Lumen Technologies Service Group, LLC v. CEC Group LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-00253-NYW-KAS
LUMEN TECHNOLOGIES SERVICE GROUP, LLC f/k/a CENTURYTEL SERVICE
GROUP, LLC,
Plaintiff,
v.
CEC GROUP, LLC f/k/a COMMUNICATIONS ENGINEERING CONSULTANT, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant’s Renewed Motion for Summary
Judgment (the “Motion” or “Motion for Summary Judgment”). [Doc. 91]. 	The Court has
reviewed the Motion and the related briefing, the applicable case law, and the record
before the Court. 	For the reasons set forth in this Order, the Motion for Summary
Judgment is respectfully DENIED.
BACKGROUND
The Court has set out the background of this case in prior orders, see [Doc. 76;
Doc. 88], and repeats only a limited portion of the general background here. 	This case
arises 	out 	of 	a 	Master 	Agreement 	(the 	“Agreement”) 	between 	Plaintiff 	Lumen
Technologies Service Group, LLC (“Plaintiff” or “Lumen”) and Defendant CEC Group, LLC
(“Defendant” or “CEC”). 	[Doc. 8 at ¶ 1]. 	Broadly speaking, Plaintiff alleges that
Defendant, 	through 	its 	subcontractor, 	breached 	the 	Agreement 	by 	furnishing 	an
inadequate structural engineering analysis of a building Lumen sought to purchase. [Id.
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at ¶¶ 2–6]. Plaintiff asserts claims for breach of contract, breach of warranty, and breach
of express indemnity. [Id. at ¶¶ 30–47].
This case has been through multiple rounds of summary-judgment briefing,1 and
the Court has determined as a matter of law that Defendant is liable under the Agreement
to 	the 	extent 	Plaintiff 	was 	damaged 	by 	the 	acts 	or 	omissions 	of 	Defendant’s
subcontractor. [Doc. 76 at 15–16]. Defendant now moves for summary judgment on all
of Plaintiff’s claims, arguing that Plaintiff’s claims are time-barred. 	[Doc. 91]. 	The
question presented in the Parties’ briefs is whether the Agreement’s Delaware choice-of-
law provision requires application of Delaware’s statute of limitations to Plaintiff’s claims,
as Plaintiff contends, or whether another state’s statute of limitations applies—such as
Florida’s, as Defendant contends. See [Doc. 91; Doc. 94; Doc. 96]. The Court addresses
the Parties’ arguments below.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
warranted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	“A
1 In November 2024, the Court concluded that it could not answer the choice-of-law
question on the then-pending summary judgment briefing and ordered additional briefing
addressing two questions, including one related to § 187(1) of the Restatement (Second)
Conflicts of Law. [Doc. 76 at 12–14]. After the Parties submitted that additional briefing,
the Court slightly amended its prior ruling and held that Colorado has not expressly
adopted § 187(1) of the Restatement. 	[Doc. 88 at 7–10]. 	But the Court still concluded
that it could not definitively decide the choice-of-law question based on the Parties’ briefs.
[Id. at 10–14]. 	Accordingly, the Court found it appropriate to grant Plaintiff’s Motion to
Submit Additional Evidence and require the Parties to submit entirely new summary
judgment briefing. [Id. at 14–17]. The Parties have now done so. The Court appreciates
the Parties’ efforts in litigating this case and in making well-presented arguments
addressing a difficult and complex legal question.
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dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve
the issue either way. A fact is material if under the substantive law it is essential to the
proper disposition of the claim.” 	Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194
(10th Cir. 2011) (cleaned up).
A movant that does not bear the ultimate burden of persuasion at trial does not
need to disprove the other party’s claim; rather, the movant must only point the Court to
a lack of evidence for the other party on an essential element of that party’s claim. Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986)). Once this movant has met its initial burden, the
burden then shifts to the nonmoving party to “set forth specific facts showing that there is
a genuine issue for trial.” 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(quotation omitted). 	But “if the moving party has the burden of proof [at trial], a more
stringent summary judgment standard applies.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th
Cir. 2008). A moving party who bears the burden at trial “must establish, as a matter of
law, all essential elements of the issue before the nonmoving party can be obligated to
bring forward any specific facts alleged to rebut the movant’s case.” Id.
