18CA1276 Mustang Holdings v Western Oilfields 02-27-2020 COLORADO COURT OF APPEALS Court of Appeals No. 18CA1276 Pitkin County District Court Nos. 14CV30019 & 15CV30024 Honorable John F. Neiley, Judge Mustang Holdings II, LLC, a Colorado limited liability company, Plaintiff-Appellant, v. Western Oilfields Supply Co., d/b/a Rain for Rent, a Delaware corporation, Defendant-Appellee.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE HARRIS

J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 27, 2020

Holland & Hart LLP, Christopher J. Heaphey, Tarn Udall, Aspen, Colorado, for Plaintiff-Appellant Dufford, Waldeck, Milburn & Krohn, LLP, Sam D. Starritt, Jon T. Burtard, Grand Junction, Colorado; Lewis Brisbois Bisgaard & Smith, LLP, Ryan Gill, Denver, Colorado, for Defendant-Appellee

DATE FILED: February 27, 2020 CASE NUMBER: 2018CA1276

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¶ 1 Plaintiff Mustang Holdings II, LLC, sued a subcontractor,

defendant Western Oilfields Supply Co., d/b/a Rain for Rent, after

the dewatering system Rain for Rent installed on Mustang’s

property failed to produce a dry building site. Mustang sought

nearly $1 million in damages, but while the jury found that Rain for

Rent had breached the subcontract, it awarded Mustang only

$46,000.

¶ 2 Mustang appeals the denial of its motion for judgment

notwithstanding the verdict (JNOV) or for a new trial, contending

that the jury’s damages award is unsupported by the evidence.

Alternatively, it argues that the district court erred by dismissing its

negligence claim under the economic loss rule and asks us to

reinstate that claim so that it may pursue the damages it failed to

recover at trial.

¶ 3 We discern no error. Accordingly, we affirm the judgment.

I. Background

A. Factual Background

¶ 4 Mustang is the owner of real property located at the

confluence of two waterways in Aspen, Colorado. It hired a general

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contractor, Brikor Associates, LLC, to build a new vacation home, to

include a 4,000-square-foot basement, on the property.

¶ 5 As Brikor’s lawyer explained to the jury, “building a basement

next to water can be a bit of a challenge.” The process required

digging a 4,000-square-foot hole to the proper depth, “dewatering”

the hole, and then, when the hole was dry, laying the foundation for

the basement.

¶ 6 To determine how much water had to be pumped out of the

ground to dry the site, Mustang hired a geotechnical engineer and a

hydrology expert. The hydrologist conducted tests, ran the data

through a software program, and, as outlined in a report submitted

to Brikor, concluded that a dewatering system (generally, a series of

wells and pumps) that could pump 500 gallons a minute of water

out of the hole should dry the building site. To be on the safe side,

though, the engineering expert recommended that the dewatering

system be able to pump up to 1,000 gallons a minute.

¶ 7 Brikor hired Rain for Rent to dewater the site. The

subcontract described the “Work” as “De-watering of Foundation

with Nine (9) Deep Well Submersible Pumps & Assemblies.

Dewatering for up to Nine (9) Months.” In a rider to the contract,

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Rain for Rent’s contractual obligations were supplemented, in

relevant part, as follows:

• “Scope of work includes all work as shown on plans and

specifications but not limited to the following: Nine (9) wells

to be drilled; Pumps will supply flow rate up to 50

GPM . . . .”

• “Subcontractor is responsible for Dewatering Design &

Performance to insure bottom of excavation is free from

standing water so Foundation System can be constructed

per Plans & Specifications.”

• “Subcontractor has designed and engineered Dewatering

System and will guarantee performance of such to enable

Brikor the ability to construct Foundation & Waterproof

Systems per Plans & Specifications.”

• “Subcontractor & Subcontractor’s Engineers reviewed the

results of the [geotechnical engineer and hydrology experts’

report] dated May 26, 2011 . . . and has designed and

specified a Dewatering System that complies and exceeds

the Dewatering demands of Stated Report.”

