reasonably discovered prior to such deadline, the grounds for asserting the exemplary damages claim.          Notwithstanding the provisions of subsection (3) of this section, the court may reduce or disallow the award of exemplary damages to the extent that:   The deterrent effect of the damages has been accomplished; or    The conduct that resulted in the award has ceased; or    The purpose of such damages has otherwise been served.       Notwithstanding the provisions of subsection (3) 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:   The defendant has continued the behavior or repeated the action that is the subject of the claim against the defendant in a willful and wanton manner against another person or persons during the pendency of the case; or    The defendant has acted in a willful and wanton manner during the pendency of the action in a manner that has further aggravated the damages of the plaintiff when the defendant knew or should have known such action would produce aggravation.       The provisions of this section shall not apply to a peace officer, as described in section 16-2.5-101, C.R.S., or to any firefighter, as defined in section 18-3-201 (1.5), C.R.S., for claims arising out of injuries sustained from an act or omission of the peace officer or firefighter acting in the performance of his or her duties and within the scope of his or her employment.    Nothing in this section shall be construed to alter or amend the provisions of section 13-64-302.5 or the provisions of part 1 of article 10 of title 24, C.R.S.     History. Source: G.L. § 879. G.S. § 1032. R.S. 08: § 2058. C.L. § 6304. CSA: C. 50, § 3. L. 51: P. 339, § 2. CRS 53: § 41-1-3 . L. 57: P. 338, §§ 1, 2. C.R.S. 1963: § 41-1-3 . L. 67: P. 481, § 1. L. 69: Pp. 329, 330, §§ 1, 3. L. 89: (1) amended, p. 752, § 2, effective July 1. L. 96: (1) amended, p. 49, § 1, effective July 1. L. 2001: Entire section amended, p. 376, § 1, effective August 8. L. 2003: (1) amended, p. 1787, § 2, effective July 1; (6) amended, p. 1614, § 6, effective August 6. L. 2014: (6) amended,(HB 14-1214), ch. 336, p. 1498, § 8, effective August 6.    ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. PROOF OF DAMAGES.   A. Jury Function.    B. Evidence.        I. GENERAL CONSIDERATION.   Law reviews. For article, “Double Recovery for Wrongful Death by Public Carrier”, see 28 Dicta 299 (1951). For comment on McEntyre v. Jones, appearing below, see 31 Dicta 198 (1954). For article, “Damages for Death -- Limited or Unlimited”, see 34 Dicta 32 (1957). For comment on Clint v. Stolworthy, appearing below, see 33 Rocky Mt. L. Rev. 443 (1961). For comment on Herbertson v. Russell, appearing below, see 35 U. Colo. L. Rev. 463 (1963). For note, “The Propriety of Punitive Damages Under Colorado's Wrongful Death Statute”, see 49 Den. L.J. 81 (1972). For note, “Blind Imitation of the Past: An Analysis of Pecuniary Damages in Wrongful Death Actions”, see 49 Den. L.J. 99 (1972).   Rationale for limitation of recovery. The state policy of limiting wrongful death recovery to the actual property loss which has been suffered by the heirs of the deceased serves to negate any possibility of a windfall of the decedent's heirs by denying them compensation for injuries which were not their own. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   This section does not involve a suspect class and it furthers a legitimate state interest because it seems well within the general assembly's discretion to weigh the competing social interests and determine that, where the parents are not actually dependent on a child, the recovery should be limited to $45,000. Pollock v. City & County of Denver, 194 Colo. 380 , 572 P.2d 828 (1977).   It may not be given retroactive effect. Hansen v. Mercy Hosp., 40 Colo. App. 17, 570 P.2d 1309 (1977), aff'd, 195 Colo. 529 , 579 P.2d 1158 (1978).   Legislative intent to treat negligent acts and omissions identically with regard to subsection (2). The general assembly selected the phrase, “wrongful act, neglect or default”, to govern application of amendments to the damages limitation of the death statute. This indicates a legislative intent to treat negligent acts and negligent omissions identically. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974 ).   