Smith v. Executive Custom Homes, Inc. , 2010 Colo. LEXIS 362 ( 2010 )

Chief Justice MULLARKEY,

dissenting.

Because Executive Custom Homes’ attempted repair in the spring of 2004 constituted an improvement to real property as defined by section 13 — 80—104(l)(a), C.R.S. (2009), the statute of limitations did not begin to run until the Smiths were aware of the defect in that repair. They became aware of the defective repair only when Judith Smith was injured on February 2, 2005. Their complaint, filed on January 17, 2007, was within the two-year statute of limitations. Also, the tolling provisions of section 13-20-803.5, C.R.S. (2009) were not intended, and should not be interpreted, as a replacement to the repair doctrine. Therefore I respectfully dissent and would allow the Smiths’ claim to proceed.

Section 13-80-104, C.R.S. (2009) does not explicitly say that a repair is included within the type of construction activity it covers. However, the court of appeals has held that it is, and I would follow and apply that holding in this case. See Highline Vill. Assocs. v. Hersh Cos., 996 P.2d 250 (Colo.App.1999), affd in part, rev’d in part sub nom. Hersh Cos. v. Highline Vill. Assocs., 30 P.3d 221 (Colo.2001).⁸ In that case, an inadequate paint job on the exterior of two large apartment complexes led to an attempted repair, which also proved faulty. The court ruled that the attempted repair was “essential and integral to the function of the construction project,” and therefore constituted the type of construction work intended to be covered by section 13-80-104. Id. at 254 (citations omitted). A merely routine repair would not qualify, but in Highline, as here, the work done was essential to the proper functioning of the property. There is no dispute in this case that when the installation of the gutters was performed at the time of the original construction it was work of the kind defined by section 13-80-104.

The faulty repair of the gutters is a construction defect in itself, so the two-year statute of limitations associated with construction defects cannot, as the majority's interpretation would have it, begin to run prior to the faulty repair. Therefore the statute of limitations only begins to run when the defect in that repair is, or should have been, discovered.

Section 13-20-803.5 should not be seen as a statutory replacement for the repair doctrine. It is a notice requirement that must be satisfied before suit can be filed. Just as the Governmental Immunity Act limits the amount of expensive litigation the state must endure (see sections 24-10-101 to 24-10-120, C.R.S. (2009)), 13-20-803.5 is an attempt to limit construction professionals’ exposure to liability by giving them an opportunity to fix problems before they are required to defend against a lawsuit. Indeed, the brief headline description attached to the bill that enacted section 13-20-803.5 stated that the act was “[cjoncerning limitations on claims for damages filed against construction professionals.” Ch. 188, § 13-20-803.5, 2003 Colo. Sess. Laws 1361. Section 13-20-803.5 protects construction professionals from becoming potential defendants in lawsuits. The statutory provision is a notice requirement and nothing more. It should not be construed as an endorsement or rejection of the repair doctrine.

For these two reasons I respectfully dissent.

I am authorized to say that Justice HOBBS joins in this dissent.

8 . We affirmed Highline Village Associates in part and reversed in part, but in doing so we explicitly stated that we were not commenting upon the court of appeals' holding as it pertained to the question of whether a repair was covered by section 13-80-104. Hersh Cos., 30 P.3d at 225 n. 4.