Statute of Limitations Applicable to Claims Brought Under the Governmental Immunity Act

In Cochran v. West Glenwood Springs Sanitation District, 223 P.3d 123 (Colo. App. 2009), the plaintiff-homeowner brought a claim against the sanitation district alleging that its negligent maintenance of a sewer line damaged her home.   Pursuant to the court’s factual findings, the plaintiff’s claim accrued, and she discovered her injury, on August 24, 2006.  She timely filed her notice of claim on November 21, 2006 and the 90-day waiting period for the sanitation district to respond expired on February 19, 2007.  The plaintiff did not file her complaint against the sanitation district until November 18, 2008.  The trial court dismissed the plaintiff’s complaint for failure to comply with the two-year statute of limitations found in C.R.S. § 13-20-102 and the plaintiff appealed.

On appeal, the plaintiff argued that her claim was saved based on a tolling provision found within the Colorado Governmental Immunity Act (“CGIA” or “Act”).  The Act requires that any person claiming to have been injured by a governmental entity to file written notice within 180 days after the date he or she discovers the injury, i.e., the date on which he or she knew or should have known of both the injury and its cause, as a jurisdictional prerequisite to filing suit.  After a claimant files a notice, he or she must wait to file suit until either he or she receives notice that the governmental entity has denied the claim or until 90 days have elapsed.  The provision of the CGIA on which plaintiff relied states that “Any action brought pursuant to this article shall be commenced within the time period provided for that type of action. . . relating to limitation of actions, or it shall be forever barred; except that, if compliance with the provisions of subsection (6) of this section [the 90-day waiting period] would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of subsection (6) of this section.”

In ruling that this provision did not toll the running of the statute of limitations, the Colorado Court of Appeals held that “the CGIA provides that the statute of limitations is tolled only when the 180-day notice is filed and the 90-day waiting period begins within 90 days of the expiration of the applicable statute of limitations.”  Because plaintiff did not fall into this scenario, the court concluded that “under section 24-10-109(5), a statute of limitations is not tolled when the 90-day waiting period required by the CGIA has expired prior to the expiration of the applicable statute of limitations.”  The Court of Appeals affirmed the dismissal of plaintiff’s claim.

If you have any questions regarding the Cochran case, or anything else pertaining to construction law or construction litigation in Colorado, please contact David M. McLain at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com. For a more full explanation of construction law in Colorado please visit our website or request a copy of our Overview of Construction Defect Litigation in Colorado.