Union Ins. Co. v. Hottenstein
| Decision Date | 04 December 2003 |
| Docket Number | No. 02CA2255.,02CA2255. |
| Citation | 83 P.3d 1196 |
| Parties | UNION INSURANCE COMPANY, a Nebraska corporation, Plaintiff-Appellee, v. Evelyn HOTTENSTEIN, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Retherford, Mullen, Johnson & Bruce, LLC, Jerry A. Retherford, Debra P. DeRee, Neil C. Bruce, Colorado Springs, Colorado, for Plaintiff-Appellee.
Campbell Bohn Killin Brittan & Ray, LLC, Michael G. Bohn, Daniel P. Queen, Denver, Colorado, for Defendant-Appellant. Opinion by Judge MARQUEZ.
In this action for declaratory relief involving a commercial general liability insurance policy, defendant, Evelyn Hottenstein, appeals the summary judgment in favor of plaintiff, Union Insurance Company. We affirm.
In 1998, Hottenstein filed a complaint against a construction company and its owner, alleging several claims, including breach of a contract to remodel her home and negligence. In 1999, pursuant to a provision in the construction contract, Hottenstein and the construction company arbitrated the dispute. The arbitrator awarded damages to Hottenstein in the amount of $80,165 calculated as follows:
A. Benefit of the Bargain Damages
1. Costs to complete contract $35,800 2. Costs to remedy defects (includes damages to repair inadequate work and to replace or repair personal property) + 34,017 3. Unpaid balance of contract price a. Contract price 44,137 b. Progress payments paid - 34,745 (Subtract b. from a. to calculate unpaid balance of contract price) (9,392) 4. Damages for lost business income + 4,125 5. Damages for lost rental income + 2,700 [(1 + 2 - 3] + 4 + 5 = total benefit of the bargain damages 67,250 B. Damages for Negligent Performance (i.e., damage to existing roof) 9,915 C. Damages for loss of enjoyment 3,000 Total Damages 80,165
Hottenstein later had the award reduced to a judgment.
The construction company was covered by Union under a commercial general liability policy. Union defended the construction company in the arbitration under a reservation of rights.
In July 2000, Union commenced this action for declaratory relief. Union admitted liability for the $9,915 negligence award, but sought a declaration that it had no duty to indemnify the construction company for the balance of the arbitration award.
After Union filed a motion for summary judgment, the trial court granted Hottenstein an enlargement of time until September 24, 2002 in which to respond to the motion. However, the court granted Union's motion on September 20, 2002. The trial court held that Union had no duty to indemnify the construction company for the damages of $67,250 for breach of contract and $3,000 for loss of enjoyment.
On September 24, 2002, Hottenstein filed her response to the motion for summary judgment, her cross-motion for summary judgment, and her motion for reconsideration, but the trial court summarily denied the motions.
Hottenstein contends that the trial court erred by granting the motion for summary judgment without giving her an opportunity to oppose it as required by C.R.C.P. 56(c) and 121 § 1-15. We agree, but find the error to be harmless. Our review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995).
C.R.C.P. 56 contemplates that opposing parties will be provided an opportunity to respond to authority cited in support of a motion for summary judgment. Antelope Co. v. Mobil Rocky Mtn., Inc., 51 P.3d 995 (Colo. App.2001). C.R.C.P. 56(c) provides that the party opposing a summary judgment motion "may file and serve opposing affidavits within the time allowed for the responsive brief." However, judgment "shall be rendered forthwith" if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, show that no genuine issue exists as to any material fact and that the moving party is entitled to a judgment as a matter of law. See also Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo.1991)
.
Under C.R.C.P. 121 § 1-15(1), a trial court must allow fifteen days or such time as the court otherwise allows for a nonmoving party to file responses or objections to motions involving contested issues of law. Ogawa v. Riley, 949 P.2d 118 (Colo.App.1997)(motion for judgment against surety). Failure to allow a party to respond within the allotted time constitutes an abuse of discretion. Weatherly v. Roth, 743 P.2d 453 (Colo.App.1987)(motion to dismiss); Lanes v. Scott, 688 P.2d 251 (Colo.App.1984)(motion to dismiss).
However, we disregard errors or defects in the proceeding that do not affect the substantial rights of the parties. C.R.C.P. 61. A party's substantial right is one that relates to the subject matter and not to a matter of procedure or form. Sowder v. Inhelder, 119 Colo. 196, 201 P.2d 533 (1948); Cobbin v. City & County of Denver, 735 P.2d 214 (Colo.App.1987).
Here, the trial court erroneously granted summary judgment in favor of Union four days before Hottenstein's response was due. However, Hottenstein's response, cross-motion, and related briefs are available in the record for our de novo review. On that review, we conclude that summary judgment was nonetheless proper, as discussed in the following sections.
Hottenstein contends that the trial court both misapplied the law and misconstrued the facts when it determined that the insurance policy established no duty for Union to indemnify the construction company for the arbitration award. We disagree.
We first reject Hottenstein's contention that the trial court overlooked certain ambiguities and conflicting terms in the insurance contract that are material to the interpretation of the contract and give rise to issues of material fact.
