Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co
2017 COA 31
| Colo. Ct. App. | 2017Background
- In 2007 Sunrise Development contracted with R.G. Brinkmann to construct a senior assisted/independent living facility; substantial completion was certified March 16, 2009 and certificate of occupancy issued May 15, 2009.
- Contract included general and extended/latent-defect warranty provisions and a clause (§13.7) that artificially fixed accrual dates for claims (at substantial completion, final payment, or warranty dates).
- In fall 2012 sewer flies revealed broken under-slab sewer pipes; excavation and investigation (May 2013–March 2015) by SBSA identified numerous construction defects attributed to improper construction/soil interaction.
- Broomfield (current owner) gave notice to Brinkmann in January 2014; Brinkmann inspected, denied responsibility (attributing problems to soils), and refused repairs.
- Broomfield sued in July 2014 for breach of contract, negligence, negligence per se, negligent misrepresentation, and breach of express warranties; trial court granted summary judgment for Brinkmann based on contractual accrual dates and failure to give prompt notice/opportunity to repair.
- The Court of Appeals reversed: it held the Homeowner Protection Act (HPA) — part of CDARA — applies to senior facilities so contractual accrual limits void as against public policy, and material factual disputes remain on accrual, notice/repair opportunity, design-services, and patent vs. latent defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a senior living facility is "residential property" under the HPA | The facility is residential (used as dwelling), so HPA voids contract accrual limits | HPA ambiguous; title/legislative history shows intent to protect individual homeowners, not sophisticated commercial owners | Facility is "residential property;" HPA applies and contractual accrual limitation is void |
| Which accrual rule governs (contract fixed dates vs. CDARA discovery rule) | CDARA accrual (discovery of physical manifestations) governs once HPA voids contract provision; first manifestation was fall 2012 | Contract governs; claims accrued at substantial or final completion (2009) | CDARA discovery-based accrual applies; claims accrued when sewer flies/physical manifestations discovered in 2012 |
| Whether breach-of-warranty claim is barred for failing to give prompt notice/opportunity to repair | Broomfield gave timely notice (Jan 2014) after SBSA’s investigation; genuine factual dispute on when defects were discovered and whether owner repaired before notice | Brinkmann: owner repaired without giving contractor prompt notice/opportunity, so warranty remedies waived | Genuine issues of material fact exist about notice and opportunity to repair; summary judgment improper on warranty claim |
| Whether negligence/design-service claims are time-barred or refuted by record on design changes | Accrual governed by discovery (2012); evidence raises disputed issues whether Brinkmann performed design changes and was negligent | Brinkmann: no extra-contractual design services; allegations insufficiently tied to Brinkmann | Negligence/design-service issues not time-barred; factual disputes exist about whether Brinkmann performed design services and was negligent |
Key Cases Cited
- W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479 (Colo. 2002) (summary judgment standards)
- Anderson v. Vail Corp., 251 P.3d 1125 (Colo. App. 2010) (court cannot weigh credibility on summary judgment)
- Morrison v. Goff, 91 P.3d 1050 (Colo. 2004) (limitations accrue when injury and cause are known or should be known)
- Hersh Cos. v. Highline Vill. Assocs., 30 P.3d 221 (Colo. 2001) (CDARA accrual not intended to limit breach-of-warranty accrual rules)
- Fin. Assocs., Ltd. v. G.E. Johnson Constr. Co., 723 P.2d 135 (Colo. 1986) (conflicting permissible inferences can create issue of fact)
- Park Rise Homeowners Ass’n v. Res. Constr. Co., 155 P.3d 427 (Colo. App. 2006) (jury may determine which defects are latent vs. patent)
- Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983) (statutory public policy cannot be contracted away)
- BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004) (courts generally enforce negotiated allocation of risk between sophisticated parties)