The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 22, 2023
2023COA111
No. 22CA0656 Nicola v. Grand Junction — Torts — Wrongful Death; Damages — Actions Notwithstanding Death — Limitation on Damages — One Civil Action Rule; Courts and Court Procedure — Limitations for Persons Under Disability — When a Statute Begins to Run — Death of Person Under Disability
In this wrongful death and survival action, a division of the
court of appeals determines that the “one civil action” rule set forth
in section 13-21-203(1)(a), C.R.S. 2023, of the Wrongful Death Act
bars the plaintiff from asserting wrongful death claims in this
lawsuit where the plaintiff previously filed a lawsuit asserting
wrongful death claims against a different defendant, settled the
claims asserted in the first lawsuit, and then voluntarily dismissed
the first lawsuit without prejudice. Thus, the division affirms the
district court’s dismissal of the plaintiff’s wrongful death claims. The division also determines under what circumstances
section 13-81-103(1)(b), C.R.S. 2023, requires the personal
representative of a decedent who was a person under a disability to
bring a survival claim within one year of the decedent’s death. The
division concludes that section 13-81-103(1)(b) applies only when a
person who was under a disability at the time of their death (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. Because the decedent did not
have a legal representative and did not die after the expiration of
the applicable statute of limitations, the division concludes that
section 13-81-103(1)(b) does not bar the plaintiff’s survival claims.
Because the division further concludes that the plaintiff filed his
complaint within the applicable statute of limitations, it reverses
the district court’s dismissal of his claims for negligence and
premises liability. COLORADO COURT OF APPEALS 2023COA111
Court of Appeals No. 22CA0656 Mesa County District Court No. 20CV30323 Honorable Valerie J. Robison, Judge
John Nicola, individually and as the personal representative of the estate of Danielle Nicola,
Plaintiff-Appellant,
v.
City of Grand Junction and Public Service Company of Colorado, d/b/a Xcel Energy,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE BROWN Gomez and Taubman*, JJ., concur
Announced November 22, 2023
Killian, Davis, Richter & Kraniak, PC, J. Keith Killian, Damon Davis, Grand Junction, Colorado, for Plaintiff-Appellant
Goldman, Nicholson & Mack, PC, Michael A. Goldman, Elizabeth A. Phillips, Durango, Colorado, for Defendant-Appellee City of Grand Junction
Gordon Rees Scully Mansukhani, LLP, Franz Hardy, Stephanie S. Brizel, Denver, Colorado, for Defendant-Appellee Public Service Company of Colorado, d/b/a Xcel Energy
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023. ¶1 Plaintiff, John Nicola, individually and as the personal
representative of the estate of Danielle Nicola,1 appeals the district
court’s judgment dismissing his complaint against defendants,
Public Service Company of Colorado, d/b/a Xcel Energy (Xcel
Energy), and the City of Grand Junction (Grand Junction). Nicola
brought wrongful death and survival claims against Xcel Energy
and Grand Junction arising from the death of his daughter,
Danielle, who was struck by a vehicle while crossing an intersection
when the streetlights allegedly were not working. Danielle died
from her injuries.
¶2 Resolving this appeal requires us to address two matters of
first impression. First, we must determine whether the “one civil
action” rule set forth in section 13-21-203(1)(a), C.R.S. 2023, of the
Wrongful Death Act bars a second lawsuit for wrongful death where
a plaintiff previously filed a wrongful death lawsuit against a
different defendant, settled the claims asserted in the first lawsuit,
and then voluntarily dismissed the first lawsuit without prejudice.
1 For clarity, we refer to John Nicola as Nicola and to Danielle Nicola
as Danielle throughout the opinion. We mean no disrespect by doing so. 1 We conclude that it does. As a result, we affirm the district court’s
judgment dismissing Nicola’s wrongful death claims.
¶3 Second, we must determine whether section 13-81-103(1)(b),
C.R.S. 2023, requires the personal representative of a decedent to
bring a survival claim within one year of the decedent’s death,
where the decedent was a person under a disability without a legal
representative. We conclude that section 13-81-103(1)(b) applies
only when a person who was under a disability at the time of their
death (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. Because Danielle did not
have a legal representative and did not die after the expiration of
the applicable statute of limitations, we conclude that subsection
(1)(b) does not bar Nicola’s survival action.
¶4 Because Nicola filed his complaint within the applicable
statute of limitations, we reverse the district court’s judgment
dismissing his survival claims for negligence and premises liability.
I. Background
¶5 In November 2018, Danielle was crossing a street in Grand
Junction when a vehicle struck her. According to Nicola’s
2 complaint, the streetlights in the vicinity were not working at the
time of the accident. Danielle sustained serious injuries and never
regained full consciousness or the ability to speak, communicate, or
make decisions prior to her death nineteen days later. The parties
agree that Danielle’s injuries made her a “person under disability”
as that term is defined in section 13-81-101(3), C.R.S. 2023. No
conservator, guardian, or legal representative was appointed for
Danielle before her death.
