concurring in part and concurring in the judgment in part.
I agree with the majority that the plaintiffs in this case cannot take advantage of section 13-80-111(1)'s 90-day period in which to refile an action dismissed "because of lack of jurisdiction or improper venue." § 18-80-1111), C.R.S. (2009). Unlike the majority, however, I would interpret the term "jurisdiction" in section 18-80-111(1) as referencing only subject matter jurisdiction, not personal jurisdiction. In my view, because the trial court had subject matter jurisdiction over plaintiffs' suit against the deceased defendant, maj. op. at 714, the suit was not dismissed for lack of "jurisdiction" under seetion 18-80-111(1), and therefore the plaintiffs are not able to take advantage of the provision's 90-day refiling period. Accordingly, I join Part ILA.1 of the majority opinion, and concur in the judgment only as to the remainder of the opinion.
The majority correctly concludes that, when a plaintiff sues a deceased defendant, the trial court has subject matter jurisdiction over the action, but not personal jurisdiction over the defendant. Maj. op. at 714 (a person's lack of capacity to be sued "has no bearing upon a court's subject matter jurisdiction over the case"); id. ("A court cannot exercise personal jurisdiction over a deceased person."). The majority goes wrong, in my view, when it interprets the term "jurisdiction" in section 13-80-111(1) to include both personal and subject matter jurisdiction. Id.
When read in isolation, the term "jurisdiction" could be read, as the majority does, to refer to subject matter or personal jurisdiction. Id. (noting that the statute employs the "generic term 'jurisdiction'"). Yet the term "jurisdiction" in section 13-80-111(1) is not used in isolation. The statute's 90-day refiling period applies when only "an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue ...." § 13-80-111(1) (emphasis added). The mention of improper venue refers to an action that has been dismissed on the ground that it was filed in the wrong court. See, eg., Bd. of County Comm'rs v. Dist. Court, 632 P.2d *7171017, 1020 (Colo.1981) (noting that "jurisdiction is divested" from a court once a proper motion regarding improper venue is filed there). Similarly, a dismissal for lack of subject matter jurisdiction is based on the fact that the action was filed in the wrong court. See maj. op. at 712. By contrast, an action dismissed for lack of personal jurisdiction is a dismissal on the ground that the court lacks "authority over a particular individual" Id. at 714. Under the canon of construction noscitur a sociis, "a word is known by the company it keeps." Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 694, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995); see also Bedford v. Johnson, 102 Colo. 203, 208, 78 P.2d 373, 376 (1938) (defining noscitur a sociis as "the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it" (citation omitted) ). Here, the legislature's use of the term "jurisdiction" in conjunction with term "improper venue" suggests that the statute applies to cases filed in the wrong court, not to those (such as this one) filed against the wrong person. Indeed, the legislature has paired the term "jurisdiction" with the term "venue" elsewhere in the Colorado Revised Statutes to refer only to subject matter jurisdiction. See § 6-4-109, C.R.S. (2009) (entitled "Jurisdiction-venue," and providing that "[plri-mary jurisdiction of any cause of action brought pursuant to [the Colorado Antitrust Act of 1992] shall be vested in the district courts of this state" and "may be brought in any judicial district in which said violation occurred").
Importantly, my disagreement with the majority amounts to more than a mere quibble over statutory interpretation. Under the majority's interpretation of the statute, had the plaintiffs in this case moved for a voluntary dismissal of the case based on lack of personal jurisdiction, and had the trial court dismissed the case at that point, the dismissal would have been one for lack of "jurisdiction" (that is, lack of personal jurisdiction), and the plaintiffs could have taken advantage of the provision's 90-day refiling period. See maj. op. at 714 (noting that "the trial court initially lacked personal jurisdiction over [the defendant]"). The plaintiffs' mistake, then, was to amend their original complaint to add the proper defendants, rather than dismissing and refiling the action to name the proper defendants. By amending the complaint to add the new defendants, the majority reasons, plaintiffs cured their personal jurisdiction problem, and there was no reason to dismiss the case for lack of personal jurisdiction. Id. at 715. The amendments did not relate back to the filing of the original complaint, however, because the new defendants lacked notice, and the case was properly dismissed on statute of limitations grounds. Id. at 715-16.
In my view, a plaintiff's ability to take advantage of section 18-80-111(1)'s 90-day refiling period should not depend upon the fortuity of whether she seeks a voluntary dismissal and refiles her complaint, or amends an existing complaint. Nor should a defendant's ability to raise a successful statute of limitations defense be dependent on the plaintiff's decision to cure a personal jurisdiction defect through dismissal rather than amendment. This problem arises only because the majority interprets-erroncously, in my view-the term "jurisdiction" to include subject matter and personal jurisdiction. Under the interpretation of the statute that I propose, because the trial court's dismissal was not based on lack of subject matter jurisdiction, plaintiffs could not take advantage of the 90-day refiling period. Accordingly, I would affirm the court of appeals, but on a rationale that differs from that adopted by the majority.
Therefore, I respectfully concur in part and concur in the judgment in part.
I am authorized to state that Justice MARTINEZ and Justice COATS join in this opinion concurring in part and concurring in the judgment in part.