Peerless Indemnity Insurance Company v. Colclasure et al

Filing 62

ORDER granting in part and denying in part 38 Motion for Summary Judgment. It is FURTHER ORDERED that the stay on discovery pursuant to ECF 44 and ECF 59 is hereby LIFTED. Pursuant to Magistrate Judge Craig B. Shaffers Prior 44 Order, the parties are to contact his chambers within 72 hours of the entry of this Order. ORDERED by Judge William J. Martinez on 02/16/2017. (cthom, ) Modified to correct docket entry linkage on 2/16/2017 (cthom, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-424-WJM-CBS
PEERLESS INDEMNITY INSURANCE COMPANY,
Plaintiff,
v.
SHANE COLCLASURE, individually and d/b/a Sunrise Buildings,
PATRICIA WEED,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

This is a diversity action whereby Plaintiff Peerless Indemnity Insurance
Company (“Peerless”) seeks a declaration of its rights and obligations under the
commercial general liability policy (the “Policy”) it issued to Shane Colclasure
(“Defendant Colclasure”). Specifically, Peerless “requests a declaratory judgment from
this Court that [Peerless] has no obligation to indemnify Defendant Colclasure” for any
judgment obtained against him in an underlying action involving Patricia Weed
(“Defendant Weed”). (ECF No. 1 ¶ 27.) This matter is before the Court on Peerless’s
Motion for Summary Judgement. (the “Motion,” ECF No. 38.) For the reasons set forth
below, the Motion is granted in part and denied in part.
I. BACKGROUND
The following facts are undisputed, unless attributed to one party or another, or
otherwise noted.

Peerless issued the subject insurance Policy to Defendant Colclasure, with a
coverage period effective December 5, 2011 to December 5, 2012. (ECF No. 38 ¶ 1.)
The Policy provides coverage, subject to certain exclusions, for those sums that
Defendant Colclasure becomes legally obligated to pay as damages because of “bodily
injury” or “property damage” caused by an “occurrence.” (Id. ¶ 2; ECF No. 1-1 at 30.)
On July 12, 2011, the roofing systems on Defendant Weed’s residence, barn,
and indoor riding arena were damaged due to a localized hail storm. (ECF No. 38-2 at
2.) Defendant Weed’s homeowner’s insurance company authorized funds pursuant to
its policy for the repair and replacement of each roof. (Id.) On October 7, 2011,
Defendant Weed entered into a contract with Defendant Colclasure, to remove and
replace the damaged roofing systems. (ECF No. 83-3 at 1.) The contract included a
fee-shifting provision, stating “[i]n the event litigation or arbitration arises out of this
contract, prevailing party(ies) are entitled to all legal, arbitration, and attorney fees.” (Id.
at 2.) Defendant Colclasure later subcontracted with D&G Construction, Inc. to replace
the steel roofing on the riding arena. (ECF No. 38 ¶ 11.)
Defendant Colclasure and/or his subcontractor failed to properly remove and
replace the riding arena roof, which resulted in water leakage, panel alignment
problems, and damage to the insulation between the roof decking and truss system.
(Id. ¶ 13.) Subsequently, on May 25, 2012, Defendants Colclasure and Weed entered
into an amended contract, whereby Defendant Colclasure agreed “that upon receipt of
the final payment he will remove the insulation and the metal roofing. Contractor
[Colclasure] will replace with Homeowner approve[d insulation] and Burgundy metal
roofing material [. . .]” (ECF No. 36-6 at 1.) Defendant Colclasure then attempted to
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repair the roof. (ECF No. 38 ¶ 15.)
On February 10, 2014, Defendant Weed brought suit against Defendant
Colclasure and his subcontractors in Colorado state court, bringing five claims for relief:
(1) breach of contract, (2) breach of warranty, (3) negligence resulting in property
damages, (4) negligence per se, and (5) negligent repair resulting in property damage.
(Id. ¶ 17; ECF No. 38-2 at 4–6.) In the underlying complaint, Defendant Weed alleged
that the roofing system “had been installed in a manner that exposed the insulation,
truss system and [arena] floor to water infiltration.” (Id. at 4.)

Peerless provided a

defense to Defendant Colclasure, subject to a reservation of rights under the Policy.
(ECF No. 38 ¶ 19.)
At trial, Weed testified regarding Defendant Colclasure and/or his subcontractor’s
defective workmanship. (Id. ¶ 20.) Trial evidence supported the cost to repair/replace
the arena roof as an element of damages. According to Defendants “some of the
defects referenced illustrate resultant [or consequential] damage to the arena’s original
insulation, wood framing and flooring.” (ECF No. 47 ¶ 20.) As to the insulation,
testimony was elicited establishing “water damage to the insulation” and subsequent
deterioration. (ECF No. 38-5 at 14.) Both Defendant Colclasure and Defendant Weed
testified at trial that Defendant Colclasure had agreed to replace the wet insulation in the
amended contract. (ECF No. 38 ¶ 22.) W hen asked at trial whether the insulation was
ever replaced by Defendant Colclasure, Defendant Weed answered “no, it was not.”
(ECF No. 38-8 at 9.) As to the wood framing, Ms. Weed testified at trial that she
“observe[d] major water damage coming through–water coming through and damaging
the wood[.]” (ECF No. 38-5 at 15.) And that the water “started coming down the wood
3

structure inside on the wood posts.” (ECF No. 38-8 at 3.) Further, the water “really
soaked into the wood” which became “darkened from water damage.” (Id. at 5–6.) As to
the arena flooring, Defendant Weed testified that water leaked “towards the side of the
building . . . . [d]own onto the floor.” (Id. at 5.) The underlying complaint alleges that the
riding arena has “a specialized floor suited to equestrian activity.” (ECF No. 38-2 at 2.)
In fact, during trial, Defendant Weed’s horse trainer testified that “water on the floor can
be a problem with the horses.” (ECF No. 38-5 at 13.) Also, trial testimony regarding the
cost to repair and replace the arena roofing system was elicited to support the element of
damages. (ECF No. 38-4 at 14–15.)
On December 18, 2015, the jury found in favor of Defendant Weed on her
breach of contract, breach of warranty, and negligence claims. (ECF No. 38-9 at 2–3.)
On Defendant Weed’s negligence claim, the jury allocated one hundred percent of the
fault to Defendant Colclasure, and zero percent to his subcontractor. (ECF No. 38 ¶
32.) The judgment entered on Defendant Weed’s jury verdict was for $125,000 in
economic damages, $25,000 in non-economic damages, $14,796.26 in costs, and
$136,573.35 in reasonable attorneys’ fees. (ECF No. 38-10 at 2.) To the Court’s
knowledge, the verdict did not detail what damages arose from each claim, nor did it
itemize which elements of claimed damages underlie the jury’s damages award.1
Based on this course of events, Peerless brought this action for declaratory
judgment on February 22, 2016. (ECF No. 1.) On April 5, 2016, Defendants Weed and

