2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 80 - Limitations- Personal Actions
§ 13-80-108. When a Cause of Action Accrues

1. Except as provided in subsection (12) of this section, a cause of action for injury to person, property, reputation, possession, relationship, or status shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.
2. A cause of action for wrongful death shall be considered to accrue on the date of death.
3. A cause of action for fraud, misrepresentation, concealment, or deceit shall be considered to accrue on the date such fraud, misrepresentation, concealment, or deceit is discovered or should have been discovered by the exercise of reasonable diligence.
4. A cause of action for debt, obligation, money owed, or performance shall be considered to accrue on the date such debt, obligation, money owed, or performance becomes due.
5. A cause of action for balance due on an open account for goods or services shall accrue at the time of the last item of goods or services proved in such account.
6. A cause of action for breach of any express or implied contract, agreement, warranty, or trust shall be considered to accrue on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence.
7. A cause of action for wrongful possession of personal property, goods, or chattels shall accrue at the time the wrongful possession is discovered or should have been discovered by the exercise of reasonable diligence.
8. A cause of action for losses or damages not otherwise enumerated in this article shall be deemed to accrue when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.
9. A cause of action for penalties shall be deemed to accrue when the determination of overpayment or delinquency for which such penalties are assessed is no longer subject to appeal.
10. A cause of action for recovery of erroneous or excessive refunds of any tax administered under section 39-21-102, C.R.S., shall accrue on the date the department of revenue issues said refund.
11. A cause of action for a penalty for commission of a class A or a class B traffic infraction, as defined in section 42-4-1701, C.R.S., shall be deemed to accrue on the date the traffic infraction was committed.
12. A cause of action for bodily injury or property damage arising out of the use or operation of a motor vehicle accrues on the date that both the existence of the injury or damage and the cause of the injury or damage are known or should have been known by the exercise of reasonable diligence.
13. A cause of action by the public employees' retirement association against an employer for unpaid contributions shall accrue on the date the nonpayment of contributions is discovered or should have been discovered by the exercise of reasonable diligence. This subsection (13) shall apply to causes of action as provided in section 24-51-402 (2), C.R.S.

History. Source: L. 86: Entire article R&RE, p. 699, § 1, effective July 1. L. 87: (10) added, p. 568, § 6, effective July 1; (11) added, p. 1495, § 3, effective July 1. L. 94: (1) amended and (12) added, p. 2826, § 4, effective July 1; (11) amended, p. 2550, § 35, effective January 1, 1995. L. 95: (13) added, p. 562, § 21, effective May 22.

Analysis

• I. GENERAL CONSIDERATION.
• II. FRAUD, MISREPRESENTATION.
• III. DEBT, OBLIGATION.
• IV. BALANCE DUE ON OPEN ACCOUNT.
• V. BREACH OF CONTRACT, AGREEMENT.
• VI. WRONGFUL POSSESSION OF PERSONAL PROPERTY, GOODS.
• VII. INJURIES.
  • A. In General.
  • B. Discovery.
  • C. Fraudulent Concealment.

• VIII. TOLLING OF STATUTE OF LIMITATIONS.
• IX. FORMER STATUTE OF REPOSE.

Law reviews. For note, “Restore Colorado's Repair Doctrine for Construction-Defect Claims”, see 83 U. Colo. L. Rev. 875 (2012).

Substitution of parties is not new cause of action. The substitution of an insurer for an insured as party plaintiff does not constitute the filing of a new cause of action, and the substituted party benefits from the filing date of the original complaint and is not barred by the statute of limitations of the original complaint was timely filed. Travelers Ins. Co. v. Gasper, 630 P.2d 97 (Colo. App. 1981).

A “cause of action” “accrues” based upon the happening of certain extrajudicial events. Ortivez v. Davis, 902 P.2d 905 (Colo. App. 1995).

Severing bad faith tort claims from an administrative proceeding is consistent with the statutory definition of accrual in subsection Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

Critical inquiry of when an action accrues is knowledge of facts essential to the cause of action, not knowledge of the legal theory upon which the action may be brought. Morris v. Geer, 720 P.2d 994 (Colo. App. 1986); Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995); Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489 (Colo. App. 2008).

Inquiry notice does not trigger the discovery rule, and suspicion of a possible connection does not necessarily put a reasonable person on notice of the nature, extent, and cause of an injury. Salazar v. Am. Sterlizer Co., 5 P.3d 357 (Colo. App. 2000).

This section applies in determining when a cause of action “accrues” in an action for sexual assault on a child. Sailsbery v. Parks, 983 P.2d 137 (Colo. App. 1999).

Section 13-80-103.7 does not purport to define when an action for sexual assault on a child “accrues”, but rather establishes the six-year limitation period and provides that the period runs from accrual or from the date of removal of disability. Sailsbery v. Parks, 983 P.2d 137 (Colo. App. 1999).

Trial court erred in granting summary judgment where a genuine issue of material fact as to when plaintiff knew or should have known of her injuries and their cause remained. Sailsbery v. Parks, 983 P.2d 137 (Colo. App. 1999).

When the statutory scheme of this article is considered as a whole, it manifests a clear intent to prescribe a six-year limitation period for actions to recover a determinable amount of money owed, whether by contractual agreement or not, which, under subsection (4), accrues on the date the debt becomes due. By contrast, all other actions for breach of contract are subject to a three-year limitation period which, under subsection (6), does not accrue until the breach is, or reasonably should have been, discovered. To the extent these two provisions are not reconcilable by construing the scheme as a whole, subsection (4) as the more specific of the two prevails. BP Am. Prod. Co. v. Patterson, 185 P.3d 811 (Colo. 2008).

Annotator's note. Relevant cases construing the accrual of causes of action under former § 13-80-109 as it existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to subsection (3).

The three-year statute of limitations begins to run when the defrauded person has knowledge of facts which, in the exercise of proper prudence and diligence, would enable him to discover the fraud perpetuated against him. Norton v. Leadville Corp., 43 Colo. App. 527, 610 P.2d 1348 (1979); Morgan v. Dain Bosworth, 545 F. Supp. 953 (D. Colo. 1982 ).

The limitations period in this section begins to run when the aggrieved party discovers, or should have discovered by the exercise of reasonable diligence, the facts constituting the fraud. Laymon v. McComb, 524 F. Supp. 1091 (D. Colo. 1981 ); Polk v. Hergert Land & Cattle Co., 5 P.3d 402 (Colo. App. 2000).

The limitations period is tolled until the aggrieved party learns of the fraud or should have discovered it by the exercise of reasonable diligence. Hackbart v. Holmes, 675 F.2d 1114 (10th Cir. 1982); Noland v. Gurley, 566 F. Supp. 210 (D. Colo. 1983 ).

