TCD, Inc. v. American Family Mutual Insurance Co.

2012 COA 65, 296 P.3d 255, 2012 WL 1231964, 2012 Colo. App. LEXIS 554
CourtColorado Court of Appeals
DecidedApril 12, 2012
DocketNo. 11CA1046
StatusPublished
Cited by11 cases

This text of 2012 COA 65 (TCD, Inc. v. American Family Mutual Insurance Co.) 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
TCD, Inc. v. American Family Mutual Insurance Co., 2012 COA 65, 296 P.3d 255, 2012 WL 1231964, 2012 Colo. App. LEXIS 554 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge RICHMAN.

1 1 Plaintiff, TCD, Inc., appeals the district court's summary judgment in favor of defendant, American Family Mutual Insurance Company, on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy. We affirm.

I. Background

T2 This case arises out of a construction project in Frisco, Colorado. The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD entered into a subcontract with Petra Roofing and Remodeling Company (Petra) to install the roof on the building. The subcontract required Petra to "indemnify, 'hold harmless, and defend" TCD against claims arising out of or resulting from the perform[257]*257ance of Petra's work on the project. The subcontract also required Petra to name TCD as an additional insured on its CGL policy in connection with Petra's work under the subcontract.

3 The insurance company issued a CGL policy to Petra, with TCD named as an additional insured. Although the anticipated policy period was from August 22, 2006 through August 22, 2007, the policy was cancelled on June 10, 2007 due to nonpayment of the premium.

14 After a dispute arose between TCD and Gateway regarding payment and performance on the project, TCD filed suit against Gateway and other parties seeking payment, and Gateway asserted counterclaims against TCD for breach of contract, negligence, and violation of the Consumer Protection Act. This underlying action proceeded to arbitration and resulted in a binding award. As an additional insured under the CGL policy, TCD demanded that the insurance company defend and indemnify it in the underlying action, but the insurance company denied coverage.

15 TCD initiated this case against Petra and the insurance company, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negli-genee. The district court entered a default judgment against Petra, and both the remaining parties moved for summary judgment. The court granted summary judgment on the entirety of the action, in favor of the insurance company, concluding that the counterclaims asserted by Gateway against TCD did not give rise to an obligation to defend or indemnify under the CGL policy.

IL Standard of Review

1 6 We review de novo the district court's grant of summary judgment. A.C. Excavating v. Yacht Club II Homeowners Ass'n, 114 P.3d 862, 865 (Colo.2005). Summary judgment is a drastic remedy and should by granted only if there is a clear showing that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. AviComm, Inc. v. Colo. Public Util. Comm'n, 955 P.2d 1023, 1029 (Colo.1998).

17 If the moving party meets its initial burden of showing that there is no genuine issue of material fact, the burden shifts to the nonmoving party to establish that there is a triable issue of fact. Id. "The nonmoving party is entitled to all favorable inferences that may be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party." Id.

IIL Issues on Appeal

18 TCD contends that Gateway's counterclaims are sufficient to raise a genuine issue as to whether the insurance company had a duty to defend it against those claims. In the alternative, TCD contends that it is entitled to have us consider evidence not contained in the counterclaims that purportedly shows that the insurance company had a duty to defend. TCD also contends that section 13-20-808, C.R.8.2011, a statute enacted nearly three years after the CGL policy was cancelled, requires reversal in this case. We reject each contention in turn.

A. Gateway's Counterclaims

T9 TCD contends that Gateway's counterclaims constitute an allegation of "property damage," which is covered under the CGL policy. We disagree.

$10 Whether there is a duty to defend is a question of law we review de novo. Carl's Italian Restaurant v. Truck Ins. Exchange, 183 P.3d 636, 639 (Colo.App.2007). We also review de novo the interpretation of an insurance contract. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999).

111 "[An] insurer has a duty to defend unless the insurer can establish that the allegations in the complaint are solely and entirely within the exclusions in the insurance policy." Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo.1991). "We give insurance policy terms their fair, natural, and reasonable meaning." Bainbridge, Inc. v. Travelers Casualty Co., 159 P.3d 748, 753 (Colo.App.2006). In addition, we construe coverage provisions [258]*258in an insurance contract liberally in favor of the insured to provide the broadest possible coverage. Fire Ins. Exchange v. Bentley, 953 P.2d 1297, 1300 (Colo.App.1998).

€ 12 Here, pursuant to the CGL policy, the insurance company is obligated to "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or (property damage' to which this insurance applies." The policy defines "property damage" as

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

113 Defense and liability coverage in CGL policies issued to subcontractors generally is limited to property damage caused by an "occurrence." General Security Indemnity Co. v. Mountain States Mutual Casualty Co., 205 P.3d 529, 533 (Colo.App.2009), superseded by § 13-20-808. In this policy, an "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Thus, the policy requires an "accident" to trigger an "occurrence." See id.

114 The counterclaims made by Gateway against TCD that are relevant to Petra's work on the project are the following:

14. _.... TCD hired a roofer who improperly installed the roof, installed a roof that would not pass inspection for certificate of occupaney[,] was inferior to the contract specifications, and walked off the job.
15.

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2012 COA 65, 296 P.3d 255, 2012 WL 1231964, 2012 Colo. App. LEXIS 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tcd-inc-v-american-family-mutual-insurance-co-coloctapp-2012.