The Colorado Healthy Families and Workplaces Act: It may be time to review your paid sick leave policy

Gov. Jared Polis signed the Colorado Healthy Families and Workplaces Act (HFWA) on July 14, 2020, and it became effective at the start of this year. It requires that all employers provide each employee paid sick leave as and to provide statutory notice of such rights. Among other changes to Colorado’s requirements pertaining to paid sick leave, each employee now earns at least one hour of paid sick leave for every 30 hours worked, though employees are not entitled to earn or use more than 48 hours of paid sick leave each year, unless the employer allows a higher limit. Employers are prohibited from engaging in retaliatory personnel actions when employees use paid sick leave, which now must begin to accrue when an employee begins working and can be used as it is accrued. HFWA does not allow for any vesting of paid sick leave.

Up to 48 hours of accrued, but unused, paid sick leave are required to be carried forward into, and can be used in, a subsequent year. That said, employers are not required to allow employees to use more than 48 hours of paid sick leave in a year.

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You can read the remainder of the article on the Colorado Builder Magazine website.

You can reach Dave McLain by telephone at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com should you wish to discuss the Colorado Healthy Family and Workplaces Act or construction law in Colorado.

HHMR is Hiring a Director of Operations/EOS Integrator

Founded in 2001, Higgins, Hopkins, McLain & Roswell, LLC (“HHMR”) exists to embody and exemplify the principles of service and stewardship.  In everything we do, we focus on serving our clients selflessly and to the best of our ability.  In doing so, we always have in the forefront of our minds our obligation to act as the stewards of our clients’ trust, confidences, and resources.

HHMR is highly regarded for its expertise in construction law and the litigation of construction related claims, including the defense of large and complex construction defect matters.  In addition to their construction law background, HHMR’s attorneys are well versed and experienced in tort, contract, property, and general casualty litigation ranging from products liability to personal injury and premises liability claims.

We value team-players who are organized and meticulous, who are flexible and willing to assist with whatever firm needs arise, and who will contribute to and help foster our positive and collaborative firm culture.

HHMR is seeking a full-time Director of Operations/Integrator to help solidify business operations and create future growth.  This position could also be described functionally as the Legal Administrator, or Law Firm Administrator, or Firm Office Administrator.  The successful candidate will have at least two years of operational management experience.  An ideal candidate will have experience in a law firm setting and with implementation and execution of the Entrepreneurial Operating System (“EOS”).  The Director of Operations will work collaboratively with the leadership team, execute the business plan, drive results, and make decisions in furtherance of the firm’s vision.  The Director of Operations must have strong project management skills and handle day-to-day operations overseen by the firm’s owners.

Responsibilities of this position include:

·                     Assisting the ownership to fulfill the firm’s vision.

·                     Meeting with the owners to map our quarterly business plan and assigning KPIs.
·                     Integrating all major operating functions of the firm using EOS, ensuring that everyone is rowing together in the same direction, and modeling the way, always working toward the greater good of our clients, employees, and the firm.
·                     Overseeing day-to-day operations.
·                     Recruiting, hiring, onboarding/training of new employees, and offboarding (i.e., helping     to assure that we have the right people in the right seats).
·                     Ensuring that firm is well structured and systematized to run smoothly and efficiently (i.e., helping to assure that we are all doing the right things, the right way).
·                     Ensuring that everyone is truly following, and adhering to, the firm’s core processes and operating system with consistency.  Demonstrating effective project management skills.
·                     Human resources including payroll and benefits administration.
·                     Resolving issues effectively - seeing real problems, being comfortable with conflict and radical candor, calling out the problems, and solving the problems in a practical and positive manner.  Ensuring the team is healthy, functional, and cohesive.  
·                     Leading, managing, and holding accountable all non-attorney employees.
·                     Financial reporting and analysis, including facilitating taxes and budgeting.
·                     COLTAF (client trust fund) account administration.
·                     Accounts payable and accounts receivable, including collections.
·                     Bank deposits.
·                     Bank account reconciliation.
·                     Management of all business insurance.
·                     Management of office supply and equipment vendors.  