When considering the evidence in the record, the Court cannot and does not weigh
the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d
1147, 1165 (10th Cir. 2008). At all times, the Court views each motion in the light most
favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323,
1326 (10th Cir. 2019).
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UNDISPUTED MATERIAL FACTS
The following facts are drawn from the summary judgment record and are
undisputed unless otherwise noted:
1. 	Plaintiff and Defendant entered into the Agreement in 2016. 	[Doc. 91 at
¶ 17; Doc. 94 at 4 ¶ 18;2 Doc. 91-7].
2. 	The Agreement contains a choice-of-law provision that states: 	“This
Agreement and the rights and obligations of the parties are governed by the laws of the
State of Delaware without regard to any conflict of laws principles.” [Doc. 91 at ¶ 18; Doc.
94 at 4 ¶ 19; Doc. 91-7 at 2 § 14.8 (emphasis omitted)].
3. 	Pursuant to the Agreement, CEC agreed to provide Lumen a structural
analysis of the loading capacity of the floors of a Florida building that Lumen was
considering purchasing. [Doc. 91 at ¶¶ 1–2; Doc. 94 at 2–3 ¶¶ 1–2;3 Doc. 8 at ¶¶ 2, 14,
16].
4. 	CEC hired an engineering firm to perform the structural analysis, and that
firm provided an opinion about the load capacity of the Florida building’s floors. [Doc. 91
at ¶¶ 3, 6; Doc. 94 at 3 ¶¶ 4, 7; Doc. 8 at ¶ 19; Doc. 91-2].
5. 	In February 2020, a portion of the second-floor slab at the Florida property
“collapsed.” [Doc. 91 at ¶ 13; Doc. 94 at 4 ¶ 14; Doc. 8 at ¶¶ 5, 26].
2 On page 3 of its Response, Lumen appears to begin misnumbering its responses to
Defendant’s statement of undisputed material facts. 	See [Doc. 94 at 2–3]. 	From the
Court’s review, however, Plaintiff’s responsive paragraphs are off by just one number,
and the Court is able to ascertain which of Defendant’s affirmative assertions correspond
with Plaintiff’s responsive assertions.
3 Although Plaintiff disputes certain portions of Defendant’s assertions, Plaintiff does not
dispute that CEC agreed to provide a loading capacity analysis of the building. See [Doc.
94 at 2–3 ¶¶ 1–2].
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6. 	Plaintiff alleges that Defendant breached the Agreement by providing an
incorrect estimate of the second floor’s structural capacity. [Doc. 91 at ¶ 16; Doc. 94 at 4
¶ 17; Doc. 91-5 at ¶ 7].
ANALYSIS
As previewed above, the question presented to the Court in Defendant’s summary
judgment motion is which state’s law supplies the statute of limitations for Plaintiff’s
claims. 	See [Doc. 91 at 8]. 	Defendant argues that a two-year statute of limitations
codified by Florida statute applies to Plaintiff’s claims. 	[Id. at 8–16]. 	Defendant’s
argument goes as follows: 	notwithstanding the choice-of-law provision, the Court must
apply Colorado conflict-of-law rules. 	[Id. at 8]. 	Defendant recognizes that, under
Colorado law, if a claim is based on the substantive law of another state, that other state’s
statute of limitations also typically applies to the claim. 	[Id.]. 	But, Defendant asserts,
under Colorado’s borrowing statute—Colo. Rev. Stat. § 13-80-110—a cause of action
that arose in another state cannot be asserted in Colorado if the action could not be
maintained in that other state. [Doc. 91 at 8–9]. Defendant argues that Plaintiff’s claims
arose in Florida and concludes that because Plaintiff’s claims would be deemed untimely
if filed in Florida, then the borrowing statute bars Plaintiff’s claims in this case. [Id. at 9–
12].
