specially concurring.
{ 53 I agree with the result reached by the majority, and with much of its analysis. In my view, the conclusion that defendants owed an independent duty to Mid Valley to act without negligence in the construction of the home is compelled (at least in this court) by the supreme court's decisions in Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo.1983), and A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862 (Colo.2005).
T 54 This is so for these reasons:
® Mid Valley is a "home owner" and "foreseeable user" of the home. See Cosmopolitan Homes, 663 P.2d at 1045; id. at 1044 ("The apparent risk encompasses one who foreseeably suffers personal injury as a consequence of builder or contractor negligence."); see also A.C. Excavating, 114 P.8d at 869 ("Cosmopolitan Homes permit[s] residential property owners to bring negligent construction claims against builders generally."). None of the bases for distinguishing Mid Valley from the typical homeowner posited by defendants strike me as workable or consistent with the supreme court's discussions in Cosmopolitan Homes and A.C. Excavating.
@Many, though perhaps not all, of the policy concerns given by the supreme court as supporting the independent duty rule in this context apply to Mid Valley.
® As the majority points out in Part III.B.4 of its analysis, distinguishing among types of homeowners could lead to anomalous results.
55 Thus, I perceive no principled basis for distinguishing Cosmopolitan Homes, a decision reaffirmed in A.C. Excavating, from this case. We are, of course, bound by those decisions. Justus v. State, 2012 COA 169, T 44 (Court of Appeals is bound by decisions of the Colorado Supreme Court).
156 However, it does not appear to me that the holding of Cosmopolitan Homes is compatible with the economic loss rule, as articulated and explained by subsequent supreme court cases.
T57 If a duty arises from or is encompassed by a contract, that duty cannot serve as the basis of a tort claim seeking only recovery for economic losses. BRW, Inc. v. Duifficy & Sons, Inc., 99 P.3d 66, 68, 71-74 (Colo.2004); Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1262 (Colo.2000). It is only when the duty is truly independent of the contract that such a tort elaim is viable. Town of Alma, 10 P.3d at 1262. Thus, the ultimate question in this context is: What is the source of the duty? Id.
158 In Town of Alma, the court distinguished Cosmopolitan Homes on the basis the negligence claim in the latter case purportedly arose from a breach of a duty that was independent of the contract. Id. at 1265-66 (in Cosmopolitan Homes "we determined that a builder has an independent duty to act without negligence in the construction of a home") (citing Cosmopolitan Homes, 663 P.2d at 1042); see also A.C. Excavating, 114 P.3d at 866. But a close examination of the rationale of Cosmopolitan Homes shows that the duty recognized in that case is not "independent" of the contract in the manner contemplated by the economic loss rule. The majority in Cosmopolitan Homes based its decision to allow a negligence claim against the builder, in large part, on the following reasoning. *998Cosmopolitan Homes, 663 P.2d at 1048 (citations omitted; emphasis added). Thus, the court recognized the source of the tort duty as the contract itself. Under BRW and other subsequent supreme court decisions, any such duty is not independent of the contract and, hence, cannot provide the basis of a tort claim. See A.C. Excovating, 114 P.8d at 871 (Kourlis, J., dissenting) (opining that Cosmopolitan Homes is "inconsistent with the development of the law in this court"); see also Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Londing, LC, 221 P.8d 284, 248 (Utah 2009) (characterizing Town of Alma's attempt to reconcile Cosmopolitan Homes with the economic loss rule as "more a result of post hoe rationalization to save precedent than anything else" and holding there is no independent duty to construct a home without negligence).
*997[The 'contractual obligation is not the touchstone of civil liability in tort. It is only the matrix from which an independent obligation may arise! ...A contractual obligation gives rise to a common law duty to perform the work subject to the contract with reasonable care and skill.... The fact that a contract may have existed between a builder and the original purchaser of the home does not transform the builder's contractual obligation into the measure of its tort liability arising out of its contractual performance.
*998159 8To be sure, the majority in Cosmopolitan Homes articulated a number of policy concerns justifying a rule allowing a homeowner to sue a builder for negligent construction. It seems to me, however, that while such concerns may justify recognition of a de jure exception to the economic loss rule (a matter on which I express no opinion), they do not render the result in Cosmopolitan Homes consistent with the economic loss rule.
160 We cannot disregard Cosmopolitan Homes, particularly in light of the apparent affirmations of that decision in Town of Aima and A.C. Excavating. But perhaps it is time for the supreme court to take another look at the viability of the rule announced in that case in light of continued development of the law in Colorado and elsewhere.
. Two other features of Cosmopolitan Homes are noteworthy. First, in a footnote, the majority dismissed out of hand any concern that only "economic loss" was at issue. Cosmopolitan Homes, 663 P.2d at 1051 n. 5. Subsequent cases have not been dismissive of such a fact. Second, Justice Rovira's dissent, though not mentioning the economic loss rule by name, was based on economic loss rule analysis. Cosmopolitan Homes, 663 P.2d at 1046-50.