Manufacturer Liability According to Statute of Repose Colorado
The question is whether a manufacturer who has also designed and installed an allegedly defective product in an improvement to real property is exempt from liability under 13-80-104 six years after the substantial completion of the improvement.
The supreme court considered a similar question in Anderson v. M.W. Kellogg Co., 766 P.2d 637 (Colo. 1988) (interpreting predecessor statute substantially identical in pertinent part).
There, the plaintiff had contended that the defendant, who had overseen the design, construction, assembly, and installation of a conveyor, was only a manufacturer and was therefore not protected by the construction statute of repose.
The court rejected the contention, stating that it was not concerned with "subtle distinctions" between the defendant's role as a "manufacturer" and its conduct as a "contractor" or "builder" of the conveyor.
The facts showed that the defendant there was performing the conduct described by the statute, i.e., "furnishing the design, planning, supervision, inspection, construction, or observation of construction of . . . an improvement to real property." See 13-80-104(1)(a).
The court concluded that, because defendant's conduct fell within the activities protected under the statute, it was protected by the statute of repose and plaintiff's action was barred. See also Two Denver Highlands Limited Partnership v. Dillingham Construction N.A., Inc., 932 P.2d 827 (Colo. App. 1996) (defendant who prepared and poured concrete for garage at issue here was protected by 13-80-104 because of involvement in activity relating to building of a structure).
The plaintiff in Anderson did not assert a products liability claim, as plaintiff has done here.
Accordingly, relying on cases from other jurisdictions, plaintiff maintains that a construction statute of repose, such as that here, is not intended to exempt certain classes of manufacturers from products liability actions merely because they manufactured a product used in an improvement to real property. See Luzadder v. Despatch Oven Co., 834 F.2d 355 (3d Cir. 1987) (to immunize a manufacturer who happened to have its product attached to real property by another person would "cut the heart out" of state's products liability law).