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CLPF-Parkridge One1/31/2005
RULE MADE ABSOLUTE AND CASE REMANDED WITH DIRECTIONS
EN BANC
In this original proceeding under C.A.R. 21, we hold that section 13-80-104(1)(b)(II), C.R.S. (2004) does not bar cross-claims and third-party claims for indemnity or contribution in construction defect lawsuits; rather, this section also allows indemnity or contribution claims to be brought by a separate lawsuit but no later than ninety days after termination of the construction defect lawsuit. Based on statutory and legislative history analysis, we conclude that section 13-80-104(1)(b)(II) is a statute of limitations tolling provision; not, as the trial court ruled, a ripeness provision that prevents a defendant in a construction defect lawsuit from utilizing C.R.C.P. 13 and 14 to bring an indemnity or contribution claim against or add a party allegedly responsible for the construction defect.
Accordingly, we make our rule to show cause absolute and order the trial court to reinstate the cross-claim it dismissed.
I.
Plaintiff CLPF-Parkridge One, L.P. ("CLPF") is the owner of a commercial office building in Douglas County. CLPF alleges that precast concrete panels covering the exterior of the building cracked and caused damage to the building following purchase of the building from the developer. CLPF sued four defendants: Swinerton Builders ("Swinerton"), the general contractor for the construction of the building; Harwell Investments, Inc. ("Harwell"), the subcontractor who manufactured the precast panels; FDG, Inc. ("FDG"), the engineering firm hired by Harwell to design the precast panels; and Aaon, Inc., a contractor involved with the building's ventilation system.
The Douglas County District Court ("trial court") dismissed CLPF's lawsuits against Swinerton and FDG. It also dismissed CLPF's negligence claim against Harwell but did not dismiss the breach of implied warranty claim against Harwell.
Prior to the trial court's dismissal of FDG from the lawsuit, Harwell had asserted a cross-claim against FDG. In the cross-claim, Harwell denied all of CLPF's allegations, but alleged that, to the extent that CLPF's claims are true, FDG is the party responsible for CLPF's alleged damages.
FDG filed a Motion for Judgment on the Pleadings against Harwell's cross-claim. FDG argued that section 13-80-104(1)(b)(II), C.R.S. (2004) precludes Harwell's claim against it until after Harwell either settles the underlying lawsuit with CLPF or a final judgment is entered against Harwell.
Harwell responded that section 13-80-104(1)(b)(II) is a provision that extends the otherwise applicable statute of limitations, in order to allow indemnity or contribution claims to be brought either in the construction defect lawsuit, or in a separate lawsuit, but no later than 90 days after the construction defect lawsuit is settled or results in judgment.
Viewing this statutory provision as a bar to any indemnity or contribution claim until after conclusion of the construction defect litigation, the trial court granted FDG's Motion for Judgment on the Pleadings and dismissed Harwell's cross-claim without prejudice to filing a separate suit after termination of the construction defect lawsuit. Following the trial court's denial of Harwell's Motion for Reconsideration, Harwell petitioned us to order reinstatement of its cross-claim against FDG.
Under C.A.R. 21, we may exercise original jurisdiction to review an alleged trial court abuse of discretion, when a procedural ruling will have a significant effect on a party's ability to litigate the merits of the controversy and the normal course of appeal is inadequate to address the ruling's
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