2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 80 - Limitations- Personal Actions
§ 13-80-111. Commencement of New Action Upon Involuntary Dismissal

1. If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff or, if he dies and the cause of action survives, the personal representative may commence a new action upon the same cause of action within ninety days after the termination of the original action or within the period otherwise allowed by this article, whichever is later, and the defendant may interpose any defense, counterclaim, or setoff which might have been interposed in the original action.
2. This section shall be applicable to all actions which are first commenced in a federal court as well as those first commenced in the courts of Colorado or of any other state.

History. Source: L. 86: Entire article R&RE, p. 700, § 1, effective July 1.

This section is similar to former § 13-80-128 as it existed prior to 1986.

Annotator's note. Since § 13-80-111 is similar to former § 13-80-128 as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.

Purpose of section. The remedial revival statute reflects a legislative intent to enable litigants to avoid hardships which might result from strict adherence to the provisions of statutes of limitations. Soehner v. Soehner, 642 P.2d 27 (Colo. App. 1981).

Section inapplicable to wrongful death actions. By its own terms, this section does not apply to wrongful death actions. Ritter v. Aspen Skiing Corp., 519 F. Supp. 907 (D. Colo. 1981 ); Phillips v. Beethe, 679 P.2d 126 (Colo. App. 1984).

And to actions under the Federal Arbitration Act, as a result of preemption by 9 U.S.C. § 12. Chilcott Entm't v. John G. Kinnard Co., Inc., 10 P.3d 723 (Colo. App. 2000).

But does apply to medical malpractice claims. This section applies to actions set forth in this article and medical malpractice is one of those claims. Phillips v. Beethe, 679 P.2d 126 (Colo. App. 1984).

Statute should be liberally interpreted; therefore, the term “a new action” should not be interpreted to mean only one new action. Sharp Bros. Contr. v. Westvaco Corp., 817 P.2d 547 (Colo. App. 1991).

Remedial revival statute tolls the running of the statute of limitations when the original action is terminated for lack of jurisdiction. Failure to file a nonresident cost bond, however, does not affect either subject matter jurisdiction or jurisdiction over the person and, therefore, the remedial revival statute was inapplicable to plaintiff's second complaint. Nguyen v. Swedish Med. Ctr., 890 P.2d 255 (Colo. App. 1995).

But the remedial revival statute does not toll the statute of limitations where plaintiff's action is not timely filed because plaintiff attempted to pay the filing fees with an insufficient funds check. In such case, the action was not dismissed for lack of jurisdiction. Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860 (Colo. App. 1998).

The remedial revival statute does not toll the statute of limitations where plaintiff's complaint is dismissed due to a lack of capacity to sue, because, in such case, the action is not dismissed for lack of jurisdiction. SMLL, L.L.C. v. Peak Nat'l Bank, 111 P.3d 563 (Colo. App. 2005).

This section contemplates only revival of an untimely claim when the previous dismissal resulted from a curable defect. Because this section is not itself a source of subject matter jurisdiction, it cannot be used to revive a nonjusticiable claim. W. Colo. Motors, LLC v. Gen. Motors, , 444 P.3d 847 .

Because the subject matter defect in plaintiff's original action could not be cured by refiling, the statute did not apply. W. Colo. Motors, LLC v. Gen. Motors, , 444 P.3d 847 .

“Cause of action” as used in this section is ambiguous. Because the statute is remedial in nature, it should be liberally construed to effectuate its purpose of avoiding the hardships that would result from strict adherence to statutes of limitations and ensuring that cases are decided on the merits. W. Colo. Motors, LLC v. Gen. Motors, , 444 P.3d 847 .

This section should be applied to preserve a cause of action only when plaintiffs have pursued their claims diligently and defendants have knowledge of the claims. W. Colo. Motors, LLC v. Gen. Motors, , 444 P.3d 847 .

Section does not apply to revive a claim against a defendant who was not a party to the original action. Grenillo v. Hansen, 2020 COA 82 , 467 P.3d 1286.

Plaintiff's claim for breach of contract could not be revived as the same cause of action when the original action sought only statutorily authorized injunctive relief. Plaintiff's failure to bring the breach of contract claim for over three years even though plaintiff was fully aware of the alleged breach showed a lack of diligence, and the substantive differences in the statutory and breach of contract claims deprived the defendant of notice of the breach of contract claim. W. Colo. Motors, LLC v. Gen. Motors, , 444 P.3d 847 .

Trial court properly dismissed case on statute of limitations grounds. Trial court had subject matter jurisdiction over deceased defendant named in original complaint and personal jurisdiction over defendant after complaint was amended. Therefore, remedial revival statute could not be invoked because case was not “terminated because of lack of jurisdiction or improper venue” within the meaning of the statute, rather it was dismissed based on the statute of limitations. Currier v. Sutherland, 218 P.3d 709 (Colo. 2009).

Remedial revival statute cannot be invoked, and untimely amended complaints do not relate back to original complaint. Currier v. Sutherland, 218 P.3d 709 (Colo. 2009).