Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 22CA656. Judgment Reversed
2
Attorneys for Petitioner City of Grand Junction: The Law
Office of Josh W. Mack, PLLC Joshua W. Mack Durango, Colorado
Attorneys for Petitioner Public Service Company of Colorado
d/b/a Xcel Energy: Gordon Rees Scully Mansukhani, LLP Franz
Hardy Stephanie S. Brizel Denver, Colorado
3
Attorneys for Respondent: Killian, Davis, Richter &
Fredenburg, PC J. Keith Killian Damon Davis Grand Junction,
Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers
Association: Wahlberg, Woodruff, Nimmo & Sloane LLP Megan
K. Matthews Karman J. Reed Denver, Colorado
Ramos
Law Spencer B. Aitken Centennial, Colorado
4
CHIEF
JUSTICE MARQUEZ delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.
OPINION
MARQUEZ, CHIEF JUSTICE
5
¶1
Danielle Nicola was struck by a car while crossing a street
after dark. She immediately lost consciousness and remained
comatose until she passed away nineteen days later. No
conservator or guardian was appointed for her before her
death.
¶2
Nearly two years after Danielle's death, her father, John
Nicola,[1] sued the City of Grand Junction and Public
Service Company of Colorado, d/b/a Xcel Energy,
("Defendants") in this case, bringing survival
claims for negligence and premises liability. Nicola alleged
that Defendants failed to properly maintain the streetlights
and signage at the intersection near where Danielle was
struck.
¶3
Defendants moved to dismiss Nicola's suit as untimely. As
relevant here, Defendants argued that under section
13-81-103(1)(b), C.R.S. (2025) ("subsection
(1)(b)"), Nicola had one year from the date of
Danielle's death to bring the survival claims. Subsection
(1)(b) provides that if a person dies while under disability
and "before the expiration of the period of limitation
in [section 13-81-103(1)(a) ("subsection
(1)(a)")]," then any survival claim must be brought
within one year after the date of the person's death.
§ 13-81-103(1)(b). The district court agreed with
Defendants and granted their motions to dismiss.
6
¶4
On appeal, a division of the court of appeals reversed,
holding that "[subsection (1)(b)] applies only when a
person under a disability (1) had a legal representative and
(2) died after the expiration of the applicable statute of
limitations but less than two years after the legal
representative was appointed." Nicola v. City of
Grand Junction, 2023 COA 111, ¶ 40, 544 P.3d 120,
129. The division reasoned that a legal representative is
required because subsection (1)(b) refers to "the period
of limitation in [subsection (1)(a)]," and in turn,
subsection (1)(a) applies when a legal representative has
been appointed for the person under disability. Id.
at ¶¶ 41-43, 544 P.3d at 129 (alteration in
original) (quoting § 13-81-103(1)(b)). Because Danielle
was not appointed a legal representative, the division
concluded that the one-year statute of limitations under
subsection (1)(b) did not apply to render Nicola's claims
time-barred. Id. at ¶ 59, 544 P.3d at 132-33.
Instead, the division applied section 13-80-112, C.R.S.
(2025), the general limitations provision applicable to
survival actions. Nicola, ¶¶ 59-60, 544
P.3d at 132-33. The division reasoned that under this
provision, Nicola's claims were timely because, as
Danielle's personal representative, Nicola had the longer
of either the applicable statute of limitations (running from
the date her disability was removed by her death) or one year
from the date of her death to bring the survival action.
Id. at ¶ 60, 544 P.3d at 133.
7
¶5
We granted Defendants' petitions for certiorari review
and now reverse the judgment of the court of
appeals.[2] We hold that subsection (1)(b) applies
irrespective of whether a legal representative has been
appointed for the person under disability. We conclude that
the phrase "the expiration of the period of limitation
in [subsection (1)(a)]," refers to the expiration of the
applicable statute of limitations, or, if a legal
representative was appointed, before the expiration of any
additional time to which the legal representative would be
entitled under subsection (1)(a) to bring the claim. §
13-81-103(1)(a)-(b); § 13-81-103(1)(c) ("subsection
(1)(c)").
