Sharp Bros. Contracting Co. v. Westvaco Corp.3/14/1991
Plaintiffs, Sharp Bros. Contracting Co. and Sanders Company, Inc., a joint venture, appeal from a judgment of the trial court dismissing all but one claim against defendant Westvaco Corporation, and all claims against defendants American Steel and Iron Works, Inc., and American Painting and Sandblasting, Inc. We affirm in part, reverse in part, and remand for further proceedings.
In late 1980, plaintiffs' joint venture entered an agreement, as the general contractor, with the Denver Board of Water Commissioners, to construct a potable water re-use demonstration plant. In February 1981, plaintiffs entered into a subcontract with Westvaco Corporation to furnish and install a carbon regeneration system in a portion of the demonstration plant.
Westvaco subsequently subcontracted with American Steel for the construction and installation of two carbon storage tanks. Thereafter, American Steel entered into an agreement with Carboline Company, Inc., to supply a product to be used as a liner to the interior of the carbon storage tanks.
Some time thereafter, the Board of Water Commissioners rejected the application of Carboline's product and required that the liner be removed and reapplied. The removal and reapplication of the linings was subcontracted to American Painting.
On March 21, 1983, an explosion and fire occurred at one of the carbon storage tanks where the tank lining was being removed with a highly flammable substance. The record reflects that this fire caused damage to the tank and surrounding areas of the demonstration plant.
On March 15, 1984, plaintiffs sued Westvaco in the United States District Court for the Western District of Missouri for damages they suffered as a result of the March 1983 fire. The case was transferred to the United States District Court of Colorado. Plaintiffs added claims against American Steel, American Painting, and Carboline in September 1986. However, all claims were subsequently dismissed, without prejudice, on June 10, 1987, because of the lack of subject matter jurisdiction.
On July 20, 1987, plaintiffs refiled their complaint in the United States District Court for the District of Colorado against Westvaco, American Steel, and American Painting, but did not join Carboline as a defendant. The court dismissed that action without prejudice, on August 31, 1987, for lack of jurisdiction.
On September 4, 1987, plaintiffs then filed the action, which is the subject of this appeal, in Denver District Court, alleging breach of certain contracts, misrepresentation, and negligence against Westvaco, and negligence against American Steel, American Painting, and Carboline. The court dismissed the claim against Carboline as barred by the three-year statute of limitations relating to manufacturers and sellers of products, Colo. Sess. Laws 1977, ch. 199, § 13-80-127.5, at 819. The court also dismissed the claims against American Steel and American Painting as being barred by the two-year statute of limitations then in effect, Colo. Sess. Laws 1979, ch. 144, § 13-80-127, at 631 (now codified with amendments at § 13-80-104, C.R.S. (1987 Repl. Vol. 6A)). In connection with that ruling, the court held that such claims did not relate back to the date that other parties asserted claims against these defendants. Furthermore, the court dismissed all claims against Westvaco, except an oral contract claim, as barred by § 13-80-127, and not revived by the remedial revival statute, § 13-80-111, C.R.S. (1987 Repl. Vol. 6A).
Upon motion of the plaintiffs, the court subsequently directed that its order be made a final judgment and stayed the regaining claim pend
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