Monday, September 17, 2012

Limitations of liability in subcontractors’ contracts may not be enforceable in Colorado to limit claims by construction professionals.

The Colorado Homeowner Protection Act of 2007 (“HPA”), codified at C.R.S. § 13-20-806(7), specifically voids express waivers of, or limitations on, a residential property owner’s ability to enforce any rights, remedies, and damages provided by law in a construction defect case.  Practically speaking, this means that limitation of liability provisions in contracts between construction professionals and residential homeowners are void and will not be enforced in Colorado.  The HPA can extend even further, however, to subcontractors on residential projects, as seen in a recent District Court ruling.

The HPA was tested in Thacker v. Gallery Homes, et al., v. Terracon Consultants, Inc., et al., Larimer County District Court Case No. 2007CV1195.  Gallery Homes hired Terracon to provide geotechnical and structural engineering services at the Colony Ridge subdivision in Loveland, Colorado.  Terracon performed work for Gallery Homes under three separate contracts, each of which included a provision limiting Terracon’s total liability to Gallery Homes. 

After the project was completed, two homeowners filed suit against Gallery Homes for alleged construction defects involving movement of their basement floor systems and foundations and damage to porches, patios, garages, and driveways.  Gallery Homes sued Terracon as a third-party defendant, and Terracon sought to enforce its limitation of liability provisions via a partial summary judgment motion. 

Judge Gregory M. Lammons denied Terracon’s motion in an order dated April 7, 2010, stating that the HPA “expressly states that any attempt of a construction professional to limit the amount of damages for which they are liable for work done on a residential project is void as against public policy.”  The order also affirmed the definition of a construction professional under C.R.S. § 13-20-802.5(4) as “an architect, contractor, subcontractor, developer, builder, builder vendor, engineer, or inspector performing or furnishing the design, supervision, inspection, construction, or observation of the construction or any improvement to the real property.

Importantly, Judge Lammons noted that the HPA does not state that only homeowners may enforce its provisions, and that the HPA is applicable to Terracon as a third-party defendant subcontractor on a residential project.

After the parties proceeded to trial, the jury found that Terracon was not negligent in providing its services to Gallery Homes.  Gallery Homes appealed the verdict and Terracon cross-appealed the denial of its motion to enforce its limitation of liability clauses.  In an unpublished opinion dated May 31, 2012, Gallery Homes v. Terracon Consultants, Inc., d/b/a Terracon Consulting Engineers & Scientists, the Court of Appeals declined to rule on the enforceability of Terracon’s limitation of liability provisions, finding instead that Terracon’s cross-appeal was moot and should not be addressed.

The clear impact of this interpretation of the HPA is that even if a subcontractor on a residential project does not contract directly with a residential homeowner, if that subcontractor is performing work on a residential project the HPA may apply to make any limitation of liability provisions in the subcontractor’s contract unenforceable.

For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at

Thursday, September 6, 2012

Derek Lindenschmidt named Law Week Colorado's 2012 Barrister's Best Construction-Defects Lawyer for the Defense

I am happy to announce that Law Week Colorado has named Derek Lindenschmidt as the Best Construction-Defects Lawyer for the Defense: Barrister’s Best for 2012. Law Week Colorado’s recognition of Derek states:

When a small firm names a new partner, that’s big news, and it means there’s a reason for that promotion. So is the case of Derek Lindenschmidt, the newest partner of 11-person firm Higgins Hopkins McLain & Roswell. He’s a younger member of this crowd, but he’s quickly earning a reputation as a top lawyer with expertise in the construction-defects defense realm.

Congratulations, Derek! I have recently spent the summer joined at the hip with Derek, arbitrating two separate multi-week, multi-party construction defect claims. After watching Derek’s closing argument yesterday in the second of these arbitrations, I can only say that his reputation is well deserved.

For anyone who has not met or worked with Derek, I offer this brief biography: Derek started as an associate of the firm in 2006 when he relocated to Colorado from Charleston, South Carolina where he was an associate with the Qualey & Beck Law Firm. During his time in South Carolina, Derek represented general contractors, developers, subcontractors and homeowners in various types of construction-related matters, including residential construction defect disputes, contract review and drafting, and defense of mechanics liens. During his time with HHMR, Derek’s practice has focused on representation of construction professionals in a wide variety of both litigated and non-litigated matters, including the defense of developers and general contractors in complex construction defect lawsuits. He has defended against claims in all phases of development, from initial design through post-construction, and has successfully recovered from subcontractors in subrogation. He has also successfully resolved many claims through alternative dispute resolution. Sheri Roswell and I were happy to announce, in January 2012, that Derek had been promoted to partner.

If you would like to get in touch with For more information regarding Higgins, Hopkins, McLain & Roswell, please visit our website at  If you are interested in learning more about construction litigation in Colorado, including the impact of recent changes in the law, please visit our blog at

-          David M. McLain


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.