Giampapa v. American Family Mutual Insurance Co.

CHIEF JUSTICE MULLARKEY delivered the Opinion of the Court.

[81] JUSTICE BENDER specially concurring:

[82] Because the majority approves the recovery of noneconomic damages for the willful and wanton breach of a contract, I write separately. The majority's rule undermines the goals and purposes of contract law and conflates the important distinction between tort and contract law. I would disapprove of its future use and substitute a new rule for the recovery of noneconomic damages for a breach of contract claim. I would hold that noneconomic damages resulting from a breach of contract should be determined by a strict foreseeability test. Noneconomic damages should be available in a breach of contract suit only if the parties specifically provided for them in the contract or if the nature of the contract clearly indicated that such damages were within the contemplation or expectation of the parties. Because the rejection of the willful and wanton rule departs from our somewhat murky precedent, I would apply it prospectively only. ,823 P.2d 100,111-12(Colo. 1992). Hence, I concur in the judgment reached by the majority.¹

[83] To understand my reasoning, I trace the history of the willful and wanton rule and explain why the rule blurs the distinction between contract and tort. Because I ultimately reject the willful and wanton rule, I also outline a strict foreseeability test — consistent with the fundamental principles of contract law — that should replace the majority's rule in the future.

[84]I. The History Of Colorado's Willful and Wanton Rule DemonstratesThat It Has Not Adhered To Fundamental Principles Of Contract Law

[85] Under Colorado's willful and wanton rule, noneconomic damages arising from a breach of contract are available if the breach is willful and wanton. The majority argues that "[f]rom the beginning, the rule has adhered to basic contract law principles." maj. op. at 20. Specifically, the majority claims and now holds that foreseeability has always been inherent in the rule. at 21.

[86] My review of our caselaw reveals opposing conclusions. Colorado's willful and wanton rule has never adhered to basic contract law principles. From its inception, this "contract rule" has relied upon tort principles.

[87] In addition, there is only one case in which we adopted a "foreseeability approach" that would entitle injured parties to noneconomic damages following a breach of contract. ,697 P.2d 716,731(Colo. 1985). Yet even in , we distinguished the case because it involved a contract of a "personal nature." at 731-32. Considering this history, the majority relies only on the Colorado Jury Instructions in support of its "inherent foreseeability requirement" and does not cite to a single Colorado case. maj. op. at 21.

[88] The uniqueness of Colorado's willful and wanton rule cannot be over-emphasized. IPage 247note that with the possible exception of New Jersey, Colorado is the only state to permit the recovery of noneconomic damages for a willful and wanton breach of contract.² , ,815 P.2d 1362,1370 Wn. 1991) (discussing, in the context of the breach of an employment contract, the uniqueness of Colorado's willful and wanton rule); ,524 A.2d 886,891(N.J.Super.Ct.App.Div. 1987).

[89] To appreciate why the willful and wanton rule is more consistent with the principles of tort law, I briefly describe the cases which explain, or attempt to explain, the origins of the rule.

[90] The first case where a Colorado court considered the willful and wanton rule was ,24 Colo. App. 225,134 P. 151(1913). The defendant was an undertaker who had prepared the plaintiff's husband's body for burial. The plaintiff, seeking damages for mental anguish, brought suit because the defendant breached the contract by failing to properly embalm the decedent. at 226-27, 134 P. at 151-52. The court of appeals ruled that a plaintiff can recover for mental suffering resulting from a breach of contract if the breach was accompanied by "willful, insulting or wanton conduct." at 228, 134 P. at 152. It reached this conclusion by importing a patchwork of principles mentioned in various cases by courts around the country, mostly involving tort claims and special contract situations.

[91] The court began its analysis by noting that, at common law, mental distress damages were unavailable unless they accompanied physical injury. at 229, 134 P. at 152. The court recognized that some jurisdictions had moved away from the common law rule in the context of willful or intentional torts, such as malicious prosecution,Page 248slander, libel, and seduction. at 229-31, 134 P. at 152-53 (discussing ,134 Mo. App. 146,112 S.W. 995(1908); ,87 Wis. 1,57 N.W. 973(1894)).

