Bituminous Casualty Corporation v. Front Range Excavating, Inc. et al

Filing 59

ORDER denying 46 Plaintiffs Motion for Summary Judgment as to Counts I and II of its Complaint for Declaratory Judgment. Trial Preparation Conference set for 1/27/2015 at 10:00 AM in Courtroom A1002 before Judge Wiley Y. Daniel. A 3-day Jury Trial is set for 2/3/2015 09:00 AM in Courtroom A1002 before Judge Wiley Y. Daniel, by Judge Wiley Y. Daniel on 9/24/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-00399-WYD-KLM
BITUMINOUS CASUALTY CORPORATION,
Plaintiff,
v.
FRONT RANGE EXCAVATING, INC., TRI-STAR CONSTRUCTION WEST, LLC and
GOLD PEAK AT PALOMINO PARK, LLC,
Defendants.

ORDER

I.

INTRODUCTION
THIS MATTER is before the court on Plaintiff’s Motion for Summary Judgment as

to Counts I and II of its Complaint for Declaratory Judgment (ECF No. 46). On
September 17, 2014, I held a hearing on this motion. For reasons stated on the record
at the September 17, 2014 hearing and set forth below, I deny the motion for summary
judgment, finding genuine issues of material fact.
By way of background, Plaintiff Bituminous filed this declaratory judgment action
to determine whether it has an obligation to defend or indemnify Plaintiff’s named
insured, Front Range, in connection with two underlying lawsuits in which Front Range
is a defendant. The underlying lawsuits arise out of claims of negligent construction of a
condominium project in Highlands Ranch, Colorado. In the underlying lawsuits, Front
Range is alleged to have been a grading subcontractor on the project.
Plaintiff issued Front Range seven general liability policies and seven umbrella

policies, effective for consecutive annual policy periods beginning August 3, 2004 and
ending August 3, 2011. Here, the only policies in dispute are the primary and umbrella
policies issued for the 2004-2005 policy period (“the Bituminous Policies”). The
Bituminous Policies both contain endorsements that exclude coverage for “property
damage” at any location or project for which a consolidated insurance program (“wrapup policy”) has been obtained. A wrap-up policy was obtained for the project.
Plaintiff contends that the “wrap exclusions” were added to the Bituminous
policies after Front Range informed Bituminous that Front Range was covered by the
wrap-up policy in place for the Project. Plaintiff also claims that Front Range was aware
that if it participated in a wrap-up program with respect to a construction project, it could
request a premium reduction for payroll associated with that project, and in exchange,
the Bituminous policies would be endorsed to exclude coverage for that project.
Pursuant to the terms of the Bituminous Policies, Front Range was indeed credited with
a premium reimbursement based on Front Range’s participation in the wrap-up policy
for the Project, and the Bituminous Policies were endorsed to exclude coverage for
projects for which a wrap-up policy had been obtained (including the Project in
question). Plaintiff further asserts that Front Range never told Bituminous that it
disagreed with the premium reimbursement Front Range received or the wrap exclusion
endorsements excluding coverage for Front Range at the Project. On the other hand,
Front Range contends that the “wrap-up exclusions” were not valid and enforceable
endorsements to the 2004-2005 Bituminous Policies because they constituted a
unilateral modification of the 2004-2005 policies.
The underlying lawsuits allege that the damage at the Project was caused by
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Front Range’s grading work. There is a dispute as to whether Front Range’s grading
subcontract was entered on November 12, 2004 or April 15, 2005. Plaintiff asserts that
the wrap exclusions in the Bituminous Policies were effective January 31, 2005, over
two months before Front Range’s grading work began or on June 1, 2005. Thus,
Plaintiff argues that all claims for any alleged “property damage” at the Project are
excluded from coverage under the Bituminous Policies. Therefore, Bituminous has no
duty to defend or indemnify Front Range with respect to the underlying lawsuits. In
response, Front Range states that even if the exclusions were a part of the policies,
which it disputes, Plaintiff nonetheless had a duty to defend Front Range in the
underlying lawsuits because Plaintiff cannot demonstrate that the defective work
occurred only after the dates the wrap exclusions became effective. Front Range
further argues that there are disputed issues of fact as to whether the wrap exclusions
became effective on January 31, 2005 or June 1, 2005.
II.