Allegations of wrongdoing constituted material facts regarding when statute begins to run. Where the plaintiff's affidavit alleges that the defendant made misleading and deceptive statements which allayed any suspicions that the plaintiffs might have had about possible securities law violations, and that the defendant's opposition to the plaintiffs' attempts to conduct discovery to determine the defendant's true financial status prevented discovery of the alleged wrongdoing until 1978, these allegations, if true, constitute material facts regarding when the statute of limitations began to run with respect to the plaintiffs' claims under section 17 of the Securities Act of 1933 and common-law fraud. Norton v. Leadville Corp., 43 Colo. App. 527, 610 P.2d 1348 (1979).

Bad faith tort claims are distinct and separate actions available to workers' compensation claimants in addition to remedies under the Workers' Compensation Act, and the resolution of bad faith tort claims is independent from the resolution of workers' compensation claims. There is no requirement under this section that any element of a workers' compensation claimant's bad faith tort claim be acknowledged or affirmed by an administrative body or other authority before a bad faith tort claim can be pursued. Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

Subsection (3) is inactive until discovery of the fraud. Hunter v. Williams, 96 Colo. 435 , 44 P.2d 509 (1935); Miller v. Goff, 100 Colo. 545 , 68 P.2d 915 (1937).

Where one is kept in ignorance, by false statements of another, of the true situation concerning a claim which he is entitled to assert against him, the statute of limitations does not begin to run against the deceived party and in favor of the wrongdoer until the former has discovered the truth. Alfred v. Esser, 91 Colo. 466 , 15 P.2d 714 (1932); Rogers v. Rogers, 96 Colo. 473 , 44 P.2d 909 (1935).

The statute of limitations begins to run when the defrauded person has knowledge of facts which in the exercise of proper prudence and diligence would enable him to discover the fraud perpetrated against him. Greco v. Pullara, 166 Colo. 465 , 444 P.2d 383 (1968); Herald Co. v. Seawell, 472 F.2d 1081 (10th Cir. 1972); Hansen v. Lederman, 759 P.2d 810 (Colo. App. 1988); In re Munoz, 111 B.R. 928 (Bankr. D. Colo. 1990 ); Chidester v. E. Gas & Fuel Assoc., 859 P.2d 222 (Colo. App. 1992); First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993); In re Walden, 207 B.R. 1 (Bankr. D. Colo. 1997 ).

This statute bars a suit three years after knowledge of facts which would awaken a person of ordinary prudence to an inquiry, which, if pursued with reasonable diligence, would lead to a discovery of the facts constituting the fraud as effectually as it limits suits commenced three years after the discovery of the facts constituting the fraud. Swift v. Smith, 79 F. 709 (8th Cir. 1897); Redd v. Brun, 157 F. 190 (8th Cir. 1907).

The possession of means of detecting fraud is same as knowledge. Courts of equity will not interfere if a party slumbers on his rights or the means of detecting fraud. The full possession of the means of detecting a fraud is the same as knowledge. Pipe v. Smith, 5 Colo. 146 (1879); Bowman v. May, 102 Colo. 417 , 80 P.2d 327 (1938); Wright v. Nelson, 125 Colo. 217 , 242 P.2d 243 (1952).

Where misrepresentations known three years before suit action is barred. Action to rescind contract for the purchase of corporate stock procured by false representations held barred by this section, where all the actionable misrepresentations were known to plaintiff more than three years prior to the commencement of his action. Morgan v. King, 27 Colo. 539 , 63 P. 416 (1900); Donovan v. Nat'l Glass Casket Co., 75 Colo. 262 , 226 P. 295 (1924); Williams v. Williams, 83 Colo. 180 , 263 P. 725 (1927).

Jury must find fraud could not have been discovered within three years. The jury was properly instructed on the requisites for proving fraud, and, if proved, on the necessity of finding that it could not with reasonable diligence have been discovered prior to three years before suit was commenced. Knisley v. Parsons, 172 Colo. 533 , 474 P.2d 599 (1970).

Statute does not begin to run until cause of action has accrued. Under this section requiring bills for relief on the grounds of fraud, to be filed within three years after the discovery of the fraud the statute of limitations does not begin to run until the cause of action has accrued, although the party applying for relief may have discovered the fraud before the time the cause of action accrued. Rose v. Dunklee, 12 Colo. App. 403, 56 P. 342 (1899); Arnett v. Berg, 18 Colo. App. 341, 71 P. 636 (1903).

When an action is not a new action but is merely an amendment to an earlier complaint, it relates back to the original complaint. Platte Valley Motor Co. v. Wagner, 130 Colo. 365 , 278 P.2d 870 (1954).

Recording of a deed is constructive notice only to persons claiming under same grantor and same chain of title. The recording of a voluntary conveyance is not constructive notice to creditors of the voluntary character of the instrument, or of the insolvency of the grantor, so as to start the statute of limitations against an action to set aside the conveyance as in fraud of creditors. Rose v. Dunklee, 12 Colo. App. 403, 56 P. 342 (1899); Greco v. Pullara, 166 Colo. 465 , 444 P.2d 383 (1968).

For stockholders not having knowledge of fraudulent stock transfer, see Irvin v. W. End Dev. Co., 342 F. Supp. 687 (D. Colo. 1972 ).

Runs from time stockholders knew of stock trust violation. Where the actual sale of stock was concealed from the stockholders until 1965, but the stockholders when they learned of the sale of stock had no reason to object because they were unaware of the restriction on its sale, and they had no knowledge of the restriction until they received copies of the articles of incorporation in 1970, the statute of limitations could not begin to run until the appellees knew in 1970 of the trust which was violated. Irwin v. W. End Dev. Co., 481 F.2d 34 (10th Cir. 1973), cert. denied, 414 U.S. 1158, 94 S. Ct. 915, 34 L. Ed. 2d 110 (1974).

Whether a claim is barred by the statute of limitations is normally a jury fact question, but if the complaint shows the action was brought after the statute of limitations period and the defendant has pled the statute of limitations, the plaintiff has the burden to show tolling of the statute of limitations. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993).

A presumption exists that a corporation has knowledge of the content of its files and records, and the presumption may be the basis of a judgment unless contrary evidence exists. First Interstate Bank v. Berenbaum, 872 P.2d 1297 (Colo. App. 1993).

In dispute between mother and daughter over mother's acquisition of winning lottery ticket, despite fact that money obligation was paid in installments, there was no breach of an agreement that one party would make installment payments to another, thus three-year statute of limitations from date that daughter discovered or should have discovered the injury applied. Curtis v. Counce, 32 P.3d 585 (Colo. App. 2001).

Plaintiff's fraud claims were time-barred. Because conservation deed, which was in plaintiff's chain of title at time of purchase, does not permit open and unfettered access to subject property, it gave actual or constructive notice that defendant's representation was false. As such, statute of limitations ran against plaintiffs before they commenced action. Bolinger v. Neal, 259 P.3d 1259 (Colo. App. 2010).

Annotator's note. Relevant cases construing the accrual of causes of action under former § 13-80-110 as it existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to subsection (4).

