Nesjan v. J & A Distributing, Inc.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 2, 2025

2025COA81

No. 24CA1639, Nesjan v. J & A Distributing, Inc. — Limitation
of Actions — General Limitation of Actions Three Years — Tort
Actions for Bodily Injury or Property Damage Arising out of the
Use or Operation of a Motor Vehicle

Under section 13-80-101(1)(n)(I), C.R.S. 2025, all tort claims

for bodily injury or property damage arising out of the use or

operation of a motor vehicle must be brought within three years

after the claim accrues. In this negligence action involving a

plaintiff who suffered injuries while inspecting a customer’s box

truck, a division of the court of appeals interprets the phrase

“use . . . of a motor vehicle” in the statute of limitations. The

division holds, as a matter of first impression, that this phrase

encompasses a person who was hired to inspect and repair a motor

vehicle and who sustained bodily injuries during performance of

those maintenance-related activities. Accordingly, the division
reverses the district court’s judgment dismissing the plaintiff’s

complaint as untimely and remands the case for further

proceedings.
COLORADO COURT OF APPEALS 2025COA81

Court of Appeals No. 24CA1639
El Paso County District Court No. 24CV30892
Honorable Amanda J. Philipps, Judge

Tormod Marc Nesjan,

Plaintiff-Appellant,

v.

J & A Distributing, Inc., Tony Vasquez, and Judith Vasquez,

Defendants-Appellees.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE KUHN
Moultrie and Bernard*, JJ., concur

Announced October 2, 2025

Bradford Pelton, P.C., Alex D. Kerr, Colorado Springs, Colorado, for Plaintiff-
Appellant

Lasater & Martin, P.C., Janet B. Martin, Greenwood Village, Colorado, for
Defendants-Appellees

* Sitting by assignment of the Chief Justice under provisions of Colo. Const.
art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Section 13-80-101(1)(n)(I), C.R.S. 2025, provides that “[a]ll tort

actions for bodily injury or property damage arising out of the use

or operation of a motor vehicle” must be commenced within three

years after the cause of action accrues. (Emphasis added.) In this

case, the district court applied the two-year statute of limitations in

section 13-80-102(1)(a), C.R.S. 2025, which addresses negligence

actions generally, and it dismissed as untimely the negligence

action that plaintiff, Tormod Marc Nesjan, filed three years after he

suffered serious injuries while inspecting a box truck owned by

defendants, J & A Distributing, Inc., Tony Vasquez, and Judith

(Judy) Vasquez (collectively, J & A Distributing). We consider the

meaning of the phrase “use . . . of a motor vehicle” in section

13-80-101(1)(n)(I), and we hold that this phrase encompasses a

person who was hired to inspect and repair a motor vehicle and

who sustained bodily injuries during performance of those

maintenance-related activities. Accordingly, we reverse the district

court’s judgment of dismissal on statute of limitations grounds

under C.R.C.P. 12(b)(5) and remand the case for further

proceedings.

1
I. Background

¶2 We draw the following factual background from the record on

appeal, including the allegations in Nesjan’s complaint.

¶3 On May 14, 2021, Nesjan, a mechanic, agreed to inspect a box

truck owned by J & A Distributing for a suspected driveshaft

problem. One of the company’s owners, Tony Vasquez,1 drove the

box truck from the company’s premises to the driveway of Nesjan’s

nearby mechanic shop. In preparation for the work that he was

hired to do, Nesjan put the truck’s gearshift in park, engaged the

emergency brake, and placed wheel chocks under the tires.

¶4 Then Nesjan went underneath the box truck to check the

condition of the driveshaft. He “observed extremely loose bearings

and bolts on the [part of the] driveshaft where it connected to the

front end of the truck.” Nesjan alleged that, during his inspection,

the driveshaft came loose, causing the entire box truck to roll

backward and over him. He sustained serious bodily injuries in the

accident, including fractured ribs, a broken neck, a broken back,

and a broken right leg.

