Opinion
Civil Action 1:20-cv-01236-RM-SKC
12-14-2021
RAYMOND E. CLARK, and BETTYJUNE CLARK, Plaintiffs, v. HYATT HOTELS CORPORATION, et al., Defendants.
RECOMMENDATION RE: DEFENDANTS' MOTION TO STAY [DKT. 206]
S. Kato Crews, U.S. Magistrate Judge
Defendants Milender White Construction Co., Design Mechanical, Inc., and Given & Associates, Inc., have filed a joint motion seeking to stay the case pending completion of the mandatory notice of claims process under the Colorado Construction Defect Action Reform Act, Colo. Rev. Stat. §§ 13-20-801, et sec. [Dkt. 206.] The Act requires any claimant filing a civil action against a construction professional to follow a specific procedure before bringing suit. § 13-20-803.5. Defendants rely heavily on the Act's definition of “claimant” as “a person . . . who asserts a claim against a construction professional that alleges a defect in the construction of an improvement to real property.” § 13-20-802.5. Based on this seemingly broad definition, Defendants argue this case must be stayed while Plaintiffs complete the claims process.
Under Colorado law, a court “must give effect to the intent of the legislature by construing the plain language of the statute as a whole and giving ‘consistent, harmonious, and sensible effect' to all of its parts. . . .” Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 78 F.Supp.3d 1307, 1314 (D. Colo. 2014) (quoting St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 10, 325 P.3d 1014, 1019 (Colo. 2014)); see also Frazier v. People, 90 P.3d 807, 811 (Colo. 2004) (“A statutory interpretation leading to an illogical or absurd result will not be followed”).
Here, the Court need not look far for the legislative intent is plainly stated:
The general assembly hereby finds, declares, and determines that changes in the law are necessary and appropriate concerning actions claiming damages, indemnity, or contribution in connection with alleged construction defects. It is the intent of the general assembly that this part 8 apply to these types of civil actions while preserving adequate rights and remedies for property owners who bring and maintain such actions.§ 13-20-802 (emphasis added). It is evident the Colorado legislature intended the Act, and therefore, the notice of claim procedure, to apply to property owners who bring claims against construction professionals for damages to their property arising out of construction defects. Id. See also Warembourg v. Excel Elec., Inc., 2020 COA 103, ¶ 115, 471 P.3d 1213, 1233 (“The General Assembly enacted CDARA to proscribe the rights and remedies of property owners who allege that professionals in the construction industry are responsible for construction defects on their property.”).
This interpretation is further borne out by the provision requiring a claimant to give the construction professional access to the property for inspection of the alleged defects. § 13-20-803.5(2). After the inspection, the professionals may make offers of sums certain or offers to remedy the defects, which the claimant may accept or reject. § 13-20-803.5(3) - (5). If the Court accepted Defendants' interpretation, Plaintiffs, who do not own or control the property, would be required to grant Defendants access to the Hotel, and they would have authority to accept or reject offers related to proposed repairs on the property. This would be an absurd result since Plaintiffs have no legal interest in the property whatsoever.
Relevant here, Plaintiffs are not property owners and their claims do not arise from defects impacting their property. Thus, the Act's notice of claim process is inapplicable. Warembourg, 2020 COA 103, ¶ 115, 471 P.3d at 1233 (the act did not apply where plaintiff was not a property owner).
Based on the foregoing, the Court RECOMMENDS Defendants' Motion to Stay [Dkt. 206] be DENIED.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1).