Brown Group Retail, Inc. v. State

• Citation: 155 P.3d 481
• Decision Date: 24 August 2006
• Docket Number: No. 04CA1874.,04CA1874.
• Parties: BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Plaintiff-Appellee and Cross-Appellant, v. STATE of Colorado and Colorado Department of Transportation, Defendants-Appellants and Cross-Appellees.
• Court: Court of Appeals of Colorado

155 P.3d 481

BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Plaintiff-Appellee and Cross-Appellant, v. STATE of Colorado and Colorado Department of Transportation, Defendants-Appellants and Cross-Appellees.

No. 04CA1874.

Colorado Court of Appeals, Div. V.

August 24, 2006.

Certiorari Granted April 9, 2007.

Davis Graham & Stubbs, LLP, Robert W. Lawrence, Dean C. Miller, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

John W. Suthers, Attorney General, Kathleen L. Spalding, Assistant Attorney General, Harry Morrow, Assistant Attorney General, Megan Paris Rundlet, Assistant Attorney General, Denver, Colorado, for Defendant-Appellants and Cross-Appellees.

Opinion by Judge WEBB.

In this groundwater contamination case, defendants, the State of Colorado and the Colorado Department of Transportation (collectively CDOT), bring an interlocutory appeal from the trial court's order denying their motion, made under the Governmental Immunity Act (GIA), § 24-10-101, et seq., C.R.S.2005, to dismiss unjust enrichment, contribution, and declaratory judgment claims brought by plaintiff, Brown Group Retail, Inc. (Brown Group). Brown Group cross-appeals from the trial court's order dismissing its claims for trespass and negligence on governmental immunity grounds. We affirm.

Brown Group has owned property in Denver, commonly known as the Redfield site, since 1971. Chlorinated solvents used in manufacturing processes contaminated groundwater below the site, which migrated into an adjacent residential neighborhood. Brown Group has spent approximately $14 million remediating environmental damage to the site and the neighborhood.

CDOT owns property, commonly known as the Region 6 Headquarters, that is contiguous to and upgradient from the Redfield site. From 1965 through the mid-1970s, CDOT disposed of chlorinated solvents in a dry well on its property. CDOT has spent approximately $4 million remediating environmental damage, mostly on the Redfield site.

Brown Group brought this action to recover CDOT's share of remediation costs it incurred, both on the Redfield site and in the neighborhood. Brown Group alleged that contaminants from the Region 6 Headquarters entered the groundwater, migrated downgradient to the Redfield site, mixed with the contamination from the Redfield site, and then migrated further into the neighborhood.

CDOT moved to dismiss Brown Group's complaint under C.R.C.P. 12(b)(1) for lack of subject matter jurisdiction. CDOT asserted that all of Brown Group's claims "lie in tort or could lie in tort," § 24-10-108, C.R.S.2005, and therefore were subject to the GIA, but Brown Group did not give notice within 180 days as the GIA requires. The court dismissed Brown Group's claims for trespass and negligence on this basis, but determined that Brown Group's claims for unjust enrichment, contribution, and a declaratory judgment could proceed because they did not and could not lie in tort.

I. Unjust Enrichment, Contribution, and Declaratory Judgment

CDOT contends Brown Group's claims for unjust enrichment, contribution, and a declaratory judgment either lie in tort or could lie in tort because these claims are based on the same tortious conduct as Brown Group's claims for negligence and trespass, which the trial court dismissed. Therefore, according to CDOT, they are barred by the GIA. We disagree.

In Colorado, statutory governmental immunity bars most claims against a public entity that lie in tort or could lie in tort, regardless of the cause of action or the form of relief chosen by the claimant. Section 24-10-108. Whether governmental immunity bars a claim is a question of subject matter jurisdiction that, if raised before trial, is properly addressed by the trial court as a C.R.C.P. 12(b)(1) motion to dismiss. Tidwell v. City & County of Denver, 83 P.3d 75 (Colo.2003).

The determination of whether a particular claim lies in tort or could lie in tort is made on a case-by-case basis, Berg v. State Bd. of Agric., 919 P.2d 254 (Colo.1996), considering the nature of the injury and the relief sought. City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo.2000). Our review is de novo. City of Colorado Springs v. Conners, supra.

To recover for unjust enrichment, a plaintiff must show that (1) a benefit was conferred on the defendant by the plaintiff; (2) the benefit was appreciated by the defendant; and (3) the benefit was accepted by the defendant under such circumstances that retaining the benefit without paying its value would be inequitable. Cablevision of Breckenridge, Inc. v. Tannhauser Condo. Ass'n, 649 P.2d 1093 (Colo.1982). The scope of this remedy is broad, cutting across both contract and tort law, with its application being guided by the underlying principle of avoiding unfair benefit to one party at the expense of another. Engel v. Engel, 902 P.2d 442 (Colo. App.1995).

