Regional Transp. Dist. v. Lopez, 95SC46

Decision Date20 May 1996
Docket NumberNo. 95SC46,95SC46
Citation916 P.2d 1187
PartiesREGIONAL TRANSPORTATION DISTRICT, Petitioner, v. Jose LOPEZ, Respondent.
CourtColorado Supreme Court

Rolf G. Asphaug, Denver, for Petitioner.

Glenn F. Younger, Denver, for Respondent.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Timothy R. Arnold, Deputy Attorney General, Civil Litigation Section, Tort Litigation, Denver, for Amicus Curiae the State of Colorado.

Charles H. Richardson, Julia A. Bannon, Aurora, for Amicus Curiae the City of Aurora.

David W. Broadwell, Denver, for Amicus Curiae the Colorado Municipal League.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review Lopez v. Regional Transportation District, 899 P.2d 254 (Colo.App.1994). Jose Lopez brought this action against the Regional Transportation District (RTD) pursuant to the Colorado Government Immunity Act (CGIA), sections 24-10-101 to -120, 10A C.R.S. (1988 & 1992 Supp.). 1 In his complaint, Lopez stated two causes of action against RTD, a negligence claim and a personal injury protection (PIP) claim under the Colorado Auto Accident Reparations Act (No-Fault Act), sections 10-4-701 to -725, 4A C.R.S. (1994 & 1995 Supp.). RTD moved to dismiss Lopez's complaint for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1) on two grounds: (1) that Lopez had not provided timely notice of his negligence claim under sections 24-10-109(1) & (3), 10A C.R.S. (1988 & 1995 Supp.); and (2) that Lopez commenced his PIP claim prematurely in violation of section 24-10-109(6), 10A C.R.S. (1988). 2 The trial court dismissed the action with prejudice for failure to state a claim under the CGIA. 3 The court of appeals reversed, holding that Lopez had provided timely notice of his negligence claim and that his PIP claim should not have been dismissed as prematurely filed. We reverse the court of appeals on Lopez's negligence claim and remand that portion of the case to the court of appeals with instructions to send the case back to the trial court for further fact findings consistent with this opinion. We affirm the court of appeals on other grounds that Lopez's PIP claim should not have been dismissed.


On June 16, 1993, Lopez filed a complaint against RTD in Denver District Court. Lopez sought past and future medical expenses, loss of income, and compensation for pain and suffering for injuries he allegedly sustained on October 14, 1992, when he disembarked from an RTD bus and lost his footing on a slippery substance on the steps of the bus. As a result of the slip, Lopez claimed to have suffered injuries to his head, neck, and back. In addition, Lopez sought compensatory, consequential, and punitive damages for RTD's failure to pay PIP benefits pursuant to the No-Fault Act. Lopez's complaint asserted that he filed timely notices of claim with RTD. Copies of his two notices of claim were attached to the complaint.

Under the CGIA, an individual seeking recourse against a public entity, such as RTD, must notify that entity of any claims against it within 180 days of discovery of the injury. An action cannot be commenced by the claimant until the public entity has denied the claim or until ninety days have elapsed from the filing of the notice. Subsections (1) and (6) of section 24-10-109, 10A C.R.S. (1988 & 1995 Supp.), of the CGIA provide that:

(1) Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred and eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.


(6) No action brought pursuant to this article shall be commenced until after the claimant who has filed timely notice pursuant to subsection (1) of this section has received notice from the public entity that the public entity has denied the claim or until after ninety days has passed following the filing of the notice of claim required by this section, whichever occurs first.

Lopez's first notice, relating to his negligence claim, was sent to RTD by first-class mail on April 12, 1993, 179 days after his accident. RTD did not receive the first notice until April 19, 1993, some seven days after the 180-day notice period had expired under section 24-10-109(1), 10A C.R.S. (1995 Supp.). That notice did not contain a statement of personal service. RTD was notified separately of Lopez's PIP claim on June 11, 1993. 4 The PIP notice did contain a statement of personal service. 5 RTD claims that it had not denied Lopez's PIP claim when Lopez filed his complaint in district court. 6


Lopez contends that his negligence notice was not late under the CGIA for the following reasons: (1) the date of mailing by regular mail is the effective date of notice; and (2) RTD was personally served on April 12, 1993, at 4:58 p.m. RTD contends that regular mail is not a statutorily prescribed method of establishing the effective date of notice. We agree with RTD.


