Dept. of Transp. v. Brown Group Retail

• Citation: 182 P.3d 687
• Decision Date: 14 April 2008
• Docket Number: No. 06SC667.,06SC667.
• Parties: COLORADO DEPARTMENT OF TRANSPORTATION, Petitioner v. BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Respondent.
• Court: Supreme Court of Colorado

182 P.3d 687

COLORADO DEPARTMENT OF TRANSPORTATION, Petitioner v. BROWN GROUP RETAIL, INC., a Pennsylvania corporation, Respondent.

No. 06SC667.

Supreme Court of Colorado, En Banc.

April 14, 2008.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Megan Paris Rundlet, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.

Davis Graham & Stubbs LLP, Dean C. Miller, Robert W. Lawrence, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

The Colorado Department of Transportation sought review of the court of appeals' judgment affirming the denial of its motion to dismiss this groundwater contamination case. See Brown Group Retail, Inc. v. State, 155 P.3d 481 (Colo.App.2006). Although the district court found Brown Group's claims of trespass and negligent storage and disposal of hazardous waste barred by the Colorado Governmental Immunity Act, it denied the Department's motion to dismiss Brown Group's claims for contribution, unjust enrichment, and declaratory relief, finding them to be equitable in nature and not governed by the Act. The court of appeals affirmed, similarly reasoning that these latter claims did not and could not lie in tort, largely because they did not seek compensation in damages for injury to Brown Group or its property.

Because Brown Group's claims for contribution, unjust enrichment, and declaratory relief all assert claims of liability against the Department that either lie in tort or could lie in tort within the meaning of the Governmental Immunity Act, they are governed by it and must meet its prerequisites. Because Brown Group failed to comply with the notice requirement of the Act, the judgment of the court of appeals is reversed and remanded with directions to order dismissal of Brown Group's second, third, and seventh claims for relief.

I.

Brown Group Retail, Inc., brought suit against the Colorado Department of Transportation asserting, among other things, various claims arising from the Department's alleged contamination of one of Brown Group's manufacturing sites and its failure to reimburse Brown Group for a portion of the costs incurred in cleaning up the contamination at both that site and a contiguous residential neighborhood. The Department moved to dismiss the complaint for lack of jurisdiction, on grounds that Brown Group failed to comply with the 180-day notice requirement of the Governmental Immunity Act. For purposes of this jurisdictional determination, the court heard testimony from both parties and accepted a joint stipulation of facts and numerous uncontested exhibits.

As a result of environmental assessments done in 1994, Brown Group discovered both soil and groundwater pollution at its Redfield manufacturing site and learned that chlorinated solvents had likely migrated through groundwater to an adjacent residential neighborhood. In May 1997, it advised the Colorado Department of Public Health and Environment ("CDPHE") of its investigation and proposed a remediation program. The CDPHE ultimately determined that Brown Group's proposed remediation program was insufficient and in May 1998 issued a compliance order, directing it to take specific steps to remedy the pollution on both its own and the adjacent property.

Chlorinated solvents disposed of by the Department at its Region 6 Headquarters, adjoining the Redfield site, also migrated by groundwater onto Brown Group's property and from there into the adjacent neighborhood. Although the district court found that Brown Group should have known as early as December 1994 that the contaminants traveling off its property were coming in part from the property owned by the Department, Brown Group failed to give notice to the Department until April 1998, just weeks before receiving the CDPHE's compliance order. Brown Group's April 1998 letter to the Department requested that it share in the expense of investigating and remediating the pollution.

In December 2003, Brown Group filed its complaint, stating eight separate claims for relief.¹ Brown Group alleged that the Department trespassed on its property when contaminants traveled from the Department's property onto the Redfield site, and it sought damages for that trespass. Brown Group also claimed that the Department was negligent in the storage and disposal of industrial solvents and sought damages in the form of reimbursement for that portion of its remediation costs attributable to the Department's negligence.