Lumen disagrees. 	It contends that the Parties agree that the choice-of-law
provision is valid and enforceable, and as a result, no traditional conflict-of-law analysis
is necessary. 	[Doc. 94 at 8–11]. 	In support, it relies on the Restatement (Second) of
Conflict of Laws (A.L.R. 1971) (the “Restatement”), which provides that the law chosen
by the Parties “will be applied” unless the chosen state has no substantial relationship to
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the parties or the transaction and there is no other reasonable basis for the parties’ choice,
or the parties’ choice contravenes a fundamental policy of the state whose law would
otherwise apply. 	[Id.]; Restatement § 187(2); Wood Bros. Homes, Inc. v. Walker
Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979) (adopting the Restatement for
contract actions). 	Plaintiff also directs the Court to the Agreement’s express language,
which provides that the choice-of-law provision governs the rights of the Parties “without
regard to any conflict of law[s] principles.” 	[Doc. 94 at 10]. 	Plaintiff maintains that
Colorado law requires this Court to apply the law chosen by the Parties, and asserts that
Defendant cannot invoke Colorado’s borrowing statute to invalidate the Parties’ binding
agreement. [Id. at 11–14].
In its reply brief, Defendant asserts that the Restatement “requires application of
Colorado’s borrowing statute without consideration of [Restatement] section 187.” [Doc.
96 at 10 (emphasis omitted and capitalization altered)]. Defendant’s argument relies on
§ 6 of the Restatement, which instructs that a “court, subject to constitutional restrictions,
will follow a statutory directive of its own state on choice of law.” 	Restatement § 6(1).
See [Doc. 96 at 10].
Because the Court has diversity jurisdiction over this case, see [Doc. 8 at ¶ 10],
the Court applies the conflict-of-law rules of the forum state, Kipling v. State Farm Mut.
Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014).4 Colorado courts have instructed
4 In Colorado, “[a]ny conflict of laws analysis begins, perforce, with a determination
whether a conflict actually exists.” 	Richardson v. Allstate Fire & Cas. Ins. Co., 637 F.
Supp. 3d 1186, 1190 (D. Colo. 2022). If there is no outcome-determinative conflict of law,
then there is no need to engage in a choice-of-law analysis. Sec. Serv. Fed. Credit Union
v. First Am. Mortg. Funding, LLC, 861 F. Supp. 2d 1256, 1264 (D. Colo. 2012). Here, the
Parties 	assert 	that 	an 	outcome-determinative 	conflict 	of 	law 	exists 	because 	if
(1) Defendant is correct that Florida law applies, and (2) Defendant is correct that
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that “[c]hoice of law provisions are ordinarily given effect as they are considered a clear
manifestation of the parties’ intentions.” Mountain States Adjustment v. Cooke, 412 P.3d
819, 822 (Colo. App. 2016). Choice-of-law provisions “will be applied” in Colorado courts
unless there is no reasonable basis for the parties’ choice or applying the chosen law
would contravene a fundamental policy of the state whose law would otherwise govern.
Id. at 823 (quotation omitted). 	This practice reflects the principles set forth in § 187 of
Restatement, see Restatement § 187(2)(a), as well as Colorado’s “strong commitment to
the freedom of contract,” Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039, 1047 (Colo.
2011); see also City & Cnty. of Denver v. Dist. Ct., 939 P.2d 1353, 1361 (Colo. 1997)
(“The right of parties to contract freely is well developed in our jurisprudence.”).
Consistent with these principles, Colorado courts have reflected a preference for
enforcing contractual choice-of-law provisions absent the limited exceptions identified
above. See, e.g., Mountain States Adjustment, 412 P.3d at 823; Target Corp. v. Prestige
Maint. USA, Ltd., 351 P.3d 493, 497 (Colo. App. 2013) (“Consistent with the Restatement
. . ., we will apply the law chosen by the parties unless there is no reasonable basis for
their choice or unless applying the chosen state’s law would be contrary to the
fundamental policy of the state whose law would otherwise govern.”); JTC Holdings, LLC
v. Gary, No. 19CA0382, 2020 WL 14046163, at *2 (Colo. App. May 21, 2020) (same).
