Sierra Pacific v. Bradbury goes unchallenged: Colorado’s six-year statute of repose begins when a subcontractor’s scope of work ends

In Sierra Pacific, the Court of Appeals held as a matter of first impression that the statute of repose for a general contractor to sue a subcontractor begins to run when a subcontractor’s scope of work is substantially complete, regardless of the status of the overall project.  Sierra Pac. Indus., Inc. v. Bradbury, 2016 COA 132, ¶ 28, ___ P.3d ___.  The Court of Appeals interpreted the statute of repose in C.R.S. section 13-80-104, which requires that “all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of any improvement to real property” must be brought within six years of substantial completion of that improvement.  C.R.S. § 13-80-104(1)(a).  Recognizing that “an improvement may be [to] a discrete component of an entire project” under Shaw Construction, LLC v. United Builder Services, Inc., 296 P.3d 145 (Colo. App. 2012), the Court of Appeals determined that “a subcontractor has substantially completed its role in the improvement at issue when it finishes working on the improvement.”  Sierra Pac., 2016 COA at ¶¶ 20, 28.  In doing so, it rejected Sierra Pacific’s argument that the statute could be tolled under the repair doctrine “while others worked to repair [the subcontractor’s] ‘improper installation work and flawed repair work.’”  Id. at ¶ 29.  Because six years had undisputedly passed since the subcontractor completed its scope of work when Sierra Pacific filed suit against it, the Court of Appeals affirmed the trial court’s order granting the subcontractor’s motion for summary judgment under Section 13-80-104(1)(a).

This case has important implications for general contractors and subcontractors alike.  While it provides a more predictable cutoff of liability for subcontractors, under the Court of Appeals’ interpretation, a general contractor could potentially remain exposed for a subcontractor’s defective work without the ability to pursue indemnification from that subcontractor.  Since a petition for certiorari was not filed within C.A.R. 52’s forty-two day window, Sierra Pacific Industries, Inc. v. Bradbury’s determination that the statute of repose begins running from a subcontractor’s substantial completion of its own scope of work is likely to be the law in Colorado for the foreseeable future.