24CA0199 Insight Surgery v WSi Healthcare 11-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0199 Douglas County District Court No. 19CV98 Honorable Andrew C. Baum, Judge
Insight Surgery Center, LLC,
Plaintiff-Appellant and Cross-Appellee,
v.
WSi Healthcare Personnel, Inc.,
Defendant-Appellee and Cross-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Brown and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025
McConnell Van Pelt, LLC, Michael T. McConnell, Jonathan J. Corrigan, Kellsey A. Hansen, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee
Hershey Decker Drake, C. Todd Drake, Kari M. Hershey, Brenna Shannon, Lone Tree, Colorado, for Defendant-Appellee and Cross-Appellant ¶1 Insight Surgery Center, LLC (Insight) appeals the district
court’s order dismissing its third-party complaint against WSi
Healthcare Personnel, Inc. (WSi). We reverse and remand for
further proceedings. WSi cross-appeals the court’s order denying
its motion for a directed verdict, which we affirm.
I. Background
A. The Underlying Action and Third-Party Complaint
¶2 This appeal arises from a third-party complaint in an
underlying wrongful death suit. In October 2017, the decedent
underwent a liposuction procedure at Insight’s facility and died the
following day. WSi, a healthcare personnel staffing agency,
provided medical staff to Insight. Lorez Hinson, a WSi nurse, was
one of the nurses who treated the decedent at Insight’s post
anesthesia care unit (PACU).
¶3 In 2019, the decedent’s estate (the Estate) brought a wrongful
death action against several individuals and entities. The Estate
later dismissed all parties except Insight and amended its complaint
to allege that Insight was liable for the negligence of several nurses,
including Hinson. Because Hinson was a WSi employee, Insight
asked WSi to defend and indemnify it pursuant to an agreement
1 between WSi and Insight’s predecessor, Renewal Surgery Center,
LLC (Renewal). WSi refused, asserting that Insight was not a party
to the agreement. Insight later filed a third-party complaint against
WSi alleging breach of contract and seeking contribution, defense,
and indemnification in the wrongful death action.
B. The Relevant Agreements
¶4 Insight’s third-party claims implicated three contracts. First,
under a 2014 “Client Agreement” (2014 Agreement), WSi provided
healthcare personnel to Renewal via three possible staffing
arrangements: a “Temp to Hire Option,” a “Direct Hire Option,” and
a “PRN Option.”1 The 2014 Agreement also listed hourly rates for
“OR nurses,” “PACU nurses,” “scrub techs,” and “sterile
processors.” And the 2014 Agreement automatically renewed each
year, allowed written modifications, bound the parties’ successors,
and provided that it “constitute[d] the entire understanding and
agreement between the parties . . . and supersede[d] all prior
agreements, arrangements and understanding . . . with respect to
1 Although not defined in the 2014 Agreement, a PRN is a “per
request needed” or “as needed” employee. An “OR” nurse is an operating room nurse.
2 its subject matter” (merger clause). As discussed further in Part III,
the 2014 Agreement also included an indemnification clause (the
basis for Insight’s third-party complaint) and a description of the
parties’ respective responsibilities.
¶5 In 2016, WSi and Renewal executed a second “Client
Agreement” (2016 Agreement). It was significantly shorter and
lacked many of the 2014 Agreement’s general terms, such as
clauses addressing merger, successor liability, indemnification,
venue, modification, and insurance. Like the 2014 Agreement, it
outlined the temp to hire, direct hire, and PRN options, but the
2016 Agreement listed the hourly rate only for “Surg Techs” (or
surgical technicians).
¶6 Finally, Renewal and Insight executed a July 2017 Asset
Purchase Agreement (APA) in which Renewal sold Insight “all of its
core assets and assign[ed] all of its core contracts used in the
operation of its surgery center.” Renewal agreed “to sell, assign,
transfer, convey and deliver to Insight” Renewal’s rights and
obligations under “the Assumed Contracts,” which were listed in an
3 attachment to the APA and included a “WSi Healthcare Personnel
Agreement Dated August 29, 2016.”2
C. WSi’s Summary Judgment Motion and the Jury Verdict
¶7 Because Insight’s third-party claims relied on the 2014
Agreement’s indemnity clause, Insight moved for a determination of
law that Renewal assigned the 2014 Agreement to Insight under the
APA. The district court denied the motion, concluding that whether
the 2014 Agreement applied to Insight was an issue of fact for a
jury to determine.
¶8 Because Insight was not a party to the 2014 Agreement — and
the APA explicitly assigned only the 2016 Agreement (which lacked
an indemnity provision) — WSi moved for summary judgment,
arguing that Insight lacked privity of contract to invoke the
indemnity clause. It argued that the APA assigned only the 2016
Agreement, not the 2014 Agreement, and Insight could not use
extrinsic evidence (the 2014 Agreement) “to create ambiguities in
2 Although the 2016 Agreement was to “be observed beginning”
August 26, it was executed on August 29 and August 31. The parties appear to agree that the WSi contract referenced in the APA is the 2016 Agreement.
4 otherwise unambiguous contracts” (the 2016 Agreement and the
APA).
¶9 The district court denied WSi’s motion. It agreed that the APA
“unambiguously assign[ed] only the 2016 Agreement . . . to Insight,”
but it concluded that this did not resolve “whether the 2016
Agreement was a separate contract that replaced the 2014
Agreement [i.e., a novation3] or . . . simply amended the 2014
Agreement.” The court noted that the 2016 Agreement lacked a
merger clause (the inclusion of which could support a novation) but
also lacked other language suggesting it modified an earlier
agreement. The court also compared the 2014 and 2016
Agreements, noting, for example, that the 2014 Agreement allowed
amendments and automatically renewed unless terminated by
written notice, but nothing in the 2016 Agreement suggested that it
amended or terminated the 2014 Agreement. Accordingly, the court
found the 2016 Agreement facially “ambiguous as to whether it is a
standalone contract or an amendment/codicil.”