Rule does not unconstitutionally restrict damages. Damages under the wrongful death statute are not unconstitutionally restricted by the net pecuniary loss rule, which permits recovery of only compensatory damages for the loss of a decedent's services and support and does not permit recovery of damages for the survivor's grief or for punitive damages. Jones v. Hildebrant, 191 Colo. 1 , 550 P.2d 339 (1976), cert. denied, 432 U.S. 183, 97 S. Ct. 2283, 53 L. Ed. 2d 209 (1977), overruled on other grounds in Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   The noneconomic damages cap under this section applies on a per-claim basis and not a per-defendant basis. The term “recovery” refers to the plaintiff's total recovery, and the plain language of the statute limits that recovery to $250,000. Lanahan v. Chi Psi Fraternity, 175 P.3d 97 (Colo. 2008).   The noneconomic damages cap applies after damages have been reduced based on a plaintiff's comparative negligence. Alhilo v. Kliem, 2016 COA 142 , 412 P.3d 902.   There is no limitation on the amount of recovery for noneconomic damages when death caused by a wrongful act, neglect, or default constitutes a felonious killing as defined in § 15-11-803 (1) and as determined in the manner described in § 15-11-803 (7) . Estate of Wright ex rel. Wright v. United Serv. Auto. Ass'n, 53 P.3d 683 (Colo. App. 2001).   The felonious killing exception in subsection (1)(a) does not apply to skiing-related wrongful death actions. Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).   Wrongful death and outrageous conduct actions serve entirely different purposes, and the validity of one does not rise and fall with the success or failure of the other. DeCicco v. Trinidad Area Health Ass'n, 40 Colo. App. 63, 573 P.2d 559 (1977).   An arbitration proceeding is not a civil action as contemplated by the wrongful death statute. Arbitration is an alternative dispute resolution mechanism designed to avoid the need for filing a civil action or to resolve an existing civil action. Morrison v. Colo. Permanente Medical Group, 983 F. Supp. 937 (D. Colo. 1997 ).   Rule inapplicable in § 1983 action. In an action in state court under 42 U.S.C. § 1983, the plaintiff is not subject to the net pecuniary loss limitation on his right to recover damages otherwise imposed by this section. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   Subsection (1)(a) limits wrongful death actions to “only one civil action”, and the severance of plaintiff's negligence claim and the concomitant transfer of this claim to a new venue has created two civil actions for wrongful death, thereby violating the terms of the section. To the extent that the rules of venue set forth in C.R.C.P. 98 support defendant's demand for a change of venue, those rules are subordinate to the statutory language applicable in unique situations where, as here, co-defendants are sued for the wrongful death of one decedent based on separate torts committed in different counties. Hernandez v. Downing, 154 P.3d 1068 (Colo. 2007).   A prelitigation settlement is an “action” for purposes of subsection (1)(a). A beneficiary with the primary right of action necessarily has the power to settle his or her claim. The beneficiary may settle the claim with or without filing suit, and any such settlement is binding on all other beneficiaries. Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158 , 338 P.3d 1027.   The “only one civil action” provision is merely a limit on the number of recoveries that may be sought, not a requirement that an action must be filed for the bar to apply. Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158 , 338 P.3d 1027.   Claim for breach of underinsured motorist policy not barred by subsection (1)(a). Plaza Ins. Co. v. Lester, 110 F. Supp. 3d 1041 (D. Colo. 2015 ).   Resolution of a wrongful death claim by an out-of-court settlement is an “action” for purposes of subsection (1)(a)'s “only one civil action” limitation. Because husband settled his wrongful death claim within one year of his wife's death, son's subsequent claim was barred. Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158 , 338 P.3d 1027.   This section allows compensatory damages only. Moffat v. Tenney, 17 Colo. 189 , 30 P. 348 (1892); Hayes v. Williams, 17 Colo. 465 , 30 P. 352 (1892); Pierce v. Conners, 20 Colo. 178 , 37 P. 721; Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894); Denver & R. G. R. R. v. Spencer, 25 Colo. 9 , 52 P. 211 (1898); Mitchell v. Colo. Milling & Elevator Co., 12 Colo. App. 277, 55 P. 736 (1898); Denver & R. G. R. R. v. Spencer, 27 Colo. 313 , 61 P. 606 (1900).   This section limits damages in wrongful death to compensatory damages. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481 , 569 P.2d 1390 (1975).   Not exemplary damages. If the general assembly had intended to authorize exemplary damages they would, doubtless, have used different language. This they did not do; but lest the courts should be troubled with excessive verdicts which might be supposed to rest upon a vindictive basis, they placed an absolute limit upon the recovery in the class of actions thus authorized. Moffat v. Tenney, 17 Colo. 189 , 30 P. 348 (1892); Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   This section excludes an award of exemplary damages. