Friday, October 11, 2019

Insurance Company’s Reservation of Rights Letter Negates its Interest in the Litigation

The Colorado Court of Appeals held that an insurance company, which issues a reservation of rights letter to its insured, loses its interest in the litigation, pursuant to C.R.C.P. 24(a)(2), when the insured settles the claims and assigns the bad faith action against the insurance company to the plaintiff.  Bolt Factory Lofts Owners Association, Inc. v. Auto-Owners Insurance Company, 2019WL 3483901(Colo. App. 2019).

In a 2016 lawsuit in Denver District Court, 2016CV3360, the Bolt Factory Loft Owners Association, Inc. (“Association”) asserted construction defect claims against six contractors.  Two of those contractors then asserted claims against other subcontractors, including Sierra Glass Co., Inc. (“Sierra Glass”).  After multiple settlements, the only remaining claims were those the Association, as assignee of the two contractors, asserted against Sierra Glass.

Auto-Owners Insurance Company (“AOIC”) issued policies to Sierra Glass and defended it under a reservation of rights.  The policy afforded AOIC the right to defend Sierra Glass, and it required Sierra Glass to cooperate in the defense of the legal action.  The Association presented a settlement demand of $1.9 million to Sierra Glass, which AOIC refused to pay.  To protect itself from an excess judgment that AOIC might not have paid, Sierra Glass entered into an agreement with the Association whereby Sierra Glass would refrain from offering a defense at trial and assign its bad faith claim against AOIC to the Association in exchange for the Association’s promise that it would not pursue recovery against Sierra Glass of any judgment entered against it at trial.  Such agreements, known as Bashor or Nunn Agreements, are allowed in Colorado.  Nunn v. Mid-Century Insurance Co., 244 P.3d 116 (Colo. 2010).  Therefore, Sierra Glass was entitled to protect itself in the face of AOIC’s potential denial of coverage and refusal to settle.  Bolt Factory Lofts, at 15.

AOIC learned of the Sierra Glass agreement with the Association the day before the trial was to begin.  The fifteen-day jury trial was reduced to a two-day bench trial as Sierra Glass would no longer put on any defense against the Association’s claims.  AOIC moved to intervene, continue the trial, contest the settlement agreement, and protect its rights under the insurance policies.  The trial court held that the agreement was valid under Nunn and denied AOIC’s motion to intervene.  Following the two-day trial, the trial court entered judgment in favor of the Association, and against Sierra Glass, for $2,489,021.91.

On July 27, 2018, AOIC timely appealed the trial court’s judgment, discussed below.  Prior to that, on June 18, 2018, the Association obtained a writ of garnishment against AOIC in the Denver District Court, which AOIC removed to the U.S. District Court of Colorado, 18CV01725, on July 9, 2018.  AOIC sought a declaration in the garnishment action that that Sierra Glass breached the policy by failing to cooperate with AOIC and that the judgment obtained in the underlying lawsuit was not enforceable against AOIC.  In response, the Association asserted counterclaims against AOIC for: 1) breach of contract; 2) statutory unreasonable denial of payment of a benefit; and 3) common law bad faith.  AOIC argued that the Association’s counterclaims were contingent on the outcome of the appeal in the underlying lawsuit and must be dismissed because they were not ripe.    Judge Brooke Jackson agreed, however, he also found that AOIC’s claims were not ripe as they also relied, in large part, on the trial court’s judgment.  Judge Jackson noted that the ripeness doctrine asks whether a controversy is certain and not contingent on future events.  He found that if AOIC prevailed on the appeal by successfully vacating the judgment, part of the declaratory relief it requested would no longer be necessary.  Thus, the claims were not ripe for AOIC or the Association, and this case was dismissed in its entirety, without prejudice.

With respect to the appeal of the trial court’s judgment, the Colorado Court of Appeals, Division VI (18CA1201), affirmed the trial court’s denial of AOIC’s motion to intervene.  C.R.C.P. 24(a)(2) provides for intervention as a matter of right when:

1.         The applicant claims an interest in the subject matter of the litigation;
2.         Disposition of the action may impair or impede the applicant’s ability to protect that interest; and
3.         The applicant’s interest is not adequately represented by existing parties.