¶6 In May 2019, Nicola filed a lawsuit against the driver of the
vehicle that hit Danielle, asserting two wrongful death claims. In
March 2020, Nicola settled that first lawsuit and filed a notice of
voluntary dismissal under C.R.C.P. 41(a)(1).
¶7 In December 2020, Nicola filed a second lawsuit against Xcel
Energy and Grand Junction, asserting wrongful death claims and
survival claims for negligence and premises liability. Nicola alleged
that Xcel Energy and Grand Junction each had duties to maintain
adequate street lighting for the area, that Grand Junction had a
duty to warn of dangerous conditions on its property, and that the
defendants’ breach of those duties was a cause of Danielle’s death.
3 ¶8 Xcel Energy and Grand Junction moved to dismiss under
C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be
granted, arguing in relevant part that the wrongful death claims
were precluded under the “one civil action” rule set forth in section
13-21-203(1)(a) of the Wrongful Death Act and that the survival
claims were barred by either a one-year statute of limitations under
section 13-81-103(1)(b) — calculated from the date of Danielle’s
death — or a two-year statute of limitations under section 13-80-
102(1)(h), C.R.S. 2023 — calculated from the date of the accident.
The district court granted the motions to dismiss, concluding that
the Wrongful Death Act barred Nicola’s second suit.
¶9 Because the court appeared to have erroneously dismissed the
survival claims under the Wrongful Death Act, Nicola filed a
C.R.C.P. 59 motion to amend the judgment as to those claims. The
court acknowledged that it had erred by dismissing Nicola’s survival
claims under the Wrongful Death Act but nonetheless concluded
that the survival claims were untimely under section 13-81-
103(1)(b) and section 13-80-102(1)(h). Thus, the court dismissed
Nicola’s complaint.
4 II. Standard of Review and Generally Applicable Law
¶ 10 We review de novo a district court’s judgment dismissing a
complaint for failure to state a claim upon which relief can be
granted under C.R.C.P. 12(b)(5). Melat, Pressman & Higbie, L.L.P. v.
Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 16. We accept as true the
factual allegations in the complaint and, viewing them in the light
most favorable to the plaintiff, determine whether the complaint
states a plausible claim for relief. Barnes v. State Farm Mut. Auto.
Ins. Co., 2021 COA 89, ¶ 24; see Warne v. Hall, 2016 CO 50, ¶¶ 9,
24.
¶ 11 We also review de novo issues of statutory construction.
Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51,
¶ 40. In doing so, our primary task is to give effect to the legislative
intent as reflected in the plain and ordinary meaning of the words
and phrases used. Id. We read the statute in the context of the
entire statutory scheme, giving consistent and sensible effect to all
its parts. Id.; see also §§ 2-4-101, -201, C.R.S. 2023; A.M. v. A.C.,
2013 CO 16, ¶ 8. And we avoid constructions that would render
any words or phrases superfluous or lead to illogical or absurd
results. Dep’t of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16.
5 When the language of a statute is clear, we enforce it as written.
Elder v. Williams, 2020 CO 88, ¶ 18.
III. Wrongful Death Claim
¶ 12 Nicola contends that the district court erred by concluding
that his wrongful death claims against Xcel Energy and Grand
Junction are barred by the “one civil action” rule. Under the
circumstances presented by this case, we disagree.
A. Applicable Law
¶ 13 “Under Colorado law, there exists no other cause of action for
the death of another other than a statutory claim brought under the
Wrongful Death Act, section 13-21-202,” C.R.S. 2023. Steedle v.
Sereff, 167 P.3d 135, 140-41 (Colo. 2007). The Wrongful Death Act
allows an heir of the decedent to maintain an action and recover
damages to which the decedent would have been entitled “if death
had not ensued.” § 13-21-202; see also Duke v. Gunnison Cnty.
Sheriff’s Off., 2019 COA 170, ¶ 24.
¶ 14 As relevant here, the Wrongful Death Act provides that “[t]here
shall be only one civil action . . . for recovery of damages for the
wrongful death of any one decedent.” § 13-21-203(1)(a). “The
words ‘only’ and ‘one’ are self-evident, leaving no room for doubt
6 that Colorado law forbids multiple actions for the recovery of
damages for the wrongful death of a decedent.” Hernandez v.
Downing, 154 P.3d 1068, 1070 (Colo. 2007). An “action” is “a
proceeding on the part of one person, as actor, against another, for
the infringement of some right of the first, before a court of justice,
in the manner prescribed by the court or law.” Id. (quoting Clough
v. Clough, 10 Colo. App. 433, 439, 51 P. 513, 515 (1897)); see also
C.R.C.P. 2 (“There shall be one form of action to be known as ‘civil
action.’”); C.R.C.P. 3(a) (“A civil action is commenced . . . by filing a
complaint with the court . . . .”).
¶ 15 Thus, the plain and unambiguous language of the statute
“bars a second civil action for wrongful death based upon the death
of the same decedent.” Est. of Kronemeyer v. Meinig, 948 P.2d 119,
121 (Colo. App. 1997); see also Hernandez, 154 P.3d at 1069 (The
statute “means what it says when it limits wrongful death claims to
‘only one civil action’ for the death of one decedent.” (quoting § 13-
21-203(1))). Under the Wrongful Death Act, “[p]ursuing in a
sequential manner several wrongful death actions, against different
defendants, and asserting different causes of death, is prohibited.”