[92] Turning to contract cases, the court discussed a Colorado case involving a willful breach of a contract of carriage. ,24 Colo. App. at 234,134 P. at 154(citing ,50 Colo. 140,114 P. 481(1911)). In that context, mental distress damages were permitted because of the special "tort duty" owed by a common carrier. ,24 Colo. App. at 234-35,134 P. at 154. The court also discussed a Minnesota case involving a funeral contract similar to that present in . at 232-34, 134 P. at 153-54 (discussing ,114 N.W. 353(Minn. 1907)). In Minnesota, at the time of the decision, mental anguish damages were available in contract if the breach of contract also constituted an "independent willful tort." ,24 Colo. App. at 233,134 P. at 154.

[93] Lacking guidance from this court and the legislature as to when mental distress damages should be available in contract cases, the court of appeals in relied on these and similar cases to support the rule it created. at 237-38, 134 P. at 155. The court of appeals held that mental distress damages alone, meaning mental distress damages unaccompanied by other sorts of physical or pecuniary loss, are available whenever a promisor's conduct in breaching the contract is willful, insulting, or wanton. at 228, 134 P. at 152. The court did not at any point discuss the implications of the rule that it created, nor did it define "willful" or "wanton."

[94] The first Colorado Supreme Court case to consider the issue of mental suffering damages in a contract case was ,78 Colo. 217,240 P. 689(1925). The defendant, a bank, agreed to loan the plaintiff money for a trip to California. The defendant breached the contract and the plaintiff brought suit. at 218,240 P. at 690. The court mentioned with favor the rule of , that mental suffering damages were available for a willful and wanton breach of contract. at 218-19,240 P. at 690. However, it distinguished the facts of from those in because the breach of contract in caused both pecuniary damages and mental distress damages, instead of mental distress damages alone. at 219,240 P. at 690. The court held that when mental distress damages are accompanied by other sorts of damages, such as pecuniary damages, they may be recovered so long as they are the "natural and proximate result of the breach," regardless of whether the breach was willful.³

[95] In a case involving facts similar to , the Colorado Supreme Court approved use of the willful and wanton rule. ,91 Colo. 544,550,17 P.2d 535,537(1932). The court states that this rule is "in line with the distinction, approved by numerous authorities, between breaches of contract involving `simple negligence' or `ordinary negligence' and those accompanied by `willful, wanton or insulting' conduct." at 550,17 P.2d at 537(citations omitted). The court provides no further explanation or discussion.

[96] A few years later, this court again discussed the availability of mental distress damages in contract cases, at last providing some minimal definition of "willful and wanton." ,99 Colo. 499,503,64 P.2d 803,805(1936). The court affirmed the rule of and stated that a willful and wanton breach is not "a mere passive breach, but . . . [is] intentional, and without any legal justification or excuse."

[97] Following , Colorado courts did not discuss the availability of noneconomic damages in contract cases until the 1980s. , ,697 P.2d at 731; ,775 P.2d 51,53(Colo.App. 1988). In , we stated that such damages are recoverable if a contract isPage 249of a personal nature such that the parties knew or should have known that a breach of the contract would cause noneconomic damages. ,697 P.2d at 731. This foreseeability approach represented a departure from precedent both because no previous case had focused on the personal nature of the contract and because no previous case had explicitly imposed a foreseeability requirement in conjunction with the willful and wanton rule. However, almost no cases have considered or applied the foreseeability rule announced in . ,775 P.2d at 53(refusing to apply the personal contract exception to a funeral contract because both and had required willful and wanton conduct in the context of funeral contracts). Since that time, our courts have recited the willful and wanton rule without significant discussion.⁴

[98] In sum, Colorado's caselaw demonstrates that permitting the recovery for noneconomic damages resulting from a willful and wanton breach of a contract has always been rooted in the law of tort and not the law of contract. In connection with the development of this rule, the concept of foreseeable noneconomic damages has played no significant role.