1 Judy Vasquez is the other owner of J & A Distributing.

2
¶5 On May 14, 2024, the three-year anniversary of the accident,

Nesjan filed the underlying lawsuit against J & A Distributing. He

asserted claims for negligence and negligence per se based on J & A

Distributing’s alleged failure to maintain the box truck in good

mechanical condition. J & A Distributing moved to dismiss the

action under C.R.C.P. 12(b)(5). As relevant to this appeal, J & A

Distributing argued that Nesjan’s claims were barred because he

brought them outside the two-year statute of limitations set forth in

section 13-80-102(1)(a) for most tort actions.2 In his response to

the motion to dismiss, Nesjan argued that his claims were subject

to the longer three-year limitations period applicable to tort actions

arising out of motor vehicle accidents because he had been injured

in an accident “involving the use and/or operation” of the box

truck. See § 13-80-101(1)(n)(I). Specifically, Nesjan asserted that

he had “used” the box truck by inspecting its undercarriage for the

purported issue with the driveshaft.

2 J & A Distributing also argued that it owed no duty of care to

Nesjan and that it violated no statute, rule, or regulation that could
support a finding of negligence per se. Because the district court
dismissed the case based on the statute of limitations, it didn’t
address these additional arguments, and we offer no opinion on
them.

3
¶6 The district court agreed with J & A Distributing. The court

concluded that the limitations period contained in section

13-80-101(1)(n)(I) didn’t apply to Nesjan’s cause of action because,

at the time of the accident, “the [box] truck at issue was stationary

and not in active ‘use or operation’” by Nesjan or J & A Distributing.

And because Nesjan filed his negligence action after the applicable

two-year statute of limitations had run, the district court dismissed

the action as untimely.

II. Analysis

¶7 Nesjan contends that the district court erred by concluding

that his claims are governed by the expired two-year statute of

limitations, instead of the three-year statute of limitations, because

the claims arise out of the use or operation of a motor vehicle within

the meaning of section 13-80-101(1)(n)(I). We agree and, therefore,

reverse.

A. Standard of Review and Applicable Law

¶8 The purpose of a C.R.C.P. 12(b)(5) motion to dismiss for failure

to state a claim upon which relief can be granted is to test the legal

sufficiency of a plaintiff’s complaint. Norton v. Rocky Mountain

Planned Parenthood, Inc., 2016 COA 3, ¶ 12, aff’d, 2018 CO 3. A

4
defendant can raise a statute of limitations defense under Rule

12(b)(5) when “the bare allegations of the complaint reveal that the

action was not brought within the required statutory period.”

SMLL, L.L.C. v. Peak Nat’l Bank, 111 P.3d 563, 564 (Colo. App.

2005). We review de novo a district court’s dismissal of a claim on

expired statute of limitations grounds. Gomez v. Walker, 2023 COA

79, ¶ 7. Likewise, we review questions of statutory interpretation de

novo. Roane v. Elizabeth Sch. Dist., 2024 COA 59, ¶ 23.

¶9 When interpreting a statute, our task is to ascertain and give

effect to the legislature’s intent. Id. at ¶ 24. We begin this inquiry

by considering the plain language of the statute, giving its words

and phrases their plain and ordinary meanings. Id. In doing so,

“[w]e look to the entire statutory scheme to give consistent,

harmonious, and sensible effect to all of its parts, and we avoid

constructions that would render any words or phrases superfluous

or that would lead to illogical or absurd results.” Id. Because we

presume that the legislature acts intentionally when selecting the

words used in a statute, see Dep’t of Transp. v. Stapleton, 97 P.3d

938, 943 (Colo. 2004), we avoid constructions that would add to, or

5
subtract from, the words that the legislature has chosen, Nieto v.

Clark’s Mkt., Inc., 2021 CO 48, ¶ 12.

