Friday, November 21, 2014

Preparing for the 2015 Colorado Legislative Session

As Colorado starts to prepare for the 2015 legislative session, construction defect reform is shaping up to be another key issue under the Capitol dome. Once again, the Homeownership Opportunity Alliance (HOA) will be leading the charge. The HOA is a coalition of Coloradans working to open the doors to homeownership by: 1) protecting consumers from unknowingly entering into litigation and establishing solid processed through which homeowners and developers can work together to achieve a positive resolution to identified defects in construction, and 2) increasing the supply of attainable, affordable housing while protecting the rights of consumers to take legal action.

The HOA's coalition partners include:
American Subcontractors Association
Apartment Association of Metro Denver
Associated Builders and Contractors
Associated General Contractors
Building Jobs 4 Colorado
Colorado Association of Home Builders
CO Assoc. of Mechanical & Plumbing Contractors
CO Assoc. of Plumbing-Heating-Cooling Contractors
Colorado Civil Justice League
Colorado Competitive Council
Colorado Concern
Denver Metro Chamber of Commerce
Denver South Economic Development Partnership
Douglas County Commissioners
Downtown Denver Partnership
Heating, Air-Conditioning, Refrigeration Professionals
Hope Communities
Housing Colorado
Independent Electrical Contractors
Metro Denver Economic Development Corp.
Metro Mayors Caucus
NAIOP Colorado
National Electrical Contractors
Sheet Metal & Air Conditioning Contractor

In addition, the coalition is joined by the following Colorado mayors:
Marc Williams, Arvada
Steve Hogan, Aurora
Sue Horn, Bennet
Dick McLean, Brighton
Rick Pilgrim, Bow Mar
Randy Ahrens, Broomfield
Jeffrey Huff, Castle Pines
Cathy Noon, Centennial
Doug Tisdale, Cherry Hills Village
Gale Christy, Columbine Valley
Sean Ford, Commerce City
Michael Hancock, Denver
Randy Penn, Englewood
Tony Carey, Frederick
Marjorie Sloan, Golden
Ron Rakowsky, Greenwood Village
Bob Murphy, Lakewood
Phil Cernanec, Littleton
Jim Gunning, Lone Tree
Joe Gerlach, Nederland
Joyce Thomas, Northglenn
Mike Waid, Parker
Dallas Hall, Sheridan
Herb Atchison, Westminster
Joyce Jay, Wheat Ridge

To follow the HOA's activities, you can visit its website, follow it on Twitter, or like it on Facebook. In addition to following the HOA, be sure to check back here to stay informed about the latest happenings on the legislative front.

Monday, October 27, 2014

KF-103 v. American Family Mutual Insurance: An Exception to the Four Corners Rule

In Colorado, the “complaint rule,” also known as the “four corners rule,” requires an insurer to provide a defense when an underlying complaint alleges any set of facts that may fall within an insurance policy. This can result in a situation where an insurer has a duty to defend although the underlying facts ultimately do not fall within the policy.
In KF-103 v. American Family Mutual Insurance, 2014 WL 4409876, District Court Judge Richard P. Matsch recognized an exception to the complaint rule.  In doing so, Judge Matsch determined that a court may look beyond the complaint to judicial orders preceding the filing of the complaint to determine whether an insurer has a duty to defend. Therefore, a party may not be able to assert unsupported facts in a complaint for the sole purpose of triggering an insurance policy.

KF 103 v. American Family arose out of an underlying easement dispute. In the underlying case, KF 103-CV, LLC (“KF 103”) purchased a piece of property from the Infinity Group. As a condition of the purchase agreement, Infinity Group was required to complete improvements to boundary streets and the intersection of Ski Lane and Sorpresa Lane.  Several adjoining property owners (the “neighbors”) objected to the modification of the intersection because it violated an express easement (the “easement”) that provided access to their properties.

