Tag Archives: Construction

Mid Valley Real Estate Solutions V, LLC, v. Hepworth-Pawlak Geotechnical, Inc.; Steve Pawlak; Daniel Hardin; and S K Peightal Engineers, Ltd., 2013COA119 (August 1, 2013)

Soils swelled, cracking substructure; single-asset subsidiary sues. Residential homebuilders owe an independent duty to homeowners to build a home with reasonable care. In this CAR 4.2 interlocutory appeal, Defendant homebuilders argued that the economic loss rule should prevent a corporate subsidiary of a bank from bringing tort claims that a natural-person homeowner could bring. Rejecting each of Defendants’ arguments, the court of appeals held that the independent duty owed by homebuilders announced in Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041(Colo. 1983) also prevents the economic loss rule from barring a corporate-plaintiff’s construction defect claims. A homebuilder’s duty of care is owed to any subsequent owner of a house because the duty arises from the residential nature of the project, not the nature of the homeowner (corporate or otherwise).

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/13CA0519-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9049&courtid=1

 

2 Comments

Filed under Contracts, Corporations, Interlocutory Review, Torts

David Daniel Byerly v. Bank of Colorado and Delta Properties II, LLC, 2013COA35 (March 14, 2013)

“Pigs get fat, hogs get slaughtered.” – Anonymous. This case involves a failed real estate development. After it failed, Contractor filed a mechanic’s lien to recover the higher “value” of his services rather than the contract price. The trial court found for Contractor on the mechanic’s lien claim, and against Defendant Bank (the then owner) on its excessive lien claim. The court of appeals reversed both judgments and held that, under CRS 38-22-101 subpart (2), a contractor’s lien is for the contract price; under (3) a subcontractor’s lien is for the “value” of their services. Contractor’s lien was excessive under CRS 38-22-128 because he knew when the lien was filed that two conditions precedent had not been met, and thus knew the amount claimed was not “due.” The trial court’s contrary factual findings were clearly erroneous. Contractor lost all rights to his lien.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0721-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8867&courtid=1

Leave a comment

Filed under Contracts

Curtis Vagneur and Jeffrey Evans v. City of Aspen et. al., 2013CO13 (February 11, 2013)

“If angels were to govern men, neither external nor internal controls on government would be necessary.” Federalist Papers #51. This seemingly modest case raises complicated questions about the separation of powers. At issue were two citizen-initiated proposed ordinances in Aspen and whether they were “legislative” or “executive.” Only legislative acts are proper subjects of voter initiatives. Administrative acts, which are executive in nature, are not permissible initiatives. Legislative acts establish generally applicable rules that weigh broad policy considerations. Executive acts are case-specific, discretionary and typically require specialized knowledge. The Court held, over two dissents, that the initiatives here were impermissible because they were specific proposals on the location, design and construction of a road, and thus, administrative.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2009/09SC1022.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8826&courtid=2

Leave a comment

Filed under Administrative, Constitutional, Government

Donald Yale v. AC Excavating, Inc., 2013CO10 (February 4, 2013)

You are not defined by what you do – nor is your LLC. An LLC created for the purpose of developing a property suffers major financial problems. The sole member and manager loaned his own funds to the company. The LLC fails anyway. An excavation company doing work for the LLC does not get paid in full and sues. By the time of trial, the member was the the last defendant standing. Excavator claimed the funds loaned to the LLC should have been held in trust under the Construction Trust Fund Statute – CRS 38-22-127. The Court disagreed. The loan was made for general operations, not specific construction activities. There is a distinction between the contractor (here, the LLC) and the project. Examining the totality of the circumstances, the Court concluded the loaned funds were not funds disbursed “on a construction project.” Thus, the manager was not liable for not holding the funds in trust.

Leave a comment

Filed under Corporations, Trusts & Estates

Extreme Construction Co. v. RGC Glenwood, LLC and Mike Spradlin, 2012COA220 (December 27, 2012)

Ambiguity keeps lawyers employed. In this case, a construction contract had an ambiguous “Cost/Plus” price provision that “included, without limitation” “wages [of] construction workers directly employed.” Owner believed the price was limited to the actual cost of wages. Builder believed “costs” referred to fixed wage rates that included unemployment insurance, workers’ compensation, and other expenses. Owner did not object to Builder’s interpretation until after litigation arose. The court of appeals held that Owner was estopped from arguing his interpretation was correct because he had full knowledge of the facts, unreasonably delayed, and Builder detrimentally relied on Owner’s delay. This was the first time a Colorado court applied the equitable estoppel doctrine to the interpretation of an ambiguous contract. It was remanded to recalculate damages.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0084-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8788&courtid=1

Leave a comment

Filed under Contracts

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

2 Comments

Filed under Contracts, Evidence, Torts

Gail Collard v. Vista Paving Corporation, 2012COA208 (November 21, 2012)

Wile E. Coyote never got the Road Runner to smack into his wall painted like a road. Here, City hired Vista to construct medians in the middle of a road. The medians were completed by Vista and accepted by the City. For a while, the double yellow stripes led straight into the median, where plaintiff crashed her car. She sued Vista under both the PLA and common law negligence. After rejecting the application of the PLA because Vista was not a “landowner,” the court of appeals adopted new construction liability standards. It rejected the “completed and accepted” doctrine under which construction companies owed no duties to third parties after completing work. The court adopted a “foreseeability rule” making companies potentially liable even after work is completed, if it would be unreasonable to expect another party to mitigate a danger. The case was remanded to apply the new standard.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0153-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8758&courtid=1

1 Comment

Filed under Appellate Review Challenged, Government, Personal Injury, Torts

Kyle Larson Enterprises Inc., Roofing Experts v. Allstate Insurance Co. 2012COA160 (September 27, 2012)

Repair vendors such as roofers, who are entitled to insurance payments for work done on behalf of an insured party like a homeowner, can sue the insurance company as if they were the homeowner, for unreasonable delay or denials of payment. In this case, homeowners contracted with a roofer to make repairs. The homeowners’ insurer approved initial repairs and costs, but the roofer later made additional repairs that were necessary to comply with building codes and maintain manufacturer warranties.  The insurance company refused to pay for the additional repairs. Roofer sued as a first-party claimant under C.R.S. 10-3-1115 claiming an improper denial of claims. The trial court dismissed that claim. The court of appeals reversed, finding that the insurance company’s involvement with roofer’s repairs, completed “on behalf of” the homeowners, made the roofer a first-party claimant.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2205-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8677&courtid=1

Leave a comment

Filed under Insurance

Kyle Larson Enterprises Inc., Roofing Experts v. Allstate Insurance Co. 2012COA160 (September 27, 2012)

Repair vendors such as roofers, who are entitled to insurance payments for work done on behalf of an insured party like a homeowner, can sue the insurance company as if they were the homeowner, for unreasonable delay or denials of payment. In this case, homeowners contracted with a roofer to make repairs. The homeowners’ insurer approved initial repairs and costs, but the roofer later made additional repairs that were necessary to comply with building codes and maintain manufacturer warranties. The insurance company refused to pay for the additional repairs. Roofer sued as a first-party claimant under C.R.S. 10-3-1115 claiming an improper denial of claims. The trial court dismissed that claim. The court of appeals reversed, finding that the insurance company’s involvement with roofer’s repairs, completed “on behalf of” the homeowners, made the roofer a first-party claimant.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2205-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8677&courtid=1

Leave a comment

Filed under Insurance