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Another example of why it is so dangerous to file your Colorado car accident lawsuit just before the statute of limitations runs.

Posted by Raj Chohan | Jun 06, 2020 | 0 Comments

In Grenillo v. Estate of Joel Hansen, 2020COA82, a division of the Court of Appeals tackled an issue of first impression: whether Colorado's remedial revival statute, section 13-80-111, C.R.S. 2019, allows a plaintiff to refile a law suit against a new defendant after the statute of limitations has run, and after the original complaint is dismissed for lack of personal jurisdiction, when the new defendant was not named in the original timely filed suit. The short answer is no.

The Facts

On September 2, 2014, Plaintiff Sherri Grenillo and Defendant Joel Hansen were involved in a car crash.  Plaintiff sued Hansen for negligence three days before the three-year statute of limitations expired. Plaintiff was unable to find Hansen for service of process. Plaintiff's counsel later learned that Hansen died in August of 2017. Because Plaintiff was unable to confirm the date of death, her attorneys tried to serve the lawsuit via substituted service on Defendant's insurer. Hansen's wife and the insurance company filed motions to quash service. Plaintiff conceded the court did not have personal jurisdiction over the deceased defendant. Grenillo then filed a notice of inability to perfect service on the deceased defendant. Allowing for the possibility of Plaintiff to refile, the court dismissed the suit without prejudice for lack of jurisdiction.

Grenillo then opened an estate for the deceased defendant. On May 14, 2018, more than eight months after the expiration of the statute of limitations, Grenillo filed a new complaint naming the estate as defendant. In response, the estate filed a motion to dismiss because the new action was filed after the statute of limitations had expired.  Relying on Colorado's Remedial Revival Statute, Plaintiff argued that her complaint was not time-barred because it was filed within ninety days after dismissal of the original suit.

The Remedial Revival Statute

The statute is found at C.R.S. § 13-80-111(1). It states as follows:

If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff or, if he dies and the cause of action survives, the personal representative may commence  a new action upon the same cause of action within ninety days after the termination of the original action … and the defendant may interpose any defense, counterclaim, or setoff which might have been interposed in the original action.

Its purpose is to toll the statute of limitations in cases where the original complaint was dismissed for improper venue or lack of jurisdiction. It attempts to save plaintiffs from the harsh results of strict compliance with the statute of limitations. Despite the legislative intent favoring temporary life support for plaintiffs' claims, the Court of Appeals concluded the remedial revival statute did not save Grenillo's claim.

Why not?

The Court of Appeals found a hole in the remedial revival statute that allowed the Defendant to slip through and get away. Put simply, the appellate panel concluded, the plain language of the statute does not revive claims against a new defendant that was not named in any version of the original suit filed before the statute of limitations expired. Here, the original defendant was the decedent, Joel Hansen. The new defendant is the estate of Joel Hansen. Interestingly, the remedial revival statute does have language that saves the plaintiff's complaint if it is the plaintiff who dies. In that scenario, the personal representative of the plaintiff's estate can step in after the statute of limitations has expired and refile the case so long as it is within the ninety-day tolling window. Because the remedial revival statute is silent regarding what happens when the original defendant is deceased and the estate is named as the new defendant, the Court of Appeals concluded the Colorado legislature must not have intended the saving statute to apply to cases such as Grenillo's.

In addition,

Sounds harsh, couldn't they have done something else?

Indeed, the Court of Appeals could have applied different reasoning that could have saved Grenillo's claim. Grenillo relied upon dictum from the Colorado Supreme Court's opinion in Currier v. Sutherland, 218 P.3d 709 (Colo. 2009) to support her argument that the remedial revival statute saves her claim.

In Currier, Justice Eid provided a concurring opinion which stated the following:

Under the majority's interpretation of the statute, had the plaintiffs in this case moved for a voluntary dismissal of the case based on lack of personal jurisdiction, and had the trial court dismissed the case at that point, the dismissal would have been one for lack of “jurisdiction” (that is, lack of personal jurisdiction), and the plaintiffs could have taken advantage  of the provision's 90-day refiling period. The plaintiffs' mistake, then, was to amend their original complaint to add the proper defendants, rather than dismissing and refiling the action to name the proper defendants.

Thus, according to Justice Eid's opinion, the proper way to save a claim in this scenario is not to amend the complaint to add the estate. Rather, the proper avenue is for the plaintiff to voluntarily dismiss the complaint for lack of personal jurisdiction, and then refile against the estate in a new complaint.  According to Justice Eid, this would have allowed the plaintiff in Currier to access the remedial revival statute's 90-day saving period.

Following Justice Eid's lead in Currier, is exactly what Plaintiff Grenillo tried to do. As the Grenillo v. Estate of Hansen opinion explained, Plaintiff Grenillo used Justice Eid's concurring opinion as a playbook for filing her new complaint against Hansen's estate.  Rather than amending her original complaint to add the estate, she asked the court to dismiss her complaint for lack of personal jurisdiction so she could access the remedial revival statute to refile her complaint against the new defendant. The appellate panel in Grenillo rejected Plaintiff's attempt and dismissed Justice Eid's Currier opinion as unpersuasive dictum.

Judge Berger, however, in a dissenting opinion, criticized the majority in Grenillo. Judge Berger cautioned that Colorado Supreme Court dictum should not be dismissed so easily, especially when the dictum precisely predicted the circumstances in play in Grenillo.

The takeaway:

Colorado plaintiffs' attorneys venture into this minefield at their own peril. If at all possible, don't wait until the statute of limitations is about to expire before filing your complaint. The problems of Grenillo could have been avoided completely by having filed the case six months earlier. Plaintiff would have figured out the defendant was deceased with ample time to open an estate and refile the complaint within the statute of limitations.

About the Author

Raj Chohan

Raj Chohan is a personal injury attorney with a passion for helping injured Coloradans seek the compensation they deserve and the justice their cases demand. He is a former prosecutor with extensive jury trial experience in some of the most complex and serious cases that exist under Colorado law...

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