Tamblyn v. Mickey & Fox, Inc.

• Decision Date: 08 May 1978
• Docket Number: No. C-1291,C-1291
• Citation: 195 Colo. 354,578 P.2d 641
• Parties: Hal Gordon TAMBLYN and Katherine Tamblyn, Petitioners, v. MICKEY AND FOX, INCORPORATED, Consulting Engineers, and Chen and Associates, Incorporated, Respondents.
• Court: Colorado Supreme Court

Page 641

578 P.2d 641

195 Colo. 354

Hal Gordon TAMBLYN and Katherine Tamblyn, Petitioners, v. MICKEY AND FOX, INCORPORATED, Consulting Engineers, and Chen and Associates, Incorporated, Respondents.

No. C-1291.

Supreme Court of Colorado,En Banc.

May 8, 1978.

Rehearing Denied May 30, 1978.

Alperstein, Plaut & Snead, Arnold Alperstein, Ronald C. Forman, Lakewood, for petitioners.

Tallmadge, Tallmadge, Wallace & Hahn, C. Thomas Bastien, Denver, for respondent Mickey & Fox, Inc.

Caskins, Hertzman & Chanzit, Richard M. Chanzit, William J. Caskins, Jr., Francis V. Cristiano, Denver, for respondent Chen & Associates, Inc.

Grant, McHendrie, Haines & Crouse, Charles H. Haines, Jr., Gary Holdeman, Denver, for amicus curiae Bechtel Corp.

Banta & Eason, Richard L. Eason, Stephen G. Everall, Englewood, for amicus curiae Arapahoe County School Dist. No. 6.

Leland M. Coulter, Louise L. Edmonds, Aurora, Horn, Anderson & Johnson, Louis Johnson, Colorado Springs, for amici curiae City of Aurora and City of Colorado Springs.

Margaret Bates Ellison, Denver, for amici curiae Consulting Engineers Council of Colorado, Colorado Society of Architects, and Professional Engineers of Colorado.

Robert J. Mason, Colorado Springs, for amici curiae James F. and Hannah H. Duncan.

David C. Mize, Colorado Springs, for amicus curiae Schuster-Graham Homes, Inc.

CARRIGAN, Justice.

Petitioners, the Tamblyns, brought this action for damages alleging that the respondents had negligently performed certain engineering work related to the construction of the Tamblyns' home. The trial court granted the respondents' motions for summary judgment, holding that the action had not been brought within two years after the claim for relief arose, and was therefore barred by section 13-80-127, C.R.S.1973. ¹ The court of appeals affirmed. Tamblyn v. Mickey and Fox, Inc., Colo.App., 568 P.2d 491 (1977). We granted certiorari, and now reverse the court of appeals and remand the case for further proceedings.

The Tamblyns' home was constructed by Golden Key Homes Building Corporation with the engineering assistance of the respondents, Chen and Associates, Inc., and Mickey and Fox, Inc. The first owners of the home purchased it on May 27, 1972; the Tamblyns purchased it from them on January 2, 1973. The builder's warranty was extended for the Tamblyns' benefit to May 24, 1973.

The Tamblyns began to notice numerous defects shortly after they occupied the home. On May 15, 1973, they sent a letter to the builder notifying it of those defects, including a leak in the basement wall, a crack in the basement floor, sagging and cracking window sills, and other problems. The letter stated, however, that the Tamblyns were generally quite pleased with the house, and that they were submitting the list of defects solely to notify the builder of a claim for repairs under the warranty.

Later, in affidavits filed in opposition to the respondents' motions for summary judgment, the Tamblyns also stated that the defects set forth in the letter had appeared at the time to be "of a very minor nature" or "merely cosmetic and finish details which the contractor is normally expected to correct." These affidavits also asserted that it was not until late spring of 1974, when the Tamblyns noticed extensive cracking in other parts of the house, that they became aware that the problems were of a serious nature. In July, 1974, the Tamblyns employed an engineering firm, which reported that the house had serious structural defects. After the builder refused to repair the defects, the Tamblyns filed this suit on May 27, 1975, against the builder and the respondent engineers.

The trial court awarded summary judgment to the respondents on the ground that section 13-80-127, supra, required the action to be brought within two years after the claim arose, and the Tamblyns had failed to meet that requirement. The court of appeals affirmed, holding that the statute of limitations began to run no later than May 15, 1973, when the Tamblyns sent their letter to the builder reflecting some knowledge of defects in materials or workmanship. The court held that the fact that the Tamblyns were not at first aware of the seriousness, extent, or cause of the damages, or the identity of parties responsible for them, did not toll the running of the statute, since there was some damage entitling them to maintain a claim for relief against the builder.

We initially granted certiorari to review the propriety of granting summary judgment under these circumstances. We need not now address that issue, however, for our unanimous opinion in Duncan v. Schuster-Graham Homes, Inc., Colo., 578 P.2d 637 (announced January 9, 1978) is controlling here on other grounds.

The Duncan case held that the special two-year statute of limitations, section 13-80-127, "does not apply to claims for damages for deficiencies in a structure itself, i. e., where the plaintiff seeks only to receive what the builder promised to deliver, or damages to compensate him for deficiencies in the final product." 578 P.2d at p. 640. Since the announcement of that opinion, numerous briefs have been submitted in this case both by the parties and by amici curiae arguing for and against Duncan's analysis of section 13-80-127.

As we emphasized in Duncan, the plain language of section 13-80-127 reflects a legislative intent to apply the shorter limitations period only to claims for personal injury or damage to property other than the defective improvement itself. ² The arguments raised in this case by the respondents and certain amici, such as the potential effect of the Duncan interpretation on those protected by the statute, relate primarily to policy matters. Those arguments should be addressed to the General...