Colorado’s second-highest court ruled last week that corporations in general — and Xcel Energy specifically — may be held liable for “feloniously killing” a person, meaning the cap that exists in state law will not apply to a jury’s award.

After a 2023 trial, Denver jurors awarded the children of Carol Ross $15 million in noneconomic damages, such as pain and suffering, because Ross died in a gas explosion. The jury agreed Xcel was liable under the Wrongful Death Act, as its ruptured natural gas pipeline caused Ross’ death at her Aurora home.

However, the trial judge slashed the jury’s award to $436,070, which, at the time, was the maximum amount the Wrongful Death Act allowed unless there was a “felonious killing” by an “individual.” The judge reasoned a corporation did not fall under the label of “individual.”

But a three-judge panel for the Court of Appeals disagreed. In context, explained Judge Terry Fox, it made no sense for individual persons to be held liable for large jury awards after they kill someone, but not corporations.

“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,” she wrote in the March 20 opinion.

In 1996, the legislature amended the Wrongful Death Act to exempt felonious killings from the cap on damages. Felonious killing, in turn, encompassed murder or manslaughter by an individual, although a criminal conviction was not necessarily required.

As amended, the law did not explicitly indicate corporations could be held liable for their felonious killings. But during a committee hearing, the bill’s sponsor, House Majority Leader Tim Foster, suggested his amendment did apply to nonhuman entities.

“You tell me why you or I as individuals should be held to one standard and somehow corporate America to another,” he said. “I’m hard pressed to figure out why it is that Ford (Motor Company) should be able to commit a manslaughter.”

Fast forwarding 20 years, the Heather Gardens neighborhood in Aurora underwent a lengthy project with Comcast to bring new fiber-optic cable to the retirement community. Comcast employed various subcontractors who struck and damaged Xcel’s underground pipeline numerous times. Eventually, on Nov. 16, 2018, a large quantity of gas filled Ross’ home, causing it to explode and killing her.

Ross’ children sued the various entities involved, settling with all but Xcel. The plaintiffs alleged Xcel was aware of the gas line rupture relatively quickly, yet failed to properly evacuate the neighborhood and contain the hazard. 

Before trial, the plaintiffs asked District Court Judge Stephanie L. Scoville to declare that Xcel’s actions amounted to manslaughter and the felonious killing exception to the damages cap should apply. Scoville noted there was no legal guidance from Colorado’s appellate courts, but the use of the word “individual,” in her view, meant corporations could not be held liable for more than the $436,070 cap.

“The Court presumes that the legislature made this decision intentionally,” she wrote.

After the jury’s multimillion-dollar award and Scoville’s application of the cap, the plaintiffs appealed her pretrial interpretation.

“A company cannot cause death with impunity; no one can,” wrote the plaintiffs’ attorneys. “If you or I poisoned someone, we would rightly face unlimited liability without the protections of the caps. Where a company does this, it too must be held responsible for its actions.”

“If the damages cap doesn’t apply to a person who commits a felonious killing but continues to apply to a corporation,” asked Judge Katharine E. Lum during oral arguments in February, “I mean, isn’t that an absurd result?”

Theresa Wardon Benz, an attorney for Xcel, responded that large damages awards are “felt more by Coloradans” when they are imposed upon a corporation.

“There could be a push to go after deeper pockets, which could result in greater insurance amounts, greater prices to consumers,” she said.

“How is it sensible to potentially bankrupt a person,” interjected Fox, “by subjecting them to the unlimited or the non-cap for felonious killings, but not a corporation? I mean, the corporation has more resources.”

Ultimately, the panel concluded the disputed portion of the Wrongful Death Act was ambiguous. But when placed in context, the legislature meant to hold corporations responsible for felonious killings to the same degree as persons.

The Court of Appeals returned the case to Scoville to determine if, in fact, Xcel’s actions met the definition of felonious killing.

The panel also clarified what needed to happen as a result of the jury apportioning only 12% of fault for Ross’ death to Xcel. If Xcel committed a felonious killing, Scoville must allocate 12% of the jury’s award to Xcel — for a total of $1.8 million. But if she finds Xcel’s actions did not amount to felonious killing and the $436,070 cap applies, the plaintiffs will only receive $52,328 — little more than 3% of the original award.

The case is Estate of Ross v. Public Service Company of Colorado.