·                     Working with IT vendor to manage IT issues and needs.

Candidates must be proficient in Microsoft Office Suite and an ideal candidate would have experience with Tabs3 and PracticeMaster firm management software.  Familiarity with and experience operating within EOS is a benefit.

We offer a competitive salary which is commensurate with experience, ranging from $75,000 to $115,000, plus the potential for bonuses based on meeting or exceeding KPIs for the position.  We also offer excellent benefits including health, dental, vision, long-term disability, and life insurance, 401(k) matching, other voluntary benefits, and paid time off (“PTO”) of 120 hours per year.  Interested candidates should submit their resume and references.

Interested candidates should send a cover letter, resume, and references to David McLain at mclain@hhmrlaw.com. 

PLEASE NO CALLS OR AGENCIES.

Denver’s Proposed Solution to the Affordable Housing Crisis

Over the past ten years, Colorado has seen a population growth of almost 15 percent, with many residing in Denver.  In fact, in 2020, Denver ranked among the top five cities for inbound growth in the United States.  At the same time, from 2010 through 2020, the state’s production of new housing decreased by 40 percent.  The decrease in supply, coupled with the increase in demand has exasperated the already rising cost of housing in the state.  This, along with other external factors such as job loss due to the COVID pandemic, has resulted in a statewide housing crisis.

The City of Denver is proposing a revision to the municipal code that would expand affordable housing through three main tools: (1) increasing “linkage fees,” (2) requiring new multi-family development to designate a percentage of units to be affordable, and (3) offering zoning and financial incentives.  The proposal addresses both rental housing and ownership opportunities.  Although it is essential to combat the housing crisis and increased homelessness in the region, it is equally important to understand the impacts the proposed affordable housing ordinance would have on developers, if and when enacted.  

Increased Linkage Fees

In addition to funds received through donations and tax-based contributions, affordable housing permanent funds are raised from the affordable housing linkage fee revenue fund.  These funds are set to be used for the production and preservation of rental housing as well as rental assistance.  The amendment proposes increasing the linkage fee paid before the issuance of a building permit for any new construction or improvements that increase the gross square footage of an existing structure.  The fee, which applies to residential, commercial, and industrial construction, is calculated per square foot, at a rate depending on structure type.  For example, the proposal increases the linkage fee for low-density residential from $0.66 to $1.77 per square foot, whereas the fee for buildings with industrial or agricultural uses increases from $0.40 to $0.96 per square foot.  Fees for mixed-use development are to be proportioned based on the square footage for each use.  The proposal estimates that the linkage fee will go into effect on July 1, 2022, and increase each year based on the rate of inflation.

Linkage fees do not apply to the construction of contractual commitments dated and properly recorded prior to July 1, 2022.  This exception only applies while original development continues; any redevelopment contracted after such time will be subject to the proposed rates.  Additionally excluded from the linkage fee requirement are construction projects including (1) those that provide required affordable housing on the property, (2) affordable housing projects built with federal, state, or local funding, (3) charitable projects aimed at providing housing assistance, (4) buildings used solely for government or education purposes, (5) projects due to involuntary demolition, (6) additions of 400 square feet or less to single-unit or two-unit dwellings, and (7) accessory dwelling units. Additionally, linkage fees may be waived upon an applicant showing that the required amount of fees exceeds the amount that would be needed to mitigate the actual demand for affordable housing created by the development.

Mandatory Affordable Housing

The proposed amendment affects multi-family residential development.  New residential developments consisting of 11 or more units at one location must develop a minimum percentage of income-restricted units (IRU) within the structure.  The minimum percentage of IRUs depends on location.  High market areas are neighborhoods in the top quarter of highest rent or sales prices and land values, and typical market areas are all other regions not recognized as high market.  To comply with mandatory affordable housing, a high market area development must designate a minimum of 10 – 15 percent of the units as income-restricted.  Development in a typical market area must designate a minimum of 8 – 12 percent of its units as income-restricted.  These development requirements apply to both rental units and for-sale properties.  If developers choose to forgo the minimum IRU requirements they will be subject to the alternative fee-in-lieu requirements.  Fee-in-lieu costs range between $250,000 and $478,000, depending on the location of the new development and the type of dwelling structure.  The fee is then multiplied by the required number of IRUs excluded from the development.  For example, if an apartment complex proposed for a typical market area only designates 10 units out of 200 to be income-restricted, the applicant would be required to pay a $2.5 million fee-in-lieu before receiving a building permit.  However, if an applicant can show its proposed development meets the city’s five-year housing plan and comprehensive plan goals, the developer may negotiate an alternative to the mandatory affordable housing requirements.

