The Colorado Court of Appeals has recently made clear that a statute of limitations deadline does not carry over a weekend or holiday to the next business day.
In Gomez v. Walker, 2023 WL 5963716, (Colo.App. 2023), the Court of Appeals ruled that the statute which extended statutory time periods whose last day fell on a weekend or legal holiday did not apply to the three year statute of limitations applicable to personal injury actions arising out of the use or operation of a motor vehicle. The Court reasoned that the language "within three years of the injury and not thereafter" acted as an exception to the general rule extending statutory periods which expire on a weekend or legal holiday.
Now that we have two years under our belt in dealing with Delta Airlines, Inc. v. Scholle 484 P.3d 695 (Colo. 2021), we can offer some strategy recommendations. If the carrier possessing the lien has elected not to intervene in the litigation, we recommend approaching the plaintiff with an offer of assignment of the lien that includes an agreed upon reduced common fund offset. Typically, a non-participating lien holder is subject to a common fund reduction/offset in the range of 33% to 40%. With an assignment, the plaintiff no longer has the fear of the defendant buying the carrier's lien and gutting their economic damages at trial. Consequently, the plaintiff is incentivized to reduce the common fund offsent and facilitate such an assignment.
Of course, like any other case, a carrier must weigh its options as to whether to interevene in a case or sit on the sidelines and take a more passive role. Such determination depends upon many factors such as the competency of plaintiff's counsel and whether intervention would negatively impact potential recovery at trial. The carrier should also consider whether or not intervention would be construed as an election of remedies thereby freeing the plaintiff to settle their claim without having to compensate the carrier. See, Chavez v. Pinnacol Assurance 275 P.3d 737 (Colo.App 2011); See also Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996)
AI- Good But Not Perfect
AI is a wonderful learning tool. However, caution is advised. Below is a quick AI search consisting of the phrase: “Tell me about Colorado Subrogation”. As you will see below, don’t believe everything you read.
Here’s the AI post with our comments.
Subrogation in Colorado, like in many other jurisdictions, refers to a legal concept where one party (typically an insurance company) steps into the shoes of another party to recover costs or damages paid to an insured individual. In the context of insurance, subrogation typically arises when an insurance company pays out a claim to its policyholder and then seeks to recover the amount it paid from a third party who is responsible for the loss or injury.
True or False? TRUE. Subrogation claims in Colorado, like most states, is a derivative claim.
Key points regarding subrogation in Colorado include:
True or False: TRUE. For example, see C.R.S. 8-41-203 which governs subrogation in the workers’ compensation context.
True or False: TRUE. Learning moment, the statute of limitations for any action involving the use and operation of a motor vehicle is governed by Colorado’s three year statute of limitations. All other tort cases are governed by the general two year statute of limitations.
True or False: TRUE. Generally speaking clauses in insurance contracts limiting or waiving subrogation are enforceable.
True of False: FALSE. Colorado is not a direct-action state. Only the negligent party may be sued.
True or False: FALSE. UM/UIM coverage is not mandatory in Colorado. However, it must be purposely waived by the insured. UM/UIM coverage cannot be pursued by a workers’ compensation carrier.
True or False: FALSE. As stated above, Colorado is not a direct action state. The claim must be asserted against the negligent party—who hopefully has insurance coverage.
True or False: True. However, there is no specific statute of limitations for a subrogation claim. Such limitary period defaults to the nature of the underlying action—i.e. two years for negligence unless the claim involves the use and operation of an automobile, which is three years.
Subrogation is a complex area of law, and the specifics can vary depending on the circumstances of each case, the terms of insurance policies, and the applicable Colorado laws. If you are involved in a subrogation matter, it is advisable to consult with an attorney who specializes in insurance and subrogation issues to navigate the process effectively.
True or False: TRUE. Please always verify with counsel in your particular state. DCWYB&E never charges for quick phone consultations. Please don’t hesitate to give us a call. 303.584.0990.
Limitation of Liability Provisions
The Colorado Court of Appeals has very recently held that limitation of liability provisions contained within many general and subcontracts are not enforceable on residential property construction. The Court of Appeals in Heights Healthcare Company, LLC v. BCER Engineering, Inc., 534 P.3d 939 (Colo. App. 2023), that a limitation of liability provision in a contract between an architect and community owner was void as against public policy under Colorado's Homeowner Protection Act (HPA) The Court reaffirmed that the HPA is intended to preserve adequate rights and remedies for residential property owners who bring construction defect actions under the Colorado Construction Defect Action Reform Act (CDARA). The Court found that a senior living facitlity, while zoned "commercial" was in fact of a residential nature and entitled to such protection.