Kronemeyer, 948 P.2d at 121; see also Lanahan v. Chi Psi
7 Fraternity, 175 P.3d 97, 100 (Colo. 2008) (the damages cap in
section 13-21-203(1)(a) applies on a per claim basis because the
statute permits one claim per decedent); Steedle, 167 P.3d at 136
(“The Wrongful Death Act allows a person’s heirs to recover
damages for the wrongful death of that person but limits damages
by requiring that all claims pursuant to the death of one person be
combined into one civil action.”) (citations omitted).
B. Nicola’s Wrongful Death Claims Are Precluded by the “One Civil Action” Rule
¶ 16 Nicola contends that the district court erred by applying the
“one civil action” rule to bar his wrongful death claims because
(1) his first lawsuit was not a “civil action” barring a second suit
since he voluntarily dismissed it without prejudice, and (2) his
settlement with the tortfeasor driver should not bar him from
bringing a second suit against other, non-settling parties.
¶ 17 It is undisputed that Nicola filed and voluntarily dismissed a
prior lawsuit asserting wrongful death claims against the driver of
the vehicle that struck and ultimately killed Danielle. The question
before us is whether that lawsuit — which ended in a voluntary
dismissal without prejudice after settlement with the driver — was a
8 “civil action” barring subsequent actions for Danielle’s wrongful
death. We conclude that it was.
¶ 18 Nicola voluntarily dismissed his first lawsuit pursuant to
C.R.C.P. 41(a)(1). Because the notice of dismissal did not say that it
was a dismissal with prejudice, the dismissal was without
prejudice. See id.; USIC Locating Servs. LLC v. Project Res. Grp. Inc.,
2023 COA 33, ¶ 16.
¶ 19 Relying primarily on federal precedent, Nicola argues that a
voluntary dismissal pursuant to C.R.C.P. 41(a)(1) places the parties
in the same position as if the action had never been filed. See
Brown v. Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th
Cir. 1991) (noting that “[i]t is hornbook law that, as a general rule, a
voluntary dismissal without prejudice leaves the parties as though
the action had never been brought” when rejecting the plaintiff’s
argument that filing an earlier lawsuit tolled the statute of
limitations). Nicola urges us to interpret Colorado’s rule
consistently with federal precedent to conclude that a voluntary
dismissal without prejudice results in no “civil action” having been
filed. See Alpha Spacecom, Inc. v. Hu, 179 P.3d 62, 64 (Colo. App.
9 2007) (federal authorities interpreting the comparable federal rule
are persuasive when interpreting C.R.C.P. 41(a)(1)(A)).
¶ 20 But a voluntary dismissal under C.R.C.P. 41(a)(1) does not
leave the parties exactly where they were had the lawsuit never
been brought because a plaintiff may only voluntarily dismiss with
impunity once. If the plaintiff voluntarily dismisses a second
lawsuit based on or including the same claim, that dismissal
operates as an adjudication on the merits. C.R.C.P. 41(a)(1). Had
the first lawsuit never been filed, there would be no consequence for
dismissing the second lawsuit.
¶ 21 More importantly, the parties to Nicola’s first lawsuit were not
left in the same positions they would have been had that action
never been filed. Nicola filed a lawsuit against the tortfeasor driver
and asserted wrongful death claims that were fully resolved by
settlement. Before the lawsuit was filed, Nicola had not recovered,
and the driver had not paid, any damages for Danielle’s wrongful
death; after the lawsuit was dismissed, Nicola had recovered, and
the driver had paid, such damages. Thus, we conclude that
10 Nicola’s first lawsuit against the driver was a “civil action” barring
subsequent wrongful death claims for Danielle’s death.2
¶ 22 We are not persuaded otherwise by Nicola’s argument that a
“civil action” requires a final adjudication on the merits by a judge
or jury. Nicola cites Hernandez to support his contention, but
Hernandez does not go so far. Although the supreme court
reasoned that “[t]he singular nature of a civil action does not end
with the filing of one complaint in one court,” it did so in the
context of concluding that severing certain claims and transferring
them to a different venue would violate the one civil action rule even
though the claims had originally been brought together in a single
2 We do not opine on whether a lawsuit filed and voluntarily
dismissed without prejudice and without resolution of the claims through settlement constitutes a “civil action” because those are not the facts before us, and any such opinion would be purely advisory. See Galvan v. People, 2020 CO 82, ¶ 49 (the court “is not empowered to give advisory opinions based on hypothetical fact situations”) (citation omitted). And because we do not decide whether a voluntary dismissal without some resolution of the claims constitutes a “civil action,” we reject Nicola’s contention that our interpretation would lead to absurd results, such as a voluntary dismissal of a federal case that could not be refiled in state court or a dismissal for filing in the wrong venue that could not be refiled in the correct venue. Our holding is limited to cases where the wrongful death claims asserted in the first lawsuit were resolved through a settlement.