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¶ 8 The subcontract defines the “Price” for the Work as “Two

Hundred Fifty Thousand Three Hundred Seventeen Dollars

(250,317.00) TIME AND MATERIALS ESTIMATE.” The subcontract

expressly incorporates Rain for Rent’s earlier estimate, which also

provides that “All estimates are Time and Materials unless stated

otherwise in the Scope of Work section of this document,” and

“THIS IS AN ESTIMATE ONLY, NOT A QUOTATION. JOB WILL BE

BILLED TIME & MATERIALS.”

¶ 9 A provision in the subcontract allowed Mustang to make

changes to the Work by way of a change order. Under those

circumstances, the price would be “adjusted by the net amount of

any direct savings or direct costs.”

¶ 10 In March 2013, Rain for Rent installed its dewatering system.

In accordance with the experts’ report, the system was designed to

pump 1,000 gallons of water per minute. The subcontract required

Rain for Rent to complete the dewatering process, and produce a

dry site suitable for building, by May 23.

¶ 11 As the deadline approached, however, it became apparent that

Rain for Rent’s dewatering system could not produce a dry site. In

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June, Brikor ordered Rain for Rent to remove the system from the

property.

¶ 12 In the meantime, Brikor went back to its geotechnical engineer

and hydrologist. In a new report issued shortly after the May

deadline, the experts opined that dewatering the site would require

deeper wells that could pump 2,400 gallons of water per minute,

not the 500-1,000 gallons originally recommended.

¶ 13 Based on the experts’ updated analysis, Brikor solicited bids

for the new dewatering system from Rain for Rent as well as a

second subcontractor, Griffin Dewatering North Central, LLC. Rain

for Rent’s $766,000 estimate was rejected in favor of Griffin’s

$505,000 bid. The dewatering was completed in October 2013,

twenty-two weeks after the original deadline.

B. Procedural Background

¶ 14 Litigation ensued: Brikor and Rain for Rent sued each other

for breach of the subcontract. Mustang, as a third-party

beneficiary of the subcontract, sued Rain for Rent for breach of

contract and negligence in an action that was then consolidated

with the initial lawsuit. The negligence claim was later dismissed

under C.R.C.P. 12(b)(5) as barred by the economic loss rule.

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¶ 15 The parties’ claims and counterclaims turned exclusively on

the interpretation of the subcontract: what were Rain for Rent’s

precise obligations and how would it be compensated for the work?

¶ 16 In a pretrial order, the district court ruled that, with respect to

Rain for Rent’s obligations, the contract was ambiguous:

On the one hand, it can be argued that Rain For Rent unconditionally guaranteed to design and install a dewatering system that would achieve a dry excavation hole so the foundation could be installed per the plans and specifications. . . .

On the other hand, the remaining provisions of the Subcontract appear to obligate Rain For Rent only to construct the system as specifically described . . . based on the results of the [experts’ tests]. It is unclear what the parties intended to do if Rain For Rent constructed the system as designed, but it turned out to be inadequate to remove the actual amount of water flowing into the hole (which is exactly the issue). . . . The Subcontract does not expressly define the respective rights of the parties if the underlying groundwater flows upon which the design was apparently premised proved to [be] inaccurate (as they apparently did).

¶ 17 At trial, Brikor and Mustang argued that the subcontract

required Rain for Rent to produce a dry site for a set price of

$250,317, while Rain for Rent argued that the subcontract

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obligated it to design a dewatering system in accordance with the

experts’ report, on a time and materials basis.

¶ 18 At the close of plaintiffs’ case, Rain for Rent moved for a

directed verdict, arguing that because the subcontract was a time

and materials contract, “there can be no breach when [completing

the dewatering] was going to take the time and it was going to take

the cost.” Mustang countered that the subcontract should be

construed as a “fixed price” contract. The court acknowledged that

the meaning of the price term was “kind of where the bones of [the

case] are,” then denied the motion because “the evidence is that we

got sort of indicia of both” and thus the method of compensation

had to be resolved by the jury.

