Schniedwind v. American Family Mutual Insurance Company

Filing 78

ORDER. Defendant American Family Mutual Insurance Company's Motion for Partial Summary Judgment 49 is DENIED. By Judge Philip A. Brimmer on 1/12/16.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01734-PAB-NYW
PATRICIA SCHNIEDWIND,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Partial Summary Judgment
[Docket No. 49] filed by defendant American Family Mutual Insurance Company
(“American Family”). The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
I. BACKGROUND1
Plaintiff owned a Homeowners Policy (“the policy”) with American Family that
provided coverage for losses to her real property. Docket No. 49 at 2, Statement of
Undisputed Material Fact (“SUMF”) 1. The policy states that any lawsuit by the
policyholder against American Family “must be brought within one year after the loss or
damage occurs.” Id. at 3, SUMF 7; Docket No. 49-1 at 13, § I.18. T he policy period is
from November 4, 2011 through November 4, 2012. Docket No. 49 at 3, SUMF 8.
Plaintiff alleges that the insured property was damaged by the Waldo Canyon
fire on June 26, 2012. Id. at 2, SUMF 4. Plaintiff filed a claim with American Family

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The following facts are undisputed unless otherwise indicated.

under the policy in June 2012. Id. at 3, SUMF 5. The parties disputed the extent of the
damage to the covered property. Id. Plaintiff filed this lawsuit on June 20, 2014,
alleging claims for breach of the implied covenant of good faith and fair dealing, breach
of contract, and statutory bad faith pursuant to Colo. Rev. Stat. §§ 10-3-1115, 1116.
See Docket No. 1.
In May 2013, the Colorado General Assembly passed the Homeowner’s
Insurance Reform Act of 2013 (the “Act”). 2013 Colo. Legis. Serv. Ch. 183, § 2. The
Governor signed the bill on May 10, 2013.
http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont/B95B7D8CF123429187257
AEE005702F7?Open&file=1225_enr.pdf (last visited January 11, 2016). Section
110.8(12) of the statute provides:
(a) Notwithstanding any provision of a homeowner’s insurance policy that
requires the policyholder to file suit against the insurer, in the case of any
dispute, within a period of time that is shorter than required by the applicable
statute of limitations provided by law, a homeowner may file such a suit
within the period of time allowed by the applicable statute of limitations;
except that this paragraph(a):
(I) Does not revive a cause of action that, as of May 10, 2013, has
already been barred by contract; and
(II) Applies only to a cause of action that, as of May 10, 2013, has not
been barred by contract.
(b) On and after January 1, 2014, an insurer shall not issue or renew a
homeowner’s insurance policy that requires the policyholder to file suit
against the insurer, in the case of any dispute, within a period of time that is
shorter than required by the applicable statute of limitations provided by law.
Colo. Rev. Stat. §10-4-110.8(12). W hile the rest of the Act took effect on January 1,
2014, Section 110.8(12) took effect on the date the governor signed the law. 2013
Colo. Legis. Serv. Ch. 183, § 5. Before the passage of Section 110.8(12), Colorado
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courts had held that parties to a contract “may require that actions founded on the
contract be commenced within a shorter period of time than that prescribed by the
applicable statute of limitations.” Grant Family Farms, Inc. v. Colo. Farm Bureau Mut.
Ins. Co., 155 P.3d 537, 539 (Colo. App. 2006). Section 110.8(12) creates an ex ception
for homeowners insurance policies to the general rule that contractually-shortened
limitations on lawsuits are enforceable under Colorado law.
American Family seeks summary judgment on plaintiff’s breach of contract and
statutory bad faith claims on the ground that they are barred by the policy’s one-year
limit on bringing suit. Plaintiff responds that, pursuant to Section 110.8(12), her claim s
are not time-barred.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). Where “the moving party does not bear the ultimate burden of persuasion at

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trial, it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation
marks omitted)). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for
summary judgment, a court must view the evidence in the light most favorable to the
non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
III. ANALYSIS
Plaintiff alleges that the loss occurred on June 26, 2012. Docket No. 49 at 2,
SUMF 4. Plaintiff did not file this lawsuit until June 20, 2014. Docket No. 1. Since the
policy requires a policyholder to bring suit within one year after suffering loss or damage
under the policy, plaintiff’s claim, which was filed almost two years later, is barred
unless Section 110.8(12) overrides the policy’s limitation provision.