A claim for equitable relief that does not or could not lie in tort is not barred by the GIA. See CAMAS Colo., Inc. v. Bd. of County Comm'rs, 36 P.3d 135 (Colo.App.2001)(quantum meruit). Equitable relief has been allowed against a governmental entity when necessary to prevent manifest injustice. See Martinez v. Colo. Dep't of Human Servs., 97 P.3d 152 (Colo.App.2003)(plaintiff stated claim for unjust enrichment against the state to reduce reimbursement owed to the state by the state's pro rata share of his attorney fees); Kohn v. City of Boulder, 919 P.2d 822 (Colo.App.1995)(equitable estoppel claim was based on plaintiff's reliance on representations as to city's actual policy, not on a misrepresentation of city policy, and thus was not based in tort).

A contribution claim is separate and distinct from the underlying tort claim. Coniaris v. Vail Assocs., Inc., 196 Colo. 392, 586 P.2d 224 (1978). Contribution is the right of one who has discharged a common liability to recover from another who is also liable. Martinez v. Cont'l Enters., 730 P.2d 308 (Colo.1986); Humphrey v. O'Connor, 940 P.2d 1015 (Colo.App.1996); see also Restatement (First) of Restitution § 81 (1937) ("Unless otherwise agreed, a person who has discharged more than his proportionate share of a duty owed by himself and another . . . is entitled to contribution from the other . . . ."). Thus, contribution is similar to unjust enrichment for this purpose.

CDOT cites no case, and we have found none, involving a contribution claim under the GIA.

Our analysis is informed by City of Colorado Springs v. Conners, supra, where the supreme court stated that claims under the Colorado Civil Rights Act are noncompensatory, equitable in nature, and designed to make the claimant whole in a particular setting. The court recognized that "the same discriminatory conduct that violates a civil rights statute, for example, could also form the basis of a common-law suit for injuries in tort." City of Colorado Springs v. Conners, supra, 993 P.2d at 1176. Nevertheless, the court concluded that claims under the Civil Rights Act are not for injuries that lie in tort or could lie in tort for purposes of the GIA.

Here, in its claims for unjust enrichment and contribution, Brown Group did not seek compensation for damage to the Redfield site, such as diminution in market value, caused by contamination originating from the Region 6 Headquarters. Rather, Brown Group sought to be made whole because CDOT did not contribute its fair share of the environmental response costs that Brown Group had incurred, and CDOT thereby inequitably benefited from Brown Group's payment of those costs. Thus, these claims do not arise from CDOT's tortious failure to use reasonable care in storing, handling, or disposing of the industrial solvents, but from Brown Group's disproportionate remediation efforts.

Hence, we conclude that the unjust enrichment and contribution claims are equitable because they are more like the claims in City of Colorado Springs v. Conners, supra, than those in Allen Homesite Group v. Colorado Water Quality Control Commission, 19 P.3d 32, 35 (Colo.App.2001)(equitable estoppel "typically involves misstatements of fact or other misrepresentation by a government agency" and thus "is deemed to be a tort claim for purposes of the GIA"), and Robinson v. Colorado State Lottery Division, 155 P.3d 409, 2006 WL 1170983 (Colo.App. No. 04CA1785, May 4, 2006) (restitution and unjust enrichment claims based on precontract negligence or fraudulent misrepresentation deemed to be tort claims under the GIA).

We are not persuaded by CDOT's contention that because the same factual basis underlies all the claims, including those which the trial court dismissed as based in tort, the remaining claims could lie in tort. See Berg v. State Bd. of Agric., supra, 919 P.2d at 259 ("Defendants reason that because the same factual basis underlies all of the claims, they are all necessarily based in tort. We do not agree."); CAMAS Colo., Inc. v. Bd. of County Comm'rs, supra (court separately analyzed each of the claims, all of which arose from similar facts, to determine whether it was barred by the GIA).

To hold otherwise could imperil a party's prerogative of pleading alternative theories. See C.R.C.P. 8(e)(2) ("A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both."); Interbank Invs., L.L.C. v. Vail Valley Consol. Water Dist., 12 P.3d 1224 (Colo. App.2000). This is not a case where the alternative theories are "so inconsistent that the assertion of one necessarily repudiates the assertion of the other." Jones v. City of Aurora, 772 P.2d 645, 647 (Colo.App.1988).

Accordingly, we further conclude that Brown Group's claims for unjust enrichment and contribution are not subject to the GIA, and because Brown Group's declaratory judgment claim is based on its contribution claim, the trial court did not err in refusing to dismiss any of these three claims.

II. Trespass and Negligence

In its...