¶ 19 Accordingly, the jury was instructed that “the Contract is

ambiguous, meaning it can be reasonably interpreted in more than

one way. You are to consider all the evidence presented at trial to

determine the meaning of the contract based on the parties’ intent.”

As for damages, the jury instructions explained that to award

general damages on a breach of contract claim, the jury had to find

that the prevailing party “had damages as a result of the breach.”

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¶ 20 Mustang claimed three categories of damages at issue on

appeal: (1) the $161,000 it paid Rain for Rent to install the

dewatering system (reimbursement damages); (2) the difference

between what it paid Griffin to dewater the site and what it had

expected to pay Rain for Rent, which totaled approximately

$258,700 (differential damages); and (3) $400,000 in lost rent due

to the twenty-two-week delay (loss-of-use damages).

¶ 21 After six days of trial, the jury returned verdicts via general

verdict forms and special interrogatories. It found that Rain for

Rent had breached the subcontract “by failing to dewater the site to

achieve a dry hole” but that it had not breached the contract “by

failing to install a dewatering system in compliance with the

specifications in the Subcontract.”1 The jury declined to award any

reimbursement, differential, or loss-of-use damages to Mustang,

but it did award approximately $46,000 for various costs associated

with the delay.

¶ 22 Alleging the relevant facts to be undisputed and its entitlement

to these damages as a matter of law, Mustang moved for an

1 The jury also found that Brikor breached the subcontract. Brikor is not a party to the appeal.

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additional $820,000 of damages notwithstanding the verdict or,

alternatively, a new trial on damages. The district court did not

rule on the motion, and it was deemed denied under C.R.C.P. 59(j).

II. JNOV or Motion for New Trial on Damages

¶ 23 Mustang says the amount of reimbursement damages,

differential damages, and loss-of-use damages was undisputed.

Thus, it contends, once the jury determined that Rain for Rent had

breached the subcontract, it had to award the type and amount of

damages requested. It argues that the court therefore erred by

failing to either grant its motion for JNOV or order a new trial on

damages. We disagree.

A. Judgment Notwithstanding the Verdict

¶ 24 Mustang contends that it is entitled to a JNOV because

“liability is undisputed and the evidence was uncontradicted as to

damages.”

1. Legal Principles and Standard of Review

¶ 25 A JNOV is appropriate only if the evidence is legally

insufficient or there is “[n]o genuine issue as to any material fact

and the moving party [is] entitled to judgment as a matter of law.”

C.R.C.P. 59(e). Thus, a JNOV may not be granted unless the

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evidence, viewed in the light most favorable to the nonmovant,

compels the result the movant seeks. See Nelson v. Hammon, 802

P.2d 452, 454 (Colo. 1990); Vaccaro v. Am. Family Ins. Grp., 2012

COA 9M, ¶ 45. In other words, the evidence must have supported a

directed verdict. Sperry v. Siverts, 505 P.2d 18, 19 (Colo. App.

1972) (not published pursuant to C.A.R. 35(e)).

¶ 26 We review de novo the denial of a motion for a JNOV. Vaccaro,

¶ 40.

2. Application

¶ 27 The jury’s finding that Rain for Rent breached the subcontract

by “failing to dewater the site to achieve a dry hole” is not sufficient

to entitle Mustang to a JNOV on damages. Even where a jury finds

in the movant’s favor on liability, a JNOV on damages is not

warranted unless “the supporting evidence both as to liability and

as to the amount of damages is uncontradicted and unimpeached.”

Peterson v. Rawalt, 95 Colo. 368, 373, 36 P.2d 465, 467 (1934).

¶ 28 Mustang says that because Rain for Rent does not dispute

liability on appeal, liability is now undisputed. But the question is

whether at trial the evidence of liability was undisputed. It was not.

