13-80-104. Limitation of actions against architects, contractors, builders or builder vendors, engineers, inspectors, and others.
Statute text
(1) (a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section.
(b) (I) Except as otherwise provided in subparagraph (II) of this paragraph (b), a claim for relief arises under this section at the time the claimant or the claimant's predecessor in interest discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury.
(II) Notwithstanding the provisions of paragraph (a) of this subsection (1), all claims, including, but not limited to indemnity or contribution, by a claimant against a person who is or may be liable to the claimant for all or part of the claimant's liability to a third person:
(A) Arise at the time the third person's claim against the claimant is settled or at the time final judgment is entered on the third person's claim against the claimant, whichever comes first; and
(B) Shall be brought within ninety days after the claims arise, and not thereafter.
(c) Such actions shall include any and all actions in tort, contract, indemnity, or contribution, or other actions for the recovery of damages for:
(I) Any deficiency in the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property; or
(II) Injury to real or personal property caused by any such deficiency; or
(III) Injury to or wrongful death of a person caused by any such deficiency.
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion of the improvement to real property, said action shall be brought within two years after the date upon which said cause of action arises.
(3) The limitations provided by this section shall not be asserted as a defense by any person in actual possession or control, as owner or tenant or in any other capacity, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or damage for which it is proposed to bring an action.
History
Source: L. 86: Entire article R&RE, p. 697, 1, effective July 1. L. 2001: (1)(b) amended, p. 390, 2, effective August 8.
Annotations
Editor's note: This section is similar to former 13-80-127 as it existed prior to 1986.
Annotations
ANNOTATION
Annotations
Law reviews. For article, "The Two-Year Construction Statute of Limitations", see 15 Colo. Law. 402 (1986). For article, "Let the Builder-Vender Beware: Defenses and Damages in Home Builder Litigation -- Part II", see 16 Colo. Law. 629 (1987). For article, "Defining 'Substantial Completion' in Construction Defect Actions", see 27 Colo. Law. 73 (Oct. 1998). For article, "Statutes of Limitations and Repose in Construction Defect Cases Part I", see 33 Colo. Law. 73 (May 2004). For article, "Statutes of Limitations and Repose in Construction Defect Cases Part II", see 33 Colo. Law. 67 (June 2004). For note, "Restore Colorado's Repair Doctrine for Construction-Defect Claims", see 83 U. Colo. L. Rev. 875 (2012). For article, "Mitigating Potential Condo Conversion and Renovation Construction Defect Liabilities: Part 1", see 48 Colo. Law. 28 (Apr. 2019). For article, "Construction Defect Statutes of Limitation and Repose Update, Part I", see 49 Colo. Law. 26 (Dec. 2020). For article, "Construction Defect Statutes of Limitation and Repose Update, Part 2", see 50 Colo. Law. 30 (Jan. 2021).
Annotator's note. Since 13-80-104 is similar to former 13-80-127 as it existed prior to the 1986 repeal and reenactment of this article, relevant cases construing that provision have been included with the annotations to this section.
Former 13-80-127 deemed unconstitutional. Former section was unconstitutional because it granted immunity from suit to certain classes of defendants without any reasonable basis for the classification. McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980).
Statutory distinctions neither discriminatory nor arbitrary. In view of the differences between construction professionals and materialmen, the legislative judgment to grant one group immunity from suit after a reasonable period of time while denying it to the other is neither invidiously discriminatory nor wholly arbitrary. Cudahy Co. v. Ragnar Benson, Inc., 514 F. Supp. 1212 (D. Colo. 1981).
Former 13-80-127 constitutional. Requiring claims against builder-vendors to be filed within two years after the claim for relief arises did not violate federal or state constitutional equal protection guarantees. Criswell v. M.J. Brock & Sons, Inc., 681 P.2d 495 (Colo. 1984).
Not retroactive. Former 13-80-127 was not enacted until 1969, and there is nothing in it which indicates that it was to be given retroactive application. Greene v. Green Acres Constr. Co., 36 Colo. App. 439, 543 P.2d 108 (1975).
Period for suit against architect reasonable. It is not unreasonable for the general assembly to limit to 10 years (now 6 years) the period in which suits may be commenced against architects for design defects, in view of the legislative intent to avoid stale claims and the likelihood that most types of defects would reasonably be discovered within 10 years (now 6 years) of substantial completion. Since this section is rationally related to a permissible state objective, it does not violate due process. Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982).
