ORDER GRANTING SUMMARY JUDGMENT. THIS MATTER comes on for consideration of DEFENDANT S MOTION FOR I. STATEMENT OF THE CASE

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1 DISTRICT COURT, EL PASO COUNTY, COLORADO Court address: P.O. Box South Tejon Street Colorado Springs, CO DATE FILED: July 29, :12 PM CASE NUMBER: 2013CV2249 Phone Number: (719) Plaintiff: AMANDA HOFMANN vs. Defendant: The Estate of DONALD CHANDLER, deceased, and JULIE FISCHER Court Use Only Case Number: 13 CV 2249 Division 4 Ctrm: S405 ORDER GRANTING SUMMARY JUDGMENT THIS MATTER comes on for consideration of DEFENDANT S MOTION FOR SUMMARY JUDGMENT- STATUTE OF LIMITATIONS. I. STATEMENT OF THE CASE Plaintiff Amanda Hoffmann filed this vehicular negligence action against Defendants Donald Chandler and Julie Fischer. The suit arises from an alleged vehicle accident in Colorado Springs on May 28, Defendant Chandler died approximately two years after the accident, but before this action was filed with the court. After service could not be made upon Defendant Chandler, Plaintiff discovered Defendant Chandler s death and created an estate to effectuate service. The Estate of Donald Chandler ( Defendant ) argues that Currier v. Sutherland, 218 P.3d 709 (Colo. 2009), is controlling case law and thus is dispositive of this litigation. Specifically, 1

2 Defendant argues that although the original action was filed within the three-year statute of limitations, the amended complaint cannot relate back under Colo. R. Civ. P. 15(c) because of a lack of notice to the estate or personal representative. Further, Defendant argues that the statute of limitations was tolled for four-months pursuant to Colo. Rev. Stat (2) during which time Plaintiff still did not file the amended complaint naming the estate of Donald Chandler as a party. Plaintiff argues that the statute of limitations should be extended because of the public policy to promote substantial justice and the responsibility of insurance indemnification. Moreover, Plaintiff argues that the insurance carrier was aware of this action and was in negotiation with Plaintiff up until this suit was filed. Further, Plaintiff argues that the statute of limitations did not start to run against the estate because the estate was not a legal entity until its creation. Alternatively, Plaintiff argues that even if the statute of limitations did run against the estate, the statute of limitations should be tolled. Plaintiff contends that tolling would apply because the deceased defendant was not a legal entity that could be served within the meaning of Colo. Rev. Stat Plaintiff argues that equitable tolling should apply because it was not common knowledge amongst Plaintiff or Defendant s insurance carrier that Defendant Chandler was dead. Plaintiff also argues that Currier does not apply because she is now the personal representative of the estate of Defendant Chandler, thus being on notice of this claim from its inception so that relation back should apply. Generally, Plaintiff argues that Currier is not dispositive because many of the foregoing arguments were not addressed in the Currier decision. 2

3 The court has considered the motion, response, and reply as well as the oral arguments presented on July 25, The court appreciates the well-written and well-argued advocacy of counsel on both sides of this issue. II. ISSUES Therefore, the court must resolve the following issues: 1. When does the statute of limitation start to run and is that time period extended if a party is deceased without an estate? 2. Does tolling apply to the statute of limitations when a defendant is deceased and cannot be served? 3. Does Plaintiff s notice of her claim constitute notice of the claim such that her notice should relate back as required by the statute of limitations when Plaintiff is subsequently appointed the personal representative of the estate of the deceased defendant? III. FINDINGS OF FACT 1. The automobile accident giving rise to this case occurred on May 28, Defendant Chandler died May 22, The original complaint was filed on May 21, Donald Chandler was named as a defendant. 5. Neither Plaintiff nor defendant s insurance carrier were aware of the death of Donald Chandler until after May 21, The three year statute of limitations expired on May 28, The four-month tolling provision of Colorado Probate Code expired on September 22,