On October 13, 2010, the district court judge issued oral rulings and findings, holding that the neighbors’ easement had been impaired by the modification of the intersection and that KF 103 had not sought to relocate the easement. The Court found that KF 103 acted intentionally, although not with malice, and in direct violation of Colorado common law. In October 2012, the Court ruled in favor of the neighbors on claims for trespass, civil conspiracy, and negligence, awarding damages accordingly.

During the relevant time period, American Family insured KF 103. KF 103 first notified American Family of the underlying easement dispute in January 2011. American Family denied KF 103’s initial request for coverage and subsequent requests claiming that the neighbors’ claims were all based on KF 103’s intentional conduct, which was not covered under its policy.  On September 10, 2013, KF 103 sued American Family seeking declaratory relief and damages. KF 103 asserted that the factual allegation in the neighbors’ negligence, negligent misrepresentation, and trespass claims triggered coverage under the complaint rule.

The Court found that the neighbors’ claims all involved intentional conduct on the part of KF 103. The fact that claims alleged by the neighbors’ were categorized as “negligent” and used such terms as “negligence,” “negligent failure,” and “legal duty” did not change the fact that the well-pleaded allegations were really claims arising out of KF 103’s intentional actions. Even if those facts pleaded unintentional actions, the Court already found that KF 103 knowingly violated the neighbors’ easement rights.

KF 103 argued that the complaint rule prevents the Court from considering earlier rulings and that the Court must rely on the claims as pleaded, therefore American Family owed KF 103 a defense.  The Court disagreed with KF 103, finding that it may consider its earlier rulings because they preceded the filing of the claims and do not undercut the purpose of the complaint rule. If the Court were to agree with KF 103’s argument, it would allow any plaintiff to merely recite language in a complaint that would trigger insurance coverage.

While the complaint rule is still the general rule, a court may look outside the four corners of a complaint when there have been prior judicial determinations. It is important when determining the extent of insurance coverage to consider whether any prior court rulings have been issued in the case and how they may contradict the claims or counterclaims asserted.

To learn more about the KF 103 v. American Family decision or construction law in Colorado, you can reach Zach McLeroy by e-mail at or by telephone at (303) 987-9816.

Thursday, October 16, 2014

Tuesday, August 12, 2014

David M. McLain, Esq. to Speak at the 2014 CLM Claims College

David McLain will be a speaker at the School of Construction.  The Claims College will be held from September 7-10 in Philadelphia, Pennsylvania.  Mr. McLain is a founding member of Higgins, Hopkins,McLain & Roswell, LLC, a firm which specializes in construction law and construction litigation throughout Colorado.  Mr. McLain received his undergraduate degree from Colorado State University, graduating cum laude, and his law degree from the University of Denver, College of Law.  Mr. McLain completed the Claims and Litigation Management Alliance Litigation Management Institute, earning the designation from that organization as a Certified Litigation Management Professional. He has a general civil litigation practice with an emphasis on the defense of complex construction lawsuits on behalf of developers and general contractors.  As a result of the experience gained by defending some of Colorado’s largest residential construction defect lawsuits, developers, general contractors, and subcontractors seek out Mr. McLain to consult on risk avoidance and risk management strategies.  Currently among his clients are several of the state’s largest home builders, regional and custom builders, and numerous insurance carriers.  Mr. McLain is an AV® Preeminent™ Peer Review Rated attorney by Martindale-Hubbell and is a regular speaker at local, regional, and national seminars regarding construction defect litigation in Colorado.

About the CLM
The Claims and LitigationManagement Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit

Susan Wisbey-Smith, Communications Manager
Claims and Litigation Management Alliance
(847) 317-9103

Thursday, July 31, 2014

When Can a General Contractor’s Knowledge be Imputed to a Developer?

The Colorado Court of Appeals recently handed down an opinion clarifying when the knowledge of a general contractor can be imputed to a developer. In the case of Jehly v. Brown, 327 P.3d (Colo. App. 2013), the Court of Appeals held that a developer cannot be held liable for fraudulent concealment when the developer has no actual knowledge of the fact or facts allegedly being concealed even if the general contractor had knowledge.