Failure to satisfy one element of this rule precludes a motion to intervene as of right.  Bolt Factory Lofts, at 10.[1]  The appellate court found that AOIC failed to satisfy the first element and affirmed the trial court’s order without considering the other two elements. 

It was undisputed that AOIC reserved the right to deny coverage.  Id. at 15.  Thus, its interest in the litigation was contingent on the liability phase of the proceedings.  While the existence of an interest should be determined in a liberal manner, if the interest is contingent, it may be insufficient to warrant intervention.  Id. at ¶¶ 12-13.[2]  Where an insurer reserves the right to deny coverage, “the insurer’s interest in the liability phase of the proceeding is contingent on the resolution of the coverage issue.”  Id. at 14.[3]

Allowing AOIC to intervene to protect its contingent interest would allow it to interfere with and in effect control the defense.  Such intervention would unfairly restrict Sierra Glass, which faced the very real risk of an uninsured liability, and grant AOIC a double bite at escaping liability.  Id.[4]


An insurance company must consider the risks when it has a reservation of rights and denies a settlement for its insured within the policy limits.  AOIC lost control of the defense because it lost its interest in the litigation with its reservation of rights.  Once the claims were assigned, the judgment increased from a potential $1.9 million settlement to a $2.4 million judgment.  If there is a finding the insurance company denied the Sierra Glass claim in bad faith, compensatory, economic, and noneconomic damages are available, as well as punitive damages, not to exceed the amount of actual damages, to punish the insurer and deter wrongful conduct by other insurers.  C.R.S. § 13-21-102(1)-(3).  If bad faith is found, AOIC could pay as much as $4.8 million.  This type of reward creates an incentive for plaintiffs, like the Association, to accept an assignment of a claim, as contemplated by Nunn, which protects the insured from an excess judgment.

[1] Citing Diamond Lumber, Inc. V. H.C.M.C., Ltd., 746 P.2d 76, 78 (Colo. App. 1987).
[2] Citing Feigin v. Alexa Group., Ltd., 19 P.3d 23, 28 (Colo. 2001).
[3] Citing Travelers Indem. Co., v. Dingwell, 844 F.2d 629, 628 (1st Cir. 1989).
[4] Citing Dingwell, supra, at 639.

For additional information regarding Bolt Factory Lofts Owners Association, Inc. v. Auto-Owners Insurance Company or about construction defect litigation in Colorado, generally, you can reach Frank Ingham by telephone at (303) 653-0046 or by e-mail at

Tuesday, October 8, 2019

Admissibility of Expert Opinions in Insurance Bad Faith Trials

In 2010, Hansen Construction was sued for construction defects and was defended by three separate insurance carriers pursuant to various primary CGL insurance policies.[i]  One of Hansen’s primary carriers, Maxum Indemnity Company, issued two primary policies, one from 2006-2007 and one from 2007-2008.  Everest National Insurance Company issued a single excess liability policy for the 2007-2008 policy year, and which was to drop down and provide additional coverage should the 2007-2008 Maxum policy become exhausted.  In November 2010, Maxum denied coverage under its 2007-2008 primarily policy but agreed to defend under the 2006-2007 primarily policy.  When Maxum denied coverage under its 2007-2008 primary policy, Everest National Insurance denied under its excess liability policy. 

In 2016, pursuant to a settlement agreement between Hansen Construction and Maxum, Maxum retroactively reallocated funds it owed to Hansen Construction from the 2006-2007 Maxum primary policy to the 2007-2008 Maxum primary policy, which became exhausted by the payment.  Thereafter, Hansen Construction demanded coverage from Everest National, which continued to deny the claim.  Hansen Construction then sued Everest National for, among other things, bad faith breach of contract.

In the bad faith action, both parties retained experts to testify at trial regarding insurance industry standards of care and whether Everest National’s conduct in handling Hansen Construction’s claim was reasonable.  Both parties sought to strike the other’s expert testimony as improper and inadmissible under Federal Rule of Evidence 702.