¶6
Here, the parties do not dispute that Danielle was a person
under disability when her claims accrued. She passed away
without ever regaining full
8
consciousness and thus died before her disability terminated.
And her death occurred only nineteen days after she was
struck by the car, well before the expiration of any
applicable statute of limitations. Therefore, subsection
(1)(b) applies, and Nicola had one year from the date of
Danielle's death to bring the survival claims. Because
Nicola brought the claims almost two years after
Danielle's death, they are untimely and barred by
subsection (1)(b).[3]
¶7
Accordingly, we reverse the judgment of the court of appeals.
We remand the case for further proceedings consistent with
this opinion, including reinstatement of the district
court's judgment dismissing Nicola's complaint and
determination of appropriate attorney fees under section
13-17-201, C.R.S (2025).
I.
Facts and Procedural History
¶8
On the evening of November 23, 2018, Danielle was struck by a
car as she was crossing a street in Grand Junction, Colorado.
A law enforcement officer responding to the scene noticed and
photographed a nonworking streetlamp at the intersection near
the accident. Danielle was transported to a hospital with
lifethreatening injuries, including severe brain trauma. She
never regained full consciousness, and on December 12, 2018,
she died from her injuries. Five months
9
later, Nicola sued the driver who hit Danielle, and those
parties settled Nicola's wrongful death claims.
¶9
On December 11, 2020, Nicola filed a separate lawsuit against
Defendants, asserting survival claims for negligence and
premises liability.[4] Nicola alleged that the streetlight had
not been working at the intersection where Danielle was
struck, and that Defendants had breached their duties of care
by failing to maintain adequate street lighting and failing
to warn of dangerous conditions on their property.
¶10
Defendants moved to dismiss the survival claims as
time-barred, arguing that subsection (1)(b) requires an
executor or administrator of a person who died while under
disability to bring claims within one year. Here, Defendants
argued, Nicola filed the claims almost two years after
Danielle's death, which made them untimely. The district
court agreed and granted Defendants' motions to dismiss.
¶11
Nicola appealed, arguing that he had the entire applicable
statute of limitations period to file suit, not just one
year. A division of the court of appeals
10
agreed with Nicola and reversed the district court's
judgment. Nicola, ¶¶ 51, 62, 544 P.3d at
131, 133.
¶12
After evaluating several interrelated provisions governing
statutes of limitations, the division made the following
observations.
• Section 13-81-103(1) ("subsection (1)")
"tolls" the statute of limitations for persons
under disability and establishes the circumstances under
which it begins running again. Nicola, ¶¶
33-34, 544 P.3d at 127-28.
• Under subsection (1)(a), "[o]nce a legal
representative is appointed, the statute of limitations
begins to run as though the disability has been removed or
terminated." Id. at ¶ 35, 544 P.3d at 128.
• Subsection (1)(a) also "extends the period within
which a legal representative can bring a claim on behalf of
the person under a disability for an additional two years
from the date of appointment." Id.
¶13
The division then turned to subsection (1)(b) and concluded
that it "applies only when a person under a disability
(1) had a legal representative and (2) died after the
expiration of the applicable statute of limitations but less
than two years after the legal representative was
appointed." Id. at ¶ 40, 544 P.3d at 129.
¶14
The division arrived at this conclusion by first observing
that subsection (1)(b) applies in situations where "the
person under disability" dies before the expiration of
"the period of limitation in [subsection (1)(a)]."
Id. at ¶ 42, 544 P.3d at 129 (alteration in
original) (emphasis omitted) (quoting §
13-81-103(1)(b)). Importantly, the division assumed that
under subsection (1)(a), the applicable statute of
limitations runs against a person under disability as it
11
would against anyone else only if a legal
representative has been appointed. Id. at ¶ 40,
544 P.3d at 129. In other words, the division reasoned that
if no legal representative has been appointed, then the
applicable statute of limitations is tolled; there is no
"period of limitation" in subsection (1)(a) that
runs or expires. Id. at ¶ 43, 544 P.3d at 129.