Indeed, when interpreting a contract, the Court’s task is to give effect to the Parties’
intent, which is determined by the contractual language. Ad Two, Inc. v. City & Cnty. of
Denver ex rel. Manager of Aviation, 9 P.3d 373, 376 (Colo. 2000). 	And when an
Florida’s two-year statute of limitations (as opposed to a four-year statute of limitations)
applies, then Plaintiff’s claims would be time-barred. See [Doc. 91 at 12–17; Doc. 94 at
14–17].
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agreement is unambiguous, it must be enforced as written. 	French v. Centura Health
Corp., 509 P.3d 443, 449 (Colo. 2022). Here, the language of the choice-of-law provision
is unambiguous, and the Parties’ intent seems clear—they agreed that Delaware law
would 	govern 	the 	Agreement 	and 	the 	Parties’ 	rights 	and 	obligations 	thereunder,
notwithstanding any conflict-of-law principles. [Doc. 91-7 at 2 § 14.8].
In 	an 	ordinary, 	straightforward 	case, 	it 	would 	be 	an 	easy 	conclusion 	that
Delaware’s statute of limitations applies to Plaintiff’s claims. Colorado’s Uniform Conflict
of Laws–Limitations Act (“UCL–LA”) provides that if a claim “is substantively based . . .
[u]pon the law of one other state, the limitation period of that state applies.” 	Colo. Rev.
Stat. § 13-82-104(1)(a); see also Mountain States Adjustment, 412 P.3d at 823 (“[I]f the
claim before the court is substantively based on the law of another state, the limitation
period of that state applies.”). 	Defendant contends, however, that this is not that
straightforward case. 	Defendant argues that Colorado’s borrowing statute trumps both
the Parties’ choice-of-law provision and the UCL–LA. 	In support of its first point,
Defendant argues that under § 6 of the Restatement, the Court is bound to apply the
Colorado borrowing statute without regard to the Parties’ contracted-for agreement that
this case would be governed by Delaware law. [Doc. 91 at 10–12]. Further, Defendant
argues that “[i]n the event of a conflict between” the borrowing statute and the UCL–LA,
the borrowing statute controls, directing the Court to the Colorado Supreme Court’s
decision in Jenkins v. Panama Canal Railway Co. [Id. at 8–10 (emphasis omitted)]; see
also Jenkins v. Panama Canal Ry. Co., 208 P.3d 238, 242 (Colo. 2009).
The Court begins with § 6 of the Restatement, which says that “[a] court, subject
to constitutional restrictions, will follow a statutory directive of its own state on choice of
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law.” Restatement § 6(1). Decades ago, the Colorado Court of Appeals was tasked with
deciding whether Colorado’s borrowing statute required application of California’s statute
of limitations because the plaintiff’s claims arose in California. 	See Wyatt v. United
Airlines, Inc., 638 P.2d 812, 813 (Colo. App. 1981). 	The court concluded that the
borrowing statute must be applied “where, as here, the cause of action arises in another
state and the only reason that the cause of action is not cognizable in the foreign state is
plaintiff’s failure to comply with that state’s statute of limitations.” Id. Although the plaintiff
had argued that Restatement § 145’s “most significant relationship” test for tort actions
should determine the applicable law, the court rejected this approach. 	Id. 	It noted that
§ 145 expressly incorporates § 6, see id.; see also Restatement § 145(1) (“The rights and
liabilities of the parties with respect to an issue in tort are determined by the local law of
the state which, with respect to that issue, has the most significant relationship to the
occurrence and the parties under the principles stated in § 6.”), such that § 6 “must be
considered in analyzing which state has the most significant relationship to the issue,”
Wyatt, 638 P.2d at 813. 	But because the borrowing statute provided an answer about
the applicable law, the court found it “unnecessary to consider other factors relevant to
the choice of law question.” Id. Defendant argues that Wyatt stands for the proposition
that “if a claim arises in another state, and the statute of that limitations of that other state
would bar the claim, then analysis under the Restatement is neither necessary nor
appropriate.” [Doc. 91 at 10].