[99]II. The Willful And Wanton Rule Blurs The Distinction Between ContractAnd Tort

[100] In an attempt to cure the basic contract law deficiencies of the willful and wanton rule, the majority explicitly includes a "foreseeability element." maj. op at 32. For plaintiffs to recover under the majority's rule, noneconomic damages must have been the foreseeable result of a breach at the time the contract with defendant was made. However, by retaining the "willful and wanton" element, the majority fails to cure the rule's deficiencies. The rule still focuses on the conduct of the defendant at the time of the breach, thereby blurring the distinction between contract and tort. As background to support a full discussion of how I reach these conclusions, I review first some general principles of contract and tort law damages.

[101] The purpose of contract damages is neither to compel performance nor to punish the breaching party. Rather, contract damages compensate the promisee for any loss resulting from breach. , ,742 P.2d at 902. Therefore, under contract law, the aggrieved party is awarded damages that put her in a position as close as possible to that position she would have experienced with full performance of the contract (the "expectancy" position). , ,10 P.3d 1256,1262(Colo. 2000) ("Contract law is intended to enforce the expectancy interests created by the parties' promises so that they can allocate risks and costs during their bargaining."); ,165 Colo. 576,580,440 P.2d 772,774(1968); 3 E. Allan Farnsworth, § 12.1 (2d ed. 1998).

[102] Such expectancy damages have some limits. One such limitation has its roots in the mutual assent reached by the parties when they agree to a contract. The aggrieved party can recover only those damages that were the foreseeable result of a breach at the time the contract was made, and those damages that can be proven with reasonable certainty. , Restatement (Second) of Contracts §§ 351 352 (1981). The foreseeability limitation exists because parties to a contract voluntarily assume liability. By definition, a contract means that parties mutually reached and agreed to specified terms and obligations. Courts are reluctant, therefore, to impose greater liability than contemplated by the parties at the time the contract was made. , John A. Sebert, Jr., , 33 UCLA L. Rev. 1565, 1567 (1986) (stating that "damage rules recognize the consensual basis of contract liability by limiting a contracting party's potential liability to those risks thatPage 250might reasonably be deemed to have been assumed upon entering the contract").

[103] Another such limit to expectancy damages is the common law principle that victims of a breach of contract typically were not entitled to noneconomic damages, such as emotional distress and mental suffering. Farnsworth, § 12.17. Different rationales have been advanced to explain this limitation. Some courts and commentators suggest that such nonpecuniary damages are not generally foreseeable.⁵Others point out that measurement of such damages is too uncertain to be permitted.⁶Others say that this rule exists to prevent a windfall to the promisee or to further other policy goals.⁷Whatever the rationale, the reality is that developments in many jurisdictions have made emotional distress and other noneconomic damages available in some circumstances, as discussed below.

[104] Contrary to contract purposes, tort law addresses different purposes. , ,10 P.3d at 1262; ,931 P.2d 436,446(Colo. 1997) [hereinafter " "]. Tort law enforces duties imposed by law, instead of those created by contract. As such, tort law often attempts to encourage socially beneficial types of behavior and to deter wrongful conduct. , Restatement (Second) of Torts § 901(c) (1979). Accordingly, liability under tort law is typically premised on some sort of culpable conduct. , ; Douglas J. Whaley, , 26 Suffolk U. L. Rev. 935, 949 (1992) ("Tort law focuses on the of the tortfeasor, an element almost foreign to contract analysis. Contract looks to the of breach and . . . does not weigh the culpability of the breacher in granting relief."). As we have recently stated, "Liability not only recompenses the wronged plaintiff, but also deters the socially wrongful conduct in the first place. Hence, clarity and certainty of tort law serves a very important function in regulating how we deal with one another." ,54 P.3d 893,898(Colo. 2002).