In this case, Brown, the developer, owned real property in Teller County and hired a general contractor to build a single-family house. Sometime before or during the construction, the general contractor became aware that part of the home site was located in a designated floodplain.  Although the general contractor was aware that part of the home site was located in a floodplain, he continued to build the home without informing Brown of the floodplain designation.

Once the home was complete, Brown sold the property to the Jehlys. Brown completed a Seller’s Property Disclosure Form regarding the condition of the house and property, but failed to identify that the home site was located in a governmentally designated floodplain.

Approximately five years after purchasing the home, heavy rains caused severe flooding and damage to the basement. The Jehlys sued Brown for fraudulent concealment, alleging that he fraudulently concealed knowledge of the floodplain in order to entice the Jehlys to purchase the property. The Jehlys asserted that the general contractor’s knowledge that the home site was located in a designated floodplain should be imputed to Brown. The trial court ruled in Brown’s favor, finding that the Jehlys failed to show Brown had any actual knowledge that the home site was located in a floodplain.

On appeal, the Court of Appeals upheld the trial court’s ruling that the general contractor’s knowledge cannot be imputed to Brown to support a claim of fraudulent concealment.  The Court of Appeals in its ruling stated that “in the context of a fraudulent concealment claim, knowledge of the information by the agent, when not communicated to the principal, is not deemed to be that of the principle.” Id.  The Court further added “when an agent has information that he has a duty to disclose, the principal may be liable except where actual knowledge is important.” Id.

It is important to note that while the Court held that a general contractor’s knowledge cannot be imputed to a developer in the context of a fraudulent concealment claim, this result would not follow for causes of action that lack an actual knowledge requirement.  A court could impute the general contractor’s knowledge to a developer under a negligence based claim or other claim where actual knowledge is not required. Therefore, it is important for developers to stay apprised of such information and not merely turn a blind eye in hopes of claiming they didn’t have actual knowledge.

To learn more about the Jehly v. Brown decision or construction law in Colorado, you can reach Zach McLeroy by e-mail at or by telephone at (303) 987-9816.

Tuesday, June 10, 2014

Taylor Morrison v. Terracon and the Homeowner Protection Act of 2007

On January 30, 2014, the Colorado Court of Appeals decided the case of Taylor Morrison of Colorado, Inc. v. Bemas Construction, Inc. and Terracon Consultants, Inc. 2014WL323490. The case addressed a substantial issue of Colorado constitutional law, as well as a variety of procedural issues of potential importance to construction litigation attorneys.  Of particular interest is the question of whether the provisions of the 2007 Homeowner Protection Act (“HPA”) are limited in application to contracts between residential homeowners and construction professionals, or whether they have broader application between commercial construction professional parties as well.  As discussed below, the Court of Appeals stated that it would not answer the question, and then, separately, implied that the statute might only apply to homeowner transactions – with the resulting exclusion of commercial transactions. However, after its analysis, it left the actual decision of that issue to a future court in a later case.

The factual background for the case involved claims of breach of a contract for soils engineering by Terracon Consultants, Inc. (“Terracon”) and negligent excavation work by Bemas Construction, Inc. (“Bemas”).  Plaintiff was Taylor Morrison of Colorado (“Taylor Morrison”), the developer and general contractor for a residential subdivision called Homestead Hills. After it constructed many homes, Taylor Morrison began to receive complaints of cracking drywall resulting from foundation movement and it made repairs at significant expense.  Taylor Morrison then filed suit against Terracon and Bemas in connection with their respective roles in the original construction.

