Construction Law in Colorado

(Update - cert. granted) Subrogation Waiver Covers The Entire Loss, Not Just "The Work"

Copper Mountain, Inc. v. Industrial Systems, Inc. (Colo. App. 2007)

Creating a split in the Colorado Court of Appeals, a division of the Court held that the subrogation waiver in AIA A201 covers any damage to the building, not just loss to the work being performed.

On June 9, 2008, the Supreme Court of Colorado granted cert. on the following issue: Whether the court of appeals erred in ruling a waiver of subrogation provision in an American Institute of Architects ("AIA") form contract barred all of owner-plaintiff’s claims, thereby creating a conflict with another decision of the court of appeals, Town of Silverton v. Phoenix Heat Source System, Inc., 948 P.2d 9 (Colo. App. 1997), which held the waiver provision barred only claims for damages to the "Work" required to be insured by the owner under the contract.

Lost Bonding-Capacity Claims Are Too Speculative (REVERSED)

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.

Refusal To Release Mechanics’ Lien And Lis Pendens Following Payment Of Judgment Results In Award Of Fees

Front Range Home v. Stowell (Colo. App. 2007)

The Colorado Court of Appeals affirmed a trial court's award of attorney's fees to defendant based upon plaintiff’s conduct concerning the release of the mechanic’s lien and notice of lis pendens. Basically, plaintiff wins lawsuit, defendant pays judgment in full, but plaintiff refuses to release the lien and lis pendens without further explanation.

Quantum Meruit Claim Allowed For What Is Typically A Change Order Issue

Specialized Grading v. Goodland (Colo. App. 2007)

The Court of Appeals holds that a subcontractor can maintain a quantum meruit claim against the general contractor for alleged extras caused by the general's failure to dewater, despite the fact that the parties have a written contract. The general rule is that a quasi-contract claim cannot lie where the parties have an express contract. But this rule does not apply if the conduct complained of is subsequent to, and not covered by, the express terms of the contract.