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 October 2, 2025
2025COA81
No. 24CA1639, Nesjan v. J & A Distributing, Inc. — Limitation of Actions — General Limitation of Actions Three Years — Tort Actions for Bodily Injury or Property Damage Arising out of the Use or Operation of a Motor Vehicle
Under section 13-80-101(1)(n)(I), C.R.S. 2025, all tort claims
for bodily injury or property damage arising out of the use or
operation of a motor vehicle must be brought within three years
after the claim accrues. In this negligence action involving a
plaintiff who suffered injuries while inspecting a customer’s box
truck, a division of the court of appeals interprets the phrase
“use . . . of a motor vehicle” in the statute of limitations. The
division holds, as a matter of first impression, that this phrase
encompasses a person who was hired to inspect and repair a motor
vehicle and who sustained bodily injuries during performance of
those maintenance-related activities. Accordingly, the division reverses the district court’s judgment dismissing the plaintiff’s
complaint as untimely and remands the case for further
proceedings. COLORADO COURT OF APPEALS 2025COA81
Court of Appeals No. 24CA1639 El Paso County District Court No. 24CV30892 Honorable Amanda J. Philipps, Judge
Tormod Marc Nesjan,
Plaintiff-Appellant,
v.
J & A Distributing, Inc., Tony Vasquez, and Judith Vasquez,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE KUHN Moultrie and Bernard*, JJ., concur
Announced October 2, 2025
Bradford Pelton, P.C., Alex D. Kerr, Colorado Springs, Colorado, for Plaintiff- Appellant
Lasater & Martin, P.C., Janet B. Martin, Greenwood Village, Colorado, for Defendants-Appellees
* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Section 13-80-101(1)(n)(I), C.R.S. 2025, provides that “[a]ll tort
actions for bodily injury or property damage arising out of the use
or operation of a motor vehicle” must be commenced within three
years after the cause of action accrues. (Emphasis added.) In this
case, the district court applied the two-year statute of limitations in
section 13-80-102(1)(a), C.R.S. 2025, which addresses negligence
actions generally, and it dismissed as untimely the negligence
action that plaintiff, Tormod Marc Nesjan, filed three years after he
suffered serious injuries while inspecting a box truck owned by
defendants, J & A Distributing, Inc., Tony Vasquez, and Judith
(Judy) Vasquez (collectively, J & A Distributing). We consider the
meaning of the phrase “use . . . of a motor vehicle” in section
13-80-101(1)(n)(I), and we hold that this phrase encompasses a
person who was hired to inspect and repair a motor vehicle and
who sustained bodily injuries during performance of those
maintenance-related activities. Accordingly, we reverse the district
court’s judgment of dismissal on statute of limitations grounds
under C.R.C.P. 12(b)(5) and remand the case for further
proceedings.
1 I. Background
¶2 We draw the following factual background from the record on
appeal, including the allegations in Nesjan’s complaint.
¶3 On May 14, 2021, Nesjan, a mechanic, agreed to inspect a box
truck owned by J & A Distributing for a suspected driveshaft
problem. One of the company’s owners, Tony Vasquez,1 drove the
box truck from the company’s premises to the driveway of Nesjan’s
nearby mechanic shop. In preparation for the work that he was
hired to do, Nesjan put the truck’s gearshift in park, engaged the
emergency brake, and placed wheel chocks under the tires.
¶4 Then Nesjan went underneath the box truck to check the
condition of the driveshaft. He “observed extremely loose bearings
and bolts on the [part of the] driveshaft where it connected to the
front end of the truck.” Nesjan alleged that, during his inspection,
the driveshaft came loose, causing the entire box truck to roll
backward and over him. He sustained serious bodily injuries in the
accident, including fractured ribs, a broken neck, a broken back,
and a broken right leg.
