Tag Archives: Statute of Limitations

In Re: Lillian R. Malm v. Marion Brigitte Villegas, 2015CO4 (January 20, 2015)

“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.

DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA13.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9640&courtid=2

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Filed under Interlocutory Review, Personal Injury, Proceedure, Torts

Alva Hickerson v. Thomas Vessels, 2014CO2 (January 13, 2014)

“Don’t wait for the last judgment – it takes place every day.” Albert Camus. In this case, four issues are at play: 1) the equitable doctrine of laches (prevents a party from waiting too long to bring a claim); 2) the statute of limitations for collecting a debt (six years); 3) the doctrine of partial payment (restarts the six years after a partial payment); and 4) the separation of powers doctrine (prevents application of equitable doctrines to expressly conflicting statutes). The court of appeals held that laches cannot shorten a limitations period because the separation of powers doctrine prevented it. The Court reversed because laches does not conflict with the statute of limitations, and the partial payment doctrine does not preclude laches, even though it effectively lengthens the time within which a claim can be brought. The Court remanded for review of the laches claim.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC198.pdf

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Filed under Constitutional, Contracts

In re the Parental Responsibilities of I.M., and Concerning R.A.M. and M.A.R., 2013COA107 (July 3, 2013)

“Paternity is a legal fiction.” James Joyce. McKenzie sought to have Russo declared the legal father of her son, I.M. Russo countered, arguing both that the statute of limitations barred the suit, and that McKenzie could not sue on I.M.’s behalf, as he was over 18. McKenzie claimed she should be allowed to bring the suit “at any time” under CRS 19-4-107 because Russo held I.M. out as his son.  She then sought to join I.M. as an indispensable party. The trial court granted judgment on the pleadings, holding that the suit was barred by statute of limitations, and that I.M. was not indispensable because, under CRS 19-4-108, he could bring his own suit before turning 21. The Court of Appeals agreed with the trial court’s legal conclusions as well as holding that CRS 19-4-107 only allows suits “at any time” when the parties were married or thought they were married.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1412-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9024&courtid=1

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Filed under Family Law, Proceedure

March Supreme Court Certiorari Grants and Issues Justices Would Have Granted

Here is a short summary of the Court’s certiorari Orders from March.  See the Certiorari page and the pages for each individual Justice for more detailed information.  You can also follow the links to the CLR summaries or the underlying Court of Appeals opinions provided below.

On March 18, 2012, the Colorado Supreme Court granted certiorari in one case, and denied a petition that Justice Coats would have granted.

In City of Brighton and CIRSA, v. Helen M. Rodriquez, (Court of Appeals Case No. 11CA1868), the Court granted certiorari to address issues under the Workers’ Compensation Act, CRS 8-41-301 and 8-43-201, arising from a fall that occurred during the course of an employee’s employment, but whose exact cause/mechanism was unknown, and whether the employer, who initially admitted liability for the injuries of its employee, met its burden to prove that the employee’s injuries did not arise out of the employee’s employment.

Justice Coats would have granted certiorari in McLaughlin, et. al. v. Oxley, et. al. (Court of Appeals Case No. 11CA1136) to review the district court’s denial of summary judgment under CRS 13-21-117.5.

On March 25, 2013, the Colorado Supreme Court granted certiorari in three cases, and denied a petition that Justice Eid would have granted.

In Hickerson v. Vessels (Court of Appeals Case No. 11CA317), the Court granted certiorari to address the availability of the defense of laches against a timely filed claim for collection of a promissory note, where the statute of limitations period was extended by the partial payment doctrine.

In two related cases, the Court granted certiorari to address issues arising from the determination as to whether a worker is an employee or an independent contractor when they do not provide similar services to others at the same time they are working for a putative employer:  Industrial Claim Appeals Office v.  Softrock Geological Services, Inc., and Colorado Division of Unemployment Insurance (Court of Appeals Case No. 11CA2331) and  Western Logistics, Inc., d/b/a Diligent Delivery Systems v. Industrial Claim Appeals Office, et. al. (Court of Appeals Case No. 11CA2461).  In Western Logistics, the Court also agreed to address whether the delivery drivers were subject to petitioner’s control and direction.

Justice Eid would have granted certiorari in BNSF Railway Company v. McLaughlin (Court of Appeals Case No. 11CA751) to address giving a jury instruction on apportionment of damages when the plaintiff’s preexisting condition was asymptomatic at the time of the incident.

