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Colorado Supreme Court Opinions || February 9, 2015 Colorado Supreme Court -- February 9, 2015
The Supreme Court of the State of Colorado 2015 CO 7
Supreme Court Case No. 13SC728 Petitioners:
S K Peightal Engineers, LTD, a Colorado corporation; Hepworth-Pawlak Geotechnical, Inc., v.
Respondent:
Judgment Reversed February 9, 2015
Attorneys for Petitioner S K Peightal Engineers, LTD: Greenwood Village, Colorado
Attorneys for Petitioners Hepworth-Pawlak Geotechnical, Inc.; Steve Pawlak; and Daniel E. Hardin: Greenwood Village, Colorado
Attorneys for Respondent Mid Valley Real Estate Solutions V, LLC: Aspen, Colorado
Dean Neuwirth P.C. Denver, Colorado
Attorneys for Amici Curiae American Council of Engineering Companies of Colorado, American Institute of Architects of Colorado, Structural Engineers Association of Colorado, and Colorado Association of Geotechnical Engineers: Greenwood Village, Colorado
Attorneys for Amicus Curiae Colorado Defense Lawyers Association: Westminster, Colorado
Lambdin & Chaney, LLP Denver, Colorado
Attorneys for Amicus Curiae Independent Bankers of Colorado: Denver, Colorado
Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Denver, Colorado
CHIEF JUSTICE RICE delivered the Opinion of the Court. ¶1       Petitioners have requested that we review two issues arising from the court of appealsâ opinion issued on interlocutory appeal under C.A.R. 4.2. We must decide: (1) whether entities that did not exist at the time the relevant contracts were completed can still be subject to the economic loss rule through the interrelated contracts doctrine; and (2) whether commercial entities situated similarly to Respondent, which was a third-party beneficiary to a contract that interrelated to the contract by which the home at issue was built, are among the class of plaintiffs entitled to the protections of the independent tort duty to act without negligence owed by construction professionals to subsequent homeowners when constructing residential homes.1 We hold that (1) the fact that an entity was nonexistent at the time the relevant contracts were completed does not alter our analysis under the interrelated contracts doctrine, and (2) the independent duty at issue does not apply here because, as a third-party beneficiary of a commercially negotiated contract that interrelates to the contract under which the home was built, Respondent cannot properly be considered a subsequent homeowner. I. Facts and Procedural History ¶2       This case arises out of a series of contracts surrounding the construction of a âspecâ home. Petitioners are soil engineering corporations that subcontracted with developer Sun Mountain Enterprises LLC (âSun Mountainâ) to perform soil analysis and soil engineering for the construction of a home. Petitioner S K Peightal Engineers LTD (âS K Peightalâ) entered an oral contract with general contractor Shannon Custom Homes;2 whether this contract contained an explicit duty of care is disputed. Meanwhile, Petitioner Hepworth-Pawlak Geotechnical Inc. (âH-P Geotechâ)3 entered into a written contract with Sun Mountain containing a duty provision requiring H-P Geotech to conduct all services âin a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale.â ¶3       Sun Mountain planned on constructing the home and selling it on the open market, and it secured financing for the project through three intertwined construction loan agreements with Alpine Bank, the most central of which was executed in April of 2007 (the âConstruction Loan Contractâ). Before the home reached the market, the Great Recession struck. The home sat unsold until the Construction Loan Contract matured and came due, at which point Sun Mountain and Alpine Bank entered into a contract titled âAgreement for Deed-in-Lieu of Foreclosureâ (âDeed-in-Lieuâ). This contract released Sun Mountainâs personal guarantors from liability under the Construction Loan Contract in exchange for Alpine Bank receiving the deed to the house and a lump-sum payment of the difference between the homeâs appraised value and the remaining indebtedness due on the Construction Loan Contract. Alpine Bank did not take title to the home directly but rather created a wholly owned subsidiaryâ Respondent Mid Valley Real Estate Solutions V, LLC (âMid Valleyâ)âto take title to the property under the Deed-in-Lieu.4 ¶4       After Mid Valley took possession under the Deed-in-Lieu and placed the home on the market, large cracks formed in the walls of the home as a result of settling soil beneath the homeâs foundation. Mid Valley sued Petitioners5 for purely economic damages under a negligence theory for âbreach[ing] their duties and applicable standard of care in providing soils and other engineering services and/or design services for the . . . Home.â Petitioners moved for summary judgment under the economic loss rule, asserting that Mid Valley was contractually interrelated through the Deed-in-Lieu and the Construction Loan Contract to the duty provisions contained in Petitionersâ contracts with Sun Mountain, and thus that Mid Valley was barred from asserting a tort claim for its economic loss. The trial court rejected Petitionersâ summary judgment motion, finding that Mid Valley did not have a contract with anyone involved in the construction project. Petitioners then requested interlocutory review by the court of appeals under C.A.R. 4.2, which was granted. ¶5       The court of appeals affirmed the trial courtâs denial of summary judgment on different grounds. Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc., 2013 COA 119, ¶ 3. Largely avoiding the question of whether the contracts were interrelated, it held that Petitioners as subcontractors owed the same independent duty in the construction of a residential home to Mid Valley as they would to any natural home buyer, and thus that the economic loss rule did not apply to bar Mid Valley from suing Petitioners in tort. Id. We then granted certiorari to determine whether (1) the independent duty in construction of a residential home applies to a commercial homeowner in Mid Valleyâs position, and (2) the contracts could be interrelated despite Mid Valley not existing at the time Petitionersâ contracts were formed. II. Standard of Review ¶6       We review the court of appealsâ affirmation of the trial courtâs denial of a motion for summary judgment de novo. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo. 2002). Summary judgment is only appropriate when the pleadings and supporting documents confirm that no issues of material fact exist and that the moving party is entitled to judgment as a matter of law. A.C. Excavating v. Yacht Club II Homeowners Assân, 114 P.3d 862, 865 (Colo. 2005). All doubts regarding the existence of a triable issue of fact must be resolved against the moving party, and the nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts. Id. III. Analysis
¶7       Petitioners assert that the court of appeals erred in upholding the trial courtâs denial of their motions for summary judgment on Mid Valleyâs tort claims based on the economic loss rule. The economic loss rule was adopted âto maintain the boundary between contract law and tort law,â Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1259 (Colo. 2000), and focuses on the source of the duty that the defendant allegedly breached, id. at 1262. âA breach of a duty which arises under the provisions of a contract between the parties must be redressed under contract, and a tort action will not lie.â Id. If, however, the duty breached arises âindependently of any contract duties between the parties,â then a tort action premised on that breach remains viable. Id.  This rule applies not only in the context of a single contract, but also âwhen the claimant seeks to remedy only an economic loss that arises from interrelated contracts.â BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 72 (Colo. 2004). Furthermore, the economic loss rule applies not only to parties to a contract that defines the duty of care, but also to âthird-party contract beneficiaries who may have a cause of action for breach of contractual duties.â Town of Alma, 10 P.3d at 1264 n.12. A third-party beneficiary is a âperson not a party to an express contract [who nevertheless] may bring an action on the contract if the parties to the agreement intended to benefit the [third party and if] . . . the benefit claimed is a direct and not merely an incidental benefit of the contract.â See Parrish Chiropractic Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049, 1056 (Colo. 1994). ¶8       Therefore, absent an independent tort duty, a plaintiff is generally barred from suing in tort if (1) the plaintiff seeks redress for breach of a contractual duty that caused only economic losses, (2) the plaintiff is a party to a contract or a third-party beneficiary of a contract as defined above, and (3) that contract defines the duty of care that the defendant allegedly violated or is interrelated with another contract that defines that duty of care. ¶9       If, however, the defendant owes a duty of care to the plaintiff independent from the duty contained in the interrelated contracts, then the plaintiff may still sue in tort for violation of that independent duty. In Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1043â45 (Colo. 1983), we recognized an independent duty owed by builders âto use reasonable care in the construction of a home in light of the apparent riskâ that extends to âsubsequent purchasersâ of the home. Then, in Town of Alma, we reaffirmed this independent duty as compatible with our adoption of the economic loss rule, 10 P.3d at 1265, and in A.C. Excavating, we recognized that this duty to âact without negligence in the construction of a homeâ extends to subcontractors, 114 P.3d at 864. ¶10       Against this backdrop, we now set about clarifying (1) whether this independent duty extends to protect commercial entities in Mid Valleyâs position, and (2) whether the interrelated contracts doctrine can apply to entities that were formed after the contract containing the duty was executed. We conclude that (1) the economic loss rule can apply even to entities that did not exist at the time that the contract containing the duty was formed if that entity is a party to or third-party beneficiary of the contract (or an interrelated contract); and (2) the Cosmopolitan Homes independent duty does not apply here because, as a third-party beneficiary of a commercially negotiated contract that interrelates to the Construction Loan Contract under which the home was built, Mid Valley cannot properly be considered a âsubsequent purchaser.â We begin by addressing the potential applicability of the interrelated contracts doctrine.
