Montoya v. Connolly's Towing, Inc.

• Decision Date: 01 May 2008
• Docket Number: No. 07CA0109.,07CA0109.
• Citation: 216 P.3d 98
• Parties: Chris MONTOYA, Plaintiff-Appellant, v. CONNOLLY'S TOWING, INC., a Colorado corporation, Defendant-Appellee.
• Court: Colorado Court of Appeals

216 P.3d 98

Chris MONTOYA, Plaintiff-Appellant, v. CONNOLLY'S TOWING, INC., a Colorado corporation, Defendant-Appellee.

No. 07CA0109.

Colorado Court of Appeals, Div. III.

May 1, 2008.

Eley & Galloway, LLP, Daniel B. Galloway, Denver, Colorado, for Plaintiff-Appellant.

White & Steele, P.C., Brett N. Huff, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge TAUBMAN.

Plaintiff, Chris Montoya, appeals the trial court's summary judgment in favor of defendant, Connolly's Towing, Inc., and its subsequent judgment of dismissal. Additionally, Montoya appeals the trial court's order denying his motion to enforce his acceptance of a statutory offer of settlement. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

On Thursday, July 3, 2003, former defendant, Brian Cecil, was involved in an accident in which his 1967 Mustang was severely damaged. Cecil towed the Mustang to and left it at Connolly's storage lot the same day.

Believing that he did not have insurance to cover the Mustang's damage and he would have to pay for it to be taken to a salvage lot, Cecil returned to Connolly's lot on Sunday, July 6 and replaced the tires on the Mustang with older tires.

Thereafter, Cecil discovered that his insurance would cover the Mustang's damage. An insurance adjuster inspected the car at Connolly's, determined that it was totaled, and paid Cecil approximately $3000 for the vehicle. Klode Salvage, Inc. was hired to tow the Mustang to its lot for crushing.

On August 14, 2003, Montoya, one of Klode's employees, picked up the Mustang to transport it to Klode's lot. Connolly's connected the Mustang to Montoya's tow truck using its forklift. As Montoya towed the Mustang to Klode's lot, the left rear wheel fell off, knocking off the brake drum. When he pulled over to the shoulder and got out of his truck to pick up the pieces, a passing motor vehicle hit the brake drum, which hurtled into Montoya's right leg, shattering it.

Montoya's supervisor, Brian Dendorfer, immediately went to the accident scene to investigate. He discovered that some of the Mustang's lug nuts were missing. Dendorfer called Connolly's and spoke with John Connolly, Connolly's operations manager, inquiring about the missing lug nuts. John Connolly explained that the Mustang belonged to a friend, Cecil.

Thereafter, Montoya sued Cecil and Connolly's, asserting a claim for negligence. Cecil settled with Montoya. On August 1, 2006, Connolly's moved for summary judgment, arguing, inter alia, that it did not owe a duty to Montoya. On September 5, 2006, Montoya filed a response to Connolly's motion and a cross-motion for summary judgment, asserting that Connolly's owed him a duty as a matter of law.

While the motions for summary judgment were pending, Connolly's served Montoya on November 14, 2006 with a statutory offer of settlement. Montoya made a counteroffer the next day, which Connolly's rejected. On November 30, 2006, the trial court granted Connolly's motion for summary judgment and dismissed the case. After reviewing the summary judgment, Montoya attempted to accept Connolly's statutory offer of settlement on November 30.

Disagreeing about whether the acceptance of the statutory offer of settlement was valid, Montoya filed a motion to enforce the acceptance and Connolly's filed a motion for sanctions. The trial court denied Montoya's motion and granted Connolly's motion. This appeal followed.

II. Montoya's Motion to Enforce the Statutory Offer of Settlement

Montoya contends the trial court erred in denying his motion to enforce his acceptance of Connolly's statutory offer of settlement because his acceptance was timely. We are not persuaded.

Initially, we note that Montoya's counteroffer to Connolly's offer of settlement did not preclude the later tender of his acceptance of that offer. In Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 946 (Colo.1993), the supreme court interpreted a previous but similar version of section 13-17-202 and rejected the defendant's argument that the plaintiff's counteroffer operated as a rejection of the offer, cutting short the statutory period for acceptance. The court held that statutory offers of settlement are irrevocable for the statutory period. Id. Consequently, Montoya's counteroffer had no effect upon Connolly's offer of settlement; Connolly's offer was irrevocable during the fourteen-day statutory period for acceptance. This is so even though Montoya tendered his acceptance of the offer of settlement after the trial court's summary judgment. Id.

The interpretation of a settlement agreement, like that of any contract, is a question of law that we review de novo. Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo.App.2007). Furthermore, the interpretation of statutes is a question of law subject to de novo review. McIntire v. Trammell Crow, Inc., 172 P.3d 977, 979 (Colo.App.2007).

