Monthly Archives: June 2007

June 28, 2007

Court Explains Differences Between Tort And Contract Recovery In Construction Defects Cases

By Tim Gordon

Andrews v. Picard (Colo. App. 2007)

The Colorado Court of Appeals reaffirmed that homebuilders owe an independent duty of care in tort to purchasers, and reversed the trial court’s directed verdict dismissing the plaintiff’s negligence claim. Although this holding does not change the law, the case is interesting in that the plaintiff received a judgment against the defendants on her breach of contract claim, and the Court still remanded the case to allow the plaintiff to pursue her tort claim. This demonstrates some of the differences between tort and contract recovery.

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June 28, 2007

Arbitrator Decides Whether Conditions Precedent To Arbitrating Have Been Satisfied

By Tim Gordon

BRM Construction v. Marais Gaylord (Colo. App. 2007)

The Colorado Court of Appeals held that the arbitrator gets to decide whether or not the claimant has satisfied the required conditions precedent to initiating arbitration. The defendant argued that the plaintiff was required to first submit the claim to the architect for consideration, and that plaintiff was untimely in demanding arbitration. The district court and the Court of Appeals both decided that these issues were for the arbitrator to resolve, and the arbitrator’s decision on the issues was not subject to review. "[A]n arbitrator’s resolution of [issues concerning compliance with procedural conditions precedent to arbitration], even if erroneous, is not a ground for vacating or refusing to confirm the award."

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