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A. Application of Section 110.8(12) to Expired Policies
American Family argues that Section 110.8(12) does not apply retroactively to
plaintiff’s homeowners’ policy. Docket No. 49 at 8. Colorado statutes generally do not
apply retroactively and are “presumed to be prospective in . . . operation.” Colo. Rev.
Stat. § 2-4-202. Accordingly, “[a]bsent legislative intent to the contrary, we presume a
statute operates prospectively.” City of Colo. Springs v. Powell, 156 P.3d 461, 464
(Colo. 2007). Although “express language of retroactive application is not necessary to
find that a law is intended to apply retroactively,” City of Golden v. Parker, 138 P.3d
285, 290 (Colo. 2006), a clear legislative intent to this effect must generally appear on
the face of the statute or in its legislative history. See, e.g., Powell, 156 P.3d at 465-68
(finding no clear legislative intent to apply statute retroactively after examination of the
statute and its legislative history).
Section 110.8(12) allows a homeowner to file suit within the statutory period,
despite a shorter contractual limitation in the insurance policy, so long as the
homeowner’s cause of action was not barred by contract as of May 10, 2013. Colo.
Rev. Stat. §§ 10-4-110.8(12)(a)(I)-(II). “Legislation is applied . . . retroactively when it
operates on transactions that have already occurred or rights and obligations that
existed before its effective date.” Ficarra v. Dep’t of Regulatory Agencies, Div. of Ins.,
849 P.2d 6, 11 (Colo. 1993). The language of Section 110.8(12)(a) confirms that the
legislature intended that the statute apply retroactively. In clarifying that Section
110.8(12) did not revive any cause of action already barred by contract and that it
applies only to causes of action not barred by contract as of May 10, 2013, the

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legislature intended that the statute apply to homeowners’ insurance policies that
predated the Act, but whose contractual limitations period had not yet expired. If
Section 110.8(12) were meant to be applied prospectively only and not to policies
entered into before the Act was signed into law, then the language limiting its
application to causes of action not barred as of May 10, 2013 would be without
meaning. Such a construction would be “contrary to the well-established rule of
statutory construction that the entire statute is intended to be ef fective.” Flower v.
People, 658 P.2d 266, 268 (Colo. 1983) (citing Colo. Rev. Stat. § 2-4-201(1)(b)).
American Family does not dispute that the legislature intended that Section
110.8(12) apply retroactively to certain homeowners’ policies. See Docket No. 49 at 89. American Family does dispute, however, that the statute applies to a policy, such as
the one at issue, whose term had expired before May 10, 2013. 2 American Family
argues that, because Section 110.8(12) is silent as to ex pired insurance policies, the
statute was not intended to reach those policies. Docket No. 49 at 8-9. The Court
disagrees. Section 110.8(12) applies to “any provision” of a homeowner’s insurance