Thus, under the division's view, subsection (1)(b) must
be construed to apply only when a person has a legal
representative.
¶15
Applying this construction of section 13-81-103, the division
reasoned that because Danielle was never appointed a legal
representative, subsection (1)(b) did not apply to
Nicola's survival claims, and he was not required to file
them within one year of Danielle's death.
Nicola, ¶ 59, 544 P.3d at 132-33.
¶16
Next, because it concluded that none of the provisions of
section 13-81-103 applied to Nicola's claims, the
division turned to section 13-80-112, the general limitations
provision applicable to survival actions. Nicola,
¶ 59, 544 P.3d at 132-33. Under section 13-80-112, the
division concluded that Nicola had the longer of the
applicable statute of limitations (which the division
concluded did not begin to run until Danielle's
disability was removed by her death), or one year from the
date of Danielle's death on December 12, 2018, to bring a
survival action. Nicola, ¶ 60, 544 P.3d at 133.
Although the parties disputed whether the applicable
12
statute of limitations is two or three years,[5] because Nicola
filed the claims less than two years after Danielle's
death, the division concluded that Nicola's claims were
timely regardless of which statute of limitations applied.
Id. Thus, the division reversed the district
court's judgment dismissing Nicola's survival claims
and remanded the case to the district court for further
proceedings. Id. at ¶ 62, 544 P.3d at 133.
¶17
We granted Defendants' petitions for certiorari review
and now reverse.
II.
Standard of Review and Principles of Statutory
Construction
¶18
We review questions of statutory construction de novo.
Colo. Dep't of Revenue v. Creager Mercantile
Co., 2017 CO 41M, ¶ 16, 395 P.3d 741, 744. In
construing a statute, we aim to ascertain and give effect to
the legislature's intent. Jordan v. Panorama
Orthopedics &Spine Ctr., PC, 2015 CO 24, ¶ 14,
346 P.3d 1035, 1039. To determine legislative intent, we look
to the plain and ordinary meaning of the statutory language.
Id. We do not add or subtract words from the
statute, and we construe the absence of particular language
as a deliberate omission
13
reflecting legislative intent. Jefferson Cnty. v.
Dozier, 2025 CO 36, ¶ 9, 570 P.3d 482, 486;
Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48,
375 P.3d 1214, 1223. At the same time, we read the statutory
scheme as a whole-giving consistent, harmonious, and sensible
effect to all its parts and avoiding constructions that would
render any words or phrases superfluous or lead to illogical
or absurd results. Brown v. Walker Com., Inc., 2022
CO 57, ¶ 15, 521 P.3d 1014, 1018.
III.
Analysis
¶19
As an initial matter, we note that article 80 of title 13
sets forth limitations periods for personal actions, and
includes section 13-80-112, the provision generally
applicable to survival actions. Article 81, in turn, governs
limitations periods specifically for persons under
disability, including section 13-81-103, the provision at
issue here.
¶20
We first review the framework created by section 13-81-103,
taking each subsection in turn. We next analyze whether
subsection (1)(b) requires a legal representative to have
been appointed for the person under disability, and we
conclude that it does not. We then apply subsection (1)(b) to
Nicola's survival claims and conclude that they are
untimely. Finally, we conclude that Defendants are entitled
to attorney fees under section 13-17-201.
14
A.
Section 13-81-103
¶21
Section 13-81-103 contains two overarching subsections.
Subsection (1) makes clear that the statute applies to
plaintiffs who are "under disability" at the time
their cause of action accrues:
When in any of the statutes of the state of Colorado a
limitation is fixed upon the time within which a right of
action, right of redemption, or any other right may be
asserted either affirmatively or by way of defense or an
action, suit, or proceeding based thereon may be brought,
commenced, maintained, or prosecuted and the true owner
of said right is a person under disability at the time such
right accrues, then: . . .
§ 13-81-103(1) (emphasis added).
¶22
Subsections (1)(a), (1)(b), and (1)(c) go on to identify
specific circumstances that modify the statute of limitations
on a right of action that has accrued to a person under
disability.