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481 , 569 P.2d 1390 (1975).   Net pecuniary loss is the proper measure of damages in a wrongful death action under this section. Good v. A.B. Chance Co., 39 Colo. App. 70, 565 P.2d 217 (1977).   A plaintiff in a wrongful death action is limited in damages to his net pecuniary loss. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   The net pecuniary loss rule limits a wrongful death plaintiff's damages to the financial benefit, if any, which that person might reasonably have expected to receive from the decedent had he lived. Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   Evidence regarding decedent's future income tax liability may not be considered when determining amount of plaintiff's (decedent's wife's) net pecuniary loss. Hoyal v. Pioneer Sand Co., 188 P.3d 716 (Colo. 2008).   Plaintiffs may recover only for diminution of decedent's estate; there is no recovery permitted for grief, loss of comfort and society and other general damages. Niven v. Falkenburg, 553 F. Supp. 1021 (D. Colo. 1983 ).   For the true measure of damages being pecuniary loss resulting to plaintiff, see Pierce v. Conners, 20 Colo. 178 , 37 P. 721, 46 Am. St. R. 279 (1894); Denver & R. G. R. R. v. Spencer, 25 Colo. 9 , 52 P. 211 (1898); Mitchell v. Colo. Milling & Elevator Co., 12 Colo. App. 277, 55 P. 736 (1898); Denver & R. G. R. R. v. Spencer, 27 Colo. 313 , 61 P. 606, 51 L.R.A. 121 (1900); Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962); Kogul v. Sonheim, 150 Colo. 316 , 372 P.2d 731 (1962); Pollock v. City & County of Denver, 194 Colo. 380 , 572 P.2d 828 (1977).   For sufficient statement of pecuniary injury, see Orman v. Mannix, 17 Colo. 564 , 30 P. 1037 (1892); Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894).   Life has pecuniary value with reference to the relations of the deceased. As a matter of sentiment, life has no pecuniary value, but considered with reference to the relations of deceased with others, it is capable of such estimate. In this sense a parent is entitled to the services of children during their minority, and to support and maintenance from them in his declining years. McEntyre v. Jones, 128 Colo. 461 , 263 P.2d 313 (1953).   Amount is made largely dependent on plaintiff's interest in deceased's life. Under this statute, the amount to be received by the plaintiff is made largely, if not wholly, dependent upon the interest which the plaintiff had in the life of the deceased. Mitchell v. Colo. Milling & Elevator Co., 12 Colo. App. 277, 55 P. 736 (1898).   Recovery is not to be measured or determined by the extent of the contributions or support furnished by the deceased to the plaintiff. In other words, although the deceased as a son may never yet have contributed to the support of his father, yet when the son's age, habits, earning capacity, and the age of the father are once established, a recovery may be had for the probable injury which the father has sustained in the loss of his son. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894).   The sum will depend on a variety of circumstances and future contingencies, and will, therefore, be difficult of exact ascertainment; but the damages to be awarded in each case may be approximated by considering the age, health, condition in life, habits of industry or otherwise, ability to earn money, on the part of the deceased, including his or her disposition to aid or assist the plaintiff; not only the kinship or legal relation between the deceased and the plaintiff, but the actual relations between them as manifested by acts of pecuniary assistance rendered by the deceased to the plaintiff, and also contrary acts may be taken into consideration. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894).   The amount of recovery may be determined from the prospective accumulations of the deceased had he not been killed, having reference to his or her age, occupation, habits, bodily health and ability to earn money. Compensation as damages under these sections is based on the reasonable expectation of benefit which a plaintiff may have a right to indulge from a continuance of the life of the deceased. Kansas Pac. Ry. v. Lundin, 3 Colo. 94 (1876); Denver & R. R. R. R. v. Frederic, 57 Colo. 90 , 140 P. 463 (1914).   Damages in a wrongful death action under this section necessarily include estimations of the accumulations of a decedent during the probable remainder of his life. Good v. A.B. Chance Co., 39 Colo. App. 70, 565 P.2d 217 (1977).   