2

It is unclear why American Family’s analysis focuses on whether the policy was
expired or unexpired since the effect of Section 110.8(12) on a cause of action that, as
of May 10, 2013, had not been barred by contract does not seem to differ based on
whether that contractual provision was part of an expired or unexpired contract. For
instance, American Family says that it relied on the enforceability of the contractual
limitation. Docket No. 52 at 9. But presumably such reliance took place as of the time
that it tendered the policy to plaintiff for acceptance. American Family does not suggest
that, had the policy period been in effect on May 10, 2013, it could have somehow
avoided application of Section 110.8(12), for instance, by abrogating or modifying the
contract. Thus, it would seem that American Family’s claim that the contractual
limitations period is a vested contract right does not depend on whether the policy was
expired on May 10, 2013, but rather is based simply on the fact that the limitations
period is part of an otherwise valid contract.
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policy that shortens the otherwise-applicable statute of limitations, with the exception of
a cause of action already contractually barred as of May 10, 2013. Colo. Rev. Stat.
§ 10-4-110.8(12)(a). The fact that the statute makes no distinction between policies still
in existence as of May 10, 2013 and policies that expired before that date does not, as
American Family urges, exempt expired policies from the statute. Rather, the statute
focuses on causes of action. The plain text of the statute provides that any cause of
action not contractually barred by May 10, 2013 is subject to the statutory limitations
period, while any cause of action that had been barred by contract as of that date is not
revived. Since plaintiff suffered the loss on June 26, 2012, less than one year before
May 10, 2013, the policy’s one year limitations period had not barred her cause of
action as of the statute’s effective date. As a result, plaintiff is correct that Section
110.8(12)(a) gives her the right to file a claim against American Family within the
applicable statute of limitations, “[n]otwithstanding any provision of a homeowner’s
insurance policy” to the contrary. Colo. Rev. Stat. § 10-4-110.8(12)(a).
The case that American Family cites, Greystone Constr., Inc. v. Nat’l Fire &
Marine Ins. Co., 661 F.3d 1272 (10th Cir. 2011), does not com pel a contrary result. In
Greystone, the Tenth Circuit considered whether Colo. Rev. Stat. § 13-20-808, which
provided a statutory definition of the term “accident,” applied retroactively to expired
policies. Id. at 1279-80. Greystone does not, as American Family argues, require the
Court to interpret any insurance-related legislation that does not explicitly include
expired policies to exclude such policies. In Greystone, the legislative act that created
Section 808, H.B. 10-1394, contained an “applicability” section that limited its

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application to “all insurance policies currently in existence or issued on or after the
effective date of this act.” Id. at 1280 (citing 2010 Colo. Legis. Serv. Ch. 253, § 3)
(emphasis in original). The phrase “currently in existence” in the text of the act – not
the statute’s silence as to existing policies – compelled the conclusion that the Colorado
General Assembly intended to exclude expired policies from the purview of Section
808. See id. (noting that the similar phrase “existing policy” as used in Colorado law
referred to “policies whose policy period has not yet expired”). Neither Section
110.8(12) nor the text of the Act limits its application to policies “currently in existence”
or “existing policies.” See Colo. Rev. Stat. § 10-4-110.8(12); 2013 Colo. Legis. Serv.
Ch. 183. Instead, as noted earlier, Section 110.8(12) f ocuses on causes of action. In
the absence of any such limitation in the statute or its legislative history to expired
policies, the Court gives effect to the plain meaning of the statute, which applies to “any
provision” of a homeowner’s policy – expired or currently in existence – that establishes
a shorter time within which to file a lawsuit than provided for by the applicable statute of
limitations. Colo. Rev. Stat. § 10-4-110.8(12)(a).
B. Constitutional Challenge
American Family argues that, if Section 110.8(12) is interpreted to apply to
expired policies, the statute violates both the Colorado and United States Constitutions.
Although the basis for American Family’s constitutional challenge is somewhat unclear,
American Family appears to argue that retroactive application of Section 110.8(12)
would violate both the Colorado and United States Constitutions’ prohibitions on ex post
facto laws and laws impairing the obligations of contracts. See Docket No. 49 at 10-11.