Cause of action against stockholders for unpaid balance of stock arose when assessment was made and statute began to run then. Felker v. Sullivan, 34 Colo. 212 , 83 P. 213 (1905); Sweet v. Barnard, 66 Colo. 526 , 182 P. 22 (1919).

On a county warrant. The statute of limitations does not begin to run against an action on a county warrant until the conditions upon which it is payable have arisen. Forbes v. Bd. of County Comm'rs, 23 Colo. 344 , 47 P.388 (1897).

On insufficiently funded pension plan. The date on which the “debt, obligation, money owed, or performance be[came] due” was the date on which the employer transferred insufficient funds to the pension plan. It was on that date, therefore, that the employees' cause of action accrued. Aull v. Cavalcade Pension Plan, 988 F. Supp. 1360 (D. Colo. 1997 ).

County orders containing no day for payment are payable on demand, and their presentation for payment to the county treasurer, and his indorsement of the fact, constitute demand, acceptance, and promise to pay the amount in money. This gives the holder an immediate right of action, and the statute of limitations commences to run from that date. Schloss v. Bd. of County Comm'rs, 1 Colo. App. 145, 28 P. 18 (1891).

On municipal bonds. It would be a harsh and thoroughly impracticable rule to establish that the holder of a claim against a municipality is bound by any consideration of contract to pay the same, as long as the municipality itself recognizes such express contract as a valid and binding obligation. The effect of such a rule would be to permit the municipality to lull the holders of its obligations into inaction, and thereby, taking advantage of its own wrong, deprive them of a valuable right. Therefore, a bondholder had a lawful right to institute suit to recover upon the implied obligation at any time within six years after the district repudiated the express obligation. Geer v. Sch. Dist. No. 11, 111 F. 682 (8th Cir. 1901).

Default in interest payment on note does not precipitate claim. For purposes of the statute of limitations, default in payment of interest does not precipitate a claim on the note even though the note contains an acceleration clause where the holder may elect whether to accelerate payment and chooses not to do so. Temple v. Frank, 41 Colo. App. 332, 585 P.2d 311 (1978).

When a promissory note is to be repaid in installments, is not accelerated by the creditor, and contains a maturity date on which all unpaid payments are to be made, the six-year statute of limitations under § 13-80-103.5 begins to run on the maturity date. Castle Rock Bank v. Team Transit, LLC, 2012 COA 125 , 292 P.3d 1077.

Claims of royalty owners for underpayment of natural gas royalties accrued when the payments were due under subsection (4), not when the underpayment was or reasonably should have been discovered under subsection (6). BP Am. Prod. Co. v. Patterson, 185 P.3d 811 (Colo. 2008).

Uninsured driver's cause of action for reimbursement of medical expenses paid to such uninsured driver's passenger against insurer of vehicle which caused accident pursuant to § 10-4-713 does not accrue until actual payment of medical expenses. Sakala v. Safeco Ins. Co., 833 P.2d 879 (Colo. App. 1992).

Coverage for underinsured motorist benefits accrues under the terms of the policy when settlement under the tortfeasor's liability policy is obtained, not on the date of the accident. State Farm Mut. Auto Ins. v. Springle, 870 P.2d 578 (Colo. App. 1993).

Pursuant to the terms of the parties' agreement, the notice of default, and § 5-5-111 , plaintiff had no right to accelerate the obligation or obtain possession of the mobile home until October 29, 1992, 20 days after the required notice was given. Accordingly, plaintiff's replevin claim did not accrue until that date. Because plaintiff commenced its action on October 6, 1998, which was within six years of that accrual date, the action was timely. Green Tree Fin. v. Short, 10 P.3d 721 (Colo. App. 2000).

Once an installment security agreement is validly accelerated, the entirety of the remaining balance becomes due pursuant to subsection (4), and, therefore, the cause of action to collect the entire debt accrues. Hassler v. Account Brokers of Larimer Cty., 2012 CO 24, 274 P.3d 547.

After a lender abandons a debt acceleration by a clear and affirmative act, the lender can subsequently reaccelerate the debt by a clear, unequivocal, and affirmative act. If default is then not cured by a specific date, the debt is reaccelerated on that date, which is the start of a new six-year limitations period. Igou v. Bank of Am., N.A., 2020 COA 15 , 459 P.3d 776.

Statute begins to run from the last item on the account. Walsh v. Welsh, 46 Colo. 344 , 104 P. 399 (1909); Lanke v. Am. Med. & Dental Ass'n, 97 Colo. 521 , 50 P.2d 790 (1935) (decided under former § 13-80-111 ).

Annotator's note. Relevant cases construing the accrual of causes of actions under former §§ 13-80-110 and 13-80-114 as said sections existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to subsection (6).

When the undisputed facts demonstrate that a plaintiff discovered or reasonably should have discovered the defendant's conduct as of a particular date, the issue of when the cause of action accrued may be determined as a matter of law. Anderson v. Somatogen, Inc., 940 P.2d 1079 (Colo. App. 1996).

Claim on contract formerly accrued upon failure to perform required act. A claim for relief in actions arising out of nonperformance of contract obligations accrued at the time of failure to perform the act required under the contract. Goeddel v. Aircraft Fin., Inc., 152 Colo. 419 , 382 P.2d 812 (1963).

Where contract for sale of land provided that if the vendor failed to procure patent purchaser should receive back all money paid on the contract, limitation would begin to run against an action by the purchaser to recover back money paid, from the time a patent to the land was issued to another party and not from the time the money was paid. Platte Land Co. v. Hubbard, 12 Colo. App. 465, 56 P. 64 (1899).

Claims on executory agreement may accrue yearly. Where defendant's obligations under an agreement were executory in nature, maturing into enforceable duties on a yearly basis, plaintiff's claim for relief from defendant's failure to perform accrued with each delinquent performance. D'Amico v. Smith, 42 Colo. App. 369, 600 P.2d 84 (1979).

Where by agreement personal services are to be compensated only at the death of the party receiving them, the action accrues upon his death, and the statute runs from the same date. Norton's Estate v. McAlister, 22 Colo. App. 293, 123 P. 963 (1912).

Claimant's cause of action to establish constructive trust accrues, for purposes of the statute of limitations, when the claimant is aware, or reasonably should be aware, of facts which would make a reasonable person suspicious of the wrongdoing asserted as the basis of the trust. Lucas v. Abbott, 198 Colo. 477 , 601 P.2d 1376 (1979).

Claim to enforce a trust does not accrue upon a constructive trust until the claimant acquires or should have acquired knowledge of the existence of the trust. Abbott v. Lucas, 44 Colo. App. 415, 615 P.2d 37 (1978), aff'd, 198 Colo. 477 , 601 P.2d 1376 (1979).

