Construction Law

Repairs Won't Toll The Statute Of Limitations

By Tim Gordon

Smith v. Executive Custom Homes (Colo. 2010)

Reversing the Colorado Court of Appeals, the Colorado Supreme Court holds that the repair doctrine, which is an equitable tolling doctrine, is inconsistent with the Construction Defect Action Reform Act ("CDARA").  As such, ongoing repairs or attempts to repair by a contractor of a construction defect do not equitably toll the statute of limitations.

Under the repair doctrine, the running of a statute of limitations can be equitably tolled when a plaintiff can show that after a defect was noticed: (1) repairs were attempted; (2) representations or promises, express or implied, were made by the defendant that the repairs would remedy the defect; (3) the plaintiff reasonably relied on the representations or promises; and (4) as a result, the plaintiff delayed filing a legal action against the defendant.  The repair doctrine protects a homeowner who has duly sought to remedy a defect but who was led to reasonably believe that he or she will receive satisfaction without resort to litigation.

But the Colorado Supreme Court held that CDARA bars application of the repair doctrine, because CDARA itself includes a tolling provision.  Under CDARA:

If a notice of claim is sent to a construction professional in accordance with [CDARA] within the time prescribed for the filing of an action under any applicable statute of limitations or repose, then the statute of limitations or repose is tolled until sixty days after the completion of the notice of claim process described in [CDARA].

C.R.S. § 13-20-805.

Thus, equitable tolling under the repair doctrine would be redundant in light of the tolling provision in CDARA.

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Read the slip opinion.

Full post as published by Colorado Construction Law on May 10, 2010 (boomark / email).