3 A novation occurs when one contract is extinguished and
substituted with a new contract. Oldham v. Pedrie, 2015 COA 95, ¶ 32.
5 ¶ 10 After concluding that the 2016 Agreement was ambiguous, the
court accepted extrinsic evidence to determine WSi and Renewal’s
intent in 2016. But because this inquiry was factual, it concluded
that a jury would determine whether the 2016 Agreement, which
the APA assigned to Insight, was a novation “that entirely
superseded the 2014 Agreement” or whether it “amended or
supplemented the 2014 Agreement.” If the jury found that the
2016 Agreement amended the 2014 Agreement, the 2014
Agreement remained effective and applied to Insight, and Insight
could pursue its third-party claims. But if there was a novation,
the 2014 Agreement would not apply to Insight.
¶ 11 On the second day of a bifurcated jury trial, the Estate moved
for a directed verdict, which WSi joined. The court declined to enter
a directed verdict, incorporating its order denying WSi’s summary
judgment motion. At the trial’s conclusion, the jury found that the
2016 Agreement was not a novation that superseded the 2014
Agreement; rather, it was an amendment.
D. The Court Dismisses the Third-Party Complaint
¶ 12 On September 1, 2023, after the jury’s verdict but before a
September 7 status conference, the Estate amended its complaint
6 to add a negligent hiring and supervision claim against Insight. As
discussed further in Part III, during the September 7 status
conference, the court dismissed Insight’s third-party complaint. It
held that Insight’s vicarious liability for Hinson’s conduct abrogated
WSi’s duty to defend and found the indemnity provision void as
against public policy. Insight asked the court to reconsider, which
the court denied. The underlying wrongful death action was
dismissed in February 2024 after Insight and the Estate settled.
E. This Appeal
¶ 13 Insight appeals the court’s order dismissing its third-party
complaint, and WSi cross-appeals the court’s denial of its motion
for a directed verdict. We address the cross-appeal first because it
requires us to consider whether the 2014 Agreement applied to
Insight. Because we reject WSi’s contentions, we then turn to
Insight’s appeal. And we conclude that the court erred in its
interpretation of the 2014 Agreement’s indemnity provision and by
concluding that it is void as against public policy.
II. WSi’s Cross-Appeal
¶ 14 WSi initially challenged the court’s order denying its motion
for summary judgment, which — as Insight noted — is not a final,
7 appealable order. See Trudgian v. LM Gen. Ins. Co., 2024 COA 87,
¶ 37 (dismissing a cross-appeal challenging an order denying a
summary judgment motion). However, as Insight also noted, the
district court incorporated its order denying summary judgment
into its order denying WSi’s motion for a directed verdict.
Therefore, we consider the court’s rationale for denying summary
judgment as it applies to its denial of the directed verdict.
¶ 15 We address WSi’s arguments on cross-appeal as follows: First,
we consider the district court’s conclusion that the 2016 Agreement
was ambiguous and address whether the court improperly
considered extrinsic evidence to reach that conclusion. We next
consider whether the court properly denied the motion for directed
verdict and whether Insight’s third-party complaint could proceed
following the jury’s finding that the 2016 Agreement amended the
2014 Agreement. We perceive no error.
A. Standard of Review
¶ 16 We review orders denying a motion for directed verdict de
novo. Gilley v. Oviatt, 2025 COA 27, ¶ 12. Directed verdicts are
generally disfavored and are appropriate only “[i]f there is no
evidence to support an element of a claim.” Id. at ¶¶ 11-12. In
8 making this determination, “[t]he . . . court must view the evidence
in the light most favorable to the nonmoving party.” Id. at ¶ 11. We
also review contract interpretation de novo, including whether a
contract is ambiguous. Gagne v. Gagne, 2014 COA 127, ¶ 50.
B. The District Court Could Consider Extrinsic Evidence to Find the 2016 Agreement Ambiguous
1. Applicable Law
¶ 17 “A contract is ambiguous when it is reasonably susceptible to
more than one meaning.” Pub. Serv. Co. of Colo. v. Meadow Island
Ditch Co. No. 2, 132 P.3d 333, 339 (Colo. 2006). To determine if a
contract is ambiguous, we typically “examin[e] the instrument’s
language and constru[e] that language in harmony with the plain
and generally accepted meaning of the words employed.” French v.
Centura Health Corp., 2022 CO 20, ¶ 25. Courts generally do not
consider extrinsic evidence (evidence beyond the four corners of the
contract) unless a contract is facially ambiguous. Id. However, as
with most rules, there are exceptions.
9 ¶ 18 For example, courts sometimes conditionally admit extrinsic
evidence to determine whether a contract is ambiguous.4 See
Pepcol Mfg. Co. v. Denv. Union Corp., 687 P.2d 1310, 1314 n.3 (Colo.
1984) (explaining that courts may conditionally admit extrinsic
evidence); E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation
Co., 109 P.3d 969, 974 (Colo. 2005) (describing a shift away from
the “rigid ‘four corners’ rule” (citation omitted)); Meadow Island, 132
P.3d at 339 (noting that conditional extrinsic evidence does not
include the parties’ expressions of intent).
¶ 19 Similarly, under the parol evidence rule, evidence of a prior
agreement is admissible to interpret a later agreement in certain
circumstances. See LTCPRO, LLC v. Johnson, 2024 COA 123,
¶¶ 22-26; Restatement (Second) of Contracts § 213 (Am. L. Inst.
1981). “When an agreement is completely integrated, evidence of
prior agreements may not be used to contradict, vary, or
supplement its terms.” Johnson, ¶ 22. If an agreement is only
partially integrated, evidence of a prior agreement may
4 Colorado Supreme Court opinions take conflicting positions on
this issue. See, e.g., Am. Fam. Mut. Ins. Co. v. Hansen, 2016 CO 46, ¶ 4 (“[A]mbiguity must appear in the four corners of the document before extrinsic evidence can be considered.”).
