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13-81-103. Statute begins to run - when

Text

(1) When in any of the statutes of the state of Colorado a limitation is fixed upon the time within which a right of action, right of redemption, or any other right may be asserted either affirmatively or by way of defense or an action, suit, or proceeding based thereon may be brought, commenced, maintained, or prosecuted and the true owner of said right is a person under disability at the time such right accrues, then:

(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.

(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;

(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.

(2) After the expiration of the period fixed in paragraph (a), (b), or (c) of subsection (1) of this section, neither the person under disability, nor his legal representative, nor anyone for him shall be permitted or allowed to take action based on any such right.

History

History.
Source: L. 39: P. 449, 3. CSA: C. 102, 30. CRS 53: 87-3-3. C.R.S. 1963: 87-2-3.

Annotations

ANNOTATION

Law reviews. For article, Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?, see 46 Den. L.J. 516 . For note, Medical Products and Services Liability: Public Policy Requires Legislative Innovation and Judicial Restraint, see 53 Den. L. J. 387 (1976). For article, 1988 Update on Colorado Tort Reform Legislation Part I, see 17 Colo. Law. 1790 (1988).

This section specifically applies to all limitations of time contained in any of the statutes of the state of Colorado. Ball v. Indus. Commn, 30 Colo. App. 583, 503 P.2d 1040 (1972).

Section does not affect jurisdiction. The provisions of subsection (1)(c) are not intended to affect the jurisdiction of a court to act, but rather are intended as a statutory toll to statutes of limitations. In re Estate of Daigle, 634 P.2d 71 (Colo. 1981).

Statute does not run without legal representative. If a person under a disability is without a legal representative, statutes of limitation do not run against him. Price v. Sommermeyer, 41 Colo. App. 147, 584 P.2d 1220 (1978), affd, 198 Colo. 548, 603 P.2d 135 (1979); Barnhill v. Pub. Serv. Co., 649 P.2d 716 (Colo. App. 1982), affd, 690 P.2d 1248 (Colo. 1984).

Definition of legal representative includes a guardian appointed by a court having jurisdiction of any person under disability, but does not include a natural parent not so appointed. Tenney v. Flaxer, 727 P.2d 1079 (Colo. 1986).

Once a defendant raises the statute of limitations as an affirmative defense, the burden shifts to the plaintiff to show that the statute has been tolled by proving that no legal representative had been appointed for him. Goldsmith v. Learjet, Inc., 90 F.3d 1490 (10th Cir. 1996).

The time limitation of 8-53-119 is tolled by this section. Ball v. Indus. Commn, 30 Colo. App. 583, 503 P.2d 1040 (1972).

The time limitation of 13-21-204 is tolled by this statute. The statute of limitations for wrongful death actions is not a nonclaim statute which prohibits filing of a lawsuit after a specific period of time, and, therefore, it is subject to the tolling provision of this section for persons under a disability. Pub. Serv. Co. v. Barnhill, 690 P.2d 1248 (Colo. 1984).

Tolling provisions of this section apply to both the limitation and repose periods applicable to former 13-80-105 (now 13-80-102) medical malpractice claims. Southard v. Miles, 714 P.2d 891 (Colo. 1986).

Minors are persons under disability for purposes of section. McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980); Tenney v. Flaxer, 727 P.2d 1079 (Colo. 1986); Estate of Stevenson v. Hollywood Bar, 832 P.2d 718 (Colo. 1992).

If workmens compensation claimant was under disability at time his right to compensation occurred, and continued to be under disability at time he filed petition to reopen claim, the statute of limitations could not run against employee for whom a legal representative had not been appointed. Jaimes v. Brookhart Lumber Co., 727 P.2d 1119 (Colo. App. 1986).

Industrial commission was not proper forum in which to raise or decide the issue of whether workmens compensation claimant was under a disability for purposes of tolling workmens compensation statute of limitations. An interested person must petition the court for a specific finding as to the existence of a legal disability. James v. Brookhart Lumber Co., 727 P.2d 1119 (Colo. App. 1986).

For claim of mental incompetent for injuries sustained as result of medical malpractice the medical negligence statute of limitations is tolled until mental incompetency is removed or until legal representative is appointed, in which event action must be filed within two years. Tenney v. Flaxer, 727 P.2d 1079 (Colo. 1986).

For excluding 13-80-101 et seq. from the operation of this section, see Johnson v. Dodrill, 265 F. Supp. 243 (D. Colo. 1967).

This statute, which tolls statute of limitations for persons under disability, does not apply to the notice of claim provisions of the Governmental Immunity Act. McMahon v. Denver Water Bd., 780 P.2d 28 (Colo. App. 1989); Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991); Hergenreter v. Morgan County Sch. Dist., 888 P.2d 346 (Colo. App. 1994).

Substantial compliance with the 180-day notice provision is a condition precedent to any action brought under the Governmental Immunity Act, therefore, the time for filing minors notice is not extended pursuant to the tolling provisions of this section until two years after the minors legal representative is appointed. Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991).

This statute was applicable to claims for negligence and outrageous conduct arising from alleged sexual assault on minors. Plaintiffs admissions of emotional upset at time of assaults and knowledge that defendants actions were improper and illegal indicated that plaintiffs were on adequate notice of the essential elements of the tort when plaintiffs reached the age of majority. Cassidy v. Smith, 817 P.2d 555 (Colo. App. 1991).

There is no conflict between the provisions of this section and 13-22-101 (1)(c). This section addresses how the statute of limitations applies to a suit while the other section addresses how a suit may be brought. Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999).

A genuine issue of material fact as to whether the statute of limitations was tolled because husband was under disability existed, and thus summary judgment on husbands claim against the sheriff was improper. Terry v. Sullivan, 58 P.3d 1098 (Colo. App. 2002).

Derivative claims are subject to the same defenses available to the underlying claim; nevertheless, derivative claims are distinct causes of action separate from the claims of the injured person, and statute of limitations is not tolled for a derivative claim based on the tolling of the underlying claim. Terry v. Sullivan, 58 P.3d 1098 (Colo. App. 2002).

Applied in Adams County Sch. Dist. No. 1 v. District Court, 199 Colo. 284, 611 P.2d 963 (1980).