11 complaint. Hernandez, 154 P.3d at 1070-71. It did not hold that a
civil action does not exist without an adjudication by the trier of
fact.
¶ 23 Nicola’s interpretation of the one civil action rule would allow
serial wrongful death lawsuits against different defendants,
potentially asserting different causes of death, so long as each case
was settled rather than litigated to a judgment by a judge or jury.
That is not what the Wrongful Death Act contemplates. See
Hernandez, 154 P.3d at 1070; Kronemeyer, 948 P.2d at 121. Nicola
resolved the wrongful death claims he asserted in his first
complaint, leading to his dismissal of that complaint without
prejudice. Thus, his first lawsuit was a civil action.
¶ 24 We are also unpersuaded by Nicola’s argument that his
settlement with the driver should not preclude him from later suing
non-settling parties. He argues that a “civil action” does not
contemplate “pre-litigation settlements involving no judicial
proceeding[s].” He urges us not to follow Barnhart v. American
Furniture Warehouse Co., 2013 COA 158, ¶ 2, in which a division of
this court concluded that a prelitigation settlement barred a
subsequent wrongful death proceeding. He contends that Barnhart
12 was wrongly decided, and we should decline to follow it. But we do
not have to weigh in on Barnhart or otherwise decide whether a
prelitigation settlement, standing alone, constitutes a “civil action”
because we do not have such a settlement here. We have the
commencement of judicial proceedings by the filing of a complaint
followed by a settlement resolving the claims asserted.
¶ 25 We also note that the record shows that Nicola was aware of
possible claims against Xcel Energy and Grand Junction because
he served Grand Junction with a notice of intent to file a lawsuit for
failure to maintain the streetlights while his first lawsuit was
pending. Nicola essentially asks to be able to file a lawsuit
asserting a wrongful death claim against one defendant — fully
aware that other parties could be at fault, yet choosing not to name
those parties — settle the wrongful death claim with the named
party, and dismiss the first lawsuit; then, years later, file another
lawsuit asserting wrongful death claims arising out of the same
death against the parties he knew could be at fault, but he did not
name in the first suit. Allowing him to do so would be contrary to
the plain language of the Wrongful Death Act.
13 ¶ 26 Under these circumstances, we conclude that Nicola’s first
lawsuit, in which he asserted wrongful death claims against the
driver, was a civil action and that the district court correctly
concluded that section 13-21-203(1)(a) bars the wrongful death
claims asserted in his second lawsuit against Xcel Energy and
Grand Junction.
IV. Survival Claims
¶ 27 Nicola contends that the district court erred by concluding
that his survival claims are time barred under section 13-81-
103(1)(b). We agree.
¶ 28 To resolve this contention, we first discuss how statutes of
limitation apply to survival actions. Then we explore when statutes
of limitation are tolled and when they begin to run against persons
under a disability. Finally, considering these principles together,
we conclude that section 13-81-103(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
14 than two years after the legal representative was appointed.3
Because neither condition applied to Danielle, section 13-81-
103(1)(b) does not bar Nicola’s survival claims. And because Nicola
filed his complaint within the applicable statute of limitations, the
district court erred by concluding that his survival claims are
untimely.
A. How Statutes of Limitation Apply to Survival Actions
¶ 29 Under section 13-20-101, C.R.S. 2023, all causes of action,
except actions for slander or libel, survive the death of the person in
favor of whom the action has accrued, and may be brought by the
personal representative of the deceased. Because the personal
representative stands in the shoes of the deceased, see Publix Cab
Co. v. Colo. Nat’l Bank of Denver, 139 Colo. 205, 212-13, 338 P.2d
702, 706 (1959); Sharon v. SCC Pueblo Belmont Operating Co., 2019
COA 178, ¶ 12, a survival action is deemed to have accrued to or
3 In addition, for section 13-81-103(1)(b), C.R.S. 2023, to apply, the
person under a disability must die before termination of their disability and the claim must be one that survives the decedent’s death. It is undisputed that both of these requirements are met in this case.
15 against the personal representative when it would have accrued to
or against the deceased had they survived, § 13-20-101(2).
¶ 30 Section 13-80-112, C.R.S. 2023, addresses how statutes of
limitation run on survival claims:
If any person entitled to bring any action dies before the expiration of the time limited therefor and if the cause of action does by law survive, 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.
¶ 31 The phrase “if barred by provision of this article” is significant
for two reasons. Id. First, it confirms that the statutes of limitation
set forth in article 80 apply to survival actions. Second, it
establishes that if the condition precedent is met — that is, if the
person entitled to bring the action dies before the applicable statute
of limitations expires — the personal representative can still bring
the claim within one year of death, even if that date lies beyond the
otherwise applicable statute of limitations.
¶ 32 Thus, if a person dies after the statute of limitations has
expired on their cause of action, any survival claim is barred. But if
the person dies before the statute of limitations expires, the
16 personal representative may commence an action within one year
after the date of death or before the otherwise applicable statute of
limitations expires, whichever period is greater. See 7 John W.
Grund et al., Colorado Practice Series, Personal Injury Torts &
Insurance § 9.23, Westlaw (3d ed. database updated Dec. 2022).
