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Shootman v. Department of Transportation11/4/1996
EN BANC
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 "to 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 in
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