Surdyka v. DeWitt

784 P.2d 819, 13 Brief Times Rptr. 822, 1989 Colo. App. LEXIS 193, 1989 WL 73391
CourtColorado Court of Appeals
DecidedJuly 6, 1989
Docket88CA0155
StatusPublished
Cited by26 cases

This text of 784 P.2d 819 (Surdyka v. DeWitt) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Surdyka v. DeWitt, 784 P.2d 819, 13 Brief Times Rptr. 822, 1989 Colo. App. LEXIS 193, 1989 WL 73391 (Colo. Ct. App. 1989).

Opinion

Opinion by

Judge PLANK.

Shelter General Insurance Company (Shelter Insurance) appeals the judgment entered upon a jury verdict finding it liable for bad faith breach of an insurance contract. We affirm.

In July of 1983, plaintiff, William Surdy-ka, rented camper jacks from the OK Tool Rental Company, owned by defendant Verne DeWitt (insured). These camper jacks were designed to lift a camper or trailer so that a pick-up truck could be placed beneath the camper and then the camper could be secured to the truck. Pri- or to the plaintiff's rental of the camper jacks, the insured had replaced the lifting cables in one of the jacks. While the plaintiff was using the camper jack, these lifting cables snapped, and the plaintiff was injured. As a result, plaintiff filed this action against the insured for personal injuries and property damage.

The insured had a general liability insurance policy from Shelter Insurance. When the insured was informed of the plaintiff’s accident, he notified his Shelter Insurance agent, but Shelter Insurance denied coverage.

While the personal injury suit was pending, the insured impleaded Shelter Insurance seeking declaratory relief, asserting breach of contract, estoppel, and bad faith breach of an insurance contract. The insured’s claims against Shelter Insurance were severed and tried prior to the plaintiff’s personal injury trial against the insured.

The trial court directed a verdict on the existence of coverage under the Shelter Insurance policy and instructed the jury to consider damages for breach of the insurance contract. The jury was also instructed to determine whether there had been a bad faith breach of the insurance contract and, if so, to consider damages therefor. The jury returned a verdict for the insured against Shelter Insurance in the following amounts: $5000 in actual damages for expenditures on attorney fees for breach of contract, $60,000 in personal injury damages for the claim of bad faith breach, and $25,000 in punitive damages for bad faith breach of an insurance contract. This appeal followed.

I.

Shelter Insurance initially contends that the trial court erred in directing a verdict that the insurance policy provided coverage for the accident and injuries sustained by plaintiff. It contends that the “completed operation” clause present in the insurance policy excluded coverage for this type of incident. We disagree.

The interpretation of insurance contracts involves a question of law. Benham v. Manufacturers & Wholesalers Indemnity Exchange, 685 P.2d 249 (Colo.App.1984).

The burden of proof is upon the insurer to establish the applicability of an exclusion to coverage. See West v. Credit Life Insurance Co., 30 Colo.App. 455, 494 P.2d 601 (1972). Moreover, insurance policies that purport to grant broad coverage must be interpreted to further the principle of coverage, and any exclusions must be clear *821 and specific to be enforceable. United Fire & Casualty Co. v. Day, 657 P.2d 981 (Colo.App.1982). Also, any ambiguities in a policy should be construed most strongly against the insurer. Coxen v. Western Empire Life Insurance Co., 168 Colo. 444, 452 P.2d 16 (1969).

Here, the policy in question provides an exclusion for “completed operations” hazards. The clause at issue provides that coverage is excluded for:

“Bodily injury and property damage arising out of operations or reliance upon a misrepresentation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned or rented to the named insured. ' Operations includes material, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) When all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) When all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) When the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principle [sic] as a part of the same project. Operations which may require further service or maintenance work or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.” (emphasis added)

It is Shelter Insurance’s contention that the insured’s replacement of the lifting cables on the camper jack constituted a “completed operation” and that, therefore, injury resulting from negligence in that replacement was excluded from coverage. We disagree.

The word “complete” has been held to mean that no part, item, or element is lacking. Southern Guaranty Insurance Co. v. Scott, 289 Ala. 159, 266 So.2d 602 (1972).

None of the specific alternatives in the policy defining a “completed operation” is applicable here.

As to the first alternative, “the operations to be performed by or on behalf of the named insured” had not been completed at the time of the injury. As the plaintiff had to return the camper jack to the insured, a transaction between the plaintiff and the insured still remained to be completed.

As to the second alternative, the rental of the camper jack had not been completed at the time of . the injury at the “site of operations.” This is true whether the “site of operations” is construed to be where the injury occurred or the insured’s place of business. If we construe “site of operations” to be where the injury occurred, all operations were not complete because the plaintiff was using the camper jack when he was injured. Since the injury did not occur on the premises of the insured, this exclusion is inapplicable if the “site of operations” is construed to be the insured’s place of business.

As to the third alternative, it is obvious that the intention of this alternative is to apply to factual settings similar to those in which a building contractor has completed his work on a residence. Under such circumstances his work would be completed on the building, when it became occupied (“put to its intended use”). Southern Guaranty Insurance Co. v. Scott, supra; see Martinez v. Hawkeye-Security Insurance Co., 195 Colo. 184, 576 P.2d 1017 (1978). Hence, it has no relevance here.

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Bluebook (online)
784 P.2d 819, 13 Brief Times Rptr. 822, 1989 Colo. App. LEXIS 193, 1989 WL 73391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/surdyka-v-dewitt-coloctapp-1989.