10 “supplement” but not contradict the partially integrated agreement’s
terms.5 Merk v. Jewel Food Stores Div. of Jewel Cos., 945 F.2d 889,
892 (7th Cir. 1991); 11 Richard A. Lord, Williston on Contracts
§ 33:22, Westlaw (4th ed. database updated May 2025).
¶ 20 To determine the level of integration, “‘wide latitude must be
allowed for inquiry into circumstances bearing on the intention of
the parties’ . . . when the contract itself does not unambiguously
answer that question.” Johnson, ¶ 41 (citation omitted);
Restatement (Second) of Contracts § 213 cmt. b (instructing courts
to consider “all relevant evidence,” including both agreements).
Thus, courts may consider two agreements to decide if one of them
is fully or partially integrated (or ambiguous as to integration). See
Johnson, ¶¶ 24, 30; Restatement (Second) of Contract § 210 cmt. b
(“[A] writing cannot of itself prove its own completeness . . . .”).
¶ 21 Moreover, the parol evidence rule “does not relate to future
agreements and does not bar extrinsic evidence that proves that the
parties subsequently modified their integrated writing.” Reynolds v.
5 Complete and partial integration reflect the extent to which the
parties intended their agreement to be a complete and exclusive expression of the terms. See United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997).
11 Gentry Fin. Corp. & Royal Mgmt., 2016 UT App 35, ¶ 18 (citation
omitted); Beggerly v. Gbur, 169 Cal. Rptr. 166, 171 (Ct. App. 1980)
(same). Similarly, “[p]arol evidence is admissible when determining
whether a novation has occurred.” 30 Williston on Contracts
§ 76:42; see Oldham, ¶ 30 (“[P]roof of novation may be established
by evidence of an express understanding to this effect or by
circumstances showing such assent.”).
2. Analysis
¶ 22 WSi contends that the district court erroneously considered
the 2014 Agreement to determine the 2016 Agreement’s ambiguity.
But WSi’s argument construes the issue too narrowly. Because the
APA assigned the 2016 Agreement to Insight, Insight argued that
the assignment included the 2014 Agreement (as modified by the
2016 Agreement). Thus, the question before the court was not
limited to examining the 2016 Agreement; the court had to
determine whether the 2016 Agreement amended or replaced the
2014 Agreement.
¶ 23 WSi asserts that the district court could not consider Insight’s
argument that the 2016 Agreement amended the 2014 Agreement
unless it found “ambiguity within the 2016 Agreement itself.” This
12 argument misses the mark for several reasons. First, WSi
conceptually flips the parol evidence rule, which does not prohibit
extrinsic evidence to determine whether an earlier agreement was
amended or replaced by a later agreement. Reynolds, ¶ 18
(amendment); 30 Williston on Contracts § 76:42 (novation). Second,
notwithstanding the parol evidence rule, the court could
conditionally consider extrinsic evidence, other than the parties’
statements of intent, to determine whether the 2016 Agreement was
ambiguous as to whether it amended or supplanted the 2014
Agreement. E.g., Meadow Island, 132 P.3d at 339.
¶ 24 Finally, although the court did not explicitly consider whether
the 2016 Agreement was fully or partially integrated, courts often
apply this framework to determine if evidence of a prior agreement
can be used to interpret a later agreement. See, e.g., Glover v. Innis,
252 P.3d 1204, 1208 (Colo. App. 2011). And the court could
consider extrinsic evidence to decide if the 2016 Agreement was
fully or partially integrated. Johnson, ¶¶ 24, 30; Restatement
(Second) of Contracts § 213 cmt. b. If it was only partially
integrated, the 2014 Agreement was then admissible to add to, but
not contradict, the 2016 Agreement’s terms. Merk, 945 F.2d at 892.
13 ¶ 25 The court effectively engaged in this analysis when it
compared the two agreements and found that the 2016 Agreement
lacked a merger clause and other terms present in the 2014
Agreement that would suggest full integration. See Johnson, ¶¶ 22,
27 (explaining that merger clauses often indicate complete
integration); In re Indian Motorcycle Litig., 307 B.R. 7, 12 (D. Mass.
2004) (finding a later agreement not fully integrated because it
lacked terms from an earlier agreement that suggested full
integration, including venue, successor liability, and severability).
¶ 26 Under several legal principles, the district court could consider
extrinsic evidence to find the 2016 Agreement ambiguous.6 It also
did not err by finding the 2016 Agreement ambiguous as to whether
it replaced or amended the 2014 Agreement. And its ambiguity
finding was based on the contracts’ terms, not the parties’
6 To the extent WSi suggests that the 2016 Agreement was a
separate contract that did not supplement or amend the 2014 Agreement, this argument undercuts its contention that extrinsic evidence was inadmissible. See Rosemann v. Roto-Die, Inc., 377 F.3d 897, 901 (8th Cir. 2004) (“[T]he parol evidence rule does not bar evidence of ‘a wholly separate and independent contract that did not inherently conflict with the written [integrated] agreement.’” (citation omitted)); Restatement (Second) of Contracts §§ 213 cmt. c, 216 cmt. c (Am. L. Inst. 1981).
14 statements of intent. See Fed. Deposit Ins. Corp. v. Fisher, 2013 CO
5, ¶ 12 (“[T]he fact that the parties differ in their understanding of
the agreement does not create an ambiguity.”).
¶ 27 First, the 2016 Agreement’s omission of terms present in the
2014 Agreement suggested that the parties did not intend to replace
the 2014 Agreement. See Indian Motorcycle Litig., 307 B.R. at 12.
Next, the 2016 Agreement referenced only surgical technicians, but
the third-party dispute involved a PACU nurse, a role addressed
only in the 2014 Agreement. However, the 2016 Agreement did not
reference the 2014 Agreement or indicate an intent to terminate it.
