Opinion
No. 76-335
Decided May 12, 1977. Rehearing denied June 2, 1977. Certiorari granted August 29, 1977.
Alleging negligence, injured passenger of tramway corporation brought action more than five years after the incident, and more than three years after tramway corporation, a foreign corporation, had filed for withdrawal and had been dissolved in its home state. From dismissal of action, plaintiff appealed.
Affirmed
1. CONFLICT OF LAWS — Choice of Law Situations — Applicable Statute of Limitations — Generally — Law of Forum — Exception — Constitutional Considerations — Impose Greater Liability — Foreign Corporation — Than — Domestic. As a general rule in choice of law situations arising relative to the appropriate statute of limitations to apply in regard to a negligence action against a foreign corporation, the statute of limitations of the forum is controlling; however, additional complications of a constitutional magnitude may make the general rule inapplicable; thus, where application of the forum's general negligence statute of limitations would operate to subject a foreign corporation to a greater liability than is imposed upon a similarly situated domestic corporation, the law of the forum will not be applied.
2. CORPORATIONS — Foreign — No Greater Liabilities — Domestic. A foreign corporation shall not be subjected to any greater liabilities than are imposed upon a domestic corporation.
3. Foreign — Withdrawal — Equated by Analogy — Domestic — Dissolution. The withdrawal of a dissolved foreign corporation is to be equated by analogy with the dissolution of a domestic corporation.
4. STATUTES — Conflicting — Construed — In Pari Materia — Exception — Absurd — Unconstitutional Results — Specific — Prevails Over — General — Presumed an Exception. Conflicting statutes are to be construed in pari materia; however, such construction will not be followed if it leads to absurd or unconstitutional results; and a specific statute prevails over a general one, and is presumed to be intended as an exception to the general statute.
5. LIMITATION OF ACTIONS — Two-Year Statute — Applicable — Withdrawn Foreign Corporation — Negligence Action — Barred. The two-year statute of limitations applicable to a dissolved domestic corporation acts as a special exception to the general six-year statute, and that two-year statute is to be applied with regard to negligence claim asserted against a withdrawn foreign corporation; therefore where foreign corporation received its withdrawal certificate on March 1, 1972, the time for filing a claim against that corporation had run on March 1, 1974, and thus negligence claim not filed until September 24, 1975, was barred.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Henry Henry, Hubert D. Henry, James C. Henry, for plaintiff-appellant.
Hughes Dorsey, Raymond B. Danks, for defendants-appellees Denver Tramway Corporation, Eugene H. Adams, W. A. Alexander, G. B. Aydelott, M. F. Craney, R. B. Danks, Chris Dobbins, Montgomery Dorsey, John Evans, Jr., and A. R. Phipps, and W. A. Alexander, Trustee.
Weller, Friedrich, Hickisch Hazlitt, W. Robert Ward, for defendant-appellee Travelers Indemnity Company.
No appearance for defendant City and County of Denver.
Plaintiff Reba Casselman sued for damages resulting from injuries she sustained while a passenger on a Denver Tramway bus. Defendants' motion to dismiss or in the alternative for summary judgment was granted. Casselman appeals and we affirm.
Based upon the pleadings and the products of discovery the salient facts as found by the trial court are these: Plaintiff alleged that, on October 3, 1969, while a fare paying passenger on a bus operated by the Denver Tramway Corporation, she sustained personal injuries proximately caused by the negligence of the bus driver.
On March 5, 1971, the stockholders of Tramway, a Delaware corporation, adopted a "Plan of Complete Dissolution" pursuant to Delaware's Corporation Code. Thereafter, The City and County of Denver condemned and took possession of the properties and equipment of Tramway.
On November 23, 1971, the Secretary of State of Delaware issued a Certificate of Dissolution to Tramway. Under Delaware law, Tramway would remain liable for its prior negligence for three years after the issuance of the dissolution certificate or until November 23, 1974.
On March 1, 1972, the Court of Chancery, New Castle County, Delaware, appointed W. A. Alexander trustee of the assets of Tramway to pay its claims and liabilities and to distribute remaining proceeds to stockholders pursuant to the Chancery Court's directions. All assets were subsequently transferred to W. A. Alexander and were held by him in the Delaware Trust Company, and disbursements were made only by order of the Chancery Court.
Also on that date, Tramway, which was qualified to do business in Colorado, was issued a "Certificate of Withdrawal" by the Colorado Secretary of State.
On September 24, 1975, nine days before the general Colorado Statute of Limitations, § 13-80-110, C.R.S. 1973, would have barred the action, Casselman filed suit against Tramway, certain members of its board of directors, the corporation's trustee — W. A. Alexander, Travelers Indemnity Company, and the City and County of Denver.