Applicability of section. The plain language of this section reflects a legislative intent to apply a shorter limitations period only to claims for personal injury or damage to property other than the defective improvement itself; in cases where the claim relates to the defective improvement itself, the general statutes of limitations appropriate to contract, negligence, warranty, etc., are applicable. Tamblyn v. Mickey & Fox, Inc., 195 Colo. 354, 578 P.2d 641 (1978); Duncan v. Schuster-Graham Homes, Inc., 194 Colo. 441, 578 P.2d 637 (1978).
Statute of limitations specifically drafted to relate to special cases controls over a general statute of limitations and, therefore, this section and not the general statute of limitations controls the time limits for filing. Stanske v. Wazee Elec. Co., 690 P.2d 1291 (Colo. App. 1984), aff'd, 722 P.2d 402 (Colo. 1986); Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985).
For purposes of deciding applicability of former 13-80-127, the principal factor to be considered in determining whether something constitutes an improvement to real property is intention of owner. Enright v. City of Colo. Springs, 716 P.2d 148 (Colo. App. 1985).
In the absence of a formal complaint, arbitration proceeding, or settlement of a dispute where a homeowner has bargained for repair work in exchange for a release of a homebuilder's liability, a homebuilder's repair of damages to a home is not resolution of a "claim" for purposes of triggering the 90-day statute of limitations set forth in subsection (1)(b)(II), and that statute of limitations therefore does not apply to such a homebuilder's related claims against subcontractors. Richmond Am. Homes of Colo., Inc. v. Steel Floors, LLC, 187 P.3d 1199 (Colo. App. 2008).
Interaction with notice-of-claim requirements in the Construction Defect Action Reform Act (CDARA). CDARA contemplates the situation in which a plaintiff may file a claim in court before sending a notice of claim to a prospective defendant; in that situation the action is stayed pending compliance with 13-20-803.5. The case commences when the complaint is filed, and at that point the limitation period stops running. Curry v. Zag Built LLC, 2018 COA 66, 433 P.3d 125.
Failure to comply with the notice-of-claim process in 13-20-803.5 is not the equivalent of failure to pay the required docket fee, which is a prerequisite to filing of the complaint. Curry v. Zag Built LLC, 2018 COA 66, 433 P.3d 125.
This section does not deprive a court of jurisdiction to hear a time-barred claim, and reliance on the limitation period must be pleaded and proven as an affirmative defense. Dunton v. Whitewater W. Recreation, Ltd., 942 P.2d 1348 (Colo. App. 1997).
Since structure causing injuries to plaintiff was not a product but an improvement to real property, neither city nor contractor could be held liable on a theory of strict liability. Enright v. City of Colo. Springs, 716 P.2d 148 (Colo. App. 1985).
Former statute of repose barred claim. Installation of electrical system to grain elevator is integral part of improvement to real property and is kind of activity intended to be protected under former statute of repose. Stanske v. Wazee Elec. Co., 722 P.2d 402 (Colo. 1986).
Architect may be covered by section even though unlicensed when services first rendered. An architect still comes within the protections of this section even though he is not licensed to practice architecture in Colorado at the time design services are first rendered, but becomes licensed in Colorado before the substantial completion of the structure. Yarbro v. Hilton Hotels Corp., 655 P.2d 822 (Colo. 1982).
This section only applies to claims against building professionals based on injuries caused by defects in building construction improvements. D.R. Horton, Inc. v. Travelers Indem. Co., 860 F. Supp. 2d 1246 (D. Colo. 2012).
Section extends to those involved in the actual process of construction, and a designation alone does not determine whether a defendant is protected. A court must examine the defendant's activities using an "activities analysis", which includes an examination of the label placed on a party involved in the building process and whether that party's actions fall within the statute's protected class of activities. Two Denver Highlands v. Stanley Structures, 12 P.3d 819 (Colo. App. 2000).
Claims not limited to deficiencies in structure. This section does not limit claims for deficiencies in the structure itself, as opposed to consequential property damage; thus, a factory owner could sue the designer of a refrigeration unit four years after an accident for the cost of repair of the deficiencies in the system itself. Cudahy Co. v. Ragnar Benson, Inc., 514 F. Supp. 1212 (D. Colo. 1981).
Claim relating to defective improvements not barred by two-year statute of limitations where claim was filed within proper time period under former statute of limitations and where claim was filed within time allowed in applicability clause for amendments to two-year statute of limitations. Johnson v. Graham, 679 P.2d 1090 (Colo. App. 1983).
Action on breach of warranty claim for defects in workmanship is controlled by two-year statute of limitations since defect was discovered more than two years prior to commencement of action, even though warranty was valid for ten years. Mohawk Green Apartments v. Kramer, 709 P.2d 955 (Colo. App. 1985).
