Mechanic’s Liens – a “Hotdog” Claim?

Some company had the audacity to file a mechanic’s lien against my client’s property for fuel it sold and claimed to have been used to power a construction backhoe on my client’s project.

I insisted that the Colorado mechanic’s lien statute did not allow lien rights for fuel used for construction machinery. Curiously, the attorney for the fuel supplier disagreed.

Well, nobody’s perfect! The Colorado mechanic’s lien statute established lien rights for those who furnish labor, design and construction related services, materials, tools and equipment. It says nothing about fuel.

A frequently resorted-to principal of statutory construction is expressio unius est exclusio alterius which is Latin meaning that the expression of one is the exclusion of another [the professions of law and medicine use Latin when attempting to keep something secret from the general public]. Since the Colorado legislature did not mention fuel in itemizing lienable items, it may be assumed under that theory that the legislature intended to exclude fuel as a lienable item.

But opposing counsel will probably argue that the machinery and equipment would not have operated to produce the construction result without fuel and therefore the fuel was necessary to the construction and it was therefore lienable.

Here’s where a hot dog comes in! Suppose a push-cart vendor sold sandwiches and beverages on credit at a construction site to the workers during the noon hour. That vendor was providing nourishment to enable the workers to expend the energy for performance of their construction work, since his hot dogs provided the same type of energy that fuel provides for construction machinery.

I seriously doubt that any court would allow a mechanic’s lien to the hot dog man or to Safeway, King Soopers or Albertson’s-or even Burger King! Similarly, it appears that the fuel supplier and the “man who wears the star” would have to look elsewhere to collect their debts.

Remember, this analysis is based on this author’s legal reasoning and may not necessarily reflect what any court would do if faced with the same legal proposition. At least to date I have found no decision under any lien statute with language similar to the Colorado law that has allowed mechanic’s liens to fuel suppliers.

My opponent may unearth some case that will prove that I have not searched far enough.

Update Note: Since this column was published, the case was settled-for about half of the amount claimed by the fuel supplier. That was a reasonable result in view of the costs which would have resulted in having the courts decide the issue and the fact that it involved an “all or nothing” potential result.