The Curious Case of the Three Year Statute of Limitations for Construction Earth Movers

On March 6, 2018, Judge Edward Moss of Adams County issued a noteworthy, if bizarre, order concluding that construction excavators and earthmovers are uniquely subject to a three year statute of limitations. By way of background, in Colorado, per C.R.S. § 13-80-104, those furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property (“Construction Professionals”) are subject to the two year statute of limitations as set forth in C.R.S. § 13-80-102.

However, it appears that things are not so simple in Adams County. In the case, Paul Heap, et al. v. Asphalt Specialties Co., Inc. et al., Case No. 2017CV30842 (Adams County, Mar. 6, 2018), the Court was presented with the following undisputed timeline: the Defendants began excavation related work and erosion control and flood mitigation on the construction project in March 2015; alleged defects with the Defendants’ work manifested on May 1, 2015, and; Plaintiffs filed their Complaint May 29, 2017. Based on a straightforward reading of the two-year statute limitations, the Plaintiffs’ claims should have been time barred.

However, the Plaintiffs, in their Response to the Summary Judgment Based on the Statute of Limitations, raised the argument that because the Defendants’ work included “the intentional use of excavators, earthmovers, trucks, and other motor vehicles to excavate, remove and relocate dirt,” the Plaintiffs’ claims should be evaluated under the three-year statute of limitations for “[a]ll tort actions for bodily injury or property damage arising out of the use or operation of a motor vehicle” as set forth in C.R.S. § 13-80-101.

As surprising as it may seem, the Court agreed with the Plaintiffs’ argument, remarking as follows: “[c]learly, there is some casual connection between the use of excavators, earthmovers, [and] trucks. . . to excavate, remove and relocate dirt.” Because the Court found that C.R.S. § 13-80-101 and C.R.S. § 13-80-102 were in conflict in the context of the facts before the Court, the Court applied the legal standards for conflicting statutes of limitations. Applying the legal standards for conflicting statutes of limitations, the Court concluded that three-year state of limitations prevailed and thus the Plaintiffs’ claims were timely.

Going forward, careful practitioners should be aware of and consider the nuance in Colorado’s statute of limitations now potentially applicable to earth mover Construction Professionals. For additional information regarding Colorado’s statute of limitations for Construction Professionals or about construction defect litigation in Colorado, generally, you can reach Jean Meyer by telephone at (303) 987-9815 or by e-mail at meyer@hhmrlaw.com.

Dave McLain to Speak at the MBA's Condominium Lending Workshop 2018

I am honored to have been invited to speak at the Mortgage Bankers Association Condominium Lending Workshop 2018.  I will be participating as a panelist on the Condo Defect Panel: The CO Perspective, along with Nate Santillanes, CRIS, Director - Risk Management, CoBiz Insurance and moderated by Katie Fritch, Bank Officer - UW Support Manager, Flagstar Bank.

Come learn what's new in condo lending.

Back by Popular Demand...

MBA's Condominium Lending Workshop is back!  We heard you loud and clean and are pleased to once again offer our one-day workshop on this specialized area of lending.  This workshop brings together strategic leaders of condo lending as well as project approval managers, with other experts, including government agency and GSE leadership.  Through panel presentations and interactive discussions, our expert speakers will cover the following topics:

• Update from FHA

• GSE and Lender Perspectives on Project Approvals

• Overview of Condo Markets

• Condo Litigation Challenges

• Flood and other Insurance Issues

• Lending on New Construction Condos

This is a unique opportunity to come together with others that specialize in condo lending to get the latest updates and discuss challenges and opportunities in an interactive setting.  The majority of the workshop agenda takes place on April 11th, kicking off with an evening networking reception on April 10th.

The next evolution in Colorado construction defect litigation? Single-family home builders could be in the crosshairs.

I recently had the opportunity to write an article for Colorado Builder Magazine, a snippet of which appears here.

Since the 1990's, construction defect litigation has focused on condominiums and townhomes. By representing homeowner associations instead of individual owners, plaintiffs' attorneys can more easily aggregate claims, thereby increasing exponentially the claimed damages.

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In a new twist, the Latitude at Vista Ridge Homeowners Association in Erie filed a construction defect lawsuit claiming damages for construction defects in the single-family homes owned by its members.  This is the first instance, of which I am aware, in which an association has sued for alleged defects in single-family homes.

For additional information regarding the Latitude at Vista Ridge lawsuit or the disturbing new trend in Colorado construction defect litigation, you can visit the Colorado Builder website and view the entire article here.  You can also reach me by e-mail at mclain@hhmrlaw.com or by phone at (303) 987-9813.