After Alma, some divisions of the Colorado Court of Appeals held the economic loss rule barred post-contractual fraud claims related to the performance of the contract. See Top Rail Ranch Estates, LLC v. Walker, 327 P.3d 321, 328-29 (Colo.App. 2014); Former TCHR, LLC v. First Hand Mgmt. LLC, 317 P.3d 1226, 1232-33 (Colo.App. 2012); Hamon Contractors, Inc. v. Carter &Burgess, Inc., 229 P.3d 282, 291-95 (Colo.App. 2009). These divisions reasoned that all contracts contain the implied covenant of good faith and fair dealing, and the implied covenant of good faith and fair dealing includes the duty not to commit fraud.

However, “[w]hen the economic loss rule bars a claim against a corporate entity, it may also bar claims against that entity's officers and directors, even if the officers and directors were not parties to the contract at issue,” such as when “the officers' and directors' duties, rights, obligations, or liabilities arise from the contract between the corporate entity and another.” Former TCHR, LLC v. First Hand Mgmt. LLC, 317 P.3d 1226, 1232 (Colo.App. 2012).

A duty of care exists separately under tort law if (1) the duty arises from a source other than the contract and (2) the duty is not also imposed by the contract. Former TCHR, LLC v. First Hand Mgmt. LLC, 317 P.3d 1226, 1231 (Colo. App. 2012).

So the economic loss rule bars Plaintiffs’ claims of fraud, negligent misrepresentation, and fraudulent concealment to the extent Defendants’ alleged misrepresentations occurred after the Agreement was executed. Former TCHR, LLC v. First Hand Mgmt. LLC , 317 P.3d 1226 (Colo. App. 2012) (where duty to refrain from misrepresentation exists "solely because of" a contract, economic loss rule bars tort claims premised on that misrepresentation). On the other hand, the economic loss rule does not bar these claims to the extent that they are premised on pre-contractual misrepresentations.

The Colorado Court of Appeals has stated, "[w]hen the economic loss rule bars a claim against a corporate entity, it may also bar claims against that entity's officers and directors, even if the officers and directors were not parties to the contract at issue." Former TCHR, LLC v. First Hand Mgmt. LLC, 317 P.3d 1226, 1232 (Colo. App. 2012).

After Alma , some lower Colorado courts— Hamon Contractors , Former TCHR , and Walker —applied the economic-loss rule to bar intentional torts as well, reasoning that the common law duties to refrain from fraud and to disclose material facts arose from and were expressly described by the parties’ contract or were subsumed within that contract's implied covenant of good faith and fair dealing.See, e.g.,Top Rail Ranch Estates, LLC v. Walker , 327 P.3d 321, 329 (Colo. App. 2014) (concluding that economic-loss rule barred fraud claims because plaintiffs’ claim for breach of the implied duty of good faith and fair dealing duplicated their fraud claims); Former TCHR, LLC v. First Hand Mgmt. LLC , 317 P.3d 1226, 1232 (Colo. App. 2012) (holding that the economic-loss rule barred fraud and concealment claims because they did not arise out of an independent duty); Hamon Contractors, Inc. v. Carter & Burgess, Inc. , 229 P.3d 282, 289 (Colo. App. 2009), as modified on denial of reh'g (June 11, 2009) (concluding that the "economic loss rule can apply to fraud or other intentional tort claims based on post-contractual conduct"). The Colorado Supreme Court recently revisited the economic-loss rule in Bermel and held that the rule does not bar a statutory civil theft claim.

After Alma, some lower Colorado courts-Hamon Contractors, Former TCHR, and Walker-applied the economic-loss rule to bar intentional torts as well, reasoning that the common law duties to refrain from fraud and to disclose material facts arose from and were expressly described by the parties' contract or were subsumed within that contract's implied covenant of good faith and fair dealing.See, e.g., Top Rail Ranch Estates, LLC v. Walker, 327 P.3d 321, 329 (Colo.App. 2014) (concluding that economic-loss rule barred fraud claims because plaintiffs' claim for breach of the implied duty of good faith and fair dealing duplicated their fraud claims); Former TCHR, LLC v. First Hand Mgmt. LLC, 317 P.3d 1226, 1232 (Colo.App. 2012) (holding that the economic-loss rule barred fraud and concealment claims because they did not arise out of an independent duty); Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 289 (Colo.App. 2009), as modified on denial of reh'g (June 11, 2009) (concluding that the "economic loss rule can apply to fraud or other intentional tort claims based on post-contractual conduct").

