Hoary v. Lowe
| Decision Date | 29 January 1987 |
| Docket Number | No. 85CA0877,85CA0877 |
| Citation | 734 P.2d 154 |
| Parties | James Kevin HOARY, Plaintiff-Appellant, v. Thomas G. LOWE, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Kevin Z. Shine, P.C., Kevin Z. Shine, Denver, Law Offices of James R. Vassilos, James R. Vassilos, Chicago, Ill., for plaintiff-appellant.
Dickinson, Herrick-Stare & Hibschweiler, P.C., Gilbert A. Dickinson, Denver, for defendant-appellee.
The plaintiff, James Kevin Hoary, sued the defendant, Thomas G. Lowe, for medical malpractice. The trial court granted defendant's motion for summary judgment on the grounds that reasonable persons could not differ regarding the facts which govern application of the two-year statute of limitations then in effect, Colo.Sess.Laws 1977, ch. 198, § 1, § 13-80-105(1) at 816. Plaintiff appeals contending that the two-year statute should not have been applied. We do not address this contention, but hold that the three-year repose provision of the above statute of limitations, which was then in effect, does bar his claim. We therefore affirm.
Plaintiff sustained injuries in an automobile accident in October of 1980, as a consequence of which the defendant performed surgery on him. Rods were inserted in the plaintiff's back in the course of this operation. A year later, plaintiff noted a deformity in his back and consulted with other physicians who told him, in late November 1981, that the rods had broken and should be removed. Surgery was performed to remove them in January of 1982. Plaintiff first consulted an attorney regarding this case in March of 1982, but suit was not filed until January 5, 1984.
Plaintiff asserts that the record does not support the trial court's conclusion that no genuine issue of fact existed regarding when the plaintiff knew or should have known the cause of his injuries, so as to begin the two-year statute of limitations running. See Mastro v. Brodie, 682 P.2d 1162 (Colo.1984). Assuming without deciding the correctness of that assertion, we agree with the defendant's contention urged in the summary judgment motion that the date plaintiff knew or should have known the cause of his injuries is irrelevant because the action is barred by the three-year repose provision of the statute in effect at the time plaintiff's action was filed.
Colo.Sess.Laws 1977, ch. 198 § 1, § 13-80-105(1) provides:
Concluding that it was unconstitutional to grant an exception to "knowing concealment" and "foreign object" claimants, but not to those who based their claim on negligent misdiagnosis, the supreme court adopted an additional exception to the statute of repose in Austin v. Litvak, 682 P.2d 41 (Colo.1984).
The essence of plai...
To continue reading
Request your trial
-
Anderson v. M.W. Kellogg Co., 86SA447
...(Colo.1987) (summary judgment of product liability action upheld because applicable statute of limitations had run); Hoary v. Lowe, 734 P.2d 154, 155 (Colo.Ct.App.1987) (facts of case did not fit statutory exception to statute of repose and thus summary judgment was appropriate). With these......
-
Olson v. State Farm Mut. Auto. Ins. Co.
...genuine issues of fact. Ginter v. Palmer & Co., 196 Colo. 203, 206-07, 585 P.2d 583, 585 (1978); Walter, 983 P.2d at 90; Hoary v. Lowe, 734 P.2d 154, 155 (Colo.App.1987). Here, the insured has not presented evidence showing the insurance company had a history of disclosing filing deadlines ......
-
Smith v. Boyett
...evidence to support it. Fritz v. Regents of the Univ. of Colo., 196 Colo. 335, 339-40, 586 P.2d 23, 26 (1978); see also Hoary v. Lowe, 734 P.2d 154, 155 (Colo.App.1987) (holding that once the defendant invoked section 13-80-105 as a defense, the burden shifted to the plaintiff to come forwa......