Colorado’s second-highest court last week ruled for the first time that an independent contractor who injures another independent contractor is not subject to the $15,000 limitation on damages that normally exists for employees who work together.

James Curry and Charles Brewer were both independent contractors working for Ideal Transport, LLC, which supplied labor to a Home Depot in Aurora. Brewer pulled his truck away from a loading dock while Curry was unloading a refrigerator, causing Curry to fall and injure himself.

Curry sued multiple entities, but a jury trial proceeded against Brewer alone. Jurors awarded Curry close to $1 million in damages.

Among Brewer’s arguments on appeal, he claimed Colorado’s $15,000 cap applied to his case. Under the state’s Workers’ Compensation Act, lawsuits for employment-related injuries are subject to the cap “except in any cause of action brought against another not in the same employ.”

In a March 13 opinion, a three-judge panel for the Court of Appeals decided the key phrase was “not in the same employ.” Judge Rebecca R. Freyre observed both men had agreed they were not co-employees.

“Rather, for the purposes of the WCA, they were third parties to one another,” she wrote. In the absence of any contract between the two of them, or in the absence of a single contract with their employer, “the WCA’s damages limit does not apply.”

As of July 2023, the Bureau of Labor Statistics estimated there were nearly 12 million independent contractors nationwide, or 7.4% of total employment. That is an increase from 6.9% in 2017.

Sam Cannon, president of the Colorado Trial Lawyers Association, said the increased reliance on independent contractors means fewer workers are covered by traditional employment protections. For example, co-employees have the benefit of immunity under the Workers’ Compensation Act — a feature of employment relationships that does not extend to independent contractors.

Still, the appellate panel’s ruling “is the correct result. If the court had ruled differently, a lot of gig economy workers would have had their right to seek compensation in court taken away,” he said.

Damon Davis, a personal injury attorney, said the impact of the decision will develop over time, but it will likely mean that one Uber driver who injures another Uber driver could sue, for example, without the $15,000 damages cap.

“I think you may see some of the contractors who get sued try to argue that they are actually employees of the company as a defense,” Davis said. “But outside of that, I suspect they will be able to sue each other across the board without the cap applying.”

The case is Curry v. Brewer.