Grading of lot is essential and integral to the construction and completion of a house and is part of the improvements to the real property. Therefore, the builder's alleged improper grading of the lot is a "deficiency in an improvement to real property", and buyer's claims are within the scope of this section. Embree v. Am. Cont'l Corp., 684 P.2d 951 (Colo. App. 1984).
Since phrase "improvement to real property" is not defined, assumption is that general assembly intended to give it its usual and ordinary meaning and, therefore, indicator light installed as part of overall electrical system is an improvement to property within this section. Stanske v. Wazee Elec. Co., 690 P.2d 1291 (Colo. App. 1984), aff'd, 722 P.2d 402 (Colo. 1986); Anderson v. M.W. Kellogg Co., 766 P.2d 637 (Colo. 1988); Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
The determination whether the construction was an improvement to real property is a matter of law. Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
The principal factor in determining whether an activity constitutes an improvement to real property is the intention of the owner. Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
Concrete used to build garage is an improvement to real property. The owner intended to improve the real property by building a parking garage. The concrete was an essential and predominant part of the garage. Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
Section inapplicable to damage claims to defective improvements. The two-year statute of limitations for actions concerning the construction of improvements to real property does not apply to claims for damage to improvements which are themselves defective. Olson Plumbing & Heating, Inc. v. Douglas Jardine, Inc., 626 P.2d 750 (Colo. App. 1981).
Section 13-21-204 applies to all wrongful death actions absent exception. The language of 13-21-204 is plainly all-inclusive, and must be construed to apply to all wrongful death actions in the absence of an express exception in this section. McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980).
Relation back doctrine of rule 15(c), Fed. R. App. P. does not apply in wrongful death action unless the added party was given notice within the period provided by this section. McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980).
Strict construction. This section is in derogation of prior common law; therefore the terms must be considered to be exclusive and must be construed strictly. Ciancio v. Serafini, 40 Colo. App. 168, 574 P.2d 876 (1977).
Subsection (1)(a) must be strictly construed because it is in derogation of the common law. Prior to the enactment of statutes of limitations relating to construction, builders and contractors were subject to potentially indefinite liability. Gleason v. Becker-Johnson Assocs., Inc., 916 P.2d 662 (Colo. App. 1996).
This section therefore applies only to the actual process of construction and not to an unrelated activity such as a "pre-buy" inspection. Gleason v. Becker-Johnson Assocs., Inc., 916 P.2d 662 (Colo. App. 1996).
A survey which is not part of an improvement or building project does not constitute an "improvement to real property" and actions accruing because of negligence in performing such surveys are not within the purview of this section. Ciancio v. Serafini, 40 Colo. App. 168, 574 P.2d 876 (1977).
Plaintiffs' lack of knowledge of the identity of the engineering defendants at the time they were first aware that there was damage to the house does not toll the statute. Tamblyn v. Mickey & Fox, Inc., 39 Colo. App. 319, 568 P.2d 491 (1977), rev'd on other grounds, 195 Colo. 354, 578 P.2d 641 (1978).
Action by subsequent home owner. A subsequent home owner may maintain an action against a builder for negligence resulting in latent defects which the subsequent purchaser was unable to discover prior to purchase, if the action is filed within the statute of limitations set out in this section. Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983).
For implied warranty of fitness and habitability for purchasers of new homes, see Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo. 1983).
Time for discovery of defect is applied in Criswell v. M.J. Brock & Sons, Inc., 681 P.2d 495 (Colo. 1984); Hipco v. Varco-Pruden, 687 P.2d 540 (Colo. App. 1984).
The issue of whether plaintiff, in the exercise of reasonable diligence, should have discovered a defect is generally a question of fact, and summary judgment therefore is inappropriate. Wildridge Venture v. Ranco Roofing, Inc., 971 P.2d 282 (Colo. App. 1998).
"Substantial completion" is construed to require no greater state of "completion" of an improvement, at the most, than is required by 38-22-109 (4). May Dept. Stores v. Univ. Hills, 789 P.2d 434 (Colo. App. 1989).
A claim for relief does not arise until the damaged party possesses reasonable notice or knowledge of not only the existence but also the substantial nature of a defective improvement, both of which factors are issues of material fact which preclude summary judgment. Weiss v. Am. Cont'l Corp., 765 P.2d 595 (Colo. App. 1988) (decided under former 13-80-127 prior to the deletion of the reference to the substantial or significant nature of a defect).
Accrual of a claim for relief under this section differs from accrual under 13-80-108 (1). Accrual under this section depends upon discovery of the manifestation of the defect and not its cause. Broomfield Senior Living v. R.G. Brinkmann, 2017 COA 31, 413 P.3d 219.
