Grenillo v. Estate of Hansen.
2020 COA 82. No. 18CA2309. Remedial Revival Statute—Unnamed Defendant.
May 21, 2020
Grenillo and the decedent, Hansen, were involved in a car accident in 2014. Grenillo filed a negligence claim naming Hansen as the defendant on August 31, 2017, three days before the applicable three-year statute of limitations was set to expire. After failing to accomplish service of the complaint, Grenillo found out that Hansen had died and sought to serve him by substituted service on his insurer. In January 2018, Hansen’s wife and his insurer filed motions to quash, indicating that Hansen had died on August 15, 2017. Grenillo conceded that the district court lacked personal jurisdiction over Hansen and filed a notice of inability to perfect personal service on the named defendant. The court dismissed the case without prejudice.
Grenillo opened an estate for Hansen and filed a new complaint naming the estate as defendant on May 14, 2018. The new complaint was based on the same allegations as the original complaint. The estate moved to dismiss the complaint as time barred, but Grenillo argued it was timely because it was filed within 90 days after the dismissal of the original suit and therefore met the requirements of the remedial revival statute. The court dismissed the case with prejudice and granted the estate’s motion for attorney fees and costs.
On appeal, Grenillo argued that the remedial revival statute applies to her action against the estate, and the district court’s order dismissing the action was erroneous. The remedial revival statute tolls the running of the applicable statute of limitations in a case where the original action was terminated for lack of jurisdiction or improper venue. Under the plain language of the statute, it does not apply to revive a claim against a defendant who was not a party to the original action. Further, interpreting the remedial revival statute to apply to Grenillo’s suit would create a conflict between that statute and CRS § 15-12-802(2) of the Colorado Probate Code. In this case, the estate of the decedent was not a party to the original action. Accordingly, the remedial revival statute cannot be invoked to toll the running of the limitations period.
Grenillo also argued that because the district court erred in dismissing her complaint, the court also erred in awarding attorney fees and costs to the estate. Because the suit was properly dismissed, the court did not err in awarding the estate fees and costs.
The judgment was affirmed and the case was remanded to the district court to award the estate’s attorney fees and costs incurred in this appeal.