Sierra Pacific Industries, Inc., a California corporation, Plaintiff-Appellant,
Jason Bradbury, d/b/a Bradbury Construction, Inc., a Colorado corporation, Defendant-Appellee.
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
Hustead Law Firm, P.C., Patrick Q. Hustead, Ryan A. Williams,
Denver, Colorado, for Defendant-Appellee
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.
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
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.
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
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
• "[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
• "[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.
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, ¶ 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