Action accrues upon failure to pay installment of interest on note secured by trust deed if creditor elects to foreclose. A deed of trust securing promissory notes and providing that, upon default of any installment of interest, the whole principal and interest to the time of sale “may at once become due and payable, and the said premises be sold with the same effect as if the indebtedness had matured”, if the creditor, after such default, elects to take advantage thereof and direct a sale of the premises pursuant to the power, the cause of action upon the note accrues, and the statute runs, from the time of the default. Lovell v. Goss, 45 Colo. 304 , 101 P. 72 (1909).

The statutes of limitations on an action against the estate arising under resulting trusts could not begin to run against claimant until there was a repudiation of the trusts. There being no repudiation of either trust created, the statutes of limitations did not begin to run against the claimant until decedent's death. First Nat'l Bank v. Harry W. Rabb Found., 29 Colo. App. 34, 479 P.2d 986 (1970).

Full possession of the means of detecting a fraud is equivalent to knowledge for the purpose of invoking this section. Parsons v. Shackleford, 117 Colo. 545 , 188 P.2d 587 (1948).

Refusal of trustee to convey to beneficiary lands which he holds for him is a repudiation of the trust, setting in motion the statute of limitations. Schlosser v. Schlosser, 62 Colo. 270 , 162 P. 153 (1916).

Accrual of action under contract giving option to purchase stock. Under a contract giving an option for the purchase of corporate stock, no cause of action would arise for a breach until the party had attempted to exercise his option and the other had refused to sell. Upon such refusal a cause of action accrued, and an action for specific performance commenced within five years thereafter would not be barred by this section. Johnson v. Johnson, 87 Colo. 207 , 286 P. 109 (1930).

In action to quiet title to water rights sold under trust deed, the cause of action does not accrue until after sale by the trustee and final refusal of the irrigation company to continue to deliver the water. Hastings & Heyden Realty Co. v. Gest, 70 Colo. 278 , 201 P. 37 (1921).

In suit to cancel excess water rights. Where plaintiff and others bought certain water rights under deeds providing that when rights were sold and in force equal to the estimated capacity of the system of supply water, the title to the canal system should pass to the owners and holders of such water rights, plaintiff's right of action to have excess rights canceled accrued immediately after the contracts and deeds conveying such excess rights were issued, and was barred after five years thereafter by this section. Patterson v. Ft. Lyon Canal Co., 36 Colo. 175 , 84 P. 807 (1906).

In case of constructive trust statute begins to run from knowledge of trust. In equity, the suitor must allege and prove excuse for delay and want of diligence, especially where it is sought to enforce a constructive trust. Such delay and want of diligence is within this section; but the time begins to run from actual or constructive knowledge of the trust. Cliff v. Cliff, 23 Colo. App. 183, 128 P. 860 (1912).

Statute does not begin to run until recordation of trust deed. Under this section the bar of the statute does not begin to run until a tax deed is recorded, for the reason that it is only after it has been filed for record that any title of the owner is conveyed. Morris v. St. Louis Nat'l Bank, 17 Colo. 231 , 29 P. 802 (1892); Sayre v. Sage, 47 Colo. 559 , 108 P. 160 (1910).

Commission of wrongful act by executor starts running of statute against surety. In Colorado all that is required to expose the surety to liability on the executor's bond is the commission of the wrongful act. The wrongful act occurred when the executor placed the purchasers in possession without payment of the full purchase price, and that wrongful act was judicially recognized in 1955, not in 1965 when the decree of surcharge was entered, and the action is barred. People ex rel. Barker v. Transamerica Ins. Co., 385 F.2d 61 (10th Cir. 1967).

Where an action is brought on an official bond for breach of duty the statute formerly began to run at the time of the occurrence of the consequential injury caused by the officer's breach of duty, and not at the time of the breach. People ex rel. Fed. Land Bank v. Ginn, 106 Colo. 417 , 106 P.2d 479 (1940).

Discovery of erroneous levy. In an action by the personal representatives of a taxpayer against a board of county commissioners to recover taxes he had paid for 13 years on lands assessed to him on the mistaken premise that he was the owner thereof, it was held that the representatives were entitled to recover, and the six-year statute of limitations did not apply where almost immediately on discovery of the erroneous levy a refund was demanded and on refusal thereof the action was promptly begun. Bd. of Comm'rs v. Doherty, 114 Colo. 594 , 168 P.2d 556 (1946).

Discovery of erroneous drafting of deed. An action against a title company for drafting a warranty deed that did not reserve mineral rights, as the sellers had requested in accordance with the contract of sale, did not accrue until the lessee of an oil and gas lease on the property learned of the sale and began sending royalty payments to the buyer instead of the sellers. The principle that the signer of a document is presumed to know its contents did not defeat the discovery rule in this case because: (a) the document was prepared by the title company in the course of its business, not by the sellers themselves; and (b) the sellers did not seek to invalidate the deed but only sought damages from the title company for failing to follow the sellers' instructions. Bell v. Land Title Guar. Co., 2018 COA 70 , 422 P.3d 613.

A cause of action for breach of trust accrues on date the breach is discovered or should have been discovered by the exercise of reasonable diligence and, therefore, cause of action accrued when plaintiff went to her bank and discovered that the defendant had withdrawn plaintiff's money. Eads v. Dearing, 874 P.2d 474 (Colo. App. 1993).

The injury resulting from a breach of fiduciary duty, triggering accrual of the claim, is the violation of trust not any attendant financial harm. A claim for breach of confidentiality does not require proof of economic loss; the injury is the disclosure of protected information. Indeed, the purpose of such a claim is to remedy not a lost contractual expectation but rather the loss of secrecy. Grynberg v. Shell Exploration B.V., 433 F. Supp. 2d 1229 (D. Colo. 2006 ), aff'd, 538 F.3d 1336 (10th Cir. 2008), cert. denied, 556 U.S. 1105, 129 S. Ct. 1585, 173 L. Ed. 2d 677 (2009).

A claim for breach of contract accrues on the date the breach is discovered or should have been discovered through reasonable diligence. Farmers Ins. Exch. v. Am. Mfrs. Mut. Ins. Co., 897 P.2d 880 (Colo. App. 1995).

A claim for breach of warranty does not accrue until the plaintiff discovers or should have discovered the defendant's refusal or inability to comply with the warranties made. Hersh Cos. v. Highline Vill. Assocs., 30 P.3d 221 (Colo. 2001); Stiff v. BilDen Homes, Inc., 88 P.3d 639 (Colo. App. 2003).

A cause of action for bad-faith breach of insurance contract accrues upon first instance of unreasonable behavior. Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo. App. 1994).

Statute of limitations for an action contesting a rate increase commences to run when the rate is enacted not when each bill is sent. Bennett Bear Creek Water & San. v. Denver, 907 P.2d 648 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 928 P.2d 1254 (Colo. 1996).

Claims of royalty owners for underpayment of natural gas royalties accrued when the payments were due under subsection (4), not when the underpayment was or reasonably should have been discovered under subsection (6). BP Am. Prod. Co. v. Patterson, 185 P.3d 811 (Colo. 2008).

