Grogan v. Taylor

• Decision Date: 16 December 1993
• Docket Number: No. 92CA1298,92CA1298
• Citation: 877 P.2d 1374
• Parties: Ronald GROGAN and the State of Colorado, Plaintiffs-Appellants and Cross-Appellees, v. Lorelei A. TAYLOR, d/b/a Rocky Mountain Plateau, Defendant-Appellee and Cross-Appellant. . I
• Court: Colorado Court of Appeals

Page 1374

877 P.2d 1374

Ronald GROGAN and the State of Colorado Plaintiffs-Appellants and Cross-Appellees, v. Lorelei A. TAYLOR, d/b/a Rocky Mountain Plateau Defendant-Appellee and Cross-Appellant.

No. 92CA1298.

Colorado Court of Appeals Div. I.

Dec. 16, 1993.

As Modified on Denial of Rehearing

Feb. 10, 1994.

Certiorari Denied Aug. 8, 1994.

Cross-Petition for Certiorari Granted

Aug. 8, 1994.

LeHouillier & Associates, Patric J. LeHouillier, Joseph R. Winston, Ronald A. Peterson, Colorado Springs, for plaintiffs-appellants and cross-appellees.

Quigley & Bruce, James M. Bruce, Bruce A. Logan, Denver, for defendant-appellee and cross-appellant.

Opinion by Judge ROTHENBERG.

Plaintiffs, Ronald Grogan and the State of Colorado, appeal the judgment entered in favor of defendant, Lorelei A. Taylor, d/b/a Rocky Mountain Plateau, dismissing plaintiffs' claims as barred by the statute of limitations. Defendant cross-appeals the trial court's orders denying her motions for summary judgment and for costs. We reverse and remand for a new trial.

This case involves injuries arising out of a propane gas explosion in a motor home.

On November 6, 1986, Grogan had the gasoline and propane tanks on his motor home filled at a gas station owned by defendant. Later that night, Grogan, who had been sleeping in the motor home, awoke and lit a cigarette. The motor home exploded into flames, and Grogan was seriously injured. Plaintiff State of Colorado paid for the medical expenses Grogan incurred as a result of his injuries.

In late January 1987, Grogan retained attorney Ronald Peterson to investigate any potential claims he might have. Peterson asked Patric LeHouillier to be co-counsel.

Peterson contacted Grogan's insurer, and, in March 1988, Peterson received the investigative reports made by the insurer's fire and explosion expert (Boh). According to those reports, the explosion was caused by the faulty design of the gasoline venting system and was aggravated by the presence of propane.

That same month, Peterson also obtained the investigative report made by the fire chief who had responded to the explosion. According to the fire chief's report, the explosion had been caused by propane.

In March 1988, Grogan's attorneys contacted another explosion expert (Harrison) to determine whether propane was a cause of the fire. In July, that expert told counsel he disagreed with the first expert. He believed propane played a major role in the explosion, but did not know what caused it.

Relying on the first expert's conclusion that the explosion was caused by faulty design of the gasoline venting system, Grogan filed an action on October 28, 1988, in federal district court against the manufacturers of the motor home and the motor home chassis. Those defendants are not involved in this action.

In March 1989, Grogan's attorneys hired another fire and explosions expert (Romig) to examine and determine the cause of the fire. In October, that expert concluded that it was a propane explosion, but he did not know the cause.

In January 1990, Grogan met with Boh and another expert (Romig) to look at a motor home similar to the one that exploded. After looking at the motor home, Grogan told the two experts that on the night of the accident, he had purchased ten gallons of gasoline and ten gallons of propane. Based on Grogan's statement, the experts immediately concluded the explosion was caused by the overfilling of the propane tank, rather than a gasoline related cause.

As a result of the January 1990 information, Grogan dismissed his claim against the chassis manufacturer, and, on August 3, 1990, he amended his federal complaint to add a claim against defendant based upon an alleged negligent overfilling of the propane tank.

In February 1991, the federal action was dismissed because of lack of diversity of citizenship.

On March 6, 1991, Grogan filed this action in state court. In June 1991, the State of Colorado was added as a plaintiff; it merely seeks the medical expenses paid on Grogan's behalf.

In its answer, the defendant asserted the affirmative defense of statute of limitations.

During the discovery phase of the action, defendant sought to depose both of Grogan's attorneys on the statute of limitations issue, more specifically, on the issue of whether the attorneys acted with reasonable diligence on Grogan's behalf between the date of the accident and the date Grogan's claim was filed against defendant. Grogan's objection to the deposing of his attorneys was overruled, and both were deposed and named as defense witnesses for trial.