1

The Court recognizes that question ten of the verdict form reads “State below the
amount of dollars that will compensate the Plaintiff for her economic damages in accordance
with Instructions ‘20' and ‘21.’” (ECF No. 38-9 at 3.) These subsequent questions may resolve
the lacking itemization of damages, however, this is speculative.

4

Colclasure together filed an answer to the complaint and counterclaims against
Peerless, including: (1) breach of insurance contract, (2) common law bad faith breach
of insurance contract, (3) statutory bad faith under Colorado Revised Statutes §§ 10-31115 and 10-3-1116, (4) professional negligence, (5) breach of fiduciary duty, (6)
negligent misrepresentation, and (7) negligent failure to warn. (ECF No. 19 at 11–18.) 2
On July 25, 2016, Peerless filed its Motion for Summary Judgment. (ECF No.
38). On August 30, 2016, discovery was stayed pending resolution of the Motion.
(ECF No. 44.) On September 9, 2016, Defendants filed their Response to the Motion.
(ECF No. 47). Peerless filed its Reply on October 10, 2016. (ECF No. 52).
II. LEGAL STANDARD
Summary Judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adamson v. Multi. Cmty.
Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). W hether there is a
genuine dispute as to a material fact depends upon whether the evidence presents a
sufficient disagreement to require submission to a jury or, conversely, is so one-sided
that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S.
242, 248–49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000).
On a motion for summary judgment, the moving party bears the burden of

2

Defendants Weed and Colclasure also together assert third party claims against third
party defendants Debbie Klisch and Southern Colorado Insurance Center, LLC (“Third Party
Defendants”). (ECF No. 19 at 18.) The third party claims include: (1) professional negligence,
breach of fiduciary duty, negligent misrepresentation, and negligent failure to warn. (Id. at
18–21.) The Court is aware that Third Party Defendants have filed a motion for summary
judgment, however, that motion is not yet ripe for review. (ECF Nos. 53, 60.)

5

demonstrating that no genuine issue of material fact exists. Adamson, 514 F.3d at
1145. Where the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy this burden by demonstrating a lack of evidence for an essential element
of the nonmovant’s claim. Id. In contrast, a movant who bears the burden at trial must
submit evidence to establish the essential elements of its claim or affirmative defense.
In re Ribozyme Pharms., Inc. Sec. Litig., 209 F. Supp. 2d 1106, 1111 (D. Colo. 2002).
In deciding whether the moving party has carried its burden, the Court does not weigh
the evidence, and instead views it, and draws all reasonable inferences from it, in the
light most favorable to the nonmoving party. Adamson, 514 F.3d at 1145.
Unsupported conclusory allegations, however, are not sufficient to create a genuine
dispute of material fact on summary judgment. See Mackenzie v. City & Cnty. of
Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). W hen a moving party has carried its
burden under Rule 56(c), more than “some metaphysical doubt” as to the material facts
must be demonstrated by the nonmovant to survive summary judgment. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. ANALYSIS
Under Colorado law,3 “the duty to indemnify relates to the insurer’s duty to satisfy
3

Federal courts sitting in diversity apply the forum state’s choice-of law principles. U.S.
Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1143 (10th Cir. 2009).
Colorado choice-of-law rules provide that an insurance contract is governed “by the law of the
state with the most significant relationship to the insurance contract.” Berry & Murphy, P.C. v.
Carolina Cas. Ins. Co., 586 F.3d 803, 808 (10th Cir. 2009). A significant part of the events or
omissions giving rise to the claim for insurance coverage occurred in Colorado; a policy of
commercial general liability insurance was negotiated, purchased, and delivered in Colorado;
and the underlying state action giving rise to the claim for insurance coverage occurred in
Colorado. (ECF No. 38 at 14.) Colorado therefore has the most significant relationship to the
Policy, thus it must be interpreted within the framework of Colorado law. See Berry & Murphy,
586 F.3d at 808. Moreover, neither party objects to the application of Colorado law, or

6

a judgment entered against the insured” and “arises only when the policy actually
covers the alleged harm” that underlies the entered judgment. Cyprus Amax Minerals
Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003). Simply stated, “indemnity
flows from the nature of the ultimate verdict, judgment, or settlement.” Id. at 301.
Accordingly, the determination of whether an insurer owes a duty to indemnify “requires
factual development, as it is largely a question of fact.” Id. at 302.
Colorado courts construe insurance policies “using general principles
of contract interpretation.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661
F.3d 1272, 1283 (10th Cir. 2011). Therefore, absent an ambiguity, a policy’s language
is construed according to its plain meaning. Id. However, in recognition of the unique
relationship between insurer and insured, courts “construe ambiguous provisions
against the insurer and in favor of providing coverage to the insured.” Id. Courts
should read policy provisions as a whole rather than in isolation, and may not “extend
coverage beyond that contracted for, nor delete [provisions] to limit coverage.” Cyprus
Amax Minerals Co., 74 P.3d at 299.
Under a commercial general liability (“CGL”) policy, such as the one at issue
here, the initial burden is upon the insured to show that the loss sustained comes within
the terms of the insurance policy; in other words, the insured has the burden to prove a
material issue of fact exists concerning their entitlement to recovery under the
insurance policy. See Rodriguez v. Safeco Ins. Co., 821 P.2d 849, 853 (Colo. App.
1991). Then, once the insured claims a loss covered by the policy, the burden is on the

suggests that another state’s law applies, to the interpretation of the Policy.