¶23
Subsection (1)(a) applies if the person under disability is
represented by a legal representative when the right accrues
or if a legal representative is appointed after the right
accrues and before the disability is terminated. §
13-81-103(1)(a).
Under
this provision, the legal representative must bring a claim
within the applicable statute of limitations or within two
years after their appointment, whichever is later:
If such person under disability is represented by a legal
representative at the time the right accrues, or if a legal
representative is appointed for such person under disability
at any time after the right accrues and prior to the
termination of such disability, the applicable statute
15
of limitations shall run against such person under disability
in the same manner, for the same period, and with the same
effect as it runs against persons not under disability. Such
legal representative, or [their] successor in trust, in any
event shall be allowed not less than two years after [their]
appointment within which to take action on behalf of such
person under disability, even though the two-year period
expires after the expiration of the period fixed by the
applicable statute of limitations.
Id.
¶24
In contrast, subsection (1)(c) applies only if a person under
disability does not have a legal representative.
§ 13-81-103(1)(c). If the disability is terminated
"before the expiration of the period of limitation in
[subsection (1)(a)]," then the person formerly under
disability must bring a claim within the remaining applicable
statute of limitations or two years after the removal of
their disability, whichever is later:
If the disability of any person is terminated before the
expiration of the period of limitation in [subsection (1)(a)]
and no legal representative has been appointed for him, such
person shall be allowed to take action within the period
fixed by the applicable statute of limitations or within two
years after the removal of the disability, whichever period
expires later.
¶25
Unlike subsections (1)(a) and (1)(c), subsection (1)(b) makes
no mention of a legal representative. See §
13-81-103(1)(b). It simply provides that if a person under
disability dies both before their disability is terminated
and "before the
16
expiration of the period of limitation in [subsection
(1)(a)]," then an executor or administrator must bring a
claim within one year of the person's death:
If the person under disability dies before the termination of
[their] disability and before the expiration of the period of
limitation in [subsection (1)(a)] and the right is one which
survives to the executor or administrator of a decedent, such
executor or administrator shall take action within one year
after the death of such person under disability[.]
¶26
Finally, section 13-81-103(2) ("subsection (2)")
prohibits extending the statutes of limitations in
subsections (1)(a), (1)(b), and (1)(c) beyond what those
subsections expressly provide:
After the expiration of the period fixed in [subsection
(1)(a), (1)(b), or (1)(c)], neither the person under
disability, nor [their] legal representative, nor anyone for
him shall be permitted or allowed to take action based on any
such right.
B.
Subsection (1)(b)
¶27
With this overview of section 13-81-103 in mind, we now home
in on subsection (1)(b). In contrast to subsections (1)(a)
and (1)(c), subsection (1)(b) does not require, or even
mention, a legal representative. See §
13-81-103(1)(b). We view that silence "not as an
oversight, but as a deliberate omission reflecting
legislative intent." Pinnacol
Assurance, ¶ 48, 375 P.3d at 1223. Accordingly, we
construe the absence of any reference to a legal
representative in subsection (1)(b)
17
to mean that the provision applies when its conditions are
met, irrespective of whether a person under disability has a
legal representative.
¶28
Nicola argues that the reference in subsection (1)(b) to
"the person under disability" refers to
the person who falls under subsection (1)(a). §
13-81-103(1)(b) (emphasis added). He further contends that
subsection (1)(b) incorporates subsection (1)(a)'s legal
representative requirement because subsection (1)(b)
references "the period of limitation in [subsection
(1)(a)]," and subsection (1)(a) applies only when the
person under disability has a legal representative. §
13-81-103(1)(a)-(b). The division reached the same
conclusions. Nicola, ¶¶ 42-43, 544 P.3d at
129.
¶29
It is true that the definite article "the"
particularizes the subject it precedes. City of Ouray v.
Olin, 761 P.2d 784, 787 (Colo. 1988). But
"the person under disability" to which
subsection (1)(b) refers is not the person in subsection
(1)(a)-it is the person under disability in subsection
(1)-the basic condition triggering application of section
13-81-103. § 13-81-103(1)(b) (emphasis added) (requiring
"a person under disability at the time [their] right
accrues").