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¶ 29 The district court concluded that the subcontract was

ambiguous, and that a reasonable jury could find that Rain for Rent

did not breach the contract because its only obligation was to

install the dewatering system in accordance with the experts’

report. Consistent with the court’s ruling, the jury was instructed

that the contract was ambiguous, and that its meaning was a

question of fact. (Neither the court’s ruling nor the instruction is

challenged on appeal.)

¶ 30 The jury ultimately determined that Rain for Rent had

installed the dewatering system in compliance with the

subcontract’s specifications. So if it had agreed with Rain for Rent

that installation of a compliant system was Rain for Rent’s only

obligation, a finding permitted by the terms of the contract, the jury

could have found in favor of Rain for Rent on Mustang’s claim.

¶ 31 Thus, evidence of liability was neither “uncontradicted” nor

“unimpeached,” and Mustang was not entitled to a JNOV on

damages.

B. New Trial on Damages

¶ 32 Alternatively, Mustang contends that the jury’s award of $0 in

reimbursement, differential, and loss-of-use damages was

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inadequate and unsupported by the evidence, and it is therefore

entitled to a new trial on damages.

1. Legal Principles and Standard of Review

¶ 33 A district court has discretion to order a new trial because of

excessive or inadequate damages. Averyt v. Wal-Mart Stores, Inc.,

265 P.3d 456, 462 (Colo. 2011). Still, the proper award of damages

is within the sole province of the jury, and its award should not be

disturbed “unless it is completely unsupported by the record.” Id.

¶ 34 We review the denial of a motion for a new trial based on

inadequate damages for an abuse of discretion. D.R. Horton, Inc.-

Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1273

(Colo. App. 2009). On review, our task is to reconcile the verdict

with the evidence if at all possible. Lee’s Mobile Wash v. Campbell,

853 P.2d 1140, 1143 (Colo. 1993). To that end, we view the

evidence in the light most favorable to the verdict to determine if

there is any basis for the verdict. Id. If the damages awarded can

be supported under any legitimate theory, we may not overturn the

award. Husband v. Colo. Mountain Cellars, Inc., 867 P.2d 57, 60

(Colo. App. 1993).

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2. Application

¶ 35 At trial, Mustang’s position was that Rain for Rent had agreed

to dewater the building site for a fixed price of $250,317. Rain for

Rent then breached the agreement by designing and installing a

noncompliant dewatering system, which resulted in a failure to

achieve a dry site by the deadline. That failure caused a delay in

the project of about five months, so instead of being completed in

October 2016, the home was not finished until March 31, 2017.

¶ 36 Based on that theory of the case, Mustang asked for

reimbursement of the $161,000 it had paid Rain for Rent, as well as

the difference between what it paid Griffin to dewater the site

($509,000) and what it agreed to pay Rain for Rent to do the work

($250,317). Mustang also sought loss-of-use damages, arguing that

if the house had been completed in October, it could have been

rented during the peak winter months for $400,000.

¶ 37 Mustang contends that having found a breach, the jury

necessarily had to award all of the requested damages. But in our

view, looking at the evidence in the light most favorable to Rain for

Rent, there is a basis for the verdict.

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¶ 38 True, if the jury had found that the subcontract provided for a

fixed price, then it should have calculated differential damages in

accordance with Jury Instruction Number 28. But the jury could

have found, on this evidence, that the subcontract was not a fixed

price contract, but a time and materials contract. As the court

said, the subcontract contained terms consistent with both types of

contracts.

¶ 39 From there, and because the jury specifically concluded that

Rain for Rent had not breached the contract by installing a

noncompliant dewatering system, the jury could reasonably have

found that Rain for Rent was entitled to the $161,000 in time and

materials that it had collected for installation of the initial

dewatering system.