Breach of warranty claim distinguished. Subsection (1)(b) was not intended to limit claims for breach of warranties to repair and replace. Instead, breach of warranty claims accrue when the breach is or should have been discovered. Broomfield Senior Living v. R.G. Brinkmann, 2017 COA 31, 413 P.3d 219.
Claim for relief arises at time claimant discovers, or should have discovered the physical manifestations of a defect in the improvement that ultimately causes the injury. Two Denver Highlands v. Stanley Structures, 12 P.3d 819 (Colo. App. 2000).
Under this section, claim for relief arises, not on the date of injury, but when the physical manifestation of the defect "which ultimately causes the injury" is discovered. Smith v. Exec. Custom Homes, Inc., 209 P.3d 1175 (Colo. App. 2009), aff'd, 230 P.3d 1186 (Colo. 2010).
This section's notice of claim and tolling provisions preclude equitable tolling under the "repair doctrine". Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186 (Colo. 2010).
Real estate developer not included under classes of persons listed in section. Calvaresi v. Nat'l Dev. Co., 772 P.2d 640 (Colo. App. 1988).
This section begins to run at the same time for all claims of injury caused by defects in design and construction of improvements to real property, including claims based upon theories of indemnity and contribution. The general assembly intended to abolish the distinction, established by the Supreme Court in Duncan v. Shuster-Graham Homes, Inc. (578 P.2d 637 (Colo. 1978)) between the time of accrual for underlying claims involving construction defects, and claims for indemnification arising therefrom. Nelson, Haley, et al. v. Garney Cos., 781 P.2d 153 (Colo. App. 1989).
Subsection (1)(b)(II) is a statute of limitations tolling provision, not a ripeness provision, that does not bar cross-claims and third-party claims for indemnity or contribution in construction defect lawsuits. Thus, a defendant in a construction defect lawsuit may utilize C.R.C.P. 13 and 14 to bring an indemnity or contribution claim against a party or add a party allegedly responsible for the defect no later than 90 days after termination of the construction defect lawsuit. CLPF-Parkridge v. Harwell Invs., 105 P.3d 658 (Colo. 2005).
The 90-day limitation in subsection (1)(b)(II) applies to a construction professional who is a defendant in the underlying lawsuit and sets forth the time period following a settlement or judgment in which the construction professional may file a separate lawsuit seeking indemnification or contribution. Fire Ins. Exch. v. Monty's Heating & Air Conditioning, 179 P.3d 43 (Colo. App. 2007).
Because the phrase "all claims" in subsection (1)(b)(II) does not include a subrogation claim against a construction professional, the 90-day limitation does not apply. Rather, the two-year statute of limitations governs such claims. Fire Ins. Exch. v. Monty's Heating & Air Conditioning, 179 P.3d 43 (Colo. App. 2007).
This section does not alter application of the doctrine of claim preclusion where a contractor asserts an indemnification claim against a subcontractor in a construction defect case. Layton Constr. Co. v. Shaw Contract Flooring, 2016 COA 155, 409 P.3d 602.
The 90-day provision in subsection (1)(b)(II) does not require a contractor to wait until after it has been found liable to sue subcontractors for indemnification. Layton Constr. Co. v. Shaw Contract Flooring, 2016 COA 155, 409 P.3d 602.
The 90-day period set forth in subsection (1)(b)(II)(B) does not toll the six-year statute of repose. Although developer brought action against defendants seeking contribution and indemnity within 90 days after settlement of suit against developer, developer's suit was time-barred by the six-year statute of repose set forth in subsection (2). Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008); Sierra Pac. Indus., Inc. v. Bradbury, 2016 COA 132, 409 P.3d 551.
Neither this statute of repose nor the statute of limitations in 13-80-102 can bar third-party claims if the claims were brought within the time frame outlined in subsection (1)(b)(II) of this section. Goodman v. Heritage Builders, Inc., 2017 CO 13M, 390 P.3d 398.
The 90-day period set forth in subsection (1)(b)(II)(B) affects only when a claim "arises", and must be brought, for purposes of the two-year statute of limitations and does not relate to the six-year statute of repose. Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008).
A statute of limitations takes effect when a claim arises, while a statute of repose bars the bringing of a suit after a set period of time, regardless whether an injury has occurred or a claim has arisen. Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008).
The reference in subsection (1)(b)(II) to subsection (1)(a) pertains only to the two-year statute of limitations set forth in 13-80-102, not to the six-year statute of repose. Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166 (Colo. App. 2008).