¶30
Subsection (2) likewise invokes the phrase "the
person under disability" and does so with reference to
all three paragraphs of subsection (1). § 13-81-103(2)
(emphasis added) ("After the expiration of the period
fixed in [subsection (1)(a), (1)(b), or (1)(c)], neither
the person under disability, nor [anyone on their
behalf] shall
18
be permitted or allowed to take action ...." (emphasis
added)). Subsection (2) thus confirms that the phrase
"the person under disability" is not a specific
reference to a person with a legal representative under
subsection (1)(a), but more broadly, any "person under
disability" under subsection (1). Indeed, subsection (2)
refers to subsection (1)(c), which is limited to persons
under disability who do not have a legal
representative. Id.
¶31
Nicola's interpretation would ascribe different meanings
to the identical phrases in subsections (1)(b) and (2). Yet,
when "the legislature employs the same words or phrases
in different parts of a statute, then, in the absence of any
manifest indication to the contrary, the meaning attributed
to the words or phrases in one part of the statute should be
ascribed to the same words or phrases found elsewhere in the
statute." Colo. Common Cause v. Meyer, 758 P.2d
153, 161 (Colo. 1988). To ascribe consistent meaning across
these references in subsections (1)(b) and (2), we instead
interpret them as pointing to the same overarching condition
in subsection (1): "a person under disability at the
time [their] right accrues." § 13-81-103(1). In
sum, the definite article in subsection (1)(b) is not a
reference to subsection (1)(a) but rather to subsection (1).
¶32
We further disagree with Nicola and the division below that
subsection (1)(b) must be construed to apply only when the
person under disability has a legal representative because
subsection (1)(b) references "the
19
period of limitation in [subsection (1)(a)]," and
subsection (1)(a) applies only when the person under
disability has a legal representative. §
13-81-103(1)(a)-(b).
¶33
Nicola's and the division's interpretation cannot be
squared with the language in subsection (1)(c). Subsection
(1)(c) likewise refers to "the expiration of the period
of limitation in [subsection (1)(a)]." §
13-81-103(1)(c). Yet, subsection (1)(c) applies only when
"no legal representative has been appointed" for
the person under disability. Id. Thus, the reference
to the "period of limitation in [subsection
(1)(a)]" cannot be read to require the appointment of a
legal representative.
¶34
So, what then is the "period of limitation in
[subsection (1)(a)]"? Subsection (1)(a) provides that
"the applicable statute of limitations shall run against
such person under disability in the same manner, for the same
period, and with the same effect as it runs against persons
not under disability." § 13-81-103(1)(a); see
also § 13-81-101(1), C.R.S. (2025) (defining
"[a]pplicable statute of limitations" as "any
statute of limitations which would apply in a similar case to
a person not a person under disability"). Put
differently, a claim accrues and the statute of limitations
begins running against a person under disability in the same
way as it would for a person who was not under disability
when their claim accrued.
20
¶35
This interpretation aligns with our holding in Kinslow v.
Mohammadi, 2024 CO 19, ¶ 21, 546 P.3d 130, 133-34,
a decision issued after the division rendered its opinion in
this case. In that case, a sixteen-year-old was injured when
she was struck by a car. Id. at ¶ 1, 546 P.3d
at 131. Because the plaintiff was a minor when the accident
occurred, she was a "[p]erson under disability"
under section 13-81-101(3) when her claim accrued. See
Kinslow, ¶ 8, 546 P.3d at 131. She later turned
eighteen, and sued the driver more than two years, but less
than three years, after her eighteenth birthday. Id.
at ¶ 1, 546 P.3d at 131. The defendant moved to dismiss
the suit, arguing that under subsection (1)(c), the statute
of limitations expired two years after the plaintiff reached
her eighteenth birthday. Kinslow, ¶¶ 1-2,
546 P.3d at 131. We agreed, reasoning that under subsection
(1)(c), when a minor reaches the age of majority (i.e., their
disability has terminated) before the regular statute of
limitations has run, that person has the longer of time
remaining on the limitations period, or two years after their
eighteenth birthday, to bring their claim. Id. at
¶ 22, 546 P.3d at 134. Because the plaintiff did not
bring her claim within either of those periods, her suit was
untimely. Id. at ¶ 23, 546 P.3d at 134.
