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Colorado Court of Appeals Opinions
June 15, 2006

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 04CA0091. Park Rise Homeowners Association, Inc. v. Resource Construction Company.
Construction Defects—Homeowners Association—Negligence—Economic Loss Rule—Expert Testimony—Colorado Consumer Protection Act.

In this construction defects case, plaintiff Park Rise Homeowners Association Inc. ("HOA") appeals the judgment entered on a directed verdict in favor of defendant Resource Construction Company ("Resource"). The judgment is affirmed in part and reversed in part, and the case is remanded for further proceedings.

HOA is the homeowners’ association for a condominium community for which Resource acted as the general contractor during construction. HOA filed this action against both Resource and the developer of the community, Park Rise, LLC ("developer"), alleging property damage from defects throughout the community. Shortly before trial, HOA settled with the developer. When HOA rested, the court directed a verdict for Resource.

HOA first contends the trial court erred in dismissing its negligence claims under the economic loss rule. The Court of Appeals agrees. General contractors and other builders "are under an independent tort duty to act without negligence in the construction of homes." Furthermore, HOA was not required to present expert testimony to identify latent defects. Therefore, the trial court erred in dismissing the negligence claims based on the economic loss rule.

HOA next contends the trial court erred in directing a verdict because HOA "made no distinction between design defects and construction defects," and damages resulting from some design defects were not apportioned. The Court of Appeals agrees. The evidence was sufficient for a reasonable jury to have concluded that the damages in at least these three of HOA’s damage categories were recoverable based solely on construction defects for which Resource was responsible. The negligence claims must be retried.

Finally, HOA contends the trial court erred in finding that the developer’s alleged misrepresentations were mere "puffing" and in dismissing its Colorado Consumer Protection Act ("CCPA") claim. The Court of Appeals disagrees. "Mere statements of opinion such as puffing or praise of goods by seller is no warranty." The CCPA does not, as a matter of law, make actionable a statement that otherwise would be mere puffery. A statement about "quality construction" represents a statement of opinion. Therefore, the developer did not engage in a deceptive trade practice under the CCPA and has no liability that could be shared with Resource. Accordingly, dismissal of the CCPA claim was proper.

The judgment is reversed as to dismissal of the negligence claims and the case is remanded for further proceedings on those claims. The judgment is affirmed as to dismissal of the CCPA claim.

No. 04CA0740. In re the Marriage of J.M.H. and Rouse, and Concerning Weld County Dept. of Human Services.
Common Law Marriage—Minor—Consent—CRS § 14-2-108.

Rouse appeals from the judgment declaring invalid his April 2003 attempted marriage to J.M.H. The judgment is reversed and the case is remanded with directions.

In April 2003, when J.M.H. was 15 years old, Rouse and J.M.H. applied for a marriage license in Adams County. Rouse also asserts that, although J.M.H. was subject to a dependency and neglect proceeding brought by the Weld County Department of Human Services ("Department"), she had become emancipated. J.M.H.’s mother consented to the marriage. The deputy clerk approved the application and forwarded it to the county clerk for registration. The county clerk also approved the application and mailed it back to Rouse and J.M.H., stating that they were fully registered as a legally married couple as of April 28, 2003. In February 2004, the Department filed a petition to declare the marriage invalid. The trial court granted the petition after a hearing, holding that a person under age 16 must obtain judicial approval for a valid common law or ceremonial marriage.

Rouse contends that the trial court erred in holding that a person under age 16 must seek judicial approval to be married, even if that marriage is at common law. The Court of Appeals agrees. CRS § 14-2-108(1)(b) states that a person under the age of 16 may receive judicial approval to marry if that person has parental consent. However, the common law marriage of a person is valid, regardless of whether the person has reached the age of competency as established by statute, if the person is competent according to the common law.

Thus, in the absence of a statutory provision to the contrary, it appears that Colorado has adopted the common law age of consent for marriage as 14 for a male and 12 for a female, which existed under English common law. J.M.H. was 15 years old when she allegedly entered into a common law marriage with Rouse. Therefore, if all other elements for common law marriage were satisfied, Rouse’s marriage to J.M.H. was valid ab initio, because J.M.H. was competent at common law on the date she was married.

Accordingly, the trial court erred in ruling that the common law marriage was invalid on the ground that neither J.M.H. nor Rouse obtained judicial approval of the marriage. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

No. 04CA0975. Castillo v. Koppes-Conway.
Fee Agreement—Summary Judgment—C.A.R. 28—C.A.R. 38—CRS § 13-17-102.

Plaintiff appeals the trial court’s order granting summary judgment for defendant. The order is affirmed and the case is remanded with directions.

Plaintiff hired defendant to represent him in a workers’ compensation case. The fee agreement provided, among other things, that if plaintiff fired defendant before the case was resolved, he would pay her for work that she had performed. Plaintiff later fired defendant and hired his present attorney. Defendant filed an attorney’s lien, alleging that plaintiff had failed to pay her under the fee agreement. Plaintiff then sued defendant. The court granted summary judgment for defendant. Plaintiff now appeals the order granting summary judgment. Defendant counters that summary judgment must be affirmed because plaintiff has failed to present a cogent assertion of error.