FACTS
In 2010, the Gold Peak Homeowners Association (“Association”) sued Tri-

Star Construction West, LLC (“Tri-Star”) and Gold Peak at Palomino Park, LLC (“Gold
Peak”) for alleged defects in the construction of the Project. Front Range was not part
of the Association’s lawsuit. (ECF No. 46, Ex. A). In its lawsuit against Tri-Star and
Gold Peak, the Association alleged that the Project was defectively constructed
resulting in defects in, among other things, the grading work at the Project, including an
inadequate slope of grading adjacent to the foundation around the buildings. (ECF No.
46, Ex. A ¶ 47).
Tri-Star and Gold Peak, in turn, sued Front Range in two separate underlying
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lawsuits: (1) Tri-Star Construction West, LLC v. A-1 Firestopping, Inc., et al., Case No.
2012CV5863, pending in the District Court for the City and County of Denver, Colorado
(“Tri-Star Lawsuit”); and (2) Gold Peak at Palomino Park, LLC v. Harrington
Architectural Partnership, LLC., Case No. 2012CV295, pending in the District Court of
Douglas County, Colorado (“Gold Peak Lawsuit”) (collectively “the Underlying
Lawsuits”). (ECF No. 46, Ex. B and Ex. C).
A.

The Tri-Star Lawsuit

The Tri-Star lawsuit commenced on or about September 20, 2012 with the
filing of Tri-Star’s Complaint in the Denver County District Court, Colorado. A First
Amended Complaint was filed September 28, 2012. (ECF No. 46, Ex. B). Tri-Star
alleged that it was the general contractor of the Project and that Front Range was a
subcontractor that performed “overlot and rough grading work pursuant to contract” with
Tri-Star. (ECF No. 46, Ex. B, ¶ 7). Tri-Star further alleged that a judgment was
eventually entered against Tri-Star and in favor of the Association. (ECF No. 46, Ex. B,
¶ 29). Tri-Star also alleged that Front Range was one of the subcontractors on the
Project and that Front Range’s allegedly faulty work, at least in part, resulted in the
judgment against Tri-Star. (ECF No. 46, Ex. B, ¶ 7, 33). Tri-Star further alleged that
“there are insufficient funds available under the ‘OCIP’ or ‘WRAP’ policy number
GLW786580 issued by ACE/Westchester Surplus Lines Insurance Company (“ACE”) to
satisfy the judgments against Tri-Star and the Developer.” (ECF No. 46, Ex. B ¶ 31).
B.

The Gold Peak Lawsuit

The Gold Peak Lawsuit was filed on February 8, 2012. Gold Peak subsequently
filed a Second Amended Complaint on or about December 7, 2012. (ECF No. 46, Ex.
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C). In its Second Amended Complaint, Gold Peak alleged that it was the developer of
the Project, and that Front Range was a subcontractor that performed “overlot and
rough grading work.” (ECF No. 46, Ex. C, ¶ 9). Gold Peak further alleged that a verdict
was entered in favor of the Association and against Gold Peak. (ECF No. 46, Ex. C
¶ 39). Gold Peak also alleged that Front Range was one of the subcontractors and
that Front Range performed its work negligently, resulting, at least in part, in the verdict
against Gold Peak. (ECF No. 46, Ex. C ¶¶ 9, 39). Moreover, Gold Peak alleged that an
Owner Controlled Insurance Policy for the Project was obtained by Gold Peak. (ECF
No. 46, Ex. C ¶ 57).
C.

The Bituminous Policies

Bituminous issued seven general liability policies and seven umbrella policies to
Front Range, effective for consecutive annual policy periods beginning August 3, 2004
and ending August 3, 2011.
1.

The Primary Policies

Front Range has conceded that Bituminous has no duty to defend or indemnify
Front Range with respect to the claims asserted against Front Range in the Underlying
Lawsuits under the 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, or 2010-11 Primary
Policies because of the wrap policy exclusions contained in those policies. (ECF No.
46, Ex. D, pp. 7-18). As to the 2004-05 Primary Policy, Bituminous issued a wrap policy
exclusion to Front Range titled “Exclusion-Designated Operations Covered By A
Consolidated (Wrap-Up) Insurance Program,” which reads as follows:

