Who to Sue in a Construction Defect Case and How to Avoid Chasing Down All Those Subcontractors

March 24, 2023

For many Coloradans, a home is their largest investment. Litigation can become daunting when something goes wrong during a remodel or construction. Considering all subcontractors, laborers, and professionals on the job site creates a confusing question. Who do you sue when something goes wrong?

In Colorado, lawsuits against construction professionals are governed by the Colorado Defect Action Reform Act, or CDARA. CDARA, along with the case law that interprets it, controls a lawsuit over any claim of professional negligence or defect in a construction project.

Generally, your general contractor will have a common law duty to perform the work responsibly and skillfully. To get around this duty, general contractors will often claim that the subcontractors were independent contractors; therefore, the general contractor is not liable for their actions. The general contractor may add these subcontractors to suit as non-parties at fault or third-party defendants to shift blame.

Colorado Courts have recognized that when a general contractor agrees to perform a remodel or construction job, they may not escape liability by hiring an independent contractor to perform that task. Simpson, 488 P.2d 208, 210 (Colo. App. 1971). Colorado has relied upon a general contractor hiring, supervising, inspecting, and approving their subcontractor's work for the work as a basis of this liability.

In Simpson, the Colorado Supreme Court noted the factors supporting the independent duty and liability of a general contractor for the work performed by its subcontractors: the property owner's lack of knowledge regarding construction, the property owner's inability to detect latent defects, the contractor's control over the subcontractors, and other factors. This, in addition to the General Contractor acting as the supervisor of the subcontractor, creates this liability chain.

A general contractor may seek to break the chain of responsibility based on the specific facts of your case or when they involve design professionals.

Talk to An Experienced Attorney

Because of the many nuances and considerations, it is important to discuss the facts of your case with an experienced attorney before embarking on a construction case. Contact the experienced attorneys at Jorgensen, Brownell & Pepin, P.C. to discuss your options.

This blog is intended to provide general information and, therefore, should not be treated as legal advice. You should contact a qualified attorney for questions about legal issues.

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