Terracon defended in part by asserting that the HPA provisions that nullified limitations of liability were only applicable in contracts as between homeowners and construction professionals.  The heart of that argument was that Taylor Morrison was not a homeowner and for that reason could not defeat Terracon’s contractual limitation of liability for a specific dollar amount.  Terracon also defended in part by arguing that the HPA was being applied to its contract retrospectively, in violation of Article 11 of the Colorado Constitution.

Taylor Morrison responded to these defenses by attempting to amend its pleadings to assert separate claims against Terracon for gross negligence, negligent misrepresentation, and fraud.  However, the trial court judge denied this attempt to amend because it was so late in the case. Taylor Morrison then challenged Terracon’s defenses that the HPA was inapplicable to the Terracon contract.  The trial court agreed that the HPA only applied to transactions between homeowners and construction professionals. It held that Terracon’s contract with Taylor Morrison did not violate the HPA for that reason, and Terracon’s limitation of liability was valid.  Terracon thereafter deposited the maximum amount that Taylor Morrison could recover under the limitation of liability in the contract in the trial court’s registry, and the trial court then dismissed Taylor Morrison’s claims against Terracon.

Bemas proceeded to trial and received a defense verdict on the merits.  Taylor Morrison’s appeal sought a new trial of the Terracon issues, but also sought a new trial against Bemas.  Its argument for a full re-trial was that Bemas had an unfair advantage in trying its case with an “empty chair” that should have been occupied by Terracon. The appellate court disagreed, saying that the issues involving Terracon were distinct from those involving Bemas, and that a partial re-trial of the issues involving only Terracon involved no inherent unfairness to Taylor Morrison. In the absence of clear prejudice to Taylor Morrison, the Court refused to allow the re-trial of Bemas.

The appellate court addressed the matter of the trial court’s refusal to consider evidence that Terracon’s conduct was willful and wanton and/or grossly negligent, as alleged.  While the appellate court did not clearly reverse the trial court’s ruling that denied Taylor Morrison’s amended complaint, it did hold that Taylor Morrison had the right to contest Terracon’s defenses  by offering proof of such misconduct, because it would potentially invalidate Terracon’s limitation of liability. The appellate ruling viewed the potential evidence of misconduct as potentially admissible to respond to Terracon’s defenses, even if it was not part of an amended complaint.

In the course of remanding the Terracon case to trial, the appellate court disagreed with the trial court’s determination that the HPA only applied to homeowner/construction professional transactions, but did so without actually deciding the issue. Instead, it expressly declined to decide that issue, vacated the lower court’s HPA determination, and proceeded to decide Terracon’s constitutional argument.

In deciding that constitutional argument, the Court of Appeals held that Terracon’s contract was retrospectively impaired by the application of the HPA to its terms, which pre-existed the 2007 statute.  In an extended discussion of constitutionality, the Court explained that where: (1) perfected contract rights had fully vested; (2) those rights were the subject of past actions on the part of the parties; and (3) those rights would be reasonably expected by the parties to be enforceable, any statute that changed those rights after the fact was unconstitutionally retrospective.  

The Court of Appeals was presented with and rejected arguments that asserted that the HPA was a remedial statute, and was akin to new regulation of an existing industry.  In making this determination, the Court held that the statute was not part of a body of prior regulation that was simply being expanded and was reasonably anticipated by the parties. That was the argument offered by an amicus brief which argued analogous cases. Those cases were rejected as distinguishable by the Court of Appeals.

The appellate court also considered the question of whether the stated public policy of the HPA – “to protect Colorado residential property owners' rights and remedies” – was to be balanced against Terracon’s contract rights.  The Court held that since “the contracts at issue were the products of arms-length negotiations between sophisticated commercial entities” there was no impact of the HPA in the present case on residential property owners. The Court also based its analysis on detailed references to the 2007 Colorado legislative history.  Accordingly, the Court found no basis for any such “balancing” analysis between public policy and Terracon’s impaired contract rights.