A. Entities That Were Nonexistent When the Contract Containing the Duty Was ¶11       Because Mid Valleyâs contractual connectedness to the Construction Loan Contract is essential to our holding that Mid Valley falls outside of the class of plaintiffs protected by the independent tort duty from Cosmopolitan Homes, we first address the question of whether an entity can still be subject to the interrelated contracts doctrine when that entity did not exist until the work was completed on the relevant duty-containing contracts. We conclude that it can. ¶12       When an entity is a party to a contract that is interrelated with a defendantâs duty-containing contractâor is a third-party beneficiary thereof, as is the case hereâ the economic loss rule can bar that entity from suing the defendant in tort. â[W]hen the claimant seeks to remedy only an economic loss that arises from interrelated contracts,â BRW, 99 P.3d at 72, the economic loss rule can prohibit tort suits by âthird-party contract beneficiaries who may have a cause of action for breach of contractual duties,â Town of Alma,10 P.3d at 1264 n.12, so long as the contracting defendant owes no independent tort duty, id. at 1265.6 ¶13       In this case, a close examination of contractual provisions indicates that Mid Valley was the intended third-party beneficiary of the Deed-in-Lieu such that it âmay have a cause of action for breach of contractual duties,â which potentially subjects Mid Valley to the interrelated contracts doctrine. See id. at 1264 n.12. Specifically, Clause Seven of the agreement recites this intent: General Intent.It is the express intent  and understanding of the Parties to this Agreement that Mid Valley Real Estate Solutions V, LLC shall become the immediate and absolute full fee owner of and have complete and indefensible title to the Real Estate Collateral and Personal Property and that the Deeds of Trust will remain valid and enforceable liens on the Real Estate Collateral and that the Loan Documents will remain valid and enforceable liens on the Personal Property provided, however, that Guarantors shall be released from personal liability under the Loan Documents to the extent described in Paragraph 9. It is the intent of this Agreement that Lenderâs rights and remedies as to any and all of the Real Estate Collateral and Personal Property shall not be compromised, released, modified, limited or impaired in any way. (Emphasis added.) Although the somewhat contradictory language of this provision leaves unclear what exactly Mid Valley receives,7 the provision specifically acknowledges that the parties expressly intend to benefit Mid Valley directly by granting it some property interest in the Real Estate. Because a third-party beneficiary is a âperson not a party to an express contract [who nevertheless] may bring an action on the contract if the parties to the agreement intended to benefit the [third party and if] . . . the benefit claimed is a direct and not merely an incidental benefit of the contract,â see Parrish Chiropractic, 874 P.2d at 1056, and Clause Seven expressly recites such intent, Mid Valley falls within the scope of the interrelated contracts doctrine insofar as the Deed-in-Lieu interrelates to the duties established in Petitionersâ contracts with the general contractor. ¶14       Moreover, the Deed-in-Lieu is interrelated with the Construction Loan Contract between Alpine Bank and Sun Mountain despite Mid Valleyâs nonexistence at the time the Construction Loan Contract was formed. In fact, the Deed-in-Lieu is merely a modification of the Construction Loan Contract. Clause Sevenâwhich releases the personal guarantors from liability under the Construction Loan Contract, but purports to keep all powers of enforcement from that contract intact against Sun Mountainâis simply one example of these contractsâ interrelatedness. The Deed-in-Lieu also recites the history of the construction loans, refers to and incorporates provisions of the Construction Loan Contract throughout, and requires signatories to âratify and confirm all the Loan Documents as modified by this agreement.â Thus, the Deed-in-Lieu, of which Mid Valley is a third-party beneficiary, is clearly interrelated with the Construction Loan Contract. ¶15       While this much can be ascertained on the limited record before us, under the stringent standards required to grant a motion for summary judgment we cannot say definitively that the Construction Loan Contract interrelates with Petitionersâ contracts, and so we must remand to the trial court to make that determination. What little record exists reveals significant factual disagreement regarding the extent to which Alpine Bankâs rights under the Construction Loan Contract caused that contract to interrelate with Petitionersâ contracts. Additionally, Petitioner S K Peightalâs contract with the general contractor was oral, and the question of whether that contract contained any duty or liability limitations is factual in nature and is not sufficiently developed on this sparse interlocutory record for us to definitively determine if the interrelated contracts doctrine applies. ¶16       Therefore, our holding in this section is narrow and commensurate with the issue on which we granted review: An entity