Steamboat Development Corp. v. Bacjac Industries, Inc., 84CA0162
| Decision Date | 07 March 1985 |
| Docket Number | No. 84CA0162,84CA0162 |
| Citation | 701 P.2d 127 |
| Parties | STEAMBOAT DEVELOPMENT CORPORATION, a Colorado corporation, Plaintiff-Appellant, v. BACJAC INDUSTRIES, INC., a Colorado corporation, formerly known as Faithorn of Colorado, Inc., Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Greengard & Senter, James E. Goldfarb, Edgar R. Nield, Denver, for plaintiff-appellant.
The Law Firm of Mike Hilgers, Mike Hilgers, Jeffery M. Grass, Arvada, for defendant-appellee.
Plaintiff, Steamboat Development Corporation (the owner), appeals a summary judgment dismissing its breach of contract action against Bacjac Industries, Inc. (the contractor). We affirm.
The parties entered into a contract for the construction of Shadow Run Condominiums. Subsequently, during the process of construction, a fire destroyed a substantial portion of the Shadow Run project. The fire originated in an enclosed room where a propane-fired heater was in operation.
The owner brought this action, claiming that the negligence of the contractor caused the fire which destroyed the project. Summary judgment was entered on the grounds that the construction contract precluded the owner's claim and that the owner had breached the contract.
The owner claims that the contract does not preclude its claims for recovery. We disagree.
The contract provides, in pertinent part:
....
"11.3.6 The owner and contractor waive all rights against 1) each other ... for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this paragraph 11.3...."
The contract also contains a typewritten paragraph that the contractor would not carry builder's risk insurance.
It is undisputed that the owner failed to procure insurance in the interest of the contractor as called for in paragraph 11.3.1 and that the owner did not notify the contractor of this failure.
Paragraph 11.3.1 requires the owner to provide "all risk" insurance for "physical loss or damage" from "the perils of fire" covering the interests of both the owner and the contractor. The purpose of such insurance is to shift the risk of loss away from the contractor and the owner and to place it upon an insurer. See South Tippecanoe School Building v. Schambaugh & Son, Inc., 182 Ind.App. 350, 395 N.E.2d 320 (1979). An "all risk" policy is a special type of coverage extending to risks not usually covered under other insurance, and recovery is allowed thereunder for all losses, other than those resulting from a willful or fraudulent act of the insured, unless...
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...unless the policy contains a specific provision expressly excluding a particular loss from coverage." Steamboat Dev. Corp. v. Bacjac Indus., Inc., 701 P.2d 127 (Colo.App.1985).2 The language of at least one Colorado statute as it stood in 1982 also provides some evidence that "flood" in ord......
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