Therefore, the 2016 Agreement was “reasonably susceptible to more
than one meaning.” Meadow Island, 132 P.3d at 339. And the
meaning of an ambiguous contract “is generally an issue of fact to
be determined in the same manner as other disputed factual
issues.” E. Ridge of Fort Collins, LLC, 109 P.3d at 974; see also
Oldham v. Pedrie, 2015 COA 95, ¶ 30 (“Whether there has been a
novation is ordinarily a question of fact . . . .”). So a jury could (and
did) determine whether the 2016 Agreement replaced or amended
the 2014 Agreement.
15 C. The Court Properly Denied the Motion for Directed Verdict and Allowed Insight’s Third-Party Claims to Proceed
¶ 28 WSi next argues that the court erroneously concluded that
Insight’s third-party claims could proceed if the jury found that the
2016 Agreement amended the 2014 Agreement. Specifically, it
contends that the 2014 Agreement could not apply to Insight unless
Insight also proved that it was Renewal’s successor or assignee
under the 2014 Agreement. WSi further asserts that the 2016
Agreement did not amend the 2014 Agreement, which we construe
as an argument that court erred by denying WSi’s motion for a
directed verdict. First, we conclude that the court properly denied a
directed verdict. Second, we reject WSi’s argument that Insight’s
third-party claims could proceed only after it had proved it was
Renewal’s successor or assignee.
1. The Directed Verdict
¶ 29 Because the 2016 Agreement was ambiguous, the jury could
consider extrinsic evidence to decide if it was a novation or
amendment. E. Ridge of Fort Collins, LLC, 109 P.3d at 974. This
included, for example, “circumstances surrounding the transaction”
and the parties’ conduct before the controversy. Id.
16 ¶ 30 The jury heard evidence that, on August 26, 2016 — the first
date the 2016 Agreement was to “be observed” — a WSi employee
emailed Insight, “I have attached our new bill rates. . . . If
agreeable, [please] sign and return. . . . [W]e need to . . . pay higher
wages so that we have a larger pool of surg techs available.” WSi’s
chief executive officer (CEO) also testified that “surgical tech[s] and
scrub tech[s] are the same thing” and that WSi provided surgical
technicians to Renewal before 2016. Thus, although the 2014
Agreement included “scrub tech[s]” and the 2016 Agreement
included “surg tech[s],” they addressed the same position.
Together, this evidence supported Insight’s argument that the 2016
Agreement amended the 2014 Agreement, including the hourly rate
for surgical technicians.
¶ 31 Next, although PACU nurses were listed only in the 2014
Agreement, WSi’s CEO testified that WSi provided PACU nurses to
Renewal and Insight after 2016.7 Similarly, only the 2014
7 We also reject WSi’s argument that the addendum to the 2016
Agreement, which listed different types of staff that WSi could provide, was evidence that the 2016 Agreement encompassed PACU nurses and other WSi personnel. WSi’s CEO testified that this addendum was effectively a marketing material.
17 Agreement required proof of liability insurance, but WSi submitted
liability insurance certificates after 2016. WSi’s CEO testified that
WSi also sent insurance certificates upon request, regardless of any
contractual obligation, but conflicting evidence differs from no
evidence. See Smith v. Mehaffy, 30 P.3d 727, 731 (Colo. App. 2000).
Thus, evidence that WSi and Renewal (later Insight) continued to
perform under the 2014 Agreement after entering into the 2016
Agreement supported the amendment argument. See E. Ridge of
Fort Collins, LLC, 109 P.3d at 974 (inferring intent from the parties’
conduct).
¶ 32 Finally, the jury could infer from the agreements themselves
that the 2016 Agreement was meant to amend, rather than replace,
the 2014 Agreement. See Indian Motorcycle Litig., 307 B.R. at 12
(finding an amendment in similar circumstances because “[i]t [was]
highly improbable that the parties intended to eliminate” terms
from the later agreement that were present in the earlier agreement
“without any mention of that intent”). WSi relies on evidence
presented at trial that Renewal’s counsel never received the 2014
Agreement when drafting the APA, and Renewal and Insight
explicitly chose which contracts to assign in the APA, which did not
18 include the 2014 Agreement. Thus, WSi argues, there was no
evidence that Insight was Renewal’s successor or assignee. We
reject this contention. First, the question at trial concerned the
2016 and 2014 Agreements, not the APA. Second, as we explain
below, the 2014 Agreement could apply to Insight even if it was not
¶ 33 Viewing the evidence in a light most favorable to Insight, there
was evidence to support its claim that the 2016 Agreement
amended the 2014 Agreement such that the court properly denied a
directed verdict in WSi’s favor. See Gilley, ¶¶ 11-12.
2. The Third-Party Claims Could Proceed from the Jury Verdict
¶ 34 WSi dedicates much of its cross-appeal to arguing that the
2014 Agreement cannot apply to Insight unless (1) the APA directly
assigned the 2014 Agreement or (2) Insight was Renewal’s
successor or assignee under the 2014 Agreement. In other words,
WSi suggests that the jury’s verdict — that the 2016 Agreement
amended the 2014 Agreement — was legally insufficient for the
2014 Agreement to apply to Insight. We are not persuaded.
¶ 35 First, WSi contends that the APA unambiguously assigned
only the 2016 Agreement because the APA made clear that it was
19 assigning to Insight only the assumed contracts, which did not
include the 2014 Agreement. But WSi overlooks “a legal principle
[that] is so basic that it is nearly intuitive, and is stated
infrequently”:
Modifications do not necessarily abrogate the original contract entirely; indeed, the terms of the old contract are still to be followed so far as not changed or as inconsistent with the new terms, and the governing contract may be said to be composed of the new terms and the unchanged terms of the old.
Marine Transp. Lines, Inc. v. Int’l Org. of Masters, Mates & Pilots, 696
F. Supp. 1, 16 (S.D.N.Y. 1988) (emphasis added) (quoting Robinson
v. Crosson, 368 P.2d 791, 792 (Colo. 1962)), aff’d, 878 F.2d 41 (2d
Cir. 1989).
