Chapter 7 - § 7.12 • INTERTWINING CLAIMS

• Jurisdiction: Colorado

§ 7.12 • INTERTWINING CLAIMS

On any given construction project, it is not uncommon for multiple claims to arise, some of which are subject to an arbitration agreement while others are not. Sometimes, the same facts are involved but involve different parties. For this situation, the courts created the intertwining doctrine, the purpose of which is to avoid duplication of effort and inconsistent determinations by different forums.²⁶² The CRUAA (C.R.S. § 13-22-207 (2016)) appears to give a court statutory jurisdiction to make this determination.

Colorado courts long held that if the arbitrators were required to hear the same facts as were needed to establish the non-arbitrable claims before a court, the court would not refer the arbitrable claims to arbitration. Instead, the court would hear all of the claims itself.²⁶³ This intertwining claims doctrine states that where the factual bases of arbitrable and non-arbitrable claims are the same, arbitration will not be ordered. Instead, all claims will be heard by the court. Under the CUAA, if the arbitrator would be required to hear the same facts needed to establish the non-arbitrable claims, the court will not refer the arbitrable claims to arbitration and instead will hear all of the claims itself.²⁶⁴

These principles were reaffirmed in Breaker v. Corrosion Control Corp.²⁶⁵ The parties' incorporation of the CUAA into an arbitration agreement otherwise subject to the FAA made the Colorado intertwining doctrine applicable to the disputes arising out of the purchase agreement, to the extent there were common issues between arbitrable and non-arbitrable claims. However, the court found that there were no common issues between the arbitrable and non-arbitrable claims.²⁶⁶

Colorado's adoption of the intertwining doctrine followed the federal court adoption of the doctrine. Subsequently, however, the U.S. Supreme Court repudiated the doctrine when the FAA applies.²⁶⁷ Thus, the intertwining doctrine is not applicable in cases controlled by the FAA, absent agreement of the parties. The FAA requires a court to compel arbitration of pendant arbitrable claims, even if it leads to inefficient maintenance of separate proceedings involving the same facts in different forums. The Supreme Court held that the possible efficiencies and consistent result to be gained by having one forum, rather than two, pass upon common factual or legal issues could not justify refusing to enforce an agreement to arbitrate. However, the arbitrator's award would not necessarily be binding upon the court's resolution of the same issues, and arbitration proceedings need not be stayed pending completion of the litigation.²⁶⁸ Thus, when a party asserts multiple claims, the federal court allows non-arbitrable claims to continue in court and the arbitrable claims to proceed in arbitration, in accordance with federal law.²⁶⁹ When the FAA applies, it probably preempts the state intertwining doctrine as it promotes arbitration.

In 2007, the Colorado Supreme Court overruled its prior decision establishing and upholding the intertwining claims doctrine and followed the U.S. Supreme Court's lead, holding that "claims that are subject to an arbitration agreement must be arbitrated...