APPENDIX 18

• Jurisdiction: Colorado

APPENDIX 18

Comment: The authors drafted the following sample jury instructions as a start for others to tailor and improve on, according to the circumstances of their own cases. In Smith v. Executive Custom Homes, Inc., 230 P.3d 1186, 1192 (Colo. 2010), the Colorado Supreme Court limited application of common law "tolling" principles, such as the "repair doctrine," when the Construction Defect Action Reform Act's statutory tolling provisions apply. The contours of this limitation remain to be explored. Sample Instruction No. 1 is intended to address the statutory tolling recognized by Smith to extend C.R.S. § 13-80-104's limitations period. For further discussion of this issue, see "Smith v. Executive Custom Homes and the Repair Doctrine," in Chapter 9, § 9.1.6 of this book. Other tolling provisions may apply, such as under CCIOA's notice-meeting unit owner suit approval process or under local municipal ordinance claim notice procedures, and this instruction may need to be modified accordingly if the court does not determine the tolling periods as a matter of law.

Sample Instruction No. 2 applies a statute of limitations other than C.R.S. § 13-80-104. The Colorado Supreme Court has not determined whether Colorado's Consumer Protection Act (CCPA) or other kinds of misrepresentation claims relating to construction defects are governed by C.R.S. § 13-80-104's limitations period or by other statutes of limitations. But see Stiff v. BilDen Homes, Inc., 88 P3d 639, 641-42 (Colo. App. 2003) (applying C.R.S. § 6-1-115's statute of limitations to homeowners' CCPA claims arising from various construction defects).

Sample Instruction No. 1

Defendants assert the statute of limitations as an affirmative defense to Plaintiff's negligent construction and repair claims. Plaintiff asserts that this statute of limitations was extended or otherwise does not bar any of its claims.

To prove their statute of limitations defense as to a particular defect, Defendants must prove that the limitations period of two years plus any applicable extension periods expired before Plaintiff filed suit on [date].

For Plaintiff's negligent construction claims, the two-year limitations period begins to run when Plaintiff discovered or in the exercise of reasonable diligence should have discovered the physical manifestation of the particular defect that caused Plaintiff's injury.

For Plaintiff's negligent repair claims, the two-year limitations period began to run when, after a particular...