SUMMARY

May 27, 2021

2021COA72

No. 19CA1712, Zook v. El Paso Cnty — Employment Law —

Pensions — Survivor Benefits; Jurisdiction of Courts — Subject 

Matter Jurisdiction — Ripeness

A division of the court of appeals holds, as a matter of first 

impression, that a spouse who is a contingent beneficiary of 

survivor benefits from the other spouse’s pension plan cannot 

pursue breach of contract claims alleging miscalculation of benefits 

while the retiree-spouse is still alive. Because such claims are not 

ripe, the division concludes that the district court lacked 

jurisdiction to grant summary judgment against the spouse and in 

favor of the employer.

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.
COLORADO COURT OF APPEALS 2021COA72

Court of Appeals No. 19CA1712

El Paso County District Court No. 18CV33150

Honorable Timothy Schutz, Judge

Rita M. Zook,

Plaintiff-Appellant,

v.

El Paso County, Colorado; and El Paso County Board of Commissioners,

Defendants-Appellees.

JUDGMENT VACATED AND CASE 

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TOW

Dailey and Berger, JJ., concur

Announced May 27, 2021

David H. Zook, Colorado Springs, Colorado, for Plaintiff-Appellant

Diana K. May, County Attorney, Steven Klaffky, Senior Assistant County 

Attorney, Mary Ritchie, Assistant County Attorney, Colorado Springs, Colorado, 

for Defendants-Appellees
1

¶ 1 This appeal presents a question not yet answered by a 

Colorado appellate court: Can a spouse who is a contingent 

beneficiary of survivor benefits from the other spouse’s pension 

plan pursue breach of contract claims alleging miscalculation of 

benefits while the retiree-spouse is still alive? We answer that 

question in the negative. As a result, we hold that the claims 

asserted by plaintiff, Rita M. Zook (Rita),1 against El Paso County 

(County) and the El Paso County Board of Commissioners (Board of 

Commissioners) were not ripe, and thus the district court lacked 

jurisdiction to enter summary judgment against Rita. Accordingly, 

we vacate the district court’s judgment and remand with directions 

to dismiss for lack of subject matter jurisdiction. 

I. Background

¶ 2 This case arises from a dispute over the calculation and 

payment of retirement benefits. Daniel Zook (Daniel) was employed 

by the County for over twenty-five years. As part of his 

employment, Daniel was enrolled in the El Paso County Retirement 

 1 Because two of the parties involved in this case share the same 

last name, we will refer to them by their first names. We mean no 

disrespect in doing so.
2

Plan (Plan). Daniel receives monthly payments from the Plan, and 

his wife, Rita, asserts that she is an intended third-party beneficiary 

of the Plan because she will receive survivor benefits if she outlives 

Daniel. 

¶ 3 Daniel has brought four lawsuits against the Plan and the El 

Paso County Retirement Board (Retirement Board), all based on 

allegations that his monthly distributions are less than what he is 

owed. In the first three lawsuits, the district court granted 

summary judgment in favor of the defendants, ruling that Daniel’s 

claims were barred by either the statute of limitations or the 

doctrine of claim preclusion. Daniel appealed the district court’s 

orders in every case, and each time, a division of this court affirmed 

the district court’s ruling. See Zook v. El Paso Cnty. Ret. Plan, (Colo. 

App. No. 09CA1686, Nov. 24, 2010) (not published pursuant to 

C.A.R. 35(f)); Zook v. El Paso Cnty. Ret. Plan, (Colo. App. No.

12CA0573, May 16, 2013) (not published pursuant to C.A.R. 35(f)); 

Zook v. El Paso Cnty. Ret. Plan, (Colo. App. No. 16CA1624, Feb. 1, 

2018) (not published pursuant to C.A.R. 35(e)). The Colorado 

Supreme Court denied his petition for certiorari in all three cases. 
3

¶ 4 This appeal stems from Daniel’s fourth suit, in which Rita 

joined Daniel as a plaintiff. Rita and Daniel sued the County and 

the Board of Commissioners, as well as the Plan and the Retirement 

Board. Both Rita and Daniel brought claims of breach of contract 

based on the argument that Daniel’s monthly benefits are being 

miscalculated. The Plan and the Retirement Board filed a motion 

for summary judgment, arguing that Rita’s and Daniel’s claims are

barred by the statute of limitations and the doctrine of claim 

preclusion. The district court agreed and granted their motion. 

The County and the Board of Commissioners filed a motion to 

dismiss, also on the grounds that the claims are barred by the 

statute of limitations and claim preclusion. The district court 

treated that motion as a motion for summary judgment and ruled in 

favor of the County and the Board of Commissioners, concluding

that Rita’s and Daniel’s claims are barred by the statute of 

limitations. 
4

¶ 5 Rita now appeals.2 She argues that the district court 

erroneously granted summary judgment in favor of the County and 

the Board of Commissioners. Although the issue of subject matter 

jurisdiction was not raised below, we conclude that Rita’s claims 

are premature and thus precluded by the doctrine of ripeness.3

II. Rita’s Claims Are Not Ripe

A. Applicable Law

¶ 6 We consider de novo whether an issue is ripe for review. 