7

insurer to prove that the policy excludes the proximate cause of the loss. Leprino
Foods Co. v. Factory Mut. Ins. Co., 453 F.3d 1281, 1287 (10th Cir. 2006); see also 17A
Steven Plitt et al., Couch on Insurance § 254:52 (3d ed., Dec. 2016 update) (discussing
burden of proof in the context of general liability insurance). Any exclusion must be
clear and specific to be enforceable. Leprino Foods, 453 F.3d at 1287. If the insurer
shows that an exclusion applies, “[t]he burden then shifts back to the insured to prove
the applicability of an exception to the exclusion.” Id. (citation omitted).
Peerless argues that the Policy does not provide indemnity with respect to the
underlying judgment because there is no coverage for economic and non-economic
damages, as well as attorneys’ fees and costs. (ECF No. 38 at 2–3.) Peerless also
contends that Defendant Colclasure’s counterclaims fail as a matter of law and should
therefore be dismissed. (Id. at 3.) Defendants, however, respond that there is
indemnification under the Policy for the underlying judgment, and that the counterclaims
survive Peerless’s Motion. (ECF No. 47 at 15, 30.) The Court discusses each
argument in turn, below.
A.

Whether Policy Coverage Exists
1.

Economic Damages

The Court first considers the parties’ arguments as to whether the underlying
judgment reflects an award for “property damage” caused by an “occurrence.” The
Policy applies “only if . . . . [t]he ‘bodily injury’ or ‘property damage’ is caused by an
‘occurrence’ that takes place in the ‘coverage territory.’” (ECF No. 1-1 at 30.)
a.

Occurrence

“Occurrence” is defined under the Policy as “an accident, including continuous or
8

repeated exposure to substantially the same general harmful conditions.” (Id. at 44.)
Peerless argues that faulty workmanship, or deficiencies in the insured’s work, does not
constitute “property damage” caused by an “occurrence.” (ECF No. 38 at 15 (citing
McGowan v. State Farm Fire & Cas. Co., 100 P.3d 521, 525 (Colo. App. 2004)).)
Defendants point to Colorado Revised Statutes § 13-20-808, arguing that the
“statutorily required construction of ‘occurrence’ in this case is dispositive.” (ECF No. 47
at 16.)
Signed into law on May 21, 2010, § 13-20-808, as applied to the Policy ’s
definition of “occurrence,” creates a threshold presumption that construction work
resulting in damage is an “accident,” and therefore an “occurrence” until an exclusion
eliminates coverage:
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 unless the property damage is intended and
expected by the insured. Nothing in this subsection:
(a) Requires coverage for damage to an insured’s own work
unless otherwise provided in the insurance policy; or
(b) Creates insurance coverage that is not included in the
insurance policy.
C.R.S. § 13-20-808(3) (emphasis added).
The Court finds that this statute is applicable and settles this issue. Peerless
issued the Policy to Defendant Colclasure in 2011, subsequent to the statute’s
passage. (See ECF No. 38 ¶ 1.) In its Reply, Peerless argues that the “Defendants
cannot rely on § 13-20-808 to rewrite the Policy and provide coverage for [Defendant

9

Colclasure’s] defective work,” noting that nothing in the subsection requires coverage
for defective work, or creates insurance coverage that is not otherwise included. (ECF
No. 52 at 9.) The Court notes that the statute is not a guarantee of coverage under the
commercial liability policy, rather it operates to shift the burden of proof away from the
insured specifically as to the meaning of “accident,” which falls within the Policy’s
definition of “occurrence”; and to create a judicial presumption that an “accident” (and
therefore an “occurrence”) has been shown, unless or until a Policy exclusion
eliminates coverage for that type of occurrence. In other words, § 13-20-808 does not
mandate that all construction defect claims are covered, as Peerless correctly notes,
because it specifically preserves an insurer’s right to exclude coverage. See C.R.S. §
13-20-808(3)(a).
In Colorado Pool Systems, Inc. v. Scottsdale Ins. Co., 317 P.3d 1262 (Colo. App.
2012), the Colorado Court of Appeals discussed the effect of the statute in dicta, noting
that “[t]he statute’s effect is clear enough. If we were to apply it, we would presume that
the CGL policy covered damage that resulted from [the general contractor’s] defective
workmanship.” Id. at 1268.4 Likewise, it fairly appears that Defendant Colclasure
and/or his subcontractor did not intend and expect the damage to Defendant Weed’s
property, thus applying the presumption required by § 13-20-808 to the Policy, the
Court finds that Defendant Colclasure’s work resulting in property damage was an
“accident” and, therefore, is a covered “occurrence.”

4

In Colorado Pool Systems, the court considered a similar insurance policy executed
prior to the statute’s passage, but ultimately concluded that the statute was not controlling
because its retroactive application would have been unconstitutional. Id. at 1269.

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b.

Property Damage

“Property damage” is defined under the Policy as “[p]hysical injury to tangible
property, including all resulting loss of use of that property . . . . or [l]oss of use of
tangible property that is not physically injured.” (ECF No. 1-1 at 45.) Peerless argues,
“[t]o the extent that the judgment provided damages to repair and replace a defective
roof, there is no coverage under the Policy.” (ECF No. 52 at 13.) The Court agrees
with Peerless that the Policy does not provide coverage for the cost to repair or replace
the arena roof because such damages do not constitute “property damage” under
Colorado law.
In Colorado Pool Systems, a general contractor brought claims against its insurer
after the insurer refused to indemnify the contractor for losses associated with
demolishing and replacing an improperly constructed pool. See Colorado Pool Sys.,
317 P.3d at 1265. The court there considered two types of property damage: “(1) the
cost of demolishing and replacing the defective pool; and (2) consequential, or ‘rip and
tear,’ damage to nondefective third-party work, which occurred during the replacement
project.” Id. at 1271. The court concluded that the “policy does not cover damage
incurred in demolishing and replacing the pool itself . . . . [but the] rip and tear damage
to nondefective third-party work (including damage to the deck, sidewalk, retaining wall,
and electrical conduits) is covered.” Id; see also TCD, Inc. v. Am. Family Mut. Ins. Co.,
296 P.3d 255 (Colo. App. 2012) (holding that the cost to repair and replace a roof that
was installed in a manner that did not meet code was not “property damage”); Cool
Sunshine Heating & Air Conditioning, Inc. v. Am. Family Mut. Ins. Co., 2014 WL
7190233, at *3 (D. Colo. Dec. 17, 2014) (“The cost to repair a defectively installed
11