that did not exist at the time a duty was contractually created may still be subject to the interrelated contracts doctrine if that entity is a party to a contract that is sufficiently interrelated with the duty-creating contract or a is third-party beneficiary of such an interrelated contract. ¶17       We next consider whether, even if these contracts interrelate, the Cosmopolitan Homes independent tort duty extends to protect commercial entities in Mid Valleyâs position such that the economic loss rule would be inapplicable. B. Subcontractorsâ Independent Duty in the Construction of Homes Does Not Extend to Mid Valley ¶18       Even if Mid Valley would otherwise be bound by Petitionersâ contracts through the interrelated contracts doctrine, the economic loss rule would not apply to bar Mid Valleyâs tort suit if Petitioners owe Mid Valley an independent tort duty of care. Although home builders (including subcontractors) generally owe an independent duty in the construction of homes under Cosmopolitan Homes such that homeowners can typically sue in tort for negligent construction, this duty is only owed to subsequent purchasers and transferees.8 We must therefore determine whether Mid Valleyâa third-party beneficiary of the Deed-in-Lieu, which is simply a modification of the Construction Loan Contract that facilitated the development of the home at issueâcan be properly considered a âsubsequent purchaserâ as intended in Cosmopolitan Homes. We conclude that it cannot. ¶19       Initially, we set about clarifying the precise meaning of âindependent dutyâ in the context of the economic loss rule. When we adopted the economic loss rule in Town of Alma, we explained that â[a] breach of a duty arising independently of any contract duties between the parties . . . may support a tort action.â 10 P.3d at 1262. In the context of the economic loss rule, an independent duty is not merely the potential existence of a tort duty owed to a foreseeable victim of a defendantâs failure to take care; were that the case, the economic loss rule would have no practical significance because it would be inapplicable whenever a viable tort claim could be asserted. Rather, as we implied in Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269â71 (Colo. 2000), while thoroughly analyzing the economic loss ruleâs compatibility with our previous case law, there are actually two types of independent duties of care that can render the economic loss rule inapplicable. ¶20       First, any general tort duty is independent of contractual duties if the contract contains no duties or the allegedly breached tort duty is beyond the scope of the duties contained within the contract at issue. See id. at 1270. In Grynberg, we explained that our holding in Cooley v. Big Horn Harvestore Systems, Inc., 813 P.2d 736 (Colo. 1991), is compatible with the economic loss rule because the âexclusive remedyâ portion of the contract at issue in that case âapplied only to duties that were created by the contract,â and the contract required only that the defendant âinstall a foundation and erect the superstructure.â Grynberg, 10 P.3d at 1270. Hence, the economic loss rule did not bar a tort suit âbased on an alleged breach of a separate duty of care arising from [the defendantâs] conduct in providing advice and recommendations concerning adoption, modification or rejection of nutritional programs.â Id. (internal quotation marks omitted). Thus, if a defendantâs specific alleged duties are not governed by the contract, then those duties are independent of the contract and the economic loss rule cannot bar a tort suit for breach of those independent duties. ¶21       Secondâas is at issue hereâcertain âspecial relationships . . . automatically trigger independent duties of care.â  Id. at 1271 (citing attorney-client, physician-patient, and insurer-insured relationships as examples). Thus, the existence of a judicially recognized special independent duty will âsupport[] a tort action even though the parties [have] entered into a contractual relationshipâ and will render the economic loss rule inapplicable even if the relevant contracts contain the identical duty. Id.9 ¶22       As is pertinent to this case, a construction professionalâs independent duty to act non-negligently in the construction of a homeâfirst articulated in Cosmopolitan Homes and later confirmed and expanded to subcontractors in A.C. Excavatingâfalls into the second category of special judicially recognized independent duties. Crucially, the Cosmopolitan Homes duty is owed only to âsubsequent home owner[s].â10 663 P.2d at 1042. We must therefore determine whether parties such as Mid Valleyâthat is, parties or third-party beneficiaries that receive a home through a commercially negotiated contract that interrelates to the contract that facilitated the homeâs constructionâcan be properly categorized as âsubsequent home owner[s]â as was intended in Cosmopolitan Homes. ¶23       In Cosmopolitan Homes, we considered whether the court of appeals properly allowed âsubsequent purchasers of a home to assert a claim for property damage to the structure allegedly caused by the negligence of the homebuilder.