¶ 10 When more than one statute of limitations could apply to a

particular action, we must employ the following rules of statutory

construction to determine the governing limitations period: “(1) the

more specific of two statutes applies; (2) the later-enacted statute

applies over the earlier-enacted statute; and (3) because statutes of

limitation are in derogation of a presumptively valid claim, the

longer statutory period for filing a lawsuit applies over the shorter

period.” City & County of Denver v. Gonzales, 17 P.3d 137, 140

(Colo. 2001).

B. The District Court Erred by Dismissing
Nesjan’s Claims as Untimely

¶ 11 Two statutes of limitation are at play in this case. The statute

that the district court applied, section 13-80-102(1)(a), establishes a

general two-year statute of limitations for all tort actions that don’t

arise out of a motor vehicle accident. Under section

13-80-101(1)(n)(I), “[a]ll tort actions for bodily injury or property

damage arising out of the use or operation of a motor vehicle” must

be commenced within three years after the cause of action accrues.

6
A claim accrues on the date that both the injury and its cause are

known, or should have been known, by the exercise of reasonable

diligence. § 13-80-108(1), (12), C.R.S. 2025.

¶ 12 It’s undisputed that Nesjan’s claims accrued on May 14, 2021,

the date of the accident. Thus, the timeliness of Nesjan’s negligence

action, filed three years later, turns on whether it implicated bodily

injuries arising out of the “use or operation” of the box truck, as

contemplated by section 13-80-101(1)(n)(I). See Gonzales, 17 P.3d

at 141 (holding that the three-year statute of limitations applies to

all tort actions arising out of the use or operation of a motor vehicle,

regardless of whether the alleged tortfeasor was using or operating

a particular motor vehicle). The statute doesn’t say what qualifies

as “use” or “operation” of a motor vehicle, so we look to the plain

meaning of those undefined terms. See Edwards v. New Century

Hospice, Inc., 2023 CO 49, ¶ 20.

¶ 13 Black’s Law Dictionary defines “use” as meaning “[t]o employ

[a thing] for the accomplishment of a purpose; to avail oneself of.”

Black’s Law Dictionary 1862 (12th ed. 2024). Similarly,

Merriam-Webster defines “use” as “to put into action or service,” “to

carry out a purpose or action by means of.” Merriam-Webster

7
Dictionary, https://perma.cc/8CXS-2SDH. And the term “operate”

is defined in Black’s Law Dictionary as “[t]o direct, put into action,

or maintain the functioning of . . . ; to engage, use, and control (a

machine, computer, equipment, etc.).” Black’s Law Dictionary at

1312.

¶ 14 Considering the plain and ordinary meanings of these terms

and the circumstances of this case, we conclude that Nesjan’s

injuries arose out of the use of a motor vehicle within the meaning

of section 13-80-101(1)(n)(I). See Aetna Cas. & Sur. Co. v.

McMichael, 906 P.2d 92, 102-03 (Colo. 1995) (noting that, in

determining whether an activity constitutes the use of a motor

vehicle, courts must evaluate the activity “as part of the totality of

the circumstances present in the case”). Nesjan’s complaint alleged

that J & A Distributing hired him to “adequately inspect [the box

truck] and diagnose any issues that were readily visible and give his

opinion on those issues,” including issues concerning the driveshaft

located underneath the truck. To complete that work, he allegedly

put the box truck in park, engaged the emergency brake, placed

wheel chocks under its tires, and went underneath the truck to

inspect its undercarriage. During the inspection, Nesjan’s

8
complaint further alleged, he sustained serious bodily injuries when

the driveshaft dislodged, causing the truck to move backward and

roll over him. Given these allegations, and Nesjan’s claims that he

used the box truck to carry out the mechanical services for which

J & A Distributing hired him, we cannot say that “the bare

allegations of the complaint reveal that the action was not brought

within the required statutory period.” SMLL, L.L.C., 111 P.3d at

564.

