THE “RIGHT TO REPAIR” CONSTRUCTION DEFECTS IN THE ROCKY MOUNTAIN AND PLAINS REGION

In excess of 30 states have enacted tort reform legislation requiring property owners to notify construction professionals of the presence of alleged construction defects prior to the commencement of a lawsuit. These statutes also often permit construction professionals to make an offer of repair within a statutorily defined period of time after receipt of a notice of claim letter. Undoubtedly, the notice-of-claim process has played a meaningful part in bringing construction professionals and claimants to timely resolutions of construction defect concerns in isolated instances.

 

However, while these statutes are commonly referred to as “right of repair” legislation, their practical effect is often reduced to little more than procedural empty gestures serving as a prelude to litigation. This article will briefly survey the “right to repair” statutes in Colorado, Montana, North Dakota and South Dakota. In Nebraska, New Mexico, Utah and Wyoming there is no right to repair or notice-of claim statue.

 

COLORADO

Pursuant to C.R.S. § 13-20-803.5, the “right of repair” process begins when a property owner delivers a “notice of claim” letter to the construction professional. The construction professional then has 30 days to inspect the property, according to C.R.S. § 13-20-803.5(2). Upon completing the inspection, the construction professional has an additional 30 days to offer to settle the alleged construction defects by means of payment or by offering to remedy the alleged construction defects through remedial work. “A written offer to remedy the construction defect shall include a report of the inspection, the findings and results of the inspection, a description of the additional construction work necessary to remedy the defect described in the notice of claim and all damage to the improvement to real property caused by the defect, and a timetable for the completion of the remedial construction work” as stated in C.R.S § 13-20-803.5(3).

 

However, an owner is under no obligation to accept a construction professional’s offer of monetary compensation or repairs, regardless of how reasonable it may be based on C.R.S § 13-20-803.5(6). Recognizing the practical reality that the “right of repair” exists in name only for Colorado construction professionals, Colorado’s legislature introduced House Bill 17-1169 on February 6, 2017. HB 17-1169 would have statutorily permitted construction professionals to perform repairs in response to a notice of claim letter. In the words of the bill: “[i]f the Construction Professional [were to give] notice of an election to repair the defect in accordance with [the statute], the Claimant shall provide the construction professional with unfettered access to the subject property as necessary to correct the construction defect. . .” Unfortunately, on March 1, 2017, Colorado’s House Committee elected to postpone any vote on HB-1169 indefinitely. 

 

In sum, in Colorado, construction professionals have the right to offer to make a repair. Owners have no obligation to accept a construction professional’s offer of repair.

 

MONTANA 

Montana’s construction defect statute is substantially similar to that of Colorado’s. Specifically, M.C.A. § 70-19-427 requires a residential homeowner to serve a written notice of claim on the construction professional prior to the commencement of a lawsuit. The notice of claim must state that the homeowner is asserting a construction defect claim against the construction professional and must describe the claim in reasonable detail. Thereafter, the construction professional has 21 days to respond to the homeowner by proposing an inspection of the property, offering to compromise or settle through a financial settlement or repair, or denying liability. As with Colorado’s statute, the homeowner is under no obligation to accept a construction professional’s offer.

 

Additionally, M.C.A. § 70-19-427(3)(b) allows the homeowner to reject the inspection proposal. Nevertheless, if the homeowner elects to allow the construction professional to inspect the property, within 14 days following the completion of the inspection, the construction professional is obliged to provide the homeowner with an offer to compromise via a monetary payment, a written offer to remedy the claim through a combination of repair and monetary payment, or a written statement setting forth the reasons why the construction professional will not proceed to remedy the alleged defect. The homeowner must then, within 30 days, accept or reject the construction professional’s proposed resolution. If the homeowner rejects the offer of repair or settlement presented by the construction professional, the homeowner must serve written notice of the homeowner’s rejection to the construction professional. After delivery of the homeowner’s rejection of the proposed settlement, the homeowner is free to commence a lawsuit against the construction professional.

