Colorado Law Updates

Boulder Plaza Residential, LLC v. Summit Flooring, LLC (“Boulder Plaza I”)

Colo. Ct. App. Case No. 06CV1269, Decided April 17, 2008

Boulder Plaza I involved construction defect claims by a homeowners’ association against a general contractor and flooring subcontractor. The general contractor oversaw construction of a condominium complex in Boulder, Colorado. Summit Flooring installed hardwood floors in the individual units. Prior to trial, the homeowners’ association settled its claims against the general contractor for $800,000 cash, and an assignment of the general contractor’s claims against Summit Flooring. Those claims included a claim for contractual indemnity based on the subcontract between the general contractor and Summit Flooring. The jury returned a verdict in Summit’s favor.

The subcontract contained multiple paragraphs addressing indemnification – each written with varying degrees of specificity. The first paragraph required Summit to indemnify against claims “for damage to persons and property growing out of the execution of the work.” Paragraph 13 contained a more specific provision, requiring indemnification against claims arising out of Summit’s negligence. The court concluded that Paragraph 13 was the more specific paragraph, and therefore controlling of the parties’ mutual obligations. Relying on principles of contract interpretation, the court bound the parties to the more specific language. Because there was no claim of negligence asserted against Summit, there could be no basis for imposing any obligation to indemnify.

The application of Boulder Plaza I is likely limited in scope, due to the ambiguity in what appears to have been a poorly drafted subcontract. The case reaffirms the general principles favoring specific language in subcontracts, and the requirement that, in the event of conflicting language, the parties be bound by the more precise provisions.

Boulder Plaza Residential, LLC v. Summit Flooring, LLC (“Boulder Plaza II”)

Colo. Ct. App. Case No. 06CA2558, Decided April 17, 2008

The same court also decided a companion case of Boulder Plaza I dealing with the applicability of the antisubrogation rule to assigned claims.

In Boulder Plaza II, a homeowners’ association settled claims against a general contractor who built the same condominium complex involved in Boulder Plaza I. The general contractor was included as an additional insured under the policy of its flooring subcontractor, Summit Flooring. As part of its settlement with the HOA, the general contractor assigned claims it had against a subcontractor, Summit Flooring, who performed the work at issue.

In its contract with the general contractor, Summit Flooring had an attorneys' fee provision which awarded reasonable fees and costs to the prevailing party at litigation. Following the general contractor's assignment of claims to the HOA, the HOA proceeded to trial against Summit Flooring. The jury returned a verdit in Summit Flooring's favor

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January 24, 2005: The Colorado Supreme Court restricts the scope of medical releases:The Colorado Supreme Court announced today the case of Jerry Weil v. The Dillon Companies, No. 04SA356.The defendant, The Dillon Companies (d/b/a City Market) was defending a slip and fall case and asked the plaintiff to produce medical releases for treatment prior to the plaintiff’s fall. The plaintiff claimed personal injuries, including emotional injuries for pain and suffering. The defendant sought, amount other things, to determine whether the plaintiff had any injuries that pre-existed the plaintiff’s fall.The court found:“The Dillon Companies claims that Weil waived the physician-patient privilege when he filed the lawsuit seeking damages for emotional injuries and for the loss of enjoyment of life. Thus, Dillon Companies contends that it is entitled to all of Weil’s medical records from those providers who delivered care to Weil, including treatments occurring before the incident. It asserts that access to these records would “assure full discovery” as to the cause of the claimed injuries as well as determine the extent that an injury from the slip and fall incident is related to some preexisting condition.”The Supreme Court held that:“… bare allegations of mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life” asserted in his complaint do not rise to the level of injecting his prior mental and physical conditions into the case such that he completely waives the physician-patient privilege. Hence, we hold that while Weil impliedly made a limited release of his medical records by filing the lawsuit, his generic claims for pain and suffering and loss of quality of life do not amount to a complete release of his prior medical records. Therefore, the trial court erred when it read Johnson to require Weil to make a complete disclosure of his medical records so that Dillon Companies would know his quality of life prior to the injury…”The court further commented: “… we do not see any reason why Dillon Companies is entitled to discovery of all of Weil’s medical history in order to understand the impact the injury had on the level of his pain and suffering or on the quality of his life after the fall.”The decision will make it more difficult now for the defense to prove or put on evidence of a plaintiff’s pre-existing condition. While the defense can still ask in discovery questions concerning prior injuries, the ability now to ascertain the true extent of such injuries through past medical records will be difficult if not now impossible. Plaintiffs can effectively minimize a pre-existing condition, or hide one altogether. Without the ability to obtain the prior records, there is little the defense will be able to do unless the records are available through another source, like a prior lawsuit.

To read the full text of this opinion, go to:

No. 04SA356. Weil, M.D. v Dillon Companies, Inc. - January 24, 2005 - Colorado Supreme Court Opinions

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January 20, 2005: The Colorado Court of Appeals upholds the summary dismissal of the complaint of a personal injury plaintiff:

The Colorado Court of Appeals upheld the summary judgment granted to the defendants in a case handled by the attorneys at Lasater & Martin. The case was briefed by Deana Douglas of the firm. In the case of Dang v England, Court of Appeals No. 03CA2195, Wheatridge attorney David Greene filed a personal suit on behalf of his clients and filed the complaint against an individual who had died after the accident, but before suit was filed. Greene improperly attempted to substitute the estate as a party defendant, and then tried to relate back the amended complaint, after the statute of limitations had expired. The Court of Appeals upheld the dismissal of the suit which resulted after the firm filed its motion for summary judgment.

For more information on these or other cases, please contact any of the attorneys at Lasater & Martin, P.C.

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