1 Judy Vasquez is the other owner of J & A Distributing.
2 ¶5 On May 14, 2024, the three-year anniversary of the accident,
Nesjan filed the underlying lawsuit against J & A Distributing. He
asserted claims for negligence and negligence per se based on J & A
Distributing’s alleged failure to maintain the box truck in good
mechanical condition. J & A Distributing moved to dismiss the
action under C.R.C.P. 12(b)(5). As relevant to this appeal, J & A
Distributing argued that Nesjan’s claims were barred because he
brought them outside the two-year statute of limitations set forth in
section 13-80-102(1)(a) for most tort actions.2 In his response to
the motion to dismiss, Nesjan argued that his claims were subject
to the longer three-year limitations period applicable to tort actions
arising out of motor vehicle accidents because he had been injured
in an accident “involving the use and/or operation” of the box
truck. See § 13-80-101(1)(n)(I). Specifically, Nesjan asserted that
he had “used” the box truck by inspecting its undercarriage for the
purported issue with the driveshaft.
2 J & A Distributing also argued that it owed no duty of care to
Nesjan and that it violated no statute, rule, or regulation that could support a finding of negligence per se. Because the district court dismissed the case based on the statute of limitations, it didn’t address these additional arguments, and we offer no opinion on them.
3 ¶6 The district court agreed with J & A Distributing. The court
concluded that the limitations period contained in section
13-80-101(1)(n)(I) didn’t apply to Nesjan’s cause of action because,
at the time of the accident, “the [box] truck at issue was stationary
and not in active ‘use or operation’” by Nesjan or J & A Distributing.
And because Nesjan filed his negligence action after the applicable
two-year statute of limitations had run, the district court dismissed
the action as untimely.
II. Analysis
¶7 Nesjan contends that the district court erred by concluding
that his claims are governed by the expired two-year statute of
limitations, instead of the three-year statute of limitations, because
the claims arise out of the use or operation of a motor vehicle within
the meaning of section 13-80-101(1)(n)(I). We agree and, therefore,
reverse.
A. Standard of Review and Applicable Law
¶8 The purpose of a C.R.C.P. 12(b)(5) motion to dismiss for failure
to state a claim upon which relief can be granted is to test the legal
sufficiency of a plaintiff’s complaint. Norton v. Rocky Mountain
Planned Parenthood, Inc., 2016 COA 3, ¶ 12, aff’d, 2018 CO 3. A
4 defendant can raise a statute of limitations defense under Rule
12(b)(5) when “the bare allegations of the complaint reveal that the
action was not brought within the required statutory period.”
SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 564 (Colo. App.
2005). We review de novo a district court’s dismissal of a claim on
expired statute of limitations grounds. Gomez v. Walker, 2023 COA
79, ¶ 7. Likewise, we review questions of statutory interpretation de
novo. Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 23.
¶9 When interpreting a statute, our task is to ascertain and give
effect to the legislature’s intent. Id. at ¶ 24. We begin this inquiry
by considering the plain language of the statute, giving its words
and phrases their plain and ordinary meanings. Id. In doing so,
“[w]e look to the entire statutory scheme to give consistent,
harmonious, and sensible effect to all of its parts, and we avoid
constructions that would render any words or phrases superfluous
or that would lead to illogical or absurd results.” Id. Because we
presume that the legislature acts intentionally when selecting the
words used in a statute, see Dep’t of Transp. v. Stapleton, 97 P.3d
938, 943 (Colo. 2004), we avoid constructions that would add to, or
5 subtract from, the words that the legislature has chosen, Nieto v.
Clark’s Mkt., Inc., 2021 CO 48, ¶ 12.
¶ 10 When more than one statute of limitations could apply to a
particular action, we must employ the following rules of statutory
construction to determine the governing limitations period: “(1) the
more specific of two statutes applies; (2) the later-enacted statute
applies over the earlier-enacted statute; and (3) because statutes of
limitation are in derogation of a presumptively valid claim, the
longer statutory period for filing a lawsuit applies over the shorter
period.” City & County of Denver v. Gonzales, 17 P.3d 137, 140
(Colo. 2001).