product does not constitute ‘property damage’ unless the defective product causes
some damage to the property outside of the cost to replace the defective product.”).
Thus, “property damage” does not include costs of repair or replacement of defective
workmanship, but does include consequential damage to other parts of the property.
Here, both parties appear to agree that the state court judgment reflected
damages for the repair and/or replacement of the defective arena roof–which the Court
finds are not property damage under authority cited above. (See ECF No. 38 at 17.)
However, whether the judgment also encompassed consequential damage—e.g., the
cost to repair or replace the insulation, wood trussing, and arena flooring—remains
factually undetermined.
The special verdict form sheds no insight on what, specifically, the economic
damages were awarded for. (ECF No. 38-9 at 3.) Moreover, this Court was only
provided limited portions of the trial transcript, and is therefore unable to determine
precisely what the jury relied upon in coming to its economic damages award.5 The
Court’s review of the transcript extracts reveals that testimony was elicited at trial as to
damage extending beyond the roof, certainly including the insulation and possibly the

5

Peerless argues that consequential damages “were not presented to the jury” and the
Defendants’ “belated” claim of consequential damages “is supported only through [their
supplemental affidavits submitted with their summary judgment briefing], and not by reference
to testimony or evidence the jury considered in reaching its verdict.” (ECF No. 52 at 10.)
Peerless also contends that “Defendants are bound by the testimony and matters actually
decided or adjudicated in the underlying action, and cannot change or modify that testimony or
those findings.” (Id. at 11 (citing Am. Fire & Cas. Co. v. BCORP Canterbury at Riverwalk, LLC,
282 Fed. App’x 643, 647 (10th Cir. 2008) (noting that “to be relevant to the indemnity question,
the extrinsic evidence may only clarify or explain the evidence presented to the state court
jury”)).) At this time the Court cannot determine whether the supplemental affidavits attached to
Defendants Response “clarify” or “explain” evidence presented at trial, because the Court has
not been provided transcripts from the full trial. For this reason, the Court declines to consider
the supplemental affidavits in ruling on Peerless’s Motion.

12

wood trussing and arena flooring. (ECF No. 38-5 at 14–15; ECF No. 38-8 at 3–6.)
With this in mind, the Court finds that the Policy does provide coverage for
consequential “property damage” caused by an “occurrence,” absent a showing that
any exclusions apply. As noted earlier, the moving party who does not bear the
ultimate burden of persuasion at trial may satisfy its burden by demonstrating a lack of
evidence. See Adamson, 514 F.3d at 1145. Peerless has not dem onstrated a lack of
evidence as to consequential damages, therefore the Court finds that there are genuine
disputes of material fact which preclude a grant of summary judgment on this issue.
Moving forward, in order to defeat the duty to indemnify, Peerless must show that
damage underlying the state court judgment falls “solely and entirely within the
exclusions in the insurance policy.” Cotter Corp. v. Am. Empire Surplus Lines Ins. Co.,
90 P.3d 814, 829 (Colo. 2004) (citation omitted).
c.

Exclusions

Peerless argues that the Policy contains three standard industry exclusions that
preclude coverage for the damage alleged by Defendant Weed in the underlying action.
(ECF No. 38 at 18.) Each exclusion will be discussed in turn.
(1) Your Product
The “damage to your product” exclusion states: “[t]his insurance does not apply
to . . . . ‘[p]roperty damage to ‘your product’ arising out of it or any part of it.” (ECF No.
1-1 at 34.) “Your product” is defined under the policy as “goods or products, other than
real property, manufactured, sold, handled, distributed or disposed of by” the insured or
others trading under the insured’s name. (Id. at 45–46.)

13

Peerless maintains that courts have found that “the ‘your product’ exclusion
defeats coverage where the underlying allegations all arose from the insured’s allegedly
defective products.” (ECF No. 38 at 19.) Defendants respond by arguing that
Defendant “Weed does not allege that the products used by [Defendant Colclasure]
and his subcontractors were defective . . . . and [Defendant Colclasure] provided a 5 yr.
installation warranty, not a product warranty.” (ECF No. 47 at 23.) Peerless contends
that courts have routinely held that this exclusion also “precludes coverage for defective
or inferior work, and corresponding warranties provided by an insured.” (ECF No. 52 at
16 (citing Cool Sunshine Heating & Air Conditioning, Inc., 2014 WL 7190233, at *3)
(emphasis added).)
The Court disagrees with Peerless. First, courts have not routinely held that the
“your product” exclusion applies to defective work when the defective work constitutes a
service, not a product. Such a view would render the separate “your work” exclusion
redundant and superfluous. Moreover, a closer reading of the authority cited by
Peerless reveals that the court there only analyzed the “your work” and “impaired
property” provisions, not the “your product” exclusion. See Cool Sunshine Heating &
Air Conditioning, Inc., 2014 WL 7190233, at *3. Accordingly, the Court construes the
defective workmanship in this action to constitute a service, not a product, and
therefore the “your product” exclusion does not apply.
(2) Your Work
The “damage to your work” exclusion provides: “[t]his insurance does not apply
to . . . . ‘[p]roperty damage’ to ‘your work’ arising out of it or any part of it and included in
the ‘products-completed operations hazard.’ This exclusion does not apply if the
14