[105] Because the law of torts and the law of contracts reflect different policies, each body of law recognizes different remedies. ,931 P.2d at 446. Instead of the expectancy interest awarded to the promisee for a breach of contract, a prevailing tort claimant is compensated for all damages proximately caused by the tortious behavior of the tortfeasor. Restatement (Second) of Torts § 901 cmt. a ("[T]he law of torts attempts primarily to put an injured person in a position as nearly as possible equivalent to his position prior to the tort."). As a result, a more extensive range of damages is often available under tort law than under contract law.

[106] The differences between the goals of tort and contract explain the differences between the damages recoverable under each.⁸Page 251Under tort law, liability is typically premised upon the defendant's wrongful conduct. In contrast, in contract, breach is not always thought to be a morally reprehensible action. Farnsworth, § 12.1 ("[A]long with the celebrated freedom to make contracts goes a considerable freedom to break them as well.").⁹

[107] There are even occasions where a breach of contract is thought to be economically and socially beneficial. The theory of "efficient breach" posits that the purpose of contract law is not to discourage all breaches. To the contrary, certain breaches, such as those where the breaching party's gains exceed the injured party's losses, are thought to be desirable. When such a situation arises, the measure of damages under contract law — the expectancy interest — provides an incentive to encourage the breach. , Richard A. Posner, (4th ed. 1992); Farnsworth, § 12.3.

[108] Our recent caselaw reflects these differing purposes of contract and tort and recognizes the need to separate the boundaries of these two bodies of law. ,10 P.3d at 1262-63. In , this court recognized that not all breaches of contract create tort liability. We held that the source of the duty under which the claimant sues determines whether a particular action sounds in contract or tort. at 1262. If the source of the duty were found only in contract, and the damage resulting from the breach were wholly economic, then the claimant could not sue in tort. at 1264. Tort claims could be brought only if the defendant violated a duty imposed by law. at 1263-64. Our decision was motivated by the concern that the law of torts could swallow the law of contracts if every breach of contract were actionable in tort. at 1260. The willful and wanton rule of noneconomic damages in contract cases presents analogous concerns.

[109] As noted, traditional contract damages are based upon the expectations of the party at the time the contract is formed. The majority's rule, permitting recovery of noneconomic damages for willful and wanton breaches, punishes a person who intentionally breaches more severely than it does one who only negligently breaches a contract. By focusing upon the type of breach, the majority's rule risks under-compensating an injured promisee under a contract. Even if noneconomic damages are clearly foreseeable and can be proven with reasonable certainty, the majority would deny these damages from an injured party if the breach is unintentional or merely negligent. Such an approach fails to provide injured parties with the "benefit of their bargain." maj. op. at 25. Instead of adhering to traditional contract principles, the willful and wanton rule depends upon particular conduct deemed wrongful by law. Usually, wrongful conduct forms the basis of liability only in tort law.

[110] Using a standard of culpability such as willfulness to determine liability in a contract case undermines the doctrine of efficientPage 252breach. In contract, parties are supposed to be allowed to weigh the costs of performance against the costs of breach. The costs of breach are generally calculated by considering the expectations of the parties at the time of contract. If the breaching party's gains exceed the injured party's losses, then the breach is thought to be desirable. However, the willful and wanton rule discourages a party from engaging in such a balancing test because it punishes intentional breaches.

[111] The majority holds that noneconomic damages are available provided that the damages are a natural and probable result of a willful and wanton breach. maj. op. at 3, 17. By so holding, the majority perpetuates a rule that creates a particular type of tort liability in the context of traditional contract liability. Noneconomic damages are available only if particular conduct occurs that is deemed wrongful. Thus, Colorado law imposes a tort duty to discourage contracting parties from intentionally breaching their contract. This rule in turn effectively elevates a breach of contract claim into an actionable tort claim. Such an approach undermines the goals and basic principles of contract law and unacceptably blurs the distinction between contract and tort.