In striking both sides’ expert opinions, the U.S. District Court Judge Christine Arguello set forth the standards for the admissibility of expert opinions in Federal Court:

Under Daubert, the trial court acts as a “gatekeeper” by reviewing a proffered expert opinion for relevance pursuant to Federal Rule of Evidence 401, and reliability pursuant to Federal Rule of Evidence 702.[ii]  The proponent of the expert must demonstrate by a preponderance of the evidence that the expert’s testimony and opinion are admissible.[iii]  This Court has discretion to evaluate whether an expert is helpful, qualified, and reliable under Rule 702.[iv]

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Rule 702 provides that a witness who is qualified as an expert by “knowledge, skill, experience, training, or education” may testify if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

In deciding whether expert testimony is admissible, the Court must make multiple determinations. First, it must first determine whether the expert is qualified “by knowledge, skill, experience, training, or education” to render an opinion.[v]  Second, if the expert is sufficiently qualified, the Court must determine whether the proposed testimony is sufficiently “relevant to the task at hand,” such that it “logically advances a material aspect of the case.”[vi]  “Doubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility unless there are strong factors such as time or surprise favoring exclusions.”[vii] 

Third, the Court examines whether the expert’s opinion “has ‘a reliable basis in the knowledge and experience of his [or her] discipline.’”[viii]  In determining reliability, a district court must decide “whether the reasoning or methodology underlying the testimony is scientifically valid.”[ix]  In making this determination, a court may consider: “(1) whether a theory has been or can be tested or falsified, (2) whether the theory or technique has been subject to peer review and publication, (3) whether there are known or potential rates of error with regard to specific techniques, and (4) whether the theory or approach has general acceptance.”[x] 

The Supreme Court has made clear that this list is neither definitive nor exhaustive.[xi]  In short, “[p]roposed testimony must be supported by appropriate validation—i.e., ‘good grounds,’ based on what is known.”[xii] 

The requirement that testimony must be reliable does not mean that the party offering such testimony must prove “that the expert is indisputably correct.”[xiii]  Rather, the party need only prove that “the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.”[xiv]  Guided by these principles, this Court has “broad discretion” to evaluate whether an expert is helpful, qualified, and reliable under the “flexible” standard of Fed. R. Evid. 702.[xv] 

With respect to helpfulness of expert opinions, Judge Arguello explained:

Federal Rule of Evidence 704 allows an expert witness to testify about an ultimate question of fact.[xvi]  To be admissible, however, an expert’s testimony must be helpful to the trier of fact.[xvii]  To ensure testimony is helpful, “[a]n expert may not state legal conclusions drawn by applying the law to the facts, but an expert may refer to the law in expressing his or her opinion.”[xviii] 

“The line between a permissible opinion on an ultimate issue and an impermissible legal conclusion is not always easy to discern.”[xix]  Permissible testimony provides the jury with the “tools to evaluate an expert’s ultimate conclusion and focuses on questions of fact that are amenable to the scientific, technical, or other specialized knowledge within the expert’s field.”[xx]

However, “an expert may not simply tell the jury what result it should reach....”[xxi]  Further, “expert testimony is not admissible to inform the trier of fact as to the law that it will be instructed to apply to the facts in deciding the case.”[xxii]  Similarly, contract interpretation is not a proper subject for expert testimony.[xxiii] 

Finding that all three of the experts intended to offer opinions that were objectionable on the basis of helpfulness, Judge Arguello granted both parties’ motions to exclude the expert testimony of the opposing experts. 

For additional information about the Hansen Construction v. Everest National Insurance Company matter, or construction litigation in Colorado, you can reach Dave McLain at (303) 987-9813 or by e-mail at