¶ 40 It could also have found that Mustang had not incurred any

differential damages as a result of Rain for Rent’s breach. Indeed,

the jury might then have faced the precise predicament the district

court anticipated: what if Rain for Rent had constructed the system

as designed, but it turned out to be inadequate to remove the actual

amount of water flowing into the hole? And what if the reason the

dewatering system was inadequate was because the experts’

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assumptions, on which the system’s design was premised, proved to

be inaccurate?

¶ 41 The jury could have found that although Rain for Rent had

guaranteed a dry building site by a certain date, it did not

guarantee delivery for a fixed price. Thus, when Rain for Rent’s

compliant dewatering system was inadequate to achieve the

subcontract’s objective, and the experts recommended installation

of a new system, Mustang had to pay the cost of changing course.

It could have retained Rain for Rent by issuing a change order, but

that would have cost $766,000. So the cost to hire Griffin

represented a savings.

¶ 42 The problem for Mustang is that its argument depends on the

jury finding a fixed price contract. And we are not convinced that

the subcontract’s “guarantee” language, or the jury’s finding of a

breach, is irreconcilable with a determination that the subcontract

was a time and materials contract.

¶ 43 Nor do we agree that Jury Instruction Number 28 somehow

compelled the jury to find a fixed price contract. The instruction

explained that, in calculating any differential damages, the jury

should determine the “reasonable cost to Mustang of completing the

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dewatering project according to the contract” and then subtract the

“unpaid balance of the contract price.” Mustang says that because

the instruction uses the term “contract price” to, presumably, refer

to the $250,317 set forth in the subcontract, the instruction settled

the question of whether the subcontract was a fixed price or time

and materials contract. Because jury instructions generally do not

resolve key factual disputes, we read the instruction differently. In

our view, the “reasonable cost . . . according to the contract”

language leaves open the possibility that the subcontract was a

time and materials contract. The language contemplates that the

“reasonable cost . . . according to the contract” is something other

than the original $250,317 estimate or even the $509,000 paid to

Griffin; otherwise the instruction would have defined the

“reasonable cost . . . according to the contract” for the jury. In

other words, as Rain for Rent argued at trial, the “reasonable cost

to Mustang for completing the dewatering project” under a time and

materials contract might be up to $766,000. Reading the

instruction as a whole, the “contract price” language is best

understood as a simple shorthand reference to the only price

number in the subcontract.

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¶ 44 Finally, we turn to the loss-of-use damages. Mustang says

that its expert evidence of rental value was uncontested, as was the

length of the delay; therefore, it argues, the jury should have

awarded it the $400,000 it requested.

¶ 45 True, Rain for Rent agreed that the project was delayed for

twenty-two weeks. But it did not agree that it was responsible for

the delay — that issue was sharply disputed.

¶ 46 Rain for Rent’s witness testified that if Mustang had simply

allowed Rain for Rent to install the new dewatering system as soon

as it became apparent that the initial system was inadequate, the

delay would not have exceeded two weeks. Thus, there was

evidence on which the jury could reasonably have relied to find

that, of the twenty-two-week delay from mid-October 2016 to the

end of March 2017, only a short period on either end (in October or

March) was attributable to Rain for Rent. Mustang’s real estate

expert, though, limited her estimate of damages to the winter

season and testified that comparable homes are rarely rented in the

“shoulder season” before and after winter. Thus, the jury could

reasonably have found no basis for awarding Mustang loss-of-use

damages.

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¶ 47 We perceive no inconsistency between the jury’s refusal to

award loss-of-use damages and its award of $46,000 in other delay

damages. Those costs were supported by evidence. In any event, to

the extent Mustang is challenging the verdicts as inconsistent, it

had to raise that objection before the jury was discharged. See,

e.g., Morales v. Golston, 141 P.3d 901, 905 (Colo. App. 2005) (“If a

party fails to object before the jury is discharged, it waives any

future challenge to the inconsistency because its failure to object

timely deprives the court of the option of sending the jury back for

further deliberations.”); see also C.R.C.P. 49(b) (procedures for

general verdict with special interrogatories).