This section does not apply to claims based on injuries to real property allegedly caused by negligent acts that occurred during construction activities, but which did not result in a defect in the improvement itself. This section, read and considered as a whole, was intended to apply only to negligence in planning, design, construction, supervision, or inspection that results in a defect in an improvement created by a building professional and not to all injuries stemming from such professional's negligent conduct. Irwin v. Elam Const., Inc., 793 P.2d 609 (Colo. App. 1990); Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
This section did not apply to movers since it does not specifically refer to movers, and the movers' efforts in moving a monument does not constitute an improvement to real property. Flatiron Paving v. Great Sw. Fire, 812 P.2d 668 (Colo. App. 1990).
It may be arguable that discovery of the damage resulting from a construction defect caused a claim for relief to arise under this section prior to its 1979 amendment, while knowledge of the nature of the defect itself was required after the amendment. Nevertheless, absent actual knowledge, it was, in either case, the "reasonable person" standard that was to be applied in determining the existence of the requisite constructive knowledge. Villa Sierra Condo. v. Field Corp., 787 P.2d 661 (Colo. App. 1990).
This section limits actions against a contractor arising from defects in an improvement due to negligence in planning, design, construction, supervision, or inspection. Irwin v. Elam Const., Inc., 793 P.2d 609 (Colo. App. 1990).
This section does not apply to all injuries caused by a contractor's negligent conduct. Irwin v. Elam Const., Inc., 793 P.2d 609 (Colo. App. 1990); Oliver v. Homestake Enters., Inc., 800 P.2d 1331 (Colo. App. 1990), rev'd on other grounds, 817 P.2d 979 (Colo. 1991).
Subcontractors are included within the statute. Defendant is a subcontractor whose activities in preparing and installing concrete related to the process of building a structure. The activities of the defendant fall within those protected by the statute. Two Denver Highlands v. Dillingham, 932 P.2d 827 (Colo. App. 1996).
Application of former 13-80-127 is fact-specific, requiring an examination of the nature of the claim to determine whether it alleges misconduct arising out of an activity the statute was designed to protect. Stanske v. Wazee Elec. Co., 722 P.2d 402 (Colo. 1986); Homestake Enters., Inc. v. Oliver, 817 P.2d 979 (Colo. 1991).
Claim for breach of contract against construction contractor is not governed by two-year statute of limitations for actions against contractors and builders in this section but by six-year statute of limitations for contract actions (now 13-80-103.5), but claim against contractor for damages caused by delays in construction is covered by two-year statute. Frisco Motel P'ship v. H.S.M. Corp., 791 P.2d 1195 (Colo. App. 1989).
Relying on the plain language of this section, salon's fire was a "physical manifestation of a defect". The damage caused by salon's fire, the "injury" in this case, served as the initial discovery of the defect. It was not necessary to know that the defect caused the fire for the fire to be the defect's physical manifestation. United Fire Group v. Powers Elec., Inc., 240 P.3d 569 (Colo. App. 2010).
The existence of a subrogation claim does not alter this section's statute of limitations for construction defects. United Fire Group v. Powers Elec., Inc., 240 P.3d 569 (Colo. App. 2010).
Any claim that salon had against electrician arose on the day of the fire because the salon discovered the fire on that day. Therefore, under subsection (1)(b)(I), the insurer's claim arose on the same day that the salon's claim arose. United Fire Group v. Powers Elec., Inc., 240 P.3d 569 (Colo. App. 2010).
Claim for negligence in installing and operating sprinkler system alleged a "defect" or "deficiency" within the meaning of former 13-80-127, where system was turned on during freezing weather while construction was still in progress and plaintiff, walking on adjoining sidewalk, was injured by fall on ice which formed as a result. Therefore, two-year limitation period applied to bar plaintiff's claim against contractor. Homestake Enters., Inc. v. Oliver, 817 P.2d 979 (Colo. 1991).
Under this section, the limitations period on an indemnification claim begins to run at the same time as that for the underlying claim. This statute modifies common law rule that actions for indemnification accrue when the indemnitor actually pays the liability not when the underlying claim accrues. Nelson, Haley, Patterson & Quirk, Inc. v. Garney Cos., Inc., 781 P.2d 153 (Colo. App. 1989); Md. Cas. Co. v. Formwork Servs., Inc., 812 F. Supp. 1127 (D. Colo. 1993).
A presumption arises that 13-80-127 is the controlling limitations statute if it was in effect when the action commenced, unless 13-80-104 has express language otherwise. Wood Brothers Homes, Inc. v. Howard, 862 P.2d 925 (Colo. 1993) (decided under former 13-80-127).
Applied in City of Aurora v. Bechtel Corp., 599 F.2d 382 (10th Cir. 1979); Williams v. Genesee Dev. Co. No. 2, 759 P.2d 823 (Colo. App. 1988).