¶ 36 A modified contract includes the modified terms and any
original terms consistent with the modification. E.g., Chavarria v.
Bruce Nagel & Partners Architects, P.C., 220 N.Y.S.3d 57, 61 (App.
Div. 2024) (“[M]odification of a contract results in the creation of a
new contract between the parties, which supplants only the
provisions of the original contract affected by the modification while
leaving the unaffected provisions intact.”); Ass’n Res., Inc. v. Wall, 2
20 A.3d 873, 902 (Conn. 2010) (“The contract as modified becomes a
new contract between the parties.” (citation omitted)).
¶ 37 WSi treats the two agreements as entirely separate contracts.
But because the 2016 Agreement amended the 2014 Agreement,
the new contract became the 2014 Agreement as modified by the
2016 Agreement. Wall, 2 A.3d at 902. In turn, the APA’s
assignment of the 2016 Agreement included the 2014 Agreement as
modified by the 2016 Agreement. See id. Therefore, the 2014
Agreement applied to Insight regardless of whether it was
designated as Renewal’s successor or assignee. We also reject
WSi’s reliance on the APA’s assurance that the assumed contracts
had not been modified; the 2014 Agreement, which was not an
assumed contract, was modified.
¶ 38 Thus, the district court did not err by concluding that Insight’s
third-party claims, which were based on the 2014 Agreement, could
proceed from the jury’s finding that the 2016 Agreement amended
III. Insight’s Appeal
¶ 39 We now turn to Insight’s appeal, which challenges the district
court’s order dismissing its third-party complaint. Insight first
21 contends that the court erred by sua sponte dismissing its
complaint without providing an opportunity for argument and
response. Insight also argues that the court erred in its
interpretation of the 2014 Agreement’s indemnity provision and by
concluding that it was void as against public policy. We conclude
that the district court erred.
A. Additional Facts
¶ 40 In the 2014 Agreement, WSi agreed to supervise its personnel
administratively “[w]ith the exception of direct patient care.” WSi
screened its personnel, but WSi personnel were bound by Insight’s
policies and procedures and received facility orientation from
Insight. Under the indemnity clause, WSi agreed to “defend,
indemnify, and hold harmless [Insight] from any claim, liability,
loss, cost, fines or penalties or expenses . . . arising from or related
to negligent . . . conduct of Temporary Staff, including, without
limitation, claims for third party . . . injuries . . . or any other claim
of any kind or character.”
¶ 41 After the jury’s verdict established that the 2014 Agreement
applied to Insight, the Estate moved for a determination of law that
Hinson (the nurse supplied by WSi) was Insight’s loaned employee.
22 See Settle v. Basinger, 2013 COA 18, ¶ 33 (explaining that a person
or entity that “borrows” another’s employee can be liable for the
employee’s negligence under certain circumstances). The court held
that, under the 2014 Agreement, “Insight had the right to control
. . . Hinson’s direct care of all patients, including [the decedent].”
The court ultimately concluded that Hinson was Insight’s loaned
employee such that Insight could be vicariously liable for her
negligent conduct.
¶ 42 At the September 7 status conference, the district court
considered the 2014 Agreement’s indemnity provision. It noted that
the provision applied to claims or liability “arising from or related to
negligent . . . conduct of Temporary Staff,” which likely included
Hinson. But because Hinson was Insight’s loaned employee,
Insight was responsible for supervising her direct patient care and
vicariously liable for her negligence. The court thus held that WSi
had no duty to defend Insight because the Estate’s allegations
applied only to Hinson’s direct patient care, “and WS[i] had no
control over how . . . Hinson provided direct care while working at
Insight.” Holding that it made “no sense that WS[i] should have a
duty to defend where it had absolutely no control or responsibility
23 for” Hinson’s direct care of the decedent, the district court
dismissed Insight’s claim regarding WSi’s duty to defend.
¶ 43 With respect to the third-party claim regarding WSi’s duty to
indemnify Insight, the court cited Brochner v. Western Insurance
Co., 724 P.2d 1293 (Colo. 1986), and section 13-50.5-102, C.R.S.
2025, and concluded that the contractual provision was “void
against public policy because it would require WS[i] to pay all of the
damages . . . or . . . a disproportionate share of damages . . .
regardless of its proportionate fault.” Ultimately, the court
dismissed the entire third-party complaint and WSi as a party.
¶ 44 In its order denying Insight’s motion for reconsideration, the
district court took a slightly different approach from its earlier oral
order. It analyzed cases considering whether indemnity agreements
expressed sufficient intent to indemnify a party for its own
negligence and then concluded that the 2014 Agreement failed to
express such intent. The court concluded that the provision did not
indemnify Insight only against Insight’s own negligence because it
did not “contain clear and unequivocal language holding Insight
harmless for its own negligent acts.”
24 B. Standard of Review
¶ 45 We review de novo whether a contract violates public policy.
Calvert v. Mayberry, 2019 CO 23, ¶ 13. We also review de novo a
district court’s legal conclusions, Premier Members Fed. Credit Union
v. Block, 2013 COA 128, ¶ 27, including its conclusions regarding
contract interpretation, Gagne, ¶ 50. “An indemnity provision
‘should be enforced according to the plain and generally accepted
meaning of its language and interpreted in its entirety to give effect
to all of its provisions so that none [is] rendered meaningless.’” D.R.
Horton, Inc.-Denv. v. D & S Landscaping, LLC, 215 P.3d 1163, 1171
(Colo. App. 2008) (citation omitted).
C. Sua Sponte Dismissal
¶ 46 We first conclude that even if the district court erred by sua
sponte dismissing Insight’s third-party complaint, any error was
harmless because Insight presented argument on the issue in its
motion for reconsideration, which the court thoroughly considered.