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1. Retrospective Legislation Under Colorado Law
Article II, § 11 of the Colorado Constitution states that “[n]o . . . law . . .
retrospective in its operation . . . shall be passed by the general assembly.” Colo.
Const. art. II, § 11. 3 “Because some retroactively applied legislation is constitutional
while some is not, Colorado courts have marked this distinction by evoking the term
contained in the constitutional provision – ‘retrospective’ – to describe a statute whose
retroactive application is unconstitutional.” In re Estate of DeWitt, 54 P.3d 849, 854
(Colo. 2002). A statute is retrospective under the Colorado Constitution “if it either (1)
impairs a vested right, or (2) creates a new obligation, imposes a new duty, or attaches
a new disability[.]” Id. at 855. American Family argues that Section 110.8(12) impairs a
vested right because the policy’s one year time period for lawsuits “was a vested
contract right that could not constitutionally be abrogated[.]” Docket No. 52 at 9. 4

3

American Family also suggests that Section 110.8(12) violates the Ex Post
Facto Clause of the United States Constitution. See Docket No. 49 at 11 (arguing that
Section 110.8(12) is “unconstitutional as an expo facto [sic] law which violates . . . U.S.
Const. art. 1, § 10.”); Docket No. 52 at 8 (“The Colorado and U.S. Constitutions both
forbid ex post facto legislation”). The Ex Post Facto Clause provides that “[n]o State
shall . . . pass any . . . ex post facto Law[.]” U.S. Const. art. 1, § 10 cl. 1. However, “the
constitutional prohibition on ex post facto laws applies only to penal statutes which
disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41
(1990) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)). Section 110.8(12) is not penal in
nature.
4

American Family does not argue that Section 110.8(12) creates a new
obligation, duty, or disability. See generally Docket Nos. 49, 52. The Court, therefore,
does not address this issue. Cf. Ficarra, 849 P.2d at 16, n.16 (“The plaintiffs have not
raised on appeal the issue of whether the application of the Act by the Division attaches
a new disability to them with respect to transactions or considerations already past. We
therefore express no opinion on the issue”).
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A vested right is one that is “something more than a mere expectation based
upon an anticipated continuance of the existing law.” DeWitt, 54 P.3d at 856 (citing
Ficarra, 849 P.2d at 16). A right is vested if it survives “the repeal of a statute or the
abrogation of the common law from which [it] may have originated.” Ficarra, 849 P.2d
at 15-16. In other words, “[a] vested right ‘must be a contract right, a property right, or a
right arising from a transaction in the nature of a contract which has become perfected
to the degree that it is not dependent on the continued ex istence of the statute’ or
common law.” Parker, 138 P.3d at 293 (quoting 1A Norman J. Singer, Sutherland
Statutory Construction § 23.35 (6th ed. 2002)). Retroactive application may be
constitutional even if a party is disadvantaged. People v. D.K.B., 843 P.2d 1326, 1332
(Colo. 1993).
American Family’s contractual ability to shorten the applicable limitations period
relied on existing common law that held such agreements to be enforceable. Although
American Family’s expectation that its liability under the policy would be limited to one
year from the date of the loss stemmed from a contract, the enforceability of the
contract’s limitations provision is “dependent on the continued existence of the . . .
common law.” Parker, 138 P.3d at 293. In particular, because lim itations periods are
inherently the province of the legislature, American Family cannot claim a vested right
to its ability to contractually shorten the applicable limitations period. Cf. Campbell v.
Holt, 115 U.S. 620, 628 (1885) (“shortening the [statutory limitations] period or making it
longer . . . have always been held to be within the legislative power until the bar is
complete. . . . It violates no right of [a party], therefore, when the legislature says time

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shall be no bar, though such was the law then the contract was made”); Edelstein v.
Carlile, 78 P. 680, 681 (Colo. 1904) (holding that statutes of limitations are “remedial” in
nature and laws affecting them do not “disturb vested rights” until “the bar of the statute
has . . . attached”); Harrington v. Anderson, 130 P. 616, 617 (Colo. App. 1913) (the
“overwhelming weight of authority” supports that a party “has no vested right in the
running of the statute of limitations until it has completely run and barred action”). 5
Because American Family’s contractual expectation relied on the continued validity of
common law in an area within traditional legislative power, American Family has no
vested right in the policy’s contractual limitations period. “[I]n the usual case, no person
has a vested right in any rule of law entitling that person to insist it shall remain
unchanged for his or her future benefit.” Nye v. Indus. Claim Appeals Office of State of
Colo., 883 P.2d 607, 609 (Colo. App. 1994). 6