4 8. The motion to file the amended complaint adding the estate of Donald Chandler was filed on October 4, Plaintiff filed the Petition for Formal Appointment of Special Administrator on January 9, A Special Administrator of the Estate of Donald Chandler was appointed on January 29, Plaintiff was appointed Personal Representative of the estate on July 7, A. Statute of Limitations IV. PRINCIPLES OF LAW (1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within three years after the cause of action accrues, and not thereafter All tort actions for bodily injury or property damage arising out of the use or operation of a motor vehicle Colo. Rev. Stat (1), (n)(1) (2014). A cause of action for bodily injury or property damage arising out of the use or operation of a motor vehicle accrues on the date that both the existence of the injury or damage and the cause of the injury or damage are known or should have been known by the exercise of reasonable diligence. Colo. Rev. Stat (12) (2014). The running of any statute of limitations measured from some event other than death or the giving of notice to creditors for claims against a decedent is suspended during the four months following the decedent's death but resumes thereafter as to claims not barred pursuant to the provisions of this part 8. Colo. Rev. Stat (2) (2014). A statute of limitations is enacted for the purpose of promoting justice, discouraging unnecessary delay and forestalling the prosecution of stale claims. Klammshell v. Berg, 441 P.2d 10, 13 (Colo. 1968). A cause of action accrues on the date when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the 4

5 exercise of reasonable diligence. Crosby v. Am. Family Mut. Ins. Co., 251 P.3d 1279, 1283 (Colo. App. 2010). It is the knowledge of facts, not of the law, that controls the application of the statute of limitations. Id. at The time of accrual is usually a question of fact, but if the undisputed facts clearly show when a plaintiff discovered the damage or conduct, the issue may be decided as a matter of law. Id. at Actual knowledge is knowledge of such information as would lead a reasonable person to inquire further. Id. at B. Colo. R. Civ. P. 15(c) Rule 15(c) sets forth three separate requirements that must be met for a claim in an amended complaint against a new party to relate back to the filing of the original complaint: (1) the claim must have arisen out of the same transaction or conduct set forth in the original complaint; (2) the new party must have received notice of the action within the period provided by law for commencing the action; and (3) the new party must have known or reasonably should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Lavarato v. Branney, 210 P.3d 485, 488 (Colo. App. 2009); see Currier v. Sutherland, 218 P.3d 709, 715 (Colo. 2009). C. Equitable Tolling Once the statute of limitations is raised as an affirmative defense, the burden shifts to Plaintiff to show that the statute has been tolled. Garrett v. Arrowhead Imp. Ass n, 826 P.2d 850, 855 (Colo. 1992). Tolling should only arise when Defendant conceals something that Plaintiff needed to know for her cause of action to accrue. Crosby, 251 P.3d at The doctrine of equitable tolling is not favored and is only applied when all of its elements are clearly shown. Gognat v. Ellsworth, 224 P.3d 1039, 1049 (Colo. App. 2009). The elements of equitable 5

6 tolling are: (1) the party to be estopped must know the relevant facts; (2) the party to be estopped must intend that his or her conduct be acted on, or act in a manner that the party asserting estoppel believes the party to be estopped has such intent; (3) the party asserting estoppel must be ignorant of the relevant facts; and (4) the party asserting estoppel must rely on the other party s conduct to his or her detriment. Id. At times, however, equity may require a tolling of the statutory period where flexibility is required to accomplish the goals of justice. Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996). Plaintiff has the burden of establishing these elements. Gognat, 224 P.3d at A. Statute of Limitations V. ANALYSIS The statute of limitations is tolled for four-months after the death of Defendant. Colo. Rev. Stat (2) (2014). Defendant Chandler s death allowed for a four-month extension of time on the statute of limitations. Defendant Chandler died on May 22, Therefore, the statute of limitations under the above statute was tolled only until September 22, However, the motion to allow the amended complaint naming the estate was not filed until October 4, 2014, twelve days after the four-month extension expired. Consequently, the amended complaint was not filed in time for Plaintiff to benefit from Colo. Rev. Stat (2) (2014). B. Colo. R. Civ. P. 15(c) An amended complaint against an estate or personal representative cannot relate back to an original complaint, unless notice of the original complaint was given to the estate or personal 6