See Ferrera v. Nielsen, 799 P.2d 458, 460 (Colo. App. 1990)
(entering summary judgment on an issue not raised by the parties
was harmless where the party addressed the issue in a motion to
reconsider). Additionally, because we may review the merits of a
25 sua sponte ruling on appeal (even absent a timely objection), Rinker
v. Colina-Lee, 2019 COA 45, ¶ 26, it would make little sense to
remand the issue based solely on the procedural aspect of the
court’s dismissal. For similar reasons, we need not address
Insight’s argument that the district court should have analyzed the
motion to reconsider under C.R.C.P. 121, rather than C.R.C.P. 59.
D. The Indemnity Provision
¶ 47 Insight next contends that the district court erred in its
interpretation of the 2014 Agreement’s indemnity provision and by
concluding that the entire indemnity provision was void as against
public policy. We agree. We first consider the effect of the court’s
ruling on the Estate’s claim that Insight was vicariously liable for
Hinson’s negligence, which is separate from its claim that Insight
was directly liable for its own negligent training and supervision.
Next, we must determine whether the district court correctly
concluded that the provision indemnified Insight only for Hinson’s
negligence, not Insight’s own negligence. Finally, because the court
suggested that Hinson’s status as a loaned employee “drove [its]
ruling that the indemnification clause . . . was void,” we consider
the effect of Hinson’s loaned employee status.
26 1. Direct Negligence Versus Vicarious Liability
¶ 48 The district court’s conclusion that the indemnity provision
was void was based on its conclusion that the provision indemnified
Insight for its own negligence. But the Estate brought separate
claims against Insight for direct negligence and vicarious liability.
So even if the court correctly concluded that the 2014 Agreement
could not indemnify Insight for its own negligence because doing so
would violate public policy — a conclusion we disagree with, as set
forth in Part III.D.2 below — there was still a question as to whether
the 2014 Agreement properly indemnified Insight for its vicarious
liability for Hinson’s negligence.
¶ 49 This is because, for purposes of indemnification, courts often
treat claims based solely on vicarious liability differently from
claims that also allege direct negligence. For example, our supreme
court held that the Uniform Contribution Among Tortfeasors Act
(UCATA), §§ 13-50.5-101 to -106, C.R.S. 2025, abrogated common
law indemnity actions among joint tortfeasors. Brochner, 724 P.2d
at 1299. But a division of this court concluded that the UCATA did
not bar a common law indemnity action between an employer and
employee when the complaint “alleged that [the employer] was liable
27 based only on a theory of respondeat superior, not negligence.”
Serna v. Kingston Enters., 72 P.3d 376, 380 (Colo. App. 2002); see
also Linarello v. City Univ. of New York, 774 N.Y.S.2d 517, 519 (App.
Div. 2004) (Although indemnification clauses that indemnify an
indemnitee for its own negligence are unenforceable under New
York law, such provisions may be enforceable if “the indemnitee is
found not negligent but nevertheless held vicariously liable.”).
¶ 50 We disagree with Insight that the district court could not
consider the provision’s validity until there was a finding that
Insight was directly negligent.8 Even so, the district court
improperly conflated the Estate’s separate allegations of Insight’s
direct negligence and Insight’s vicarious liability for Hinson’s
negligence. See L.J. v. Carricato, 2018 COA 3, ¶ 37 (Vicarious
liability “is not based on the [employer’s] own negligent acts.
Rather, it is based on the [employer’s] vicarious liability for” the
8 We also do not address Insight’s argument about who was
responsible for supervising or directing Hinson’s patient care because Insight does not challenge the district court’s loaned employee determination concluding that Insight was responsible for such supervision and direction. See Armed Forces Bank, N.A. v. Hicks, 2014 COA 74, ¶ 38 (deeming arguments not raised on appeal as abandoned).
28 employee’s actions. (citation omitted)). Here, the court concluded
that the entire indemnity clause was void based on its conclusion
that the clause should not apply to Insight’s own negligence. Thus,
it erred by treating the Estate’s claims against Insight for vicarious
liability and direct negligence in the same manner.
2. The Indemnity Provision Covered Insight’s Own Negligence and Was Not Void as Against Public Policy
¶ 51 As noted, in its oral ruling at the September 7 status
conference, the district court concluded that the indemnity
provision was void as against public policy because it indemnified
Insight for its own negligence. But in its order denying Insight’s
motion for reconsideration, the court determined, somewhat
inconsistently, that the indemnity provision lacked “clear and
unequivocal language holding Insight harmless for its own negligent
acts” and thus did not indemnify Insight for its own negligence.
The court nonetheless maintained its ruling that the provision was
void as against public policy. We conclude that the court erred
both in its interpretation of the provision and in declaring it void as
against public policy.
29 ¶ 52 In Colorado, a provision that “indemnif[ies] a party against
liability for its own negligence will be enforced as written as long as
it contains a clear and unequivocal expression that the parties
intended that result.” Constable v. Northglenn, LLC, 248 P.3d 714,
716 (Colo. 2011). In commercial contracts between sophisticated
parties, Colorado appellate courts have found “broad language of
indemnity holding another harmless against liability generally,
without any specific reference or limitation to its own negligence, to
constitute an adequate expression of intent to indemnify to the
extent . . . otherwise permitted by public policy.” Id.
¶ 53 For example, in Constable, the supreme court held that the
following provision encompassed the indemnitee’s own negligence:
“Constable agrees to . . . indemnify Northglenn from and against
any and all losses, damages, liability, claims, suits or actions, . . .
due to any bodily injury sustained in the shopping center’s
community areas by . . . [shopping center visitors] or as a result of
Constable’s business.” Id. at 716-17 (citation modified). The “‘any
and all’ language” supported the court’s conclusion that the clause
covered Northglenn’s own negligence. Id. at 717.
30 ¶ 54 Our supreme court reached the same conclusion about a
provision “requiring United Cable to ‘indemnify . . .’ Public Service
from and against all claims and liabilities in any way arising out of
the rights granted United Cable.” Pub. Serv. Co. of Colo. v. United
Cable Television of Jeffco, Inc., 829 P.2d 1280, 1283 (Colo. 1992).
