Colorado § 13-21-204 - Limitation of actions.

§ 13-21-204. Limitation of actions.

All actions provided for by this part 2 shall be brought within the time period prescribed in section 13-80-102.

Source: G.L. § 880. G.S. § 1033. R.S. 08: § 2059. C.L. § 6305. CSA: C. 50, § 4. CRS 53: § 41-1-4. C.R.S. 1963: § 41-1-4. L. 79: Entire section amended, p. 615, § 1, effective June 7. L. 86: Entire section amended, p. 704, § 13, effective July 1.

ANNOTATION

The time limitation in this section is a matter of procedural law rather than substantive law based on court's reading of Barnhill v. Public Serv. Co. (649 P.2d 716 (Colo. App. 1982), aff'd, 690 P.2d 1248 (Colo. 1984)). Therefore, in diversity action filed in Mississippi where Mississippi's choice of law principles apply, Mississippi must apply the substantive law of Colorado but may apply its own law in procedural matters including statute of limitations. Davis v. Nat'l Gypsum Co., 743 F.2d 1132 (5th Cir. 1984).

Language of section is plainly all-inclusive, and must be construed to apply to all wrongful death actions in the absence of an express exception in former § 13-80-127. McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980).

Bringing action is indispensable condition for liability. Commencement of an action within the time fixed by this section is an indispensable condition of the liability and of the action which wrongful death statutes permit. Ritter v. Aspen Skiing Corp., 519 F. Supp. 907 (D. Colo. 1981).

The statute of limitations begins to run immediately upon the happening of the wrongful act. Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949).

The statute of limitations in a wrongful death action begins to run on the date the damage or injury arising from the commission of the alleged negligence from which death later results becomes known or by reasonable care could have been discovered. Crownover v. Gleichman, 38 Colo. App. 96, 554 P.2d 313 (1976), aff'd, 194 Colo. 48, 574 P.2d 497 (1977).

Limitation period starts running no later than date of death. The statute of limitations specifically starts running no later than the date of death. With v. Gen. Elec. Co., 653 P.2d 764 (Colo. App. 1982); Gonzales v. Denver & Rio Grande Western Railroad Co., 686 P.2d 1362 (Colo. App. 1984).

Action not filed in two years is barred. The action not having been filed within two years after the commission of the alleged negligence, said to have resulted in the death of the injured husband, is barred. Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897 (1953).

Action is barred when not filed within two years from the "discovery" of the alleged negligence. Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497 (1977); Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987).

Having an action for wrongful conduct not a condition precedent to bringing wrongful death action. The wrongful death action is not complete until death. Therefore, statute of limitations begins at death. Rowell v. Clifford, 976 P.2d 363 (Colo. App. 1998).

Limitation period not tolled by former § 13-80-126. The Colorado wrongful death act is not a "statute of limitations but a statute of creation," thus former § 13-80-126 will not toll the two year period in which one has to commence a wrongful death action. Nelson v. Hall, 573 F. Supp. 1097 (D. Colo. 1983).

Limitation period tolled by § 13-81-103. This statute is not a "nonclaim statute" which prohibits filing of a lawsuit after a specific period of time, and, therefore, it is subject to tolling provision of general disability statute, § 13-81-103. Pub. Serv. Co. v. Barnhill, 690 P.2d 1248 (Colo. 1984).

Action barred by this section is not revived by former § 13-80-128. The remedial revival statute, former § 13-80-128, does not apply to wrongful death actions. Gonzales v. Denver Rio Grande Western R.R., 686 P.2d 1362 (Colo. App. 1984); Phillips v. Beethe, 679 P.2d 126 (Colo. App. 1984).

For situation where statute does not begin to run until injury occurred, see Decaire v. Pub. Serv. Co., 173 Colo. 402, 479 P.2d 964 (1971).

Limitations period is subject to tolling for fraudulent concealment of facts underlying the wrongful act. First Interstate Bank v. Piper Aircraft, 744 P.2d 1197 (Colo. 1987).

The mere fact that the plaintiff was aware of a death on the date of its occurrence is not dispositive of whether the fraudulent concealment doctrine should be applied to a wrongful death action. Negligent conduct cannot be presumed from the happening of an accident, but may be established by the facts and circumstances surrounding the accident. First Interstate Bank v. Piper Aircraft, 744 P.2d 1197 (Colo. 1987).

Question of whether plaintiff applied reasonable diligence in discovering that death was caused by negligent act is not question of law, but must generally be deemed a question of fact for determination by fact finder. First Interstate Bank v. Piper Aircraft, 744 P.2d 1197 (Colo. 1987).

PART 3

SETTLEMENTS, RELEASES, AND STATEMENTS