¶36
As relevant here, we observed in Kinslow that
subsection (1)(c) makes clear that a disability can terminate
"before the expiration of the period of
limitation." Id. at ¶ 15, 546 P.3d at
132-33 (quoting § 13-81-103(1)(c)). Logically, this is
possible
21
only if the applicable statute of limitations begins to run
before the disability is terminated. Id.,
546 P.3d at 133.
¶37
The division below assumed, contrary to our subsequent
decision in Kinslow, that section 13-81-103
"tolls" the running of any statute of limitations
against a person under disability during the period of
disability, unless the person is appointed a legal
representative. Nicola, ¶¶ 33, 46, 544
P.3d at 127, 130; see also id. at ¶ 43, 544
P.3d at 129 ("[T]here is no 'period of
limitation' in subsection (1)(a) that accrues, runs, or
expires if the person under a disability does not have a
legal representative.").
¶38
As we explained in Kinslow, "we have referred
to [subsection (1)] as tolling the statute of limitations for
a person under disability," but that "[t]he use of
the term 'tolled' in [our prior] cases has obviously
caused confusion, and we want to end that confusion
here." ¶¶ 17, 21, 546 P.3d at 133. We noted
that the two most relevant cases, Rudnicki v.
Bianco, 2021 CO 80, 501 P.3d 776, and Elgin v.
Bartlett, 994 P.2d 411 (Colo. 1999), overruled by
Rudnicki, 2021 CO 80, 501 P.3d 776, both involved
minors, and in both cases, none of the circumstances
specifically identified in subsection (1)(a), (1)(b), or
(1)(c) were present. Kinslow, ¶¶ 17, 20,
546 P.3d at 133 ("No legal representative had been
appointed, the minor had not died, and they had not reached
the age of majority before the expiration of the statute of
limitations ...."). Thus, we clarified that "[t]he
most these cases stand
22
for is the idea that, when none of the specific provisions of
[subsection (1)] are in play, a minor's statute of
limitations will not begin to run until they reach the age of
majority." Id. at ¶ 21, 546 P.3d at 133.
¶39
Although the plaintiff in Kinslow met the conditions
of subsection (1)(c) (because her disability terminated
"before the expiration of the period of limitation"
and she had no legal representative), we concluded that the
only logical reading of that provision was that the
limitations period was not tolled, but in fact had begun to
run before the plaintiff's disability terminated.
Id. at ¶ 15, 546 P.3d at 132-33 (quoting §
13-81-103(1)(c)). Although we did not cite to subsection
(1)(a), the language in subsection (1)(c) that we discussed
expressly refers to the "expiration of the period of
limitation in [subsection (1)(a)]." §
13-81-103(1)(c); see Kinslow, ¶ 15, 546 P.3d at
132-33.
¶40
Again, subsection (1)(a) refers broadly to the applicable
statute of limitations that would apply to persons not under
disability. § 13-81-103(1)(a). Subsection (1)(a) further
provides, however, that when a person under disability has a
legal representative, that legal representative may bring a
claim before the expiration of the applicable limitations
period or two years from the date of their appointment,
whichever is later. Id. (stating that such legal
representative "in any event shall be allowed not less
than two years after [their] appointment . . . even
23
though the two-year period expires after the expiration of
the period fixed by the applicable statute of
limitations.").
¶41
Taken all together, the phrase "before the expiration of
the period of limitation in [subsection (1)(a)]" means
before expiration of the applicable statute of limitations,
or, if a legal representative has been appointed, before the
expiration of any additional time to which the legal
representative would be entitled under subsection (1)(a) to
bring the claim. § 13-81-103(1)(a)-(c); see also
Kinslow, ¶¶ 2, 10, 13, 15, 23, 546 P.3d at
131-34.