[i] Hansen Construction, Inc. v. Everest National Insurance Company, 2019 WL 2602510 (D. Colo. June 25, 2019).
[iii] United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009)United States v. Crabbe, F. Supp. 2d 1217, 1220–21 (D. Colo. 2008); Fed. R. Evid. 702 advisory comm. notes.
[xiv] Id.
[xvi] United States v. Richter, 796 F.3d 1173, 1195 (10th Cir. 2015).
[xvii] Fed. R. Evid. 702.
[xviii] Richter, 796 F.3d at 1195 (quoting United States v. Bedford, 536 F.3d 1148, 1158 (10th Cir. 2008)); see, e.g.Killion v. KeHE Distribs., LLC, 761 F.3d 574, 592 (6th Cir. 2014) (report by proffered “liability expert,” which read “as a legal brief” exceeded scope of an expert’s permission to “opine on and embrace factual issues, not legal ones.”).
[xix] Richter, 796 F.3d at 1195 (quoting United States v. McIver, 470 F.3d 550, 562 (4th Cir. 2006)).
[xx] Id. (citing United States v. Dazey, 403 F.3d 1147, 1171–72 (10th Cir. 2005) (“Even if [an expert’s] testimony arguably embraced the ultimate issue, such testimony is permissible as long as the expert’s testimony assists, rather than supplants, the jury’s judgment.”)).
[xxi] Id. at 1195–96 (quoting Dazey, 403 F.3d at 1171).
[xxii] 4 Jack B. Weinstein et al., Weinstein’s Federal Evidence § 702.03[3] (supp. 2019) (citing, e.g.Hygh v. Jacobs, 961 F.2d 359, 361–62 (2d Cir. 1992) (expert witnesses may not compete with the court in instructing the jury)).
[xxiii] Id. (citing, e.g.Breezy Point Coop. v. Cigna Prop. & Cas. Co., 868 F. Supp. 33, 35–36 (E.D.N.Y. 1994) (expert witness’s proposed testimony that failure to give timely notice of loss violated terms of insurance policy was inadmissible because it would improperly interpret terms of a contract)). 

Monday, September 23, 2019

Why builders should reconsider arbitration clauses in construction contracts

By David M. McLain

My advice to home builders has long been to arbitrate construction defect claims instead of litigating them in front of juries.  Based on my experience and watching others litigate claims, I have learned that home builders usually fare better in arbitration than in jury trials, both in terms of what they have to pay the homeowners or HOAs and also in what they recover from subcontractors and design professionals.  Because of these dynamics, conventional wisdom has been that builders should arbitrate construction defect claims.  For several reasons, I am now questioning whether the time is right to consider a third option.

First, plaintiffs’ attorneys dislike arbitration and will continue their attempts to do away with arbitration for construction defect claims.  In 2018, the Colorado Legislature considered HB 18-1261 and HB 18-1262.  While both bills were ultimately killed, they showed the plaintiffs’ attorneys disdain for arbitration, and serve as a warning that attempts to prevent arbitration legislatively will continue.  If the legislature does away with the ability to arbitrate construction defect claims, and that is the only means of dispute resolution contained in a builder’s contracts, that builder may find itself in front of a jury.

Second, in rare instances, builders may disagree with an arbitration order to the extent that they want to appeal the decision.  Under the American Arbitration Association rules, once an arbitrator issues an award on the merits, it can only correct clerical, typographical, technical, or computational errors and has no ability to reconsider the merits.  Pursuant to Colorado’s Uniform Arbitration Act, a dissatisfied builder can only challenge an arbitration award in extreme circumstances, for example, if it was procured by corruption, fraud, or other undue means or because of evident partiality, corruption, or misconduct on the part of the arbitrator.  For better or worse, binding arbitration is just that – it is binding, and builders may regret that they have no appellate rights if they find themselves holding the short end of the stick. 

For these reasons, I believe that builders should start looking beyond arbitration clauses in their purchase and sale and subcontract agreements.  At the very least, builders should add language to protect against the legislature making arbitration clauses void as against public policy or otherwise impeding arbitration rights.  This language would say something to the effect that should the arbitration clause be unenforceable, the parties agree to waive a jury trial and to have their case decided by a judge after a bench trial.  A builder could also simply remove references to arbitration and require a bench trial from the outset.

Regardless of the language used, builders should ensure that the language in the purchase and sale agreement and the subcontracts call for the same dispute resolution forum, either arbitration or a bench trial.  In no case do you want to litigate the same issue twice, in two different forums. 

For additional information regarding arbitration or about construction defect litigation in Colorado, generally, you can reach David by telephone 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.