For approximation of pecuniary value, see Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   The recovery allowable is in no sense a solatium for the grief of the living occasioned by the death of the relative or friend, however dear. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   Damages for mental suffering, caused by grief, are not recoverable, but this conclusion is based upon the ground that damages recoverable by this section are limited to the net pecuniary benefit which the plaintiff might reasonably have expected to receive from the deceased. Bleecker v. Colo. & S. Ry., 50 Colo. 140 , 114 P. 481 (1911).   Parental grief is not an element of damages in wrongful death actions, it being the peculiar province of the jury to estimate and assess such loss under proper instructions. Kogul v. Sonheim, 150 Colo. 316 , 372 P.2d 731 (1962); Bradshaw v. Nicolay, 765 P.2d 630 (Colo. App. 1988); Aiken v. Peters, 899 P.2d 382 (Colo. App. 1995).   The net pecuniary loss rule does not allow for the compensation of parental grief. Jones v. Hildebrant, 191 Colo. 1 , 550 P.2d 339 (1976), cert. denied, 432 U.S. 183, 97 S. Ct. 2283, 53 L. Ed. 2d 209 (1977), overruled on other grounds in Espinoza v. O'Dell, 633 P.2d 455 (1981), appeal dismissed for want of jurisdiction, 456 U.S. 430, 102 S. Ct. 1865, 72 L. Ed. 2d 237 (1982).   Decedents' families' mental anguish claims covered by an insurance policy are limited by this section, which prohibits recovery for noneconomic loss or injury in wrongful death cases in excess of $250,000. This limit is applied collectively for each decedent. Old Republic Ins. Co. v. Durango Air Serv., Inc., 283 F.3d 1222 (10th Cir. 2002).   Child is minor until age 21. A child is a minor, as that term is used in subsection (1), until his or her twenty-first birthday. Hesseltine v. United States, 538 F. Supp. 1003 (D. Colo. 1982 ).   A parent may or may not be a dependent. Hesseltine v. United States, 538 F. Supp. 1003 (D. Colo. 1982 ).   A change in this rule must be by the general assembly. Any change in the law as to the measure of damages allowed for the wrongful death of a child in our view should only come by proper legislative action and not through judicial legislation. Kogul v. Sonheim, 150 Colo. 316 , 372 P.2d 731 (1962).   Parents are entitled to anticipated support in their declining years. “Net pecuniary loss” has been construed so as to include not only the loss to the parent of the services and earnings which they could have reasonably expected from their child during his or her minority, less their expenditures for his or her maintenance, but also includes the loss of services and support which they could have reasonably anticipated during their “declining years”, but for the untimely death. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   Supreme court declines to recognize a Colorado common law right in parents to seek damages for loss of consortium with their injured child. The decision to grant a right of recovery for loss of consortium because of a child's injury is a matter best left to the general assembly. Bartlett v. Elgin, 973 P.2d 694 (Colo. App. 1998), aff'd, 994 P.2d 411 (Colo. 1999) (following Lee v. Colo. Dept. of Health, 718 P.2d 221 (Colo. 1986) and Hill v. United States, 854 F. Supp. 727 (D. Colo. 1994 ) and declining to follow Hancey v. United States, 967 F. Supp. 443 (D. Colo. 1997 )).   Widow need not be necessitous in order to recover. We fail to discover in our statute any warrant for saying that unless the widow in the lifetime of her husband was necessitous, or dependent she is not entitled to recover. Without regard to the needy condition of the widow, caeteris paribus, the measure of her damages is the same in each case. Denver, etc., Ry. v. Woodward, 4 Colo. 1 (1877).   The phrase “mitigating or aggravating circumstances” is confined to those circumstances which increase or diminish this compensation. Hayes v. Williams, 17 Colo. 465 , 30 P. 352 (1892).   Mitigating or aggravating circumstances contemplates circumstances not relating to the wrongful act itself, but such as affect the actual damages suffered by the surviving party entitled to sue, either by way of diminishing or enhancing the same. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481 , 569 P.2d 1390 (1975).   Charge need not specifically enumerate every aggravating or mitigating circumstance. In actions under this and the preceding section, it is not necessary for the court to specifically enumerate in its charge each and every aggravating or mitigating circumstance to be considered in computing compensatory damages. Hayes v. Williams, 17 Colo. 465 , 30 P. 352 (1892).   