¶ 15 True, in performing those services, Nesjan didn’t physically

operate the box truck by moving it forward, backing it up, or even

running its engine. And as J & A Distributing points out, the truck

was stationary, secured, and unoccupied at the time of the

accident. But these circumstances aren’t dispositive in determining

whether Nesjan’s actions amounted to the use of a motor vehicle

under section 13-80-101(1)(n)(I). While no published Colorado

appellate decision has addressed the meaning of that italicized

phrase in the statute of limitations, our appellate courts have

interpreted identical language in considering whether an insured

was entitled to recover benefits under a motor vehicle insurance

policy and relevant statutes. In those cases, courts broadly

9
construed the phrase by concluding that it encompassed other uses

of a vehicle than mere transportation. The case that Nesjan cites in

his briefing, Great Plains Insurance Co. v. Angerman, 833 P.2d 810

(Colo. App. 1991), illustrates this point.

¶ 16 In Angerman, a division of this court considered whether an

insured was entitled to recover personal injury protection (PIP)

benefits under a motor vehicle liability insurance policy and the

former Colorado Auto Accidents Reparation Act (No-Fault Act). Id.

at 810-11. The statute provided that an insured person could

recover those benefits “because of bodily injury arising out of the

use or operation of a motor vehicle.” Id. at 811 (quoting

§ 10-4-706(1)(b), (c), C.R.S. 1987). Angerman was seriously injured

while inspecting a vehicle’s brakes when the vehicle fell off a jack

and onto him. Id. The division concluded that he qualified for PIP

benefits because his “repair activities constitute[d] a ‘use’ of the

vehicle within the meaning of [the No-Fault Act]” and “there [was] a

‘causal connection’ between injuries occurring during the course of

repairing a vehicle and the use of that vehicle.” Id. at 812. In so

concluding, the Angerman division observed that, “for purposes of

the [No-Fault Act], injuries arise from the use of a vehicle even if the

10
vehicle is being used for a purpose other than transportation.” Id.

The division also observed that, unlike similar statutes in some

other jurisdictions, the No-Fault Act didn’t contain a provision

excepting maintenance-related activities from the “generally broad

concept of ‘use.’” Id.

¶ 17 The facts in Angerman are similar to those in this case, and we

find the division’s reasoning instructive. Like Angerman, Nesjan

alleged in his complaint that he had sustained bodily injuries while

inspecting a stationary motor vehicle for a reported mechanical

problem. And the statute at issue in Angerman contained identical

language to that found in section 13-80-101(1)(n)(I).

¶ 18 But beyond this, the Colorado Supreme Court has concluded

time and again that an activity qualifies as a use of a motor vehicle

as long as the activity, among other things, isn’t foreign to the

vehicle’s inherent purpose. Such purposes include not only

transportation and related activities but also any other use of a

vehicle that is consistent with its specific characteristics. See

Trinity Universal Ins. Co. v. Hall, 690 P.2d 227, 228-29, 231 n.4

(Colo. 1984) (concluding that a customer’s bodily injuries arose out

of the use of a motor vehicle within the meaning of the No-Fault Act

11
when the customer was injured while buying refreshments from a

truck that had been “factory-modified for use as a catering truck

and mobile refreshment stand”); Kohl v. Union Ins. Co., 731 P.2d

134, 135-36 (Colo. 1986) (concluding that the plaintiffs’ injuries

arose out of a hunter’s use of a motor vehicle for the purposes of

section 42-7-413(1)(c), C.R.S. 2025, when the hunter discharged a

rifle from the vehicle that was “specially designed to perform on the

rugged terrain often associated with hunting areas,” and he “had

installed a gun rack in his vehicle to facilitate that use of [it]”);

McMichael, 906 P.2d at 94, 101-03 (concluding that a highway

construction worker’s injuries, stemming from his use of a truck

“specially equipped with an overhead beacon and emergency

flashers” as a barricade from oncoming traffic, were covered by the

uninsured motorist policy because “the truck was intended to be

used as a protective device”); cf. State Farm Mut. Auto. Ins. Co. v.