The Court of Appeals agrees with defendant, finding that plaintiff’s brief violates C.A.R. 28. Plaintiff improperly incorporated by reference more than 200 pages of pleadings that plaintiff filed in the trial court in his opening brief. Furthermore, plaintiff’s brief cites only one rule of procedure and two cases, none of which is relevant to the trial court’s ruling.

Defendant requests attorney fees and costs under C.A.R. 38(d). The Court of Appeals grants this request and also awards attorney fees under CRS § 13-17-102. Under § 13-17-102(4), a court may assess attorney fees on its own motion if it finds that an attorney or party has brought an action that lacks "substantial justification." The case is remanded for an award of attorney fees and costs incurred on appeal to be assessed against plaintiff’s attorney.

No. 04CA1396. Village Homes of Colorado, Inc. v. Travelers Casualty and Surety Company.
Comprehensive General Liability Insurance Policy—Umbrella Insurance Policy—Construction Defect Claims—Coverage—Policy Terms.

Defendants Travelers Casualty and Surety Company and Travelers Casualty Co. of Connecticut (collectively, "Travelers") appeal the trial court’s judgment in favor of plaintiff Village Homes of Colorado, Inc. The judgment is affirmed.

Travelers issued a comprehensive general liability ("CGL") and a comprehensive excess liability ("umbrella") insurance policy to Village Homes, a home builder. Travelers later denied coverage for construction defects claims. After receiving the case on stipulated facts, the court concluded that Travelers was obligated to indemnify Village Homes in the amount of $200,000.

Travelers argues that: (1) coverage was not triggered because the homeowners acquired the homes after the expiration of the insurance policy; and (2) there is no coverage because the homeowners did not suffer any actual harm during the policy period. The Court of Appeals disagrees. The CGL policy obligates Travelers to pay sums that Village Homes becomes legally obligated to pay as damages because of property damage that: (1) is caused by an "occurrence"; and (2) takes place during the policy period. The policy defines "occurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."

Travelers stipulated that there was property damage to the homes, that it resulted from an occurrence during the policy period, and that the damage to the homes during the policy period was $200,000. Under the policy’s definition of an occurrence, Travelers thus stipulated that there had been an accident causing $200,000 in property damage during the policy period. Under the insuring agreement, Travelers was obligated to pay the sums Village Homes was legally obligated to pay the homeowners. Travelers did not contend that the $200,000 of damage during the policy period was not the cause of Village Homes’ liability to the twenty homeowners. Therefore, the trial court correctly held that, under the terms of the policy, Travelers must pay $200,000 of the total sum Village Homes is obligated to pay to the homeowners. The judgment is affirmed.

No. 04CA1768. Lattany v. Garcia.
Governmental Immunity Act—Motion to Intervene—CRS § 24-10-110(1.5)(a)—Limited Intervention—C.R.C.P 24(a) and (b).

The City and County of Denver ("Denver") moved for limited intervention, seeking reimbursement under the Governmental Immunity Act ("GIA") for costs in the legal defense of two deputy sheriffs. The trial court denied the motion and the Court of Appeals reverses.

The underlying action involved a physical altercation between plaintiff and the two deputy sheriffs at a children’s soccer game. The Denver City Attorney’s Office defended the city official defendants, because they had been sued in their official capacities, but declined to represent the two deputy sheriffs. Denver did agree to conditionally pay a private attorney to defend them.

Plaintiff dismissed her claims against the city officials and the City Attorney’s Office ceased its participation in the case. The deputies later moved for summary judgment and in its partial grant the court found that defendants were off duty and not acting under color of law. Two months later, Denver moved for limited intervention to obtain reimbursement for the attorney fees and costs it had expended in defense of the deputies. The court denied the motion as untimely.

The Court of Appeals finds that the GIA confers an unconditional right to reimbursement of costs and attorney fees advanced to a public employee later found to have been acting outside the scope of his employment. In order to obtain such reimbursement it is implicit that intervention as of right is available to Denver.

The Court of Appeals also finds that Denver’s motion was timely. It was not served with the scope of employment ruling and it did file its motion as soon as it learned of the order. Moreover, requests for attorney fees as costs generally are made after litigation has ended. The order is reversed and the case is remanded with directions.

No. 05CA1240. Resources One, LLC v. Industrial Claim Appeals Office.
Medical and Temporary Disability Benefits—Preexisting Condition—"Full Responsibility" Rule.

Resources One, LLC, doing business as Terra Firma, and its insurer, Pinnacol Assurance, (collectively, "employer") seek review of a final order of the Industrial Claim Appeals Office ("Panel"). The judgment is affirmed.

In 2003, claimant suffered a back injury while working for Terra Firma. Before the injury, claimant had been diagnosed with degenerative disc disease, arthritic changes of the spine, and spinal stenosis.