Withdrawing attorney's claim in quantum meruit against former co-counsel laboring under a contingent fee agreement cannot accrue earlier than the time when recovery occurs in the underlying litigation because that is the earliest time when the unjustness of any retention of the benefit can be determined. Hannon Law Firm v. Melat, Pressman & Higbie, 293 P.3d 55 (Colo. App. 2011).

Trial court and jury properly rejected seller's assertion that broker's breach of contract action against seller accrued upon seller's termination of the parties' listing agreement and recording of the property deed because seller's actions did not put broker on notice of the facts underlying the breach of contract claim against seller. Int'l Network, Inc. v. Woodard, 2017 COA 44 , 405 P.3d 424.

The statute of limitations does not begin to run in favor of a bailee until he converts the property to his own use. Austin v. Van Loon, 36 Colo. 196 , 85 P. 183 (1906) (decided under former § 13-80-110 ).

Cause of action for conversion accrued when it was discovered, not on the dates of forged endorsements. Stjernholm v. Life Ins. Co. of N. Amer., 782 P.2d 810 (Colo. App. 1989).

Annotator's note. Relevant cases construing the accrual of causes of actions under former §§ 13-80-102 , 13-80-105 , 13-80-108 , and 13-80-110 as said sections existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to subsections (1) and (8) dealing with injuries.

The claim accrues at the time of the disabling injury. Bd. of Trustees of Policemen's Pension Fund v. Koman, 133 Colo. 598 , 298 P.2d 737 (1956).

The cause of action accrues in a libel case when the libel is published. Evans v. Republican Publ'g Co., 20 Colo. App. 281, 78 P. 311 (1904); Spears Free Clinic & Hosp. for Poor Children v. Maier, 128 Colo. 263 , 261 P.2d 488 (1953).

Period begins to run on date libel occurs. The one-year statutory period for the initiation of a libel action begins to run on the date the alleged libel occurs. Dillingham v. Greeley Publ'g Co., 661 P.2d 700 (Colo. App. 1983), rev'd on other grounds, 701 P.2d 27 (Colo. 1985).

Where plaintiffs suffered no damages until adverse claim of government was determined to be valid and plaintiffs were found to be trespassers, with the consequent damages resulting from their being required to remove their house from government land, the statute of limitations did not begin to run until the judgment became final. Doyle v. Linn, 37 Colo. App. 214, 547 P.2d 257 (1975).

Action by railroad employees seeking reinstatement to their jobs and damages accrued when the employees resigned their positions with the railroad. Copsy v. Bhd. of Locomotive Engineers, 767 P.2d 676 (10th Cir. 1985).

Damages from water seepage. The action is barred after the lapse of six years from the first visible and sensible appearance of the injury caused by seepage from an irrigation ditch. Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102 , 103 P. 280 (1909); Rose v. Agric. Ditch & Reservoir Co., 70 Colo. 446 , 202 P. 112 (1921); Zimmerman v. Hinderlider, 105 Colo. 340 , 97 P.2d 443 (1939).

In action to recover for damage to land by reason of use of natural channel by reservoir company for carrying water, the statute of limitations began to run when the company commenced using the channel as a carrier, since the land was immediately damaged by such use. Seven Lakes Reservoir Co. v. Majors, 69 Colo. 590 , 196 P. 334 (1921).

In a suit by a guest against a landlord for conversion of baggage, the action did not accrue until demand, the refusal of which constituted conversion, at which time the statute of limitations began to run. See Carper v. Risdon, 19 Colo. App. 530, 76 P. 744 (1904); Austin v. Van Loon, 36 Colo. 196 , 85 P. 183 (1906); Dutton Hotel Co. v. Fitzpatrick, 69 Colo. 229 , 193 P. 549 (1920).

In an action by the owner of abutting property for permanent damages occasioned by the construction and operation of a railroad through a public street in an ordinary and lawful manner, the statute of limitations begins to run from time the railroad company first occupied the street for such purposes. Union Pac. Ry. v. Foley, 19 Colo. 280 , 35 P. 542 (1893).

Action for wrongful discharge is an action in tort which accrues when the injury of losing the job occurs and not when notice of termination is given. Lorenz v. Martin Marietta Corp., Inc., 802 P.2d 1146 (Colo. App. 1990), aff'd, 823 P.2d 100 (Colo. 1992).

Cause of action for personal injuries under Colorado Auto Accident Reparations Act accrues on the date that both the physical injury and its cause are known or should have been known by exercise of reasonable diligence. Such actions may be filed as soon as it is reasonably expected that claimant's medical expenses will exceed $2,500. Jones v. Cox, 828 P.2d 218 (Colo. 1992).

Although the police investigation report may provide helpful information regarding the claim, the claim itself accrues when the plaintiff is aware of his injuries and their cause. The police department's failure to provide copies of the investigation report does not postpone accrual of the claim. Reider v. Dawson, 856 P.2d 31 (Colo. App. 1992), aff'd, 872 P.2d 212 (Colo. 1994).

A cause of action for injury to property shall be considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence. Bad Boys of Cripple Creek Mining Co. v. City of Cripple Creek, 996 P.2d 792 (Colo. App. 2000).

Plaintiffs' cause of action for inverse condemnation accrued when the city began using the property with plaintiffs' knowledge. Bad Boys of Cripple Creek Mining Co. v. City of Cripple Creek, 996 P.2d 792 (Colo. App. 2000).

“Injury” in statute of limitations means legal injury and, therefore, statute of limitations in claim for lack of informed consent begins to run when claimant has knowledge of facts which would put reasonable person on notice of nature of injury and that injury was caused by wrongful conduct of another. Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).

A plaintiff cannot commence an action until he knows he has a cause. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970).

In a professional negligence case the cause of action “accrues” when the patient discovers or, in the exercise of reasonable diligence, should have discovered the doctor's negligence. Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970); Nitka v. Bell, 29 Colo. App. 504, 487 P.2d 379 (1971).

In a professional negligence case the cause of action does not accrue until the plaintiff, as a lay person, discovers, or in the exercise of reasonable diligence should have discovered, that the physician was negligent according to the standards prevailing in the community for members of his profession. Short v. Downs, 36 Colo. App. 109, 537 P.2d 754 (1975).

Critical fact is the plaintiff's knowledge of facts essential to cause of action. Morris v. Geer, 720 P.2d 994 (Colo. App. 1986).

In a legal malpractice action, once a client becomes aware of the attorney's negligence and incurs damage in the form of legal fees to ameliorate the impact of that negligence, he or she has suffered injury for the purpose of accrual of a legal claim. Moreover, a client's cause of action can accrue before the attorney ceases representation. Miller v. Byrne, 916 P.2d 566 (Colo. App. 1995).