[112] This conflation of principles can be demonstrated by the majority's articulation of its own rule, particularly with respect to foreseeability. The majority holds that a plaintiff can recover for noneconomic damages under the willful and wanton rule if such damages are a "foreseeable result of a breach at the time the contract was made." maj. op. at 21 (citing to the Restatement (Second) of Contracts, §§ 351 352). As mentioned earlier, the majority also holds that such damages are recoverable so long as the damages are a "natural and probable result of the breach." maj. op. at 3, 17. I find this articulation indistinguishable from a "natural and proximate result of the breach," which is the wording used and found in one of our original willful and wanton cases. ,78 Colo. at 219,240 P. at 690. The majority's two statements of foreseeability are not necessarily the same. As the Restatement tells us, foreseeability under contract law is a more severe limitation of liability than is the requirement of "proximate cause" — an element that is normally found in a tort action. Restatement (Second) of Contracts § 351 cmt. a. The Restatement explains that in contract, the recovery that is precluded by the limitation of foreseeability is usually based on the expectation interest — i.e. lost profits — but the limitation may also preclude recovery based on the reliance interest. Thus, even the majority's reaffirmation of the willful and wanton rule fails to address the conflation between the law of contract and the law of tort inherent in the rule.

[113] While I adhere fully to the principles of stare decisis and the policies that this important doctrine serves, I am convinced that our current rule of noneconomic damages in contract cases should be set aside. ,983 P.2d 779,788(Colo. 1999) ("[A] court will follow the rule of law it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come from departing from precedent."). Sound reason exists in this case to depart from the rule that permits recovery of noneconomic damages for a willful and wanton breach of contract. The rule, unsound at its inception, has become no more sound with the passage of time. ,174 Colo. 97,104,482 P.2d 968,972(1971) ("We think that the [two cases that created the rule that the court considered] were wrong when announced and they are wrong today; repetition of them forty times or four hundred times doesn't make good law or cause the reasons for the doctrines to become any stronger."). Hence, I would disapprove of the willful and wanton rule and overrule and the line of cases that follow it.

[114]III. A New Contract Rule of Strict Foreseeability for the Recoveryof Noneconomic Damages

[115] Having concluded that the Colorado willful and wanton rule should be abandoned, I consider what rule should be implemented in its place. As discussed, the expectations of the parties at the time of contracting usuallyPage 253determine the damages that are available upon a breach, so that contractual risk can be confidently allocated.

[116] The majority argues that "some new rule" would cause more harm than good because it undoubtedly would spur increased litigation and raise a number of uncertainties. maj. op at 25. Other courts and commentators are suspicious that using a foreseeability standard to determine the availability of noneconomic damages will "risk runaway jury verdicts, inhibit commercial transactions, and increase uncertainty for contracting parties." , Michael Dorff, , 28 Seton Hall L. Rev. 390, 403 (1997). These authorities fear that literal application of the foreseeability rule would mean that emotional distress damages would be recoverable in almost every breach of contract suit. ,815 P.2d at 1373.

[117] Recognizing these concerns, I would adopt a rule of strict foreseeability, following the approach of the Hawai`i Supreme Court. ,971 P.2d 707(Haw. 1999). Before , Hawai`i's rule was that "where a contract is breached in a wanton or reckless manner [so] as to result in a tortious injury, the aggrieved person is entitled to recover in tort." ,501 P.2d 368,372(Haw. 1972). Thus, Hawai`i had adopted an approach very similar to Colorado's, with the exception that it acknowledged that it was imposing a tort standard onto contract law — an acknowledgement that the majority fails to make today.

