Colorado’s litigation-crazed legislature continues to expand opportunities for billboard lawyers and their plaintiff-clients to file lawsuits against anything that moves.  Still, Colorado Civil Justice League, our members and allies enjoyed measured success in a daunting political environment.

In the recently-adjourned session of the Colorado General Assembly, lawmakers introduced 45 bills that created new private lawsuits or expanded liability under existing laws.  Of those, 26 passed and were either signed into law by Governor Polis or are awaiting his decision to sign or veto.  (That’s right on par with 2024 when 46 such bills were introduced and 26 became law.)

Among the worst of these:

House Bill 1239 which exponentially expands the definition of damages under the Colorado Anti-Discrimination Act, particularly regarding accessibility for the disabled.

Already a magnet for drive-by lawsuits filed by “tester” plaintiffs who have never actually visited the business they’re suing, Colorado will now offer an even bigger incentive by allowing plaintiffs to automatically claim $50,000 in non-economic damages for emotional stress or inconvenience.

As Colorado business owners testified, the lawsuit factories that file these claims often offer to settle for $15,000 with no regard for whether the obstacle to accessibility is resolved.  Under HB 1239, the cost of settlement just skyrocketed by an additional $50,000.

Another provision allows plaintiffs to sue for $5,000 per person per violation, so a group of, say, six people can visit a restaurant, movie theater or convenience store, then file a lawsuit, each claiming five violations and seek $150,000 (6 people x 5 violations each x $5,000 per violation).

This year, proponents even admitted they cared more about the ability to sue than about resolving obstacles accessibility.

HB 1239 was sponsored by Reps. Yara Zokaie (D-Fort Collins) and Andrew Boesenecker (D-Fort Collins) and Sens. Lindsay Daughtery (D-Arvada) and Mike Weissman (D-Aurora).

House Bill 1001 appears based on the faulty premise that Colorado employees have inadequate recourse should an employer fail to page wages due.  That’s simply not true.  A simple mistake can result in penalties of up to 4x wages owed plus $4,000.  A willful violation can result in penalties of 5 ½ times wages owed plus up to $6,000.

This bill, sponsored by House Majority Leader Monica Duran (D-Lakewood), Rep. Meg Froelich (D-Denver), and Senators Jessie Danielson (D-Wheat Ridge) and Chris Kolker (D-Littleton) amounts to little more than creating a bundle of new financial incentives for labor lawyers to bring lawsuits, while nullifying the remaining legal provisions that discourage frivolous lawsuits.

The bill expands the definition of employer to allow litigation not only against the company itself but also against any individual who owns 25% interest.  It also creates new claims for “noneconomic loss” such as emotional pain and suffering, inconvenience, mental anguish and loss of enjoyment of life.

Finally, the bill replaces the time-tested tool that allows employers who successfully defend a wage complaint to recover attorney fees and costs.  The prior test said the employer could recover those costs if the employee rejected a settlement offer but failed to recover more in court.  That’s a simple, bright-line that encouraged the employer to make a good-faith offer and the employee to seriously consider it.

The new language says an employer can recover legal expenses only if the court finds the employee “pursued an action lacking substantial justification” – a vague, subjective criteria that creates a playground for plaintiff’s attorneys.

The third horrible bill, Senate Bill 157, is fortunately not headed to the Governor thanks to a bipartisan coalition of senators who stood courageously for common sense.  This is the latest iteration of the perennial policy pursuit by Sen. Mike Weissman (D-Aurora), himself an attorney, to make it easier for almost every lawsuit to include a consumer protection claim, thereby adding a claim for treble damages, plus attorney fees and costs.

Weissman routinely sponsored similar legislation during his eight years in the Colorado House.  This year’s bill was also sponsored by Sen. Julie Gonzales (D-Denver) and Reps. Javier Mabrey (D-Denver) and Briana Titone (D-Arvada).

Passing SB 157 would amount to pouring gas on the fire of Colorado’s housing affordability crisis, while subjecting all other business to increased threats of litigation in ordinary consumer disputes.  CCJL applauds those lawmakers who recognized this bill as a threat not only to business but to consumers who value choice and convenience in the marketplace over the distant prospect of striking it rich in the litigation lottery.