damaged work or the work out of which the damage arises was performed on your
behalf by a subcontractor.” (ECF No. 1-1 at 34.) “Your work” is defined under the
policy as “[w]ork or operations performed by you or on your behalf.” (Id. at 46.)
Peerless argues that “this policy provision ‘excludes coverage for damage to the
insured’s work, which includes work or operations performed by the insured or
warranties or representations about the qualify of the work.’” (ECF No. 38 at 19 (citing
Crossen v. Am. Fam. Mut. Ins. Co., 2010 WL 2682103, at *7 (D. Colo. July 7, 2010)).)
Peerless asserts that the trial testimony is replete with references to property damage
to the arena roof and insulation, to which the “your work” exclusion applies. (ECF No.
38 at 19.) The Court agrees with Peerless that the exclusion applies to the damage to
Defendant Colclasure’s work on the roof. However, this does not extend to the
consequential damage, including the arena flooring, wood trussing, and insulation,
which were not directly worked on by Defendant Colclasure. Peerless argues that
Defendant Colclasure contracted to replace the insulation in the am ended contract;
however, the evidence at trial demonstrated that he did not actually replace or
otherwise work on it. (ECF No. 38 at 19; ECF No. 38-8 at 9.) Accordingly, the Court
finds that the “your work” clause excludes coverage to the extent the judgment includes
damage to the roof or to insulation that Defendant Colclasure actually worked on. But it
does not exclude the consequential damages to portions of Defendant Weed’s property
that Defendant Colclasure did not work on.6

6

Alternatively, Defendants contend that the exception to the “your work” exclusion
applies, noting that this “exception should apply, because neither [Defendant Colclasure] nor
anyone under the name of Sunrise Buildings, did any work on the roof . . . . it was all done by
his subcontractors.” (ECF No. 47 at 24.) Defendants, however, acknowledge that “a separate

15

(3) Impaired Property
The impaired property exclusion states: “‘[p]roperty damage’ to ‘impaired
property’ or property that has not been physically injured, arising out of: (1) [a] defect,
deficiency, inadequacy or dangerous condition in ‘your product’ or ‘your work’; or (2) [a]
delay or failure by you or anyone acting on your behalf to perform a contract or
agreement in accordance with its terms.” (ECF No. 1-1 at 34.) “Impaired property” is
defined under the policy as “tangible property, other than ‘your product’ or ‘your work,
that cannot be used or is less useful because: (a) [i]t incorporates ‘your product’ or ‘your
work’ that is known or thought to be defective, deficient, inadequate or dangerous; or
(b) [y]ou have failed to fulfill the terms of a contract or agreement.” (Id. at 43.)
“The purpose of this exclusion is in essence to preclude coverage for loss of use
claims arising from faulty work or products when there is no physical injury to the
property. Thus, this exclusion prevents an insured from claiming coverage for pure
economic loss.” 9A Steven Plitt et al., Couch on Insurance § 129:23 (3d ed., Dec. 2016
update).
The parties disagree as to whether “loss of use” damages were sought and
ultimately obtained in this matter. (ECF No. 52 at 19; ECF No. 47 at 27.) Peerless
points to Defendant Weed’s underlying complaint which requests a judgment “[f]or loss
of use of the riding arena.” (ECF No. 52 at 19; ECF No. 38-2 at 7.) However, neither
rider which purports to delete the subcontractor exception to the ‘your work’ exclusion” is
contained in the Policy. (ECF No. 47 at 25; see also ECF No. 1-1 at 52.) Defendants label “this
[as] confusing” and argue that the rider should not apply to the exception under the reasonable
expectations doctrine. (ECF No. 47 at 25–26.) However, the language in the Policy,
specifically the rider, is unequivocal, therefore the Court declines to apply the reasonable
expectations doctrine and finds that the rider effectively removed the subcontractor exception
from the Policy.

16

party has pointed the Court to trial testimony establishing whether actual “loss of use” of
the riding arena was part of the jury’s damages award. (See generally ECF Nos. 38,
47, 52.) Moreover, given that the Court was only presented with portions of the trial
testimony, it cannot determine at this time whether the underlying judgment reflected
damages for “loss of use.” However, the Court notes that it does agree with Peerless’s
statement of the law, and finds that to the extent that the judgment reflects damages for
“loss of use,” no coverage and indemnity would exist for such damages, due to the
impaired property exclusion.
(4) Fungi/Bacteria
Peerless argues that “no indemnity exists for any portion of the judgment that
addresses damages for dry rot or fungi, due to the Policy’s ‘Fungi and Bacteria’
exclusion.” (ECF No. 38 at 23.) Defendants concede that the exclusion precludes
indemnity. (ECF No. 47 at 27.) However, Defendants note that “there is no evidence
fungi or mold caused any damage,” and in fact the underlying judgment “obtained does
not include or mention damages arising out of mold damage or exposure.” (ECF No.
47 at 27–28.) Accordingly, the Court finds that this exclusion precludes indemnity for
damage caused by fungi/bacteria, but, as noted repeatedly above, the Court is unaware
if the judgment actually reflects such damage.
As the moving party who bears the burden at trial to prove that an exclusion
precludes coverage, Peerless must submit evidence establishing that an exclusion
applies and addresses the economic damages award reflected in the underlying
judgment. See In re Ribozyme Pharms., Inc. Sec. Litig., 209 F. Supp. at 1111. Again,
it is unclear to the Court what the economic damages encompass, therefore, the Court
17

finds a genuine issue of material fact that defeats summary judgment. Consequently,
the Court cannot determine at this time whether an exclusion applies and precludes
coverage, hence no determination as to duty to indemnify for economic damages will
be made. Peerless’s Motion is denied as to this issue.
2.

Non-Economic Damages

The jury in the underlying action awarded Defendant Weed $25,000 in noneconomic damages. (ECF No. 38 ¶ 32; ECF No. 47 ¶ 32.) Peerless argues that there
is no coverage for these non-economic damages “because they do not constitute
‘bodily injury’ as defined by the Policy.” (ECF No. 38 at 21.)
The insuring clause states that Peerless “will pay those sums that the insured
becomes legally obligated to pay as damages because of ‘bodily injury’. . . . to which
this insurance applies.” (ECF No. 1-1 at 30.) “Bodily injury” is defined in the Policy as
“bodily injury, sickness or disease sustained by a person, including death resulting from
any of these at any time.” (Id. at 42.)
In National Casualty Co. v. Great Southwest Fire Insurance Co., 833 P.2d 741,
746 (Colo. 1992), the Colorado Supreme Court concluded that the term “bodily injury,”
which was defined in the subject insurance policy as “bodily injury, sickness, or
disease,” covers only physical injury and does not include claims for purely nonphysical
or emotional harm. The Colorado Supreme Court further held that without allegations
or a showing of physical injury, physical contact, or pain in the underlying claim of
emotional distress did not fall within the general liability policy’s coverage for bodily
injury. Id.