Kastner, 77 P.3d 1256, 1258-60, 1265-66 (Colo. 2003) (determining

that the injuries of a victim who was sexually assaulted inside a

noncommercial passenger car didn’t arise out of the use of a motor

vehicle for the purposes of the No-Fault Act and the

uninsured/underinsured (UM/UIM) motorist statute because the

12
car had “no plain and obvious inherent purpose as a vehicle other

than the safe transportation of its passengers and cargo”).

¶ 19 In our view, a mechanic who sustains bodily injuries during

inspection and repair of a motor vehicle is using the vehicle in a

manner that is not foreign to its inherent purpose. While motor

vehicles are primarily used for transportation, maintenance

activities are closely related to that purpose because only

operational vehicles can be used for transportation of people and

cargo. At the time of the accident, Nesjan was inspecting the box

truck for a suspected driveshaft issue to determine what repairs

were necessary to resolve that issue. Put differently, Nesjan’s

injuries arose out of actions that were intended to return the truck

to a condition in which J & A Distributing could resume safe

operation of the vehicle. Under these circumstances, his conduct

was not only related to the operation of the truck but was essential

to its continued use as a means of transportation. Cf. Kastner, 77

P.3d at 1262 (“Although the term ‘use’ is broad enough to cover

activities beyond mere ‘transportation,’ it is not so broad as to

include acts that are clearly independent of a vehicle’s operation.”).

13
¶ 20 To be sure, J & A Distributing correctly points out that, while

this case centers on the timeliness of Nesjan’s tort action, the

above-referenced cases implicated statutory schemes governing an

individual’s contractual right to recover certain benefits under a

motor vehicle insurance policy. And as J & A Distributing further

notes, those statutes generally promote different public policy

interests than the statutes of limitation do. For example, one of the

purposes of the former No-Fault Act was “to provide compensation

to ‘victims of automobile accidents’ by providing ‘benefits to persons

occupying such vehicles’ and to other persons ‘injured in accidents

involving such vehicles.’” Angerman, 833 P.2d at 811 (quoting

§ 10-4-702, C.R.S. 1987). In contrast, “[t]he purposes behind

statutes of limitations are to ‘promote justice, discourage

unnecessary delay, and preclude the prosecution of stale claims.’”

City & County of Denver v. Bd. of Cnty. Comm’rs, 2024 CO 5, ¶ 53

(quoting Gunderson v. Weidner Holdings, LLC, 2019 COA 186, ¶ 9).

But despite these differences, we can’t simply brush aside the

jurisprudence surrounding the meaning of “use . . . of a motor

vehicle” in the context of the No-Fault Act and other insurance

coverage statutes when interpreting the same phrase in section

14
13-80-101(1)(n)(I). After all, the statutory history of section

13-80-101 reveals a close connection between that statute and the

No-Fault Act.

¶ 21 Sections 13-80-101 and -102 were repealed and reenacted

together in 1986. While the 1986 version of section 13-80-101

prescribed a three-year statute of limitations for “[a]ll actions

under” the No-Fault Act, it didn’t include a similar provision for tort

actions based on personal injury. Ch. 114, sec. 1, § 13-80-101(1)(j),

1986 Colo. Sess. Laws 695-96. Indeed, the General Assembly

added subsection (1)(n)(I) much later in response to the supreme

court’s decision in Jones v. Cox, 828 P.2d 218 (Colo. 1992).

¶ 22 In Jones, the majority held that the three-year limitations

period for actions under the No-Fault Act applied not only to an

insured’s contractual claims against their insurer but also to the

insured’s tort claims against a third party. Id. at 222. Chief Justice

Rovira dissented from this holding. He noted that for purposes of

section 13-80-101, actions under the No-Fault Act only included

first-party contract claims between an insured and that person’s

insurance carrier. Id. at 226 (Rovira, C.J., concurring in part and

dissenting in part). “The [No-Fault] Act [didn’t] govern third-party

15
tort actions arising from automobile accidents, and it [didn’t] create

a cause of action in tort.” Id. Chief Justice Rovira reasoned that

because first-party claims under the No-Fault Act were contractual

in nature, “the General Assembly provided a three-year statute of

limitations for them, consistent with the statutes of limitations for

other contract actions.” Id. Accordingly, he concluded that this

limitations period didn’t apply to third-party tort claims under the

No-Fault Act, such as an individual’s personal injury action against

the driver of another vehicle. Id.