Although the clause did not explicitly mention Public Service’s
negligence, it applied to “all claims, liabilities, causes of action, or
other legal proceedings,” which was sufficient to include Public
Service’s negligence. Id. (emphasis omitted) (“The use of the word
‘liabilities’ is significant because it covers those instances where
Public Service is legally liable for damages, including those where
liability arises because of its own negligence.”).
¶ 55 In Lafarge North America, Inc. v. K.E.C.I. Colorado, Inc., 250
P.3d 682, 685 (Colo. App. 2010), a division of this court considered
a provision in which K.E.C.I. agreed to indemnify Lafarge “from any
and all claims, suit, or liability” that arose “in whole or in part
[from] . . . any act or omission of [K.E.C.I.], or any of [its] officers,
agents, employees, or servants.” The division concluded that “the
indemnity clause unambiguously require[d] K.E.C.I. to indemnify
Lafarge for Lafarge’s own negligence where Lafarge’s liability
31 ar[o]se[] out of any incident which [was] at least partially the result
of K.E.C.I.’s acts or omissions.” Id. at 686.
¶ 56 The division emphasized that the clause “cover[ed] Lafarge’s
‘liability’ and encompasse[d] such liability ‘arising in whole or in
part’ from K.E.C.I.’s acts and omissions.” Id. And it distinguished
a case in which a division of this court concluded that an indemnity
clause did not apply to an indemnitee’s own negligence because
that clause did not address “the indemnitee’s ‘liabilities’ and did not
broadly cover any liability arising ‘in any way’ from the indemnitor’s
acts.” Id. at 686-87 (citing Boulder Plaza Residential, LLC v. Summit
Flooring, LLC, 198 P.3d 1217, 1222 (Colo. App. 2008)).
¶ 57 Here, the indemnity provision required WSi to indemnify
Insight “from any . . . liability . . . arising from or related to
negligent . . . conduct of Temporary Staff, including . . . any other
claim of any kind or character.” Thus, as the district court
acknowledged, the provision contained the critical “any liability”
and “any other claim” language. E.g., id. at 686; Constable, 248
P.3d at 717. Additionally, unlike the cases discussed above, this
indemnity clause explicitly applied to negligent conduct. See
Constable, 248 P.3d at 716.
32 ¶ 58 But the district court concluded that the clause here was
narrower than the other provisions because it indemnified Insight
only for the negligent conduct of WSi’s temporary staff. Although
the provision in Lafarge, 250 P.3d at 685, similarly limited Lafarge’s
indemnity to the conduct of K.E.C.I. and its employees, the district
court reasoned that “[i]t d[id] not limit indemnity to one particular
class of . . . employees.” The district court here further reasoned
that the language paralleled Boulder Plaza, in which the indemnity
provision was limited to “all claims for damage . . . growing out of
the execution of the work.’” 198 P.3d at 1220. We disagree.
¶ 59 The fact that the indemnity provision required WSi to
indemnify Insight for a particular class of WSi employees’
negligence does not persuade us that the parties intended to
exclude indemnity for Insight’s negligence. The division in Lafarge
emphasized the provision’s inclusion of liability arising wholly or
partly from K.E.C.I.’s conduct, and it distinguished Boulder Plaza
because the agreement there lacked such language, not because the
provision limited indemnification to a specific circumstance or class
of persons. Lafarge, 250 P.3d at 686-87. Moreover, the division in
Boulder Plaza also emphasized that the indemnification clause at
33 issue lacked the “liabilities” and “in any way” language. 198 P.3d at
1222 (citing Pub. Serv. Co., 829 P.2d at 1283).
¶ 60 Limiting indemnification to claims that “grow[] out of the
execution of the work,” id. at 1220, is significantly narrower than
indemnification for any liability “arising from or related to” the
negligence of WSi’s temporary staff. And the provision here, which
indemnifies Insight from conduct “arising from or related to” the
temporary staff’s negligence is even broader than the Lafarge
provision, which included liability “arising in whole or in part” from
K.E.C.I.’s conduct. 250 P.3d at 686; see also In re Estate of Gattis,
2013 COA 145, ¶ 40 (explaining that courts have interpreted the
phrase “relating to” as broader than the phrase “arising out of”
(citation omitted)).
¶ 61 We therefore conclude that the 2014 Agreement requires WSi
to indemnify Insight for its own negligence when Insight’s liability
arises from or is related to the negligent conduct of WSi’s temporary
34 staff.9 See Lafarge, 250 P.3d at 686. This includes Insight’s direct
and vicarious liability in a wrongful death action stemming from an
incident involving a WSi nurse’s allegedly negligent care of an
Insight patient. The district court erred by concluding otherwise.
And because it is clear and unequivocal, this type of provision is
enforceable in Colorado. See Constable, 248 P.3d at 716.
¶ 62 Finally, we briefly address and reject WSi’s argument that
Brochner, 724 P.2d at 1299, supports the district court’s
conclusion. Applying the UCATA, Brochner “abolished the common
law doctrine of indemnity as between two joint tortfeasors,” such
that “one of two joint tortfeasors can no longer maintain an
indemnity claim against the other for reimbursement of the entire
amount paid as damages to the injured party.” Block, ¶ 33 (citing
Brochner, 724 P.2d at 1299). Brochner concerned common law
indemnity, not contractual indemnity. See id.; see also Holly Sugar
9 The Maryland case that WSi cites in support of the opposite
conclusion is not persuasive. See Bd. of Trs., Cmty. Coll. of Balt. Cnty. v. Patient First Corp., 120 A.3d 124, 132 (Md. 2015). Maryland courts clearly require more explicit language in commercial agreements than do Colorado courts. See id.
35 Corp. v. Union Supply Co., 572 P.2d 148, 150 (1977) (distinguishing
the types of indemnity).