Professional negligence in drafting of deed. An action against a title company for drafting a warranty deed that did not reserve mineral rights, as the sellers had requested in accordance with the contract of sale, did not accrue until the lessee of an oil and gas lease on the property learned of the sale and began sending royalty payments to the buyer instead of the sellers. The principle that the signer of a document is presumed to know its contents did not defeat the discovery rule in this case because: (a) the document was prepared by the title company in the course of its business, not by the sellers themselves; and (b) the sellers did not seek to invalidate the deed but only sought damages from the title company for failing to follow the sellers' instructions. Bell v. Land Title Guar. Co., 2018 COA 70 , 422 P.3d 613.

When limitations period begins. The limitations period in former § 13-80-108 began to run when the aggrieved party discovered, or should have discovered by the exercise of reasonable diligence, the facts constituting the fraud. Laymon v. McComb, 524 F. Supp. 1091 (D. Colo. 1981 ); Polk v. Hergert Land & Cattle Co., 5 P.3d 402 (Colo. App. 2000).

The limitations period was tolled until the aggrieved party learns of the fraud or should have discovered it by the exercise of reasonable diligence. Hackbart v. Holmes, 675 F.2d 1114 (10th Cir. 1982); Noland v. Gurley, 566 F. Supp. 210 (D. Colo. 1983 ).

Limitations period did not begin until the trial court determined that the defendant law firm was bound by the offer of settlement and had received an overpayment. Prior to that holding, plaintiff had no right to apply for relief. Berger v. Dixon & Snow, P.C., 868 P.2d 1149 (Colo. App. 1993).

The requisite knowledge under the general discovery rule includes knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another. Yund v. Bridgestone/Firestone, Inc., 200 F. Supp. 2d 997 (S.D. Ind. 2002).

Accrual in construction defect cases is subject to § 13-80-104 (1)(b)(I) , which requires only discovery of the physical manifestation of the defect and not its cause. Broomfield Senior Living v. R.G. Brinkmann, 2017 COA 31 , 413 P.3d 219.

Breach of warranty claim distinguished. Breach of warranty claims accrue when the breach is or should have been discovered under subsection (6). Broomfield Senior Living v. R.G. Brinkmann, 2017 COA 31 , 413 P.3d 219.

Accrual in malpractice claim against engineer or architect. In an action for professional malpractice against an engineer or architect brought under the six-year statute of limitations contained in this section, the cause of action does not accrue until the plaintiff knows, or should know, in the exercise of reasonable diligence, all material facts essential to show the elements of that cause of action. City of Aurora v. Bechtel Corp., 599 F.2d 382 (10th Cir. 1979).

Action for infringement of copyright and theft of trade secret occurred at time when the plaintiff discovered, or in the exercise of reasonable diligence, should have discovered the facts giving rise to his claim. DeGette v. Mine Co. Restaurant, Inc., 751 F.2d 1143 (10th Cir. 1985).

Two-year provision did not begin to run when owner or property first discovered physical processes leading up to injury, but only when he discovered, or in exercise of reasonable diligence should have discovered, alleged “defect” in improvement that produced injury. Fin. Assocs. v. G.E. Johnson Const., 723 P.2d 135 (Colo. 1986).

Statute begins to run when unauthorized foreign object is discovered in plaintiff's body. Where doctors left a large gauze pad inside the incision and body of plaintiff more than 10 years before action was brought and in the interim plaintiff, in order to ascertain the cause of her constant pain and suffering, consulted and was treated by various surgeons and physicians, and when her condition became extremely grave a laparotomy was performed and the gauze pad discovered and removed, this being the first notice to plaintiff of the negligence, carelessness, and recklessness of defendants, it was held that an action, started within two years of this discovery, was not barred by this section. Rosane v. Senger, 112 Colo. 363 , 149 P.2d 372 (1944).

Unauthorized foreign object is an object left inadvertently in a patient's body and which has no therapeutic or diagnostic purpose or effect. Austin v. Litvak, 682 P.2d 41 (Colo. 1984).

Items not customarily left in a patient's body do not constitute “unauthorized foreign objects” under § 13-80-105 if all of the following are present: (1) The device is intentionally placed in the body or is intentionally allowed to remain therein; (2) the device is allowed to remain in the patient's body with the knowledge and consent of the patient; and (3) its remaining in the patient's body has a therapeutic or diagnostic purpose. If any one of these three elements is missing, the item is an unauthorized foreign object. Nieto v. Chavez, 721 P.2d 1223 (Colo. App. 1986) (decided under law in effect prior to 1986 repeal and reenactment).

Rods surgically inserted in patient's back with patient's knowledge did not constitute “unauthorized foreign objects”. Hoary v. Lowe, 734 P.2d 154 (Colo. App. 1987).

This is a jury question. Whether or not the plaintiff actually knew or had reason to know of the cause of her injuries prior to the date of the alleged discovery is a question for the jury. Davis v. Bonebrake, 135 Colo. 506 , 313 P.2d 982 (1957); Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970); Nitka v. Bell, 29 Colo. App. 504, 487 P.2d 379 (1971).

The determination of when a plaintiff discovered or should have discovered the seriousness and character of his injuries and the negligence giving rise to his cause of action is an unresolved question of fact, and is therefore, a question for the jury to determine, and summary judgment is improper. DiChellis v. Peterson Chiropractic Clinic, 630 P.2d 103 (Colo. App. 1981); Phillips v. Beethe, 679 P.2d 126 (Colo. App. 1984); Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).

And question of timing of discovery of damage for trier of fact. The question of whether or not the plaintiff actually discovered, or should have discovered, that damage occurred and that it probably resulted from professional malpractice is a question which should be left for the trier of fact or, in appropriate cases, summary judgment. City of Aurora v. Bechtel Corp., 599 F.2d 382 (10th Cir. 1979).

Question of fact. The time when a plaintiff discovered, or through the use of reasonable diligence should have discovered, the negligent conduct giving rise to the cause of action is normally a question of fact that must be resolved by the trier of fact. Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995); Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489 (Colo. App. 2008).

Whether a medical malpractice action is barred by the statute of limitations is dependent upon the determination of a question of fact as to when the action occurred. Short v. Downs, 36 Colo. App. 109, 537 P.2d 754 (1975).

Issue may be decided as a matter of law where undisputed facts clearly show that plaintiff discovered, or reasonably should have discovered, negligent conduct as of a particular date. Morris v. Geer, 720 P.2d 994 (Colo. App. 1986); Reider v. Dawson, 856 P.2d 31 (Colo. App. 1992), aff'd, 872 P.2d 212 (Colo. 1994); Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995); Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489 (Colo. App. 2008).

Question of timing of discovery not determination as matter of law. Whether a plaintiff should have discovered the basis of his suit under the doctrine of equitable tolling does not lend itself to determination as a matter of law. Aldrich v. McCulloch Props., Inc., 627 F.2d 1036 (10th Cir. 1980).

Summary judgment on issue of diligence improper. Since the issue of proper diligence under Colorado law should apparently be left to a jury, summary judgment on that claim is improper. Morgan v. Dain Bosworth, 545 F. Supp. 953 (D. Colo. 1982 ).