B. The District Court Erred by Dismissing Nesjan’s Claims as Untimely
¶ 11 Two statutes of limitation are at play in this case. The statute
that the district court applied, section 13-80-102(1)(a), establishes a
general two-year statute of limitations for all tort actions that don’t
arise out of a motor vehicle accident. Under section
13-80-101(1)(n)(I), “[a]ll tort actions for bodily injury or property
damage arising out of the use or operation of a motor vehicle” must
be commenced within three years after the cause of action accrues.
6 A claim accrues on the date that both the injury and its cause are
known, or should have been known, by the exercise of reasonable
diligence. § 13-80-108(1), (12), C.R.S. 2025.
¶ 12 It’s undisputed that Nesjan’s claims accrued on May 14, 2021,
the date of the accident. Thus, the timeliness of Nesjan’s negligence
action, filed three years later, turns on whether it implicated bodily
injuries arising out of the “use or operation” of the box truck, as
contemplated by section 13-80-101(1)(n)(I). See Gonzales, 17 P.3d
at 141 (holding that the three-year statute of limitations applies to
all tort actions arising out of the use or operation of a motor vehicle,
regardless of whether the alleged tortfeasor was using or operating
a particular motor vehicle). The statute doesn’t say what qualifies
as “use” or “operation” of a motor vehicle, so we look to the plain
meaning of those undefined terms. See Edwards v. New Century
Hospice, Inc., 2023 CO 49, ¶ 20.
¶ 13 Black’s Law Dictionary defines “use” as meaning “[t]o employ
[a thing] for the accomplishment of a purpose; to avail oneself of.”
Black’s Law Dictionary 1862 (12th ed. 2024). Similarly,
Merriam-Webster defines “use” as “to put into action or service,” “to
carry out a purpose or action by means of.” Merriam-Webster
7 Dictionary, https://perma.cc/8CXS-2SDH. And the term “operate”
is defined in Black’s Law Dictionary as “[t]o direct, put into action,
or maintain the functioning of . . . ; to engage, use, and control (a
machine, computer, equipment, etc.).” Black’s Law Dictionary at
1312.
¶ 14 Considering the plain and ordinary meanings of these terms
and the circumstances of this case, we conclude that Nesjan’s
injuries arose out of the use of a motor vehicle within the meaning
of section 13-80-101(1)(n)(I). See Aetna Cas. & Sur. Co. v.
McMichael, 906 P.2d 92, 102-03 (Colo. 1995) (noting that, in
determining whether an activity constitutes the use of a motor
vehicle, courts must evaluate the activity “as part of the totality of
the circumstances present in the case”). Nesjan’s complaint alleged
that J & A Distributing hired him to “adequately inspect [the box
truck] and diagnose any issues that were readily visible and give his
opinion on those issues,” including issues concerning the driveshaft
located underneath the truck. To complete that work, he allegedly
put the box truck in park, engaged the emergency brake, placed
wheel chocks under its tires, and went underneath the truck to
inspect its undercarriage. During the inspection, Nesjan’s
8 complaint further alleged, he sustained serious bodily injuries when
the driveshaft dislodged, causing the truck to move backward and
roll over him. Given these allegations, and Nesjan’s claims that he
used the box truck to carry out the mechanical services for which
J & A Distributing hired him, we cannot say that “the bare
allegations of the complaint reveal that the action was not brought
within the required statutory period.” SMLL, L.L.C., 111 P.3d at
564.
