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The Curious Case of the Three Year Statute of Limitations for Construction Earth Movers

On March 6, 2018, Judge Edward Moss of Adams County issued a noteworthy, if bizarre, order concluding that construction excavators and earthmovers are uniquely subject to a three year statute of limitations. By way of background, in Colorado, per C.R.S. § 13-80-104, those furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property (“Construction Professionals”) are subject to the two year statute of limitations as set forth in C.R.S. § 13-80-102.

However, it appears that things are not so simple in Adams County. In the case, Paul Heap, et al. v. Asphalt Specialties Co., Inc. et al., Case No. 2017CV30842 (Adams County, Mar. 6, 2018), the Court was presented with the following undisputed timeline: the Defendants began excavation related work and erosion control and flood mitigation on the construction project in March 2015; alleged defects with the Defendants’ work manifested on May 1, 2015, and; Plaintiffs filed their Complaint May 29, 2017. Based on a straightforward reading of the two-year statute limitations, the Plaintiffs’ claims should have been time barred.

However, the Plaintiffs, in their Response to the Summary Judgment Based on the Statute of Limitations, raised the argument that because the Defendants’ work included “the intentional use of excavators, earthmovers, trucks, and other motor vehicles to excavate, remove and relocate dirt,” the Plaintiffs’ claims should be evaluated under the three-year statute of limitations for “[a]ll tort actions for bodily injury or property damage arising out of the use or operation of a motor vehicle” as set forth in C.R.S. § 13-80-101.

As surprising as it may seem, the Court agreed with the Plaintiffs’ argument, remarking as follows: “[c]learly, there is some casual connection between the use of excavators, earthmovers, [and] trucks. . . to excavate, remove and relocate dirt.” Because the Court found that C.R.S. § 13-80-101 and C.R.S. § 13-80-102 were in conflict in the context of the facts before the Court, the Court applied the legal standards for conflicting statutes of limitations. Applying the legal standards for conflicting statutes of limitations, the Court concluded that three-year state of limitations prevailed and thus the Plaintiffs’ claims were timely.

Going forward, careful practitioners should be aware of and consider the nuance in Colorado’s statute of limitations now potentially applicable to earth mover Construction Professionals. For additional information regarding Colorado’s statute of limitations for Construction Professionals or about construction defect litigation in Colorado, generally, you can reach Jean Meyer by telephone at (303) 987-9815 or by e-mail at meyer@hhmrlaw.com.