[118] Though the court recognized the importance of stare decisis, it ultimately concluded that the rule on willful or reckless breaches of contract "unnecessarily blurs the distinction between — and undermines the discrete theories of recovery relevant to — tort and contract law." ,971 P.2d at 712. Therefore, it discarded the rule and replaced it with a rule that was consistent with contract principles.¹⁰The court noted that the nature of some contracts is such that emotional distress is a particularly foreseeable result. at 713. In such circumstances, emotional distress and other sorts of noneconomic damages would be available to the injured promisee:

[I]n deciding whether such [emotional distress] damages are recoverable, we shift the focus of the inquiry away from the manner of the breach and to the nature of the contract. Thus, damages for emotional distress may be recoverable, but only where the parties specifically provide for them in the contract or where the nature of the contract clearly indicates that such damages are within the contemplation or expectation of the parties.

[119] (emphasis removed).

[120] I agree with the analysis of the Hawai`i Supreme Court. I would hold that noneconomic damages are available in breach of contract suits only where the parties specifically provide for them in the contract or where the nature of the contract clearly indicates that such damages are within the contemplation or expectation of the parties.

[121] Replacing the willful and wanton rule with a rule of strict foreseeability does not risk under-compensating plaintiffs in employment cases. maj. op. at 25. Neither rule changes our holding in that employees terminated in a willful and wanton manner cannot bring a tort claim for bad faith breach.931 P.2d at 446. However, a rule of strict foreseeability, as I propose, would provide all plaintiffs with compensation for noneconomic damages in contract cases whenever the contract provides for them or where the nature of the contract clearly indicates that such damages are within the contemplation or expectation of the parties. Unlike the willful and wanton rule, Hawai`i's rule is not dependent upon the tortious nature of the breach.

[122] I note that a strict foreseeability test is consistent with the growing trend towards permitting the recovery of noneconomic damages when such damages are contemplated by the parties at the time of contracting. Recently, several jurisdictions besides Hawai`i have chosen to apply foreseeabilityPage 254principles when determining what damages an aggrieved party may recover. , ,418 A.2d 224,227(N.H. 1980) (permitting recovery of mental distress damages for a breach of contract in the exceptional situation where such damages were "within the contemplation of the parties"); ,872 P.2d 852,858(N.M. 1994) (requiring the plaintiff to make a showing that mental distress damages were contemplated by the parties).¹¹

[123] While the rejection of the willful and wanton rule might not have been foreshadowed, there is some support in our precedent for the strict foreseeability rule that I propose today. In , we held that mental distress damages are available if they were foreseeable at the time of contracting and they were caused by the breach of a "personal" contract, which is a similar, though not identical, approach to that which I would adopt today.697 P.2d at 731-32.

[124] In following the lead of the court, I would not undermine the ability of parties to allocate with confidence contractual risk or the predictability of contract damages generally.¹²In the typical contract, parties do not contemplate noneconomic damages. A rule permitting such damages in the unusual case is unlikely to impact the great majority of all contracts. Such a rule supports and conforms to the values that contract law intends to foster. Where parties enter into contracts to insure peace of mind and mental security, and where breach of those contracts results in very real and provable noneconomic injury, contract law must compensate for that sort of injury. [125] For the reasons stated above, I specially concur with the judgment of the majority.

[126] I am authorized to say that JUSTICE KOURLIS joins in this special concurrence.

[127] JUSTICE COATS, dissenting:

[128] While I agree that our prior pronouncements sanctioning recovery for mental anguish caused by a willful and wanton breach of contract literally cry out for explanation and reconciliation, I do not agree that the issue is before us in this case. It seems clear, at least to me, that the legislature has already specified the precise recovery for a willful and wanton failure to pay no-fault auto insurance benefits when they are due. Because I disagree with the majority's proliferation of recoveries for the same injuries and conduct generally, and with its allowance of more than a treble-damage recovery for willful and wanton breach of a no-fault insurance contract specifically, I respectfully dissent.Page 255

