Wednesday, May 15, 2019

Dave McLain to Speak at the CRG Lunch & Learn in June


Monday, April 29, 2019

2019 Legislative Session


Two bills under consideration as the end of the session nears contain significant changes to Colorado’s Consumer Protection Act (“CCPA”).  The bills broaden remedies, make more conduct a breach of the CCPA, and include purely private transactions in the type of conduct that falls within the scope of the CCPA.  The bills are House Bill 19-1289 (“House Bill”) and Senate Bill 19-237 (“Senate Bill”).  As of April 29, 2019, the House Bill has passed the House.  The Senate Bill has not progressed past introduction.  It is unclear if both houses of the legislature will have an opportunity to vote on either or both bills before the session ends.

The House Bill makes a person liable for CCPA violations based on conduct engaged in “recklessly,” not just knowing conduct.  No definition of the term “recklessly” is provided in the House Bill, but Colorado’s attorney general testified “recklessly” “means a company or person acted with reckless disregard for the truth.  (Page 2).  No explanation was given of what the word “reckless” in the definition of “recklessly” meant in this context.

Another provision of the House Bill adds a “catch all” prohibition that labels as a deceptive trade practice knowingly or recklessly engaging in any unfair, unconscionable, deceptive, deliberately misleading, false or fraudulent act or practice.  There is no indication how a person could “recklessly” engage in “deliberately misleading” acts or practices.

Another change to Colorado law in the House Bill is the removal of the significant public impact requirement.  That change would subject purely private disputes for transactions in the course of a person’s business, vocation or occupation to the CCPA.  CCPA remedies include treble damages if bad faith is shown by clear and convincing evidence.

The House Bill allows recovery of interest from the date the claim accrued.  One of the accrual dates available to a claimant is the date the false, misleading, or deceptive act or practice occurred.  C.R.S § 6-1-115.  Thus, on its face the House Bill may allow construction defect plaintiffs to collect pre-judgment interest on CCPA claims, perhaps overturning Goodyear v. Holmes, 193 P.2d 821 (Colo. 2008) in circumstances where the action remains timely even given an early accrual date.  Reasonable attorneys’ fees, with some limits in certain cases, are also available on a CCPA claim.  Due to the substantial broadening of the scope of the CCPA and the remedies available under the CCPA, use of the CCPA in civil litigation will likely increase significantly if the House Bill passes.

The Senate Bill allows private plaintiffs to recover $500 per violation if that amount is greater than actual damages or three times actual damages where bad faith is shown by clear and convincing evidence.  It also allows recovery in a class action of actual damages sustained by the class, reasonable costs and fees; and injunctive or declaratory relief.  CCPA remedies are currently not available in class actions.

For more information regarding Colorado’s Consumer Protection Act, or construction litigation in Colorado, you can reach Steve Heisdorffer by telephone at (303) 653-0044 or by e-mail at heisdorffer@hhmrlaw.com.

Friday, April 26, 2019

Scholarships Available for the 2019 CLM Claims College - School of Construction

I am pleased to have been invited to serve on the Executive Council and Faculty for this year’s CLM Claims College – School of Construction, which will be held at the Marriott Baltimore Waterfront from Wednesday, September 4, 2019 through Saturday, September 7, 2019.

As a result of my service I am able to offer scholarships (registration fee only) to industry professionals (insurance - risk, adjusters, claims, etc. and corporate) interested in attending. Please e-mail me by if you would like to take advantage of the free registration scholarship offered by CLM.

The education of claims resolution professionals is important to the CLM. That’s why CLM established the Claims College in 2012 and enlisted some of the industry’s best professionals to create and teach courses. Since its inception, hundreds of students have attended the Claims College and nearly 300 have earned their CCP (Certified Claims Professional) designation.

The College presents courses in eight three-level specialty schools and three one-level schools with more on the horizon. Schools include: Casualty Claims, Claims Mediation, Construction, Cyber Claims, Extra-Contractual Claims, Insurance Fraud, Leadership, Professional Lines, Property Claims, Transportation, and Workers Compensation. Students must pass all three levels of a school to earn their CCP. Each level consists of reading materials, in-class instruction, group projects, and an exam. 


