John Mill Testifies In Support Of The Construction Industry
In the 2023 legislative session, John Mill testified against a bill that would have had serious negative consequences for the construction industry in Colorado. As introduced, House Bill 23-1192 would have made significant changes to the Colorado Consumer Protection Act (“CCPA”), C.R.S. § 6-1-101 et seq. The CCPA allows a prevailing plaintiff to recover attorneys’ fees and in some circumstances treble damages. The proposed bill would have:
- Eliminated the “public impact” requirement established by the Colorado Supreme Court in Hall v. Walter, 969 P.2d 224 (Colo. 1998). This requires a CCPA plaintiff to prove that the challenged act or practice had a significant impact on the public as actual or potential consumers of the defendant’s goods, services or property. For twenty-five years, this requirement has served to limit CCPA claims to those that involve a deceptive act or practice that broadly impacts the public. The proposed bill would have allowed plaintiffs to bring CCPA claims, with the threat of attorneys’ fees and treble damages, in private disputes between two parties that had no impact on other members of the public.
- Eliminated the requirement in current law that a CCPA defendant acted with a culpable mental state, i.e., acted knowingly or recklessly. This would have turned innocent mistakes—where the defendant did not intend to deceive and did not act recklessly—into CCPA claims.
In sum, the bill would have exposed reputable, honest contractors and developers to punitive CCPA claims carrying the risk of treble damages and attorneys’ fees. This would have increased the risk of construction defect claims, created a bigger disincentive to build condominiums and exacerbated the housing shortage in Colorado.
On February 28, 2023, John Mill testified against the bill on behalf of the Associated General Contractors of Colorado (“AGC”) at a hearing before the House Judiciary Committee. John emphasized that the CCPA changes in the bill would be a step backward from the legislature’s effort in 2017 in House Bill 17-1279 to ease the risk of construction defect claims.
The House passed House Bill 23-1192 with the problematic CCPA provisions. In the Senate, however, the Senate Judiciary Committee voted 3-2 to delete the CCPA provisions from the bill. Before adjourning on May 8, 2023, the legislature passed the bill without the CCPA provisions. The bill as passed, dealing with antitrust, has been sent to the Governor and is expected to be signed into law.
The successful effort to prevent every contract dispute and every construction defect claim from becoming a CCPA claim subject to attorneys’ fees and the threat of treble damages is a big win for the construction industry in Colorado.
John is a member of AGC’s legislative committee. For many years, he has followed, written about and testified on legislation regarding construction defects and other issues affecting the Colorado construction industry.