Youngs v. Indus. Claim Appeals Off., 2012 COA 85M, ¶ 16. 

¶ 7 Ripeness implicates subject matter jurisdiction. DiCocco v. 

Nat’l Gen. Ins. Co., 140 P.3d 314, 316 (Colo. App. 2006) (“A court 

lacks subject matter jurisdiction to decide an issue that is not ripe 

for adjudication.”). A court may not decide cases over which it does 

not have subject matter jurisdiction. Long v. Cordain, 2014 COA 

177, ¶ 10. “Subject matter jurisdiction cannot be conferred by 

 2 Daniel does not appeal. Additionally, Rita does not appeal the 

district court’s judgment pertaining to the Plan and the Retirement 

Board. 

3 Prior to oral argument, we ordered the parties to submit 

supplemental briefs on the question of whether Rita’s claims were 

ripe when filed in the district court or are ripe now.
5

waiver or consent of the parties; lack of subject matter jurisdiction 

requires dismissal.” Id. The plaintiff bears the burden of 

establishing jurisdiction. Id.; DiCocco, 140 P.3d at 316. 

¶ 8 Whether the district court had subject matter jurisdiction is 

an issue that can be raised at any time in a proceeding. People v. 

Sandoval, 2016 COA 57, ¶ 47. We may raise and resolve it on our 

own motion. Archuleta v. Gomez, 140 P.3d 281, 283-84 (Colo. App. 

2006).

¶ 9 Ripeness tests whether an issue is real, immediate, and fit for 

adjudication. Olivas-Soto v. Indus. Claim Appeals Off., 143 P.3d 

1178, 1180 (Colo. App. 2006). We should “refuse to consider 

uncertain or contingent future matters that suppose a speculative 

injury that may never occur.” Bd. of Dirs., Metro Wastewater 

Reclamation Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 105 P.3d 

653, 656 (Colo. 2005); see also Robertson v. Westminster Mall Co., 

43 P.3d 622, 628 (Colo. App. 2001) (“A court has no jurisdiction . . .

to decide a case on a speculative, hypothetical, or contingent set of 

facts.”).

B. Analysis
6

¶ 10 The Plan is Daniel’s retirement plan and he alone receives the 

monthly benefits from it. Rita asserts that she is an “intended third

party beneficiary” of the Plan, as she is “entitled to the identical 

continuing benefit upon Daniel’s death.” Because Daniel is still 

alive, Rita does not currently receive — and is not contractually 

entitled to receive — any benefits directly from the Plan. Indeed, at 

this time, she has no right whatsoever to distributions from the 

Plan — her benefits are “potential” and “contingent” upon Daniel’s 

death preceding hers. As Rita herself wrote in an affidavit 

submitted to the district court, she is not a current beneficiary of 

the Plan; rather she is merely “the beneficiary of Daniel’s retirement 

benefit should he predecease me.” 

¶ 11 A court cannot adjudicate an uncertain or contingent future 

claim. Metro Wastewater Reclamation Dist., 105 P.3d at 656. That 

is precisely what Rita’s claim is. Even if Rita were to prevail on her 

claims, she would not be entitled to anything. She does not 

currently receive benefits from the Plan. In fact, should she 

predecease Daniel, she would never receive any such benefits. 

¶ 12 We are not persuaded by Rita’s reliance on her 

characterization of Daniel’s benefit as marital property under 
7

section 14-10-113(3), C.R.S. 2020. The statutory definition of 

marital property applies only in the context of a dissolution of 

marriage. See § 14-10-113(2) (providing that the definition of 

marital property set forth in that provision is “[f]or purposes of this 

article only”). In other words, that pension benefits may qualify as 

marital property for purposes of a dissolution of marriage does not 

give one spouse the ability to enforce the other spouse’s claim

related to them, any more than it would give one spouse the right to 

pursue a wage claim, wrongful discharge claim, or personal injury 

claim on the other spouse’s behalf — or give others the right to sue 

one spouse personally to recover on a debt that is (for all purposes 

other than dividing marital assets and debts upon dissolution of the 

marriage) solely the other spouse’s. Indeed, if Daniel had not 

named Rita as a beneficiary of a survivor benefit under the Plan, 

she would never have a claim against the Plan, regardless of the 

fact that Daniel’s benefit would still be marital property. 