â Id. The trial court dismissed the plaintiffsâ complaint because âthere was no privity of contract between the [parties] because the [plaintiffs] were not the first purchasers or users of the house.â Id. Based on careful consideration of our precedent and public policy implications, we recognized that construction professionals owe an independent duty to act non-negligently in the construction of a home, but we limited this duty so as to allow only âsubsequent home owner[s] to maintain an action against a builder.â Id. (emphasis added); see also Town of Alma, 10 P.3d at 1265â66 (affirming that the âindependent duty to act without negligence in the construction of a homeâ was recognized to protect the class of âsubsequent purchasersâ). Thus, since we have determined that Mid Valley has contractually enforceable rights as a third-party beneficiary under the Deed-in-Lieu and that the Deed-in-Lieu is clearly interrelated to the Construction Loan Contract, the remaining question is whether a party who stands in the shoes of one of the parties to a Construction Loan Contract that financed the construction of the home in question can properly be considered a subsequent homeowner of the property. ¶24       We hold that parties in Mid Valleyâs situation are not subsequent homeowners as was intended in Cosmopolitan Homes and thus that construction professionals do not owe an independent duty to this class of parties under Cosmopolitan Homes. Unlike the plaintiffs in Cosmopolitan Homes, who had their complaint originally dismissed for lack of privity and lacked alternate legal avenues to enforce their rights, Mid Valley here may enforce the Deed-in-Lieu as a third-party beneficiary thereof, and the Deed-in-Lieu preserves Alpine Bankâs enforcement rights against Sun Mountain from the Construction Loan Contract, which was the very contract that facilitated the construction of the home. Furthermore, the satisfaction of obligations under these two contracts was the sole reason that Mid Valley came to own the property. Alpine Bank, in turn, could and did negotiate for significant protections under the Construction Loan Contract, including: the right to inspect and approve subcontractorsâ contracts related to the project; the right to request that Sun Mountain furnish âa soil report for the Property in form and substance satisfactory to [Alpine Bank], prepared by a registered engineer satisfactory to [Alpine Bank]â; and the right to perform inspections upon the property throughout the project. Thus, Alpine Bank had the right to inspect and approve the contracts between Sun Mountain and Petitioners. Even if Petitionersâ contracts were formed before the Construction Loan Contract, Alpine Bank could have inspected these contracts and required Sun Mountain to obtain new soil reports under a contract more to its liking if it objected to the terms of Petitionersâ contracts. It did not. Finally, as a third-party beneficiary of the Deed-in-Lieu, Mid Valley was free to sue Sun Mountain for breach of that contract or the interrelated Construction Loan Contract under the terms for which Alpine Bank negotiated over the course of this contractual relationship. See Town of Alma, 10 P.3d at 1264 n.12 (âA basic rule of contract law is that a person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claim is a direct and not merely an incidental benefit of the contract.â (internal quotation marks omitted)). Therefore, as a third-party beneficiary of a commercial entity that negotiated at armâs length a Construction Loan Contract outlining the partiesâ duties and liabilities during the construction of a home, Mid Valley does not qualify as a subsequent homeowner as contemplated in Cosmopolitan Homes and is not a member of the class to which this special independent duty is owed.11 ¶25       Importantly, we do not hold that parties like Mid Valley could be without recourse. While the independent duty established in Cosmopolitan Homes does not provide Mid Valley with an exception to the economic loss rule, it remains to be determined by the trial court whether the Construction Loan Contract is sufficiently interrelated to Petitionersâ contracts, whether Petitioner S K Peightalâs oral contract contained a duty, and whether Petitionersâ duties (if any) under their respective contracts were the same as their general tort duties such that the economic loss rule would bar Mid Valley from suing in tort. If yes to all, then Mid Valley may sue for breach of contract but not in tort. If no to any, then Mid Valley will be able to assert at least some general tort claims as appropriate within the strictures of this opinion. IV. Conclusion ¶26       Responding narrowly to the issues before us on interlocutory appeal as they relate to the specific facts of this case, we hold that (1) entities that did not exist at the time work was completed on the relevant duty-containing contracts can still be subject to the interrelated contracts doctrine; and (2) parties in Mid Valleyâs situation are not âsubsequentâ purchasers or homeowners as intended in Cosmopolitan Homes and are not protected under that independent tort duty. Because the court of appeals erroneously held that the special independent duty from Cosmopolitan Homes extends to protect Mid Valley, we reverse that judgment and remand the case to the court of appeals to return to the trial court for further proceedings consistent with this opinion. 