B. How Statutes of Limitation Apply to Persons Under Disability
¶ 33 Section 13-81-103 tolls the running of any statute of
limitations against a “person under disability” during the period of
disability. Southard v. Miles, 714 P.2d 891, 897 (Colo. 1986)
(“Although section 13-81-103(1)(a) speaks in terms of the running
of the applicable statute of limitations against a person under
disability . . . and not in terms of suspending or tolling the
limitation period during the period of disability, there can be no
question that the statute is intended to toll the applicable statute of
limitations during the period of disability.”); see also In re Estate of
Daigle, 634 P.2d 71, 75 (Colo. 1981). A “person under disability” is
“any person who is a minor under eighteen years of age, a mental
incompetent, or a person under other legal disability and who does
not have a legal guardian.” § 13-81-101(3).
17 ¶ 34 But section 13-81-103 also establishes when a statute of
limitations begins to run against a person under a disability. Under
subsection (1)(a),
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 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 his successor in trust, in any event shall be allowed not less than two years after his 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.
§ 13-81-103(1)(a). A “legal representative” is “a guardian,
conservator, personal representative, executor, or administrator
duly appointed by a court having jurisdiction of any person under
disability or his estate.” § 13-81-101(2). The “applicable statute of
limitations” means “any statute of limitations which would apply in
a similar case to a person not a person under disability.” § 13-81-
101(1).
18 ¶ 35 Under subsection (1)(a), court appointment of a legal
representative for a person under a disability “averts the . . . legal
disability for purposes of litigating” the rights of that person,
“thereby rendering inapplicable the tolling provisions.” Elgin v.
Bartlett, 994 P.2d 411, 414 (Colo. 1999), overruled on other grounds
by Rudnicki v. Bianco, 2021 CO 80, ¶ 44. Once a legal
representative is appointed, the statute of limitations begins to run
as though the disability has been removed or terminated. Even so,
subsection (1)(a) expressly 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.
§ 13-81-103(1)(a).
¶ 36 Under subsection (1)(b),
If the person under disability dies before the termination of his disability and before the expiration of the period of limitation in paragraph (a) of this subsection (1) 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.
§ 13-81-103(1)(b). The parties dispute the meaning of subsection
(1)(b), which we discuss in detail below.
19 ¶ 37 Finally, under subsection (1)(c),
If the disability of any person is terminated before the expiration of the period of limitation in paragraph (a) of this subsection (1) 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.
§ 13-81-103(1)(c). Under subsection (1)(c), a person under a
disability who survives and whose disability is removed is entitled to
the benefit of the longer of the applicable statute of limitations or
two years from the date the disability was removed to bring an
action. See Mohammadi v. Kinslow, 2022 COA 103, ¶ 24 (cert.
granted May 22, 2023).
C. When Section 13-81-103(1)(b) Applies
¶ 38 The district court held that section 13-81-103(1)(b) applies
when a person under a disability dies before the disability is
removed — regardless of whether a legal representative has been
appointed for that person — and that it requires the executor or
administrator to bring a survival claim within one year after the
date of death notwithstanding any other statute of limitations.
Because Nicola did not file his suit against Xcel Energy and Grand
20 Junction within one year of Danielle’s death, the court concluded
that Nicola’s survival claims were time barred.
¶ 39 Xcel Energy and Grand Junction contend that the district
court’s interpretation was correct, and that subsection (1)(b) simply
provides the executor or administrator a fixed period of time — one
year from the date of death — to file an action, regardless of
whether the person under disability had a legal representative and
notwithstanding any otherwise applicable statute of limitations.
But Nicola contends that subsection (1)(b) creates a classic “if-then”
statement: only if the limitations period in subsection (1)(a) is
running and the person under a disability dies before it expires,
then the estate has one year from the date of death to sue under
subsection (1)(b). He further argues that the limitations period in
subsection (1)(a) only runs — satisfying the condition for
application of subsection (1)(b) — when a legal representative has
been appointed for the person under a disability.
¶ 40 Based on the plain language of the statute, read in harmony
with other statutes governing survival actions, we conclude that
section 13-81-103(1)(b) applies only when a person under a
disability (1) had a legal representative and (2) died after the
21 expiration of the applicable statute of limitations but less than two
years after the legal representative was appointed.
¶ 41 Subsection (1)(a) provides that the statute of limitations runs
against a person under disability as it would against anyone else if
a legal representative has been appointed. See § 13-81-103(1)(a).
“If” is “widely understood” to introduce a “condition necessary ‘for
the truth or occurrence of the main statement of a sentence.’”
People v. Salazar, 2023 COA 102, ¶ 16 (quoting United States v.
Flores, 664 F. App’x 395, 399 (5th Cir. 2016)). If the condition is
not met — that is, if a person under disability does not have a legal
representative — the applicable statute of limitations is tolled. See
Southard, 714 P.2d at 897.
