Assistant House Minority Leader Cole Wist, a Centennial Republican, says he’s committed to both of the bipartisan construction-defects bills before the Legislature despite concerns expressed by a coalition of business leaders, adding that his decades of experience as a high-stakes litigator lead him to believe an agreement could be at hand.
“There’s probably a reason why this issue hasn’t gotten solved these last few years, and that’s because people have strongly held beliefs,” Wist told The Colorado Statesman after sponsors pushed back a committee hearing on House Bill 1279 on Wednesday.
Wist is at the center of negotiations on a package of bipartisan bills attempting to tackle long-simmering complaints by builders that it’s too easy for condominium associations to file multi-million dollar class action lawsuits over defective construction, virtually grinding that market segment to a halt in Colorado in recent years.
Wist’s counterpart across the aisle, Assistant House Majority Leader Alec Garnett, D-Denver, asked to postpone the initial hearing on House Bill 1279 by a week after the Homeownership Opportunity Alliance’s policy committee voted to oppose the legislation in its current form. It would mandate that a complaint against condominium builders over construction problems could only move ahead after winning approval from a majority of a project’s homeowners — after they’ve been fully informed about the likely costs, duration and possible side-effects of filing a lawsuit.
The HOA coalition — it includes builders, business and economic development organizations, affordable-housing advocates and civic leaders — wants to remove a provision in the legislation that would extend the time condo owners could take before deciding to pursue a complaint. A frustrated Garnett has called it a “de minimus” sticking point and questioned whether the coalition really wants to resolve the problem.
Wist had a more measured reaction.
“While we still have some work to do, I’m not fazed by that, I’m not disappointed by that and I’m not discouraged by that,” he said. “I think taking an extra week to continue the dialogue is a good thing.”
“We have made so much progress on items that have not been solved in prior sessions,” Wist added. “I think the clock and the calendar are on our side, we still have some time to get this done.”
Garnett and House Minority Whip Lori Saine, R-Dacono, are the prime House sponsors and Wist is a key co-sponsor of House Bill 1279. The bill is sponsored by Senate Minority Leader Lucia Guzman, D-Denver, and state Sen. Jack Tate, R-Centennial, in the other chamber.
Wist is also a prime sponsor — along with House Speaker Crisanta Duran, D-Denver, Senate President Kevin Grantham, R-Cañon City, and state Sen. Angela Williams, D-Denver — of Senate Bill 45, which the HOA coalition announced this week it’s opposing. That bill would change the way insurance companies allocate defense costs among builders and various contractors and subcontractors when construction-defects claims are filed.
The bill passed one Senate committee early in the session and has been idling before another since.
“I am committed to that bill,” Wist said, calling it a crucial part of the solution, along with the House bill and a pending Colorado Supreme Court decision concerning condominium documents that require alternative-dispute resolution to resolve construction complaints.
“House Bill 1279 is talking about what needs to happen leading up to a complaint and informed consent, and Senate Bill 45 is talking about the circumstance of post-litigation filing,” Wist said. “I think they’re both critical pieces of this, but they’re independent buckets that shouldn’t be connected. I think both bills are important to the success of this effort.”
Democrats have opposed requiring homeowners’ associations to submit to arbitration or mediation —Wist is also sponsoring another bill, Senate Bill 156, that would do just that, but Duran has assigned it to the House “kill committee” — because it deprives condo owners of their right to a day in court to protect what’s often their most valuable asset. Their opponents argue that class-action lawsuits are simply too lucrative for trial lawyers, a powerful Democratic constituency, to give up.
Wist noted that the Legislature might need to revisit questions surrounding arbitration or other alternatives to lawsuits following a looming high court ruling in the Vallagio at Inverness Residential Condominium Association, Inc., v. Metropolitan Homes, Inc., et al., case.
“But for now,” Wist said, “I think 1279 and 45 are excellent steps in the right direction.”
Calling him a “valued partner,” Wist added that Garnett deserves accolades for the work he’s done attempting to bridge longstanding divides on the issue.
But Wist said he wasn’t surprised that negotiations appear to have reached an impasse.
“One of the reasons that I talked about us doing this early in the session was because I knew we would get to this point,” he said. “I knew we would get to a point where people would say, ‘We’re not going to get there, we have hit a wall.’”
He said the more than two decades he’s worked as a litigator — he represents management in labor and employment law at Ogletree Deakins Nash Smoak & Stewart’s Denver office and, before that, worked in the same field at Holland & Hart — give him confidence that today’s dust-up could be tomorrow’s handshake.
“I’ve been involved in difficult cases,” he said. “People say, ‘We’re done, we can’t reach an agreement.’ In those cases, when push comes to shove, and parties are evaluating what the cost of not reaching a compromise is, they reach a compromise. And I think that’s going to happen here. Our failure to act will produce a result that our constituents don’t want, and I don’t think it is in the best interests of our economy, and we’ll be held accountable for that.”
Noting that the Legislature has grappled with construction-defects reform legislation for years — the disputes were so acrimonious last session that lawmakers didn’t even introduce legislation — Wist said it’s time to fix the problem.
“The cost of not acting here is high. I’m optimistic when we get to that point that the divide will be bridged, because the failure to act this year is not an acceptable option,” he said. “Maybe that makes me unrealistic. But this is a tough policy issue, and we owe it to the citizens of this state to keep working and keep trying, and that’s what I’ll do.”