Notably, in this last determination, one can see the possibility that the 2007 HPA may yet be held by a future appellate court to be inapplicable between general contractor and design professional or subcontractor (or similarly postured non-homeowner) parties.  In this later portion of the opinion, the Court suggests that an argument that the 2007 HPA is not applicable to commercial transactions between construction professionals may yet be upheld in a future case.

The Court of Appeals remanded the case back to the trial court for further proceedings on whether Taylor Morrison’s claims of Terracon’s willful and wanton conduct were sufficient to overcome Terracon’s limitation of liability argument. This was determined separate from the constitutional analysis described above. Notably, the case has not been selected for official publication as of this date, and may be further appealed because of the significance of the constitutional issue that was decided.

The attorney who drafted this entry is no longer with the firm. For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at

Wednesday, April 30, 2014

Builder’s Be Wary of Insurance Policies that Provide No Coverage for Building: Mt. Hawley Ins. Co v. Creek Side at Parker HOA

On the heels of a recent order regarding coverage under a Comprehensive General Insurance policy issued by Mt. Hawley Insurance Company (“Mt. Hawley”), builders should be very wary of CGL policies providing no coverage for property damage.

On January 8, 2013, District Court Judge R. Brooke Jackson granted a motion for declaratory judgment filed by Mt. Hawley.  The order states that the subject insurance policies issued by Mt. Hawley to Mountain View Homes II, LLC (“MV Homes”), the builder developer of the Creek Side at Parker development (the “Project”), did not provide coverage for any of the work performed by MV Homes or its subcontractors on the Project.

MV Homes originally began construction on the Project in 2002 and completed construction in 2005.  MV Homes was insured by National Fire and Marine Insurance Company (“National Fire”) and Mt. Hawley.  In December 2008, Creek Side at Parker Homeowners Association, Inc. (“the HOA”) served notice on MV Homes.  The HOA then instituted a construction defect lawsuit on June 1, 2009 against MV Homes and others.  MV Homes initially demanded a defense and indemnity from National Fire, which provided a defense.  Then, after two years, MV Homes demanded a defense and indemnity from Mt. Hawley in July 2011.  Mt. Hawley denied coverage and did not provide a defense.  The case was settled soon after, and National Fire reserved or assigned claims against Mt. Hawley.

Mt. Hawley filed the case at issue, seeking a declaration that its policies did not provide either a defense or indemnity with respect to the underlying lawsuit.  Mt. Hawley argued that its policies did not cover the HOA’s claims, because faulty work is not an occurrence and exclusions j(5), j(6), and m, preclude coverage.  MV Homes counterclaimed on several issues, including a declaration of its rights, breach of contract for failure to provide a defense and indemnity, common law bad faith, and statutory damages for bad faith. 

In making his ruling, Judge Jackson noted that the Mt. Hawley policies were written on a standard “Commercial General Liability Coverage Form,” where an occurrence is defined as “an accident, including continuous or repeated exposures to substantially the same general harmful conditions.”  Mt. Hawley Ins. Co. v. Creek Side at Parker Homeowners Association, Inc., WL 104795, p. 2 (D. Colo. 2013).  Judge Jackson also noted that faulty workmanship, according to Greystone Construction, Inc. v. National Fire & Marine Ins. Co., 661 F.3d 1272, 1286-87 (10th Cir. 2011), can constitute an occurrence that triggers coverage under  CGL policy in two circumstances.  First, the property damage was not caused by purposeful neglect or knowingly poor workmanship and second, the damage was to non-defective portions of the contractor’s or subcontractor’s work or to third-party property.

In the case at issue, there were no allegations that MV Homes or its subcontractors  purposefully or knowingly performed poor workmanship.  Thus, MV Homes relied on the HOA’s claims in the underlying suit to contend the property damage was to non-defective portions of its or its subcontractors’ work or to third-party property.  Judge Jackson found there was enough evidence regarding whether an occurrence triggered the policy for the issue to proceed to a jury.

