Irwin v. Elam Const., Inc., 88CA1078

• Decision Date: 18 January 1990
• Docket Number: No. 88CA1078,88CA1078
• Citation: 793 P.2d 609
• Parties: Evelyn IRWIN, Plaintiff-Appellant and Cross-Appellee, v. ELAM CONSTRUCTION, INC., a Colorado corporation, Defendant-Appellee and Cross-Appellant. . II
• Court: Colorado Court of Appeals

Page 609

793 P.2d 609

Evelyn IRWIN, Plaintiff-Appellant and Cross-Appellee, v. ELAM CONSTRUCTION, INC., a Colorado corporation,

Defendant-Appellee and Cross-Appellant.

No. 88CA1078.

Colorado Court of Appeals,

Div. II.

Jan. 18, 1990.

As Modified on Denial of Rehearing March 1, 1990.

Certiorari Denied July 9, 1990.

Harshman & McBee, Donald L. McBee, Grand Junction, for plaintiff-appellant and cross-appellee.

Hugh D. Wise, III, Aspen, for defendant-appellee and cross-appellant.

Opinion by Judge HUME.

Plaintiff, Evelyn Irwin, appeals the summary judgment entered in favor of defendant, Elam Construction, Inc. In that judgment, the court ruled that plaintiff's claim was barred by the two-year statute of limitations pertaining to building contractors. Defendant cross-appeals the award of attorney fees to Evelyn Irwin. We reverse and remand with directions.

Plaintiff and her husband, Jack C. Irwin, own a home located adjacent to F Road in Mesa County. In 1983, pursuant to a contract with the county, defendant contracted for and performed a construction project to improve and widen F Road.

During construction of the road, Jack Irwin discovered that the home's walls, chimney, and basement had cracked. He believed the damage was the result of vibrations caused by defendant's use of heavy equipment on the adjacent roadway, and in December of 1983, he moved out of the home in fear of its imminent collapse.

The Irwins filed this action March 2, 1987, claiming that their property had been damaged as a result of the negligent construction activities of defendant. Defendant moved for summary judgment contending that the Irwins' claim was barred by operation of Colo.Sess.Laws 1979, ch. 144, § 13-80-127 at 631. That statute is now codified, with amendments not pertinent to this case, in § 13-80-104, C.R.S. (1987 Repl.Vol. 6A).

The trial court initially granted summary judgment only as to Jack Irwin, and denied the motion as to Evelyn. It also determined defendant's motion to be frivolous and groundless as to Evelyn since defendant did not show any law or facts that would allow Jack's knowledge to be imputed to her, and consequently, it awarded attorney fees incurred by Evelyn in resisting the motion.

Subsequently, however, the court granted defendant's second motion for summary judgment which was supplemented by Evelyn's deposition, determining that her right to recover was also barred by the contractor's statute of limitations. This appeal followed.

I.

Relying on certain language appearing in Stanske v. Wazee Electric Co., 722 P.2d 402 (Colo.1986), defendant contends that § 13-80-127 applies to all claims arising from activities of contractors engaged in making improvements to real property. We disagree.

Section 13-80-127 provides, in pertinent part, that:

"(1)(a) All actions against any ... contractor ... performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within two years after the claim for relief arises, and not thereafter....

(b) A claim for relief arises under this section at the time the damaged party discovers, or in the exercise of reasonable diligence should have discovered the defect in the improvement which ultimately causes injury, when such defect is of a substantial or significant nature.

(c) Such actions shall include any and all actions in tort, contract, indemnity, or contribution or other actions for the recovery of damages for:

(I) Any deficiency in the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property...." (emphasis supplied)

Here, the Irwins' complaint alleged injury resulting from the defendant's negligent construction activities, rather than upon any claimed defect in the improvement (the roadway). However, in determining whether § 13-80-127 applied to bar the Irwins' claim, the trial court as well as the parties focused on whether factual issues existed concerning when the Irwins' claim for relief arose and whether defendant's activities were directed toward creating an "improvement to real property" within the meaning of § 13-80-127(1)(a). And, the court's resolution of these issues resulted in its entry of summary judgment for defendant.

Likewise, on appeal, the parties did not address whether § 13-80-127 operates only to bar claims for injuries allegedly caused by a defect in the improvement constructed by the defendant, or whether it also operates to bar claims for injuries allegedly caused by negligent acts occurring during construction which did not result in a defect in the improvement itself.

Because we concluded that resolution of the threshold questions as to the scope of the statute's applicability is crucial to a proper construction of the statute as well as the determination of this appeal, we ordered that the parties submit supplemental briefs directed to those...