NORTH DAKOTA

North Dakota’s statutory construction defect notice and offer of repair requirements are unique compared to the foregoing states. Specifically, N.D.C. § 43-07-26 precludes residential homeowners from undertaking any repair, other than emergency repairs, or commencing a lawsuit prior to providing notice to the construction professional of the alleged defect. Thereafter, “within a reasonable time after receiving the notice, the contractor shall inspect the defect and provide a response to the purchaser or owner, and, if appropriate, remedy the defect within a reasonable time thereafter,” according to N.D.C. § 43-07-26. Compared to the language of the other states examined in this article, North Dakota has, by far, the most favorable statutory regime for construction professionals. The homeowner must allow the construction professional to inspect the property and the construction professional is actually afforded the “right to repair.”

 

SOUTH DAKOTA

Pursuant to S.D.C.L. § 21-1-16, South Dakota maintains a statutory regime requiring residential homeowners, prior to commencing an action, to serve a written notice on construction professionals setting forth the alleged construction defects present at the property. Additionally, the statute requires that the residential homeowner allow the construction professional to inspect the property within 30 days after service of the notice and allow the construction professional to make a written offer to repair or an offer of monetary settlement. While the homeowner is under no obligation to allow the construction professional to perform the repair offered, if any, the homeowner is required to wait until 30 days after the notice of claim is served on the construction professional or until the construction professional refuses to remedy the alleged construction defect prior to commencing suit.

 

CONCLUSION 

The statutory right to repair for construction professionals is often an illusory remedy under the current statutory framework. While the legislative intent in enacting construction defect reform statutes was presumably to streamline construction defect litigation, these right-to-repair provisions are often rendered ineffective as a result of property owners’ ability to refuse reasonable repairs.

For additional information regarding the construction professionals’ “right to repair" 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 and/or Sheri Roswell by telephone at (303) 987- 9812 or by e-mail at roswell@hhmrlaw.com.

Governmental Immunity Waived for Independent Contractor - Lopez v. City of Grand Junction

On July 12, 2018, the Colorado Court of Appeals announced its decision in Lopez v. City of Grand Junction, 2018 WL 3384674 (Colo. App. 2018). The Court considered whether immunity is waived under Colorado’s Governmental Immunity Act (“CGIA”), pursuant to section C.R.S. § 24-10-106(1)(f), in situations where the public entity hired an independent contractor to perform the work. The Court held that if the public entity would have been liable under the CGIA for the conduct that caused the injury, had it performed the work itself, then it is liable for the work performed by its independent contractor.

While the CGIA provides immunity to the government, pursuant to C.R.S. § 24-10-106(1)(f), the government waives immunity for injuries resulting from the operation and maintenance of any public sanitation or electrical facility. The City of Grand Junction contracted with Apeiron Utility Construction (“Apeiron”) to perform maintenance of a public traffic light. During such maintenance, Apeiron breached a natural gas line that leaked into a sewer main located nearby. The gas migrated to the plaintiffs’ home and entered the basement, resulting in an explosion and injuries. 

The city filed a motion to dismiss for immunity under the CGIA and the plaintiffs argued that the city waived its immunity under the CGIA because the explosion resulted from the operation and maintenance of a public sanitation facility. The trial court held a Trinity hearing and granted the city’s motion to dismiss. See Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) (holding that a court may hold a Trinity hearing where the injured plaintiffs bear the burden of proving the court’s subject matter jurisdiction under the CGIA and that immunity has been waived). Tidwell ex rel. Tidwell v. City & Cty. Of Denver, 83 P.3d 75, 85 (Colo. 2003). The Court of Appeals reversed in part, and affirmed in part, holding:

1. Reversed—the waiver of immunity applies even if the operation or maintenance was performed by an independent contractor. 
2. Affirmed—the dismissal of the negligence claim as to the city’s operation and maintenance of its sewer line as the evidence did not support an immunity waiver.

