Colorado Court of Appeals OK’s Filing of Construction Defect Complaint Prior to Completion of the Notice of Claim Process

by Alex Nelson

June 2018

In a new unpublished (for now, pending a petition for certiorari to the Supreme Court) decision, the Colorado Court of Appeals interprets the Colorado Construction Defect Action Reform Act (“CDARA”) as permitting the filing of a complaint prior to the issuance of a pre-litigation notice of claim.

The dispute revolved around the construction of a custom single family home, and alleged construction defects in that home.  The case was commenced by the homeowners by filing it in the District Court prior to expiration of the statute of limitations on the construction defect claims. See C.R.C.P. 3.  The statutorily-required pre-litigation notice of claim was then later served, after the expiration of the 2 year limitations period, and the notice of claim process proceeded while the suit was already pending in the District Court.  The defendant homebuilder Zag Built, LLC argued that the notice of claim statute, C.R.S. 13-20-803.5, provides the exclusive mechanism to toll a limitations period in a construction defect action, and that since the notice of claim letter was sent after expiration of the limitations period, the action was untimely and should be dismissed. The Court of Appeals disagreed, citing the CDARA language providing for the remedy of a stay of proceedings when a suit is prematurely filed prior to completion of the notice of claim process.  See C.R.S. 13-20-803.5(9). The court determined that completion of the notice of claim process was not a jurisdictional defect that warranted dismissal of the action.

This ruling may lend some flexibility to homeowners and other construction defect plaintiffs that seek to quickly stop a limitations period from running further.  The filing of a lawsuit OR sending a notice of claim will suffice.  Also, aggressive plaintiffs that seek to streamline the pre-litigation and litigation processes may try to build overlap into the notice of claim timeline and the litigation steps of filing, serving, and moving a District Court lawsuit forward. 

See Curry v. Zag Built, LLC, 2018 COA 66, 2018 WL 2058176 (Colo. App. May 3, 2018) (unpublished).