¶ 13 To the extent Rita’s argument is based not on the statutory 

definition of marital property, but instead on the fact that she is a 

part of a domestic unit that is economically dependent on the 

pension payments, we are still unconvinced. The mere fact that 
8

Rita, through her husband and through their marital estate, enjoys 

the fruits of the retirement benefit does not give her standing to 

challenge the Plan’s calculation of the retirement benefit. Again, 

were Rita to be afforded standing solely because of her interest in 

Daniel’s income as a member of his household, she could then 

claim standing to assert any claim he might have that would 

ultimately inure to the benefit of the household. We are aware of no 

case — and Rita cites none — in which such an indirect benefit was 

sufficient to confer standing.4 

¶ 14 Rather, any standing she may have would flow from her 

alleged status as a contingent beneficiary as a result of Daniel 

contracting for a survivor benefit. See Peterson v. Fire & Police 

Pension Ass’n, 759 P.2d 720, 723 (Colo. 1988) (holding that 

surviving spouses of police officers who died while still employed by 

 4 Indeed, we have not located a single case anywhere in the country 

in which a spouse designated to receive survivor benefits from a 

pension was permitted — or even attempted — to sue the 

employee-spouse’s employer or the pension plan for breach of 

contract before the employee-spouse died. 
9

the city had standing as third-party beneficiaries to the pension 

contract).5 

¶ 15 But even if we assume she has such standing, ripeness is a 

separate, though related, doctrine. And the contingent nature of 

her benefit means that she does not yet have a right to any funds. 

Rita is not entitled in her own right to any payment from the Plan 

unless and until she survives Daniel. At this time, any injury to 

Rita is uncertain and speculative, not real and immediate. We 

therefore conclude that Rita’s claims are not ripe for adjudication

and were not ripe when they were filed. 

¶ 16 The County agrees that the issue is not ripe, yet it argues that 

we may nevertheless affirm the grant of summary judgment, forever 

barring Rita from pursuing her claims. In essence, the County 

argues that Rita’s claims were both too early and too late. We reject 

this paradoxical argument. 

¶ 17 The County’s reliance on Smith v. Executive Custom Homes, 

Inc., 230 P.3d 1186 (Colo. 2010), is misplaced. In Smith, the 

 5 In light of our determination that Rita’s claims are not ripe, we 

need not, and do not, decide whether Rita actually is a contingent 

beneficiary or whether she has standing. 
10

plaintiffs brought a claim against a homebuilder for personal 

injuries alleged to have been caused by a construction defect in the 

home. Id. at 1188. The district court concluded that the claim was 

untimely under the two-year statute of limitations established in 

the Construction Defect Action Reform Act (CDARA), section 13-80-

104(1)(a), C.R.S. 2020. Smith, 230 P.3d at 1188. On appeal, the 

plaintiffs argued that their claims did not accrue until they suffered 

an injury, not when the construction defect was discovered, and to 

hold otherwise could result in claims being time barred before any 

injury occurred. Id. at 1190. 

¶ 18 The supreme court disagreed, holding that the plain language 

of CDARA provides that “a claim for personal injury arises not at 

the time of injury, but ‘at the time the claimant . . . discovers or in 

the exercise of reasonable diligence should have discovered the 

physical manifestations of a defect in the improvement which 

ultimately causes the injury.’” Id. at 1188 (quoting 

§ 13-80-104(1)(b)(I)). Rejecting the plaintiffs’ argument that this 

interpretation “produces an absurd and unfair result by 

encouraging homeowners to file unripe lawsuits because they will 

be forced to file suit before the injury happens,” id. at 1190, the 
11

supreme court observed that “incentivizing homeowners to resolve 

construction defect issues at the time the defect is first noticed 

rather than waiting until the defect later causes an injury directly 

serves the purpose of streamlining litigation that underlies the

CDARA.” Id. 

¶ 19 Smith is inapposite to this case because it did not involve 

unripe claims. The plaintiffs had suffered an injury (in the sense 

that their home had an actionable defect) as of the moment they 

discovered the defect. The fact that the defect later caused an 

additional actionable injury — this one a physical injury — did not 

change the fact that their claim had already accrued. Perhaps more 

importantly, unlike in the CDARA, the legislature has not 

statutorily defined when a cause of action accrues in the context of 

a contingent beneficiary’s claims against a pension plan. 

¶ 20 Unlike the plaintiffs in Smith, Rita has suffered no actionable 

injury at this time. Thus, contrary to the County’s contention, 

Rita’s unripe claims cannot yet be time barred because they have 

not yet accrued. A cause of action is commonly understood to 

accrue “when a suit may be maintained thereon.” Jones v. Cox, 828 

P.2d 218, 224 (Colo. 1992) (citing Black’s Law Dictionary 19 (5th 
12

ed. 1979)); see also Balt. Gas & Elec. Co. v. Interstate Com. Comm’n, 

672 F.2d 146, 149 (D.C. Cir. 1982) (noting that time limitations 

“can run only against challenges ripe for review”). 

¶ 21 Because Rita’s claims had not accrued when she filed her 

complaint, the district court lacked subject matter jurisdiction to 

entertain these unripe claims. Consequently, it could not resolve 

the claims by entering summary judgment, and that judgment must 

be vacated. 

III. Conclusion

¶ 22 The judgment is vacated. The matter is remanded to the 

district court with instructions to dismiss the action for lack of 

subject matter jurisdiction. 

JUDGE DAILEY and JUDGE BERGER concur.