Statutes of repose, also known as “strict” statutes of limitation, are not subject to the discovery rule codified in this section. Such a statute bars a claim after the specified period regardless of the date on which the claimant discovers the error or omission that gave rise to the claim. Kuhn v. State Dept. of Rev., 897 P.2d 792 (Colo. 1995).

Accrual of personal injury claim based on negligence. A personal injury claim based on alleged negligence accrues on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence. Cade v. Regensberger, 804 P.2d 238 (Colo. App. 1990).

In cases involving personal injury, a plaintiff's claim for relief accrues on the date the fact of injury and its cause are known or should have been known, and a plaintiff's uncertainty as to the full extent of the damage does not prevent the filing of a timely complaint. Taylor v. Goldsmith, 870 P.2d 1264 (Colo. App. 1994).

Accrual of claim based upon libel or slander. Subsection (1) supersedes the accrual rule stated in decisions prior to 1986 and a claim for relief based upon injury to reputation is now considered to accrue on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence. Taylor v. Goldsmith, 870 P.2d 1264 (Colo. App. 1994).

Once plaintiff knew her injuries were caused by her use of a keyboard, she then had two years to discover the keyboard manufacturer with reasonable diligence. Where the identity of the defendant could be discovered through reasonable diligence, the action was properly barred if not filed within the two-year limitation period. Yoder v. Honeywell, Inc., 900 F. Supp. 240 (D. Colo. 1995 ).

Receipt of a neurologist's letter stating that a plaintiff's injuries could have been caused by exposure to a toxic substance did not constitute discovery of the cause of her injuries, and the plaintiff proceeded with reasonable diligence when suit was filed less than two years after her receipt of a toxicologist's letter stating that her condition was caused by exposure to a toxic substance. Salazar v. Am. Sterlizer Co., 5 P.3d 357 (Colo. App. 2000).

Plaintiff knew, or should have known by the exercise of reasonable diligence, of the injury to his reputation and the cause of that injury; consequently, because the complaint was filed more than two years after plaintiff learned of the statements, the trial court properly dismissed plaintiff's claims for libel, slander, and outrageous conduct as barred by §§ 13-80-102 (1)(a) and 13-80-103 (1)(a) . Taylor v. Goldsmith, 870 P.2d 1264 (Colo. App. 1994).

Action against insurance company for bad faith failure to settle resulting in excess liability judgment accrued only after excess liability was ultimately established. Vanderloop v. Progressive Cas. Ins. Co., 769 F. Supp. 1172 (D. Colo. 1991 ).

Plaintiff's tortious interference with contract claim accrued from the date the fact of injury or damage was evident, although the nature of the contracts at issue left the precise extent of the injury or damage uncertain. Sterenbuch v. Goss, 266 P.3d 428 (Colo. App. 2011).

Because plaintiff asserted that respondents were handling claim in bad faith in a letter dated more than two years before filing bad faith claim, the letter evidences that petitioner's bad faith tort claims accrued no later than the date of the letter and the filing exceeded the statute of limitations. Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

Plaintiff's death does not extend the bad faith tort claim accrual date beyond the initial acknowledgment by plaintiff's attorney of bad faith. Brodeur v. Am. Home Assurance Co., 169 P.3d 139 (Colo. 2007).

Claim based on negligence of attorney in drafting contract accrued when client bank knew or reasonably should have known all facts essential to claim and had already incurred some damage as a result, regardless of whether action was classified as arising in tort or in contract. It was not necessary to await suit by other party to contract, or to ascertain the precise extent of damage, before limitation period began to run. Palisades Nat. Bank v. Williams, 816 P.2d 961 (Colo. App. 1991).

“Discovery rule” did not apply to claims for negligence and outrageous conduct arising from alleged sexual assault on minors. Despite therapists' and plaintiffs' statements that plaintiffs did not realize the full import of defendant's actions until they sought counseling years after the assaults, plaintiffs' admissions of emotional upset at time of assaults and knowledge that defendant's actions were improper and illegal indicated that plaintiffs were on adequate notice of the essential elements of the tort. Therefore, cause of action accrued when plaintiffs reached the age of majority. Cassidy v. Smith, 817 P.2d 555 (Colo. App. 1991).

Plaintiff knew or should have known both the injury and its cause by the exercise of reasonable diligence. It is not true that, once the affidavit of a psychologist is injected into a case, there is automatically an issue of fact regarding timing. The court found it very important that plaintiff did not argue that he ever repressed his memory that events of alleged sexual abuse by a priest happened but merely his knowledge that the events constituted abuse which harmed him. According to the court, the idea that a person of plaintiff's background and education could be aware of such events and his own troubled psychological state and not tie them together was inconceivable as a matter of law. Consequently, the court granted summary judgment based on the statute of limitations. Ayon v. Gourley, 47 F. Supp. 2d 1246 (D. Colo. 1998 ).

Outrageous conduct is a separate tort, even though it may be premised on conduct amounting to a battery. Therefore, the applicable statute of limitations under § 13-80-102 is two years from the date of accrual for outrageous conduct, rather than the one year limit under § 13-80-103 for battery. Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995).

Further, where a claim may be pursued on two theories having different limitations, the longer limitation applies. Winkler v. Rocky Mtn. Conference, 923 P.2d 152 (Colo. App. 1995).

Applied in Miller v. Celotex Corp., 708 F. Supp. 306 (D. Colo. 1989 ) (decided under former § 13-80-127.5 ); Stiff v. BilDen Homes, Inc., 88 P.3d 639 (Colo. App. 2003).

Law reviews. For note, “Concealment of a Cause of Action as Tolling the Two-Year Statute of Limitation in Malpractice”, see 17 Rocky Mt. L. Rev. 124 (1944).

Running of statute is delayed when defendant conceals from the plaintiff the existence of the cause. Where the defendants had concealed from the plaintiff the existence of a cause of action during the time that the period of limitations was running, the supreme court held that one may not be permitted to take advantage of his own wrong, and that the alleged cause of action was not barred by the statute of limitations. Klamm Shell v. Berg, 165 Colo. 540 , 441 P.2d 10 (1968).

As when doctor assures the patient that nothing is wrong. The fraudulent concealment issue would be applicable, where a plaintiff discovers an injury and then is reassured by the doctor that nothing is wrong. Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970).

The Colorado court does not require a showing of all of the elements of fraud in order to support a finding of “fraudulent concealment” as negligence is equally damaging and the victim equally helpless regardless of the motive for concealment. Murphy v. Dyer, 260 F. Supp. 822 (D. Colo. 1966 ).

The statute of limitations is not intended to require the commencement of an action when the injured party is justifiably ignorant of the existence of one. The law does not impose upon the injured party a constructive knowledge of facts--i.e., standards of practice, medical causation--which are, indeed, unknown to the court itself without the assistance of expert testimony. Nitka v. Bell, 29 Colo. App. 504, 487 P.2d 379 (1971).