¶ 15 True, in performing those services, Nesjan didn’t physically
operate the box truck by moving it forward, backing it up, or even
running its engine. And as J & A Distributing points out, the truck
was stationary, secured, and unoccupied at the time of the
accident. But these circumstances aren’t dispositive in determining
whether Nesjan’s actions amounted to the use of a motor vehicle
under section 13-80-101(1)(n)(I). While no published Colorado
appellate decision has addressed the meaning of that italicized
phrase in the statute of limitations, our appellate courts have
interpreted identical language in considering whether an insured
was entitled to recover benefits under a motor vehicle insurance
policy and relevant statutes. In those cases, courts broadly
9 construed the phrase by concluding that it encompassed other uses
of a vehicle than mere transportation. The case that Nesjan cites in
his briefing, Great Plains Insurance Co. v. Angerman, 833 P.2d 810
(Colo. App. 1991), illustrates this point.
¶ 16 In Angerman, a division of this court considered whether an
insured was entitled to recover personal injury protection (PIP)
benefits under a motor vehicle liability insurance policy and the
former Colorado Auto Accidents Reparation Act (No-Fault Act). Id.
at 810-11. The statute provided that an insured person could
recover those benefits “because of bodily injury arising out of the
use or operation of a motor vehicle.” Id. at 811 (quoting
§ 10-4-706(1)(b), (c), C.R.S. 1987). Angerman was seriously injured
while inspecting a vehicle’s brakes when the vehicle fell off a jack
and onto him. Id. The division concluded that he qualified for PIP
benefits because his “repair activities constitute[d] a ‘use’ of the
vehicle within the meaning of [the No-Fault Act]” and “there [was] a
‘causal connection’ between injuries occurring during the course of
repairing a vehicle and the use of that vehicle.” Id. at 812. In so
concluding, the Angerman division observed that, “for purposes of
the [No-Fault Act], injuries arise from the use of a vehicle even if the
10 vehicle is being used for a purpose other than transportation.” Id.
The division also observed that, unlike similar statutes in some
other jurisdictions, the No-Fault Act didn’t contain a provision
excepting maintenance-related activities from the “generally broad
concept of ‘use.’” Id.
¶ 17 The facts in Angerman are similar to those in this case, and we
find the division’s reasoning instructive. Like Angerman, Nesjan
alleged in his complaint that he had sustained bodily injuries while
inspecting a stationary motor vehicle for a reported mechanical
problem. And the statute at issue in Angerman contained identical
language to that found in section 13-80-101(1)(n)(I).
¶ 18 But beyond this, the Colorado Supreme Court has concluded
time and again that an activity qualifies as a use of a motor vehicle
as long as the activity, among other things, isn’t foreign to the
vehicle’s inherent purpose. Such purposes include not only
transportation and related activities but also any other use of a
vehicle that is consistent with its specific characteristics. See
Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 228-29, 231 n.4
(Colo. 1984) (concluding that a customer’s bodily injuries arose out
of the use of a motor vehicle within the meaning of the No-Fault Act
11 when the customer was injured while buying refreshments from a
truck that had been “factory-modified for use as a catering truck
and mobile refreshment stand”); Kohl v. Union Ins. Co., 731 P.2d
134, 135-36 (Colo. 1986) (concluding that the plaintiffs’ injuries
arose out of a hunter’s use of a motor vehicle for the purposes of
section 42-7-413(1)(c), C.R.S. 2025, when the hunter discharged a
rifle from the vehicle that was “specially designed to perform on the
rugged terrain often associated with hunting areas,” and he “had
installed a gun rack in his vehicle to facilitate that use of [it]”);
McMichael, 906 P.2d at 94, 101-03 (concluding that a highway
construction worker’s injuries, stemming from his use of a truck
“specially equipped with an overhead beacon and emergency
flashers” as a barricade from oncoming traffic, were covered by the
uninsured motorist policy because “the truck was intended to be
used as a protective device”); cf. State Farm Mut. Auto. Ins. Co. v.
Kastner, 77 P.3d 1256, 1258-60, 1265-66 (Colo. 2003) (determining
that the injuries of a victim who was sexually assaulted inside a
noncommercial passenger car didn’t arise out of the use of a motor
vehicle for the purposes of the No-Fault Act and the
uninsured/underinsured (UM/UIM) motorist statute because the
12 car had “no plain and obvious inherent purpose as a vehicle other
than the safe transportation of its passengers and cargo”).
