Bermel v. BlueRadios, Inc

Citations

• 2017 COA 20
• 442 P.3d 923

Syllabus

Breach of Contract—Unjust Enrichment—Colorado Wage Protection Act—Civil Theft—Conversion—Economic Loss Rule—Attorney Fees. Bermel entered into a \Contractor Agreement\ with BlueRadios, Inc. under which he provided engineering services to BlueRadios. He also signed a \Proprietary Information and Inventions Agreement\ (PIAA). The parties later ended their relationship. Anticipating that he might end up in litigation over unpaid wages, Bermel breached the PIAA by forwarding to his personal email account thousands of BlueRadios emails and attachments, some of which contained proprietary information. Bermel sent a demand letter to BlueRadios for unpaid wages, which BlueRadios paid. Bermel thereafter filed a lawsuit against BlueRadios asserting claims for breach of contract, unjust enrichment, and violation of the Colorado Wage Protection Act (CWPA). BlueRadios filed counterclaims against him, including breach of contract civil theft, under CRS § 18-4-405 and conversion. The court granted summary judgment in favor of BlueRadios on Bermel's CWPA claim, and following trial, found Bermel liable on all of BlueRadios' counterclaims. On appeal, Bermel contended that the trial court erred when it denied his motion for summary judgment, in which he argued that the economic loss rule barred BlueRadios' claim for civil theft. Because the economic loss rule is a judicial construct and a civil theft claim is a statutory cause of action, the economic loss rule does not preclude a cause of action under the civil theft statute. Bermel also argued that the trial court erred in granting BlueRadios' motion for summary judgment on his CWPA claim, contending that the court failed to apply the CWPA's definition of \employee\ when it concluded he was an independent contractor. The evidence attached to BlueRadios' motion for summary judgment did not establish that Bermel was free from control and direction under his contract or that he was customarily engaged in an independent trade, occupation