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Sierra Pacific Industries, Inc. v. Bradbury

Court of Appeals of Colorado, First Division

September 8, 2016

Sierra Pacific Industries, Inc., a California corporation, Plaintiff-Appellant,
Jason Bradbury, d/b/a Bradbury Construction, Inc., a Colorado corporation, Defendant-Appellee.

         City and County of Denver District Court No. 14CV34003 Honorable John W. Madden IV, Judge

          Perkins Coie, LLP, L. Norton Cutler, Daniel Graham, Denver, Colorado; Lehr, Lemmon, Kirwin & Francis, LLP, Mark Kirwin, Ventura, California, for Plaintiff-Appellant

          The Hustead Law Firm, P.C., Patrick Q. Hustead, Ryan A. Williams, Denver, Colorado, for Defendant-Appellee


          DAILEY JUDGE

         ¶ 1 In this construction defect dispute, plaintiff, Sierra Pacific Industries, Inc. (Sierra Pacific), appeals the district court's entry of summary judgment in favor of defendant, Jason Bradbury, d/b/a Bradbury Construction, Inc. (Bradbury). We affirm.

         I. Background

         ¶ 2 Sierra Pacific was hired by a contractor, the Weitz Company I, Inc. (Weitz), to supply windows and doors for the construction of condominiums for the Ajax Lofts Condominium Association, Inc. (Ajax). Sierra Pacific, in turn, hired Bradbury to install the windows and doors; Bradbury began and completed its work in 2002.

         ¶ 3 On June 11, 2004, the City and County of Denver issued a certificate of occupancy for all units. Subsequently, however, the condominiums' residents began complaining to Ajax about water infiltration. At Ajax's direction, Weitz and Sierra Pacific attended to the reported leaks and water damage between 2004 and 2011, including two substantial retrofit repairs in January 2005 and March 2011; Bradbury participated in some repair efforts in 2004, but none thereafter.

         ¶ 4 In November 2011, Ajax filed suit against Weitz for the alleged defective construction. Weitz, in turn, filed suit against Sierra Pacific for damages, costs, and expenses related to Ajax's claims. Following the district court's consolidation of the two cases (hereinafter, the underlying case), Ajax, Weitz, and Sierra Pacific reached a settlement on July 31, 2014.

         ¶ 5 On October 20, 2014, Sierra Pacific filed the present indemnification action against Bradbury to recover losses incurred in the settlement and damages for related contractual breaches. Bradbury filed a motion for summary judgment under C.R.C.P. 56(b), asserting that Sierra Pacific's claims, brought nearly ten years after Bradbury ceased repair efforts on the project, were time barred by the six-year statute of repose in Colorado's Construction Defect Action Reform Act (CDARA), § 13-80-104, C.R.S. 2015.

         ¶ 6 Sierra Pacific responded that its claims were not barred by the statute of repose because (1) under section 13-80-104(1)(b)(II), its claims against Bradbury did not "arise" until after the underlying case was settled in 2014, after which Sierra Pacific had ninety days to file its complaint (which it did); and (2) even if the statute of repose was not tolled by the settlement, the period of repose did not commence until 2011, when the improvements to the property in connection with Bradbury's defective work were substantially completed.

         ¶ 7 Bradbury replied that (1) there is no settlement exception to the statute of repose; and (2) the statute of repose commenced, at the latest, upon its completion of work in 2004.

         ¶ 8 The district court concluded that

• both the 2005 and 2011 repairs constituted "improvements] to the real property, " § 13-80-104(1); . "[s]ince Bradbury conducted repairs in 2004, [it] may have contributed to the 2005 retrofit, " but the 2011 retrofit constituted a "separate effort";
• "[therefore, the effective date of substantial completion in regard[] to Bradbury's work is January 2005"; . to toll the statute of repose that commenced in January 2005, Sierra Pacific would have had to notify Bradbury of its claims within the requisite six-year period;
• "[i]t is undisputed that Bradbury did not have notice of [Sierra Pacific's] claims within the requisite time period"; and
• consequently, Sierra Pacific's claims against Bradbury are barred by the six-year statute of repose.

         ¶ 9 Accordingly, the district court granted Bradbury's motion for summary judgment.

         II. Analysis

         ¶ 10 Sierra Pacific contends that the district court erred in finding that its claims were barred by the six-year statute of repose. We disagree.

         ¶ 11 We review de novo a district court's order granting summary judgment. Mountain States Adjustment v. Cooke,2016 COA 80, ΒΆ 11. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of ...

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