Waiver of Immunity for Work Performed by Independent Contractor

The Court of Appeals relied upon Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000). The CGIA establishes governmental immunity from suit for public entities and their employees in tort cases, but also waives immunity in certain circumstances. C.R.S. § 24-10-106; Springer at 792. The Court in Springer reviewed three aspects of section 1(c) of the CGIA and determined:

1. A public entity lacks immunity when it creates the acts, as well as its omission, in failing to reasonably discover and correct an unsafe condition. Id. at 801.
2. If the CGIA waiver were construed to exclude the acts or omission of the independent contractor, a public entity could avoid responsibility by contracting out its work to others, nullifying the purpose and effect of the waiver. Id. at 801-2.
3. The General Assembly’s intent, to hold a public entity responsible for the acts of its independent contractor, is consistent with longstanding principles of tort lability. Id. at 802 (citing Restatement (Second) of Torts § 422 (Am. Law Inst. 1965).

The Court of Appeals noted, “[A]s a logical matter, any attribution of Apeiron’s conduct to the City will only matter—for purposes of waiver—if the conduct would have waived the City’s immunity had the City itself committed this act.” If so, the city’s immunity is waived if plaintiffs can show the injuries resulted from the specific conduct. See C.R.S. § 24-10-106(1)(f); Tidwell at 86. This does not require a showing that the injuries were “caused by” the conduct. Tidwell at 86. Rather, there must be at least a “minimal causal connection’ between the injuries and the specified conduct. Id. The trial court found, by way of the undisputed facts, that the injuries resulted from the conduct of Apeiron striking and breaching the gas line. As such, this conduct would have waived the city’s immunity had the city itself committed this act.

While a person hiring an independent contractor is generally not liable for the negligence of the independent contractor, there are widely recognized exceptions to this rule, such as when a public entity retains possession of its premises during the contractor’s performance of its work on the premises. See Huddleston ex rel. Huddleston v. Union Rural Elect. Ass’n, 841 P.2d 282, 288 (Colo. 1992); Restatement (Second) of Torts § 422. Another widely recognized common law principle of liability attributed to the conduct of the independent contractor to the employer is when the maintenance is inherently dangerous. Restatement (Second) of Torts § 427.  The city did not dispute that it retained possession of the property during Apeiron’s work, or that the work was inherently dangerous.  Thus, the independent contractor exceptions applied.

The Court reversed, finding the city would have been liable for the alleged injuries under the CGIA had it performed the work itself.  Thus, immunity was waived under the CGIA in this instance.

Operation and Maintenance of the Sewer System

Plaintiffs argued that the sewer main was not in the same general state of repair as when it was installed. Plaintiffs contend that roots had grown into the sewer main creating gaps for the gas to enter. C.R.S. § 24-10-106(1)(f) waives immunity if the injury results from the public entity’s failure to keep the public facility “in the same general state of being, repair, or efficiency as initially constructed. C.R.S. § 24-10-103(2.5). 

The trial court found that at the time of the explosion, the sewer main was intact and in good condition, and functioned at or near the same efficiency in 2013 as it had been when installed in the 1940’s. The Court of Appeals deferred to the trial court’s factual finding, citing City & County of Denver v. Dennis, 418 P.3d 489 (Colo. 2018) (“On review, we defer to the district court’s factual findings unless they are clearly erroneous and unsupported by the record”). As the Court of Appeals did not find the factual findings erroneous and unsupported by the record, the Court affirmed the trial court, finding Plaintiffs did not meet their burden to prove a waiver under C.R.S. § 24-10-106(1)(f).

Conclusion

We believe Lopez to be potentially problematic for contractors hired by governments in situations where they have agreed to indemnify the governmental entity for claims arising from their work.  In those situations where the CGIA will not apply, contractors cannot rely on it to shield them from ultimately liability to the governmental entity.  With this in mind, this opinion was not released for publication as a petition for rehearing or a petition for certiorari in the Colorado Supreme Court may be pending. Thus, the Colorado Supreme Court may review this opinion.

For additional information regarding Lopez v. City of Grand Junction or about construction defect litigation in Colorado, generally, you can reach Frank Ingham by telephone at (303) 653-0046 or by e-mail at ingham@hhmrlaw.com.