Construction claims present complexities in claim handling, are often multiparty cases with cross claims and third-party claims between and among the numerous defendants, intertwined with issues involving insurance coverage. The stakes for these types of cases are high as the damages claimed can be in the multi-millions

Competent construction claims handling requires an understanding of the distinct legal and practical issues between commercial and residential claims. The construction claims world is an unfriendly place for the claims professional who has not been properly trained and exposed to these issues.

The School of Construction will provide adjusters with the knowledge, tools, and understanding required to navigate these complex claims. Professionals seeking to expand their knowledge of construction risk concepts and seasoned professionals looking to move into construction claims are encouraged to attend.


The Claims and Litigation Management (CLM) Alliance is the only national organization created to meet the needs of professionals in the claims and litigation management industries. Founded in 2007, the CLM currently has more than 45,000 Members and Fellows—a number that grows by hundreds each month.


Thursday, March 14, 2019

What are the most commonly claimed issues in construction defect litigation?

By: David M. McLain

As a lawyer that has spent his career defending against construction defect claims, one of the most common questions I get when counseling clients regarding risk management is: “What are the most commonly claimed issues in construction defect litigation?” Until very recently, my answer to this question has been based on my own experience and knowledge on the subject, and only vaguely reliant on empirical data.

Recently, two engineers, Elizabeth Brogan and William McConnell, along with Caroline Clevenger, an associate professor at the University of Colorado, Denver, wrote a paper entitled “Emerging Patterns in Construction Defect Litigation: A Survey of Construction Cases.” The authors analyzed 41 multifamily construction defect cases litigated in 2015, 2016 and 2017, mostly in the Denver metro area.

The authors classified the 55 most prevalent alleged defects into the following categories: structural issues; civil issues; building envelope issues; roof issues; deck, balcony and porch issues; fire protection issues; and miscellaneous issues. The authors then identified the 10 most commonly claimed construction defects, which occurred in over half of all of the cases analyzed. These defects included:

Civil Issues:
  • Inadequate grade adjacent to foundation (68%)
  • Inadequate slope grading (improper management of concentrated flows) (61%)
  • Flatwork or structures inhibiting drainage (59%)
Building Envelope Issues:
  • Non-compliant clearance between siding, stone veneer or stucco and hard surfaces or grade (73%)
  • Non-compliant weep mechanism in stone or stucco at horizontal terminations (71%)
  • Non-compliant flashing (base, head, sill, clearance, blocked or improperly sloped) (68%)
  • Improper water table construction (rowlock, stone, stucco, EIFS, precast or other) (71%)
  • Non-compliant moisture management integration (weather resistive barrier, self-adhered membrane or other) (71%)
  • Non-compliant isolation to penetration and dissimilar materials (76%)
Roof Issues:
  • Non-compliant roof flashing (diverter, rake, head, chimney, air handling units, jacks, etc.) (54%)
The authors further investigated each of these issues to describe specifically what the homeowners associations claimed to be non-compliant; the potential damage, issue or concern with the non-compliance; the code allegedly violated; and the repair proposed by the homeowners associations’ experts. Needless to say, this paper is full of valuable information for any home builder, developer, contractor, architect or subcontractor who is interested in improving its risk management program.

To the extent that you are already working with a third-party QA/QC provider during the design and construction phase of your projects, or are considering doing so, I think it would make sense to review this with those inspecting your projects to ensure that there is a high correlation between the items for which they are inspecting and those things that appear with the most frequency in construction defect litigation.

For additional information or about construction defect litigation in Colorado, generally, you can reach David M. McLain by telephone at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.

Thursday, February 28, 2019

Colorado House Bill 19-1170: Undefined Levels of Mold or Dampness Can Make a Leased Residential Premises Uninhabitable

By Steve Heisdorffer

One of the 407 bills the Colorado legislature is considering as of the date of this blog post is House Bill 19-1170, the Residential Tenants Health and Safety Act, which can be found at https://leg.colorado.gov/bills/hb19-1170 and clicking on the link for the recent bill text.  The bill passed the House on February 26 and is in the Senate for consideration. The bill currently adds two substantive conditions to those conditions that make a residential premises uninhabitable.  One is the lack of functioning appliances that conformed to applicable law when installed and that are maintained in good working order. The second is “mold that is associated with dampness, or there is any other condition causing the premises to be damp, which condition, if not remedied, would materially interfere with the health or safety of the tenant…,”  referred to here as “the mold or dampness provision.”  The bill also amends various procedural provisions of Colorado law to make enforcement by a tenant easier and broadens tenant remedies.  The bill grants jurisdiction to county and small claims courts to grant injunctions for breach.  This article focuses on the mold or dampness provision.