Incentives

The proposal allows for permit fee reductions, reduced minimum vehicle parking requirements, and linkage fee exemptions for street-level commercial structures to incentivize developers to comply with minimum IRU requirements.  The proposal provides added incentives for developers which choose to include a higher percentage of IRUs than required by the ordinance.  Such developments will be entitled to an increase in building height and floor area ratios than is regularly provided for in zoning laws, in addition to increased vehicle parking exemptions.  Developed IRUs must be maintained for a minimum of 99 years to qualify.

Downfall

One downfall of the City’s housing affordability proposal is that it fails to alleviate the pressures and added costs that construction defect litigation places on developers and contractors.  Developers have expressed a need for relief from these added costs to successfully and affordably complete affordable housing projects.  The Colorado General Assembly briefly touched on the constraints of construction defect laws in its 2022 affordable housing tasks force report.  The task force expressed concerns that exemptions from construction defect laws would displace the balance between consumer and developer rights.  However, as developers continue to raise concerns regarding the effects the state’s strict construction defect litigation has on the affordability of development, it increasingly becomes important for the City to address such matters.  Developers who wish to see such exemptions included in the proposed affordable housing ordinance may submit comments during the public review process.

Public Review

The proposed affordable housing ordinance is currently available for public review.  Interested parties may submit comments and concerns to the City of Denver from now through March 14, 2022.  Comments are accepted through the City’s open forms, which can be found here.  The City will review the comments and release an updated proposal by the end of March 2022, after which interested parties will be allowed to speak at a public hearing held in front of the Denver Planning Board and the Denver City Council.  The proposal will not go into effect until a final version is adopted by the Denver City Council.  Additional information on the proposed expansion of affordable housing requirements can be found here.

For additional information regarding Denver’s affordable housing initiative, or Construction law in Colorado, you can reach Taylor Ostrowski by telephone at (303) 653-0047 or by e-mail at Ostrowski@hhmrlaw.com.

Revisiting Denver's construction defect ordinance

I recently had the opportunity to write an article for the Winter 2022 edition of the Colorado Builder Magazine.  Since we are now seeing construction defect claims on projects built after enactment of Denver's construction defect ordinance, it seemed an opportune time to revisit the topic.  

To find the original version of this article, follow this link.  Should you wish to reach out to me to discuss Denver's ordinance, or construction law or litigation generally, please feel free to contact me by e-mail at mclain@hhmrlaw.com or by telephone at (303) 987-9813.

The Economic Loss Rule: From Where Does the Duty Arise?

When entering a contract under Colorado law or attempting to enforce your rights when the other party breaches a contract, it is important to know and understand what rights you have and what claims you can bring or defenses you may have.  One important consideration is Colorado’s version of the economic loss rule.  The Colorado Supreme Court has issued several opinions clarifying the scope of the economic loss rule since it adopted the rule in 2000.  The purpose of the economic loss rule is to maintain the boundary between contract law and tort law.

In Colorado, the economic loss rule provides that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for the breach without an independent duty of care under tort law.  In most instances the economic loss rule will not bar intentional tort claims.  The question becomes: from where does the duty arise?  Is there an independent duty in tort law?  Did the duty arise solely from the contract?

On January 14, 2021, a division of the Colorado Court of Appeals released its opinions in McWhinney Centerra v. Paog & McEwen, 486 P.3d 439 (Colo. App. 2021), answering the question as to when the economic loss rule applies and altering Colorado’s economic loss rule. The Court of Appeals noted in its decision, that while the decision is contrary to several other decisions, it was based on the recent decision of the Colorado Supreme Court in Bermel v. BlueRadios, Inc., 440 P.3d 1150 (Colo. 2019).  The Court specifically determined that where an independent duty exists, outside the agreement, the economic loss rule does not bar a tort claim.