5

For the same reason, this case is distinguishable from Parker, where the
Colorado Supreme Court held that retroactive application of an amendment to a city’s
charter would impair developers’ vested rights under existing agreements. 138 P.3d at
293-94. In Parker, unlike here, the change in law impaired “contractual obligations of
the government” which the court noted was significant because such laws face “more
stringent examination than would laws regulating contractual relationships between
private parties.” Id. at 293, n.3 (citation and quotation omitted). Limitations periods,
unlike contracts between the government and private entities, do not enjoy the
protection of such a “stringent examination” and are within the power of the legislature
to change notwithstanding the expectations of privately contracting parties.
6

In DeWitt, the Colorado Supreme Court identified the following factors for
determining whether a vested right has been implicated: “(1) whether the public interest
is advanced or retarded; (2) whether the statute gives effect to or defeats the bona fide
intentions or reasonable expectations of the affected individuals; and (3) whether the
statute surprises individuals who have relied on contrary law.” DeWitt, 54 P.3d at 855.
The Court finds that the public interest is advanced by the legislature’s implicit
determination that contractual limitations periods did not adequately safeguard the
rights of insured homeowners. Regarding the second and third factors, although
American Family may have expected to be able to enforce its contractual limitation
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2. Impairment of Contracts
American Family argues that retroactive application of Section 110.8(12) violates
the contract clauses of both the Colorado and United States Constitutions. Docket No.
49 at 11. The Colorado Constitution provides that “[n]o . . . law impairing the obligation
of contracts . . . shall be passed by the general assembly.” Colo. Const. art. II, § 11.
The United States Constitution states that “[n]o State shall . . . pass any . . . Law
impairing the Obligation of Contracts.” U.S. Const. art. I, § 10, cl. 1. In construing the
impairment of contract clause of the Colorado Constitution, the Colorado Supreme
Court has looked to the decisions of the United States Supreme Court interpreting the
Contract Clause of the United States Constitution. See DeWitt, 54 P.3d at 858-59.
Thus, the Court considers American Family’s challenge pursuant to the contract
clauses of the United States and Colorado Constitutions together.
“Although the language of the Contract Clause is facially absolute, its prohibition
must be accommodated to the inherent police power of the State to safeguard the vital
interests of its people.” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459
U.S. 400, 410 (1983) (citation omitted); accord, DeWitt, 54 P.3d at 858 (noting that the
federal and state contract clauses “are not to be interpreted as absolute” and “m ust be
read to permit legislative action that promotes the common weal, or general good of the
public, though contracts previously entered into between individuals may thereby be
period in reliance on contrary law, the Court finds that, given the legislature’s traditional
authority to alter limitations periods, and since any surprise is mitigated by the highly
regulated nature of the insurance industry, id. at 857 (noting that the “insurance industry
. . . is highly regulated by statute in Colorado”), any surprise or frustration of expectation
does not outweigh the first factor. As a result, the DeWitt factors do not show that
American Family has a vested right in its contractual limitation period.
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affected”). Examination of whether a statute violates the Contract Clause is a two-step
inquiry:
The threshold inquiry is whether the state law has, in fact, operated as a
substantial impairment of a contractual relationship. If a substantial
impairment is found, the State, in justification, must have a significant and
legitimate public purpose behind the regulation.
Energy Reserves, 459 U.S. at 401. “The severity of the impairment measures the
height of the hurdle the state legislation must clear. Minimal alteration of contractual
obligations may end the inquiry at its first stage. Severe impairment, on the other
hand, will push the inquiry to a careful examination of the nature and purpose of the
state legislation.” Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245 (1978).
If legislation constitutes a substantial impairment of a contractual relationship and a
significant and legitimate public purpose is identified, “the final step of the Contract[]
Clause analysis is to determine whether the adjustment of the rights and
responsibilities of contracting parties is based upon reasonable conditions and is of a
character appropriate to the public purpose justif ying the legislation’s adoption.”
Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1098 (9th Cir. 2003) (citation,
quotation, and alteration marks omitted). “Unless the State itself is a contracting party
. . . courts properly defer to legislative judgment as to the necessity and
reasonableness of a particular measure.” Energy Reserves, 459 U.S. at 412-13 (citing
U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 22-23 (1977)) (internal quotation
omitted).
The Court’s analysis under the contract clauses of the Colorado and United
States Constitutions is complicated by the parties’ failure to brief the issue fully. In
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invoking the contract clauses, American Family says that “retroactive application of
legislation impairing existing contracts is immediately suspect” under both the Colorado
and United States Constitutions, Docket No. 49 at 11, but of fers no “careful
examination of the nature and purpose of the state legislation.” Spannaus, 438 U.S. at
245. For the purpose of this order, the Court assumes, without deciding, that
retroactive application of Section 110.8(12) causes a substantial impairment of a
contractual relationship.
Courts have held that, in light of the highly-regulated nature of the insurance
industry, state statutes that revive expired insurance claims do not violate the Contract
Clause. In Campanelli, the Ninth Circuit reviewed a California statute that revived
insurance claims that were barred “solely because the applicable statute of limitations
has or had expired.” 322 F.3d at 1095. These claims arose out of damage caused by
a 1994 earthquake. Id. In finding that the statute served a legitimate public purpose
and did not violate the Contract Clause, the court cited the “highly-regulated nature of
the California insurance industry” and the fact that the state legislature passed the bill
in order to “bring needed relief to the victims” of the earthquake. Id. at 1098-99
(citation and quotation omitted). In Serrano v. Aetna Ins. Co., 664 A.2d 279 (Conn.
1995), the Connecticut Supreme Court upheld the constitutionality of a statute that
disallowed enforcement of any contractual limitation on the time to bring suit pursuant
to an underinsured motorist policy that limited such time to less than three years. Id. at
282-83, 285-86. The Connecticut legislature passed the statute in response to
previous decisions of the Connecticut Supreme Court that upheld contractual

