Hoang v. Assurance Co. of America

149 P.3d 798, 2007 Colo. LEXIS 31, 2007 WL 38997
CourtSupreme Court of Colorado
DecidedJanuary 8, 2007
DocketNo. 058C389
StatusPublished
Cited by66 cases

This text of 149 P.3d 798 (Hoang v. Assurance Co. of America) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoang v. Assurance Co. of America, 149 P.3d 798, 2007 Colo. LEXIS 31, 2007 WL 38997 (Colo. 2007).

Opinion

Justice HOBBS

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals' decision in Hoang v. Monterra Homes (Powderhorn) LLC and Assurance Co. of America, 129 P.3d 1028 (Colo.App.2005)1 This case deals with a commercial general lability ("CGL") insurance policy. The trial court, through a jury verdict, found Monterra Homes (Powderhorn) LLC ("Mon-terra") liable for construction defects to the current owners of several homes that Mon-terra built. Assurance Company of America (@Assurance") insured Monterra during the time period when damage to the homes occurred.

Several of the homeowners, including the Storbakkens, the Hoangs, and the Walts, sought to garnish the insurance policies issued by Assurance for satisfaction of their judgments. One set of homeowners, the Storbakkens, did not purchase their home directly from Monterra, but rather from another couple who owned the home during the relevant policy period. The trial court found that 80 percent of the damage to the Stor-bakkens' home occurred during this policy period, when their predecessors in interest owned the home, and allowed garnishment of the policy insuring Monterra.

The court of appeals reversed, holding that, because the Storbakkens did not own their home during the policy period, they could not have suffered damage during the policy period. Thus, according to the court of appeals, the Storbakkens could not have the benefit of the insurance proceeds. We disagree.

We hold that the proceeds of the CGL insurance policy at issue in this case are available through garnishment to satisfy the judgment of a subsequent purchaser of the damaged home against the homebuilder because (1) the builder insured itself against liability for damage occurring during the policy period, (2) the damage to the home occurred during the policy period, (3) no exelusion to the policy rendered the insured's policy coverage inapplicable because of a change in the home's ownership, and (4) the builder of the home was liable for the damage to the home.

Accordingly, in regard to the certiorari issue before us, we reverse the judgment of the court of appeals and remand this case to it with directions to return this case to the trial court for further proceedings consistent with this opinion.

I.

The plaintiffs in this case are several couples who own homes built by Monterra. Two of the couples, the Hoangs and the Walts, purchased their homes directly from Monter-ra and one couple, the Storbakkens, purchased their home from a third party, the Kellans.

The Kellans purchased their home from Monterra in November 1995. At this time the Kellans were aware that expansive soils in the area posed a risk, but Monterra assured the Kellans that Monterra had built their home to withstand these conditions. In this area of Colorado, moisture collects under a newly built home and increases the soil volume. This swelling soil creates a harmful condition, exerting pressure on the foundation of the home. Continuous and repeated exposure to this exeessive moisture results in cracks in the foundation and further damage to the structure of the home.

The Kellans sold their home to the Stor-bakkens in March 1998. At that time the damage to the foundation of the home had begun, but neither the Kellans nor the Stor-bakkens detected it. By the summer of 1999 the Storbakkens complained of visible cracks in the walls and ceilings throughout their home, as well as a separation of the exterior siding from the foundation. Repairs to the Storbakkens' home will cost $444,000.00.

The Storbakkens, along with two other couples owning homes built by Monterra, [801]*801filed suit against Monterra. The Storbakk-ens prevailed at trial, where a jury found Monterra liable to the Storbakkens for the full extent of their damages. The trial court found that there had been ongoing and progressive property damage to the lots and homes owned by each of the plaintiffs beginning immediately after Monterra sold the homes. The judgment the trial court entered against Monterra awarded the Stor-bakkens $777,739.89 including repair costs, attorneys' fees, litigation costs, and interest.

Assurance issued CGL policy no. RGP 26427162, insuring Monterra effective on August 7, 1995. Monterra renewed this policy each year for the four years encompassing the construction and sale of each of the three homes. The annual policies effective during each of these five years were identical, with the exception of an earth movement exclusion appended to the last three policies. The trial court apportioned the majority of the damage to the Storbakkens' home to the first policy year, based on the fact that the foundation of their home was severely compromised during this time, inevitably leading to further damage. The Storbakkens did not own their home during that policy year, giving rise to the dispute now before us.2

Following trial, the plaintiff homeowners filed a garnishment action against Assurance, seeking satisfaction of their judgments from the proceeds of Monterra's CGL insurance policy. Assurance denied coverage of the Storbakkens' claim, because the damage to their home occurred when the Kellans owned the home. According to Assurance, coverage for the builder's liability becomes non-operative when the home is sold to another party, even if the damage occurred during the policy period.

At the garnishment proceeding, the trial court held that the plain language of the insurance policy simply requires that the damage for which the insured builder is liable occur during the policy period. The trial court alternatively found that the Storbakk-ens were subrogated to the Kellans' rights under the insurance policy, as a matter of law3

Reversing the trial court, the court of appeals held that the proceeds of the insurance policy covering the builder's liability are not available to a subsequent purchaser of the home, even though the subsequent purchaser obtained a judgment against the builder for damage that occurred during the policy period. Hoang, 129 P.3d at 1087. The court of appeals also held that the Storbakkens were not subrogated to the rights and claims of the Kellans because of a dearth of Colorado authority for the proposition that subrogation of claims occurs as a matter of law upon the transfer of title to real property. Id.

IL.

We hold that the proceeds of the CGL insurance policy at issue in this case are available through garnishment to satisfy the judgment of a subsequent purchaser of the damaged home against the homebuilder because (1) the builder insured itself against liability for damage occurring during the policy period, (2) the damage to the home occurred during the policy period, (8) no exclusion to the policy rendered the insured's policy coverage inapplicable because of a change in the home's ownership, and (4) the builder of the home was liable for the damage to the home.

A.

Standard of Review

We review the interpretation of an insurance policy de novo. Cary v. United of Omaha Life Ins. Co., 108 P.3d 288, 290 (Colo.2005). We construe an insurance policy according to principles of contract interpretation. Thompson v. Md. Cas. Co.,

Related

Wright v. United Services
Colorado Court of Appeals, 2025
Puca v. Peterson
Colorado Court of Appeals, 2024
Sagome v. Cincinnati Insurance Company
56 F.4th 931 (Tenth Circuit, 2023)
Owners Ins. Co. v. Dakota Station II Condo. Ass'n, Inc.
2019 CO 65 (Supreme Court of Colorado, 2019)
Bolles v. Principal Life Ins. Co.
339 F. Supp. 3d 1195 (D. Colorado, 2018)
TBL Collectibles, Inc. v. Owners Ins. Co.
285 F. Supp. 3d 1170 (D. Colorado, 2018)
Ciber, Inc. v. ACE American Insurance Co.
261 F. Supp. 3d 1119 (D. Colorado, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
149 P.3d 798, 2007 Colo. LEXIS 31, 2007 WL 38997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoang-v-assurance-co-of-america-colo-2007.