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White v. Progressive Mountain Insurance Company11/21/2002
1985); cf. Academy of Charter Schools v. Adams County School District No. 12, 32 P.3d 456 (Colo. 2001)(where General Assembly intends that an amendment clarifies rather than changes a statute, the amendment may have retroactive affect).
Finally, our conclusion is supported by other Colorado cases that have indicated in dicta that the rehabilitation section limits benefits as to both amount and time. See Sulzer v. Mid-Century Ins. Co., 794 P.2d 1006 (Colo. 1990)(rehabilitation benefits under the rehabilitation section are available for a period of five years and are limited to a total of $50,000); Krieg v. Prudential Property & Casualty Ins. Co., 686 P.2d 1331 (Colo. 1984)(the rehabilitation section provides for minimum personal injury protection benefits for rehabilitative care and treatment up to a fixed dollar amount rendered within five years after the accident); Cingoranelli v. St. Paul Fire & Marine Ins. Co., 658 P.2d 863 (Colo. 1983)(the rehabilitation section provides for rehabilitation benefits up to a fixed dollar amount over a period of five years after the accident).
Plaintiff argues that in Colby v. Progressive Casualty Ins. Co., 908 P.2d 1170 (Colo. App. 1995)(Colby I), aff'd, Colby II, supra, a division of this court previously determined that the rehabilitation section created a rebuttable presumption with respect to time. However, in Colby II the supreme court, while affirming Colby I's holding that the rehabilitation section established a monetary cap, declined to consider the meaning of the phrase "within five years." Moreover, as discussed above, we cannot read the word "presumed" in the rehabilitation section to create a monetary cap in one part of the sentence and to create only a rebuttable presumption as to time in another part of the same sentence. Thus, to the extent Colby I's holding as to the time provision survived the ruling in Colby II, we decline to follow it.
Plaintiff's argument for a rebuttable presumption would be more persuasive if we were writing on a blank slate. However, the interpretation in Colby II and the recent clarifying legislative declaration must inform our interpretation of the statutory language here. Accordingly, we conclude that the rehabilitation section limits rehabilitation benefits to services rendered within five years following the accident, and therefore, the trial court did not err in granting defendant's motion for summary judgment.
II.
Plaintiff contends that even if the rehabilitation section set forth a time limit for rehabilitation benefits, because his need for such benefits was not discoverable until 1999, the time period in which he must make a claim for such benefits was tolled under the doctrine of discovery. However, plaintiff did not make this argument in his response to defendant's motion for summary judgment or at the hearing on the motion. Accordingly, because plaintiff raises this argument for the first time on appeal, we decline to address it. See Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo. App. 2002).
The judgment is affirmed.
JUDGE NEY and JUDGE KAPELKE concur.
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