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THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
CAREFULLY.
EXCLUSION-DESIGNATED OPERATIONS COVERED BY A
CONSOLIDATED (WRAP-UP) INSURANCE PROGRAM
***
The following exclusion is added to paragraph 2., Exclusions of
COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY
and COVERAGE B - PERSONAL AND ADVERTISING INJURY
LIABILITY (Section I - Coverages):
This insurance does not apply to “bodily injury”, “property damage”, or
“personal and advertising injury” arising out of either your ongoing
operations or operations included within the “products-completed
operations hazard” at the location described in the Schedule of this
endorsement, as a consolidated (wrap-up) insurance program has been
provided by the prime contractor/project manager or owner of the
construction project in which you are involved.
This exclusion applies whether or not the consolidated insurance program:
(1) Provides coverage identical to that provided by this Coverage Part;
(2) Has limits adequate to cover all claims; or
(3) Remains in effect.
(ECF No. 46-5, Ex. E). Front Range disputes the validity and enforceability of this wrap
policy exclusion.
The 2004-05 Bituminous Primary Policy also contains a separate schedule of
projects to which the wrap policy exclusion applies (ECF No. 46-5, Ex. E, Form No.
GOX-2287 (01/93)). That schedule contains the following listing:
EFFECTIVE 1/31/05
GOLD PEAK @PALAMINO PARK, LLC FOR THE GOLD PEAK
@PALAMINO PARK, LLC CONDOMINIUMS, 6700 PALAMINO
PARKWAY, HIGHLANDS RANCH, COLORADO 80126
(ECF No. 46-5, Ex. E, Form No. GOX-2287 (01/93)). This scheduled entry references
the Project at issue here.

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The wrap policy exclusion and schedule of locations were added to the 2004-05
Bituminous Primary Policy by a change endorsement which states “Policy Changes
Effective 06-01-05 to Policy Expiration 08-03-05.” (ECF No. 46-5, Ex. E).
2.

The Umbrella Policies

Front Range has conceded that Bituminous has no duty to defend or indemnify
Front Range with respect to the claims asserted against Front Range in the Underlying
Lawsuits under the 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, or 2010-11 Umbrella
Policies because each contains a wrap policy exclusion. (ECF No. 46, Ex. D at p.1830). As to the 2004-05 Umbrella Policy, Bituminous issued a wrap policy exclusion to
Front Range titled “Exclusion-Designated Operations Covered By A Consolidated
(Wrap-Up) Insurance Program,” which reads as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT
CAREFULLY.
EXCLUSION-DESIGNATED OPERATIONS COVERED BY A
CONSOLIDATED (WRAP-UP) INSURANCE PROGRAM
Description and Location of Operation(s):
Gold Peak @ Palomino Park, LLC for the Gold Peak @ Palomino Park,
LLC Condominiums, 6700 Palomino Parkway, Highlands Ranch, CO
80126
The following exclusion is added to paragraph 2., Exclusions of
COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE
LIABILITY (SECTION I - COVERAGES):
This insurance does not apply to “bodily injury” or “property damage”
arising out of either your ongoing operations or operations included within
the “products-completed operations hazard” at the location described in
the Schedule of this endorsement, as a consolidated (wrap-up) insurance
program has been provided by the prime contractor/project manager or
owner of the construction project in which you are involved.

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This exclusion applies whether or not the consolidated insurance
program:
(1) Provides coverage identical to that provided by this Coverage Part;
(2) Has limits adequate to cover all claims; or
(3) Remains in effect.
(ECF No. 46, Ex. F). Front Range disputes the validity and enforceability of this wrap
policy exclusion. The wrap policy exclusion was added to the 2004-05 Bituminous
Umbrella Policy by a change endorsement which states, “This endorsement is effective
from 01/31/05.” (ECF No. 46, Ex. F).
D.

The Wrap Policy

Westchester issued a Commercial General Liability Policy to Gold Peak
under Policy No. GLW786580 providing coverage for property damage at the Project
(“The Wrap Policy”), which was in effect from January 31, 2005 to March 31, 2009.
(ECF No. 46, Ex. G). Front Range is a Named Insured under the Wrap Policy. (ECF
No. 46, Ex. G). The Wrap Policy contains a “Prior Work Exclusion” which excludes
coverage for “property damage” arising out of “your work” or arising out of the “productscompleted operations hazard” if the work was performed prior to the effective date of
this policy. However, the exclusion contains an exception for “Front Range Excavating,
Inc.’s work which was completed under a contract dated November 12, 2004 at a
contract cost of $34,510.00. The work included mobile silt fence, stripping site of
vegetation and stockpiling. No other work is contemplated under this exception.” (ECF
No. 46, Ex. G).

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E.

