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Homestake Enterprises Inc. v. Oliver9/23/1991
This is a certiorari proceeding initiated by petitioner Homestake Enterprises, Inc. (Homestake), to review the court of appeals decision in Oliver v. Homestake Enterprises, 800 P.2d 1331 (Colo. App. 1990). In Oliver, the court held that the two-year statute of limitations applicable to actions against contractors and builders, § 13-80-127, 6 C.R.S. (1984 Supp.), did not apply to the negligence action brought by respondent Margaret P. Oliver. We reverse.
I
In September 1984, Homestake entered into a construction subcontract with a general contractor not involved in this litigation to install a sprinkler system, landscape, and lay sod on property owned by Penrose Hospital of Colorado Springs. On November 15, 1984, prior to the completion of the subcontract work, Oliver suffered injuries when she slipped and fell on an icy sidewalk located on the property.
In February 1988, Oliver filed a negligence action against Homestake. Her complaint initially alleged that Homestake was liable to her because the injuries resulted from the negligent testing by Homestake employees of the sprinkler system in freezing temperatures, which caused ice to form on the sidewalk. Oliver's amended complaint withdrew her allegation of negligent testing and instead alleged that Homestake "negligently operated or caused the sprinkling system to be operated during freezing temperatures, which caused ice to form on the . . . sidewalk where it knew, or should have known, that pedestrians such as the Plaintiff would be walking."
The trial court granted Homestake's motion for summary judgment on the ground that Oliver failed to file her action within the two-year limitations period for actions against contractors such as Homestake, see § 13-80-127, 6 C.R.S. (1984 Supp.). Relying on Irwin v. Elam Construction, 793 P.2d 609 (Colo. App.), cert. denied, No. 90SC171 (Colo. July 9, 1990), the court of appeals reversed the trial court's ruling, reasoning that section 13-80-127 "applied only to negligence in planning, design, construction, supervision, or inspection that results in a defect in an improvement to real property that, in turn, causes injury to a claimant," and Oliver had alleged only that Homestake employees were negligent and not that any of Homestake's improvements to real property were "defective." Oliver v. Homestake Enters., 800 P.2d 1331, 1331-32 (Colo. App. 1990). Accordingly, it concluded that the six-year statute of limitations applied rather than the two years mandated by section 13-80-127. We granted certiorari to determine the scope of section 13-80-127.
II
The issue here is whether section 13-80-127, 6 C.R.S. (1984 Supp.), applies when a plaintiff alleges that a contractor negligently operated a sprinkler system but does not allege that the contractor caused a "defect" in an improvement to real property. Section 13-80-127 provides in part:
(1) (a) 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 two years after the claim for relief arises, and not thereafter . . . .
(b) A claim for relief arises under this section at the time the damaged party discovers or in the exercise of reasonable diligence should have discovered the defect in the improvement which ultimately causes the injury , when such defect is of a substantial or significant nature.
(c) Such actions shall include any and all actions in tort, contract, indemnity, or cont
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