The McWhinney case arose from a land development deal gone bad during the real estate collapse of 2008.  McWhinney Centerra Lifestyle Center LLC (“MCLC”), a subsidiary of McWhinney Holding Company, LLP (“McWhinney”), and Poag & McEwen Lifestyle Centers-Centerra LLC (“P&M”), a subsidiary of Poag & McEwen Lifestyle Centers, LLC (“PMLC”), formed Centerra LLC.  The purpose of Centerra LLC was to acquire, develop, own, and operate an upscale shopping center in Loveland, Colorado, The Promenade Shops at Centerra.  MCLC provided the capital, land, and an established public-private partnership with the city and county entities for infrastructure financing.  P&M served as the managing member of the joint venture.  MCLC & P&M signed an operating agreement (the “Agreement”), and McWhinney and PMLC signed as guarantors.

The Agreement required P&M to obtain a construction loan for Centerra LLC and later a permanent loan.  In 2005, P&M obtained the construction loan for $116 million in accordance with the Agreement, and the shopping center opened in October 2005.  In 2006, P&M purchased a $155 million forward swap loan on behalf of Centerra LLC without first obtaining the permanent loan.  P&M’s intent for obtaining the forward swap loan was to gain the trust of other investors to obtain a loan for personal reasons not for the benefit of Centerra LLC.

In 2007, P&M entered a $40 million mezzanine loan.  A loan which the Court found P&M used for personal interests.  P&M used the $40 million dollar loan for Dan and Josh Poag to buy out their co-founder, Terry McEwen.  The Court found that P&M intentionally concealed this buyout and its intention to use these self-dealings to fund it.  P&M gave MCLC limited and misleading information or no information at all about the buyout.

Shortly after P&M’s buy out of McEwen, it began defaulting on its loans and lacked the funds to pay property taxes.  In 2008, the real estate market collapsed, and P&M allowed the construction loan to go into default.

In 2011, after the joint venture failed, MCLC sued P&M, asserting a breach of contract claim based on the Agreement and seven tort claims.  The district court dismissed all seven tort claims under the economic loss rule.  The Court of Appeals determined P&M owed a duty of fair dealing to MCLC, including a duty of disclosure and that P&M had purposefully concealed and misrepresented material facts about the $40 million loan.  Further, the Court of Appeals concluded that the district court erred when it applied the economic loss rule to bar MCLC’s common law intentional tort claims of fraudulent concealment, intentional interference with contractual obligations, and intentional inducement of breach of contract.

The Agreement between MCLC and P&M stated that P&M owed fiduciary duties of care and loyalty to Centerra LLC and MCLC.  The duty of loyalty requires that the best interest of the company and its members take precedence over any of the manager’s individual interests and that the manager act in good faith.  The duty of care requires that a manager act on an informed basis.  P&M breached its fiduciary duties under the Agreement when it purchased the forward swap, entered the $40 million mezzanine loan, and failed to secure permanent financing.

P&M’s purchase of the forward swap on behalf of Centerra LLC was a breach of P&M’s fiduciary duties because of the individual benefit P&M derived from it.  P&M used the forward swap as a tool to obtain the $40 million mezzanine loan to buyout McEwen.  P&M purposefully concealed the purpose and significant details of the $40 million mezzanine loan and failed to give MCLC a complete or accurate picture of how the loan would impact the operations of Centerra LLC.  P&M had a duty to disclose material facts related to the mezzanine loan to MCLC and they failed to do so, therefore, breaching their fiduciary duties.  

Finding that P&M owed fiduciary duties under the Agreement and breached those duties the Court of Appeals turned to MCLC’s intentional tort claims.  The Court determined that the district court erred in dismissing MCLC’s common law intentional tort claims, except for the civil conspiracy claim.  Under the guidance of the Colorado Supreme Court’s decision in Bermel the Court noted that while the intent of the economic loss rule is to prevent tort law from “swallowing” the law of contract, courts must also be cautious not to allow contract law to swallow tort law.  “The economic loss rule generally should not be available to shield intentional tortfeasors from liability that happens to also breach a contractual obligation.” Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1260 (Colo. 2000).

