Dave McLain to Present at an Upcoming Lunch & Learn Event on the State of the State's Construction Industry

For more information about this event or to register to attend, please visit http://junelnl.eventbrite.com.

HOA Coalition Statement on Construction-Defects Transparency Legislation

FOR IMMEDIATE RELEASE

Contact: Bill Ray / 303-885-1881

DENVER—The Homeownership Opportunity Alliance—a broad coalition of business groups, builders, elected officials and affordable housing advocates—provided the following statements on reports that there will be no construction-defects transparency legislation this session:

“We are disappointed that negotiations broke down today and that event was immediately turned into an effort to use the media to score political points. The Homeownership Opportunity Alliance has worked on this issue for three years, and we are committed to finding a resolution that will address Colorado’s housing needs, especially through the development of attainable condominiums,” said Tom Clark, Chief Executive Officer of the Metro Denver Economic Development Corporation. “We understand the importance of this issue for our state, for working families, for first-time homebuyers and for anyone along the housing spectrum who is struggling to find a home. That's why we will remain committed to working on this issue.”                                                                                                                                                                                                

The Homeownership Opportunity Alliance’s diverse coalition includes more than 50 organizations from across Colorado. The coalition also includes individual mayors and 14 different communities that have passed local ordinances to address attainable condominium development.

“Affordable and attainable housing has been a top priority of the 41-member Metro Mayors Caucus for decades,” said Lakewood Mayor Adam Paul. “Throughout this process, we have partnered with affordable housing advocates and the business community because we know that providing a spectrum of housing, from millennials to seniors, is so critical to creating and maintaining inclusive communities."

“While we are disappointed that we could not convince the other side to increase transparency and give homeowners a voice in whether their most precious asset—their home—is tied up in long and costly litigation, we are not without hope,” Mayor Paul continued. “In more than 14 communities, representing nearly 2.4 million Coloradans, we have taken steps to ensure that homeowners receive information and have a say in whether their board engages in litigation that could leave them unable to sell or refinance their home—and on the line for costly assessments. We will continue to pursue transparency and accountability at the local level through the passage of local ordinances.”

The coalition also has featured our state’s leading affordable-housing advocates, including Housing Colorado, Habitat for Humanity and the Urban Land Conservancy.

“Housing Colorado’s interest in this issue has always been—and will remain—seeking reform that will result in more affordable, entry-level homeownership opportunities for moderate income Coloradans,” said Sara Reynolds, executive director of Housing Colorado. “We are profoundly disappointed that once again, the opportunity for meaningful reform on construction-defects litigation has failed due to long-standing and entrenched political alliances."

“The construction defects issue is a complex one, but the tools were available to provide a common-sense solution that would address many of the flaws in our current system.  The opportunity has been lost.  With median home prices leaping 12 percent in just one year alone, homeownership will continue to get farther and farther out of reach for hundreds of thousands of Coloradans,” Reynolds concluded.

Homeownership Opportunity Alliance Coalition

American Council of Engineering Companies of Colorado

American Institute of Architects – Colorado Chapter

American Subcontractors Association

Apartment Association of Metro Denver

Associated Builders and Contractors, Rocky Mountain

Associated General Contractors

Aurora Economic Development Council

Building Jobs 4 Colorado

Cherry Creek Area Business Alliance

Colorado Apartment Association

Colorado Association of Commerce and Industry

Colorado Association of Home Builders

CO Association of Mechanical and Plumbing Contractors

CO Association of Plumbing-Heating-Cooling Contractors

Colorado Association of REALTORS

Colorado Bankers Association

Colorado BUILDS

Colorado Business Roundtable

Colorado Civil Justice League

Colorado Competitive Council

Colorado Concern

Colorado Contractors Association

Colorado Mortgage Lenders Association

Colorado Municipal League

Colorado Springs Business Alliance

Colorado Women's Chamber of Commerce

Denver Metro Chamber of Commerce

Denver South Economic Development Partnership

Douglas County Business Alliance

Douglas County Commissioners

Downtown Denver Partnership

Economic Development Council of Colorado

Habitat for Humanity

Hispanic Chamber of Commerce of Metro Denver

Hispanic Contractors of Colorado

Home Builders Association of Metro Denver

Hope Communities

Housing and Building Association of Colorado Springs

Housing Colorado

Independent Bankers of Colorado

Independent Electrical Contractors

International Council of Shopping Centers

Land Title Association

Mechanical Contractors Association of Colorado

Mechanical Service Contractors of Colorado

Metro Denver Economic Development Corporation

Metro Mayors Caucus

NAIOP Colorado

National Electrical Contractors

NFIB—Colorado

Parker Area Chamber of Commerce

Sheet Metal and Air Conditioning Contractors

South Metro Denver Chamber

Transit Alliance

Urban Land Conservancy

KF-103 v. American Family Mutual Insurance: Tenth Circuit Upholds the “Complaint Rule”

In Colorado, the “complaint rule” requires insurance carriers to provide a defense to its insured when the allegations contained in the complaint allege any set of facts that may fall within an insurance policy.  Some insurers have pushed back on this rule arguing that it may cause an insurer to exercise its duty to defend although the underlying facts ultimately do not fall within the policy.

