Blog Post

Colorado Accident & Injury Law Part IV Uninsured Motorist

Posted by: Michael Sawaya
August 18, 2009
Topic: Auto Accidents

•III. UNINSURED MOTORIST STATUTE OF LIMITATIONS ISSUES: RECENT CASE LAW CONFIRMING THREE YEAR MINIMUM SOL: Rider vs. State Farm Mutual Automobile Insurance Company, 2009 WL262446 (Colo.App.)

•· The case was based on the UM statute. Plaintiff, Rider, was driving and was rear-ended by an uninsured motorist. She found out as early as 5 days after the accident or as late as 7 months after the accident that the driver was uninsured. The case was filed 2 years and 11 months after the accident, against both the uninsured driver and then UM carrier (state farm).

The UM statute of limitations is found at C.R.S. § 13-80-107.5 (2006). (b) provides: An action or arbitration of an "underinsured motorist" insurance claim, as defined in section 10-4-609 (4), C.R.S., shall be commenced or demanded by arbitration demand within three years after the cause of action accrues; except that, if the underlying bodily injury liability claim against the underinsured motorist is preserved by commencing an action against the underinsured motorist or by payment of either the liability claim settlement or judgment within the time limit specified in sections 13-80-101 (1) (n) and 13-80-102 (1) (d), then an action or arbitration of an underinsured motorist claim shall be timely if such action is commenced or such arbitration is demanded within two years after the insured received payment of the settlement or judgment on the underlying bodily injury liability claim. In no event shall the insured have less than three years after the cause of action accrues within which to commence such action or demand arbitration.

•· The district court ruled, in dismissing and citing , Trigg v. State Farm Mutual Automobile Insurance Company, 129 P.3d 1099 (Colo.App. 2005) that the Plaintiff had filed too late.

•· In Trigg the Court of Appeals had issued a confusing opinion that applied a three year statute of limitations but included dictum that the limitation was two years from the date the insured learns of the uninsured nature of the liable party.

•· In the Rider case, the Court of Appeals, in a published opinion admitted that they were erred in the Trigg case. The Court said the dates were incorrectly calculated, but the overall holding was correct (because Plaintiff found out the day after the accident there was not insurance and actually failed to file his case against S.F. w/n 3 years of date of accident).

•· The Court reviewed the different scenarios that could occur:

•(1) If the Plaintiff discovers that the defendant is uninsured within 12 months of the accident, then the preservation clause DOES NOT kick in and you must file against the carrier within 3 years of date of accident.

•(2) If the Plaintiff discovers that the defendant is uninsured from 1-3 years from the date of the accident then the 2 year preservation clause kicks in. Plaintiff would then have 2 years from THAT DATE to file the uninsured motorist case.

•(3) Nothing changes the fact that the Plaintiff must file against the underlying BI claim with 3 years. Nothing in the statute of limitations for UM claims tolls the BI claim.