The Court is respectfully unpersuaded by Defendant’s reliance on Wyatt, which
did not involve a contractual choice-of-law provision and is not quite on point with this
case. In Wyatt, the plaintiff asked the court to disregard the borrowing statute and apply
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the 	Restatement’s 	most-significant-relationship 	test, 	which 	expressly 	requires
consideration of the principles set out in Restatement § 6. 	See Restatement § 145(1).
But Restatement § 187, which governs “when the parties to a contract have chosen the
law to govern their contract,” Mountain States Adjustment, 412 P.3d at 823, does not
expressly or implicitly incorporate § 6, see Restatement § 187. 	Compare this with
Restatement § 188, which applies in contract cases “where the parties have not chosen
the law to govern their contract.” Mountain States Adjustment, 412 P.3d at 823. Section
188 sets forth a “most significant relationship” for contract actions, and unlike § 187, § 188
does expressly incorporate § 6 as a relevant consideration in determining which state has
the most significant relationship to the case (and which state’s law should apply). 	See
Restatement § 188(1)–(2). Stated differently, the two multi-factor tests in §§ 145 and 188
incorporate—and clearly explain—how the “statutory directive” language in § 6 factors
into the choice-of-law analysis under those provisions. 	The same is not true for § 187,
which says that the law the Parties chose “will be applied” absent certain limited
exceptions. Restatement § 187(2) (emphasis added).
Thus, in Wyatt, it made sense for the Court to decline to apply the most significant
relationship test to override the express and clear directive in § 6. But given the material
differences between Wyatt and the circumstances in this case, as well as Colorado’s
“strong commitment to the freedom of contract,” Bailey, 255 P.3d at 1047, Wyatt’s
somewhat cursory discussion of the interplay between § 6’s “statutory directive” language
and § 145’s most significant relationship test for tort actions respectfully provides little
guidance to the Court here. 	And this Court could locate no Colorado cases discussing
how—let alone if—section 6 comes into play when the Parties have executed a valid
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choice-of-law provision, which Colorado courts strive to enforce. After all, the Colorado
Supreme Court has stated that although restatements of law “can be persuasive
authority,” it is “not bound by the legal principles set forth in any of the restatements of
law.” AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 509 n.1 (Colo. 2007).
The Court next turns to Jenkins. In Jenkins, Colorado residents were injured on a
vacation in Panama and later brought negligence claims, under Colorado law, in Colorado
court. 	208 P.3d at 239–40. 	The defendant argued that the plaintiffs’ claims were time-
barred because the Colorado borrowing statute required application of Panama’s one-
year statute of limitations. 	Id. at 240. 	The question before the Court was whether
Colorado’s borrowing statute conflicted with the UCL–LA, and, if so, which statute
prevailed in light of any conflict. 	Id. at 241. 	The court found that a conflict did exist,
because if the borrowing statute applied, then the plaintiffs were bound by Panama’s one-
year statute of limitations, but if the UCL–LA applied, then the plaintiffs had the benefit of
Colorado’s two-year statute of limitations. Id.
To resolve the conflict, the court was required to consider (1) whether one statute
was more specific than the other, as the more specific statute would prevail; and (2) if
not, whether one statute was more recent than the other, as the more recent provision
would prevail. 	Id. at 241–42. 	And if neither specificity nor recency could resolve the
conflict, the court explained that the longer limitations period would prevail. 	Id. at 242.
The Jenkins court found that neither statute was more specific than the other. Id. at 242–
43. Turning to recency, the court concluded that the borrowing statute prevailed over the
UCL–LA because it was enacted two years after the UCL–LA and was thus the more
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recent statute. Id. at 243. The court went on to “hold [that] the borrowing statute applies
to [the] claims in this case.” Id. (emphasis added).
Jenkins does not resolve the question before the Court, for a few reasons. 	Like
Wyatt, there was no enforceable choice-of-law provision that factored into the analysis in
Jenkins. 	The Colorado Supreme Court was required to decide which of two conflicting
statutes applied to the plaintiff’s claims; it was not required to analyze whether and how
a competing choice-of-law provision must be considered in the analysis.
