Shootman v. Department of Transp., 95SC84

• Decision Date: 04 November 1996
• Docket Number: No. 95SC84,95SC84
• Parties: Kenneth SHOOTMAN, individually and as an agent of Power Motive Corporation, and Power Motive Corporation, Petitioners, v. DEPARTMENT OF TRANSPORTATION, State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1200

926 P.2d 1200

Kenneth SHOOTMAN, individually and as an agent of Power Motive Corporation, and Power Motive Corporation Petitioners, v. DEPARTMENT OF TRANSPORTATION, State of Colorado, Respondent.

No. 95SC84.

Supreme Court of Colorado En Banc.

Nov. 4, 1996.

Rehearing Denied Dec. 9, 1996.

The Law Firm of Mike Hilgers, Mike Hilgers, Wheat Ridge, for Petitioners.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General Garth C. Lucero, Deputy Attorney General, Charlotte R. Robinson, First Assistant Attorney General, Michael E. King, Assistant Attorney General, Civil Litigation Section, Denver, for Respondent.

Justice LOHR delivered the Opinion of the Court.

The issue in this case is whether the State of Colorado (State) is exempt from statutes of limitation under the doctrine of nullum tempus occurrit regi (time does not run against the king). The State brought an action against the driver and the owner of a truck to recover for damage the truck caused to a highway tunnel wall. The trial court granted the State's motion for summary judgment based on the defendants' admission of negligence, notwithstanding that the statute of limitation for tort actions had run before the State brought suit. The trial court held that the State's action was not time-barred because the State is not subject to statutes of limitation under the nullum tempus occurrit regi doctrine. The Colorado Court of Appeals affirmed the trial court. Department of Transp. v. Shootman, No. 94CA0809, slip op. at 1-2 (Colo.App. Dec. 15, 1994). We granted certiorari and now reverse the judgment of the court of appeals with directions to reverse the trial court's judgment and remand for additional proceedings consistent with this opinion.

I.

There is no dispute as to the material facts. On March 14, 1991, Kenneth Shootman was driving a tractor/trailer owned by Power Motive Corporation (Power Motive) and transporting an oversized load when the vehicle struck one of the walls in the south bore of the Eisenhower-Johnson Memorial Tunnel (Tunnel). The accident damaged five wall-tile panels in the Tunnel.

Power Motive's insurer wrote the Department's masonry contractor on August 29, 1991, and noted that the insurer would pay $28,000 as the agreed amount for repair of the Tunnel. Thereafter, an attorney for Shootman and Power Motive, William H. Short, transmitted a proposed release agreement to the Colorado Department of Transportation (Department) by a letter dated April 7, 1992, based on his understanding of a negotiated settlement involving a liability release by the Department in exchange for a $28,000 payment. Short sent a follow-up letter, along with a copy of the proposed release agreement, to the Department on May 13, 1992. On August 17, 1992, Short sent the Department a letter requesting a progress report and indicating that he wished to close the matter. Short then sent another letter to the Department on September 15, 1992, noting that "[t]o date, I have heard nothing from you," and requesting a status report "so that we may move this matter towards conclusion." On October 7, 1992, Short wrote the Department again after learning that the costs of repair were mounting because of the Department's delay and reconsideration of the method of repair. In that letter, Short expressed the view that the Department should absorb any such increased costs, and reminded the Department that "my client has been ready, willing and able to settle for several months now, awaiting only your preparation or approval of a Release." The Department billed Power Motive's insurer for $28,000 on January 22, 1993, and Short wrote the Department on February 12, 1993, indicating that Power Motive's insurer would pay the $28,000 "in exchange for a fully executed release." Short included with the offer a copy of the release agreement that he first mailed to the Department on April 7, 1992. The parties did not communicate again until after the two-year statute of limitation for tort actions set forth in section 13-80-102(1)(a), 6A C.R.S. (1987), had expired.

After these extensive negotiations did not lead to an executed settlement, the Department brought suit against Shootman and Power Motive in Summit County District Court on April 30, 1993. The complaint contained four claims for relief: (1) a general negligence claim; (2) a claim for liability involving operation of a permitted oversize-load vehicle pursuant to section 42-4-411, 17 C.R.S. (1984); (3) a Colorado Auto Accident Reparations Act claim pursuant to section 10-4-701, 4A C.R.S. (1973); and (4) a liquidated debt claim. The Department sought approximately $28,000 in damages plus interest.