Funeral expenses are a proper element of damage. McEntyre v. Jones, 128 Colo. 461 , 263 P.2d 313 (1953).   Proceeds of judgment must be distributed according to § 13-21-201 . The proceeds of a judgment obtained by a widow and based only on her pecuniary loss under this section and § 13-21-202 do not belong solely to her, but are to be owned by and divided among the heirs as provided in § 13-21-201 , even though heirs other than the widow personally suffered no pecuniary loss. Clint v. Stolworthy, 144 Colo. 597 , 357 P.2d 649 (1960); Mosley v. Prall, 158 Colo. 504 , 408 P.2d 434 (1965).   Insurance companies have no common law duty to assure distribution of settlement proceeds. Where insurers distributed settlement proceeds to the surviving spouse in a wrongful death action, the insurers satisfied their statutory duty and are not required to monitor the distribution of the proceeds to all potential beneficiaries. Campbell v. Shankle, 680 P.2d 1352 (Colo. App. 1984).   Court may instruct jury that pecuniary loss may exist when there is no obligation of support. It is urged that the court erred in instructing the jury that the appellees were entitled to recover for the pecuniary loss resulting to them in consequence of the said death, for the reason that there was no legal obligation upon the part of the deceased to support the appellees, and therefore there were no damages except simply nominal damages. This position is untenable. Denver & R. G. R. R. v. Wilson, 12 Colo. 20 , 20 P. 340 (1888).   Instruction failing to limit recovery to pecuniary loss is erroneous. It is only for the pecuniary loss resulting to the living party entitled to sue resulting from the death of the deceased that this section affords compensation, and an instruction which omits this important limitation, and leaves the jury at liberty to find any amount that they might deem fair and just, not exceeding the maximum, regardless of the fact whether the plaintiffs suffered any pecuniary loss by the death of the deceased, or not, is erroneous. Denver & R. G. R. R. v. Spencer, 25 Colo. 9 , 52 P. 211 (1898).   For instructions on damages held correct, see Lehrer v. Lorenzen, 124 Colo. 17 , 233 P.2d 382 (1951); St. Lukes Hosp. Ass'n v. Long, 125 Colo. 25 , 240 P.2d 917 (1952); McEntyre v. Jones, 128 Colo. 461 , 263 P.2d 313 (1953).   Instruction to jury on provocation as an element to be considered is error. In a wrongful death action, it is error for the trial court to give an instruction on provocation as an element to be considered by the jury in mitigation of damages or as a factor to be considered in the determination of liability. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481 , 569 P.2d 1390 (1975).   Tortious act or omission occurs when and where negligence occurs, without reference to time of discovery or accrual. The language used by the general assembly suggests that the time of the wrongful act, neglect, or default's occurrence must be determined as an objective fact, without reference to the subjective elements of the “time of discovery” or accrual rules. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974 ).   Wrongful default occurs when failure to disclose becomes tortious negligence, or in other words, when the duty to disclose was first breached. Hernandez v. United States, 383 F. Supp. 168 (D. Colo. 1974 ).   Evidence of defendant's actions following decedent's death is irrelevant in determining the noneconomic damages recoverable under this section, since any additional mental suffering thereby inflicted on grieving relatives is not a “necessary injury resulting from [the] death” of the decedent. Aiken v. Peters, 899 P.2d 382 (Colo. App. 1995).   Enhanced award not available. Subsection (1) mandates that the provisions of § 13-21-102.5 authorizing the court to enter an award of damages for noneconomic losses up to $500,000 are to be disregarded, and the $250,000 limit set forth in this section applies. Aiken v. Peters, 899 P.2d 382 (Colo. App. 1995).   Although the decedent's children were entitled to an award, the defendant counsel satisfied his statutory duty by paying the settlement proceeds to his client, the surviving spouse. Klancke v. Smith, 829 P.2d 464 (Colo. App. 1991).   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 subsection (3)(c)(I). Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007).   Applied in Sager v. City of Woodland Park, 543 F. Supp. 282 (D. Colo. 1982 ); Pub. Serv. Co. v. District Court, 674 P.2d 383 (Colo. 1984).   II. PROOF OF DAMAGES.   A. Jury Function.   