¶42
Our interpretation today gives consistent, harmonious, and
sensible effect to all the parts of section 13-81-103. The
overarching question governing subsections (1)(a), (1)(b),
and (1)(c) is whether a person under disability encounters
circumstances that enable them (or someone else, on their
behalf) to bring a claim. In subsection (1)(a), that is the
appointment of a legal representative to advocate on their
behalf. In subsection (1)(c), that is the termination of the
legal disability, which enables the person to advocate on
their own behalf. And in subsection (1)(b), that is their
death-when their claim survives to an executor or
administrator who may bring a claim on their behalf.
¶43
Notably, subsections (1)(a) and (1)(c) address situations in
which a person under disability brings a claim while they are
alive-either through a legal representative or on their own
after their disability is terminated. In each of those
24
situations, the claim must be brought within the remaining
statute of limitations or two years after the event that
enabled them to bring the claim (i.e., two years after the
date of appointment of a legal representative or two years
after the removal of the disability), whichever period
expires later.
¶44
In contrast, when a person under disability dies under the
conditions of subsection (1)(b), only survival claims may be
pursued by the decedent's executor or administrator, and
the limitations period is changed to one year from the
decedent's death-for everyone, whether they had a legal
representative or not. See Kinslow, ¶ 14, 546
P.3d at 132 (observing that subsection (1)(b) "simply
gives one year following the death of a person under a
disability for an executor or administrator to pursue a
claim"); id. at ¶ 22, 546 P.3d at 134
(observing that when a person under disability dies, "an
executor or administrator has one year from that death to
pursue any available claim").
¶45
To summarize:
• Subsection (1)(a) applies when a person under
disability has a legal representative appointed either before
the cause of action accrues, or after the cause of action
accrues and before the disability is terminated. §
13-81-103(1)(a). The legal representative must bring a claim
within the applicable statute of limitations or two years
after their appointment, whichever is later. Id.
• Subsection (1)(b) applies when a person under
disability dies "before the expiration of the period of
limitation in [subsection (1)(a)]" and their claim
survives to an executor or administrator, who must bring the
claim within one year of the decedent's death. §
13-81-103(1)(b).
25
o If the person under disability had no legal representative
appointed, "the expiration of the period of limitation
in [subsection (1)(a)]" simply refers to the applicable
statute of limitations. Id.
o If the person under disability had a legal representative
appointed, then "the expiration of the period of
limitation in [subsection (1)(a)]" refers to the
expiration of the applicable statute of limitations or two
years after the appointment of the legal representative,
whichever is later. Id.
• Subsection (1)(c) applies when a person under
disability does not have a legal representative. §
13-81-103(1)(c). Accordingly, "the expiration of the
period of limitation in [subsection (1)(a)]" simply
refers to the applicable statute of limitations. Id.
If their disability is terminated before the expiration of
the applicable statute of limitations, then they must bring a
claim within the remaining applicable statute of limitations
or two years after the removal of their disability, whichever
is later. Id.
¶46
We acknowledge that our interpretation of section 13-81-103
may sometimes result in a different limitations period than
section 13-80-112, the general provision governing
limitations periods for survival actions. See §
13-80-112 (providing that when a person dies before the
statute of limitations expires on their claim, then "the
action may be commenced by the personal representative of the
deceased person at any time within one year after the date of
death and not afterwards if barred by provision of this
article."). But we need not harmonize these two
provisions, which appear in different articles in title 13.
Section 13-81-103 is the more specific provision established
by the legislature applicable to persons under disability at
the time their claim accrues, and only if
26
the conditions in subsection (1)(a), (1)(b), or (1)(c) are
satisfied. § 13-81-103(1); Kinslow, ¶ 21,
546 P.3d at 133-34.
¶47
We also recognize that our interpretation today may shorten
the amount of time within which executors and administrators
of some decedents under disability may file claims, depending
on the circumstances of a case. However, we are not at
liberty to rewrite section 13-81-103. Our goal is to
effectuate the legislature's intent, and here, the
legislature has unambiguously imposed a one-year limitations
period under the circumstances in subsection (1)(b).
