A cautionary tale for contractors and their counsel: if you dismiss an indemnity claim with prejudice, do not expect a do-over. In Layton Construction Co. v. Shaw Contract Flooring Services, Inc., 409 P.3d 602 (Colo. App. 2016), the Colorado Court of Appeals reaffirmed the reach of claim preclusion in construction disputes, holding that a contractor could not revive a previously dismissed indemnity claim, even after prevailing against other subcontractors on similar issues.

Layton Construction served as the general contractor for a hotel project in Vail and subcontracted with Shaw Contract Flooring. When the owner terminated the contract, Layton sued for nonpayment. The owner countersued for alleged construction defects, including defects tied to Shaw’s scope of work. Layton responded with indemnity and contribution claims against several subcontractors, Shaw included. But at a certain point in the litigation, Layton voluntarily dismissed its indemnity claim against Shaw with prejudice, while continuing to pursue claims against the others.