¶ 48 In sum, because the evidence provides a basis for the jury’s

award of damages, the court did not err by denying the motion for a

JNOV or a new trial.

III. Economic Loss Rule

¶ 49 Mustang contends that, alternatively, the trial court erred by

dismissing its negligence claim under the economic loss rule.

Again, we disagree.

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¶ 50 Dismissal of a claim under the economic loss rule is a

question of law that we review de novo. Van Rees v. Unleaded

Software, Inc., 2016 CO 51, ¶ 9.

¶ 51 Under the economic loss rule, “a party suffering only economic

loss from the breach of an express or implied contractual duty may

not assert a tort claim for such a breach absent an independent

duty of care under tort law.” Town of Alma v. AZCO Constr., Inc., 10

P.3d 1256, 1264 (Colo. 2000).

¶ 52 It is undisputed that Mustang was a third-party beneficiary to

the subcontract and was therefore, as a general matter, subject to

the economic loss rule. See S K Peightal Eng’rs, LTD v. Mid Valley

Real Estate Sols. V, LLC, 2015 CO 7, ¶ 7. But Mustang maintains

the economic loss rule does not apply because Rain for Rent

breached an independent tort duty.

¶ 53 Two types of independent duties can render the economic loss

rule inapplicable. Id. at ¶ 19. “First, any general tort duty is

independent of contractual duties if the contract contains no duties

or the allegedly breached tort duty is beyond the scope of the duties

contained within the contract at issue.” Id. at ¶ 20. Second,

certain judicially recognized special relationships — for example,

20

lawyer-client, physician-patient, and insurer-insured —

automatically trigger independent duties of care, even if an identical

duty is memorialized in the contract. Id. at ¶ 21.

¶ 54 We agree with the trial court that neither type of independent

duty is present here.

¶ 55 In its complaint, Mustang alleged that Rain for Rent breached

its “independent duty of care to perform its work in a competent,

professional, and non-negligent manner.” But that is not beyond

the scope of the duties contained within the subcontract, which, as

the trial court reasoned, “clearly defines the scope of [Rain for

Rent]’s duty with regard to the dewatering system it installed.” The

subcontract contains several provisions delineating Rain for Rent’s

duty of care in performing its work, for example:

• “The Work shall be performed by Subcontractor in a good

and workmanlike manner strictly in accordance with the

Subcontract along with the Rain For Rent Estimate 10-086-

521254 attached hereto as Exhibit A.”

• “Subcontractor shall . . . comply with all statutes,

ordinances, rules, regulations and orders of any government

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or quasi-governmental authority having jurisdiction over the

Work or the performance thereof . . . .”

• “All workmanship and materials shall be first class and of

the highest quality in every respect and shall be performed

only by skilled mechanics, recognized as such in their

respective trades.”

• “Subcontractor is responsible for Dewatering Design &

Performance to insure [sic] bottom of excavation is free from

standing water so Foundation System can be constructed

per Plans & Specifications.”

• “Subcontractor has designed and engineered Dewatering

System and will guarantee performance of such to enable

Brikor the ability to construct Foundation and Waterproof

Systems per Plans & Specifications.”

• “Subcontractor & Subcontractor’s Engineers reviewed the

results of the Slug Testing and Dewatering Estimates

provided by HP Geotech dated May 26, 2011, Job #110-

280B and has designed and specified a Dewatering System

that complies and exceeds the Dewatering demands of

Stated Report.”

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¶ 56 Still, Mustang contends the economic loss rule is inapplicable

because these provisions do not “expressly memorialize” the

professional duty of care Rain for Rent owed as an engineer, relying

primarily on BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo.

2004), rev’g 74 P.3d 380 (Colo. App. 2002). We disagree with

Mustang’s reading of BRW in two key respects.