Shootman and Power Motive answered, admitting negligence but asserting that the State's claims were barred either by the two-year statute of limitation for tort actions in section 13-80-102(1)(a), 6A C.R.S. (1987), or by the doctrine of laches. Shootman and Power Motive also contended that the Department's second, third, and fourth claims for relief either failed to state a claim or were subsumed in the negligence claim. Both the Department and the defendants moved for summary judgment. The Department argued that the doctrine of nullum tempus occurrit regi (nullum tempus ) precluded application of the statute of limitation to the State, and that Shootman and Power Motive had already admitted negligence. In the alternative, the Department asserted that its Colorado Auto Accident Reparations Act claim was subject to a longer three-year statute of limitation, § 13-80-101(1)(j), 6A C.R.S. (1987), so that even if applicable to the State, the two-year statute of limitation did not bar the Colorado Auto Accident Reparations Act claim. Finally, the Department advanced a second alternative argument that a genuine issue of material fact existed concerning whether Shootman and Power Motive were estopped from asserting the statute of limitation defense because of alleged settlement representations.

The trial court did not address the Department's two alternative arguments. Instead, the court held that the State was not subject to statutes of limitation pursuant to the nullum tempus doctrine. The trial court therefore entered summary judgment in favor of the Department on its first, second, and third claims, and the Colorado Court of Appeals affirmed. Shootman, slip op. at 1-2. We granted certiorari to review the court of appeals' judgment. ¹

II.

Shootman and Power Motive maintain that the State's action is barred by the statute of limitation set forth in section 13-80-102(1)(a), which establishes the period within which tort actions must be brought:

(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter:

(a) Tort actions, including but not limited to actions for negligence....

§ 13-80-102(1)(a), 6A C.R.S. (1987). In response, the State asserts an exemption from all statutes of limitation pursuant to the doctrine of nullum tempus. The trial court and the court of appeals agreed with the State, and based their judgments on the nullum tempus doctrine. The dispositive issue in this case for the purpose of certiorari review, therefore, is the continued vitality of the nullum tempus doctrine in Colorado.

As we noted in Colorado Springs v. Timberlane Associates, 824 P.2d 776, 777 (Colo.1992), "[t]he origin of governmental immunity from statutes of limitations is found in the English common law rule of 'nullum tempus occurrit regi,' or, 'time does not run against the king.' " Under the nullum tempus rule, "no statute of limitations has been held to apply to actions brought by the crown, unless there has been an express provision including it." United States v. Hoar, 26 F. Cas. 329, 329 (C.C.D.Mass.1821) (No. 15,373); accord, e.g., United States v. Thompson, 98 U.S. 486, 489-90, 25 L.Ed. 194 (1878). "The nullum tempus doctrine was imported to the colonies as an incident of sovereignty when the colonies achieved their independence." Timberlane, 824 P.2d at 778; accord, e.g., Thompson, 98 U.S. at 487-88, 25 L.Ed. 194. In the states that continue to follow the nullum tempus doctrine, "when filing lawsuits in the posture of plaintiffs, [the states] are immune from statutes of limitations except where their respective legislatures have decided otherwise." Timberlane, 824 P.2d at 778.

Although the rule of nullum tempus may have had its roots in the prerogative of the crown, "the source of its continuing vitality where the royal privilege no longer exists is to be found in the public policy underlying the rule." Guaranty Trust Co. v. United States, 304 U.S. 126, 132, 58 S.Ct. 785, 788, 82 L.Ed. 1224 (1938). That public policy was expressed by Justice Story in 1821 as the "great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers." Hoar, 26 F. Cas. at 329. This is the policy basis that courts have relied upon to apply the rule in more modern times. E.g., Guaranty Trust, 304 U.S. at 132, 58 S.Ct. at 788-89 (quoting above passage from Hoar, 26 F. Cas. at 329); Timberlane 824 P.2d at 778 (same).

In our earliest pronouncement on the subject, we indicated agreement with the doctrine of nullum tempus by stating that "[s]tatutes of limitation ordinarily do not apply to the State, but the legislature may make them applicable to the State if it sees fit to do so." Dietemann v. People, 76 Colo. 378, 383, 232 P. 676, 678 (1924). We expressly approved this language from Dietemann and applied the nullum tempus doctrine in People v. Miller, 90 Colo. 269, 270-71, 8 P.2d 269, 270 (1932) (claim by State to recover gasoline excise tax). We reaffirmed the doctrine in State v. Griffith's Estate, 130 Colo. 312, 316-17, 275 P.2d 945, 948 (1954) (claim by...