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Here, Peerless asserts that it “is undisputed that there was no physical or bodily
injury to [Defendant Weed] that resulted from the poor workmanship.” (ECF No. 38 at
21.) In their response, Defendants do not claim that Defendant Weed actually
sustained physical bodily injury or that her emotional distress was accompanied by a
physical manifestation of that emotional distress. (See ECF No. 47 at 28.)7 Because
Peerless does not bear the burden of proof at trial as to whether non-economic
damages constitute a loss covered under the Policy, Peerless may satisfy its burden as
the moving party by demonstrating a lack of evidence. Adamson, 514 F.3d at 1145.
Absent a showing by Defendants that testimony was presented at trial regarding
physical injury, physical contact, or pain sustained by Defendant Weed, the Court finds
that Peerless has demonstrated a lack of evidence showing that the non-economic
damages awarded in the underlying judgment fall within the policy’s definition of “bodily
injury.” Accordingly, there is no genuine dispute of material fact as to a failure to show
“bodily injury” as defined under the Policy.
In sum, the Court finds that Peerless has no duty to indemnify Defendant
Colclasure for non-economic damages because there is no coverage for such damages
under the Policy. Peerless’s Motion is granted as to this issue.
3.

Attorneys’ Fees and Costs

The judgment in the underlying action included attorneys’ fees, and costs,
7

Rather, Defendants argue, unpersuasively, that the underlying award of non-economic
damages should be construed by the Court as “inconvenience” damages, which are expressly
permitted under the Construction Defect Action Reform Act (“CDARA”). (ECF No. 47 at 28
(citing Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159, 1172 (Colo. App. 2010)).) The
Court finds Hildebrand’s holding inapplicable because the underlying case in the instant action
was not premised on the CDARA.

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amounting to $136,573.35 and $14,796.26, respectiv ely. (ECF No. 38; ECF No. 47 ¶
33.) Defendant Weed was awarded attorneys’ fees because of the prevailing party feeshifting provision included in the contract between Defendant Weed and Defendant
Colclasure. (ECF Nos. 38, 47 ¶ 33.) Peerless argues that the award of attorneys’ fees
and costs are not covered under the Policy for two reasons. (See ECF No. 38 at 22.)
First, the insuring clause in the Policy only covers “those sums that the insured
becomes legally obligated to pay as damages” and Peerless argues attorney fee
awards are not encompassed under such damages. (Id.) Second, under the
contractual liability exclusion in the Policy, “damage for which the insured is obligated to
pay by reason of the assumption of liability in a contract or agreement” is excluded from
coverage. (Id.)
Defendants respond that in addition to the insuring clause, “Peerless may be
obligated to indemnify [Defendant Colclasure] for the attorney fee and costs awards
that entered against him under the Supplemental Coverages section of the Policy.”
(ECF No. 47 at 29.) The Court finds Defendant Colclasure’s argument under the
“Supplementary Payments” section persuasive.
The “Supplementary Payments” section provides that Peerless “will pay, with
respect to any claim we investigate or settle, or any ‘suit’ against an insured we defend:
(e) All costs taxed against the insured in the ‘suit.’” (ECF No. 1-1 at 37.) “Suit” is
defined in the policy as “a civil proceeding in which damages because of ‘bodily injury’
[and] ‘property damage’ . . . . to which this insurance applies are alleged.” (Id. at 45.)
Interpreting an identical “Supplementary Payments” clause, the court in Hoang v.
Monterra Homes (Powderhorn) LLC, 129 P.3d 1028, 1038 (Colo. App. 2007), rev’d on
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other grounds sub nom Hoang v. Assurance Co. of Am., 149 P.3d 798 (Colo. 2009),
gave the term “costs” its plain meaning, and concluded “that it encompasses attorney
fees that were awarded as costs.” Id. at 1038. The court went on to state, “[w]here
attorney fees are authorized by statute, court rule, contract, or common law, they may
be treated as either costs or damages. Classification of attorney fees as costs or
damages is a fact-sensitive inquiry and generally rests in the sound discretion of the
trial court.” Id. at 1038–39. The Colorado Supreme Court has noted that “[s]uch
discretion should be guided by the nature of the requested attorney fees. If attorney
fees are part of the substance of a lawsuit, that is, if the fees being sought are the
legitimate consequences of the tort or breach of contract sued upon, [] then such fees
are clearly damages. If, on the other hand, attorney fees are simply the consequence
of a contractual agreement to shift fees to a prevailing party, then they should be
treated as ‘costs,’ at least where the fee-shifting contract provision is not the subject of
the dispute between the parties and the contract itself is proven to exist.” Ferrell v.
Glenwood Brokers, Ltd., 848 P.2d 936, 941–42 (Colo. 1993).
Here, in the state trial court order granting Defendant Weed’s motion for entry of
judgment, Judge Gilbert noted that “the attorney fees awarded as part of this Judgment
shall be taxed as costs.” (ECF No. 38-10 at 2.) Clearly Judge Gilbert characterized the
attorneys’ fees awarded as “costs.” The Court agrees with this characterization, given
the Colorado Supreme Court’s guidance that fees awarded on the basis of a feeshifting provision should fall under the “costs” category. See Ferrell, 848 P.2d at 941;
see also Double Oak Construction, LLC v. Cornerstone Development International,
LLC, 97 P.3d 140, 150 (Colo. App. 2003). T herefore, this Court will not disturb the trial
21

court’s characterization. See Hoang, 129 P.3d at 1038 (classification of fee award rests
in discretion of trial court).
In sum, Peerless does have a duty to indemnify Defendant Colclasure as to
attorneys’ fees and costs because they are provided coverage under the Policy’s
“Supplementary Payments” section. Peerless’s Motion is therefore denied as to this
issue. The Court recognizes that Defendants did not file a motion requesting
affirmative summary judgment on this issue. However, given the Court’s resolution of
the arguments briefed on Peerless’s motion, it is doubtful that any factual disputes
remain for trial as to Defendant Colclasure’s entitlement to indemnification for the award
of attorneys’ fees and costs.
B.