The Court reinstated MCLC’s fraudulent concealment, intentional interference with contractual obligations, and intentional inducement of breach of contract claims.  The Court reasoned that the three claims stem from a duty based in tort law independent of the Agreement.  The conduct underlying each of the claims may also support a breach of contract claim, however, in this case, the Court did not shield the intentional tortfeasors simply because the conduct also happens to breach a contractual obligation.

However, the economic loss rule did bar MCLC’s civil conspiracy claim.  MCLC alleged P&M and PMLC conspired to breach the Agreement.  As signatories to the Agreement, P&M and PMLC’s duty not to conspire to breach the contract stemmed solely from the Agreement itself.  P&M and PMLC had no independent duty in tort law not to conspire to breach the Agreement with another signatory of the Agreement.  Thus, the economic loss rule barred MCLC’s civil conspiracy claim.

Though the McWhinney decision was contrary to previous holdings, one must bear in mind, the Court had new direction from the Colorado Supreme Court’s decision in Bermel.  While the economic loss rule had barred tort claims which happened to breach a contractual obligation the court has moved away from this one-track mind analysis.  McWhinney makes it clear that the economic loss rule does not bar an intentional tort claim simply because a breach of contract claim exists.

McWhinney’s effect may be that plaintiffs’ attorneys ramp up efforts to bring intentional tort claims.  It is important for defense counsel to know to what claims the economic loss rule can serve as a defense.

For additional information regarding the McWhinney decision or Colorado construction law, you can reach Taylor Hite by e-mail at Hite@hhmrlaw.com or by telephone at (303) 653-0043.

Contractual warranty agreements may preclude future tort recovery

When a buyer purchases a product that is later discovered to be defective, the court offers a remedy to make the buyer whole.  Such remedies can arise either out of a contract, including express and/or implied warranties, or under common law through a tort theory.  However, what happens when a buyer has already received the remedy specified in the contractual warranty, only to discover the product manufacturer misrepresented the quality of its product by failing to disclose a defect?  Can the buyer subsequently recover for the same product under a tort theory of recovery?  The Colorado Court of Appeals analyzed such questions in its December 2021 decision in Dream Finders Homes, LLC v. Weyerhaeuser NR Co., 2021 COA 143.

In Dream Finders, the court examines the rights of sophisticated buyers who purchased defective products and received a warranty from the product manufacturer with purchase. The court specifically determines whether such buyers may recover under the tort theory product misrepresentation and failure to disclose when the buyers have already received the remedy specified and the warranty expressly excludes the type of damage the buyer now seeks.

The case involved two main parties, including Weyerhaeuser, a product manufacturer which designed and sold engineered joists with a fire-resistant coating to be used in residential construction, and Dream Finders, a home builder, which purchased and utilized Weyerhaeuser’s fire-resistant joists in homes it constructed and sold. Upon purchase of the joists, Dream Finders received two warranties, from Weyerhaeuser to wit: a general warranty delivered with all Weyerhaeuser products and a specific warranty relating to the joists providing that Weyerhaeuser would pay reasonable costs for repair or replacement of the covered joists for any delamination, separation, or inadequacy that might occur in the joists. The reasonable costs were to be capped at three times the cost of the joists themselves. The specific warranty also expressly stated that Weyerhaeuser would not be responsible for incidental, indirect, or consequential damages.

Three months after Dream Finders started purchasing and installing the joists into its homes, Weyerhaeuser received third-party reports indicating that the joists, which were coated with a formaldehyde-based resin, emitted a chemical-like odor that caused eye and throat irritation.  In compliance with the specific warranty, Weyerhaeuser offered remediation options to builders which installed the affected joists.  Dream Finders opted for a mechanical removal option. Weyerhaeuser complied with the request and paid for all remediation costs, which ended up being significantly greater than three times the product cost.  After the remediation was completed, Dream Finders sued Weyerhaeuser for breach of express and implied warranty, negligence, negligent failure to warn, negligence per se, strict product liability, violation of Colorado’s Consumer Protection Act (the “CCPA”), negligent misrepresentation, and fraudulent concealment.  In its claims, Dream Finders alleged that Weyerhaeuser knew that its products contained a urea-formaldehyde resin but failed to disclose the known hazardous levels of formaldehyde in the joists.  Dream Finders alleged that it incurred over $20 million in damages, including remediation costs and costs incurred because of delayed home sales.  

