BSLNI, Inc. v. Russ Diamonds, Inc, 2012COA214 (December 6, 2012)

Win the battle, lose the war. In this construction contract case, on the evening before trial and after a year of litigation, Defendant moved to dismiss Plaintiff’s tort claim on the grounds that it was barred by the economic loss rule. The trial court did so, ostensibly under CRCP 12(b), but allowed Plaintiff to add a breach of contract claim. Plaintiff won at trial. Defendant sought, but was denied, mandatory attorneys’ fees because the tort claim was dismissed. The court of appeals held that, because Defendant moved to dismiss after the answer was filed, it was a CRCP 12(c) motion, so fee awards are not mandatory. The court also held that when a construction contract provides its own standard by which work must be performed, the contract’s standard applies, not industry standards. And, if a lay person could apply that standard, expert testimony may not be, and was not required here.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2078-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8774&courtid=1

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2 Comments

Filed under Contracts, Evidence, Torts

2 responses to “BSLNI, Inc. v. Russ Diamonds, Inc, 2012COA214 (December 6, 2012)

  1. The opinion in this case was originally unpublished, released on October 4, 2012. It appears that the court of appeals reconsidered its original opinion and then published its revised opinion.

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  2. This opinion is an important one because it clarifies prior confusion regarding the interplay between C.R.S. 13-17-201 and C.R.C.P. 12 — specifically 12(b), 12(c) and 12(h). It also clarifies the Court’s 2011 opinion in Crow, which contributed to that confusion somewhat.

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