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
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.