The court of appeals agreed with Lopez that he had timely notified RTD by sending the notice via regular mail before the 180-day period had elapsed. 7 We reverse the court of appeals because the statute clearly and unambiguously sets out that, for purposes of mailing, "notice shall be effective upon mailing by registered mail." § 24-10-109(3), 10A C.R.S. (1988). 8

The court of appeals relied on some of our previous cases in holding that Lopez's negligence notice was timely filed:

The supreme court has declared that the notice of claim required by § 24-10-109(1) is effective upon mailing. Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993). It has also held that, in addition to delivery by registered mail and personal service, the notice may be delivered by regular mail or other methods of service. Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990); see also Blue v. Boss, 781 P.2d 128 (Colo.App.1989); § 24-10-109(3), C.R.S., (1988 Repl.Vol. 10A).

Lopez, 899 P.2d at 256. Thus, the court of appeals concluded that "a properly-addressed notice of claim sent by regular mail within the 180-day time limit is effective upon mailing, even if it is not received by the public entity's governing body or its counsel until after the 180 days have expired." Id. Judge Roy dissented on this portion of the decision. In reaching this conclusion, the court of appeals misinterpreted our decisions and the plain and unambiguous import of section 24-10-109(3).

It is axiomatic that when interpreting a statute, we must effect the goal of the legislature. Dawson v. Reider, 872 P.2d 212, 214 (Colo.1994). Thus, we look initially to the language of the statute for guidance. Jones v. Cox, 828 P.2d 218, 221 (Colo.1992). If the language is plain and unambiguous, our task is accomplished by "giving effect to the commonly accepted meaning of the words appearing" in the statute. Regional Transp. Dist. v. Voss, 890 P.2d 663, 667 (Colo.1995). Here, the statute specifically states that "notice shall be effective upon mailing by registered mail or upon personal service." Although nothing in the statute precludes service by regular mail, the plain terms of the statute do not provide that posting a notice by regular mail is a valid method of establishing the effective date of service. Further, the General Assembly has defined registered mail in section 2-4-401(12), 1B C.R.S. (1980), as including certified mail. By its omission, regular mail is not encompassed within the definition of registered mail. Thus, if the General Assembly intended to include regular mail as a means of fixing the effective date of service under the CGIA, it would have specified regular mail in addition to registered mail in section 24-10-109(3) since the two are by definition distinct mailing methods.

Contrary to Lopez's assertions, this construction is consistent with our previous decisions. In Woodsmall v. Regional Transp. Dist., 800 P.2d 63 (Colo.1990), we considered whether a claimant who files notice within 180 days but fails to specify all of her claims has failed to comply with the jurisdictional requirements set out in section 24-10-109(1). We found that strict compliance with the notice requirements, for content purposes, was not mandated by the General Assembly's revisions to the statutory scheme in 1986. Id. at 68. Instead, we held that the proper standard was substantial compliance. However, we also held that notice need not be effected by registered mail:

Subsection (3) of section 24-10-109 does not state that service by registered mail or personal service is mandatory but only that the notice of claim "shall be effective upon mailing by registered mail or upon personal service." Subsection (3) is intended as a method of conclusively establishing the effective date of service, for purposes of the 180-day requirement, is the date of registered mailing.

Id. at 69 (further stating that "resort to service by regular mail does not carry with it the presumption that service has been effected on the date of mailing"); see also Blue v. Boss, 781 P.2d 128, 130 (Colo.App.1989) ("the purpose of mailing by registered mail is to fix an effective date for the calculation of the 180 days for the filing of the notice"), cert. denied, No. 89SC398 (Colo. Oct. 23, 1989). In effect, we distinguished between the substantial compliance standard applicable to the contents of the notice and the mandatory compliance standard applicable to the 180-day...

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