The Contracts Between Tri-Star and Front Range

Tri-Star and Front Range entered into two contracts pertaining to the Project. The
first contract is dated November 12, 2004 and calls for Front Range to install silt fencing
and perform stripping of vegetation on the site of the Project. (ECF No. 46, Ex. H). The
second contract between Tri-Star and Front Range is dated April 15, 2005 and calls for
Front Range to perform “excavation and over-lotting” work at the Project. (ECF No. 46,
Ex. I). Both contracts state that Gold Peak is the owner of the Project. (ECF No. 46,
Ex. H and Ex. I). The April 15, 2005 contract reads as follows:
Wrap-Up Insurance. The Owner of the job site has elected to procure and
maintain a controlled insurance program whereby Owner will furnish
certain insurance coverages relating to on-site construction activities
known as a “Wrap-Up Insurance Program” for the Project. Under the
Wrap-Up Insurance Program, Owner will provide General Liability
Insurance coverages for all Subcontractors for work performed on-site at
the Project…
(ECF No. 46, Ex. I at 7).
III.

ANALYSIS
A.

Standard for Summary Judgment

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may
grant summary judgment where "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and the ... moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must ‘view
the evidence and draw all reasonable inferences therefrom in the light most favorable to
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the party opposing summary judgment.’” Atlantic Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). “‘Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.’” Id. (quotation omitted). Summary judgment
may be granted only where there is no doubt from the evidence, with all inferences
drawn in favor of the nonmoving party, that no genuine issue of material fact remains for
trial and that the moving party is entitled to judgment as a matter of law. Bee v.
Greaves, 744 F.2d 1387 (10th Cir. 1984).
However, only admissible evidence may be considered when ruling on a
summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d
1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823 (1985). Conclusory allegations do
not establish issues of fact sufficient to defeat summary judgment. McVay v. Western
Plains Service Corp., 823 F.2d 1395, 1398 (10th Cir. 1987). “Allegations unsupported
by any significant probative evidence tending to support the complaint are insufficient
(internal citation omitted), as are conclusory assertions of the existence of factual
disputes.” Schrader v. E.G.& G., Inc., 953 F. Supp. 1160, 1164 (D. Colo. 1997) (citing
Anderson, 477 U.S. at 247-48).
B.

Whether Bituminous Owes Front Range a Duty to Defend or Indemnify

I first turn to Plaintiff’s argument that it does not owe a duty to defend or
indemnify Front Range under the Bituminous Primary Policies (Count I) or the
Bituminous Umbrella Policies (Count II).
A duty to defend “is determined by an examination of the allegations in the
underlying complaint against the insured.” Compass Ins. Co. v. City of Littleton, 984
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P.2d 606, 614 (Colo. 1999); see also Gen. Security Indem. Co. v. Mountain States Mut.
Cas., 205 P.3d 529, 532 (Colo. App. 2009) (“In determining whether a duty to defend
exists, a trial court must limit its examination to the four corners of the underlying
complaint”.). “The duty to defend pertains to the insurance company’s duty to
affirmatively defend its insured against pending claims.” Constitution Assocs. v. New
Hampshire Ins. Co., 930 P.2d 556, 563 (Colo. 1996). The duty to indemnify, on the
other hand, “relates to the company's duty to satisfy a judgment entered against the
insured.” Id. The Colorado Supreme Court explained that “[t]he duty to defend is
triggered more easily than is the duty to indemnify.” Id. “Generally, the duty to defend
arises where the alleged facts even potentially fall within the scope of coverage. . . . Id.;
see also Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1089-90 (Colo.
1991).
The Colorado Supreme Court “has set a high standard for an insurance company
seeking to avoid its duty to defend”. Compass Ins. Co., 984 P.2d at 613. Quoting
Hecla Mining Co, 811 P.2d at 1089, it stated in the Compass decision:
[a]n insurer seeking to avoid its duty to defend an insured bears a heavy
burden, as the duty to defend arises when the underlying complaint against
the insurer alleges any facts that might fall within the coverage of the policy.
“The actual liability of the insured to the claimant is not the criterion which
places upon the insurance company the obligation to defend.” Rather, the
obligation to defend arises from allegations in the complaint, which if
sustained, would impose a liability covered by the policy. “[W]here the
insurer's duty to defend is not apparent from the pleadings in the case
against the insured, but the allegations do state a claim which is potentially
or arguably within the policy coverage, or there is some doubt as to whether
a theory of recovery within the policy coverage has been pleaded, the insurer
must accept the defense of the claim.
Id. at 613-14. In other words, the duty to defend exists “unless there is no factual or

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legal basis on which the insurer might eventually be held liable to indemnify the
insured.” Hecla Mining Co., 811 P.2d at 1090.
1.