Furthermore, other courts in this District have interpreted Jenkins as addressing a
different subsection of the UCL–LA than the one that would apply here. See Jenkins v.
Duffy Crane & Hauling, Inc. (“Duffy Crane”), No. 13-cv-00327-CMA-KLM, 2017 WL
4919221, at *5 (D. Colo. Oct. 27, 2017) (“Jenkins did not involve [section 13-82-
104(1)(a)]; rather, the Supreme Court considered section 13-80-110 and section 13-82-
104(2).” (emphasis added)); Ehekircher v. USA Swimming, Inc., No. 22-cv-03322-RM-
KAS, 2024 WL 4201891, at *11 & n.6 (D. Colo. Aug. 27, 2024) (“The Colorado Supreme
Court has found that Colo. Rev. Stat. 13-82-104(2) was repealed by implication.”
(emphasis added)), report and recommendation adopted, 2024 WL 4591329 (D. Colo.
Sept. 27, 2024). 	While the Jenkins decision was not expressly crafted in this way, the
Court believes this is a reasonable interpretation of Jenkins. 	In Jenkins, any conflict
between the borrowing statute and the UCL–LA necessarily must have been between the
borrowing statute and § 13-82-104(2), as applying § 13-82-104(1)(a) would have led to
the same result as applying the borrowing statute—application of Panama’s one-year
statute of limitations. 	Cf. Jenkins, 208 P.3d at 243 n.3 (stating that defense counsel
“conceded during oral argument that [the] claims [were] substantively based on Colorado
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law,” which would implicate § 13-82-104(2), not § 13-82-104(1)). And indeed, a number
of courts have continued to apply § 13-82-104(1), which is the UCL–LA provision relevant
to this case, post-Jenkins. 	See Mountain States Adjustment, 412 P.3d at 823, 825
(applying Nebraska statute of limitations based on Nebraska choice-of-law provision
under § 13-82-104(1)(a)); Lehman Bros. Holdings v. Universal Am. Mortg. Co., 660 F.
App’x 554, 558 n.2 (10th Cir. 2016) (applying Colorado choice-of-law rules and § 13-82-
104(1)(a)); Duffy Crane, 2017 WL 4919221, at *5; Ehekircher, 2024 WL 4201891, at *11
& n.6. Thus, while Jenkins provides guidance about how to reconcile a statutory conflict
if one exists, its application to the question before this Court remains unclear.5
The Court recognizes the tension between the competing principles of the choice-
of-law provision, Restatement § 187, and Colorado’s well-settled preference for enforcing
contracts as written versus the borrowing statute and Restatement § 6. The Court could
locate no Colorado cases discussing this tension or navigating through these interwoven
competing legal issues. 	At bottom, however, the Court finds that it must interpret the
Parties’ choice-of-law provision to give effect to the Parties’ intent. 	Ad Two, 9 P.3d at
376; Mountain States Adjustment, 412 P.3d at 822. And in so doing, the Court finds that
5 Although the Court ultimately need not delve into this issue, the Court notes that even if
Florida law provided the statute of limitations in this case, it is unclear whether Florida’s
two- or four-year statute of limitations would apply to Plaintiff’s claims. 	The Court finds
that Plaintiff has identified genuine disputes of fact that preclude the Court from
definitively ruling whether, if Florida law supplies the applicable statute of limitations,
Plaintiff’s claims are “founded on the . . . planning . . . of an improvement to real property,”
Fla. Stat. Ann. § 95.11(3)(b), as Plaintiff contends, or whether they are subject to the two-
year 	limitations 	period 	for 	claims 	of 	“professional 	malpractice,” 	Fla. 	Stat. 	Ann.
§ 95.11(5)(b), as Defendant argues. See [Doc. 94 at 14–16; Doc. 94-2 at ¶¶ 13–14, 16–
17].
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the intent of the Parties, based on the Agreement’s ordinary meaning, was for Delaware’s
statute of limitations to apply.