In KF 103-CV, LLC v. American Family Mutual Insurance Company, 2015 WL 6517782, the Tenth Circuit of the United States Court of Appeals upheld the complaint rule.  In its decision, the Tenth Circuit cited several Colorado state court rulings recognizing the courts’ intent to incentivize insurers to defend policies that may facially fall within the terms of the policy.  Where there is uncertainty about coverage, the Tenth Circuit cited a Colorado Supreme Court case stating, “[t]he appropriate course of action for an insurer who believes that it is under no obligation to defend, is to provide a defense to the insured under the reservation of its rights.” 

KF 103 v. American Family arose out of an underlying easement dispute.  KF 103 purchased a piece of property from the Infinity Group and, as a condition of the purchasing agreement, KF 103 required the Infinity Group to make improvements to an intersection near the property.  Several neighbors complained, contending that the improvements interfered with their easements adjacent to the property.

KF 103 brought a quiet title action and, on October 13, 2010, the state district court ruled that the improvement was trespass and intentional damage to the easement, ordering KF 103 to restore the easement.  In a second hearing to determine remedies, the El Paso County Court held KF 103 liable for trespass, conspiracy to trespass, and negligence.  KF 103 requested that American Family reimburse it for its attorney’s fees and defense costs, which it refused.  KF 103 then brought suit against American Family alleging breach of contract and bad faith for its refusal to defend.  The case was removed to federal district court where American Family was found to have no duty to defend KF 103 because the claims did not fall within the coverage.  KF 103 appealed.

The Tenth Circuit opined that, to date, neither the Colorado Supreme Court nor the Colorado Court of Appeals have recognized any exceptions to the complaint rule.  The Court explained that Colorado courts are reluctant to do so to protect an insured party’s reasonable expectation that “[b]y purchasing insurance … he will not be required to furnish the cost of defending actions that facially fall within the terms of the policy.”  Cotter Corp v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 828 (Colo. 2004) (en banc).  The Tenth Circuit further stated that Colorado courts acknowledge the purpose of insurance coverage and place the burden on the insurer, rather than the insured, to “accommodate the uncertainty of what the underlying litigation might reveal regarding the duty to defend.”    

Specific to KF 103, its general liability insurance policy with American Family covered damages that KF 103 “becomes legally obligated to pay” because of “property damage” resulting from an “occurrence.”  Additionally, the policy excluded damages “expected or intended from the standpoint of the insured.”  To determine whether American Family had a duty, the Tenth Circuit analyzed only “the factual allegations in the complaint, and not the legal claims …” Gerrity Co. v. CIGNA Prop. & Cas. Ins. Co., 850 P.2d 606, 607 (Colo. App. 1993). 

American Family argued that the claims, like trespass, brought against KF 103 are intentional torts and therefore, excluded from the policy.  However, the Tenth Circuit found that volitional acts do not always have “expected or intended” damages.  Trespass only requires the intent to do the act that itself constitutes, or inevitably causes—the intrusion; intent to violate property rights is not required.  Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1067 (Colo. App. 1990).  Thus, KF 103 could be liable for trespass because it intended to alter the property but still covered by the policy because it did not intend to harm the neighbors’ easement rights. 

Furthermore, the Tenth Circuit found that where the allegations asserted KF 103 was deliberate in its actions, they also asserted KF 103 was reckless as an alternative.  Recklessness is not necessarily conduct causing damage that is “expected or intended” from the standpoint of the insured.  Because there is some doubt as to whether the damage to the easement rights was “expected or intended,” the Tenth Circuit held that the allegations are arguably covered by the policy as an occurrence.  It stated that terms of an insurance policy should be construed broadly in favor of a duty to defend.  The district court decision was reversed and remanded finding that American Family had a duty to defend.

The complaint rule remains the general rule.  Developments in KF 103 v. American Family indicate that some Colorado courts view intentional claims as exclusions to insurance policies.  However, the Tenth Circuit challenges such courts to place the burden on the insurer regarding the duty to defend, then conduct a more in-depth analysis of exclusions of intentional claims.

For more information regarding the KF 103 decision or Colorado construction litigation, you can reach Adria Robinson by e-mail at robinson@hhmrlaw.com or by telephone at (303) 987-9814.