Whether the Wrap Exclusions are Valid and Enforceable Parts of
the Bituminous Policies or Unilateral Modifications Unsupported by
Consideration

In the motion, Plaintiff Bituminous first asserts that Front Range sought and
obtained a premium reimbursement (constituting consideration) based on its
participation in the wrap-up insurance program.
The Bituminous policies issued to Front Range contain the following provision
that explains to the insured how the premium is to be calculated:
This policy was issued with an “estimated premium” which requires an
adjustment after the policy expires. The estimated premium for this type
of policy is usually based on the amount of your payroll...
After the policy expires and the actual amount of the payroll…can be
determined, the estimated premium is adjusted to develop the final
premium. If the adjusted premium is less then the estimated premium, the
difference will be refunded. If it is more, you will receive a bill for the
additional premium.
(ECF No. 46, Ex. A). The audit information page also explains that Front Range will be
given a credit, but only if the policy is properly endorsed to reflect Front Range’s
participation in a wrap-up insurance program:
Consolidated (Wrap-Up) Insurance Programs
If you are a contractor involved in a consolidated (wrap-up)
insurance program, your payroll/receipts will not be automatically
excluded from our audit. Please be sure to contact your agent before you
begin working under a wrap-up program. If your policies are not endorsed
properly, payroll/receipts will not be excluded from the audit.
(ECF No. 52, Ex. A).

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In support of its motion, Plaintiff Bituminous submitted evidence that during the
2004-05 policy period, Front Range, through its insurance agent, CIA Leavitt Insurance
Agency (“CIA-Leavitt”), informed Bituminous that Front Range was enrolled in a wrapup program in connection with the Gold Peak project in order to obtain a premium
reduction at audit. (ECF No. 52, Ex. 1 and Ex. B). Bituminous contends that pursuant
to the premium audit provisions, once Front Range provided Bituminous with
documents demonstrating its participation in the wrap-up insurance program, the
Bituminous policies were endorsed with wrap exclusions and Front Range was given
credit during the premium audit.
According to the Affidavit of Jean Whyte, Branch Manager of Bituminous’ Denver
underwriting office, once the policy expired, Bituminous performed a premium audit as
required by the policy. (ECF No. 52, Ex. B ¶ 4). As part of the audit, payroll associated
with those construction projects in which Front Range was enrolled in a wrap-up
insurance program were removed from the premium calculation, resulting in a reduction
of premium in favor of Front Range. (ECF No. 52, Ex. B ¶ 7). This resulted in a net
return of $267.00 to Front Range for the 2004-05 primary and umbrella policies. (ECF
No. 52, Ex. B ¶ 8).
On the other hand, Front Range submitted an affidavit of Ralph Nance, the
President of Front Range, stating that he “had no discussions, conversations, or
additional correspondence with Bituminous concerning the Westchester Policy or the
impact being an insured under that Policy would have on Front Range's liability and
umbrella coverage with Bituminous.” (ECF No. 49, Ex. 1). He further stated that
“[n]either I, nor any other representative of Front Range agreed to the
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changes set forth in the change endorsements. Had Bituminous discussed the issue
with me, I would not have agreed to the changes set forth in the change endorsements.”
(ECF No. 49, Ex. 1).
After carefully considering the parties’ arguments at the September 17, 2014
hearing and all of the pertinent evidence, I find that there is a genuine issue of material
fact as to whether there was mutual assent to modify the policies to include the wrap
exclusions. In support of its position that the wrap exclusions are valid and enforceable,
Bituminous submitted correspondence demonstrating that Front Range not only
assented to the wrap exclusions, but also sought a premium reimbursement based on
its enrollment in the wrap-up insurance program for the Gold Peak project. Bituminous
goes on to assert that it endorsed the policies with the wrap exclusions, provided copies
of the exclusions to Front Range and credited Front Range for those projects during the
premium audit resulting in a reimbursement to Front Range. However, Front Range’s
President refutes the entirety of these events in his affidavit. While I am dubious that no
one at Front Range knew about and ultimately agreed to the wrap exclusions, given
Bituminous’ heavy burden and viewing the evidence in the light most favorable to Front
Range, I simply cannot conclude that Front Range agreed to the changes to the
Bituminous’ policies, making the wrap exclusions valid and enforceable. I deny
summary judgment as to this issue.
2.