¶ 19 In our view, a mechanic who sustains bodily injuries during
inspection and repair of a motor vehicle is using the vehicle in a
manner that is not foreign to its inherent purpose. While motor
vehicles are primarily used for transportation, maintenance
activities are closely related to that purpose because only
operational vehicles can be used for transportation of people and
cargo. At the time of the accident, Nesjan was inspecting the box
truck for a suspected driveshaft issue to determine what repairs
were necessary to resolve that issue. Put differently, Nesjan’s
injuries arose out of actions that were intended to return the truck
to a condition in which J & A Distributing could resume safe
operation of the vehicle. Under these circumstances, his conduct
was not only related to the operation of the truck but was essential
to its continued use as a means of transportation. Cf. Kastner, 77
P.3d at 1262 (“Although the term ‘use’ is broad enough to cover
activities beyond mere ‘transportation,’ it is not so broad as to
include acts that are clearly independent of a vehicle’s operation.”).
13 ¶ 20 To be sure, J & A Distributing correctly points out that, while
this case centers on the timeliness of Nesjan’s tort action, the
above-referenced cases implicated statutory schemes governing an
individual’s contractual right to recover certain benefits under a
motor vehicle insurance policy. And as J & A Distributing further
notes, those statutes generally promote different public policy
interests than the statutes of limitation do. For example, one of the
purposes of the former No-Fault Act was “to provide compensation
to ‘victims of automobile accidents’ by providing ‘benefits to persons
occupying such vehicles’ and to other persons ‘injured in accidents
involving such vehicles.’” Angerman, 833 P.2d at 811 (quoting
§ 10-4-702, C.R.S. 1987). In contrast, “[t]he purposes behind
statutes of limitations are to ‘promote justice, discourage
unnecessary delay, and preclude the prosecution of stale claims.’”
City & County of Denver v. Bd. of Cnty. Comm’rs, 2024 CO 5, ¶ 53
(quoting Gunderson v. Weidner Holdings, LLC, 2019 COA 186, ¶ 9).
But despite these differences, we can’t simply brush aside the
jurisprudence surrounding the meaning of “use . . . of a motor
vehicle” in the context of the No-Fault Act and other insurance
coverage statutes when interpreting the same phrase in section
14 13-80-101(1)(n)(I). After all, the statutory history of section
13-80-101 reveals a close connection between that statute and the
No-Fault Act.
¶ 21 Sections 13-80-101 and -102 were repealed and reenacted
together in 1986. While the 1986 version of section 13-80-101
prescribed a three-year statute of limitations for “[a]ll actions
under” the No-Fault Act, it didn’t include a similar provision for tort
actions based on personal injury. Ch. 114, sec. 1, § 13-80-101(1)(j),
1986 Colo. Sess. Laws 695-96. Indeed, the General Assembly
added subsection (1)(n)(I) much later in response to the supreme
court’s decision in Jones v. Cox, 828 P.2d 218 (Colo. 1992).
¶ 22 In Jones, the majority held that the three-year limitations
period for actions under the No-Fault Act applied not only to an
insured’s contractual claims against their insurer but also to the
insured’s tort claims against a third party. Id. at 222. Chief Justice
Rovira dissented from this holding. He noted that for purposes of
section 13-80-101, actions under the No-Fault Act only included
first-party contract claims between an insured and that person’s
insurance carrier. Id. at 226 (Rovira, C.J., concurring in part and
dissenting in part). “The [No-Fault] Act [didn’t] govern third-party
15 tort actions arising from automobile accidents, and it [didn’t] create
a cause of action in tort.” Id. Chief Justice Rovira reasoned that
because first-party claims under the No-Fault Act were contractual
in nature, “the General Assembly provided a three-year statute of
limitations for them, consistent with the statutes of limitations for
other contract actions.” Id. Accordingly, he concluded that this
limitations period didn’t apply to third-party tort claims under the
No-Fault Act, such as an individual’s personal injury action against
the driver of another vehicle. Id.
