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Lopez v. Regional Transportation District11/17/1994
In this action to recover damages for personal injuries, plaintiff, Jose Lopez, appeals from the judgment that dismissed with prejudice his complaint against defendant, Regional Transportation District (RTD). We affirm in part, reverse in part, and remand with directions.
The complaint alleged that on October 14, 1992, plaintiff slipped and fell on a slippery substance on the step of an RTD bus as he was attempting to exit. It further alleged that plaintiff injured his head, neck, back, and leg as the result of RTD's negligence and that timely notices of claim had been filed with RTD and its counsel. Attached to the complaint were copies of plaintiff's notices of claim dated April 12, 1993, and June 11, 1993.
The complaint stated two claims for relief. The first claim was for past and future medical expenses, loss of income, and pain and suffering resulting from RTD's negligence. The second claim was for compensatory, consequential, and punitive damages for RTD's alleged failure to pay personal injury protection (PIP) benefits in violation of the Colorado Auto Accident Reparations Act (No-Fault Act).
Pursuant to C.R.C.P. 12(b)(1), RTD filed a motion to dismiss the action for lack of subject matter jurisdiction. As grounds for the motion, it asserted that plaintiff had failed to file timely notice of the claim pursuant to § 24-10-109(1), C.R.S. (1994 Cum. Supp.) and that he had commenced his action prematurely in violation of § 24-10-109(6), C.R.S. (1988 Repl. Vol. 10A). It further argued that punitive damages claims against self-insured public entities were statutorily barred by both the Governmental Immunity Act and the No-Fault Act.
Attached to the brief was an affidavit from RTD's legal administrator stating that plaintiff's notice of claim, postmarked April 12, 1993, was received by RTD's legal department on April 19, 1993.
Plaintiff filed a response to the motion and a request for hearing. In response to defendant's motion, plaintiff's counsel asserted that the claim notice was timely because, in addition to the notice which was mailed on April 12, 1993, a copy was hand- delivered to RTD's office at approximately 4:58 p.m. on April 12, 1993. Plaintiff's counsel further argued that the lawsuit was not commenced prematurely in violation of § 24-10-109(6) because RTD's inconsistent responses to plaintiff's requests for payment constituted a denial of his claim. The response did not address RTD's argument that plaintiff's punitive damages claim was statutorily barred.
RTD's reply asserted that, by failing to submit probative evidence of his allegations along with the response, plaintiff had failed to meet his burden of proving jurisdiction. RTD further argued that, by failing to address the issue in his response, plaintiff had effectively admitted RTD's assertion that the punitive damages claim was statutorily barred.
The trial court granted RTD's motion, dismissed the action with prejudice, and declared its judgment to be final. In so ruling, the court did not specify its basis for dismissal.
Pursuant to C.R.C.P. 60(b)(5), plaintiff filed a motion to reconsider, with affidavits and other supporting exhibits, based upon "newly discovered evidence." RTD filed a responsive brief. The trial court denied plaintiff's motion without elaboration.
I.
In this appeal, plaintiff contends that his claim for punitive damages based upon non-payment of benefits should not have been dismissed because such penalties are authorized under the No-Fault Act. However, RTD asserts that we should af
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