Visser v. Mahan3/24/2005
a non-claim statute, it is not subject to equitable defenses such as waiver, tolling, or estoppel. Gallagher v. Bd. of Trs., 54 P.3d 386 (Colo. 2002).
The 180-day period is triggered when a claimant has discovered that he or she has been wrongfully injured. See Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993); Grossman v. City & County of Denver, 878 P.2d 125 (Colo. App. 1994) (claim discovered when claimant knew or should have known that the injuries were caused by the tortious act of another).
Thus, when a claimant is rendered unconscious by allegedly tortious conduct, the 180-day notice period does not begin to run until the claimant actually discovers, or should have discovered, the injury. See Bryant v. City of Lafayette, 946 P.2d 499, 501 (Colo. App. 1997) (180-day period did not begin until claimant discovered, eleven days after the accident, that he had been injured).
Similarly, the 180-day period does not begin to run as to a minor child who is incapable of appreciating his or her injury. Nor is a minor child, in such circumstances, charged with the parents' knowledge of the injury. See Cintron v. City of Colorado Springs, 886 P.2d 291, 295 (Colo. App. 1994) ("There is . . . no basis for asserting that a minor must be charged with the parents' failure reasonably to discover the minor's injury or to provide notice thereof on the child's behalf."); see also Rojhani v. Arenson, 929 P.2d 23, 26 (Colo. App. 1996).
II.
It is undisputed that in 1998, before plaintiff and her husband were married, plaintiff executed a nondurable power of attorney in favor of her husband. It is also undisputed that an attorney retained by the husband to act on plaintiff's behalf filed a notice of claim concerning other defendants on September 11, 2002. Based on these facts, defendants contend that even if plaintiff was incapacitated at the time of her surgery, knowledge of her April 17, 2002 injuries was imputed to her, which, in turn, made the April 24, 2003 notice untimely. We disagree.
When a plaintiff is disabled, the 180-day notice period of the GIA begins to run when an individual, with knowledge of the injury that may be imputed to the plaintiff, is appointed to act on the incapacitated claimant's behalf. Antonopoulos v. Town of Telluride, 187 Colo. 392, 399, 532 P.2d 346, 350 (1975) (" he running of the period of limitations against a person under a disability is controlled by the appointment of a 'legal representative'"); Rojhani v. Arenson, supra, 929 P.2d at 26 (where child is not capable of appreciating his injury, 180-day period begins to run when guardian or personal representative is appointed on his or her behalf); Cintron v. City of Colorado Springs, supra, 886 P.2d at 294 (180-day period does not begin to run until appointment of personal representative); Brown v. Teitelbaum, 830 P.2d 1081, 1083-84 (Colo. App. 1991) (minor's notice untimely where filed more than 180 days after appointment of a legal representative).
Such an individual must have the duty to protect the interests of the disabled plaintiff, such as a court-appointed legal representative, guardian, or conservator or an agent designated under a power of attorney. See ยง 15-14-102(6), C.R.S. 2004 (defining "legal representative" for purposes of Colorado Uniform Guardianship and Protective Proceedings Act); see also In re Trust of Franzen, 955 P.2d 1018 (Colo. 1998) (generally, a power of attorney enables an agent to perform certain acts on the principal's behalf).
Here, however, no legal representative was appointed for plaintiff until, at the earliest, February 10, 2003. Furthermore, there was no agency relationshi
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