¶ 23 Roughly two years later, the General Assembly amended

section 13-80-101 to add subsection (1)(n)(I) and (II). See Ch. 348,

sec. 1, § 13-80-101, 1994 Colo. Sess. Laws 2824. As part of the

same bill, the legislature also amended section 13-80-102(1)(a) to

provide that the general two-year statute of limitations didn’t apply

to tort actions governed by subsection (1)(n)(I). See Sec. 2,

§ 13-80-102, 1994 Colo. Sess. Laws at 2825. Under the amended

statute — and as currently written — the three-year limitations

period in subsection (1)(n)(I) broadly governs “all actions pursuant

to paragraph (j) of this subsection (1).” § 13-80-101(1)(n)(I)

(emphasis added). While the No-Fault Act was repealed effective

16
July 1, 2003, see Ch. 189, sec. 1, § 10-4-726, 2002 Colo. Sess.

Laws 649, subsection (1)(j) has since been amended to provide that

it applies to all actions under the UM/UIM motorist statute, see Ch.

234, sec. 8, § 13-80-101, 2003 Colo. Sess. Laws 1572.

¶ 24 This statutory history of section 13-80-101 shows that the

General Assembly intended for the three-year statute of limitations

to govern all actions brought under the provisions of relevant motor

vehicle insurance statutes, irrespective of whether those actions

were based on contract or tort. See Gonzales, 17 P.3d at 140-41

(discussing, among other things, an argument that “the General

Assembly’s sole intent in enacting the three-year statute was to

resolve [the] inconsistency” identified by Jones’s partial dissent). It

also suggests that the legislature wanted the phrase “use . . . of a

motor vehicle” in subsection (1)(n)(I) to have the same meaning as it

does under the statutes to which section 13-80-101 has historically

applied. Accordingly, the statutory history of the statute of

limitations and the insurance coverage authorities bolster our

determination that Nesjan’s injuries arose out of the use of a motor

vehicle within the meaning of subsection (1)(n)(I).

17
¶ 25 Finally, the three interpretive rules that we employ to

determine the applicable statute of limitations when, as here, more

than one statute could govern a particular action weigh in favor of

applying the three-year limitations period to Nesjan’s claims. See

Gonzales, 17 P.3d at 140. First, section 13-80-101(1)(n)(I) is a more

specific statute than section 13-80-102(1)(a) because it applies to

personal injury actions arising out of motor vehicle accidents. See

Gonzales, 17 P.3d at 140. Section 13-80-102(1)(a) is a general

statute of limitations for all tort actions that don’t fall within the

ambit of section 13-80-101(1)(n)(I) or other specific statutes.

Second, as noted above, the General Assembly passed subsection

(1)(n)(I) years after it had enacted section 13-80-102(1)(a). See

Gonzales, 17 P.3d at 140. And third, section 13-80-101(1)(n)(I)

prescribes a longer period in which a plaintiff like Nesjan must

assert his claims. Accordingly, the application of the longer

limitations period under section 13-80-101(1)(n)(I) preserves

Nesjan’s “presumptively valid claim[s].” Gonzales, 17 P.3d at 140.

¶ 26 For the foregoing reasons, then, we hold that the district court

erred by concluding that the two-year statute of limitations under

section 13-80-102(1)(a), as opposed to the three-year limitations

18
period under section 13-80-101(1)(n)(I), applies to Nesjan’s

negligence claims against J & A Distributing. And because Nesjan

asserted those claims within three years of the motor vehicle

accident, the court erred by dismissing his complaint as untimely.

III. Disposition

¶ 27 The judgment is reversed, and the case is remanded to the

district court with directions to reinstate Nesjan’s complaint.

JUDGE MOULTRIE and JUDGE BERNARD concur.

19