Tuesday, February 8, 2011

Revisiting Boulder Plaza: Appeal Affirmed and Cert. Denied

Roughly one year ago, we blogged about a case named United Fire & Casualty Company v. Boulder Plaza Residential, LLC, 06-CV-00037-PAB-CBS. You may find it here (February 3, 2010 Entry).

In that case, the court granted summary judgment to United Fire & Casualty following a motion to reconsider based on the case, General Security Indemnity Co. of Arizona v. Mountain States Mutual Casualty Co., 205 P.3d 529 (Colo. App. 2009). The Colorado Legislature responded to the General Security case by enacting Colorado Revised Statute § 13-20-808, which critiques the restrictive nature of General Security’s interpretation of what constitutes an “accident.” C.R.S. § 13-20-808 expands the interpretation stating, “in interpreting a liability insurance policy issued to a construction professional, a court shall presume that the work of a construction professional that results in property damage, including damage to the work itself or other work, is an accident.”

Thus, when United Fire came up on appeal, United Fire & Casualty Co. v. Boulder Plaza Residential, LLC, --- f.3d ----, 2011 WL 242443 (C.A.10 (Colo.) Jan 27, 2011), the prospect of resolving coverage issues in Colorado seemed bright. The appeal was set to resolve whether United Fire & Casualty owed the general contractor, McCrery & Roberts Construction Co. (M&R), a duty to defend or a duty to indemnify based on the policy interpretations put in place by C.R.S. § 13-20-808. However, the court quickly pointed out, “we may resolve the issues of whether UFC owed M&R a duty to defend or a duty to indemnify without reference to General Security or C.R.S.§ 13-20-808.”

Instead, the court relies on an “ongoing operations” exclusion present in the underlying policy. According to the court, the complaint contained no allegations of damage that occurred during the contractors work on the project. As such, the court held “these allegations refer to completed, rather than ongoing operations, and that ends the matter.” The court ignores Boulder Plaza’s pleas to look beyond the complaint’s four corners stating that the case does not fall into any exceptions and that it will not expand the well-established “complaint” rule.

As for the duty to indemnify, despite several arguments put forth by Boulder Plaza, the court remains steadfast and quotes the Colorado Supreme Court in Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 621 (Colo. 1999) which held that “where there is no duty to defend, it follows that the can be no duty to indemnify.” The court lists out various other reasons why United Fire & Casualty does not owe a duty to indemnify, but the holding is the same. The court affirmed the district court’s grant of summary judgment and denied a motion to grant certification of the question to the Colorado Supreme Court.

In the end, it appears we will have to wait a bit longer for the Colorado Supreme Court to weigh in on the coverage dilemma raised by General Security and C.R.S. § 13-20-808.

For additional information regarding Colorado construction litigation, please contact David M. McLain at (303) 987-9813 or by e-mail at mclain@hhmrlaw.com.

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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.