Isbill Associates, Inc. v. City and County of Denver
| Decision Date | 14 April 1983 |
| Docket Number | No. 79CA1169,79CA1169 |
| Citation | 666 P.2d 1117 |
| Parties | ISBILL ASSOCIATES, INC., Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Wood, Ris & Hames, P.C., Bruce F. Fest, Denver, for plaintiff-appellee.
Wayne L. Johnson, Denver, for defendant-appellant.
Defendant, City and County of Denver, appeals a judgment entered on a jury verdict awarding $64,318.32 to Isbill Associates, Inc., for water damage to technical drawings which were stored in an area leased from Denver. We affirm.
Isbill is an airport engineering consulting firm which leases office space from Denver at Stapleton International Airport. On November 12, 1975, a Denver employee connected a steam coil to condensate lines located in the basement of the airport terminal. Although the employee attempted to trace the lines to determine if they were functional, no "as built" drawings were available, nor was hand-tracing feasible.
On November 17 and 22, 1975, water escaped from uncapped pipes in the ceiling of Isbill's offices. Approximately 1,800 engineering drawings, aerial photographs, maps, and other technical documents were damaged or destroyed. The damaged documents were moved to a different area, and over 3,700 hours of staff time were expended for restoration or recreation of the documents. The uncapped pipes were subsequently repaired.
On December 9, Isbill's insurer sent notice to the mayor of its claim for damages against Denver. That notice stated, in part:
OUR FILE # 236032
At this time we are attempting to determine the full amount of the damage, and indications are at this time that it would be as great as $100,000.
This is to advise you that as the insurer of the property of Isbill Associates, Inc., we would be subrogated to their [sic] right of recovery in the event payment is made and that also to advise you that there is the possibility of the loss exceeding the insured amount, therefore a separate claim of Isbill Associates would be presented."
Isbill later recovered $50,000 from this insurer.
Isbill sued Denver for negligence and breach of the implied covenant of quiet enjoyment to recover the costs of restoring and replacing its drawings. At trial, Denver objected to the introduction of evidence concerning the second flooding incident because the date was not specifically pleaded. However, the trial court found that both floodings were within the scope of the pleadings, and allowed Isbill to introduce evidence concerning both incidents.
Before instruction of the jury, Denver objected to the use of a general verdict form. Denver's counsel requested a special verdict form which would require the jury to state whether, if it found for Isbill, that verdict was based on a breach of the covenant of quiet enjoyment or negligence, or both. Denver's request was denied. The jury awarded Isbill $64,318.32. The judgment awarded interest at the statutory rate from the date of the second flooding incident until the date of the jury verdict.
Denver first contends that it was not given proper notice of Isbill's claim. We disagree.
Section 24-10-109(1), C.R.S.1973 (1982 Repl.Vol. 10), states:
Denver contends that because this statute requires notice by the person claiming the injury, notice by Isbill's insurer was insufficient. Under the facts of this case, Denver's argument is not persuasive. This is especially so because the statute itself only requires "substantial compliance." We agree with the trial court's reasoning in finding proper notice:
Denver also claims that the notice should have been sent to the Denver City Council or its attorney, and that notice to the mayor was insufficient. Denver bases this argument on § 24-10-109(3), C.R.S.1973 (1982 Repl.Vol. 10), which provides:
(emphasis supplied)
Denver argues that "governing body" could only refer to the legislative branch, or the Denver City Council. Even if we accepted this line of reasoning, we hold that Denver is estopped from insisting on notice to the City Council for property damage cases.
Denver Revised Municipal Code 191.1 provides
Even if § 24-10-109(3) required notice to the City Council as the "governing body," public entities may be equitably estopped from setting up this section as a bar to actions against it. Gray v. Regional Transportation District, 43 Colo.App. 107, 602 P.2d 879 (1979). In view of the provisions of the municipal code, an estoppel is created.
Denver also argues that the trial court erred when it received evidence of the second flooding incident over Denver's objection. Even if this were error, it does not merit reversal here.
The complaint alleged as follows:
"On or about November 17, 1975, water leaked through the ceiling into the said office space thereby materially damaging numerous technical drawings of the Plaintiff." (emphasis supplied)
The trial court found that this language encompassed both flooding incidents. The two incidents were only 5 days apart and caused the same type of damage, although the second incident was minor in comparison with the first. Thus, Denver was not prejudiced in its defense by the introduction of such evidence. See C.R.C.P. 15(b). Moreover, Denver could not have been surprised by such evidence. The second flooding incident was extensively explored by Denver during pre-trial discovery.
Denver next contends that Isbill failed to establish the elements of a breach of the covenant of quiet enjoyment, and that the trial court erred in sending this issue to the jury. We disagree.
The covenant of quiet enjoyment is breached by:
" 'any disturbance of a lessee's possession by his lessor which renders the premises unfit for occupancy for the purposes for which they were leased, or which deprives the lessee of the beneficial enjoyment of the premises, causing him to abandon them.' " (former emphasis in original, latter emphasis supplied)
Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 578 P.2d 1045 (1978), quoting Radinsky v. Weaver, 170 Colo. 169, 460 P.2d 218 (1969).
Denver claims that Western Stock Center requires abandonment of the leased premises, and that Isbill did not abandon. We find Denver's construction of Western Stock Center to be in error.
The Western Stock Center test is stated in the disjunctive. It requires either a disturbance which renders the premises unfit for the purpose for which they were leased or a disturbance which deprives the lessee of the beneficial enjoyment of the premises, causing abandonment. Thus, a showing of abandonment is not required in all cases. This holding has support in a number of other jurisdictions which have held that abandonment is not a required element of the breach of the covenant of quiet enjoyment. See, e.g., D.M. Development Co. v. Osburn, 51 Or.App. 207, 625 P.2d 157 (1981); Nate v. Galloway, 408...
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