Take a moment. Close your eyes. Feel the sun on your face…
Actually, this is not a Friday morning mediation. But a title and tagline discussing “contracts law” would hardly promote readership.
The Colorado Supreme Court recently passed on the opportunity to consider whether sophisticated business entities could contractually modify the statute of limitations and agree upon an accrual period when constructing a project for residential use. R.G. Brinkmann Company v. Broomfield Senior Living Owner, LLC and Sunrise Development. 2017SC351 September 5, 2017.
I had been watching this case with interest, not only because I was representing a subcontractor involved, but also because it could have far-reaching implications for all construction professions. Frankly, the idea that sophisticated construction professionals could contractually modify the statute of limitation and agree to an accrual period for claims would have gone further in remedying the problems of the Colorado Construction Defect Action Reform Act and rising insurance cost than any action by the General Assembly last session. The problem lay in the uncertain and amorphous concept of “substantial completion” and when/how defects are “discovered”. Construction professionals face exposure for six or more years under the statute. An attempt to contractually limit and define the period of exposure would be an obvious fix. Although Justice Eid would have granted certiorari to review the questions presented by R.G. Brinkmann we have no other insight into the decision to leave the issues for another day.
Thus, we are left with the Colorado Court of Appeals decision and these takeaways: a commercially run senior assisted living facility is a “residential” project; even though none of the “residents” are homeowners, the project falls under the Homeowner Protection Act; and no matter how sophisticated the commercial entities are, they cannot modify the statute of limitations or agree to an accrual period for construction defect claims.