Another verdict in a recent multifamily construction defect lawsuit.

The December 14th volume of the Jury Verdict Reporter of Colorado contained a write up regarding the Whispering Pines Townhomes Association v. Whispering Pines Company, Inc. suit, tried before Judge Lyman in Archuleta County District Court July 29 through August 17, 2009.  According to the association’s website, Whispering Pines is a community of 59 townhomes located in 17 buildings in Pagosa Springs.

The HOA alleged $8.9 million in cost of repair damages.  This included repairs alleged to be necessary to the masonry, roofs, and various other building components.  The final demand before trial, according to defendants’ counsel, was $4 million.  The final offer before trial, according to the defendants’ attorney, was $1.5 million.

Experts for the plaintiff included Scott Dinslage, Carl Mangone, Jon Wagener, Robert Kitchell, and Ed Glassgow.  Experts for the defendants included Frank Harrison, Dan Wilkins, Bruce Buttner, and Art Klein.  

At the end of the trial, the jury returned verdict in favor of the HOA on all claims, including negligence, negligence per se, breach of the implied warranty of habitability, and violation of Colorado soils disclosure statute.  The breakdown of the damages awarded to the HOA was as follows:

  • $300,000 for roofs;
  • $195,000 for grading and drainage;
  • $600,000 for wall systems;
  • $1,185,000 for life-safety issues;
  • $48,000 for structural repairs;
  • $225,000 for decks;
  • $589,000 for concrete;
  • $30,000 for framing;
  • $10,000 for cosmetic repairs;
  • $254,560 for architectural engineering fees;
  • $318,200 for contingency fees;
  • $477,300 for general conditions;
  • $50,000 for construction management; and
  • $102,760 for previous repairs performed by the HOA.

Of the $4,077,882 awarded to the HOA, 93% was attributed to the negligence of Whispering Pine Company, Inc. and 7% was attributed to the HOA’s failure to mitigate its damages. 

You can read, from the HOA’s perspective, about the outfall of the case in the HOA’s September 2009 and October 2009 newsletters here.  Interestingly enough, at least as of the end of the third quarter of 2009, the money awarded by the jury had not hit the HOA’s operating account.  It will be interesting to check back periodically to see if and when the HOA recovers any money and, more interestingly, in what amount.  You can review the HOA’s financials here.  To read the Pagosa Sun’s coverage of the verdict, view the story here.

To learn more about construction defect litigation in Colorado, please contact me for a copy of our Overview of Construction Defect Litigation in Colorado. I can be reached at (303) 987-9813 or


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