To summarize, he contends that Colorado's "economic loss rule bars recovery on post-contractual claims for fraudulent concealment and fraudulent misrepresentations which arise out of contract rather than tort duties." In making this argument, Mr. Bloom relies on a decision from the Colorado Supreme Court, Town of Alma v. Azco Constr., Inc. , 10 P.3d 1256 (Colo. 2000), and a trilogy of subsequent Colorado Court of Appeals cases: Hamon Contractors, Inc. v. Carter & Burgess, Inc. , 229 P.3d 282 (Colo. App. 2009) ; Former TCHR, LLC v. First Hand Mgmt. LLC , 317 P.3d 1226 (Colo. App. 2012) ; and Top Rail Ranch Estates, LLC v. Walker , 327 P.3d 321 (Colo. App. 2014). Glencove emphasizes the irony of Mr. Bloom's reliance on the economic loss rule and notes that "throughout this case, Bloom has adamantly maintained that he is not even a party to the Agent Agreement."

See, e.g. , Dream Finders Homes LLC v. Weyerhaeuser NR Co. , 2021 COA 143, ¶ 64, 506 P.3d 108 (rule barred post-contractual fraud claim because the duty to not make misrepresentations or engage in fraud was subsumed within the contract's implied duty of good faith and fair dealing); Top Rail Ranch Ests., LLC v. Walker , 2014 COA 9, ¶¶ 38–39, 327 P.3d 321 (rule barred fraud claims that duplicated a claim for breach of the duty of good faith and fair dealing); Engeman , ¶¶ 29, 42 (rule barred a claim alleging willful and wanton conduct where there was no duty independent of the contract, "consistent with the principle that the economic loss rule turns not on the nature of the defendant's conduct, but on the nature of the duties owed by the defendant"); Former TCHR, LLC v. First Hand Mgmt. LLC , 2012 COA 129, ¶¶ 29, 33, 317 P.3d 1226 (rule barred post-contractual fraud claims where breached duties were described by the contract or subsumed within the implied covenant of good faith and fair dealing); Hamon Contractors, Inc. v. Carter & Burgess, Inc. , 229 P.3d 282, 289 (Colo. App. 2009) (rule barred post-contractual fraud claims where the breached duties existed only because of the parties’ contract); U.S. Fire Ins. Co. v. Sonitrol Mgmt. Corp. , 192 P.3d 543, 547–50 (Colo. App. 2008) (rule barred claims for negligence and gross negligence, even where an accompanying contract claim alleged willful and wanton conduct); cf. Van Rees v. Unleaded Software, Inc. , 2016 CO 51, ¶ 15, 373 P.3d 603 (rule did not bar intentional tort claims "based on misrepresentations made prior to the formation of the contracts" because those actions "violated an independent duty in tort to refrain from such conduct"); Keller v. A.O. Smith Harvestore Prods., Inc. , 819 P.2d 69, 72 (Colo. 1991) (rule did not bar a c

Divisions of this court have applied the rule to bar claims for fraud and other intentional torts when the claims did not arise from a common law duty that differed from the express or implied contractual duty that the defendant owed to the plaintiff. See Top Rail , ¶¶ 29, 38, 327 P.3d at 328, 329 (applying the economic loss rule to bar fraudulent concealment, intentional misrepresentation, and negligent misrepresentation claims); Former TCHR, LLC v. First Hand Mgmt. LLC , 2012 COA 129, ¶¶ 20, 33, 317 P.3d 1226, 1231, 1233 (barring fraudulent misrepresentation and fraudulent concealment claims under the economic loss rule); Hamon Contractors , 229 P.3d at 289 (holding that the economic loss rule barred the plaintiff's fraudulent concealment and fraudulent misrepresentation claims). ¶ 63 Dicta in Bermel and McWhinney Centerra Lifestyle Center LLC v. Poag & McEwen Lifestyle Centers-Centerra LLC , 2021 COA 2, 486 P.3d 439, suggests that the economic loss rule has only limited applicability to intentional tort claims.