¶ 42 Subsection (1)(b), in turn, addresses a situation where “the
person under disability” dies before the expiration of “the period of
limitation in [subsection (1)(a)].” § 13-81-103(1)(b) (emphasis
added). The definite article “the” particularizes the subject “person
under disability,” focusing on the “person under disability”
previously referenced in subsection (1)(a) — one for whom a legal
representative has been appointed. See Coffey v. Colo. Sch. of
Mines, 870 P.2d 608, 610 (Colo. App. 1993) (applying “the familiar
22 principle of statutory construction that the use of the definite article
particularizes the subject which it precedes”).
¶ 43 The other condition that must be satisfied before subsection
(1)(b) applies — that the person under disability dies “before the
expiration of the period of limitation in paragraph (a) of this
subsection (1)” — further supports this interpretation because there
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. See Southard, 714 P.2d at 897 (section 13-81-103
suspends the running of the statute of limitations until either the
disability is removed or a legal representative is appointed). A
person under a disability who dies without a legal representative
will always die before the expiration of the period of limitation in
subsection (1)(a) because the period of limitation does not run
against them until their disability is removed by death. Thus, the
only way to give meaning to this condition is to conclude that
subsection (1)(b) applies only when the person under a disability
has a legal representative. See Nieto v. Clark’s Mkt., Inc., 2021 CO
48, ¶ 21 (“In interpreting a statute, we aim to give effect to every
word and presume that the legislature did not use language idly.”).
23 Only then is it possible for the person under a disability to die after
the expiration of the period of limitation in subsection (1)(a), which
runs against them only if they have a legal representative. See
¶ 44 But what does the phrase “period of limitation in paragraph (a)
of this subsection (1)” mean? § 13-81-103(1)(b). It cannot mean
simply “the applicable statute of limitations” because that is a
separately defined term. See § 13-81-101(1); see also Colo. Med.
Bd. v. Off. of Admin. Cts., 2014 CO 51, ¶ 19 (“[T]he use of different
terms signals the General Assembly’s intent to afford those terms
different meanings.”). Moreover, subsection (1)(a) refers to two
potentially different periods of limitation — “the applicable statute
of limitations” and a period “not less than two years after” the
appointment of a legal representative. § 13-81-103(1)(a).
¶ 45 To determine the meaning of “period of limitation in paragraph
(a) of this subsection (1),” we must interpret section 13-81-103(1)(b)
in harmony with section 13-80-112, the statute that generally
governs how statutes of limitation operate against survival claims.
See Elgin, 994 P.2d at 416 (“Statutes governing the same subject
must be reconciled if possible.”). Under section 13-80-112, if a
24 person entitled to bring an action dies before the expiration of the
applicable statute of limitations, their personal representative has
the longer of the period remaining under the applicable statute of
limitations or one year from the date of death to bring a survival
action.
¶ 46 As noted, although the statute of limitations does not run
against a person under a disability, see Southard, 714 P.2d at 897,
once a legal representative is appointed, the statute of limitations
runs against that person “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). In other words, if a person under a
disability has a legal representative, they are treated the same for
statute of limitations purposes as a person who does not have a
disability (except that their legal representative is entitled to a
minimum of two years to bring a claim, as discussed below). For
this reason, section 13-80-112 applies equally to a survival action
for a person not under a disability and to a survival action for a
person under a disability who has a legal representative. In either
case, if the person entitled to bring the claim dies before the
expiration of the applicable statute of limitations, the personal
25 representative may bring a survival claim within the time remaining
under the statute of limitations or a year from the date of death,
whichever is longer. Nothing in the plain language of either section
13-80-112 or section 13-81-103 suggests otherwise.
¶ 47 Against this backdrop, interpreting section 13-81-103(1)(b) to
apply when a person under a disability dies before the expiration of
the applicable statute of limitations creates either a conflict or a
superfluity with section 13-80-112. If under such circumstances
section 13-81-103(1)(b) shortens the time to bring a survival claim
by depriving the personal representative of the benefit of a longer
amount of time remaining under the applicable statute of
limitations, it conflicts with section 13-80-112. See Southard, 714
P.2d at 898 (section 13-81-103 is intended to apply to any statute
of limitations in this state unless there exists a special statute
pertinent to the claim that conflicts). And if under such
circumstances section 13-81-103(1)(b) extends the time to bring a
survival claim by giving the personal representative another year
26 from the date of death, it is superfluous because section 13-80-112
already provides that extension.4
¶ 48 We are obligated to interpret statutes, where possible, to avoid
or resolve inconsistencies and give effect to every word. See Larimer
Cnty. Bd. of Equalization v. 1303 Frontage Holdings, LLC, 2023 CO
28, ¶ 56. We can achieve that end by interpreting section 13-81-
103(1)(b) to provide an extension of the statute of limitations for a
personal representative who brings a survival action when the
person under a disability dies after the expiration of the applicable
statute of limitations — taking the claim outside the scope of
section 13-80-112 — but before the expiration of the additional two-
year period contemplated by section 13-81-103(1)(a).