¶ 57 First, we reject Mustang’s assertion that the economic loss

rule is inapplicable to any tort duty not expressly memorialized by

the contract. True, BRW held that the economic loss rule applied to

a tort duty that was memorialized by the contract. 99 P.3d at 74.

But if the inverse were unqualifiedly true, parties would lack any

freedom to contractually alter their liability in tort, rendering the

economic loss rule meaningless. See Good Time Rental, LLC v. First

Am. Title Agency, Inc., 259 P.3d 534, 537 (Colo. App. 2011) (“When

sophisticated parties have bargained for the allocation of risks and

remedies for nonperformance, [the economic loss rule] prevents

unanticipated tort liability from undermining their reliance on their

bargain.”); cf. S K Peightal, ¶ 21 (parties cannot contractually alter

an independent duty arising from a special relationship).

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¶ 58 Second, we disagree that the recognition of an independent

duty owed by professional engineers in the decision below in BRW,

see 74 P.3d at 383, was left undisturbed by the supreme court’s

decision. To the contrary, the supreme court made clear that the

“economic loss rule requires the court to focus on the contractual

relationship between the parties, rather than their professional

status, in determining the existence of an independent duty of

care.” 99 P.3d at 67-68 (emphasis added). And it has since

clarified that it has “never recognized the duty at issue in [BRW] —

involving licensed engineers’ obligations to contractors and

subcontractors in drafting and preparing plans and specifications

— as a special independent tort duty.” S K Peightal, ¶ 21 n.9.

¶ 59 Accordingly, we conclude that Mustang’s negligence claim

does not implicate a duty beyond the scope of the subcontract, the

first type of independent duty excepted from the economic loss rule.

See, e.g., Town of Alma, 10 P.3d at 1265 (“No common law duty of

care independent of the contract exists here” because “the contract

in this case specifically imposes a duty of care concerning AZCO’s

skill and workmanship in installing the water system.”).

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¶ 60 As for the second type, Mustang admits that no previously

recognized special relationship gives rise to an independent duty in

this case. Instead, it invites us to recognize, for the first time, a

special relationship between engineers and homeowners. “The

special relationships recognized in Colorado, and they are few,

share the same characteristic: each implicates a risk of damages to

interests that contract law is not well suited to protect.” Good Time

Rental, 259 P.3d at 540. Because Mustang’s purely economic loss

presents no such interest, we decline to recognize a new special

relationship in this case. See, e.g., S K Peightal, ¶¶ 24-25 (declining

to expand special relationship between construction professionals

and subsequent homebuyers to subsequent homeowner with

contractual recourse); Stan Clauson Assocs., Inc. v. Coleman Bros.

Constr., LLC, 2013 COA 7, ¶ 24 (declining to recognize, for the first

time, an independent professional duty of land planners).

¶ 61 In any event, Mustang concedes that the damages it sought to

recover in negligence were identical to the damages it sought for

Rain for Rent’s breach of the subcontract. Thus, even if we

assumed that the trial court erred by dismissing Mustang’s

negligence claim, the error would be harmless. See Nieto v. State,

25

952 P.2d 834, 844 (Colo. App. 1997) (harmless error to dismiss

claim that would not permit recovery of additional damages), aff’d

in part, rev’d in part on other grounds, 993 P.2d 493 (Colo. 2000); cf.

Logixx Automation, Inc. v. Lawrence Michels Family Tr., 56 P.3d

1224, 1232 (Colo. App. 2002) (harmless error to allow jury to

consider claim barred by economic loss rule where contract claim

allowed for identical damages).

¶ 62 For these reasons, we conclude that Mustang is not entitled to

a separate trial on its negligence claim, which the trial court

properly dismissed under the economic loss rule.

IV. Conclusion

¶ 63 The judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three days after entry of the judgment. In worker’s compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect. Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the mandate until the Supreme Court has ruled on the Petition. BY THE COURT: Steven L. Bernard Chief Judge DATED: December 27, 2018

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