14

limitations periods in insurance contracts. Id. at 287. The court found that the
legislature’s intent, to restore the claims of insureds that would otherwise have been
barred, was a significant and legitimate public purpose. Id. at 287-88. The court
further found that the statute was rationally designed to remedy the consequences of
that decision and was thus a reasonable exercise of the state’s police powers. Id. at
289.
The Court is persuaded by Campanelli and Serrano and finds that Section
110.8(12) serves a legitimate public purpose. As in California and Connecticut, the
Colorado “insurance industry . . . is highly regulated by statute[.]” DeWitt, 54 P.3d at
857. Although the parties have not identified, and the Court has not found, any
legislative history that states Section 110.8(12)’s purpose, a legitimate public purpose
can be discerned from the statute itself, namely, concern that the rights of
homeowners were not sufficiently safeguarded by allowing homeowner’s insurance
policies to specify a shorter limitations period than that prescribed by Colorado law.
The Court further finds that, bearing in mind that the legislature is entitled to deference
concerning the necessity and reasonableness of the measure, Energy Reserves, 459
U.S. at 412-13, Section 110.8(12) is “based upon reasonable conditions and is of a
character appropriate to the public purpose justif ying the legislation’s adoption.” Id. at
412; see also Serrano, 664 A.2d at 289. Accordingly, the Court holds that retroactive
application of Section 110.8(12) to the contractual limitations clause in plaintiff’s policy,
where plaintiff’s cause of action had not been contractually barred by May 10, 2013,

15

does not violate the Contract Clause of either the Colorado or the United States
Constitution.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant American Family Mutual Insurance Company’s
Motion for Partial Summary Judgment [Docket No. 49] is DENIED.
DATED January 12, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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