Thereafter, the statute of limitations issue was bifurcated and tried first. At the jury trial, again over Grogan's objection, the defendant was permitted to call both of Grogan's attorneys as defense witnesses. Both attorneys remained as counsel throughout the trial proceedings and continue to represent Grogan in this appeal.

Following a trial on the bifurcated issue, the jury found that plaintiffs' cause of action had accrued on January 21, 1987, the approximate date when plaintiff had retained attorney Peterson. The trial court, applying a two-year statute of limitations to the jury's finding, ruled that plaintiffs' claims were time-barred. Accordingly, it dismissed plaintiffs' complaint and entered judgment in favor of defendant.

I.

We first address both plaintiffs' claim that the trial court erred in applying a two-year statute of limitations instead of the three-year statute statute of limitations set forth in the Colorado Automobile Accident Reparations Act, § 10-4-701, et seq., C.R.S. (1987 Repl.Vol. 4A) (the No-Fault Act). We disagree with plaintiffs' contention.

Generally, tort actions must be commenced within two years after the cause of action accrues. Section 13-80-102(1)(a), C.R.S. (1987 Repl.Vol. 9A). However, the General Assembly has created an exception for "[a]ll actions under the Colorado Auto Accident Reparations Act"; such actions must be commenced within three years after the cause of action accrues. Section 13-80-101(1)(j), C.R.S. (1987 Repl.Vol. 4A).

Here, the theory of Grogan's lawsuit was that defendant negligently overfilled his propane tank. It did not fall "under" the No-Fault Act because defendant was not an owner, user, or operator of plaintiff's vehicle. Thus, the trial court properly concluded that plaintiffs' action was subject to the two-year statute of limitations governing torts. See Jones v. Cox, 828 P.2d 218 (Colo.1992); Boyer v. Ito Packing Co., 837 P.2d 773 (Colo.App.1992) (plaintiff's action against defendant for negligent packing of the contents of a truck was a tort action to which a two-year statute of limitations applied).

II.

Plaintiffs next claim the trial court improperly instructed the jury on when a cause of action accrues. Again, we disagree.

A cause of action accrues on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence. Section 13-80-108(1), C.R.S. (1987 Repl.Vol. 6A). See Mastro v. Brodie, 682 P.2d 1162, 1168 (Colo.1984) ("[T]he statute of limitations begins to run when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another."). See also Jones v. Cox, supra.

The form of the instructions given at trial is within the discretion of the trial court. Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992). Parties are entitled to an instruction embodying their theory of the case if there is evidence in the record to support it. Carter v. Lovelace, 844 P.2d 1288 (Colo.App.1992).

At trial, the court instructed the jury as follows:

Ronald Grogan's claims against the defendant Lorelei Taylor are deemed to accrue on the date that both his physical injuries and their cause were known or should have been known to him or his attorneys by the exercise of reasonable diligence. However, it is not necessary for the defendant to prove that Ronald Grogan or his attorneys knew the specific acts of the alleged negligence by this defendant or others or that they knew the details of the facts necessary to prove the claims against this defendant or others. It is enough that the plaintiff or his attorneys knew, or may be reasonably charged with knowledge of, sufficient facts to be aware that a claim existed more than two years before it was filed. (emphasis added)

Plaintiffs claim there are two errors in this instruction: (1) the first sentence improperly imputes responsibility to plaintiffs' attorneys; and (2) the rest of the instruction is erroneous in that it should state that accrual occurs when a plaintiff discovered, or should have discovered, that his injuries were caused by defendant.

Here, the first sentence of the instruction tracks the language of § 13-80-108(1). The additional language embodied defendant's theory which was that plaintiff's attorneys did not use reasonable diligence. We perceive no error in that sentence.

Nor do we find error in the last two sentences of the instruction. Although it could have been more specific, it adequately informed the jury the limitations period began to run against this defendant when the plaintiff or his attorneys had reasonable notice that this claim existed, that is, when plaintiff or his attorneys had sufficient facts from which they reasonably could conclude Grogan's injury was caused by the wrongful conduct of another. See Mastro v. Brodie, supra.

III.

The next contention is made only by plaintiff State of Colorado. It asserts that the trial court erred in dismissing its claim based on the statute of limitations defense because the statute does not apply to the State of Colorado. Under these circumstances, we agree.

A statute of limitations does not run against a public entity unless the statute specifically or by necessary implication so provides. Berkeley Metropolitan District v. Poland, 705 P.2d 1004 ...