While damages in a wrongful death action need not be proved with mathematical certainty, there must be some evidence to prima facie establish with a reasonable degree of certainty the damages flowing from the wrongful death. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   There must be some evidence to prima facie establish with at least a reasonable degree of certainty the damages flowing from the wrongful death. Herbertson v. Russell, 150 Colo. 110 , 371 P.2d 422 (1962).   Court cannot set aside jury's verdict unless damages are grossly and manifestly inadequate. It is an abuse of discretion on the part of the trial court to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion, or other improper considerations. Kogul v. Sonheim, 150 Colo. 316 , 372 P.2d 731 (1962).   Disagreement with amount awarded insufficient ground to overturn. Mere disagreement with the amount of damages awarded is not a sufficient ground to overturn an award of damages which is supported by competent evidence in the record. Morrison v. Bradley, 655 P.2d 385 (Colo. 1982); Foster ex rel. Foster v. Phillips, 6 P.3d 791 (Colo. App. 1999).   The jury has the benefit of extensive testimony and evidence, and it is its peculiar province to estimate and assess the damages. Kogul v. Sonheim, 150 Colo. 316 , 372 P.2d 731 (1962).   Jury verdict may be upset when it cannot be supported by any legitimate inference. In view of the undisputed testimony on deceased's salary and life expectancy, it is apparent that no consideration at all was given to the net pecuniary loss the plaintiffs would sustain in the near foreseeable future by reason of being deprived of the support they could reasonably expect under the various life expectancy tables which the jury was told to consider, not only relating to the deceased, but also in connection with the plaintiffs. The verdict is contrary to the undisputed evidence and cannot be supported by any legitimate inferences. Lewis v. Great W. Distrib. Co., 168 Colo. 424 , 451 P.2d 754 (1969).   A directed verdict in any dollar amount is not sanctioned even in the clearest of liability cases where the recovery is unlimited. It would not be a valid ground to invade the province of the jury merely because the case involved an amount which by statute put a ceiling on the jury determination. Lewis v. Great W. Distrib. Co., 168 Colo. 424 , 451 P.2d 754 (1969).   The words “the jury” in this section should not be read as excluding the court in nonjury cases. Bartch v. United States, 330 F.2d 466 (10th Cir. 1964).   Statutory limit is applicable in suits under federal tort claim act. The Colorado statutory limitation upon gross recovery for wrongful death is applicable in an action brought under the federal tort claims act, 28 U.S.C. §§ 1346(b), 2674. Bartch v. United States, 330 F.2d 466 (10th Cir. 1964).   This section does not purport to apply to actions brought for wrongful death under a statute of another state. Neither is there anything in the Colorado statute which indicates that Colorado regards full compensatory damages for wrongful death committed outside of Colorado to be contrary to good morals or natural justice, or violative of the public policy of Colorado. Stoltz v. Burlington Transp. Co., 178 F.2d 514 (10th Cir. 1949), cert. denied, 339 U.S. 929, 70 S. Ct. 628, 94 L. Ed. 1349 (1950).   B. Evidence.   Testimony concerning the relations of the deceased to the plaintiff is admissible, in order to form a just estimate of the probable damage. Mollie Gibson Consol. Mining & Milling Co. v. Sharp, 5 Colo. App. 321, 38 P. 850 (1894).   Evidence of value of services of girl from seven to eighteen. The trial court did not err in admitting evidence of the value of the services of a girl like the deceased from the age of seven years to the age of eighteen, though the law does not necessarily limit the recovery to the value of such services. Pierce v. Conners, 20 Colo. 178 , 37 P. 721 (1894).   Evidence of provocation is irrelevant to assessment of actual damages in a wrongful death claim. Mangus v. Miller, 35 Colo. App. 335, 535 P.2d 219, cert. dismissed, 189 Colo. 481 , 569 P.2d 1390 (1975).   Statute does not permit the jury to consider the aggravating circumstances surrounding defendant's actions. Technical evidence of the level of alcohol in the defendant's blood was irrelevant on the issue of whether noneconomic damages were aggravated by the knowledge of the defendant's intoxication. Foster ex rel. Foster v. Phillips, 6 P.3d 791 (Colo. App. 1999).   Approved mortality tables may be used for the purpose of showing the probable duration of life. Kansas Pac. Ry. v. Lundin, 3 Colo. 94 (1876).   For when proof is sufficient to show probable loss, see Colo. Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 40 P. 251 (1895).