Fraudulent concealment provision of former § 13-80-105 required two wrongs: The original negligent act and the subsequent concealment of same. Adams v. Richardson, 714 P.2d 921 (Colo. App. 1986).

Knowing concealment and foreign object exceptions apply only to three-year statute of repose and not to two-year statute of limitations in former § 13-80-105 . Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984).

Annotator's note. Relevant cases construing the tolling of the statute of limitations under former § 13-80-110 as said section existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to this section.

Plaintiff has burden of establishing factual basis for tolling of statute. While the statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute. Aldrich v. McCulloch Props., Inc., 627 F.2d 1036 (10th Cir. 1980).

Federal law may control tolling of limitations when state statute applicable. Though the limitations period for an action brought in federal district court based on claims arising under section 17 of the Securities Act of 1933 and sections 10(b) and 20 of the Securities Exchange Act of 1934 is supplied by the law of Colorado, the circumstances which will toll the running of the statute are matters of federal law. Ohio v. Peterson, Lowry, Rall, Barber & Ross, 472 F. Supp. 402 (D. Colo. 1979 ), aff'd, 651 F.2d 687 (10th Cir.), cert. denied, 454 U.S. 895, 102 S. Ct. 392, 70 L. Ed. 2d 209 (1981).

Time consumed by pendency of action not deductible. A party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice to him. Commercial Equity Corp. v. Majestic Sav. & Loan Ass'n, 620 P.2d 56 (Colo. App. 1980).

Commencement of action within statutory period arrests running of statute. It seems to be the well established rule in all jurisdictions that the commencement of an action within the statutory period to enforce a claim or demand arrests the running of the general statute of limitations against the same. Bd. of County Comm'rs v. Flanagan, 21 Colo. App. 467, 122 P. 801 (1912); Kingsley v. Clark, 57 Colo. 352 , 141 P. 464 (1914).

Filing and withdrawal of claim against estate does not constitute commencement of an action to prevent the statute of limitations from running. Morse v. Clark, 10 Colo. 216 , 14 P. 327 (1887).

A lender may abandon the acceleration of a promissory note by a clear affirmative act. Such abandonment restores the note's original maturity date for purposes of accrual of the statute of limitations. Bank of N.Y. Mellon v. Peterson, 2018 COA 174 M, 442 P.3d 1006.

The commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223 (10th Cir. 2008) (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983)).

Only the first class action tolls the statute of limitations. If a plaintiff has been a member of the class in two lawsuits, only the first tolls the statute of limitations. The filing of successive class actions cannot serve to perpetually toll the running of the statute of limitations. Jackson v. Am. Family Mut. Ins. Co., 258 P.3d 328 (Colo. App. 2011).

The presentation to the county commissioners of a claim against the county, and diligent and active effort by the claimant to induce action by the board, stays the course of the general statute of limitations. Bd. of County Comm'rs v. Flanagan, 21 Colo. App. 467, 122 P. 801 (1912).

In workmen's compensation cases the earliest disability for which compensation is either awarded or paid will arrest the running of any statute of limitations. London Guarantee & Accident Co. v. Sauer, 92 Colo. 565 , 22 P.2d 624 (1933).

An indorsement of payment on a promissory note made by or under authority of the maker and within the time fixed by the statute of limitations, interrupts the running of the statute. Christensen v. Woods Mercantile Co., 104 Colo. 463 , 91 P.2d 999 (1939).

Book entries corresponding to the date and amount of an indorsement of payment on a promissory note are not sufficient alone to interrupt the running of the statute of limitations or to revive a barred debt. Christensen v. Woods Mercantile Co., 104 Colo. 463 , 91 P.2d 999 (1939).

Where claim against estate consists of promissory notes, they must be filed to arrest statute. Where a claim against the estate of a decedent consists in his promissory notes, the notes themselves must be filed in the county court in which administration is pending, and the filing of a list or statement of the notes is not a compliance with the statute and has no effect to stay the operation of the statute of limitations. Gordon-Tiger Mining & Reduction Co. v. Loomer, 50 Colo. 409 , 115 P. 717 (1911).

A promise of the administrator to look after a claim for the expenses of administration and bring it forward has no effect to stay the course of the statute. Gordon-Tiger Mining & Reduction Co. v. Loomer, 50 Colo. 409 , 115 P. 717 (1911).

Ignorance of the law respecting the remedy which it provides does not prevent the statute from running. Pipe v. Smith, 5 Colo. 146 (1879).

The burden is on the party suing on a debt apparently barred by the statute of limitations to show that the statute has been tolled. Capek v. Monahan, 117 Colo. 131 , 184 P.2d 501 (1947).

Statute of limitations not tolled between time of injury and time when investigative report released since report would not result in any civil relief to plaintiff. Mosher v. City of Lakewood, 807 P.2d 1235 (Colo. App. 1991).

A change in the law does not revive claims otherwise barred by a statute of limitations. Kuhn v. State Dept. of Rev., 897 P.2d 792 (Colo. 1995).

No tolling under course-of-treatment exception or “continuing violation” doctrine in a bad-faith breach of workers' compensation insurance case, because insurer's failure to pay benefits when due puts claimant on notice of the fact of injury and its cause even if there is only a single episode of unreasonable behavior. Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo. App. 1994).

“Continuing violation” doctrine does not apply to shareholder action based on breach of fiduciary duty by directors of corporation. Polk v. Hergert Land & Cattle Co., 5 P.3d 402 (Colo. App. 2000).

Annotator's note. Relevant cases construing the statute of repose under former § 13-80-105 as said section existed prior to the 1986 repeal and reenactment of this article have been included with the annotations to this section.

Former statute of repose did not deny equal protection. Adams v. Richardson, 714 P.2d 921 (Colo. App. 1986).

Tolling provisions of § 13-81-103 applied to former § 13-80-105 relating to limitation and repose periods applicable to medical malpractice claims. Southard v. Miles, 714 P.2d 891 (Colo. 1986).

Former statute of repose applied to continuing acts or omissions; however, statute of repose does not bar recovery for acts or emissions that occurred during the last three years preceding institution of suit. Comstock v. Collier, 694 P.2d 1282 (Colo. App. 1984), modified in part and rev'd in part on other grounds, 737 P.2d 845 (Colo. 1987).

Negligent misdiagnosis is exception to former three-year statute of repose. Legislative scheme which permits foreign object and knowing concealment claimants to invoke the discovery rule to the three-year statute of repose in former § 13-80-105 but denies such discovery rule to negligent misdiagnosis claimants is unconstitutional as a denial of equal protection and the appropriate remedy is to make claims based on negligent misdiagnosis another exception to the former three-year statute of repose. Austin v. Litvak, 682 P.2d 41 (Colo. 1984).

Whether claim alleged a misdiagnosis claim is applied in Comstock v. Collier, 737 P.2d 845 (Colo. 1987).

Applied in Hoary v. Lowe, 734 P.2d 154 (Colo. App. 1987).