1999-04-01_GENERAL DOCUMENTS - C1981017 (2)

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MCR will no doubt counter that its alleged"contract"with the Division, the Liquidation Plan, overrides the Division's duty to reclaim pursuant to the Reclamation Act and subsequent characterization of the action as a tort. This is not so. "[T]he existence of a contractual relationship between the parties does not change the nature of the action." Sussman v. University of Colorado Health Sciences Ctr., 706 P.2d 443, 444 (Colo.App. 1985) (retaliatory discharge action sounds in tort despite contract for employment between parties, case dismissed). Moreover, the Liquidation Plan cannot trump the Reclamation Act: "Where the Bankruptcy Code is silent, and no uniform bankruptcy rule is required,the rights of the parties are governed by the underlying non-bankruptcy law." Paul v. Monts, 906 F.2d at 1475, quoting In re: Pascucci, 90 B.R. 438, 442 (Bankr. C.D.Cal. 1988). This conclusion is exemplified by the case of Morrison v. City of Aurora, 745 P.2d 1042 (Colo.App. 1987). In determining whether a claim against the State lies in tort or contract, the court ". . . must examine the substance of the plaintiffs' breach of contract claim to determine whether it could lie in tort." Morrison, 745 P.2d at 1045. In Morrison, the court found that even though Aurora had a contract with a landowner to design and build a flood control pipeline, a breach of contract claim against Aurora for faulty design of the pipeline sounded in tort and was barred under the CGIA. The Morrison court reasoned that the breach of contract claim could have been brought as a breach of the common-law duty to design the pipe with reasonable care and skill. Id. "Accordingly, plaintiffs' claim could sound in tort, and its nature was not changed by the existence of the contractual relationship between the parties." Id., citing Sussman at 444. Here, even if MCR's claim might be related to the alleged Liquidation Plan"contract," since it 10