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De Avila v. Estate of DeHerrera3/13/2003
laim against the estate there. The court reasoned that " he General Assembly's use of the term `barred' indicates its intent to render concepts of waiver or tolling, which are applicable to statutes of limitations, generally inapplicable to section 15-12-803(1)." In re Estate of Ongaro, supra, 998 P.2d at 1102 (emphasis added). It also held that, unlike a statute of limitations, the non-claim statute "generally cannot be waived or tolled." In re Estate of Ongaro, supra, 998 P.2d at 1104 (emphasis added). Contrary to defendant's argument here, the supreme court did not conclude that the statute was an absolute bar.
Plaintiff argues that the court should apply the time bar created by § 15-12-803 only when addressing the merits of the late-filed claim would delay the settlement of the estate and distribution of assets. And plaintiff asserts that there was no evidence of any delay of the settlement and distribution. We agree there was no evidence of delay.
The Ongaro court, in concluding that the plaintiff's claim was barred, noted that the rationale behind not permitting an estate's personal representative to waive the time requirement is "that the personal representative is a trustee of the estate for the benefit of its creditors and heirs, and as such cannot by his conduct waive any provision of a statute affecting their substantial rights." In re Estate of Ongaro, supra, 998 P.2d at 1104 (quoting Crowley v. Farmers State Bank, 109 Colo. 146, 152, 123 P.2d 407, 409 (1942)). " courts generally have refused to toll the . . . non-claim period in order to `expedite the orderly and exact settlement of estates of decedents.'" In re Estate of Ongaro, supra, 998 P.2d at 1104 (quoting In re Estate of Randall, supra, 166 Colo. at 7, 441 P.2d at 155)(emphasis added). It further noted that " ur cases consistently have recognized the policy in favor of dismissing untimely claims brought against an estate where addressing the merits of the claims would delay the settlement of the estate and the distribution of assets to the estate's devisees, legatees, and other claimants." In re Estate of Ongaro, supra, 998 P.2d at 1104.
The supreme court went on to reason that in Ongaro, where the personal representative had been appointed within two weeks of the decedent's death and the record reflected probate court proceedings, allowing the plaintiff to go forward would impair the speedy and efficient settlement of the estate. See In re Estate of Ongaro, supra, aff'g 973 P.2d 660 (Colo. App. 1998).
Relying on In re Estate of Ongaro, plaintiff argues that the language in that opinion implies that under some circumstances the court could address the merits of an untimely claim. We agree.
Here, plaintiff filed his complaint in this personal injury action almost three years after decedent's death. However, decedent's personal representative was not appointed until after plaintiff had petitioned to be named personal representative, nearly two years after decedent's death. During this time, plaintiff was negotiating with decedent's insurance company to settle his claims. Therefore, reliance on the policy favoring dismissal over delay is unavailing here, and § 15-12-803 does not necessarily bar plaintiff's untimely complaint or the ensuing original judgment.
Here, because defendant did not file a timely appeal of the trial court's automatic denial under C.R.C.P. 59(j) and did not allege extraordinary circumstances that would justify relief under C.R.C.P. 60(b)(5), and because § 15-12-803 does not create an absolute bar making the original judgment void under C.R.C.P. 60(b)(3), we conclude the trial court erred in amending the judgment.
IV.
In vie
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