[129] As part of the "Colorado Auto Accident Reparations Act," the General Assembly has required every owner of a motor vehicle who operates or knowingly permits its operation on the public highways of this state to have in effect a complying insurance policy, including basic personal injury protection coverages as mandated by statute. §§ 10-4-705, -706, 3 C.R.S. (2002). The failure of a motor vehicle owner to enter into and maintain such an insurance policy can result in criminal sanctions. In the event that an insurer fails to pay the benefits required under such an insurance contract when they are due, the person entitled to such benefits is provided, by statute, an action in contract to recover them. § 10-4-708(1), 3 C.R.S. (2002). The General Assembly has further specifically provided that "in the event of willful and wanton failure of the insurer to pay such benefits when due, the insurer shall pay to the insured . . . an amount which is three times the amount of unpaid benefits recovered in the proceeding." § 10-4-708(1.8).

[130] By the slimmest of margins, this court previously held that section 10-4-708 does not abrogate the common law remedy fortortiousbad faith breach of an insurance contract. ,805 P.2d 419,424-26(Colo. 1991). Relying heavily on the special duty of good faith and fair dealing created by the very nature of an insurance contract, and the distinction between a contract claim and "a tort action for bad faith breach of an insurance contract," at 424, we found that legislative provision of a specific contract remedy was, in itself, insufficient to demonstrate an intent to limit recovery for common-law tort claims like bad faith breach. Whatever the wisdom of that holding at the time, it has not been disturbed by the General Assembly in the ensuing twelve years. Nothing in , however, suggests its extension to breach of contract claims for willful and wanton failure to pay PIP benefits — precisely the breach of contract claim for which the legislature has specified a remedy of three times the amount of unpaid benefits. Whether or not the statute evinces a sufficient intent to abrogate all other remedies, by characterizing the failure to pay PIP benefits when due as a breach of contract and specifying the remedy for a willful and wanton failure to pay, the plain language of the statute mandates the precise amount to be recovered from an insurer for breaching a no-fault automobile insurance contract by willfully and wantonly failing to pay benefits.

[131] Neither, in my view, does this plain reading "frustrate the essential purpose of the No Fault Act." maj. op. at 15. The plaintiff in this case sought recovery on multiple theories and won jury verdicts including $900,000 for willful and wanton breach of the insurance contract; $300,000 for the tort of breaching the contract in bad faith and an additional $300,000 in punitive damages for doing so; and treble damages for breach under the No-Fault Act. In what can only be described as atour de force, the majority (in sharp contrast to the special concurrence) not only finds a meaningful distinction between recovery in contract for willful and wanton breach and recovery in tort for bad faith breach, allowing separate recoveries for both, but also "clarifies" our prior holdings recognizing a willful and wanton breach of contract claim for mental anguish by expanding that cause of action to permit recovery for a "complete range of non-economic damages." maj. op. at 3. On top of all this, the majority attributes to the legislature an intent to accomplish its purpose of "`avoid[ing] inadequate compensation to victims of automobile accidents'," maj. op. at 15 (quoting from section 10-4-702, 3 C.R.S. (2002)), by providing anadditionaltreble damages award for willful and wanton breach. It seems to me more likely that this statement of legislative purpose refers to its treatment of fault as a consideration in auto accident cases, and that by providing a treble-damage award for a willful and wanton failure to pay no-fault insurance benefits when due, the legislature considered itself to be dictating the proper remedy for this behavior.

[132] While everyone surely must feel sympathy for the plight of accident victims like the plaintiff, I can find no legal justification for affirming a $900,000, willful and wanton breach of contract award by expanding an already questionable theory of recovery andPage 256avoiding a legislatively imposed damage-cap by dubbing it waived, as the majority does; or by legislating a new rule for future cases only, rather than resolving an actual case or controversy, as the special concurrence would do. Because I consider the extent of recovery for willful and wanton failure to pay no-fault insurance benefits a policy prerogative of the General Assembly, which I believe it has exercised, I respectfully dissent.