1 Specifically, we granted certiorari on the following two issues: 1. [REFRAMED] Whether the economic loss rule bars a homeownerâs negligence claim against a construction professional when the owner is a commercial entity rather than a natural homebuyer. 2. [REFRAMED] Whether the interrelated contract doctrine as defined in BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004), can apply to a wholly-owned subsidiary that did not exist when the initial contracts were drafted but instead was created after work on the relevant contracts had been completed. 2 Because Shannon Meckley was the principal for both Shannon Custom Homes as general contractor and Sun Mountain as developer, these two corporations presumably had a contractual agreement of some kind as well. This contract, however, is not presented in the sparse record before us. 3 Petitioners also include two principals of H-P Geotech; these individuals have made no arguments beyond those included in H-P Geotechâs briefs. 4 Mid Valleyâs amicus, Independent Bankers of Colorado, informs us that such arrangements are common in deed-in-lieu-of-foreclosure agreements. 5 Mid Valley and Alpine Bank actually sued several parties, including Petitioners here. Over the course of the proceedings below, all parties but Mid Valley and Petitioners have either settled or been otherwise dismissed. 6 To be clear, we do not hold here that third-party beneficiaries are the only class of non-parties who did not exist at the time the duty-containing contract was formed that may nonetheless be bound to enforce duties via contract claims under the economic loss rule. In the right circumstances, alter egos, assignees, and others who âstand in the shoesâ of a contractual party that is bound by the economic loss rule could be similarly prohibited from suing in tort. These determinations, however, are not necessary to resolve this interlocutory appeal. 7 Clause Seven purports to assign fee simple ownership to Mid Valley while still leaving the deeds of trust as enforceable liens on the property. It is unclear how Alpine Bank would enforce its deed of trust against a property that Sun Mountain does not own in order to collect on the remaining Construction Loan Contract between Sun Mountain and Alpine Bank. 8 Although the seminal language creating this independent duty in Cosmopolitan Homes used the word âpurchasers,â as the court of appeals noted, the case âused âhome ownerâ and âpurchaserâ interchangeably throughout the opinion.â Mid Valley, ¶ 30. Thus, although we use the term âpurchaserâ when we are directly quoting Cosmopolitan Homes, construction professionals also owe subsequent transferees this independent tort duty. 9 We note that in addressing the plaintiffâs tort claim in BRW, we stated that â[i]f we conclude that the duty of care owed by [the defendants] was memorialized in the contracts, it follows that the plaintiff has not shown any duty independent of the interrelated contracts and the economic loss rule bars the tort claim and holds the parties to the contractsâ terms.â 99 P.3d at 74. Critically, however, we have never recognized the duty at issue in that caseâinvolving licensed engineersâ obligations to contractors and subcontractors in drafting and preparing plans and specificationsâas a special independent tort duty. See id. at 71, 74. Thus, although in BRW we applied the proper test to determine whether a general tort duty is independent, this test does not apply when considering a specially recognized independent tort duty such as that established in Cosmopolitan Homes. 10 After deciding Cosmopolitan Homes, we decided A.C. Excavating without explicitly including the word âsubsequentâ when we determined that subcontractors owed the Cosmopolitan Homes independent tort duty. See A.C. Excavating, 113 P.3d at 865. In that case, however, we were considering only the scope of the class of defendants who owed the duty and not the class of plaintiffs to whom the duty was owed. Id. The plaintiff in A.C. Excavating was a homeownersâ association and had no contractual connection to the contracts defining the defendantsâ duties, and was presumably representing natural homebuyers with no connection to the construction contracts. Id.  at 864. Thus, since the plaintiff was a representative of âsubsequent purchasersâ and we did not consider this portion of the Cosmopolitan Homes independent tort duty, A.C. Excavating comports with our holding here both factually and jurisprudentially. 11 The court of appeals performed a thorough analysis on the broader question of whether commercial entities in general should be protected by the independent tort duty established in Cosmopolitan Homes, and it concluded that the duty is owed to both commercial and natural homeowners. Mid Valley, ¶¶ 24â51. Because we determine that Mid Valley does not qualify as a subsequent homeowner as intended in Cosmopolitan Homes, we need not determine whether this independent tort dutyâ which was created to protect natural personsâextends to protect commercial entities who would qualify as subsequent homeowners. These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here. Colorado Supreme Court Opinions || February 9, 2015 Back |