Defendants’ Counterclaims
Defendants bring counterclaims against Peerless for: breach of insurance

contract, bad faith breach of insurance contract (both common law and statutory under
Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116), prof essional negligence, negligent
misrepresentation, negligent failure to warn, and breach of fiduciary duty. (ECF No. 19
at 11–18.) Peerless contends that Defendant Colclasure’s counterclaims fail as a
matter of law. (ECF No. 38 at 3.) The counterclaims will be discussed in turn.
1.

Breach of Insurance Contract & Bad Faith Claims

Peerless argues that it “could not have breached the Policy by declining to
indemnify Colclasure for the judgment when no such coverage is provided under
Policy.” (ECF No. 38 at 24.) Further, when an insurer owes no duty to indemnify its
insured, it cannot be in “bad faith” for failing to comply with a nonexistent duty under
common law principles. (Id. (citing Jarnagin v. Banker’s Life and Cas. Co., 824 P.2d
22

11, 15 (Colo. App. 1991)).) Because the Court has concluded that Peerless has a duty
to indemnify, at least as to attorneys’ fees and costs, it follows that the counterclaims
for breach of insurance contract and common law bad faith do not fail on this basis.
Peerless also argues that the counterclaim for statutory bad faith pursuant to
Colorado Revised Statutes §§ 10-3-1115 and 10-3-1116 f ails because neither
Defendant Colclasure nor Defendant Weed “are a ‘first-party claimant’ with standing to
assert such a claim.” (ECF No. 38 at 25.)
First-party claimants “whose claim for payment of benefits has been
unreasonably delayed or denied may bring an action in a district court to recover
reasonable attorney fees and court costs and two times the covered benefit.” C.R.S.
§ 10-3-1116. Additionally, the statute provides:
(I) “First-party claimant” means an individual, corporation,
association, partnership, or other legal entity asserting an
entitlement to benefits owed directly to or on behalf of an
insured under an insurance policy. “First-party claimant”
includes a public entity that has paid a claim for benefits due
to an insurer’s unreasonable delay or denial of the claim.
(II) “First-party claimant” does not include:
(A) A nonparticipating provider performing services; or
(B) A person asserting a claim against an insured
under a liability policy.
§ 10-3-1115(1)(b).
Peerless argues that Defendant Colclasure is not a “first-party claimant” as
defined by the statute because he “does not seek a benef it payable to him under the
Policy, but rather demands payment be made to Defendant Weed in satisfaction of the
judgment.” (ECF No. 38 at 25.) Additionally, it is argued that Defendant Weed is
23

specifically excluded under § 10-3-1115(1)(b)(II)(B) because she is an individual
asserting a claim against an insured under a liability policy. (Id.)
The Court agrees with Peerless that Defendant Weed is not a “first-party
claimant” under § 10-3-1115, by way of express exclusion under the statute. However,
the Court disagrees with Peerless’s argument as to Defendant Colclasure. As
explained below, the Court finds that an insured under a CGL policy, such as
Defendant Colclasure, is a “first-party claimant” for purposes of § 10-3-1116.
At common law, a first-party bad faith claim arises “when an insurance company
delays or refuses to make payments ‘owed directly to its insured under a first-party
policy such as life, health, disability, property, fire, or no-fault auto insurance.’” Nunn v.
Mid-Century Ins. Co., 244 P.3d 116, 119 (Colo. 2010) (quoting Goodson v. Am.
Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). On the other hand, a third-party
common law bad faith claim arises “when an insurance company acts unreasonably in
investigating, defending, or settling a claim brought by a third person against its insured
under a liability policy.” Goodson, 89 P.3d at 414. However, in enacting §§ 10-3-1115
and 10-3-1116, the Colorado General Assembly “intended to create an express private
right of action . . . . in addition to and different from common law bad faith claims.”
Kisselman v. Am. Family Mut. Ins. Co., 292 P.3d 964, 972 (Colo. App. 2011). T hus, the
statutes “cannot be read as simply restating the common law standard” for bad faith
claims. Id. at 973.
In the Court’s view, the statute explicitly defines who qualifies as a “first-party
claimant,” and in doing so it does not explicitly endorse a life, health, or disability
insured’s ability to bring a statutory claim any more than it precludes a commercial
24

general liability insured from bringing a statutory claim. Moreover, the majority of
decisions in this district have concluded that the plain language of § 10-3-1115 does not
preclude commercial general liability insureds from bringing a statutory bad faith claim.
See Nat. Union Fire Ins. Co. of Pittsburgh, PA v. Intraw est ULC, 2015 WL 1326199, at
*4 (D. Colo. March 20, 2015); Oakland Constr. Co., Inc. v. Phoenix Ins. Co., 2013 WL
2285778, at *5 (D. Colo. May 23, 2013) (ruling that an insured seeking indemnity from
an insurer under a CGL policy is a first-party claimant under the statute); D.R. Horton,
Inc.–Denver v. Mountain States Mut. Cas. Co., 2013 WL 674032, at *2 (D. Colo. Feb.
25, 2013). Accordingly, the Court finds that Defendant Colclasure has standing to
assert a claim for statutory bad faith against Peerless under Colorado Revised Statutes
§§ 10-3-1115 and 10-3-1116.
2.

Negligence Claims
a.

Professional Negligence

Peerless asserts that if Defendant Colclasure has “any viable tort claims against
Peerless, this claim is properly stated as a bad faith claim.” (ECF No. 38 at 26.) To
support this assertion Peerless contends that “any tort liability arising out of the
insurance contract is properly stated as a claim for alleged breach of the duty of good
faith and fair dealing, and an insured should not be permitted to state a claim for both
bad faith and negligence.” (Id. (citing Farmers Group, Inc. v. Trimble, 691 P.2d 1138,
1142 (Colo. 1984)).) Defendants provide no response. The Court agrees with
Peerless, the “pleading of two separate and distinct claims of bad faith and negligence
is inappropriate” under the circumstances, therefore, the professional negligence claim
shall be dismissed. Farmers Group, Inc., 691 P.2d at 1142–43.
25

b.