In this suit, the trial court dismissed the claim against the defendant City and County of Denver, and that dismissal is unchallenged on this appeal. Also, the trial court determined that the Delaware three-year statute of limitations controlled and consequently it dismissed the suit against the remaining defendants. While we disagree with the trial court's application of Delaware law in dismissing the suit, nevertheless, we affirm the judgment since in our view Colorado law would also bar the complaint.
[1] As a general rule in choice of law situations such as this, the statute of limitations of the forum is controlling. Smith v. Kent Oil Co., 128 Colo. 80, 261 P.2d 149 (1953); and Restatement (Second) Conflict of Laws § 142(2). However, additional complicating factors of a constitutional magnitude are present here. Specifically, if we were to apply the general negligence statute of limitations, § 13-80-110, C.R.S. 1973, to Tramway, it would subject a foreign corporation to greater liabilities than are imposed upon a similarly situated domestic corporation. This we cannot do.
At the time of the alleged negligence and up until March 1, 1972, when it received a Certificate of Withdrawal, Tramway was operating in this state as a foreign corporation. And, as to foreign corporations authorized to do business in Colorado, § 7-9-104, C.R.S. 1973, provides:
"A foreign corporation which has received a certificate of authority under this code shall, until a certificate of . . . withdrawal has been issued . . . enjoy the same but no greater rights and privileges as a domestic corporation . . . and . . . shall be subject to the same duties, restrictions, penalties, and liabilities imposed upon a domestic corporation of like character."
See Holmes v. Jewett, 55 Colo. 187, 134 P. 665 (1913); Iron Silver Mining Co. v. Cowie, 31 Colo. 450, 72 P. 1067 (1903).
[2] It is a necessary corollary to this rule that a foreign corporation shall not be subjected to any greater liabilities than are imposed upon a domestic corporation. American Smelting Refining Co. v. Colorado, 204 U.S. 103, 27 S.Ct. 198, 51 L.Ed. 393 (1907).
[3] While there is no provision in the Colorado Corporate Code regarding the period of continued liability for withdrawn corporations, it is logical to equate by analogy withdrawal of a dissolved foreign corporation with the dissolution of a domestic corporation. This is especially true where the foreign corporation has withdrawn pursuant to dissolution in its home state.
Section 7-8-122(1), C.R.S. 1973, provides with respect to dissolved domestic corporations that:
"The dissolution of a corporation in any manner shall not take away or impair any remedy available to or against the corporation, its directors, officers, or shareholders for any right or claim existing or any liability incurred prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of the dissolution." (emphasis supplied)
[4] Since Colorado has adopted a two-year statute of limitations applicable to dissolved domestic corporations, it would be both illogical and unconstitutional to apply to a foreign corporation, which has been dissolved pursuant to the laws under which it is governed by its state of incorporation, and which has received a Certificate of Withdrawal from Colorado, a statute of limitations which would subject it to liability for a period longer than that which Colorado would apply to a dissolved domestic corporation. See American Smelting Refining Co. v. Colorado, supra.
Wherever possible, conflicting statutes are to be construed in pari material. State v. Beckman, 149 Colo. 54, 368 P.2d 793 (1961). However, such construction will not be followed if it leads to absurd or unconstitutional results. See Colorado Southern Ry. v. District Court, 177 Colo. 162, 493 P.2d 657 (1972). Moreover, a specific statute prevails over a general one, § 2-4-205, C.R.S. 1973; Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199, 444 P.2d 277 (1968), and is presumed to be intended as an exception to the general statute. Section 2-4-205, C.R.S. 1973; Ruth v. Eagle-Picher Co., 225 F.2d 572 (10th Cir. 1955).
[5] Here, the two-year statute of limitations acts as a special exception to the general six-year statute. And, as noted, to apply the six-year statute under the facts of this case would lead to illogical and possibly unconstitutional results by subjecting Tramway to greater liability as a foreign corporation than it would be subjected to as a domestic corporation.
Tramway received its withdrawal certificate on March 1, 1972.
While § 7-8-105(1), C.R.S. 1973, requires that notice be given to "known creditors" prior to dissolution of a domestic corporation, the record is devoid of any evidence (by affidavit or otherwise) that Tramway knew of Casselman's claim thus making her a "known creditor." Absent such contention we know of no reason to require Tramway to assert or prove its lack of prior knowledge of the claim. To do so would, in effect, call into question the validity of the withdrawal certificate. We should presume compliance with statutory requirements, rather than indulge in a contrary presumption. See Town of Frisco v. Brower, 171 Colo. 441, 467 P.2d 801 (1970). Thus, there is no basis for us to hold, sua sponte, in a collateral attack, that because there is no proof that notice was given to Casselman the certificate of withdrawal was improperly issued.
By application of § 7-8-122, C.R.S. 1973, the time for filing a claim against Tramway had run on March 1, 1974. Since Casselman's claim was not filed until September 24, 1975, her action was barred.
Judgment affirmed.
JUDGE PIERCE concurs.
JUDGE BERMAN dissents.