C.
Application
¶48
Turning to the facts of this case, we hold that subsection
(1)(b) applies to Nicola's claims and renders them
untimely.
¶49
First, the parties agree that Danielle was a "[p]erson
under disability" as that term is defined in section
13-81-101(3). The parties also do not dispute that Danielle
was a "person under disability" for purposes of
subsection (1) when her claims accrued. And the parties agree
that no legal representative was appointed for Danielle after
the accident and while she was alive.
¶50
Next, Danielle passed away before the termination of her
disability for purposes of subsection (1)(b) because she
never regained full consciousness before her death on
December 12, 2018, nineteen days after the accident. Danielle
also passed away well before the expiration of any applicable
statute of limitations,
27
whether two years under section 13-80-102(1)(h), C.R.S.
(2025), or three years under section 13-80-101(1)(n)(I),
C.R.S. (2025). After Danielle's death, Nicola was
appointed personal representative and Danielle's claims
for negligence and premises liability survived to him.
Accordingly, under subsection (1)(b), Nicola had one year
from the date of Danielle's death to bring the survival
claims. Because Nicola brought the claims on December 11,
2020, almost two years after Danielle's death, they are
untimely and barred by subsection (1)(b).
D.
Attorney Fees
¶51
Defendants request attorney fees and costs on appeal as
prevailing defendants under section 13-17-201. When this
court affirms a trial court's judgment dismissing an
entire tort action under C.R.C.P. 12(b), an award of
reasonable attorney fees in defending the action is
mandatory. § 13-17-201(1).
¶52
Here, we affirm the district court's judgment dismissing
Nicola's survival claims against Defendants under
C.R.C.P. 12(b). As a result, Defendants are entitled to
attorney fees under section 13-17-201.
IV.
Conclusion
¶53
For the foregoing reasons, we reverse the division's
judgment and hold that Nicola's survival claims are
untimely. We remand the case for further proceedings
consistent with this opinion, including reinstatement of the
district court's judgment dismissing Nicola's
complaint and determination of appropriate attorney fees
under section 13-17-201.
---------
Notes:
[1] For clarity, we refer to John Nicola
as "Nicola" and Danielle Nicola as
"Danielle" in this opinion. We mean no disrespect
to either person.
[2] We granted certiorari to review the
following issues:
1. Whether, in reversing dismissal of a survival claim
based on the statute of limitations, the court of appeals
erred in concluding that section 13-81-103(1)(b), C.R.S.
(2023), applies only when a person under a disability (1) had
a legal representative and (2) died after the expiration of
the applicable statute of limitations but less than two years
after the legal representative was appointed and thereby
instead applying section 13-80-112, C.R.S. (2023).
2. Whether the court of appeals erred by concluding
that the statute of limitations for a personal representative
to file a survival action under section 13-80-112, C.R.S.
(2023), is two years from the date of death rather than two
years from the date of the incident as required under
sections 13-20-101(2) and 13-80-108(1), C.R.S.
(2023).
[3] Because we conclude that the claim was
untimely under subsection (1)(b), we do not reach the second
issue presented.
[4] Nicola also asserted wrongful death
claims for negligence and premises liability against
Defendants. The district court dismissed those claims as
barred by the "one civil action" rule because
Nicola had previously brought-and, after reaching a
settlement, voluntarily dismissed-wrongful death claims
against the driver of the car. The division affirmed,
Nicola, ¶ ¶ 12-26, 544 P.3d at 124-26, and
we denied Nicola's cross-petition for certiorari review
on this issue. Accordingly, the wrongful death claims are not
before us.
[5] Defendants argued that the applicable
statute of limitations was two years under section
13-80-102(1)(h), C.R.S. (2025) (applying to all actions
against "any public or governmental entity").
Nicola, ¶ 60, 544 P.3d at 133. Nicola contended
it was three years under section 13-80-101(1)(n)(I), C.R.S.
(2025) (applying to tort actions for bodily injury
"arising out of the use or operation of a motor
vehicle"). Nicola, ¶ 60, 544 P.3d at
133.