 

A few rays of hope

To be fair, the legislature did pass some bills that move in a modestly positive direction.

Most notably, House Bill 1272 creates a voluntary program for builders of multi-family housing that choose to provide a six-year warranty and work with a qualified third-party inspector.

This effort, championed by Rep. Shannon Bird (D-Westminster), along with Rep. Boesenecker (D-Fort Collins) and Senate President James Coleman (D-Denver) and Sen. Dylan Roberts (D-Edwards), limits claims against builders to damage that affects the functionality of the property, actual or unreasonably risk of injury or death, or actual loss of use.  Before a homeowner can file a lawsuit, all available remedies under the warranty must be exhausted.

Median home prices now approach $550,000, making Colorado the fourth most-expensive state to buy a house.  Even with HB 1272, there’s little indication companies that offer construction insurance are willing to return to our state’s litigious market, so builders wanting to participate in the new program may be required to do so without the safety net of insurance.  Only time will tell whether this bill leads to construction of entry-level housing.

Lawmakers also passed two bills with liability protections:

• HB 1053, by Reps. Tisha Maura (D-Pueblo) and Ron Weinberg (R-Loveland) and Sen. Janice Marchman (D-Loveland) and Mark Baisley (R-Woodland Park, provides immunity from landowners who allow emergency access onto their property.
• SB 35, by Sens. Lisa Frizell (R-Castle Rock) and Dafna Michaelson Jenet (D-Commerce City) and Reps. Chad Clifford (D-Denver) and Weinberg (R-Loveland), tightens the time in which a claim may be brought against a real estate appraiser.

 

For CCJL, a successful year in a climate of adversity

Colorado Civil Justice League strives to represent everday Coloradans who have lives and responsibilities and aren’t usually dialed into to legislation that will make their lives more expensive.  Everyday consumers count on our state’s job creators, housing providers, health care professionals, and those who help manage our financial security.

At CCJL, we know teamwork is a key to success in a legislature which is clearly sympathetic to the arguments of plaintiffs’ lawyers.  Working with our members and allies, we try to amplify the voice of everyday Coloradans in a legislature that always hears from billboard lawyers and their clients.

This year, CCJL saw remarkable success in bills on which we engaged.  Eight of 13 bills which our members voted to oppose ultimately died.  Meanwhile, we supported five bills, four of which passed.  And while making a bad bill “less bad” isn’t glamorous, it nonetheless provides a service to the many Coloradans who have no choice but to live with those laws.

Some key successes produced by the hard work of our lobbying team, Amy Attwood and Jennifer Mello, working with our members and allies:

• Removed the private right of action from the so-called “junk fee bill,” HB 1090. Thanks to members of the Colorado Senate, violations of this bill can only be pursued by the Attorney General, not contingency-fee attorneys who create a cottage industry by filing “junk fee” lawsuits.
• HB 1264 purported to prohibit use of “surveillance data” but also would have interfered with various customer loyalty programs; it died in House Judiciary.
• HB 1277 was one of many bills that defined as a “deceptive trade practice” something that wasn’t deceptive at all – in this case, requiring a “warning label” on gas pumps and fuel-burning products. Senate Transportation & Energy Committee put this bill out of its misery – and spared Colorado yet another punchline.
• One of many bills in the legislature’s “war on landlords,” HB 1235 would have allowed tenants to demand a jury trial in eviction proceedings. While this would make it harder to evict sympathetic tenants, it would also have made it more difficult to eject problem tenants who make life miserable for good tenants. Senators of both parties recognized this conundrum, and the bill was killed at sponsor’s request.
• Perhaps the most difficult issue we’ve faced in recent years is the attempt to promise survivors of childhood sexual abuse they can hold perpetrators accountable by changing the law after the fact to file a civil lawsuit, not against the offender but against his or her employer. SCR 2, by Sen. Danielson (D-Wheat Ridge), again sought to ask voters to allow retrospective legislation, which the Colorado Supreme Court has ruled unconstitutional.  Such laws are also likely unconstitutional on other grounds, most notably that “justice” simply cannot be found when facts or allegations are so old that defendants, like school districts or youth sports organizations, have no records, evidence or witnesses.