Defending Subcontractors in construction defect lawsuits in Colorado typically means representing one of many third party defendants. The plethora of parties can lead to confusion and frustration when it comes to the issue of damages to your specific client.

Defending Subcontractors in construction defect lawsuits in Colorado typically means representing one of many third party defendants. The plethora of parties can lead to confusion and frustration when it comes to the issue of damages to your specific client.  For example, most if not all attorneys representing general contractors do not believe that C.R.C.P. Rule 26(a)(1)(C) requires them to disclose a specific dollar number of damages (or computed allocation) associated with your client. Instead, most general contractors will disclose a project wide cost of repair, and it is then left to you to determine your clients possible exposure. This can make it very difficult to conduct discovery, and also to prepare for trial or negotiate a settlement.

To illustrate, the general contractor’s cost of repair supposedly represents the total damages to the project. Your client’s scope of work may, for example, be for the earthwork at the project. The cost of repair will most likely separate the damage categories into items such as grading and drainage, structural, concrete flatwork, etc…. This is helpful on its face as you can glance at what the alleged damages regarding grading and drainage are for your client. However, what the cost of repair will not tell you is whether or not the general contractor will be allocating any of the structural or foundation defects to your client.  This could be problematic in that the alleged structural and foundation defects will most likely amount to significant additional damages. Without the allocation, subcontractors are most likely left to wonder about the specific damages facing them until, in some cases, through trial.

The answer to this issue early in a case is to seek a Court order directing the Plaintiff or the General Contractor to file an allocation of damages specific to each defendant.  The medium for attaining this court action is the Case Management Order (“CMO”).  However, Plaintiff attorneys and counsel for general contractors generally fight this issue and its inclusion in the CMO. Another method of enforcing an allocation is filing a Motion to Compel pursuant to C.R.C.P. Rule 37. Popular case law used in these Motions is that which focuses on the Defendants right to defend itself and not be surprised at trial. See Bond v. District Court, P.2d 33 (Colo.1984).