Background
On November 23, 2018, Danielle Nicola was struck by a car while crossing a street in Grand Junction, Colorado. She suffered severe brain trauma, never regained consciousness, and died nineteen days later on December 12, 2018. No conservator, guardian, or legal representative was ever appointed for her during those nineteen days. Her father, John Nicola, later settled wrongful death claims against the driver who struck her.
On December 11, 2020—nearly two years after Danielle’s death—Nicola filed a separate lawsuit against the City of Grand Junction and Public Service Company of Colorado (d/b/a Xcel Energy), asserting survival claims for negligence and premises liability. He alleged that a nonworking streetlight at the intersection contributed to the accident and that defendants had failed to maintain adequate lighting and warn of dangerous conditions.
Defendants moved to dismiss, arguing that under Colorado’s disability-tolling statute, § 13-81-103(1)(b), C.R.S., the executor or administrator of a person who dies while under disability must bring survival claims within one year of death. Because Nicola filed nearly two years after Danielle died, defendants contended the claims were time-barred. The district court agreed and dismissed. The Colorado Court of Appeals reversed, holding that § 13-81-103(1)(b) applies only when the decedent had a court-appointed legal representative—and because Danielle had none, the longer limitations period under the general survival-action statute, § 13-80-112, applied instead, rendering Nicola’s filing timely.
The Court’s Holding
The Colorado Supreme Court unanimously reversed the court of appeals. Chief Justice Marquez, writing for all seven justices, held that § 13-81-103(1)(b) applies regardless of whether a legal representative was ever appointed for the person under disability. The court reasoned that the legislature’s silence as to a legal representative in subsection (1)(b)—in contrast to the express mentions in subsections (1)(a) and (1)(c)—was a deliberate omission reflecting legislative intent that the one-year deadline operates universally once its conditions are met.
The court further clarified the meaning of the statutory phrase “the period of limitation in [subsection (1)(a)],” which both the court of appeals and Nicola argued imported a legal-representative requirement into subsection (1)(b). The court held that phrase simply refers to the applicable statute of limitations running in the ordinary course—or, if a legal representative was appointed, the additional two-year window available to that representative. Because subsection (1)(c) uses identical language yet expressly covers persons with no legal representative, reading that phrase to require a legal representative would render subsection (1)(c) internally contradictory.
Applying these principles to Danielle’s case, the court found all conditions of subsection (1)(b) satisfied: she was a person under disability when her claims accrued; she died before her disability terminated; and she died well before the expiration of any applicable statute of limitations. Accordingly, Nicola had one year from December 12, 2018, to file survival claims. His December 11, 2020 filing was nearly a year late. The court reinstated the district court’s dismissal and remanded for determination of mandatory attorney fees under § 13-17-201 in favor of the prevailing defendants.
Key Takeaways
- Colorado’s one-year survival-claim deadline under § 13-81-103(1)(b) applies whenever a person under disability dies before the statute of limitations expires on their claim—regardless of whether a guardian, conservator, or other legal representative was ever appointed.
- The phrase “period of limitation in subsection (1)(a)” in the disability-tolling statute refers to the ordinary running of the applicable limitations period, not a period that commences only upon appointment of a legal representative.
- When subsection (1)(b) applies, it displaces the general survival-action limitations provision of § 13-80-112; the more specific disability statute governs.
- Prevailing defendants who obtain dismissal of an entire tort action under C.R.C.P. 12(b) are entitled to mandatory attorney fees under § 13-17-201(1).
Why It Matters
This decision closes a significant gap that the court of appeals had opened for personal representatives of tort victims who die suddenly while under disability. Under the appellate ruling, the failure to appoint a guardian or conservator—often an impossibility when death follows closely on a catastrophic injury, as here—would have given the personal representative the benefit of the full underlying limitations period rather than the one-year window that applies when the decedent had a representative. The Supreme Court’s ruling confirms that the one-year deadline is triggered by the circumstances of death, not by prior litigation choices about seeking a court appointment.
Practitioners handling survival actions for clients who sustained fatal injuries while incapacitated should treat the anniversary of death as the firm filing deadline under § 13-81-103(1)(b), without assuming that the absence of a pre-death legal representative affords additional time. The decision also reinforces the court’s 2024 holding in Kinslow v. Mohammadi that Colorado’s disability-tolling statute does not suspend the running of limitations periods in the background; the clock runs concurrently with the disability unless one of the statute’s specific triggering conditions has not yet been met.