Chapter 22 - § 22.5 • DEFENSES
| Jurisdiction | Colorado |
§ 22.5.1—Statute of Limitations
The statute of limitations for an action for tortious interference with the performance of a contract is two years.57 The limitations period is measured from the date that the injury from the alleged interference occurred, even if the precise extent of injury or damage was still uncertain at that point.58 For example, in Sterenbuch v. Goss,59 an attorney sued an investment fund recovery expert and another attorney for allegedly acting together to steal the plaintiff's clients. The Colorado Court of Appeals concluded that the plaintiff's tortious interference with contract claim accrued when he knew or should have known the defendants had improperly induced his clients to terminate their contracts with him. Even if he "was not able to prove the exact amount of damages . . . in terms of lost contingent fees, he could have provided a reasonable estimate of his damages by presenting expert testimony establishing what likely would have transpired (and how much he likely would have recovered) had [defendants] not interfered with his relationship with his clients."60 Thus, the statute of limitations began to run as soon as the injury was evident, which was as soon as the clients were lost.
§ 22.5.2—Designation of Nonparty at Fault
Pursuant to C.R.S. § 13-21-111.5(3)(b), a defendant in a case for a civil tort cause of action may, as part of his or her defense, elect to designate as a nonparty at fault either an individual or an entity who is either "wholly or partially at fault" for the damages alleged by the plaintiff to allocate responsibility for damages between the defendant and nonparty for the respective conduct of each.61 The purpose of apportioning liability in this way is to prevent a defendant from being held liable for more than its share of damages.62 A defendant wishing to designate a person or entity as a nonparty at fault must do so "within 90 days following commencement of the action unless the court determines that a longer period is necessary."63 The statute specifies the required form, contents, and requirements of the notice. A defendant may designate an unidentified or unknown person.64 The designated nonparty may also be immune from suit.65 If the designated nonparty is a licensed professional and his or her alleged fault amounts to professional malpractice, the practitioner would be well advised to determine whether the designation must be accompanied by a certificate of review.66
§ 22.5.3—First Amendment
A claim for intentional interference with contract may fail when it is based on an opinion or speech that is protected by the First Amendment.67 Because a plaintiff must show that the alleged interference was "improper," opinion that is protected by the First Amendment is not improper and therefore cannot give rise to a claim for interference with either contract or prospective business relationships.68 The Colorado Supreme Court has recognized that the First Amendment's Free Exercise Clause and Establishment Clause mean that courts have no authority to determine claims that directly concern a church's choice of religious employees.69 For example, in Seefried v. Hummel,70 a senior pastor claimed tortious interference with contract when his employment contract with a church was terminated based on meetings where disgruntled church members made statements against him. Both the trial and appellate court concluded that the courts did not have jurisdiction to consider the tortious interference claim because resolving it would necessarily insert the court in the church's decision to terminate the pastor's employment.71
§ 22.5.4—Governmental Immunity
The Colorado Governmental Immunity Act (CGIA) generally provides absolute immunity to public entities and public employees from tort causes of action or claims that may lie in a tort cause of action,72 including tortious interference with contract.73 Public employees are immune from tort liability for injuries caused by the actions or omissions within the scope of their employment, unless their conduct was willful and wanton.74 Neither the type of action nor the form of relief chosen by the claimant is determinative of the inquiry as to whether the claim is one that lies or could lie in tort.75 The CGIA provides eight categories of governmental activity that may not be waived under the statute.76
The Colorado Supreme Court has stated that because governmental immunity is in derogation of Colorado's common law, legislatively granted immunity must be strictly construed,77 but provisions waiving immunity are broadly construed in the interest of compensating victims of governmental negligence.78 The CGIA requires that a person claiming injury by a public entity or employee — whether or not by a willful and wanton act or omission — must file a written notice of the claim within 182 days after the date of discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for the injury.79 The CGIA also expressly delineates the information that must be included in, the recipient of, and the delivery method for the required written notice.80 Compliance with the statute is a jurisdictional prerequisite to any action brought under the CGIA, and failure to comply forever bars any action.81
§ 22.5.5—Competitor Privilege
Under the "competitor privilege" set forth in Restatement § 768 and adopted by the Colorado Supreme Court, interference with at-will contracts or prospective contractual relations by a business competitor may be privileged and not improper as a matter of law.82 The Restatement provides that:
(1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other's relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and(d) his purpose is at least in part to advance his interest in competing with the other.
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(2) The fact that one is a competitor of another for the business of a third person does not prevent his causing a breach of an existing contract with the other from being an improper interference if the contract is not terminable at will.83
The Colorado Jury Instructions treat the competitor privilege as an affirmative defense.84 However, in Energex Enterprises, Inc. v. Anthony Doors, Inc.85 the Colorado Court of Appeals noted that Colorado precedent did not speak definitively to whether a competitor's privilege to engage in competition is "simply not improper conduct giving rise to a claim to tortious interference with prospective business advantage or . . . an affirmative defense to the claim to be pled and proved by the defendant."
§ 22.5.6—Corporate Agent Privilege
As a general rule, a corporation may sue an employee for improperly interfering with a contract between the corporation and a third party.86 However, a third party cannot sue an officer, director, or employee of the corporation for interfering with a corporation's contract with the third person if the officer, director, or employee was serving the corporate interests in good faith.87 This privilege is not absolute, but one which must be weighed in balance with the factors set out in Restatement § 767, including:
(a) the nature of the actor's conduct,...
(b) the actor's motive,
(c) the interests of the other with
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