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The trial court entered judgment in favor of Whiting-Turner against surety GCNA, finding that Whiting-Turner satisfied the condition precedent in the performance bond and GCNA breached its obligations. The Colorado Court of Appeals affirmed the trial court's judgment.
Construction Performance Surety Bonds—Conditions Precedent—Balance of the Contract Price—Attorney Fees. Whiting-Turner Contracting Co. (Whiting-Turner) was the general contractor for an office building construction project (the Project). Whiting-Turner entered into an agreement with Klempco Construction (Klempco) for Klempco's construction of an anchor system at the Project's underground parking garage (the Subcontract). Klempco's work included the installation of sprayed concrete (shotcrete) to support the anchoring system. The Subcontract price was $1,785,783. Whiting-Turner required Klempco to furnish a performance bond and a payment bond. Klempco obtained the bonds from Guarantee Company of North America USA (GCNA). The bonds specified three conditions precedent that Whiting-Turner would have to satisfy to trigger GCNA's obligations as surety, one of which was to pay the balance of the contract price in accordance with the Subcontract to GCNA or a contractor selected to perform the Subcontract. The "balance of the contract price" was defined as the total amount payable by Whiting-Turner to Klempco under the Subcontract "after all proper adjustments have been made, . . . reduced by all valid and proper payments made to or on behalf of [Klempco] under the [Subcontract]." Klempco immediately fell behind schedule and stopped paying its sub-subcontractors, and directed Whiting-Turner to assume responsibility for the shotcrete installation and to work directly with two of its sub-subcontractors. Whiting-Turner sent Klempco and GCNA a letter declaring Klempco in default. Following a meeting between Whiting-Turner, Klempco, and GCNA, the Subcontract price was reduced by $553,707, which was the price of the shotcrete work to be performed by Whiting-Turner. Klempco then notified Whiting-Turner that it was demobilizing from the Project. Whiting-Turner requested advice from GCNA, but GCNA did not respond. Whiting-Turner terminated the Subcontract following Klempco's default
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Plaintiffs were formerly employed as truck drivers for JP Trucking, Inc. (JP Trucking). They filed a complaint alleging that JP Trucking failed to pay them time and a half as required by the Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage Order No. 31 (Wage Order). Following a bench trial, the trial court found for plaintiffs and awarded them damages. JP Trucking appealed, and another Court of Appeals division concluded it could not resolve the appeal without further factual findings. On remand, the trial court found that plaintiffs were exempt from overtime under FLSA's Motor Carrier Act (MCA) exemption. However, the trial court also found that because plaintiffs either did not drive out of state or their out-of-state driving was de minimis, they were not "interstate drivers" under the Wage Order. The court awarded plaintiffs damages under the Wage Order along with reasonable fees and costs. On appeal, JP Trucking contended that the trial court interpreted "interstate drivers" in the Wage Order too narrowly. FLSA sets federal minimum wage and overtime requirements for certain employees nationwide, while the Wage Order sets the minimum wage and overtime pay requirements for Colorado employees who work in certain industries. The Wage Order provisions are largely patterned after FLSA, and the Wage Order exemption includes employees who are subject to the MCA exemption, which exempts from the foregoing requirements drivers who transport goods in interstate commerce. Here, the trial court's findings on limited remand established that plaintiffs are subject to the MCA exemption, and JP Trucking satisfied its burden of proving that it transported goods in interstate commerce. Accordingly, plaintiffs are exempted from overtime pay. The judgment was reversed and the case was remanded with directions to enter judgment in favor of JP Trucking and to vacate the damages award.
Claimant is a firefighter for the City and County of Denver (the City). In July 2013, he was diagnosed with cancer, and on July 24, 2013, he advised the City of his cancer diagnosis and asserted his belief that the melanoma was related to or caused by his work as a City firefighter. Claimant filed an application for hearing on October 6, 2017, seeking medical and temporary total disability benefits. The City admitted compensability, but asserted a statute of limitations defense, arguing that the claim was barred because claimant filed his application more than four years after learning of his melanoma and reporting it to the City. A panel of the Industrial Claim Appeals Office (Panel) agreed with the City, and the claim was dismissed as time barred. On appeal, claimant contended that the Panel misinterpreted the applicable statute of limitations, CRS § 8-43-103(2). He argued that the City had adequate notice of his intent to pursue compensation through the Division of Workers' Compensation's (Division) assignment of a claim number to the case, the City's filing of certain forms, and his filing of several documents. CRS § 8-43-103(2) requires a claimant seeking workers' compensation to file a "notice claiming compensation" within two years of discovering the work-related nature of the claimant's injuries, or within three years if the claimant can establish a reasonable excuse for late filing and the employer suffered no prejudice as a result. The Division's assignment of a claim number does not satisfy a claimant's obligation to notify the Division and the employer of his or her intent to seek compensation, and none of the documents claimant points to specifies that claimant was seeking compensation as that term is defined in CRS § 8-43-103. Based on claimant's admission that he knew in 2013 that his firefighting duties may have caused his melanoma, he needed to file his claim by 2015 to comply with the two-year statute of limitations, or by 2016 if he could establis
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