The mold or dampness provision is vague and will likely lead to abuse.  First, there is mold everywhere.  While expert witnesses routinely testify about the level of exposure that is unacceptable, no generally accepted medical standards for an unacceptable level of mold exposure currently exist, and each person reacts to mold differently.  There is no requirement in the bill that mold exposure exceed levels that are generally considered harmful by experts in the field, or even in excess of naturally occurring background levels.  Second, some sources estimate that there are over 100,000 different species of mold.  No harmful effects have been shown for many species of mold, while other species of mold are considered harmful.

It could be argued that the provision that the condition “materially interfere with the health or safety of the tenant…” provides the standard for the level of exposure and the type of mold.  Unfortunately, there are wide disagreements about what level of exposure would “materially interfere” with health or safety, and what may be completely benign to the average person may interfere with the health and safety of a specific individual.

More troubling, our society’s general concerns about mold have helped create a cottage industry of self-proclaimed mold experts willing to make dubious claims under oath.  The medical community in general has been slow to discipline doctors that are willing to testify without any scientific support that cancer, memory loss, autism and other diseases or conditions were caused by mold exposure. The same general concerns about mold have led to the creation of several laboratories that provide mold test results of no known medical value-- for the right fee.  In short, in the current climate, the limitation that the alleged mold or dampness materially interferes with the health or safety of the tenant is no limitation at all.

For additional information regarding House Bill 19-1170 or about construction defect litigation in Colorado, generally, you can reach Steve by telephone at (303) 653-0044 or by e-mail at heisdorffer@hhmrlaw.com.

Tuesday, February 26, 2019

HHMR Seeks Full Time Office Clerk/Receptionist


Higgins, Hopkins, McLain & Roswell, LLC, has an immediate opening for a full time Office Clerk/Receptionist. The position requires a candidate who will enthusiastically welcome the opportunity to learn new skills and energetically assist other staff members and attorneys as a team player. The right candidate must have a professional and courteous demeanor. Office experience a plus.

Skills and qualifications:
  • Knowledge of Microsoft Word, Excel, and Outlook
  • Able to work independently
  • Self-motivated
  • Highly organized
  • Solid verbal and written communication skills

Additional Duties (may include but not limited to):
  • Light kitchen duties
  • Supply ordering
  • Answering phones
  • Greeting clients
  • Filing/clerical
  • Creating miscellaneous notebooks
  • Assisting attorneys and legal assistants as requested

Interested candidates should submit their resume and references to:
Ms. Lauren Parks, parks@hhmrlaw.com

NO CALLS OR AGENCIES

Tuesday, February 12, 2019

Expansion of Statutes of Limitations and Repose in K-12 and Municipal Construction Contracts

The purpose of this whitepaper is to bring attention to a trend in K-12 and municipal construction contracts, which expands the time periods for law suits against construction professionals.

Introduction and Background

Under Colorado statute, the period of time within which a legal action for construction defects may be brought against a construction professional in Colorado is two years from when the claimant (or its predecessor in interest) discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect (the “Statute of Limitations”), but in no case may an action be brought more than six years after substantial completion of the improvement, unless the claim arises in the fifth or sixth year after substantial completion, in which event the action may be brought within two years of such date, i.e., up to eight years after substantial completion (the “Statute of Repose”).  See C.R.S. § 13-80-104.  While the triggering events differ for the Statute of Limitations and Statue of Repose, the periods are intended to run concurrently to limit the period of time an action may be brought against construction professionals for construction defects to, at most, eight years after substantial completion.  Importantly, these limitations periods may be expanded by agreement. 

Prior to 1986, Colorado law provided for a 10-year Statute of Repose.  However, in 1986, Colorado’s legislature shortened the Statute of Repose time limit to the current six (or up to eight) year period.  In 1986, Colorado also redefined the date the claim arises from the date the defect was discovered or should have been discovered to the date the physical manifestation of a defect was discovered or should have been discovered.  Therefore, after 1986, the two-year limitations period could begin to run when a claimant should have discovered the manifestation of a defect, even if the claimant did not recognize that a defect existed. 