Negligent Misrepresentation

Under Colorado law, “a claim of negligent misrepresentation based on principles
of tort law, independent of any principle of contract law, may be available to a party to a
contract.” Keller v. A.O. Harvestore Prods., 819 P.2d 69, 72 (Colo. 1991). To establish
a claim for negligent misrepresentation, “it must be shown that the defendant supplied
false information to others in a business transaction, and f ailed to exercise reasonable
care or competence in obtaining or communicating information on which other parties
justifiably relied.” Mehaffy, Rider, Windholz & Wilson v. Centra Bank Denver, N.A., 892
P.2d 230, 236 (Colo. 1995).
Peerless argues that it had zero communication with Defendant Colclasure prior
to the underlying lawsuit, and that there is no evidence that Peerless made any
representations in order to induce Defendant Colclasure to purchase the Policy. (ECF
No. 38 at 27.) Defendants do not respond to this argument. Moreover, Defendants fail
to provide any evidence showing that Peerless supplied “false information” to
Defendant Colclasure at the time that he entered into a business transaction with a
representative of the insurance agency. Accordingly, Defendants’ claim for negligent
misrepresentation fails as a matter of law.
c.

Negligent Failure to Warn

The elements of a claim for negligent failure to warn include: (1) the existence of
a duty on the part of the manufacturer to warn buyers of any dangers that were known
or should have been known, (2) breach of that duty by the manufacturer, and (3) injury
to buyer resulting from that breach. See Palmer v. A.H. Robins Co., Inc., 684 P.2d 187,
198 (Colo. 1984).
26

Defendants’ counterclaim states that Peerless failed to advise Defendant
Colclasure “of the risks of the type of insurance product that they were placing or did
not fully understand the nature and extent of the insurance product that they were
placing.” (ECF No. 19 at 17.) Peerless argues that “negligent failure to warn arises in
the context of product liability lawsuits, where plaintiffs attempt to impose liability on a
manufacturer for failure to warn of risks associated with allegedly defective products.”
(ECF No. 38 at 29.) Defendants provide no counter-argument. On this issue, the Court
agrees with Peerless, that failure to warn claims typically arise in product liability suits
and has no application to the instant action. Given Defendants’ concession of this
argument, the Court concludes that Peerless owed no duty to warn to Defendant
Colclasure. Moreover, the Court finds that, even if a duty were owed, Defendants have
failed to show how Peerless “manufactured” a “product” that could give rise to a failure
to warn claim under the circumstances of this case or any injury flowing from the
alleged failure to warn. Accordingly, Defendants’ negligent failure to warn claim also
fails as a matter of law.
3.

Breach of Fiduciary Duty

Lastly, Peerless moves to dismiss Defendant Colclasure’s claim for breach of
fiduciary duty on the grounds that under Colorado law, no fiduciary relationship exists
between an insured and insurer. (Id. at 29–30.) Peerless cites ample persuasive
Colorado law on the issue. (Id. at 29 (citing Bernhard v. Farmers Ins. Exch., 915 P.2d
1285, 1289 (Colo. 1996) (finding that the insurer/insured relationship falls short of a true
fiduciary relationship, even in the context of defending a third-party lawsuit); see also
Bailey v. Allstate Ins. Co., 844 P.2d 1336, 1339 (Colo. App. 1992) (“[T ]he relationship of
27

confidence and trust which exists between the insurer and insured is not a fiduciary
one.”)).) Defendant Colclasure has not provided a response to this argument. (See
generally ECF No. 47.)
The Court agrees with Peerless that the parties are not in a fiduciary relationship,
nor does the Court see any reason to impose a fiduciary duty upon Peerless under the
circumstances. Accordingly, the breach of fiduciary duty claim fails as a matter of law.
See Lowry Assumption, LLC v. American Int’l Specialty Lines Ins. Co., 2011 WL
1321952, at *5 (D. Colo. Apr. 5, 2011) (dismissing breach of fiduciary duty claim against
insurer due to lack of fiduciary relationship between the insured and insurer).
In conclusion, the Court dismisses Defendants’ fourth, fifth, sixth, and seventh
counterclaims against Peerless. (See ECF No. 19 at 15–18.) In so ruling, the Court is
satisfied that Defendants’ concerns are adequately addressed by their three surviving
counterclaims: (1) breach of insurance contract, (2) bad faith breach of insurance
contract under common law, and (3) statutory bad faith under Colorado Revised
Statutes §§ 10-3-1115 and 10-3-1116.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Summary Judgment (ECF No. 38) is GRANTED IN PART
and DENIED IN PART as follows:
a.

Summary Judgement is GRANTED in favor of Peerless and against
Defendants as to Peerless’s duty to indemnify for non-economic
damages;

28

b.

Summary Judgment is DENIED as to Peerless’s duty to indemnify for
economic damages, attorneys’ fees, and costs;

c.

Summary Judgment is GRANTED in favor of Peerless and against
Defendants as to Defendants’ counterclaims against Peerless for
professional negligence, negligent misrepresentation, negligent failure to
warn, and breach of fiduciary duty, and those claims are dismissed with
prejudice; and

d.

Summary Judgment is DENIED as to Defendants’ counterclaims against
Peerless for breach of insurance contract, common law bad faith breach
of insurance contract, and statutory bad faith under Colo. Rev. Stat.
§§ 10-3-1115 and 10-3-1116.

2.

It is FURTHER ORDERED that the stay on discovery pursuant to ECF No. 44
and ECF No. 59 is hereby LIFTED; and

3.

Pursuant to Magistrate Judge Craig B. Shaffer’s Prior Order (ECF No. 44), the
parties are to contact his chambers within 72 hours of the entry of this Order.
Dated this 16th day of February, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

29