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CLPF-Parkridge One1/31/2005
ntiff's original claim. Naiman v. Warren A. Fickinger Ass'n, 605 P.2d 63, 64 (Colo. App. 1979). They focus on resolution of actions on their merits in a reasonable, expeditious manner. 4 Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated, 186 (3d ed. 1998).
Did the General Assembly intend section 13-80-104(1)(b)(II) to (1) bar indemnity or contribution claims until after termination of the construction defect lawsuit, or (2) allow them to be brought in the construction defect lawsuit through an appropriate cross-claim or third-party claim and also permit them to be brought in a separate lawsuit within a brief ninety-day window following settlement of or judgment in the construction defect lawsuit?
To answer this question we look first to the statutory language.
1. The Two-Year and Ninety-Day Provisions
Section 13-80-104 is a statute of limitations provision applicable to suits against architects, contractors, builders or builder vendors, engineers, inspectors, and others involved in real property construction or improvements. It incorporates the two year statute of limitations contained in section 13-80-102(1).
Section 13-80-104(1)(a), C.R.S. (2004) states as follows: Notwithstanding any statutory provision to the contrary, 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 the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property, except as provided in subsection (2) of this section. (emphasis added).
Section 13-80-102(1) states generically that the suit shall be "commenced within two years after the cause of action accrues, and not thereafter." Section 13-80-104(1)(b)(I) provides that the claim for relief based on a construction defect "arises under this section at the time the claimant or the claimant's predecessor in interest discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury."
Having provided a two year statute of limitations applicable to bringing a construction defect lawsuit claim from the time it "arises," the statute then addresses indemnity and contribution claims that defendants in construction defect lawsuits might have against another person. Section 13-80-104 (1)(b)(II) provides as follows:
(II) Notwithstanding the provisions of paragraph (a) of this subsection (1), all claims, including, but not limited to indemnity or contribution, by a claimant against a person who is or may be liable to the claimant for all or part of the claimant's liability to a third person:
(A) Arise at the time the third person's claim against the claimant is settled or at the time final judgment is entered on the third person's claim against the claimant, whichever comes first; and
(B) Shall be brought within ninety days after the claims arise, and not thereafter.
(emphasis added). If one reads the "notwithstanding," "claimant," "third person," "arise," "brought within ninety days," and "not thereafter" language in isolation from the surrounding statutory provisions, one might conclude that the General Assembly has provided a separate and extraordinarily narrow statute of limitations for bringing an indemnification or contribution claim after a constr
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