4 Because the legislature enacted the predecessor to section 13-80-
112 before the predecessor to section 13-81-103, see Ch. 114, sec. 1, § 13-80-112, 1986 Colo. Sess. Laws 701; R.S. 1868, § 17; Ch. 126, sec. 3, 1939 Colo. Sess. Laws 450, we presume it knew that the law already provided that when a person dies before the expiration of the applicable statute of limitations, their personal representative has either the time remaining under the statute of limitations or a year from death, whichever is greater, to bring a survival claim. See In re Harte, 2012 COA 183, ¶ 24. Therefore, section 13-81-103(1)(b) must mean something else. See Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 21.
27 ¶ 49 Recall that subsection (1)(a) grants a legal representative “not
less than two years after his appointment” to commence an action
on behalf of a person under a disability “even though the two-year
period expires after the expiration of the period fixed by the
applicable statute of limitations.” § 13-81-103(1)(a). Thus,
subsection (1)(a) contemplates the existence of a period after
expiration of the applicable statute of limitations during which the
legal representative is authorized to take action that otherwise
would be barred by the statute of limitations. Subsection (1)(b)
then provides that, if the person under a disability dies before the
expiration of “the period of limitation in paragraph (a) of this
subsection (1),” their executor or administrator must take action
within a year of the date of death. § 13-81-103(1)(b). To give
harmonious effect to both section 13-80-112 and section 13-81-
103, “the period of limitation in paragraph (a) of this subsection (1)”
must refer to the period after the expiration of the applicable statute
of limitations but before the two-year anniversary of the legal
representative’s appointment.
¶ 50 Thus, when the statutes governing survival actions are read in
harmony, they dictate the following scheme: If the person under a
28 disability dies before the applicable statute of limitations expires,
section 13-80-112 applies. The personal representative then has
the longer of the applicable statute of limitations or one year from
the date of death to bring the survival action. If the person under a
disability dies after expiration of the applicable statute of limitations
but less than two years after the legal representative was appointed,
section 13-81-103(1)(b) applies. The personal representative, who
has already been given more time beyond the applicable statute of
limitations, then has one year from the date of death to bring the
survival action.5 In both scenarios, the person entitled to bring the
claim or their personal representative gets the full benefit of the
applicable statute of limitation plus some additional time.6
5 Our interpretation is also consistent with section 15-12-109,
C.R.S. 2023, which provides as follows: No statute of limitations running on a cause of action belonging to a decedent which had not been barred as of the date of his death shall apply to bar a cause of action surviving the decedent’s death sooner than one year after death. A cause of action which, but for this section, would have been barred less than one year after death is barred after one year unless tolled. 6 Xcel Energy argues that our interpretation is unsupportable
because it presumes that the legislature “enacted legislation that
29 ¶ 51 Thus, we conclude, based on the plain language of the statute,
that section 13-81-103(1)(b) applies only when the 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
¶ 52 We reject Xcel Energy and Grand Junction’s contrary
arguments. We acknowledge that subsection (1)(c) expressly
applies when a person survives their disability and “no legal
representative has been appointed” — demonstrating that the
legislature knew how to say when a provision applies to a person
without a legal representative — and that subsection (1)(b) does not
contain similar language. § 13-81-103(1)(b), (c). But unlike
subsection (1)(b), subsection (1)(c) does not refer back to “the person
under disability”; instead, subsection (1)(c) refers to “any person”
whose disability is terminated before “expiration of the period of
limitation in [subsection (1)(a)].” § 13-81-103(1)(b), (c) (emphasis
added).
wholly left out a fairly typical circumstance where a person under disability does not have a legal representative appointed when they die.” But, as we have explained, in this “fairly typical circumstance,” section 13-80-112, C.R.S. 2023, applies.
30 ¶ 53 And although subsection (1)(c)’s cross-reference to “the period
of limitation” in subsection (1)(a) is confusing given that it is only
possible for such period to expire if a legal representative has been
appointed for a person under a disability, we are not tasked with
resolving that potential ambiguity. And we note that, without
reference to the period of limitation in subsection (1)(a), the
supreme court and other divisions of this court have interpreted
subsection (1)(c) to mean that, upon termination of the disability,
the person may take action within the applicable statute of
limitations or two years from removal of the disability, whichever is
longer. See Rudnicki, ¶ 16; Daigle, 634 P.2d at 75; Mohammadi,
¶¶ 18-24.
¶ 54 Because our interpretation is based on the plain,
unambiguous language of the statute, we need go no further, see
Elder, ¶ 18, but our interpretation also furthers the end to be
achieved by the statute and avoids absurd results, demonstrating
that it is the only reasonable interpretation. See id. (“A statute is
ambiguous when it is reasonably susceptible of multiple
interpretations.”); Agilent Techs., Inc., ¶ 16 (“We must avoid
constructions that would render any words or phrases superfluous
31 or that would lead to illogical or absurd results.”); Colo. Sun v.
Brubaker, 2023 COA 101, ¶ 47 (“An alternate interpretation is
unreasonable and therefore creates no ambiguity if it ‘would lead to
illogical or absurd results.’” (quoting Elder, ¶ 18)); Salazar, ¶ 20
(considering whether plain language interpretation furthers the
statute’s purpose).
¶ 55 Our interpretation furthers the purpose of section 13-81-103,
which is to toll or suspend the running of statutes of limitation to
protect persons under a disability during the period of disability.