In addition to these seemingly straightforward tort claims, Brown Group also brought claims for contribution and unjust enrichment, again alleging that the Department was liable for a portion of the substantial costs Brown Group incurred in complying with CDPHE's order. Finally, Brown Group requested a declaration that the Department was responsible for a pro rata share of past, present, and future costs expended in complying with the CDPHE compliance order.

The district court granted the Department's motion to dismiss for failure to comply with the notice requirements of the Governmental Immunity Act with regard to the claims of trespass and negligence, but it denied the motion with regard to the claims of contribution, unjust enrichment, and declaratory judgment. The district court reasoned that the latter claims, which it distinguished as seeking restitution rather than damages, were equitable in nature and therefore not subject to the Act. Both parties appealed various aspects of the district court's ruling, and the court of appeals affirmed. We granted the Department's petition for writ of certiorari to review the denial of its motion regarding its claims seeking contribution, unjust enrichment, and declaratory relief.

II.

Although we had never attempted any meaningful theoretical justification, and by 1957 we had already found a waiver by entering into authorized contractual relations, see Ace Flying Serv. v. Colo. Dep't of Agric., 136 Colo. 19, 22, 314 P.2d 278, 280 (1957), until 1971 this court openly acknowledged the doctrine of sovereign or governmental immunity and applied it to bar nonconsensual court suits against subdivisions of the state or local governments. See Evans v. Bd. of County Comm'rs, 174 Colo. 97, 482 P.2d 968 (1971). In that year, primarily for policy reasons, a majority of this court found it appropriate "simply to undo" what we had done and leave to the General Assembly the future existence of any such doctrine or doctrines. Id. at 105, 482 P.2d at 972. We made clear at that time our understanding that it would be within the authority of the legislature to restore sovereign immunity in whole or in part, and if the latter, to place limitations on the actions that might be brought against the state and its subdivisions. Id. at 105, 482 P.2d at 972.

The legislature immediately obliged by enacting the Colorado Governmental Immunity Act.1971 Colo. Sess. Laws 1204-18; now codified at §§ 24-10-101 to -120, C.R.S. (2007). As presently codified, the Act specifically waives sovereign immunity for injuries resulting from dangerous conditions in or along an access to, or from the operation or maintenance of, a host of public facilities, vehicles, roadways, and assets; and it also provides for a further waiver of immunity at the choice of the governing body of any public entity. See §§ 24-10-106, -104. As a jurisdictional prerequisite to any action claiming injury by a public entity, however, the Act requires that notice be given within 180 days of discovering the injury, and that the public entity be given 90 days to consider and respond before being sued. § 24-10-109.

Unlike those jurisdictions in which the doctrine of sovereign immunity had never been judicially abrogated, however, the Colorado legislature was faced with the task of creating and defining the reach of sovereign immunity in this jurisdiction, before specifying the circumstances in which it would be legislatively waived. As a result, its statutory scheme first broadly defined the nature of the claims to which the Act was intended to apply, see C.R.S.1963, § 130-11-5 (1971 Perm. Cum.Supp.), and re-imposed a bar to any such claims not falling within one of the Act's enumerated exceptions. See §§ 130-11-6, -8. From its inception, the Act made clear the importance of "including within one article all the circumstances under which the state or any of its political subdivisions may be liable in actions other than contract." § 130-11-2, ("Declaration of policy."). To accomplish this objective it therefore extended its coverage to all actions which lie or could lie in tort, regardless of the type of action actually pled by the claimant. § 130-11-5.

To the extent the legislature has considered subsequent court decisions as too narrowly construing its mandate, it has responded, sometimes redundantly, by reemphasizing the breadth of its initial intent. Perhaps most notably, in 1986, following an opinion by this court concluding that the City and County of Denver could be liable for mental anguish damages in a suit alleging willful and wanton breach of contract, see Trimble v. City & County of Denver, 697 P.2d 716, 731 (Colo.1985), the General Assembly immediately amended the language of its policy declaration; its description of the Act's applicability; and every statutory section remotely referring to the injuries, claims, or actions to which sovereign immunity would or would not apply.² By adding the words, "or the form of relief" to the description of covered actions in section...