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Visser v. Mahan3/24/2005
period did not commence until that time. See Finnie v. Jefferson County Sch. Dist. R-1, 79 P.3d 1253 (Colo. 2003); Dickie v. Mabin, 101 P.3d 1126 (Colo. App. 2004) (whether a claimant has satisfied the requirements of ยง 24-10-109(1) is a question that must be resolved by the trial court before trial).
Although defendants contend otherwise, whether the 180-day period was triggered by the appointment of the guardian ad litem on February 10, 2003, or of the husband as special conservator on May 29, 2003, is inconsequential. The April 24, 2003 notice of claim naming defendants was filed within 180 days of both. See Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo. 1996) (claim not barred by premature filing of notice).
III.
Defendants also argue that, because the probate court did not adjudicate plaintiff as incapacitated until July 17, 2003, after the 180-day period had expired, she may not claim that she was incapable of appreciating her injuries for purposes of the 180-day rule. Again, we disagree.
No formal adjudication of incapacity is needed for a trial court to find that the 180-day period had not commenced as a result of a disability. See Bryant v. City of Lafayette, supra, 946 P.2d at 501; Rojhani v. Arenson, supra, 929 P.2d at 26; Cintron v. City of Colorado Springs, supra, 886 P.2d at 295. In re Estate of Gallavan, supra, and James v. Brookhart Lumber Co., supra, relied on by defendants, do not concern the running of the 180-day time period under the GIA and do not hold to the contrary.
As discussed, plaintiff suffered a permanent brain injury as a result of the operation and was severely impaired. Thus, there was ample basis for the trial court's conclusion that plaintiff could not know, or reasonably be expected to know, of her injuries. See Bryant v. City of Lafayette, supra, 946 P.2d at 501.
In view of our disposition, we need not address defendants' other contentions.
The order is affirmed.
JUDGE NIETO and JUDGE HAWTHORNE concur.
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