Monthly Archives: February 2007

February 22, 2007

Lost Bonding-Capacity Claims Are Too Speculative (on cert.)

By Tim Gordon

Denny Construction v. Denver (Colo. App. 2007)

The Colorado Court of Appeals held that, as a matter of law, lost bonding-capacity claims are too speculative. I’ve highlighted the relevant text.

The Court also addressed various provisions in a typical contract that give the owner discretion (like granting extensions), and how exercising that discretion can result in a claim for breach of the duty of good faith and fair dealing.

Read slip opinion


 

February 8, 2007

Arbitration Clause In Expired Contract Still Enforceable

By Tim Gordon

Shams v. Howard (Colo. App. 2007)

The Court of Appeals held that an arbitration clause was still enforceable even though the contract that it was contained in had expired. Also, although the claims brought sounded only in tort (such as negligent construction of a home), the arbitration clause in the expired contract still applied.

Finally, the Court of Appeals did not rule on the issue of whether the particular defendant (an individual) could rely on and enforce the terms of the arbitration clause, even though the contract was between the plaintiffs and an LLC. The Court of Appeals said that the plaintiffs had not raised the issue. According to the Court, "[w]e express no opinion whether [defendant] must be a direct or accommodation party to the warranty agreement in order to benefit from the arbitration clause because plaintiffs have not presented that issue."

Read slip opinion

February 8, 2007

90-Day Statute Of Limitations Not Applicable To Subrogation Claim

By Tim Gordon

Fire Insurance Exchange v. Monty’s Heating (Colo. App. 2007)

After a homeowner’s home burnt down, plaintiff insurance company paid the homeowner under the homeowner’s policy. Plaintiff then brought a subrogation claims against the contractors, alleging faulty HVAC work.

The trial court entered summary judgment dismissing the claims based on the 90-day statute of limitations in C.R.S. § 13-80-104(1)(b)(II). The Court of Appeals reversed, holding that the 90-day statute of limitations for indemnification and similar claims applied to claims by the defendants of construction-defects cases, not the plaintiffs.

Read slip opinion

February 5, 2007

Trust Fund Claim Exists Independent Of Mechanics’ Lien Claim

By Tim Gordon

Fowler v. Regan (Colo. 2007)

On a certified question from the 10th Circuit, the Colorado Supreme Court held that a party does not need to have perfected a mechanics’ lien or even still be within the time limits to perfect such a lien in order to have a claim for moneys held in trust under Colorado’s trust-fund statute. The opinion includes a detailed history and explanation of mechanics’ liens in Colorado, and there is a dissenting opinion by Justice Rice, with two other Justices joining.

Read slip opinion