The Court’s analysis is strongly guided by Colorado’s public policy of enforcing
parties’ contractual agreements as written. 	Courts “have repeatedly recognized the
sanctity of contracts and the court’s role in enforcing them.” 	Fox v. I-10, Ltd., 957 P.2d
1018, 1021–22 (Colo. 1998). 	Courts must interpret contracts as written and cannot
rewrite them or ignore certain provisions. Gagne v. Gagne, 338 P.3d 1152, 1163 (Colo.
App. 2014); Johnson Nathan Strohe, P.C. v. MEP Eng’g, Inc., 501 P.3d 826, 830 (Colo.
App. 2021) (all provisions must be given effect). The choice-of-law provision states that
Delaware law will apply “without regard to any conflict of laws principles.” [Doc. 91-7 at
2 § 14.8 (emphasis omitted)]. 	This language is “properly . . . read to refer . . . to [the
conflict-of-law principles] of the forum in which suit is brought.” 	Lehman Bros. Holdings
v. Universal Am. Mortg. Co., 12 F. Supp. 3d 1355, 1360 n.10 (D. Colo. 2014) (first citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); then citing Trierweiler v.
Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996)), aff’d, 660 F. App’x
554. This language suggests that the Parties did not intend for the Colorado borrowing
statute to supersede the Parties’ selection of law. 	And Defendant has not cited any
authority interpreting similar provisions in other ways or ruling that parties cannot contract
around a borrowing statute. Rather, “[p]arties to a contract may agree on whatever terms
they see fit so long as those terms do not violate statutory prohibitions or public policy.”
S. Conejos Sch. Dist. RE-10 v. Wold Architects Inc., 541 P.3d 17, 21 (Colo. App. 2023).
The borrowing statute has no such statutory prohibition. 	See Colo. Rev. Stat. § 13-80-
110; see also S. Conejos Sch. Dist., 541 P.3d at 21–22 (finding that parties could contract
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around—and extend—statute of limitations because the statute “does not expressly
prohibit parties from contracting around, or waiving, its protections”); Lewis v. Taylor, 375
P.3d 1205, 1210–12 (Colo. 2016) (finding that time limitations in the Colorado Uniform
Fraudulent Transfer Act could be extended by voluntary agreement because there was
no indication in the statute of the legislature’s intent to prohibit voluntary tolling). 	The
Court thus sees no reason why the Parties could not agree to apply Delaware law,
including Delaware’s statute of limitations, notwithstanding any Colorado conflict-of-law
rules that might impede this outcome.
In light of the plain language of the Parties’ agreement, the strong policy in favor
of enforcing agreements, and the lack of on-point authority directing otherwise, the Court
finds that the Delaware choice-of-law provision is enforceable and operates to supply
Delaware’s statute of limitations for Plaintiff’s claims. And the law chosen by the Parties
“will be applied” unless (1) the chosen state has no substantial relationship to the Parties
or the transaction; (2) there is no other reasonable basis for the Parties’ choice; or
(3) applying Delaware law would be contrary “to the fundamental policy of the state whose
law would otherwise govern.” 	Target Corp., 351 P.3d at 497; Restatement § 187(2).
Defendant does not argue that any of these circumstances are present here. See [Doc.
91]. 	The Court thus holds as a matter of law that Plaintiff’s claims are timely under
Delaware’s three-year statute of limitations. See Del. Code Ann. tit. 10, § 8106.
Accordingly, the Motion for Summary Judgment is respectfully DENIED.
Case No. 1:23-cv-00253-NYW-KAS Document 97 filed 12/18/25 USDC Colorado
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CONCLUSION
For the reasons set forth herein, IT IS ORDERED that:
(1) 	Defendant’s Renewed Motion for Summary Judgment [Doc. 91] is DENIED;
and
(2) 	A Telephonic Status Conference is SET for January 14, 2026 at 1:30 PM
to discuss the next steps in this case. 	Counsel for the Parties shall
participate using the following dial-in information: 	571-353-2301; Access
Code: 783456374.
DATED: December 18, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
Case No. 1:23-cv-00253-NYW-KAS Document 97 filed 12/18/25 USDC Colorado
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