In 2004, claimant’s physician found that he had reached maximum medical improvement. Claimant objected and requested a division-sponsored independent medical examination ("DIME"). The DIME physician determined that he was not at maximum medical improvement and recommended back surgery.

Employer contested the DIME physician’s determination before an administrative law judge ("ALJ"). The ALJ upheld the determination. Employer sought review before the Panel, claiming the ALJ had failed to apportion liability between the industrial injury and the preexisting spinal condition. The Panel affirmed the ALJ, ruling as a matter of law that employer was not entitled to apportionment. The Court of Appeals affirms, finding no provision for apportionment of this type in the statute and following the general principle known as the "full-responsibility rule."

No. 05CA1331. Pollock v. Highlands Ranch Community Association, Inc.
Negligence Claim by a Minor—CRS § 13-22-107—Motion for Dismissal—Retroactive Action.

In this negligence action, plaintiff appeals the summary judgment entered in favor of defendants, Highlands Ranch Community Association, Inc. ("Association") and an employee. The judgment is reversed and the case is remanded with directions.

On January 8, 2004, plaintiff commenced this action seeking damages for personal injuries sustained in a fall from a rock-climbing wall at the Association’s recreational facility. The fall occurred on January 10, 2002, when plaintiff was 9 years old. Defendants moved for summary judgment based on a "Waiver, Release, Covenant not to Sue, and Indemnity Agreement" that plaintiff’s mother had signed on his behalf four years before the accident.

Defendants argued the release was valid under CRS § 13-22-107, which became effective five months after the accident, and legislatively overruled the Supreme Court’s decision in Cooper v. Skiing Co., 48 P.3d 1229 (Colo. 2002). Before the trial court ruled, plaintiff filed a "Motion to Amend Complaint in the Event Summary Judgment is Granted." The proposed amended complaint included claims for gross negligence and willful and wanton misconduct, which would not be waivable under the statute.

The court granted summary judgment in favor of defendants and granted plaintiff leave to file the amended complaint. On appeal, plaintiff contends the trial court erred in applying § 13-22-107 retroactively to the release, because the statute did not become effective until after his cause of action accrued.

Defendants argued that even if it was error to apply § 13-22-107 retroactively, the release still bars plaintiff’s claims under the law in effect when the cause of action accrued. The Court of Appeals disagrees, finding that Cooper clarified that the law in Colorado at the time of this release and before was that parental releases such as the instant one are invalid. The judgment is reversed and the case is remanded to reinstate plaintiff’s complaint.

Nos. 04CA0762 and 04CA0998. Carothers v. Archuleta County Sheriff.
Colorado Governmental Immunity Act—Notice of Claim—Injuries—CRS § 24-10-109—Willful and Wanton Conduct—Breach of Contract.

Defendants Archuleta County Sheriff and Deputy Gaskins appeal the trial court’s orders denying their motions to dismiss claims brought by plaintiffs Rick and Cindy Carothers. Plaintiffs cross-appeal the trial court’s order dismissing their claims against the Sheriff individually. The appeal is dismissed in part, affirmed in part, and reversed in part, and the case is remanded for further proceedings.

Plaintiffs brought this action against defendants and other parties after their 8-year-old son sustained serious injuries in a dog attack and the Sheriff’s Department failed to timely respond. Gaskins contends the trial court erred in concluding that plaintiffs’ notice of claim substantially complied with CRS § 24-10-109. Section 24-10-109 requires, as a jurisdictional prerequisite to suit, that a person claiming to have been injured by a public entity or public employee file a written notice within 180 days after the date of discovery of the injury. Here, the notice substantially complied with the requirements of § 24-10-109(2), and it gave both defendants the information necessary to investigate, remedy any problem, and make adequate financial arrangements to meet any potential liability. Thus, the trial court did not err in declining to dismiss plaintiffs’ complaint based on insufficient notice.

The Sheriff contends that the trial court erred in refusing to dismiss plaintiffs’ eighth claim for relief, alleging willful and wanton conduct based on its conclusion that the Sheriff was liable under CRS § 30-10-506 for the willful and wanton conduct of his subordinates. The Court of Appeals agrees. A public entity is entitled to immunity under § 24-10-106, unless the claimant’s injuries result from one of the specific circumstances enumerated in that statute for which sovereign immunity is waived. Here, none of those exceptions is alleged. On remand, the court shall dismiss this claim against the Sheriff.

The Sheriff further contends that the trial court erred in refusing to dismiss plaintiffs’ breach of contract claim. The Court of Appeals disagrees. A "breach of contract" claim is in fact one that could sound in tort if it involves breach of an obligation imposed by law, not by contract. If the existence of a contract with the Sheriff is established and the requisite showings of foreseeability and willful and wanton conduct are met, plaintiffs may be able to establish their right to recover damages as third-party beneficiaries of that contract. Therefore, the trial court did not err in refusing to dismiss their breach of contract claim. The case is remanded for dismissal of claim eight against the Sheriff and for further proceedings.

Colorado Court of Appeals Opinions