Shaw Construction, LLC v. United Builder Services, Inc.
2012 COA 24
| Colo. Ct. App. | 2012Background
- HOA alleges construction defects in a multi-phase Roslyn Court condo project built by Shaw; Shaw hired United Builder Services and MB Roofing as subcontractors.
- Project consisted of 3 phases with a final certificate of occupancy (CO) for the last building issued March 10, 2004; architect certified completion on June 8, 2004.
- HOA sent a notice of claim under CDARA on May 15, 2007; HOA filed suit January 21, 2009, adding Shaw in 2010; Shaw served its CDARA notice of claim on subcontractors the following day.
- Subcontractors moved for summary judgment arguing the six-year CDARA repose had run; Shaw argued substantial completion occurred at June 8, 2004 per architect’s certification.
- Trial court held substantial completion occurred at final CO (March 10, 2004), rejected tolling under section 805, and entered summary judgment for subcontractors; this interlocutory appeal followed.
- Court holds that the last-building improvement is the trigger for repose and that tolling under 805 does not toll subcontractors absent notice to them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial completion is a matter of law or fact. | Shaw says disputed facts exist about tolling and completion. | Substantial completion is a question of law based on undisputed facts. | Substantial completion is a question of law. |
| Whether tolling under CDARA §13-20-805 tolls claims against subcontractors lacking notice. | Section 805 tolls all related claims when a notice is sent to any construction professional. | Section 805 tolling should be limited to those who receive notice; others are not tolled. | Shaw's claims against subcontractors were not tolled. |
| What constitutes the 'improvement' for the statute of repose in a multi-phase project. | Improvement means the entire project; repose runs after whole project completion. | Improvement can be a discrete component, here the last building. | The last building is an improvement for repose purposes. |
| When repose accrues for the subcontractors' claims in this project. | Repose may be triggered later by architect certification. | Repose starts with completion of the discrete improvement (last building). | Repose began no later than March 10, 2004, at final CO for the last building. |
Key Cases Cited
- Homestake Enters., Inc. v. Oliver, 817 P.2d 979 (Colo.1991) (sprinkler as improvement in larger project)
- Stanske v. Wazee Elec. Co., 722 P.2d 402 (Colo.1986) (indicator light as improvement in electrical system)
- Anderson v. M.W. Kellogg Co., 766 P.2d 640 (Colo.1988) (definition of improvement and permanence in project context)
- Two Denver Highlands Ltd. P'ship v. Stanley Structures, Inc., 12 P.3d 819 (Colo.App.2000) (distinguishing between limitations periods and repose; improvement concept)
- CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658 (Colo.2005) (CDARA legislative history and purpose guiding interpretation)