Nicola v. Grand Junction.
2023 COA 111. No. 22CA0656. Wrongful Death—Death of Person Under Disability—Survival Claims—One Civil Action Rule—Limitation on Damages.
November 22, 2023
In November 2018, Nicola’s daughter Danielle was struck by a vehicle while crossing an intersection when the streetlights allegedly were not working. Danielle died from her injuries, and no conservator, guardian, or legal representative was appointed for her before her death. In May 2019, Nicola filed a lawsuit alleging two wrongful death claims against the driver of the vehicle that hit Danielle. In March 2020, Nicola settled that lawsuit and filed a notice of voluntary dismissal under CRCP 41(a)(1). In December 2020, Nicola filed a second lawsuit against Public Service Company of Colorado, d/b/a Xcel Energy (Xcel Energy), and the City of Grand Junction (Grand Junction), asserting wrongful death claims and survival claims for negligence and premises liability. Xcel Energy and Grand Junction moved to dismiss under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted, arguing that the wrongful death claims were precluded under the Wrongful Death Act’s “one civil action” rule in CRS § 13-21-203(1)(a); and that the survival claims were barred by either a one-year statute of limitations under CRS § 13-81-103(1)(b), or a two-year statute of limitations under CRS § 13-80- 102(1)(h). The district court granted the motions to dismiss, concluding that the Wrongful Death Act barred Nicola’s second suit. Nicola filed a CRCP 59 motion to amend the judgment. The court acknowledged that it had erred by dismissing Nicola’s survival claims under the Wrongful Death Act but nonetheless concluded that the survival claims were untimely under CRS §§ 13-81-103(1)(b) and 13-80-102(1)(h), and it dismissed Nicola’s complaint.
On appeal, Nicola contended that the district court erred by concluding that his wrongful death claims against Xcel Energy and Grand Junction are barred by the “one civil action” rule because (1) his first lawsuit was not a “civil action” barring a second suit, since he voluntarily dismissed it without prejudice; and (2) his settlement with the vehicle driver should not bar him from bringing a second suit against other, non-settling parties. As relevant here, the Wrongful Death Act states that only one civil action may be brought to recover damages for the wrongful death of any one decedent. Therefore, the statute’s plain language bars a second civil action for wrongful death based on the same decedent’s death. Here, it is undisputed that Nicola filed and voluntarily dismissed a prior lawsuit asserting wrongful death claims against the vehicle driver. After the lawsuit was dismissed, Nicola recovered damages from the driver. Thus, Nicola’s first lawsuit against the driver was a “civil action” barring subsequent wrongful death claims for Danielle’s death. Further, Nicola was aware of possible claims against Xcel Energy and Grand Junction because he served Grand Junction with a notice of intent to file a lawsuit for failure to maintain the streetlights while his first lawsuit was pending. Accordingly, the district court correctly concluded that CRS § 13-21-203(1)(a) bars the wrongful death claims asserted in Nicola’s second lawsuit against Xcel Energy and Grand Junction.
Nicola also argued that the district court erred by concluding that his survival claims are time-barred under CRS § 13-81-103(1)(b). Section 13-81-103(1)(b) applies only when a person who was under a disability at the time of their death (1) had a legal representative and (2) died after the expiration of the applicable statute of limitations but less than two years after the legal representative was appointed. It is undisputed that, because of her injuries, Danielle was a “person under disability” from the date of the accident until the date of her death. Here, Danielle did not have a legal representative and did not die after the expiration of the applicable statute of limitations, so that section does not bar Nicola’s survival claims. Nicola filed his complaint within the applicable statute of limitations, so the district court erred by concluding that his survival claims were untimely.
The part of the district court’s judgment dismissing Nicola’s wrongful death claims was affirmed. The part of the judgment dismissing Nicola’s negligence and premises liability survival claims was reversed, and the case was remanded for further proceedings on those claims.