Colorado construction defect lawsuits – suing the subcontractor
In a construction defect case Stutheit & Gartland
were involved in, both the property owner/developer and the general contractor defendants contended that their subcontractors are independent contractors who must also perform their work without negligence. They also contended that because the subcontractors also have an independent duty, the homeowner claiming defects should be required to sue all of the subcontractors that may be responsible for the negligent construction. The owner and general contractor lost. Colorado law prevents builders and general contractors from avoiding liability for damages resulting from a breach of contract by their subcontractors. Simpson v. Digiallonardo, 488 P.2d 208, 210 (Colo. App. 1971). In an unpublished opinion, the Colorado Court of Appeals held that parties can be responsible for damages caused by the negligence of an independent contractor.
The Colorado General Assembly enacted legislation requiring businesses to perform their work under a duty of care that cannot be passed off to someone else. See C.R.S. § 13-21-111.5(6)(a)(IV) (“It is the intent of the general assembly that the duty of a business to be responsible for its own negligence be nondelegable.”) Generally when a party hires an independent contractor, the hiring party is not liable for the independent contractor’s negligence. The nondelegable duty doctrine, however, creates an exception to the independent contractor rule. Daly v. Aspen Center for Women’s Health, Inc., 134 P.3d 450, 454 (Colo. App. 2005).
In our construction defect case, the court found that the developer and general contractor assumed the obligation to design
and build the project in a proper and non-negligent manner. The developer the general contractor can not avoid liability
by subcontracting portions of the work they undertook to others – even if those others are “independent contractors”.
The homeowner may well have a valid cause of action (“lawsuit”) against any such subcontractors, however, that does not mean that the homeonwer is required to proceed against all or any subset of them. On the other hand, the developer or general contractor may proceed with a cross-claim or third-party claim against any subcontractors who may be responsible for the negligence giving rise to the damages for which the homeowner is seeking to hold the developer or general contractor liable.