                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        July 10, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    JANIS NEH LS,

                Plaintiff-Appellant,

    v.                                                   No. 06-1483
                                              (D.C. No. 05-cv-02168-W DM -BNB)
    FA RM ERS A LLIA N CE M U TUAL                         (D . Colo.)
    IN SU RAN CE C OM PA N Y ,
    a Kansas corporation,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




         Plaintiff Janis Nehls appeals the district court’s entry of summary judgment

based on its determination that her automobile-insurance claims against defendant

Farmers A lliance M utual Insurance Company were time-barred by the applicable

statute of limitations. W e affirm.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   Background

      M s. Nehls was injured in a motor-vehicle accident on October 7, 1997. She

made a claim under her automobile-insurance policy issued by Farmers Alliance

M utual Insurance Company, which on its face provided for basic Personal Injury

Protection (PIP) benefits. 1 Shortly after receiving her claim, Farmers Alliance

advised M s. Nehls of her entitlement to basic PIP benefits, described these

benefits, and began making payments for medical expenses, rehabilitation, and

wage loss. Farmers’ Alliance issued its last wage-loss check to M s. Nehls on

August 31, 1998, for payment through October 6, 1998.

      Seven years later, on October 3, 2005, M s. Nehls brought this action

against Farmers Alliance, seeking additional wage-loss payments under enhanced

PIP coverage. 2 She alleged that Farmers Alliance had not advised her of the

availability of enhanced PIP benefits and had not given her the option of

purchasing or declining such protection, as required by the now-repealed

Colorado Auto Accident Reparations Act (CAARA). See Colo. Rev. Stat.

§§ 10-4-706, 10-4-710 (repealed). And “when . . . an insurer fails to offer the


1
       Under the applicable statutory scheme, the Colorado Auto Accident
Reparations Act (repealed effective July 1, 2003), “basic” PIP coverage provided
for up to $400 per week for lost wages for a period of up to 52 weeks, in addition
to payment for bodily injuries and medical expenses. Colo. Rev. Stat.
§ 10-4-706(1)(a)-(d) (repealed).
2
       By statute, optional “enhanced” PIP coverage allowed payment of
additional medical expenses and removed time-and-dollar limitations from
lost-wage coverage. Colo. Rev. Stat. § 10-4-710(2)(a)(I)-(II) (repealed).

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insured optional coverage that satisfies [statutory requirements], additional

coverage in conformity with the offer mandated by statute will be incorporated

into the policy.” Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 554

(C olo. Ct. A pp. 1998).

      Farmers A lliance moved for summary judgment, arguing that M s. Nehl’s

lawsuit was untimely under the three-year statute of limitations for CAARA

claims, set forth in Colo. Rev. Stat. § 13-80-101(1)(j) (amended, effective July 1,

2003). See Nelson v. State Farm M ut. Auto. Ins. Co., 419 F.3d 1117, 1120-21

(10th Cir. 2005). According to Farmers Alliance’s calculations, the statute began

to run with its last payment of wage-loss benefits and expired, at the latest, in

October 2001.

      M s. Nehl countered with the contention that Farmers Alliance had never

offered enhanced PIP benefit coverage to her, that the coverage of her policy was

defective, and that she was unaware of the statutory scheme until she hired

counsel in December 2004. In M s. Nehl’s view, Farmers Alliance’s failure of

notification and lack of coverage meant that the three-year statute of limitations

had not run by the time she filed her complaint. Alternatively, she claimed it

would be equitable to apply the doctrine of statutory tolling.

      For its statute-of-limitations ruling, the district court looked to this court’s

resolution of a similar Colorado case. In Nelson, 419 F.3d at 1121, we noted that

“the accrual date is when [the insured] knew or should have known that [the

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insurer] had not offered him extended PIP benefits.” A nd the insured “should

have known at least by the last date he was paid loss-of-wage benefits under the

basic, limited PIP policy that [the insurer] had not offered him extended benefits.”

Id. Therefore, the district court determined that M s. Nehl’s claims had accrued

with her receipt of the final PIP wage-loss payment in 1998 and were therefore

time-barred after O ctober 2001.

      The district court declined to apply the doctrine of equitable tolling for

several reasons: (1) the Tenth Circuit stated in Nelson that the similar concept of

laches should not be applied to a claim under the Colorado Auto Accident

Reparation Act, id., 419 F.3d at 1120; (2) equitable tolling concerns the

non-disclosure of facts rather than the non-disclosure of law, see Harrison v.

Pinnacol Assur., 107 P.3d 969, 972 (Colo. App. 2004) (In Colorado, “[t]he

discovery rule generally involves an inquiry into when the party bringing the

action acquired knowledge of or should have reasonably discovered the essential

facts, rather than the applicable legal theory”); and (3) M s. Nehls did not explain

her lengthy delay or demonstrate diligence in pursuing her remedies, see First

Interstate Bank of Fort Collins, N.A. v. Piper Aircraft Corp., 744 P.2d 1197, 1201

(Colo. 1987) (en banc) (Even where a statute of limitations is tolled due to

fraudulent concealment, it is tolled in Colorado “only so long as the plaintiff is

unable, by reasonable diligence, to discover the facts necessary for determining

the existence of a claim for relief.”). The district court rejected M s. Nehl’s

                                          -4-
request for “an unlimited extension of the statute of limitations” and granted

Farmers Alliance’s motion for summary judgment. Aplt. App. at 192.

                                     Discussion

      W e review the district court’s grant of summary judgment on statute-of-

limitations grounds de novo. Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1233

(10th Cir. 2006). Summary judgment may be granted where there exists no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law . Fed. R. Civ. P. 56(c); Hackworth v. Progressive Cas. Ins. Co.,

468 F.3d 722, 725 (10th Cir. 2006), cert. denied, 75 U.S.L.W . 3635

(U.S. M ay 29, 2007) (No. 06-1300). In the statute-of-limitations context, the

initial burden is on the moving party to demonstrate that there is no genuine issue

of material fact as to the running of the statute of limitations. See Tiberi v. Cigna

Corp., 89 F.3d 1423, 1428 (10th Cir. 1996). If the moving party makes the

necessary showing and non-moving party invokes the equitable-tolling doctrine,

the non-moving party then has the “burden of proving the existence of facts

which, if proven true, would warrant a tolling of the statute[ ] of limitation.” Id.

      Because our jurisdiction in this case is premised upon diversity of

citizenship, we apply the rule of Erie Railroad Co. v. Tom pkins, 304 U.S. 64

(1938), and look to Colorado law to resolve whether claims are barred by the

statute of limitations, see Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945)

(holding that statutes of limitations are considered substantive matters for

                                         -5-
purposes of the Erie doctrine). Generally, “[w]hether a [Colorado] statute of

limitations bars a particular claim is a question of fact,” but the issue may be

decided as matter of law “if undisputed facts demonstrate that the plaintiff had the

requisite information as of a particular date.” Trigg v. State Farm M ut. Auto. Ins.

Co. 129 P.3d 1099, 1101 (Colo. App. 2005).

       B ased on our review of the parties’ arguments and the appellate record, we

conclude that the district court properly resolved this case. On the

statute-of-limitations issue, it is undisputed that M s. Nehl received wage-loss

payments through October 1998, but did not file her complaint until October

2005. M s. Nehl has provided no convincing reasons for us to depart from the

teachings of Nelson on the accrual date for her type of claim. Accordingly, the

three-year statute of limitations expired four years before M s. Nehl filed suit.

Furthermore, for the reasons stated by the district court, this is not an appropriate

case to toll the statute of limitations.

       The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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