The Colorado Governmental Immunities Act: The 180 Day Ticking Time Bomb for Filing a Subrogation Personal Injury Lawsuit
– Joseph W. Gren, Esq.
Professor Alan Dershowitz, a hailed legal commenter and constitutional scholar, once remarked that “every lawsuit results from somebody doing something wrong. If everybody did right, we wouldn’t need laws.” In Colorado, the Workers’ Compensation Act provides an employer and insurance carrier the right to sue a “third party” when that respective third party causes injuries to an employee. Section 8-41-203, C.R.S. Though most insurance carriers and claims examiners are generally familiar with the “right of subrogation,” there are several areas of workers’ compensation subrogation that are often times thorny, especially when the government becomes involved.
When the “somebody” who caused an injury to an injured employee is a state governmental entity, a workers’ compensation insurance carrier must take specific measures at the onset of the injury in order to protect their respective subrogation rights. A party’s failure to follow the specific statutory timeframes established by the Colorado Governmental Immunities Act (“CGIA”), section 24-10-101, C.R.S., will result in any personal injury claim being time barred: Maestas v. Lujan, 351 F.3d 1001 (10th Cir. 2003). The most important step an insurance carrier or employer can take at the onset of a subrogation claim is to file the appropriate notice of claim with a governmental entity.
Generally, the CGIA permits the government to be sued for damages arising out of personal injury claims in limited circumstances. This concept is known as a waiver of governmental immunity. Though the jurisprudential theory underpinning why the government enjoys such a unique perk is significant, it is more important to understand how this law practically works. The first step in determining whether the CGIA applies to your case is to determine whether a governmental agency or employee caused, or was involved in causing, the injury to an insured’s employee.
Commonplace examples of personal injury claims involving a governmental entity include injuries caused by dangerous conditions, such as slip and falls on ice found on the grounds of governmental facilities – schools or parks maintained by a municipality, city or state. See, also Reynolds v. School District No. 1 Denver, 69 F.3d 1532 (10th Cir 1995). More subtle instances of entities who may claim protections under the CGIA include physicians whom are associated with state teaching intuitions, but work at medical facilities conducting surgeries. Rudnick v. Ferguson, et. al., 179 P.3d 26 (Colo. App. 2007). State hospitals and its employees also enjoy the protections of the CGIA. Injuries caused by a federal governmental entity or employee implicate the Federal Tort Claims Act. 28 U.S.C., Chapter 17. It is important to distinguish between state and federal entities at the onset of the claim to determine which notice provisions apply in your case.
Once the governmental entity or employee is identified, any party seeking damages, including damages provided under the subrogation statute, must provide the entity notice consistent with the CGIA. Notice of a claim must be sent in writing within “one-hundred and eight-two days” after the “discovery of the injury, regardless of whether the person then knew of all elements of claim or of a cause of action for such injury.” Section 24-10-109(1). As a general rule, most familiar with the CGIA use 180 days as the notice deadline. It is critical to file the written notice within 180 days after the employer or carrier has reasonable or actual notice of a workers’ compensation injury. Failure to provide a claim notice within the 180 day window will result in the claim being barred by the CGIA, as has happened in a number of cases. Once a trial court dismisses a claim as a result of untimely notice, the appeals courts usually provide no sympathy to a CGIA claimant.
The case of The City and County of Denver v. Crandall, 161 P.3d 627 (Colo. 2007) is illustrative of the harsh realities of not meeting the 180-day notice deadline. In that case, customer service agents working for an airliner at DIA alleged an environmental exposure injury caused by the poor air quality in Concourse B. The employees manifested symptoms consistent with the exposure in 1999 through 2002. In 2002, one employee filed a workers’ compensation claim alleging a 1999 date of injury. Multiple injured employees then filed notice of a CGIA claim with the City of Denver. The city claimed that the notice should have been filed within 180 days from the 1999 date of injury as noted on the workers’ compensation claim form. Although the employees demonstrated recurring symptoms in 2002, the Colorado Supreme Court barred the claim against the city on the grounds that the notice should have been filed in 1999. The employees were unable to recover damages against the city. The case, however, does not address whether a workers’ compensation carrier would be able to file a timely CGIA claim if the carrier found out about the injury in 2002. However, it does imply that the 180-day requirement starts ticking when a party, perhaps even the employer, has reasonable evidence that an injury has occurred.
The CGIA also requires that the notice contain specific language. Section 24-10-109(2)(a)-(e), C.R.S. provides that the claim notice requires: (a) the name and address of the claimant and the name and address of his attorney, if any; (b) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) the name and address of any public employee involved, if known; (d) a concise statement of the nature and the extent of the injury claimed to have been suffered; (e) a statement of the amount of monetary damages that is being requested. As a workers’ compensation carrier, the carrier or employer who carries the loss can be considered the “claimant,” as described in section (a). Since the exposure for a workers’ compensation claim may be unknown until several years after the injury, the notice of damages should contain a statement of generalized monetary figures or allegations. The courts often times strictly enforce what is statutorily required to be in the notice. Hamon Contractors, Inc., Carter and Burgess, Inc., 229 P.3d 282, (Colo.App.2009). Though you may serve the written notice within 180 days, failure to include a statement of circumstances of the event, for example, can result in a bar to the claim.
Finally, the written notice must be served with the proper governmental entity. According to the CGIA, “[i]f the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered or certified mail, return receipt requested, or upon personal service.” Section 24-10-109(3)(a). Additionally, subsection (b) states that a “notice required under this section that is properly filed with a public entity’s agent listed in the inventory of local governmental entities pursuant to section 24-32-116, is deemed to satisfy the requirements of this section.” Each governmental agency may have a different division or department designated to receive CGIA claims notices, such as a city attorney or a county clerk. It is advisable to contact the agency several weeks before the notice due date to obtain the name, address and division for the department designated to accept claim notices.
This article only scratches the surface of the CGIA’s complexities. But the most critical aspect of the CGIA, and the greatest obstacle in governmental subrogation recovery, is filing a claim against a government with the 180-day timeframe. Claims against the government can be won and lost depending on whether the timely notice has been met. If the timeframe is not met, the governmental “somebody doing something wrong” entity or employee will be granted immunity under the law even if the government is 100% at fault.