Opinion
June 27, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Goldberg, Vockrodt & Bruce, Sheldon F. Goldberg, Denver, for plaintiffs-appellants.
Rector & Melat, Leo W. Rector, Colorado Springs, for defendant-appellee.
PIERCE, Judge.
Mrs. Vera Ghini was involved in an automobile accident on March 3, 1963, in which she allegedly suffered certain injuries. In June 1969, three months after the statute of limitations had run on her claim, Mrs. Ghini and Aaron Ghini instituted this action against defendant who plead the statute as an affirmative defense. It was stipulated by the parties that the question of the statute of limitations, and equitable estoppel which would toll the statute, would be tried to the court and if plaintiffs were successful as to these issues, the balance of the case would be tried to a jury.
Shortly after the accident, Mrs. Ghini was contacted in behalf of defendant by Mr. Schriner, an employee of an independent adjusting firm. Negotiations between Mrs. Ghini and Schriner continued on an almost monthly basis for some six years after the accident. The full extent of her injuries was not determined at the time of the initial negotiations. By July 1967, most of her bills were assembled, and she made a demand for $15,000, which was rejected by defendant's insurance carrier. Her demand was eventually reduced to $7,500, and the company made a counter-offer of $6,250. The final conversation between Schriner and Mrs. Ghini occurred approximately one week before the statute of limitations ran on her claim. The record is in dispute as to whether or not he told her at that time that he would make another attempt to convince defendant's insurance carrier to accept her demand.
Mrs. Ghini makes no claim of any fraudulent representations on the part of Schriner. Her only claim is that defendant should be estopped from asserting the statute of limitations on the ground that Schriner failed to advise her of the statute of limitations and the consequences of the running of the statute.
The trial court rejected this contention, choosing to believe Schriner's testimony as to all negotiations insofar as Schriner was concerned. The court made a specific finding that Schriner had advised Mrs. Ghini of the six-year statute of limitations at their first meeting, and that it was mentioned several times during the course of negotiation. On the basis of its findings, the court ruled that Mrs. Ghini had not carried the burden of establishing an equitable estoppel which would toll the statute. As a result, the action was dismissed, with prejudice. We agree with that disposition and affirm the trial court.
There is no dispute that C.R.S.1963, 87--1--11, is the statute of limitations applicable and is governing unless tolled by actions of defendant or his agents.
The law regarding this estoppel question was stated by this court in Lee v. City & County of Denver, 29 Colo.App. 256, 482 P.2d 389, wherein it was stated:
'We do not quarrel with the general statement made by the plaintiff that a defendant may not raise the statute of limitations as a defense in those instances where the plaintiff was led to believe that compensation was to be forthcoming for the injuries received as a result of defendant's negligence. See annotation in 24 A.L.R.2d 1413 for a full discussion on this point.
'However, a necessary prerequisite in order for plaintiff to rely upon this doctrine is a showing of a positive acts by the defendants which would have caused the plaintiff to fail to initiate her suit within the statutory period. . . .'
A careful review of this record discloses ample evidence to support the conclusion of the trial court that Mrs. Ghini was aware of the statute of limitations and of its effect if no settlement was achieved within the six-year period. There is no evidence of any statements by Schriner or any other evidence which would form a basis for an equitable estoppel to be asserted against defendant. For these reasons, we will not disturb the trial court's findings of fact. Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.