See Southard, 714 P.2d at 897; Elgin, 994 P.2d at 414. By contrast,
interpreting subsection (1)(b) to shorten the time a personal
representative otherwise has to bring a survival action for a person
under a disability — regardless of whether that person had a legal
representative — would contravene that purpose.
¶ 56 Our interpretation also avoids absurd results. Under Xcel
Energy and Grand Junction’s interpretation of section 13-81-
103(1)(b), Nicola had one year from the date of Danielle’s death to
bring a survival claim because she was a person under a disability
when she died. In other words, because Danielle did not die the
same day she was injured, but instead lived for nineteen days in an
32 unconscious state, Nicola had just one year from the date of her
death to bring the claim. But had Danielle died the same day she
was injured, Nicola would have had at least two years to bring the
claim. See §§ 13-80-112, 13-80-102(1)(h). The legislative scheme
reflects no intention or justification for such disparate treatment.
¶ 57 Grand Junction counters that our interpretation leads to a
more absurd result, positing the following hypothetical:
Suppose a person (“Sue”) suffers an injury involving a motor vehicle accident on January 1, 2010 that renders her legally disabled. Sue remains disabled for the following four years without a legal representative, although she has a parent who is aware of her condition, is prepared to become the executor or administrator of her estate in the likely event of her death, and presumably would file a survival action on behalf of her estate upon her death. On January 1, 2014, still disabled and without a legal representative at the time, Sue passes away.
Grand Junction argues that “[a] clear reading” of section 13-81-
103(1)(b) would require that Sue’s parent act within a year of her
death by bringing an action by January 1, 2015, whereas our
interpretation “would allow Sue’s parent until January 1, 2017 —
seven years after the injury — to file a survival claim on behalf of
Sue’s estate.” Grand Junction argues that such a delay is absurd.
33 ¶ 58 Although we agree with Grand Junction’s explanation of how
the statutes operate under our interpretation, we disagree that the
result is absurd. Tolling the statutes of limitation for persons under
a disability is the unequivocal purpose of section 13-81-103,
regardless of whether the person under a disability dies or their
disability is removed. See Southard, 714 P.2d at 897. And
application of section 13-81-103 has led to even longer delays than
the one in the hypothetical. See Rudnicki, ¶ 38 (explaining that an
unemancipated minor without a legal representative may bring a
negligence claim as late as the minor’s twentieth birthday); Tenney
v. Flaxer, 727 P.2d 1079, 1080, 1084-85 (Colo. 1986) (even though
a minor’s injury occurred in 1962, the statute of limitations was
tolled until guardians were appointed for the minor in 1980 and
they timely brought suit two years later in 1982).
D. Nicola’s Survival Claims Are Not Time Barred
¶ 59 The parties do not dispute that, because of her injuries,
Danielle was a “person under disability” from the date of the
accident until the date of her death, see § 13-81-101(3), so we will
assume without deciding that this is true. As a result, the statute
of limitations on her claims against Xcel Energy and Grand
34 Junction did not begin to run until her death removed her
disability. See Southard, 714 P.2d at 897. Necessarily, Danielle
died before expiration of the applicable statute of limitations. It is
also undisputed that Danielle was not appointed a legal
representative. Thus, section 13-80-112 governs Nicola’s survival
claim. Section 13-81-103(1)(b) does not apply.
¶ 60 Under section 13-80-112, Nicola had the longer of the
applicable statute of limitations — which began to run on the date
Danielle’s disability was removed by her death — or one year after
the date of Danielle’s death to bring a survival action. Xcel Energy
and Grand Junction argue that the two-year statute of limitations
in section 13-80-102(1)(h) applies, while Nicola argues that the
three-year statute of limitations in section 13-80-101(1)(n)(I), C.R.S.
2023, applies. But we need not resolve that dispute. Nicola filed
the survival action within two years of Danielle’s death, making it
timely under the shorter of the two statutes of limitation. Thus, we
conclude that the district court erred by dismissing Nicola’s survival
claims as untimely.
35 V. Attorney Fees
¶ 61 Xcel Energy and Grand Junction each request attorney fees
and costs pursuant to section 13-17-201, C.R.S. 2023. Under
section 13-17-201(1), a defendant is entitled to recover reasonable
attorney fees when any tort action is dismissed before trial under
C.R.C.P. 12(b). But because we have determined that Nicola’s
survival claims should be reinstated, we conclude that Xcel Energy
and Grand Junction are not entitled to attorney fees. See Colo.
Special Dists. Prop. & Liab. Pool v. Lyons, 2012 COA 18, ¶ 60 (“[T]he
statute does not authorize recovery if a defendant obtains dismissal
of some, but not all, of a plaintiff’s tort claims.”).
VI. Disposition
¶ 62 We affirm the part of the district court’s judgment dismissing
Nicola’s wrongful death claims but reverse the part of the judgment
dismissing Nicola’s negligence and premises liability survival claims
and remand the case for further proceedings on those claims.
JUDGE GOMEZ and JUDGE TAUBMAN concur.