In evaluating the case, the Court first considered the economic loss rule, which bars recovery under tort claims for purely economic losses stemming from a breach of contract.  While Colorado law provides that construction professionals owe homeowners independent, common law, duties of care to homeowners, which do form the basis for tort-based negligence claims safe from the reaches of the economic loss rule, the Court refrained from extending this duty to a builder, which only owned the homes briefly before selling them to the ultimate purchasers. The Court held that the economic loss rule limited Dream Finders’ ability to recover damages arising from tort claims because it and Weyerhaeuser already completed the contractually mandated remedy for the defective joists.

The Court determined that the relief sought by Dream Finders was identical under both tort and contract theories.  To come to this conclusion the Court compared both the tort duties and contractual duties owed by Weyerhaeuser.  Generally, a tort duty can be distinguished from a contractually arising duty when the tort duty extends beyond the scope of duty provided for in the contract.  Dream Finders and Weyerhaeuser agreed that Weyerhaeuser complied with the terms and conditions of its warranty and that because of this compliance, Dream Finders received the benefit for the contract-based bargain.

Because Dream Finders had already received the agreed-upon contractual benefit and expressly chose to contract away any other rights to recover, the Court precluded Dream Finders from recovering anything further. Even though only one of Dream Finders’ entities entered into the warranty agreement with Weyerhaeuser, the Court held that the warranty still controlled under Colorado law.  C.R.S. § 4-2-318 provides that a manufacturer’s warranty “extends to any person who may reasonably be expected to use, consume, or be affected by the goods and who is injured by breach of warranty.”  The Court maintained that the warranty, therefore, impeded recovery under the economic loss rule because, even though one of the entities did not expressly enter into the warranty agreement, its coverage by the warranty was implied by statute.

The economic loss rule does not bar recovery for damages based on pre-contractual fraud where the fraud induced a plaintiff to enter the contract, as discussed in Van Rees v. Unleaded Software, Inc., 373 P.3d 603 (Colo. 2016).  However, in Dream Finders, the alleged claims arose from post-contractual conduct and did not fraudulently induce Dream Finders to enter the warranty agreement.  Because of this fact, Weyerhaeuser did not owe Dream Finders a separate duty apart from those specified in the warranty contract.  The Court concluded, therefore, that the economic loss rule disqualified Dream Finders from recovering anything under its tort-based claims.

There are limitations to the economic loss rule and the Court affirmed that it does not bar CCPA claims.  However, the Court ruled that Dream Finders failed to prove all elements of its CCPA claim.  Additionally, CCPA claims were created to protect individual consumers who are at a bargaining disadvantage compared to more sophisticated buyers, such as Dream Finders.  

Judge Jaclyn Brown issued a warning at the end of the Court’s decision, stating that the expansion of the economic loss rule has the frightening propensity to encourage a contracting party to act fraudulently during the contractual relationship and then attempt to escape liability by hiding behind the rule. Judge Brown further emphasized that the economic loss rule should not apply to cases where the damages arise from an intentional act as it would be bad policy for courts to shield intentional tortfeasors from liability.  Judge Brown’s fears have not yet come to fruition, but we anticipate future Colorado court decisions will further mold the trajectory of the economic loss rule.

Dream Finders now serves as a reminder of the importance of contracts and warranty clauses and why both product manufacturers and contractors should take a close look at what rights are provided or relinquished when entering into such agreements.

For additional information regarding the Dream Finders case or Colorado construction law, you can reach out to Taylor Ostrowski by telephone at (303) 653-0047 or by e-mail at ostrowski@hhmrlaw.com.