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United Fire & Cas. Co. v. Boulder Plaza Residential, LLC

United Fire & Cas. Co. v. Boulder Plaza Residential, LLC

United States Court of Appeals for the Tenth Circuit

January 27, 2011, Filed

Nos. 10-1056 & 10-1075

Opinion

 [*954]  LUCERO, Circuit Judge.

Boulder Plaza Residential, LLC ("BPR") appeals the district court's grant of summary judgment for United Fire & Casualty Co. ("UFC"). In its order granting summary judgment, the district court held that under Colorado law, UFC, an insurer, owed no duty of defense, nor duty of indemnification. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BPR, a real estate developer, and McCrery & Roberts Construction Co. ("M&R"), entered into a contract ("the General Contract"), in which M&R agreed to serve as the general contractor for the interiors of condominiums BPR was building in Boulder,  [**2] CO. In the General Contract, M&R agrees to indemnify BPR:

[F]rom and against claims, damages, losses, and expenses . . . arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

M&R then entered into a subcontract with Summit Flooring, LLC ("Summit"), whereby Summit agreed to install the hardwood floors in the condominiums. In the subcontract, Summit agreed "to indemnify and save [M&R] harmless against all claims for damage to persons and property growing out of the execution of the work, including any costs and fees incurred by [M&R], should any claims be made."

Summit also obtained Commercial General Liability ("CGL") insurance policies  [**3] from UFC, in which UFC agrees to pay for "bodily injury" or "property damage" caused by any "occurrence" which subjects Summit to liability. M&R, as the general contractor, was listed as an Additional Insured in the policies' Additional Insured Endorsements, which define the scope of coverage as follows:

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633 F.3d 951 *; 2011 U.S. App. LEXIS 1694 **

UNITED FIRE & CASUALTY COMPANY, an Iowa corporation, Plaintiff-Counterclaim Defendant—Appellee/Cross-Appellant, v. BOULDER PLAZA RESIDENTIAL, LLC, a Colorado limited liability company, Defendant-Counterclaim Plaintiff—Appellant/Cross-Appellee.

Subsequent History: Motion granted by, in part, Motion denied by, in part, Costs and fees proceeding at United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 2011 U.S. Dist. LEXIS 37082 (D. Colo., Mar. 29, 2011)

Prior History:  [**1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:06-CV-00037-PAB-CBS).

United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 2010 U.S. Dist. LEXIS 14257 (D. Colo., Feb. 1, 2010)

CORE TERMS

insured, coverage, duty to defend, floors, additional insured, duty to indemnify, installation, ongoing operation, indemnify, district court, endorsement, summary judgment, no duty, triggered, damages, imputed, property damage, allegations, occurrence, general contractor, insurance policy, subcontractor, cross-appeal, four corners, policies, complaints, quotation, notice, extrinsic evidence, bodily injury

Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Insurance Law, Claim, Contract & Practice Issues, Policy Interpretation, Question of Law, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Indemnification, Evidence, Burdens of Proof, Allocation, Reviewability of Lower Court Decisions, General Overview, Coverage, Triggers, Business Insurance, Commercial General Liability Insurance, Occurrences, Remedies, Bonds, Advertising & Personal Injuries, Personal Injuries, Property Claims, Declaratory Judgments, Preliminary Considerations, Federal & State Interrelationships