¶ 23 Roughly two years later, the General Assembly amended
section 13-80-101 to add subsection (1)(n)(I) and (II). See Ch. 348,
sec. 1, § 13-80-101, 1994 Colo. Sess. Laws 2824. As part of the
same bill, the legislature also amended section 13-80-102(1)(a) to
provide that the general two-year statute of limitations didn’t apply
to tort actions governed by subsection (1)(n)(I). See Sec. 2,
§ 13-80-102, 1994 Colo. Sess. Laws at 2825. Under the amended
statute — and as currently written — the three-year limitations
period in subsection (1)(n)(I) broadly governs “all actions pursuant
to paragraph (j) of this subsection (1).” § 13-80-101(1)(n)(I)
(emphasis added). While the No-Fault Act was repealed effective
16 July 1, 2003, see Ch. 189, sec. 1, § 10-4-726, 2002 Colo. Sess.
Laws 649, subsection (1)(j) has since been amended to provide that
it applies to all actions under the UM/UIM motorist statute, see Ch.
234, sec. 8, § 13-80-101, 2003 Colo. Sess. Laws 1572.
¶ 24 This statutory history of section 13-80-101 shows that the
General Assembly intended for the three-year statute of limitations
to govern all actions brought under the provisions of relevant motor
vehicle insurance statutes, irrespective of whether those actions
were based on contract or tort. See Gonzales, 17 P.3d at 140-41
(discussing, among other things, an argument that “the General
Assembly’s sole intent in enacting the three-year statute was to
resolve [the] inconsistency” identified by Jones’s partial dissent). It
also suggests that the legislature wanted the phrase “use . . . of a
motor vehicle” in subsection (1)(n)(I) to have the same meaning as it
does under the statutes to which section 13-80-101 has historically
applied. Accordingly, the statutory history of the statute of
limitations and the insurance coverage authorities bolster our
determination that Nesjan’s injuries arose out of the use of a motor
vehicle within the meaning of subsection (1)(n)(I).
17 ¶ 25 Finally, the three interpretive rules that we employ to
determine the applicable statute of limitations when, as here, more
than one statute could govern a particular action weigh in favor of
applying the three-year limitations period to Nesjan’s claims. See
Gonzales, 17 P.3d at 140. First, section 13-80-101(1)(n)(I) is a more
specific statute than section 13-80-102(1)(a) because it applies to
personal injury actions arising out of motor vehicle accidents. See
Gonzales, 17 P.3d at 140. Section 13-80-102(1)(a) is a general
statute of limitations for all tort actions that don’t fall within the
ambit of section 13-80-101(1)(n)(I) or other specific statutes.
Second, as noted above, the General Assembly passed subsection
(1)(n)(I) years after it had enacted section 13-80-102(1)(a). See
Gonzales, 17 P.3d at 140. And third, section 13-80-101(1)(n)(I)
prescribes a longer period in which a plaintiff like Nesjan must
assert his claims. Accordingly, the application of the longer
limitations period under section 13-80-101(1)(n)(I) preserves
Nesjan’s “presumptively valid claim[s].” Gonzales, 17 P.3d at 140.
¶ 26 For the foregoing reasons, then, we hold that the district court
erred by concluding that the two-year statute of limitations under
section 13-80-102(1)(a), as opposed to the three-year limitations
18 period under section 13-80-101(1)(n)(I), applies to Nesjan’s
negligence claims against J & A Distributing. And because Nesjan
asserted those claims within three years of the motor vehicle
accident, the court erred by dismissing his complaint as untimely.
III. Disposition
¶ 27 The judgment is reversed, and the case is remanded to the
district court with directions to reinstate Nesjan’s complaint.
JUDGE MOULTRIE and JUDGE BERNARD concur.