concurring in part and dissenting in part.
Largely because I agree so completely with the first part of the majority's analysis, I feel compelled to dissent from the second. For precisely the reasons offered by the majority in concluding that the legislature used the term "pain and suffering" broadly to include all noneconomic damages, I think it also necessarily includes noneconomic damages resulting from physical impairment or disfigurement. I am unpersuaded by the majority's historical rationale for disparate treatment, not least because I am convinced that it misreads the pertinent authorities.
In Preston v. Dupont, this court refused to apply the legislature's cap on noneconomic damages in medical malpractice actions to damages resulting from physical impairment and disfigurement. 85 P.3d 483 (Colo.2001). Based on its understanding of a related statute dealing with damages for noneconomic loss or injury generally, the Preston court discovered a legislative intent to allow a separate, and unlimited, award for physical impairment and disfigurement. See id. at 489 (construing section 18-21-102.5(5), C.R.S. (2001) ); see also id. at 442-48 (Coats, J., dissenting). The general assembly immediately rejected this construction by expressly amending the HCAA to include damages for physical impairment and disfigurement in medical malpractice actions within the definition of direct noneconomic loss or injury. See Ch. 271, see. 1, § 18-21-102.5, 2008 Colo. Sess. Laws 1787. As peripheral support for its construction, however, the Preston court asserted that under the Colorado common law, damages for physical impairment and disfigurement had historically been recognized as a separate element of damages; and it is that assertion from Preston upon which the majority entirely rests its physical impairment and disfigurement holding today.
While it is unclear to me why such pre-statutory usage, even if it actually existed, would be sufficient to override the legislature's treatment of noneconomic damages in its seatbelt law, in fact neither the authority relied on by the majority, nor any other of which I am aware, supports the assertion that physical impairment and disfigurement were distinguished from other causes of pain and suffering or were somehow categorized as something other than noneconomic damages at common law. The authorities relied on in Preston contain nothing more than brief references to permanent physical impairment or disfigurement among other injuries supporting particular damage awards or as a type of injury meriting special jury instruction.1 Nothing in the pre-statutory law of this jurisdiction suggests a variance from the generally accepted treatment of physical impairment and disfigurement as types of noneconomic loss for which recovery might be had in a tort action. See generally 1 Marilyn Minzer et al., Damages in Tort Actions § 3.42 (1992) ("Several statutes provide excellent descriptions of types of non-economic loss which might arise in a tort action. Physical impairment, disfigurement and disability are recognized losses. The *633loss of mental or physical well-being, health, and function, as well as fear of injury, loss, or illness, are elements of noneconomic damages.").
The practice of awarding physical impairment and disfigurement damages in a tertiary jury finding, alongside separate findings for economic and noneconomic damages, first arose after the 1986 addition of section 183-21-102.5 to the statutory scheme. See Ch. 107, see. 1, § 18-21-102.5, 1986 Colo. Sess. Laws 677. As the result of what appears to be a misguided attempt to ensure that economic loss associated with permanent physical impairment or disfigurement not be mistakenly included in, and limited along with, noneconomic damages, see § 183-21-102.5(5), the court of appeals found it necessary for juries to report their award of damages for physical impairment and disfigurement in a separate finding. See Cooley v. Paraho Dev. Corp., 851 P.2d 207 (Colo.App.1992); Herrera v. Gene's Towing, 827 P.2d 619 (Colo.App.1992); Hoffman v. Schafer, 815 P.2d 971 (Colo.App.1991), aff'd on other grounds, 831 P.2d 897 (Colo.1992). Whether legislatively intended or not, this mechanical segregation of jury findings was clearly dictated (if at all) by the addition of subsection 102.5(5) rather than any supposed distinction between physical impairment or disfigurement and other noneconomic losses at common law.
The seatbelt provision at issue here does not purport to cap damages of any kind; it is a statutorily-created rule, establishing the relevance and admissibility of evidence of non-compliance with the seatbelt requirement for the determination of other-than-economic damages. More like a comparative negligence provision, it permits the jury to apportion the responsibility for noneconomic loss between unbelted injured parties and their tort-feasors. Even the majority does not suggest that the mechanics of reporting jury findings, necessitated by the damage cap in section 18-21-102.5, in any way affects the construction of the seatbelt law.
To my mind, the fact that noneconomic loss from physical impairment or disfigurement was already a recognized source of recovery in this jurisdiction for tortious conduct makes it more rather than less likely that the legislature intended that it be treated the same as all other noneconomie loss. I am therefore unable to find any logical or principled basis for concluding that the impact of failing to wear a seatbelt is any less relevant to the mitigation of physical impairment or disfigurement damages than it is to any other noneconomic damages.
Because I believe the majority's disparate treatment of physical impairment and disfigurement damages is supported only by its assessment that they constitute such "a nee-essary and important element in making an injured plaintiff whole" that they should not be limited at all, and because I consider that determination to be strictly a matter for the general assembly, I respectfully dissent from that portion of the majority opinion.
. See, eg., Barter Mach. & Supply Co. v. Muchow, 169 Colo. 100, 102-103, 453 P.2d 804, 805 (1969) (discussing permanent injury and pain and suffering together); Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 107-108, 414 P.2d 657, 659-60 (1966) (court considered the injury and the admission of a mortality table for purpose of computing damages); Heckman v. Warren, 124 Colo. 497, 500, 238 P.2d 854, 856 (1951) {court made no distinction between permanent injuries and noneconomic damages); Denver Tramway Corp. v. Gentry, 82 Colo. 51, 58, 256 P. 1088, 1091 (1927) (court considered physical suffering, impairment, and medical expenses together); Rodriguez v. Denver & Rio Grande W. R.R. Co., 32 Colo.App. 378, 381-82, 512 P.2d 652, 654 (1973) (court considered pain and suffering, permanent injuries, and earning capacity together); Rein v. Jarvis, 131 Colo. 377, 381, 281 P.2d 1019, 1020 (1955) (issue of whether damages award was excessive turned on future suffering and discomfort from disfigurement); King v. Avila, 127 Colo. 538, 540, 259 P.2d 268, 269 (1953) (court affirmed damage award and considered permanency of injuries, life expectancy, pain and suffering, and reduced wages); Knaus v. Yoder, 98 Colo. 1, 4, 52 P.2d 1152, 1153 (1935) (disfigurement properly included in jury award).