Hottenstein's response and motions included only one affidavit, that of counsel stating that further discovery is necessary as to (1) Union's decision to deny indemnity and custom and practice in paying similar claims, and (2) the intent of Union and the owner of the construction company at the time they entered into the insurance contract.
However, the intent of the parties should be determined from the language of the contract itself. Extrinsic evidence is not admissible until the contract has been found to be ambiguous. Whether a contract is ambiguous is a question of law that we review de novo. Antelope Co. v. Mobil Rocky Mtn., Inc., supra.
Therefore, we review the contract to determine whether it is ambiguous and conclude that it is not. Thus, counsel's request for further discovery was properly denied in any event.
Language is ambiguous if it is susceptible of more than one reasonable interpretation. Dupre v. Allstate Ins. Co., 62 P.3d 1024 (Colo.App.2002). A mere potential for more than one meaning does not create an ambiguity. Allstate Ins. Co. v. Juniel, 931 P.2d 511 (Colo.App.1996). Here, the contract provides a general grant of coverage for "property damage liability."
The policy includes several exclusions and exceptions to the exclusions, including:
(Emphasis supplied.)
The policy defines the terms used. An "insured contract" means a "contract for lease of property." The definitions for "your product" and "your work" are separate but identical.
The contract between Hottenstein and the construction company states: "All work is to be completed in a workmanlike manner according to standard practices."
Hottenstein asserts alternatively that the warranty is an "insured contract" within the meaning of the insurance policy or that, consistent with Lembke Plumbing & Heating v. Hayutin, 148 Colo. 334, 366 P.2d 673 (1961), the construction company had a common law duty apart from the contract to provide...
To continue reading
Request your trial
-
Black & Veatch Corp. v. Aspen Ins. (UK) LTD
...are accidental when they are "unanticipated" or "unforeseeable." See Greystone , 661 F.3d at 1285 (citing Union Ins. Co. v. Hottenstein , 83 P.3d 1196, 1201 (Colo. App. 2003) ). Because a contractor's "obligation to repair defective work is neither unexpected nor unforeseen," damage to the ......
-
Lennar Corp. v. Great American Ins. Co.
...Co., Inc., 818 N.E.2d 998, 1005 (Ind.Ct.App.); see also, e.g., Burlington Ins. Co., 383 F.3d at 945-53; Union Ins. Co. v. Hottenstein, 83 P.3d 1196, 1201-02 (Colo.Ct. App.2003); Pursell Constr., Inc. v. Hawkeye-Sec. Ins.Co., 596 N.W.2d 67, 70-71 (Iowa 1999); L-J, Inc. v. Bituminous Fire and......
-
Greystone Constr., Inc. v. Nat'l Fire & Marine Ins. Co.
...under Colorado law an accident is “an unanticipated or unusual result flowing from a commonplace cause.” Union Ins. Co. v. Hottenstein, 83 P.3d 1196, 1201 (Colo.App.2003) (applying Carroll v. CUNA Mut. Ins. Soc'y, 894 P.2d 746, 753 (Colo.1995)). “[I]t is the ‘knowledge and intent of the ins......
-
Marks v. Gessler
...present evidence on the [dispositive] issue....” Id.¶ 53 In support of its conclusion, the ISG court referenced Union Insurance Co. v. Hottenstein, 83 P.3d 1196 (Colo.App.2003). There, the defendant had filed a motion for summary judgment, and the trial court entered judgment for the defend......
-
Rule 56 SUMMARY JUDGMENT AND RULINGS ON QUESTIONS OF LAW.
...the opportunity for a response from the opposing party, found to be harmless error under the circumstances. Union Ins. Co. v. Hottenstein, 83 P.3d 1196 (Colo. App. 2003). Issue of sovereign immunity properly decided under C.R.C.P. 12(b)(1) rather than this rule since sovereign immunity issu......
-
Chapter 14 - § 14.12 • INSURANCE COVERAGE FOR FAULTY RESIDENTIAL CONSTRUCTION
...1996).[2826] Id. at 514.[2827] See Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 680 (Colo. 1989). 2828. Union Ins. Co. v. Hottenstein, 83 P.3d 1196 (Colo. App. 2003).[2829] This rule is sometimes also referred to as the doctrine of contra proferentem. Pittston Co. Ultramar Am. Ltd. v. Allia......
-
Chapter 21 - § 21.2 • ARBITRATION - GENERALLY
...Foust, 786 P.2d 450.[299] Superior Constr. Co. v. Bentley, 104 P.3d 331, 333-34 (Colo. App. 2004).[300] Union Ins. Co. v. Hottenstein, 83 P.3d 1196 (Colo. App. 2003).[301] Sisters of Mercy of Colo. v. Mead & Mount Constr. Co., 439 P.2d 733, 736 (Colo. 1968).[302] Twin Lakes Reservoir & Cana......
-
Chapter 12 - § 12.2 • LIABILITY INSURANCE POLICIES
...App. 1996).[112] Id. at 514.[113] See Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 680 (Colo. 1989).[114] Union Ins. Co. v. Hottenstein, 83 P.3d 1196 (Colo. App. 2003).[115] This rule is sometimes also referred to as the doctrine of contra proferentem. Pittston Co. Ultramar Am. Ltd. v. Alli......