Judge Jackson’s discussion then moved to exclusions, specifically j(5), j(6), and m.  Exclusion j(5) and j(6) exclude coverage for property damage to:

 (5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or

(6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it.

Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.” 

Judge Jackson found that exclusion j(5) applies to damage to the work being done by the insured during the course of the insured’s work, not to damage after operations have finished.  Assuming some of the damage occurred during the course of MV Homes’ work, Judge Jackson found that exclusion j(5) did not bar a coverage claim.

Exclusion j(6), states Judge Jackson, quoting, Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003, 1012 (10th Cir. 2006), has been interpreted to “exclude ‘property damage’ that directly or consequentially occurs from the faulty workmanship of the insured and its contractors/subcontractors (i.e., work that ‘was incorrectly performed’) while the work is ongoing.”  The exclusion broadly excludes all property damage that occurred while the work was ongoing and was the result of fault workmanship.

There is an exception to the exclusion for property damage included in the “products-completed operations hazard, which is defined in the standard form.  The definition includes property damage arising from insured’s or its subcontractors’ work except, “work that has not been completed or abandoned.”  Thus, according to Advantage Homebuilding, the exception to exclusion j(6) allows an insured to recover consequential damages that arise out of his or her faulty workmanship after the completion of the work.

To exemplify this, Judge Jackson again relied on Advantage Homebuilding, citing a possible instance where a homebuilder, after constructing the walls and installing the roof, has engaged in installing parquet floors.  A leak develops in the roof, which was poorly installed, and damages the roof and the partially installed wood floors.  The roof repair or replacement, which was a direct result of faulty workmanship, would be excluded.  On the other hand, the damage to the parquet floors was a consequence of the faulty and completed work on the roof and would be covered because of the exception to exclusion j(6).

At this point, it would look like coverage should be forthcoming, in the case at issue, but Judge Jackson performed one more analysis, this time on an endorsement the Mt. Hawley policies contained. The endorsement provides, “this insurance does not apply to ‘bodily injury’ or ‘property damage’ included within the ‘products-completed operations hazard’.”  Despite MV Homes’ opposition, Judge Jackson found that the language of the policy was unambiguous, in part, because it had been negotiated by two sophisticated commercial parties.  Judge Jackson even acknowledged that what the exception to j(6) in the standard form provided to the insured, the endorsement, using the same language, took away again.

Summarizing, Judge Jackson found that exclusion j(6) excludes from coverage all direct and indirect damages that occur while work is ongoing.  Normally, damage that occurred after work was completed (but, within Mt. Hawley’s policy period) would not be excluded from coverage by exclusion j(6).  Damages occurring after all work has been completed has been defined in the policy to be within the products-completed operations hazard.  The endorsement then removed the products-completed operations hazard form the policy.  Consequently, the damages that occurred after all work was completed were also not covered by the policy.

MV Homes tried to argue that the court’s reading of the policy and endorsement would render the coverage of the policy illusory and violate public policy.  MV Homes’ argument is technically untrue, the policy provides coverage for personal injury, advertising injury, and medical payments that are not affected by the products-completed operations hazard endorsement.  While the argument was not a winning one, Judge Jackson did sympathize with MV Homes stating, “MV Homes is, after all, a homebuilder.  If there is no coverage for liability for property damage caused by its negligence or the negligence of its subcontractors while doing what the business exists to do, one has to wonder how much meaningful coverage MV Homes received for its money.” 

Unfortunately for MV Homes, Judge Jackson relied on the fact that both parties were sophisticated commercial entities negotiating at arm’s length.  Mt. Hawley’s motion for declaratory judgment was granted and Judge Jackson found that Mt. Hawley was not unreasonable in denying coverage or to commence its action for declaratory judgment and there was no basis for a finding of bad faith on the part of Mt. Hawley.

The lesson for builders is to be vigilant regarding its insurance policies, being very wary of CGL policies and endorsements providing no coverage for property damage.

The attorney who drafted this entry is no longer with the firm. For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at


The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.