November 26, 2007

Lost Bonding-Capacity Claims Are Too Speculative (REVERSED)

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.

UPDATE: On 11/26/2007, the Colorado Supreme Court grated cert. on the following issue: "Whether Colorado law prohibits lost profits arising out of the loss of bonding capacity as a matter of law." (07SC236)

UPDATE:  On 1/12/2009, the Colorado Supreme Court reversed the Court of Appeals, holding that impaired bonding capacity claims are not speculative as a matter of
law.  Instead, like all claims for lost profits, they must be
established with reasonable certainty.  See here.