Statutory offers of settlement are governed by section 13-17-202, C.R.S.2007. "If an offer of settlement is not accepted in writing within fourteen days after service of the offer, the offer shall be deemed rejected. ..." § 13-17-202(1)(a)(III), C.R.S.2007. Alternatively, "[i]f an offer of settlement is accepted in writing within fourteen days after service of the offer, the offer of settlement shall constitute a binding settlement agreement, fully enforceable by the court in which the civil action is pending." § 13-17-202(1)(a)(IV), C.R.S.2007.

Montoya contends his acceptance of the statutory offer of settlement was timely because Connolly's e-filed the offer of settlement, and, therefore, he was entitled to a three-day extension of time within which to accept the offer pursuant to C.R.C.P. 5, 6(e), 121 § 1-26(6). We disagree.

When construing statutes, our primary duty is to give effect to the intent of the General Assembly, looking first to the statute's plain language. McIntire, 172 P.3d at 979. We give the statute its plain and ordinary meaning whenever possible. Bumbal v. Smith, 165 P.3d 844, 845 (Colo.App. 2007). We interpret procedural rules, like statutes, as a whole and in a manner that gives consistent, harmonious, and sensible effect to each part whenever possible. People in Interest of S.M.A.M.A., 172 P.3d 958, 961 (Colo.App.2007).

C.R.C.P. 121 section 1-26(6) provides that "E-Service shall entitle the party being served [to] an additional 3 days as provided by C.R.C.P. 6(e)." "Unless otherwise specifically ordered, whenever a party must or may act within a prescribed period after service is made under C.R.C.P. 5(b)(2)(B), (C), or (D) [,] three days shall be added after the prescribed period would expire under Section (a) of this Rule." C.R.C.P. 6(e). C.R.C.P. 5(a) requires service of various documents, including an offer of settlement, and C.R.C.P. 5(b)(2)(D) permits service by E-Service.

However, "when a statute sets forth a particular procedure, court-promulgated rules simply do not apply." People in Interest of S.M.A.M.A., 172 P.3d at 961; see also State Bd. of Registration v. Brinker, 948 P.2d 96, 99 (Colo.App.1997) ("when a statute specifically establishes that the filing period begins at the time of mailing and provides that it ends a certain number of days later, the three day `mailing window' of C.R.C.P. 6(e) does not apply"); cf. Indus. Claim Appeals Office v. Zarlingo, 57 P.3d 736, 737-38 (Colo.2002) (when the deadline for filing a notice of appeal is defined by statute and the applicable statute establishes that the time for filing is triggered by the date the order appealed is mailed to the parties, additional three days for mailing inapplicable).

Montoya argues that when these procedural rules are read together, the fourteen-day period for acceptance of a statutory offer of settlement should be extended by three days because Connolly's served him with the offer of settlement via E-Service.

Although Montoya does not cite C.R.C.P. 6(a), C.R.C.P. 6(e) refers to it — "three days shall be added after the prescribed period would expire under Section (a) of this Rule." C.R.C.P. 6(a) provides, in pertinent part, that it applies "[i]n computing any period of time prescribed or allowed by these rules." Therefore, based upon the plain language of C.R.C.P. 6(a) and (e), the three-day extension applies only to periods set forth in the rules. Contrary to Montoya's contention, although C.R.C.P. 5 permits service of an offer of settlement by E-Service, it does not prescribe a period of time for responding to an offer of settlement.

Here, section 13-17-202(1)(a)(III), rather than a rule, establishes the period for accepting an offer of settlement. Thus, the three-day extension of time set forth in C.R.C.P. 6(e) does not apply.

Consequently, we conclude the trial court properly denied Montoya's motion to enforce his acceptance of Connolly's offer of settlement as untimely.

III. Whether Connolly's Owed Montoya a Duty

Montoya next contends the trial court erred when it concluded that Connolly's did not owe him a duty of care. Specifically, he argues the court incorrectly analyzed whether Connolly's owed him a duty based upon bailment law. Montoya further asserts that Connolly's owed him a duty as a matter of law based upon either misfeasance or nonfeasance. We agree.

A. Standard of Review

"Whether a specific defendant owes a duty to a specific plaintiff under the circumstances involved with a tort claim is a question of law we review de novo." Raleigh v. Performance Plumbing & Heating, Inc., 130 P.3d 1011, 1015 (Colo.2006); see also English v. Griffith, 99 P.3d 90, 93 (Colo.App.2004).

Additionally, we review the grant of a summary judgment motion de novo, as it is ultimately a question of law. W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo.2002). In determining whether summary judgment is proper, we give the nonmoving party the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be...