¶ 63 We also reject WSi’s reliance on section 13-21-111.5(6)(b),
C.R.S. 2025. That section applies only to construction contracts
and voids provisions that indemnify an indemnitee for its own
negligence. Id. It is not applicable to the agreement here.
3. Hinson’s Loaned Employee Status Does Not Change the Result
¶ 64 Finally, we conclude that the indemnity clause entitles Insight
to indemnification for Hinson’s negligent conduct, and Hinson’s
status as a loaned employee does not alter this result.
¶ 65 We first reject WSi’s contention that Insight failed to preserve
its argument that Hinson’s status as a loaned employee does not
void the indemnity provision. Insight’s motion for reconsideration
argued that “the law does not require that WSi have control over . . .
Hinson” for the indemnification agreement to be enforceable and
that Hinson’s status as Insight’s agent does not void the clause.
Insight raised “the sum and substance of the argument,” which is
sufficient to preserve the issue. Marquez v. Schaefer, 2025 COA 44,
¶ 30 (citation omitted).
36 ¶ 66 WSi argues that “[a]n indemnification agreement trumps a
loaned employee status only when the agreement clearly and
unequivocally indemnifies the borrowing entity from the loaned
employee’s negligence.” Somehow, WSi then concludes that the
2014 Agreement, which explicitly indemnified Insight for WSi
temporary staff’s (i.e., Hinson’s) negligence, did not meet this
standard.
¶ 67 No Colorado appellate court has addressed the effect of the
loaned employee doctrine on the enforceability of an indemnity
agreement. But other jurisdictions hold that the doctrine does not
alter the analysis. E.g., Stocker v. Shell Oil Co., 716 P.2d 306, 309
(Wash. 1986) (“[P]ublic policy considerations mandate enforcement
of indemnity agreements, notwithstanding incidents of borrowed
servant status.”); Sea Land Indus., Inc. v. Gen. Ship Repair Corp.,
530 F. Supp. 550, 563 (D. Md. 1982) (“[W]hatever the status of an
employee under the ‘borrowed servant’ doctrine, the parties may
allocate between themselves the risk of any loss resulting from the
employee’s negligent acts.”); Interstate Fire & Cas. Co. v. Dimensions
Assurance Ltd., 843 F.3d 133, 140 (4th Cir. 2016) (“[I]f the general
employer and special employer have . . . contract[ually] assign[ed]
37 liability to one of the parties, courts will give effect to that
contract.”); Sokolovic v. Throgs Neck Operating Co., 48 N.Y.S.3d 91,
92 (App. Div. 2017) (The “contractual obligation . . . to indemnify
Throgs Neck was not altered or qualified in any way by the court’s
finding that the nurse was a special employee of Throgs Neck for
the purposes of Throgs Neck’s liability to plaintiff.”). We conclude
that Hinson’s loaned employee status does not alter WSi’s duty to
indemnify Insight for the negligence of WSi’s temporary staff.
¶ 68 Additionally, the clause is not invalid merely because WSi
agreed to indemnify Insight for the negligence of WSi’s loaned
employees even if WSi was not directly negligent. See United States
v. Hollis, 424 F.2d 188, 190 (4th Cir. 1970) (“It has long been
settled law that a party may expressly agree to be held liable, even if
the accident stems solely from the fault of another.”); Snohomish
Cnty. Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 271
P.3d 850, 853 (Wash. 2012) (explaining that indemnification
agreements that indemnify against an indemnitee’s sole negligence
are not void as against public policy). And in Colorado, particularly
among sophisticated parties to commercial contracts, “[s]trong
policy considerations favoring freedom of contract generally permit
38 business owners to allocate risk amongst themselves as they see
fit.” Constable, 248 P.3d at 718.
¶ 69 Here, two sophisticated corporate entities agreed that WSi
would indemnify Insight for the negligence of WSi’s temporary staff.
The “‘borrowing’ and ‘loaning’ of [WSi staff] is the essence of the . . .
contract,” while “indemnification for damage caused or claimed by
these [loaned employees] is the precise purpose of the indemnity
clause.” Stocker, 716 P.2d at 309. Invalidating that agreement
“would frustrate the clearly expressed intent of the parties and
allow a patently unfair result.” Id.
¶ 70 Finally, we decline to resolve the question left open in
Constable: “whether an agreement to indemnify against a risk that
is wholly within the control of an indemnitee might alter the public
policy calculus or evidence too great a disparity in the bargaining
power of the parties.” 248 P.3d at 719. Although WSi cites this
language, it does not develop the argument. See Brown v. Am.
Standard Ins. Co. of Wis., 2019 COA 11, ¶ 45 (declining to address a
possible “issue of first impression in Colorado[] without the benefit
of briefing”). Even so, the indemnity provision at issue here does
not go that far. It necessarily requires Hinson to have been
39 negligent before any indemnity obligation attaches, and Hinson’s
negligence is not wholly within Insight’s control.
¶ 71 Accordingly, we reverse the district court’s order dismissing
Insight’s third-party claims and remand for further proceedings on
the merits of this claim, including whether Hinson and/or Insight
were negligent. However, we emphasize that the indemnity clause
applies only to Insight’s direct and vicarious liability for claims
arising from or related to Hinson’s negligence. Insight is not
entitled to indemnity for any negligent conduct unrelated to
Hinson’s negligence, for the negligent conduct of non-WSi
employees, or for the negligent conduct of WSi employees who do
not qualify as “temporary staff” under the 2014 Agreement. In so
concluding, we do not address any other arguments not sufficiently
developed on appeal. See Galiant Homes, LLC v. Herlik, 2025 COA
3, ¶ 14.
IV. Disposition
¶ 72 We affirm the district court’s order denying WSi’s motion for a
directed verdict, reverse the district court’s order dismissing
Insight’s third-party claims, and remand for further proceedings.
JUDGE BROWN and JUDGE MEIRINK concur.