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Filed under Workers Compensation

Steven Pham, as personal representative of the estate of Louis Diep Pham, et. al., v. State Farm Automobile Insurance Co., 2013CO17 (March 4, 2013)

“’For a while’ is a phrase whose length can’t be measured.” – Haruki Murakami. This case began with a car accident in 1995. Litigation ensued. In 1998, Allstate settled, but three suits were still pending. Two state cases were stayed pending the outcome of the third – federal litigation over the denial of coverage by Hartford. The federal case was decided in 2006. The state cases, including a case against State Farm for underinsured motorist coverage, were dismissed in 2007. A new case was brought against State Farm in 2008, which was dismissed on statute of limitations grounds. The Court affirmed dismissal. It held that the 2 year limitation in CRS 13-80-107.5(1)(b) begins upon a payment in the underlying bodily injury claim against the underinsured motorist. Here, it began running in 1998, the point at which the plaintiffs received a settlement payment from Allstate.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC504.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8854&courtid=2

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Filed under Insurance, Personal Injury, Torts

Ann Marie Damian and John M Taylor, Jr. v. Mountain Parks Electric, Inc., 2012COA217 (December 27, 2012)

“Why you wanna give me a run-around/ Is it a sure-fire way to speed things up/ When all it does is slow me down.” (Blues Traveler).  In this statute of limitations case, Plaintiff brought a lawsuit under the Consumer Protection Act (CPA) that later appeared to be about unreasonable electricity rates that the Public Utilities Commission should decide. It wasn’t, so the PUC dismissed it. Back in the trial court, Defendant claimed the action was filed after the three-year statute of limitations ended. The trial court agreed, and held that the doctrine of equitable tolling did not apply, nor did the one-year extension in the CPA itself. The court of appeals affirmed. Equitable tolling does not apply if it contradicts a statute. Here, it was inconsistent with the CPA. As Plaintiffs did not show the delay was due to Defendant’s misrepresentations, the one-year extension did not apply either.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1887-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8785&courtid=1

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Filed under Torts

Colorado Pool Systems, Inc. and Patrick Kitowski v. Scottsdale Insurance Company and Don Hansen, 2012COA178 (October 25, 2012)

“It’s not my fault—it was an accident!” In this case, a swimming pool had to be rebuilt. An adjuster told the insured the work would be covered, but the insurer later denied coverage under a general commercial liability insurance policy. Construing the policy, the court held: 1) “accident” is an ambiguous term that means any damage not intended; 2) an “occurrence” is damage to non-defective work, but not to defective work, because defective work is required to be repaired; and 3) the Construction Professional Commercial Liability Insurance Act is retroactive, but unconstitutional as applied. The insured also brought a negligent misrepresentation claim. The court held that because “accident” was ambiguous in the policy, the claim was actionable. It was also reasonable for the insured to rely upon the adjuster’s statements as if they were fact. Summary Judgment was reversed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA2638-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8710&courtid=1

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Filed under Constitutional, Contracts, Insurance, Torts

In Re: Garcia v. Schneider Energy Services, Inc. and William R. Smith, 2012CO62 (October 22, 2012)

“Ooops, I sued the wrong person. My bad.” In this Rule 21 original proceeding, plaintiff, the estate of a worker killed on defendant’s property, sued defendant just within the 2 year statute of limitations period. After it passed, it turned out that another party was the proper defendant. Plaintiff moved to amend to include the correct defendant under CRCP 15(c), claiming the amended complaint related back to the timely-filed original complaint. The trial court dismissed because the new defendant was added 116 days after the filing of the original complaint and after the statute of limitations period had run. The Court reversed and held that amending a complaint and serving a new defendant within the time for regular service under CRCP 4(m), 120 days, was a reasonable amount of time. On remand, the trial court must determine if the delay in notice was otherwise unreasonable.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA219.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8705&courtid=2

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Filed under Personal Injury, Proceedure

Melat, Pressman & Higbie, LLP v. Hannon Law Firm, LLC, 2012CO61 (October 22, 2012)

No one likes to split winnings. But, in contingency fee agreements, if the client wins, the attorney gets some of the winnings. In this case, three firms agree to represent a client on a contingent basis. One firm leaves about halfway through. The client settles and the two remaining firms split the one-third fee. They cut the early-departing firm out of the fees. There is no contract among the firms regarding their split. The third firm brings a quantum meruit claim (unjust enrichment) seeking their third of the fees. The Court, upholding a court of appeals decision, held that even if an attorney has no right to claim quantum meruit from the client (because of the lack of due notice to the client), such claims can still be brought against co-counsel. Without deciding the statute of limitations period is 3 years, the Court held that a claim accrues at the time of settlement or judgment.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC265.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8706&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation, Contracts

Portercare Adventist Health System v. Robert Lego, 2012CO58 (September 24, 2012)

Two months into a three-month hospital stay, a health insurance company stopped paying the bills of the wife of the Respondent. Four years later the hospital sought to collect the amount owed. The Defendant/Respondent claimed that the 3 year statute of limitations should apply and bar the claim. The hospital argued the bill was a “liquidated debt” and therefore subject to the 6 year statute of limitations. The Court reversed the court of appeals citing Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995) nine times in a 23 paragraph opinion. It held that in the context of hospital bills, a “liquidated debt” is one ascertainable from the contract itself, or by simple calculation using extrinsic evidence if necessary. Here, because the hospital used a pre-determined market standard and uniform rate subject to disclosure to all patients, the debt was ascertainable using simple math.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC765.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8671&courtid=2

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Filed under Contracts