Colorado Court of Appeals holds that the Felonious Killing Exception applies to corporations

In Ross v. Public Service the Colorado Court of Appeals ruled on March 20 that the Felonious Killing Exception applies to corporations.

What is the “Felonious Killing Exception?”

The “felonious killing exception” is an exception to the noneconomic damages cap in section C.R.S. 13-21-203(1)(a) of the Wrongful Death Act (WDA).

C.R.S. 15-11-803(1)(b) defines a felonious killing as “the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter.” In civil proceedings a criminal conviction is not required because “a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established.”

The facts of the Ross case are sad, to say the least. On Nov. 16, 2018, Public Service Company of Colorado, d/b/a Xcel Energy (PSCo) excavators were conducting horizontal drilling near Carol Ross’s home without first obtaining “locates” (markers for underground pipelines) when their drill ruptured one of the gas lines. The pipeline rupture allowed large quantities of natural gas to fill Ms. Ross’s home. The drill operator called 911 at 4:04 p.m., and the gas ignited approximately an hour and a half later, causing a large explosion that killed Carol Ross and destroyed her home.

Ross’s heirs asserted claims for wrongful death, negligence, negligence per se, strict liability, and extreme and outrageous conduct against PSCo. Ross sought to lift the damage caps imposed by the Wrongful Death Act by invoking the Felonious Killing Exception. The district court concluded the “plain language of the statute does not provide that an entity may be liable for a felonious killing.”

Plaintiff appealed.

Ross presented a case of first impression and the Court of Appeals held that the “felonious killing exception” to the noneconomic damages cap in the Wrongful Death Act (WDA), § 13-21-203(1)(a), C.R.S. 2024, applies to corporations and individuals. Thus, corporations that commit felonious killings are subject to uncapped noneconomic damages in wrongful death claims.

The court of appeals concluded that the Colorado legislature’s intent was to allow the damages cap to be lifted when both individuals and corporations commit felonious killings. The court reasoned that the WDA’s language explicitly allows wrongful death actions against corporations, without mentioning that corporations would be entitled to greater protections than individuals.

The court of appeals went further, stating that “…it makes no sense to uncap damages for a felonious killing by an individual, but leave damages capped for the same killing by a corporation. Such an interpretation — based solely on the literal language of the felonious killing exception while ignoring the context of the WDA and the relevant legislative history — would be contrary to the legislature’s intent to require individuals and corporations to compensate WDA plaintiffs.”

Key Take Away

Corporations must be mindful that in wrongful death cases, their conduct may be found to be a felonious killing, which exposes the corporation, not just individuals, to the removal of the WDA damages cap. Also, corporations will need to consider whether such a finding would void insurance coverages and strategize their litigation approach accordingly.

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