Grimm Const. Co., Inc. v. Denver Bd. of Water Com'rs
| Decision Date | 18 June 1992 |
| Docket Number | No. 91CA1108,91CA1108 |
| Parties | GRIMM CONSTRUCTION CO., INC., Plaintiff-Appellant, v. The DENVER BOARD OF WATER COMMISSIONERS; and the City and County of Denver, State of Colorado, a municipal corporation, Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Wells, Love & Scoby, David A. McKinley, Boulder, for plaintiff-appellant.
Michael L. Walker and Hulbert E. Reichelt, Denver, for defendant-appellee Denver Bd. of Water Com'rs.
Daniel E. Muse, City Atty., Robert M. Kelly and Karen A. Aviles, Asst. City Attys., Denver, for defendant-appellee City and County of Denver.
Opinion by Judge METZGER.
In this action to recover excess costs for completing a construction contract, plaintiff, Grimm Construction Co., Inc., appeals from the summary judgment dismissing its complaint against the City and County of Denver (the City) and the City's Board of Water Commissioners (the Board). We affirm in part, reverse in part, and remand for further proceedings.
As pertinent here, the complaint alleged that, in March 1988, the Board awarded a contract to plaintiff for the replacement of two underground conduits near Alameda Avenue and Federal Boulevard in Denver. It further alleged that, after the contract was awarded, the City's traffic department imposed restrictions and requirements which interfered with plaintiff's contractual performance and severely increased plaintiff's costs to complete the project. According to the complaint, the Board breached its contractual duty to plaintiff by failing to disclose material information concerning the traffic requirements to prospective bidders before awarding the contract.
After both defendants had answered the complaint, the City filed a motion for summary judgment. In its motion, the City noted that approval of traffic plans was within the jurisdiction of the Transportation Division of the City's Department of Public Works. It then asserted that, because the plaintiff's contract was solely with the Board and because the City and the Board were separate entities, plaintiff's claims against the City lay in tort. Therefore, it argued that the City was immune from any liability.
The Board then filed a motion to dismiss, asserting that plaintiff had failed to give timely notice of its claim for a price adjustment in accordance with the contract's provisions.
After considering the pleadings, motions, responses, and other documents submitted in connection with the motions, the trial court granted the motion for summary judgment and dismissed all claims against both defendants, with prejudice.
Plaintiff first contends that the trial court erred in concluding that all of its claims could lie in tort and that, therefore, both defendants were immune from liability pursuant to the Colorado Governmental Immunity Act, § 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A). We agree in part.
The Colorado Governmental Immunity Act provides, in relevant part, that a public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort unless the injury is among those for which immunity has been expressly waived. Section 24-10-106(1), C.R.S. (1988 Repl.Vol. 10A). Neither party argues that plaintiff's injuries fall within any of the categories enumerated in § 24-10-106(1) for which there is deemed to be a waiver of immunity.
An action for interference with the performance of a contract lies in tort, and an essential element of this tort is the existence of a contract between the plaintiff and a third party. See Carman v. Heber, 43 Colo.App. 5, 601 P.2d 646 (1979).
Here, excerpts from the City Charter establish that the Board is independently vested with the authority to construct and operate a waterworks system, to enter into its own contracts, and to defend and initiate litigation. In addition, defendants filed an uncontroverted affidavit from the City's Deputy Director of Public Works stating that the City was not a party to the contract.
In view of the Board's specific charter authority to enter into its own contracts for construction of waterworks without review or approval by the City's governing authority, we conclude that, for purposes of this case, the Board was a separate entity.
Accordingly, the trial court properly determined that plaintiff's claims against the City for contractual interference lay in tort and that, therefore, the City was immune from such claims.
Thus, we affirm the summary judgment insofar as it determined that plaintiff's claims against the City were barred by the Colorado Governmental Immunity Act.
The Colorado Governmental Immunity Act was not intended to apply to contract actions. State Personnel Board v. Lloyd, 752 P.2d 559 (Colo.1988). Thus, with respect to the contract claims against the Board, entry of summary judgment was improper because the Board is not immune from liability pursuant to § 24-10-106(1). See State Personnel Board v. Lloyd, supra; Jardel Enterprises, Inc. v. Triconsultants, Inc., 770 P.2d 1301 (Colo.App.1988) ().
Plaintiff also contends that the trial court erred in granting summary judgment in favor of the Board based upon the court's determination that plaintiff had failed to comply with the contractual time limit for giving notice of price adjustments. In support of this contention, plaintiff argues that genuine issues of material fact existed whether the Board had waived the contractual time limit. We agree.
Summary judgment is a drastic remedy and should be granted only upon a clear showing that there is no genuine issue as to any material fact and that all legal prerequisites are clearly established. In determining whether summary judgment is proper, the non-moving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from...
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