Whether the Damage at the Gold Peak Construction Project Arose
out of Front Range’s Defective Grading Work or Vegetation
Stripping and Silt Fence Installation

Second, Plaintiff Bituminous argues that the underlying lawsuits allege that the
damage to the project was partially caused by “Grading and Drainage,” specifically,
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“inadequate Slope of Grading Adjacent to the Foundation at the backfill zone around the
buildings.” (ECF No. 46, Ex. A, B and C). Both Tri-Star and Gold Peak allege that
Front Range’s work on the Project was “overlot and rough grading work.” In response,
Front Range contends that the allegation of improper slope grading may arise from
vegetation stripping and silt fence installation, arguing that the underlying complaints
failed to describe what constitutes vegetation stripping and silt fence installation or how
the alleged damage might have related to this work. Thus, the allegedly defective
grading work could have potentially occurred from work covered by the November 12,
2004 contract, which was prior to the issuance of the wrap exclusions.
Again after hearing from the parties at the September 17, 2014 hearing and
viewing the evidence in the light most favorable to Front Range, I agree with Front
Range that it is possible that the work done pursuant to each contract was integrally
related in that the work performed under the November 12, 2004 contract was done in
preparation for the more extensive project called for in the April 15, 2005 contract.
Additionally, it is true that the underlying complaints do not explicitly specify which
contract was the damaging contract. Therefore, I find genuine issues of material fact
with respect to whether the damaging work was performed prior to the issuance of the
wrap exclusions. Summary judgment is denied as to this issue.
3.

Whether the Wrap Exclusions Became Effective on January 31,
2005 or June 1, 2005

Finally, Plaintiff Bituminous argues that the change endorsement modifying the
general liability policy clearly states that the wrap exclusions became effective as to the
Gold Peak Project on January 31, 2005, more than two months before Front Range
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began its work under the April 15, 2005 contract. Alternatively, Front Range claims that
there is a genuine dispute about what date was the effective date for the change
endorsement. It is undisputed that the endorsement form states “Policy Changes
Effective 06-01-05 to Policy Expiration 08-03-05.” (ECF No. 46-5 at 23). However, the
Manuscript Endorsement to the policy lists the effective date as January 31, 2005 for
the Gold Peak project.
At the September 17, 2014 hearing, Bituminous argued that the January 31,
2005 date in the wrap exclusion schedule should control over the June 1, 2005 date on
the endorsement page. Trujillo v. State Mut. Life Assur. Co. of Worcester, Mass., 511
P.2d 534 (Colo. App. 1973) (holding that in construing an insurance contract, the courts
consider the policy as a while, and specific provisions will control general provisions
where the general provisions do not contradict the specific provisions); 2 Couch on Ins.
§ 22:2 (stating that if an insurance policy contains both general and specific provisions,
the specific provision controls). While I agree with Bituminous that when there is a
contradiction, which is clearly the case here, a specific provision should control over a
more general provision, I find that Bituminous failed to prove which date—January 31,
2005 or June 1, 2005—should be considered “specific” and which date should be
considered “general.” In looking at the two conflicting dates, I find it reasonable to
conclude that the Wrap policy was in place as of January 31, 2005, but was not
effective as it relates to the liability policy until June 1, 2005. Thus, in viewing the
evidence in the light most favorable to Front Range, I find a genuine dispute as to
whether the wrap exclusions became effective on January 31, 2005 or June 1, 2005.
There are two conflicting dates in the policy, and based on my careful review, there is
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no clear indication as to which date controls. This is a pivotal issue because if the
damage occurred before Bituminous changed its policy to include a wrap exclusion,
then the Bituminous policy would provide coverage for that damage. Accordingly, I find
genuine issues of material fact as to this issue, and summary judgment is denied.
IV.

CONCLUSION
Based upon the foregoing, it is
ORDERED that Plaintiff’s Motion for Summary Judgment as to Counts I and II of

its Complaint for Declaratory Judgment (ECF No. 46) is DENIED. It is
FURTHER ORDERED that 3-day Trial to the Court is set for Tuesday, February
3, 2015 at 9:00 a.m. A final trial preparation conference is set for Tuesday, January
27, 2015 at 10:00 a.m. The parties are reminded to review and comply with all
directives set forth in my Practice Standards with respect to trial preparation.
Dated: September 24, 2014

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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