Source: http://www.aspendailynews.com, November 11, 2014
By: Chad Abraham
The sides involved in a construction-defect lawsuit related to building materials used in the first phase of the Burlingame Ranch affordable housing project remain $3 million apart from a settlement, a court filing made Friday says.
An attorney representing Burlingame Ranch I’s homeowners association, opposing a defendant firm’s bid for a third round of mediation, wrote that “further settlement efforts would not be productive.”
The lawsuit involves allegedly defective siding used on condominiums that the HOA worries will cause long-term damage to the residences, which were finished in 2010. Two years later, the HOA sued the city of Aspen, which developed Burlingame; Shaw Builders, which, as the general contractor on the first phase, was paid $38 million by the city; and Certainteed Corp., which manufactured the siding. The claims include negligence and breaches of warranties.
Certainteed, in turn, has asserted negligence claims against other parties, including a company called Studmaster Framing, which installed the siding, according to filings in the lawsuit.
Studmaster Framing is seeking another round of mediation, in which the sides try to reach a settlement before trial. Burlingame’s attorney, Christopher Rhody of Lone Tree, said in Friday’s response that that would be fruitless.
The sides first went into mediation in March 2013. As part of the process, the HOA provided the defendants a $3.8 million bid to fix the problem, which involves the siding cracking and coming loose from buildings.
Shaw Builders countered with an $800,000 offer, Rhody wrote, adding that the city and Certainteed did not make offers. A second mediation session was held in September, when Shaw lowered its offer to $300,000, Rhody’s response says.
As the HOA already has spent an estimated $200,000 in legal fees, it would be “an unreasonable burden on the [the] association to have to expend further time and money on a third mediation,” the filing says.
Judge Gail Nichols of Pitkin County District Court has not yet ruled on whether more mediation will be required. But on Wednesday, she approved a request by Studmaster Framing to postpone a 13-day trial that had been set to begin on Dec. 2.
Nichols noted that in October, Burlingame provided the defendants with some 20,000 documents, and now the sides “are trying to blame the other for the late production” of the records.
The documents “are from the plaintiff’s property manager and thus are likely to contain important material relevant to when the plaintiff discovered the defects, and the nature and extent of the defects,” Nichols’ order says. “Studmaster and Shaw should be permitted the time necessary to review such voluminous documents.”
Also pending are motions for summary judgment, in which a party to a lawsuit seeks a ruling in its favor ahead of trial, made by Shaw and by the city government.
Shaw contends that the HOA is barred by the statute of limitations because Burlingame’s board of directors knew about the defects starting in 2008. The HOA, in its lawsuit, claims it wasn’t aware of the problems until less than two years before it went to court in 2012.
Highlands Ranch attorney Thomas Leemon, representing Shaw, said Burlingame’s property manager alerted his client to the siding issues in 2008. Shaw then hired a subcontractor for a repair job that lasted from October 2008 to November 2009.
“Yet, the plaintiff failed to serve Shaw with [the lawsuit] as required by Colorado law until April 25, 2012, nearly four years after the plaintiff noticed (or, at the very least, should have noticed) the manifestations of a siding defect,” Leemon wrote.
The city, meanwhile, has filed for its own summary judgment on its breach-of-contract claim against Shaw. The general contractor, in addition to planning and construction, “was also obligated by its agreement with the city to indemnify and hold harmless the city from and against all liability, claims and demands, including claims arising from property loss or damage …,” wrote the attorney hired by the city, Sophia Tsai of Denver.
Shaw also was allegedly supposed to procure an insurance policy for the Burlingame project that included the city.
“Shaw has not fulfilled these obligations under the agreement,” Tsai wrote.
On Wednesday, Nichols is expected to set new trial dates.
“The court recognizes that the plaintiff needs to have this case resolved because it needs the money to do the required repairs,” her continuation order says.