Maisel v. Erickson Constr., Inc.
| Decision Date | 03 August 2012 |
| Docket Number | Civil Case No. 11-cv-00555-REB-KLM |
| Parties | ELLIOT B. MAISEL, Plaintiff, v. ERICKSON CONSTRUCTION, INC., a Colorado corporation, RICKIE DEAN ERICKSON, individually, CHARLES L. CUNNIFFE, individually, d/b/a Charles Cunniffe & Assoc, Architects, ALPINE HEATING AND SHEET METAL, INC., a Colorado corporation, COG PLUMBING & HEATING, INC., a Colorado corporation, and THE LOG CONNECTION, INC., a Colorado corporation, Defendants. ERICKSON CONSTRUCTION, INC., a Colorado corporation, RICKIE DEAN ERICKSON, individually, Cross-Claimants/Third-Party Plaintiffs. CHARLES L. CUNNIFFE, individually, d/b/a Charles Cunniffe & Assoc., Architects, THE LOG CONNECTION, INC., a Colorado corporation, DAVID JOHNS, individually, d/b/a Johns Construction, CROSS SEVEN, INC., a Colorado corporation, LOGARYTHMS, INC., a Colorado corporation, STEAMBOAT LANDSCAPING, INC., d/b/a Mountain West Environments, Inc., a Colorado corporation, TBW, INC., a Colorado corporation, and TINMAN ROOFING AND HOME IMPROVEMENTS, INC., a Colorado corporation Cross-Claimants/Third-Party Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER RE: CROSS-CLAIM DEFENDANT CHARLES L.
The matter before me is Cross-Claim Defendant Charles L. Cunniffe's Motion To Dismiss Cross-Claims [#119]1 , filed October 20, 2011. I grant the motion in part and deny it in part.
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of citizenship).
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), I must determine whether the allegations of the complaint are sufficient to state a claim within the meaning of Fed. R. Civ. P. 8(a). For many years, "courts followed the axiom that dismissal is only appropriate where 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Noting that this standard "has been questioned, criticized, and explained away long enough," the Supreme Court supplanted it in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). Pursuant to the dictates of Twombly, I now review the complaint to determine whether it "'contains enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974). "Thispleading requirement serves two purposes: to ensure that a defendant is placed on notice of his or her alleged misconduct sufficient to prepare an appropriate defense, and to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim." Kansas Penn Gaming, 656 F.3d at 1215 (citation and internal quotation marks omitted).
As previously, I must accept all well-pleaded factual allegations of the complaint as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002). Contrastingly, mere "labels and conclusions or a formulaic recitation of the elements of a cause of action" will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) () (quoting Twombly, 127 S.Ct. at 1974) (internal citations and footnote omitted). Moreover, to meet the plausibility standard, the complaint must suggest "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493 F.3d at 1177 () (emphases in original). For this reason, the complaint must allege facts sufficient to "raise a right to relief above the speculative level." KansasPenn Gaming, 656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard will not be met where the allegations of the complaint are "so general that they encompass a wide swath of conduct, much of it innocent." Robbins, 519 F.3d at 1248. Instead "[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief." Id.
The nature and specificity of the allegations required to state a plausible claim will vary based on context and will "require[] the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950; see also Kansas Penn Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127 S.Ct. at 1965) (internal quotation marks omitted).
In January, 2003, plaintiff entered into a written contract with defendant/third-party defendant, Charles L. Cunniffe, d/b/a Charles Cunniffe & Assoc. Architects ("CCA") to provide architectural services for the construction of a residential home in Steamboat Springs, Colorado. After CCA began its work, plaintiff entered into a separate agreement with defendants/cross-claim plaintiffs/third-party plaintiffs, Rickie Dean Erickson and Erickson Construction, Inc. (collectively, "Erickson"), to provide construction and general contractor services in connection with the construction. Importantly, although Erickson was required to construct the residence according to theplans and specifications provided by CCA, there was no contract between Erickson and CCA.
Plaintiff alleges various defects and deficiencies in the design and construction of the home and asserts claims for breach of contract, breach of implied warranties, negligence, and vicarious liability against Erickson, CCA, and numerous other contractors and subcontractors involved in the construction. The instant motion is directed to Erickson's cross-claims against CCA for negligence, breach of contract, indemnification, and contribution. I examine the issues raised by and inherent to the motion seriatim.
CCA argues that Erickson's claim of negligence is barred by the economic loss rule. This rule prevents a party from recovering in tort for a mere breach of contract. Town of Alma v. Azco Const., Inc., 10 P.3d 1256, 1264 (Colo. 2000). That is, the failure to perform a contract generally does not give rise to liability in tort, unless there exist duties independent of the contract. Id. The economic loss rule thus maintains the boundary between contract law and tort law. Id. at 1259. More specifically, and more relevantly for present purposes, the Colorado Supreme Court has held, in circumstances closely analogous to those of this case, that the economic loss rule operates even in the absence of a direct contract between the parties.
In BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004), the City and County of Denver contracted with BRW, Inc. ("BRW") to plan, design, and oversee construction of two steel bridges on Speer Boulevard over the Platte River in Denver. Id. at 68. The defendant, Dufficy & Sons, Inc. ("Dufficy") was subcontracted for thefabrication, painting, and shipment of structural steel for the project, and it in turn subcontracted with another entity to supply paint and apply topcoat and a primer to the bridges. Id. Dufficy had no direct contract with BRW, however. Dufficy suffered damages due to unexpected delays relating to the application of the primer and top coat, and sought to recover against, inter alia, BRW. Id. at 69-70. BRW moved to dismiss the action, arguing that the economic loss rule barred Dufficy's negligence and negligent misrepresentation claims, and Dufficy countered that the rule was inapplicable in the absence of a contract between it and BRW. Id. at 72.
The Colorado Supreme Court disagreed and held that the economic loss rule applies not only to a direct, two-party contract but also within the context of a network of interrelated construction contracts. Id. at 72-73. Noting that the primary purpose of the economic loss rule is to encourage commercial parties to "reliably allocate risks and costs during their bargaining," the Court found that these same policy considerations applied with equal force to a network of related contracts:
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