The reasons for these changes, as described by members of the Colorado legislature at the time, were as follows:
1.      Relieve construction professionals of the prospect of potentially open-ended, indefinite liability for their acts or omissions;
2.      Encourage the timely resolution of construction disputes while preserving property owners’ rights;
3.      Encourage diligent investigation of the cause and extent of the problem;
4.      Curb perceived abuses related to construction-defect litigation; and
5.      Stabilize the costs of insurance and insurance products for construction professionals.

These changes have, in fact, helped to encourage the timely resolution of construction defect disputes, resulted in an efficient insurance market for commercial general liability and completed operations insurance coverage, and a competitive construction market – all of which help contribute to lower costs of construction in Colorado.

Recent Trend in the Wrong Direction

In recent years,there has been a trend in K-12 construction contracts (as well as other municipal and local government construction contracts) which expands the potential liability of construction professionals beyond the current Statutes of Limitations and Repose.  Several school districts have expanded the Statute of Limitations to 6 years (after discovery of the defect) and the Statute of Repose up to 16 years (or in the case of Cherry Creek, a potentially unlimited Statute of Repose period).  These school districts have also changed the language of the limitation period so that it does not begin to run until actual discovery of the defect (rather than the physical manifestation), thus, reversing the changes made by the legislature in 1986.  A table summarizing examples from recent K-12 construction contracts is attached as Attachment 1.  Relevant excerpts from these construction contracts are attached as Attachment 2.

It is important that construction professionals in Colorado be aware of these contract provisions because they greatly expand the liability of construction professionals and disrupt the industry standards on which construction professionals (and their insurers and other related industries) rely.  Further, such negative trends tend to lead to inequitable risk shifting which is harmful to the industry.  The reasons such contract provisions are harmful to the construction industry in Colorado include:

 Potential expiration of insurance coverage.  Completed operations periods under most commercial general liability policies are capped at the statute of repose or ten years.  Therefore, a construction professional may be left without insurance coverage against a construction defect claim brought outside that period.

Destabilizing the insurance market.  Longer and inconsistent limitations and repose periods destabilize the market for insurance in Colorado as insurers attempt to price the increased risk of such longer periods on a contract-by-contract basis.

Prejudices construction professionals’ ability to defend themselves.  Construction professionals rely on project documentation and personnel to defend against defect claims.  It will be more difficult to locate project documents and personnel (witnesses) (who may no longer be available or remember the project) to defend lawsuits filed up to 16 years or longer after substantial completion of a project.

Construction professionals are more likely to be blamed for improper maintenance.  Construction professionals may face claims for issues which are, in reality, caused by improper or inadequate maintenance.  The passage of time increases the difficulty in distinguishing between damages caused by improper maintenance versus improper construction.

Unfair to allow claimants to sit on their claims.  A longer Statute of Limitations period means a claimant can sit on its hands and wait to bring an issue to the attention of a construction professional for up to six years after the claimant became aware of the issue, which runs counter to the public and industry interests in timely investigating and resolving problems.

Attachment 1
School District
Statute of Limitations
Statute of Repose
Lewis Palmer
6 years