7 representative prior to the expiration of the statute of limitations. Currier, 218 P.3d at 716. In Currier, the claimant filed a personal injury complaint against a deceased defendant within the statute of limitations for an automobile/bicycle collision. Id. at 711. When the claimant was unable to effectuate service upon the deceased defendant, it opened an estate and appointed a personal representative. Id. However, the estate was not created and named in the amended complaint until after the applicable statute of limitations had expired. Id. The Currier court held that the newly amended complaint was in violation of the statute of limitations and therefore the suit was barred. Id. at 716. In reaching this conclusion, the Currier court noted that an estate or a personal representative would not have notice of a pending claim to be brought against them. Id. at 716. The Estate of Donald Chandler did not have sufficient notice of this case to allow for the complaint to relate back to the original complaint. Like the claimant in Currier who filed the original complaint within the applicable statute of limitations yet was unable to obtain service on a deceased defendant, Plaintiff filed her complaint within the statute of limitations yet was unable to effectuate service on Defendant Chandler because he was also deceased. Further, like the claimant in Currier who opened an estate after the statute of limitations had expired, Plaintiff opened an estate for Defendant Chandler after the three-year statute of limitations had expired. Additionally, like the estate in Currier which did not exist prior to its creation by the claimant and which had no notice of the claim prior to the filing of the amended complaint, Defendant Chandler s estate could not have notice of a pending claim prior to its creation. Therefore, the amended complaint, naming the estate, cannot relate back to the original complaint because the estate did not have notice of the original complaint. 7

8 Plaintiff argues that notice was sufficient because Plaintiff subsequently was appointed as personal representative of the estate and she had notice of the claim from its inception. Notice of the claim by Plaintiff in her capacity as Plaintiff cannot constitute notice to Defendant even though Plaintiff subsequently becomes the Personal Representative of the estate of defendant. For the concept of notice to have any meaning in the context of relation back of pleadings, the notice must be to someone who has a common interest in protecting the interests of the defense side of the case. The court cannot conclude that notice to Plaintiff at a time when she had no interest in protecting the interests of the defense side of the case should constitute notice to the defense when she is subsequently appointed as Personal Representative of the Estate of Donald Chandler. C. Equitable Tolling Equitable tolling applies only when the acts of Defendant lead Plaintiff to fail to comply with the limits set forth in the statute of limitations. Gognat, 224 P.3d at 1049; see also Crosby, 251 P.3d at Plaintiff s briefing does not suggest any sort of misdirection by Defendant Chandler s insurance company. Plaintiff does not assert any acts or omissions by Defendant that prevented Plaintiff from filing her case in a timely manner. Therefore, equitable tolling cannot apply in the traditional sense. Plaintiff does assert that Colorado law has expanded the realm of tolling to include extraordinary circumstances. Notably, the cases cited by the Colorado Supreme Court that support Plaintiff s inference are situations in which a plaintiff could not have filed a claim. See Dean Witter Reynolds, 911 P.2d at 1097 (illustrating situations, in other jurisdictions, in which the Civil War, Japanese internment during WWII, or erroneous enforcement of law barred 8

9 plaintiffs claims within the statute of limitations). In this case, Plaintiff had retained an attorney and was in negotiations with Defendant s insurance company. In this case, there were no external forces that operated to prevent Plaintiff from filing in a timely manner. Plaintiff was not hindered from filing suit at any time during the three years and four months following the accident. VI. CONCLUSIONS OF LAW The decision of the Colorado Supreme Court in Currier is dispositive. Plaintiff s claim against the Estate of Donald Chandler cannot relate back under Colo. R. Civ. P. 15(c) to the original complaint against Donald Chandler because the estate was not provided notice of the claim prior to the expiration of the statute of limitations. Further, equitable tolling for a statute of limitations is only available when Defendant has acted in a manner that would induce Plaintiff to forego timely pursuit of its claim, which is not alleged in this case. Further, no extraordinary circumstances are alleged that would suggest to this court that the equitable tolling should be expanded to include the facts of this case. VII. ORDER IT IS THEREFORE ORDERED that Defendant s Motion for Summary Judgment- Statute of Limitations- is granted and the claims in this case against the Estate of Donald Chandler are dismissed. IT IS FURTHER ORDERED that counsel for Defendant Julie Fischer and Plaintiff shall file a joint status report concerning how the parties wish to proceed on the claims relating to Defendant Julie Fischer within twenty-one days of the date of this order. 9

10 Done this 29th day of July, BY THE COURT: David L. Shakes District Judge 10

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