10 years w/ extension of 6 years if discovered in 10th year

Douglas
6 years

15 years after final completion

Cherry Creek

6 years from SC or date of discovery, whichever is longer

None
Adams
6 years

10 years w/ extension of 6 years if discovered in 10th year

Aurora Public Schools
6 years

10 years w/ extension of 6 years if discovered in 10th year

Weld
6 years

8 years w/ extension of 2 years if discovered in 5th or 6th year

District 49
6 years

15 years from final completion and acceptance



Attachment 2
Lewis Palmer

GC 59.00

LIMITATION OF ACTIONS

Any actions against the Contractor, its subcontractors, suppliers, or others providing materials or services for the Project, brought to recover damages for injury to person, damage to property (including loss or damage to property on the Project itself), or defects in materials caused by the design, manufacture, supplying, planning, supervision, inspection, construction, or observation of construction of the Project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fully discovered. In no case shall such an action be brought more than ten (10) years after the date of final completion and acceptance of the Project; provided, however, that in any case where the cause of action arises during the tenth year, such action shall be brought within six (6) years after such cause of action arises and the nature and extent are fully discovered by the Owner.
Douglas County
Short form contract - 10.2 Limitation of Actions - Any actions against the CM/GC, his employees or agents brought to recover damages for injury to person or defects in or damage to property, including the Work itself, caused by the administration, superintendence or efforts of the CM/GC or those under his control relating to this Project shall be brought within six (6) years after such claim for relief arises and is discovered by the Owner.
Regular General Conditions - GC - 53.00 LIMITATION OF ACTIONS
53.01 Any actions against the Contractor, his subcontractors, suppliers or others providing materials or services for the project, brought to recover damages for injury to person, damage to property or defects in materials caused by the design, manufacture, supplying, planning, supervision, inspection, construction or observation of construction of the project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fully discovered. In no case shall such an action be brought more than fifteen (15) years after the final completion and acceptance of the project.

Cherry Creek





13.4.3 shall be added and shall read as follows:

Notwithstanding any other provision of these General Conditions, the statute of limitations for the filing of any and all claims arising pursuant to the Work and Contract Documents shall be six (6) years from the date of Substantial Completion as defined in subparagraph 8.1.3 or the date of discovery of the claim, whichever is later, or such longer period as may be permitted by law.

ARTICLE 13 - MISCELLANEOUS PROVISIONS / 13.7 TIME LIMITS ON CLAIMS
13.7.1 Add the following to the end of the first sentence of the Paragraph: or the Date of Actual Knowledge of the Cause or Claim by the Owner, whichever is later.

Adams 12

GC 53.00 LIMITATION OF ACTIONS
Any actions against the Contractor, its subcontractors, suppliers, or others providing materials or services for the Project, brought to recover damages for injury to person, damage to property (including loss or damage to property on the Project itself), or defects in materials caused by the design, manufacture, supplying, planning, supervision, inspection, construction, or observation of construction of the Project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fulldiscovered. In no case shall such an action be brought more than ten (10) years after the date of final completion and acceptance of the Project; provided, however, that in any case where the cause of action arises during the tenth year, such action shall be brought within six (6) years after such cause of action arises and the nature and extent are fully discovered by the Owner.
Aurora Public Schools
GC-54.00 LIMITATION OF ACTIONS
Any actions against the Contractor, its subcontractors, suppliers, or others providing materials or services for the project, brought to recover damages for injury to person, damage to property (including loss or damage to property on the project itself), or defects in materials caused by the design, manufacture, supplying, planning, supervision, inspection, construction, or observation of construction of the project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fully discovered. In no case shall such an action be brought more than ten (l0) years after the final completion and acceptance of the project; provided, however, that in any case where the cause of action arises during the tenth year, such action shall be brought within six (6) years after such cause of action arises and the nature and extent are fully discovered by the Owner.
Weld County
GC-54.00 LIMITATION OF ACTIONS
Any actions against the Contractor, its subcontractors, suppliers, or others providing materials or services for the Project, brought to recover damages for injury to person, damage to property (including loss or damage to property on the Project itself), or defects in materials caused by the design, manufacturesupplying, planning, supervision, inspection, construction, or observation of construction of the Project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fully discovered. In no case shall such an action be brought more than eight (8) years after the date of final completion and acceptance of the Project; provided, however, that in any case where the cause of-action arises during the fifth or sixth year, such action shall be brought within two (6) years after such cause of action arises and the nature and extent are fully discovered by the Owner.
District 49
GC - 53.00 LIMITATION OF ACTIONS
53.01 Any actions against the Contractor, his subcontractors, suppliers or others providing materials or services for the project, brought to recover damages for injury to person, damage to property or defects in materials caused by the design, manufacture, supplying, planning, supervision, inspection, construction or observation of construction of the project shall be brought within six (6) years after such claim for relief arises and the nature and extent are fully discovered. In no case shall such an action be brought more than fifteen (15) years after the final completion and acceptance of the project.

This whitepaper comes from Henry Bangert and our friends at Beltzer Bangert & Gunnell, LLP.  

Disclaimer

The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.